EXHIBIT 4.2
EXECUTION VERSION
WESTERN WIRELESS CORPORATION
9.250% SENIOR NOTES DUE 2013
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
July 16, 2003
Xxxxxxx, Xxxxx & Co.,
X.X. Xxxxxx Securities Inc.
Wachovia Capital Markets, LLC
As representatives of the several Purchasers
named in Schedule I to the Purchase Agreement
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Western Wireless Corporation, a Washington corporation (the "Company"),
proposes to issue and sell to the Purchasers (as defined herein) upon the terms
set forth in the Purchase Agreement (as defined herein) its 9.250% Senior Notes
due 2013. As an inducement to the Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations of the
Purchasers thereunder, the Company agrees with the Purchasers for the benefit of
holders (as defined herein) from time to time of the Registrable Securities (as
defined herein) as follows:
1. Certain Definitions.
For purposes of this Exchange and Registration Rights Agreement, the
following terms shall have the following respective meanings:
(a) The term "broker-dealer" shall mean any broker or
dealer registered with the Commission under the Exchange Act.
(b) "business day" shall mean each Monday, Tuesday,
Wednesday, Thursday, Friday which is not a day on which banking
institutions in New York City, the State of Washington or the State of
California are authorized or obligated by law or executive order to
close.
(c) "Closing Date" shall mean the date on which the
Securities are initially issued.
(d) "Commission" shall mean the Securities and Exchange
Commission, or any other federal agency at the time administering the
Exchange Act or the Securities Act, whichever is the relevant statute
for the particular purpose.
(e) "Deferral Period" shall have the meaning assigned
thereto in Section 2(c) hereof.
(f) "Effective Time", in the case of (i) an Exchange
Registration, shall mean the time and date as of which the Commission
declares the Exchange Registration Statement effective or as of which
such Exchange Registration Statement otherwise becomes effective and
(ii) a Shelf Registration, shall mean the time and date as of which the
Commission declares the Shelf Registration Statement effective or as of
which the Shelf Registration Statement otherwise becomes effective.
(g) "Electing Holder" shall mean any holder of
Registrable Securities that has returned a completed and signed Notice
and Questionnaire to the Company in accordance with Section 3(c)(ii) or
3(c)(iii) hereof.
(h) "Exchange Act" shall mean the Securities Exchange Act
of 1934, or any successor thereto, and the rules, regulations and forms
promulgated thereunder, all as the same shall be amended from time to
time.
(i) "Exchange Offer" shall have the meaning assigned
thereto in Section 2(a) hereof.
(j) "Exchange Registration" shall have the meaning
assigned thereto in Section 3(f) hereof.
(k) "Exchange Registration Statement" shall have the
meaning assigned thereto in Section 2(a) hereof.
(l) "Exchange Securities" shall have the meaning assigned
thereto in Section 2(a) hereof.
(m) The term "holder" shall mean each of the Purchasers
and other persons who acquire Registrable Securities from time to time
(including any successors or assigns), in each case for so long as such
person owns any Registrable Securities.
(n) "Indenture" shall mean the Indenture, dated as of
July 16, 2003, between the Company and The Bank of New York, as
Trustee, as the same shall be amended from time to time.
(o) "Notice and Questionnaire" means a Notice of
Registration Statement and Selling Securityholder Questionnaire
substantially in the form of Exhibit A hereto.
(p) The term "person" shall mean a corporation,
association, partnership, limited liability company, trust or estate,
joint venture, organization, business, individual, government or
political subdivision thereof or governmental agency, or any other
entity.
(q) "Purchase Agreement" shall mean the Purchase
Agreement, dated as of July 11, 2003, between the Purchasers and the
Company relating to the Securities.
(r) "Purchasers" shall mean the Purchasers named in
Schedule I to the Purchase Agreement.
(s) "Registrable Securities" shall mean the Securities;
provided, however, that such Securities shall cease to be Registrable
Securities when (i) in the circumstances contemplated by Section 2(a)
hereof, such Securities either have been exchanged for
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Exchange Securities in an Exchange Offer as contemplated in Section
2(a) or the holder thereof, other than the Purchasers, has failed to
tender the same for Exchange Securities prior to the expiration of an
Exchange Offer effected in accordance with and in the manner
contemplated by this Agreement (provided that any Exchange Security
received by a broker-dealer in an Exchange Offer in exchange for a
Registrable Security that was not acquired by the broker-dealer
directly from the Company will also be a Registerable Security through
and including the earlier of the 90th day after the Exchange Offer is
completed or such time as such broker-dealer no longer owns such
Security); (ii) in the circumstances contemplated by Section 2(b)
hereof, a registration statement registering such Securities under the
Securities Act has been declared or becomes effective and such
Securities have been sold or otherwise transferred by the holder
thereof pursuant to such effective registration statement; (iii) such
Securities are sold pursuant to Rule 144 under circumstances in which
any legend borne by such Securities relating to restrictions on
transferability thereof, under the Securities Act or otherwise, is
removed by the Company or pursuant to the Indenture or such Securities
are eligible to be sold pursuant to paragraph (k) of Rule 144; or (iv)
such Securities shall cease to be outstanding.
(t) "Registration Default" shall have the meaning
assigned thereto in Section 2(c) hereof.
(u) "Registration Expenses" shall have the meaning
assigned thereto in Section 4 hereof.
(v) "Resale Period" shall have the meaning assigned
thereto in Section 2(a) hereof.
(w) "Restricted Holder" shall mean (i) a holder that is
an affiliate of the Company within the meaning of Rule 405, (ii) a
holder who acquires Exchange Securities outside the ordinary course of
such holder's business, (iii) a holder who has arrangements or
understandings with any person to participate in the Exchange Offer for
the purpose of distributing Exchange Securities or (iv) a holder that
is a broker-dealer, but only with respect to Exchange Securities
received by such broker-dealer pursuant to an Exchange Offer in
exchange for Registrable Securities acquired by the broker-dealer
directly from the Company.
(x) "Rule 144", "Rule 405" and "Rule 415" shall mean, in
each case, such rule promulgated under the Securities Act (or any
successor provision), as the same shall be amended from time to time.
(y) "Securities" shall mean, collectively, the 9.250%
Senior Notes due 2013 of the Company to be issued and sold to the
Purchasers, and securities issued in exchange therefor or in lieu
thereof pursuant to the Indenture.
(z) "Securities Act" shall mean the Securities Act of
1933, or any successor thereto, and the rules, regulations and forms
promulgated thereunder, all as the same shall be amended from time to
time.
(aa) "Shelf Registration" shall have the meaning assigned
thereto in Section 2(b) hereof.
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(bb) "Shelf Registration Statement" shall have the meaning
assigned thereto in Section 2(b) hereof.
(cc) "Special Interest" shall have the meaning assigned
thereto in Section 2(c) hereof.
(dd) "Trust Indenture Act" shall mean the Trust Indenture
Act of 1939, or any successor thereto, and the rules, regulations and
forms promulgated thereunder, all as the same shall be amended from
time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Exchange and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the
Company agrees to file under the Securities Act, as soon as
practicable, but no later than 60 days after the Closing Date, a
registration statement relating to an offer to exchange (such
registration statement, the "Exchange Registration Statement", and such
offer, the "Exchange Offer") any and all of the Registrable Securities
for a like aggregate principal amount of debt securities issued by the
Company, which debt securities are substantially identical to the
Registrable Securities (and are entitled to the benefits of a trust
indenture which is substantially identical to the Indenture or is the
Indenture and which has been qualified under the Trust Indenture Act),
except that they have been registered pursuant to an effective
registration statement under the Securities Act and do not contain
provisions for the additional interest contemplated in Section 2(c)
below (such new debt securities hereinafter called "Exchange
Securities"). The Company agrees to use commercially reasonable efforts
to cause such Exchange Registration Statement to become effective under
the Securities Act as soon as practicable, but no later than 150 days
after the Closing Date. The Exchange Offer will be registered under the
Securities Act on the appropriate form and will comply with all
applicable tender offer rules and regulations under the Exchange Act.
The Company further agrees to use commercially reasonable efforts to
commence and complete the Exchange Offer promptly, but no later than 45
days, after such Exchange Registration Statement has become effective,
hold the Exchange Offer open for at least 20 business days and exchange
Exchange Securities for all Registrable Securities that have been
properly tendered and not withdrawn on or prior to the expiration of
the Exchange Offer. The Exchange Offer will be deemed to have been
completed only if the debt securities received by holders other than
Restricted Holders in the Exchange Offer for Registrable Securities
are, upon receipt, transferable by each such holder without restriction
under the Securities Act and the Exchange Act and without material
restrictions under the Blue Sky or securities laws of a substantial
majority of the States of the United States of America. The Exchange
Offer shall be deemed to have been completed upon the earlier to occur
of (i) the Company having exchanged the Exchange Securities for all
outstanding Registrable Securities pursuant to the Exchange Offer and
(ii) the Company having exchanged, pursuant to the Exchange Offer,
Exchange Securities for all Registrable Securities that have been
properly tendered and not withdrawn before the expiration of the
Exchange Offer, which shall be on a date that is at least 20 business
days following the commencement of the Exchange Offer. The
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Company agrees (x) to include in the Exchange Registration Statement a
prospectus for use in connection with any resales of Exchange
Securities by a broker-dealer, other than resales of Exchange
Securities received by a broker-dealer pursuant to an Exchange Offer in
exchange for Registrable Securities acquired by the broker-dealer
directly from the Company, and (y) to keep such Exchange Registration
Statement effective for a period (the "Resale Period") beginning when
Exchange Securities are first issued in the Exchange Offer and ending
upon the earlier of the expiration of the 90th day after the Exchange
Offer has been completed or such time as such broker-dealers no longer
own any Exchange Securities. With respect to such Exchange Registration
Statement, each broker-dealer that holds Exchange Securities received
in an Exchange Offer in exchange for Registerable Securities not
acquired by it directly from the Company shall have the benefit of the
rights of indemnification and contribution set forth in Sections 6(a),
(c), (d) and (e) hereof.
(b) If (i) on or prior to the consummation of the
Exchange Offer existing Commission interpretations are changed such
that the debt securities received by holders other than Restricted
Holders in the Exchange Offer for Registrable Securities are not or
would not be, upon receipt, transferable by each such holder without
restriction under the Securities Act, (ii) the Exchange Offer has not
been completed within 255 days following the Closing Date or (iii) the
Exchange Offer is not available to any holder of the Securities, the
Company shall, in lieu of (or, in the case of clause (iii), in addition
to) conducting the Exchange Offer contemplated by Section 2(a), file
under the Securities Act as soon as practicable, but no later than 60
days after the time such obligation to file arises, a "shelf
registration" statement providing for the registration of, and the sale
on a continuous or delayed basis by the holders of, all of the
Registrable Securities, pursuant to Rule 415 or any similar rule that
may be adopted by the Commission (such filing, the "Shelf
Registration", and such registration statement, the "Shelf Registration
Statement"). The Company agrees to use commercially reasonable efforts
(x) to cause the Shelf Registration Statement to become or be declared
effective no later than 150 days after such Shelf Registration
Statement is filed and to keep such Shelf Registration Statement
effective (except during a Deferral Period) for a period ending on the
earlier of the second anniversary of the Effective Time or such time as
there are no longer any Registrable Securities outstanding, provided,
however, that no holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement or to use the
prospectus forming a part thereof for resales of Registrable Securities
unless such holder is an Electing Holder, and (y) except during a
Deferral Period, after the Effective Time of the Shelf Registration
Statement, promptly upon the request of any holder of Registrable
Securities that is not then an Electing Holder, to take any action
reasonably necessary to enable such holder to use the prospectus
forming a part thereof for resales of Registrable Securities,
including, without limitation, any action necessary to identify such
holder as a selling securityholder in the Shelf Registration Statement,
provided, however, that nothing in this clause (y) shall relieve any
such holder of the obligation to return a completed and signed Notice
and Questionnaire to the Company in accordance with Section 3(c)(iii)
hereof. The Company further agrees to supplement or make amendments to
the Shelf Registration Statement, as and when required by the rules,
regulations or instructions applicable to the registration form used by
the Company for such Shelf Registration Statement or by the Securities
Act or rules and regulations thereunder for shelf registration, and the
Company agrees to furnish to each Electing Holder copies of any such
supplement or amendment prior to its being used or promptly following
its filing with the Commission. The Company may suspend the
availability of the Shelf Registration Statement during a Deferral
Period and each holder of Registrable Securities
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agrees not to sell any Registrable Securities pursuant to the Shelf
Registration Statement during a Deferral Period.
(c) In the event that (i) the Company has not filed the
Exchange Registration Statement or Shelf Registration Statement on or
before the date on which such registration statement is required to be
filed pursuant to Section 2(a) or 2(b), respectively, (ii) such
Exchange Registration Statement or Shelf Registration Statement has not
become effective or been declared effective by the Commission on or
before the date on which such registration statement is required to be
declared effective pursuant to Section 2(a) or 2(b), respectively,
(iii) the Exchange Offer has not been completed within 45 days after
the initial effective date of the Exchange Registration Statement
relating to the Exchange Offer (if the Exchange Offer is then required
to be made) (it being understood that the Company shall only be
required to hold the Exchange Offer open for at least 20 business days)
or (iv) any registration statement required by Section 2(a) or 2(b)
hereof is filed and declared effective but shall thereafter either be
withdrawn by the Company or shall become subject to an effective stop
order issued pursuant to Section 8(d) of the Securities Act suspending
the effectiveness of such registration statement (except as
specifically permitted herein) without being succeeded as soon as
reasonably practicable by an additional registration statement filed
and declared effective (each such event referred to in clauses (i)
through (iv), a "Registration Default"; provided that no more than one
Registration Default shall be deemed to be in effect at any one time),
then, as liquidated damages for such Registration Default, subject to
the provisions of Section 9(b), the per annum interest rate on the
Securities shall be increased by adding 0.25% thereto (e.g., such
interest rate, if initially 9.250%, would be increased to 9.500%) for
the period from the first day on which the Registration Default occurs
to the first day on which no Registration Default is in effect (at
which time the interest rate on the Securities will be restored to its
initial rate) ("Special Interest"). For each 90-day period that the
Registration Default continues, the per annum rate of such Special
Interest will increase by an additional 0.25%, provided that such rate
shall in no event exceed 1.0% per annum in the aggregate.
Notwithstanding the foregoing, a Registration Default shall be deemed
suspended and Special Interest shall not accrue during one or more
periods in which the existence of any development, event, fact,
situation or circumstance relating to the Company makes it, in the sole
discretion of the Company, appropriate to suspend the availability of
the Shelf Registration Statement and the prospectus included therein
(any such period, a "Deferral Period"); provided, however, that no
Deferral Period or Deferral Periods shall exceed an aggregate of 30
days in any three-month period or an aggregate of 90 days in any
twelve-month period.
(d) The Company shall take all actions necessary or
advisable to be taken by it to ensure that the transactions
contemplated herein are effected as so contemplated.
(e) Any reference herein to a registration statement as
of any time shall be deemed to include any document incorporated, or
deemed incorporated, therein by reference as of such time and any
reference herein to any post-effective amendment to a registration
statement shall be deemed to include any document incorporated, or
deemed incorporated, therein by reference as of such time.
3. Registration Procedures.
If the Company files a registration statement pursuant to Section 2(a)
or Section 2(b), the following provisions shall apply:
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(a) At or before the Effective Time of the Exchange Offer
or the Shelf Registration, as the case may be, the Company shall
qualify the Indenture under the Trust Indenture Act of 1939.
(b) In the event that such qualification would require
the appointment of a new trustee under the Indenture, the Company shall
appoint a new trustee thereunder pursuant to the applicable provisions
of the Indenture.
(c) In connection with the Company's obligations with
respect to the Shelf Registration, if applicable, the Company shall use
commercially reasonably efforts to cause the Shelf Registration to
permit the disposition of the Registrable Securities by the holders
thereof in accordance with the intended method or methods of
disposition thereof provided for in the Shelf Registration Statement.
In connection therewith, the Company shall, as soon as reasonably
possible (or as otherwise specified):
(i) prepare and file with the Commission, as
soon as practicable but in any case within the time period
specified in Section 2(b), a Shelf Registration Statement on
any form which may be utilized by the Company and which shall
register all of the Registrable Securities for resale by the
holders thereof in accordance with the intended method or
methods thereof, as specified in writing by a majority in
interest of the holders of the Registrable Securities, and use
commercially reasonably efforts to cause such Shelf
Registration Statement to become effective as soon as
practicable but in any case within the time period specified
in Section 2(b);
(ii) not less than 30 calendar days prior to the
Effective Time of the Shelf Registration Statement, mail the
Notice and Questionnaire to the holders of Registrable
Securities; no holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement as
of the Effective Time, and no holder shall be entitled to use
the prospectus forming a part thereof for resales of
Registrable Securities at any time, unless such holder has
returned a completed and signed Notice and Questionnaire to
the Company by the deadline for response set forth therein;
provided, however, holders of Registrable Securities shall
have at least 25 calendar days from the date on which the
Notice and Questionnaire is first mailed to such holders
before which a completed and signed Notice and Questionnaire
must be received by the Company;
(iii) after the Effective Time of the Shelf
Registration Statement, upon the request of any holder of
Registrable Securities that is not then an Electing Holder,
promptly send a Notice and Questionnaire to such holder;
provided, that the Company shall not be required to take any
action to name such holder as a selling securityholder in the
Shelf Registration Statement or to enable such holder to use
the prospectus forming a part thereof for resales of
Registrable Securities until such holder has returned to the
Company and the Company has received a completed and signed
Notice and Questionnaire;
(iv) as soon as practicable prepare and file with
the Commission such amendments and supplements to such Shelf
Registration Statement and the prospectus included therein as
may be necessary to effect and maintain the effectiveness of
such Shelf Registration Statement for the period specified in
Section 2(b) hereof and as may be required by the applicable
rules and
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regulations of the Commission and the instructions applicable
to the form of such Shelf Registration Statement, and furnish
to the holders of the Registrable Securities copies of any
such supplement or amendment simultaneously with or prior to
its being used or filed with the Commission;
(v) comply, as to all matters within the
Company's control, with the provisions of the Securities Act
with respect to the disposition of all of the Registrable
Securities covered by such Shelf Registration Statement in
accordance with the intended methods of disposition by the
Electing Holders provided for in such Shelf Registration
Statement;
(vi) provide (A) the Electing Holders, (B) the
underwriters (which term, for purposes of this Exchange and
Registration Rights Agreement, shall include a person deemed
to be an underwriter within the meaning of Section 2(11) of
the Securities Act), if any, thereof, (C) the sales or
placement agent, if any, therefor, (D) counsel for any such
underwriter or agent and (E) not more than one counsel for all
the Electing Holders the opportunity to participate in the
preparation of such Shelf Registration Statement, each
prospectus included therein or filed with the Commission and
each amendment or supplement thereto;
(vii) for a reasonable period prior to the filing
of such Shelf Registration Statement, and throughout the
period specified in Section 2(b), make available at reasonable
times at the Company's principal place of business or such
other reasonable place for inspection by the persons referred
to in Section 3(c)(vi) who shall certify to the Company that
they have a current intention to sell the Registrable
Securities pursuant to the Shelf Registration Statement such
financial and other information and books and records of the
Company, and cause the officers, employees, counsel and
independent certified public accountants of the Company to
respond to such inquiries, as shall be reasonably necessary,
in the judgment of the respective counsel referred to in such
Section, to conduct a reasonable investigation within the
meaning of Section 11 of the Securities Act; provided,
however, that each such party shall be required to maintain in
confidence and not to disclose to any other person any
non-public information or records, until such time as (A) such
information becomes a matter of public record (whether by
virtue of its inclusion in the Shelf Registration Statement or
otherwise), (B) such person shall be required so to disclose
such information pursuant to a subpoena or order of any court
or other governmental agency or body having jurisdiction over
the matter (subject to the requirements of such order, and
only after such person shall have given the Company prompt
prior written notice of such requirement) or (C) such
information is required to be set forth in such Shelf
Registration Statement or the prospectus included therein or
in an amendment to such Shelf Registration Statement or an
amendment or supplement to such prospectus in order that such
Shelf Registration Statement, prospectus, amendment or
supplement, as the case may be, complies with all applicable
requirements of the federal securities laws and rules and
regulations of the Commission and does not contain an untrue
statement of a material fact or omit to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances then existing;
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(viii) promptly notify each of the Electing
Holders, any sales or placement agent therefor and any
underwriter thereof (which notification may be made through
any managing underwriter that is a representative of such
underwriter for such purpose) and confirm such advice in
writing, (A) when such Shelf Registration Statement or the
prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and,
with respect to such Shelf Registration Statement or any
post-effective amendment, when the same has become effective,
(B) of any comments by the Commission or by the Blue Sky or
securities commissioner or regulator of any state with respect
thereto or any request by the Commission for amendments or
supplements to such Shelf Registration Statement or prospectus
or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of
such Shelf Registration Statement or the initiation or
threatening of any proceedings for that purpose, (D) if at any
time the representations and warranties of the Company
contemplated by Section 3(c)(xvii) or Section 5 cease to be
true and correct in all material respects, (E) of the receipt
by the Company of any notification with respect to the
suspension of the qualification of the Registrable Securities
for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose, or (F) if at any time when
a prospectus is required to be delivered under the Securities
Act, that such Shelf Registration Statement, prospectus,
prospectus amendment or supplement or post-effective amendment
to such Shelf Registration Statement does not conform in all
material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder or contains an untrue
statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading in light of the
circumstances then existing;
(ix) use commercially reasonably efforts to
obtain the withdrawal of any order suspending the
effectiveness of such Shelf Registration Statement or any
post-effective amendment thereto at the earliest practicable
date;
(x) if requested by any managing underwriter or
underwriters, any placement or sales agent or any Electing
Holder, promptly incorporate in a prospectus supplement or
post-effective amendment to the Shelf Registration Statement
such information as is required by the applicable rules and
regulations of the Commission and as such managing underwriter
or underwriters, such agent or such Electing Holder specifies
should be included therein relating to the terms of the sale
of such Registrable Securities, including information with
respect to the principal amount of Registrable Securities
being sold by such Electing Holder or agent or to any
underwriters, the name and description of such Electing
Holder, agent or underwriter, the offering price of such
Registrable Securities and any discount, commission or other
compensation payable in respect thereof, the purchase price
being paid therefor by such underwriters and with respect to
any other terms of the offering of the Registrable Securities
to be sold by such Electing holder or agent or to such
underwriters; and make all required filings of such prospectus
supplement or post-effective amendment promptly after
notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment;
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(xi) furnish to each Electing Holder, each
placement or sales agent, if any, therefor, each underwriter,
if any, thereof and the respective counsel referred to in
Section 3(c)(vi) an executed copy (or, in the case of an
Electing Holder, a conformed copy) of such Shelf Registration
Statement, each such amendment and supplement thereto (in each
case including all exhibits thereto (in the case of an
Electing Holder, upon request) and documents incorporated by
reference therein) and such number of copies of such Shelf
Registration Statement (excluding exhibits thereto and
documents incorporated by reference therein unless
specifically so requested by such Electing Holder, agent,
underwriter or counsel, as the case may be) and of the
prospectus included in such Shelf Registration Statement
(including each preliminary prospectus and any summary
prospectus), in conformity in all material respects with the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder, and such other documents, as such Electing Holder,
agent, if any, and underwriter, if any, may reasonably request
in order to facilitate the offering and disposition of the
Registrable Securities owned by such Electing Holder, offered
or sold by such agent or underwritten by such underwriter and
to permit such Electing Holder, agent and underwriter to
satisfy the prospectus delivery requirements of the Securities
Act; and the Company hereby consents to the use of such
prospectus (including such preliminary prospectus and summary
prospectus) and any amendment or supplement thereto by each
such Electing Holder and by any such agent and underwriter, in
each case in the form most recently provided to such person by
the Company, in connection with the offering and sale of the
Registrable Securities covered by the prospectus (including
such preliminary prospectus and summary prospectus) or any
supplement or amendment thereto;
(xii) use commercially reasonably efforts to (A)
register or qualify the Registrable Securities to be included
in such registration statement under such securities laws or
Blue Sky laws of such United States jurisdictions as any
Electing Holder and each placement or sales agent, if any,
therefor and underwriter, if any, thereof shall reasonably
request, (B) keep such registrations or qualifications in
effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such
jurisdictions during the period the Shelf Registration
Statement is required to remain effective under Section 2(b)
above and for so long as may be necessary to enable any such
Electing Holder, agent or underwriter to complete its
distribution of Securities pursuant to such Shelf Registration
Statement and (C) take any and all other actions as may be
reasonably necessary or advisable to enable each such Electing
Holder, agent, if any, and underwriter, if any, to consummate
the disposition in such jurisdictions of such Registrable
Securities; provided, however, that the Company shall not be
required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise
be required to qualify but for the requirements of this
Section 3(c)(xii), (2) consent to general service of process
in any such jurisdiction or (3) make any changes to its
articles of incorporation or by-laws or any agreement between
it and its shareholders;
(xiii) use commercially reasonably efforts to
obtain the consent or approval of each governmental agency or
authority, whether federal, state or local, which may be
required to effect the Shelf Registration or the offering or
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sale in connection therewith or to enable the selling holder
or holders to offer, or to consummate the disposition of,
their Registrable Securities;
(xiv) Unless any Registrable Securities shall be
in book-entry only form, cooperate with the Electing Holders
and the managing underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates, if so
required by any securities exchange upon which any Registrable
Securities are listed, shall be penned, lithographed or
engraved, or produced by any combination of such methods, on
steel engraved borders, and which shall not bear any
restrictive legends; and, in the case of an underwritten
offering, enable such Registrable Securities to be in such
denominations and registered in such names as the managing
underwriters may request at least two business days prior to
any sale of the Registrable Securities;
(xv) provide a CUSIP number for all Registrable
Securities, no later than the applicable Effective Time;
(xvi) enter into one or more underwriting
agreements, engagement letters, agency agreements, "best
efforts" underwriting agreements or similar agreements, as
appropriate, including customary provisions relating to
indemnification and contribution, and take such other actions
in connection therewith as holders of a majority in aggregate
principal amount of the Registrable Securities at the time
outstanding shall reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities;
provided, that the Company shall not be required to enter into
any such agreement more than once with respect to all of the
Registrable Securities and may delay entering into such
agreement until the consummation of any underwritten public
offering which the Company shall have then undertaken and for
such time thereafter as the underwriters of such public
offering may reasonably request;
(xvii) whether or not an agreement of the type
referred to in Section (3)(c)(xvi) hereof is entered into and
whether or not any portion of the offering contemplated by the
Shelf Registration Statement is an underwritten offering or is
made through a placement or sales agent or any other entity,
(A) make such representations and warranties to the Electing
Holders and the placement or sales agent, if any, therefor and
the underwriters, if any, thereof in form, substance and scope
as are customarily made by the Company in connection with an
offering of debt securities pursuant to any appropriate
agreement or to a registration statement filed on the form
applicable to the Shelf Registration; (B) obtain an opinion of
counsel to the Company in customary form and covering such
matters, of the type customarily covered by such an opinion in
connection with an offering of debt securities by the Company,
as the managing underwriters or placement or sales agent, if
any, or as any Electing Holders of at least 25% in aggregate
principal amount of the Registrable Securities at the time
outstanding may reasonably request, addressed to such Electing
Holder or Electing Holders and the placement or sales agent,
if any, therefor and the underwriters, if any, thereof and
dated the effective date of such Shelf Registration Statement
(and if such Shelf Registration Statement contemplates an
underwritten offering of a part or all of the Registrable
Securities, dated the date of the closing under the
underwriting agreement relating thereto) (it being agreed that
the matters to be
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covered by such opinion shall include the due incorporation
and valid existence of the Company and its significant
subsidiaries; the qualification of the Company and its
significant subsidiaries to transact business as foreign
corporations, other than such jurisdictions in which the
failure to be so qualified would not result in a material
adverse effect; the due authorization, execution and delivery
of the relevant agreement of the type referred to in Section
(3)(c)(xvi) hereof, the due authorization, execution,
authentication and issuance, and the validity and
enforceability, of the Securities; the absence of material
legal or governmental proceedings involving the Company or any
of its significant subsidiaries; the absence of a breach by
the Company or any of its significant subsidiaries of, or a
default under, material agreements binding upon the Company or
any significant subsidiary of the Company, except for defaults
disclosed in the Shelf Registration Statement or that
individually or in the aggregate would not have a material
adverse effect; the absence of governmental approvals required
to be obtained in connection with the Shelf Registration, the
offering and sale of the Registrable Securities, this Exchange
and Registration Rights Agreement or any agreement of the type
referred to in Section (3)(c)(xvi) hereof, except such
approvals as may be required under state securities or Blue
Sky laws; the material compliance as to form of such Shelf
Registration Statement and any documents incorporated by
reference therein and of the Indenture with the requirements
of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder,
respectively; and a statement by such counsel to the effect
that nothing has come to their attention that would cause them
to believe that as of the date of the opinion and of the Shelf
Registration Statement or most recent post-effective amendment
thereto, as the case may be, such Shelf Registration Statement
and the prospectus included therein, as then amended or
supplemented, and the documents incorporated by reference
therein (in each case other than the financial statements and
other financial information contained therein) contain an
untrue statement of a material fact or omit to state therein a
material fact necessary to make the statements therein not
misleading (in the case of such documents, in the light of the
circumstances existing at the time that such documents were
filed with the Commission under the Exchange Act)); (C) obtain
a "cold comfort" letter or letters from the independent
certified public accountants of the Company addressed to the
Electing Holders, the placement or sales agent, if any,
therefor or the underwriters, if any, thereof, dated (i) the
effective date of such registration statement and (ii) the
effective date of any prospectus supplement to the prospectus
included in such Shelf Registration Statement or
post-effective amendment to such Shelf Registration Statement
which includes unaudited or audited financial statements as of
a date or for a period subsequent to that of the latest such
statements included in such prospectus (and, if such Shelf
Registration Statement contemplates an underwritten offering
pursuant to any prospectus supplement to the prospectus
included in such Shelf Registration Statement or
post-effective amendment to such Shelf Registration Statement
which includes unaudited or audited financial statements as of
a date or for a period subsequent to that of the latest such
statements included in such prospectus, dated the date of the
closing under the underwriting agreement relating thereto),
such letter or letters to be in customary form and covering
such matters of the type customarily covered by letters of
such type; (D) deliver certificates of officers of the Company
as to the accuracy of the representations and warranties of
the Company made pursuant to clause (A) above or those
contained in Section 5(a) hereof and the compliance with or
-12-
satisfaction of any agreements or conditions contained in the
underwriting agreement or other agreements entered into by the
Company and such other matters as may be reasonably requested
by any holders of at least 25% in aggregate principal amount
of the Registrable Securities at the time outstanding or the
placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof; and (E) undertake such
obligations relating to expense reimbursement, indemnification
and contribution as are provided in Section 6 hereof;
(xviii) notify in writing the Trustee of any
proposal by the Company to amend or waive any provision of
this Exchange and Registration Rights Agreement pursuant to
Section 9(h) hereof and of any amendment or waiver effected
pursuant thereto, each of which notices shall contain the text
of the amendment or waiver proposed or effected, as the case
may be;
(xix) in the event that any broker-dealer
registered under the Exchange Act shall underwrite any
Registrable Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Conduct Rules (the
"Conduct Rules") of the National Association of Securities
Dealers, Inc. ("NASD") or any successor thereto, as amended
from time to time) thereof, whether as a holder of such
Registrable Securities or as an underwriter, a placement or
sales agent or a broker or dealer in respect thereof, or
otherwise, assist such broker-dealer in complying with the
requirements of such Conduct Rules, including by (A) if such
Conduct Rules shall so require, engaging a "qualified
independent underwriter" (as defined in such Conduct Rules) to
participate in the preparation of the Shelf Registration
Statement relating to such Registrable Securities, to exercise
usual standards of due diligence in respect thereto and, if
any portion of the offering contemplated by such Shelf
Registration Statement is an underwritten offering or is made
through a placement or sales agent, to recommend the yield of
such Registrable Securities, (B) indemnifying any such
qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 6 hereof
(or to such other customary extent as may be requested by such
underwriter) and (C) providing such information to such
broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Conduct
Rules; and
(xx) comply with all applicable rules and
regulations of the Commission, and make generally available to
its security holders as soon as practicable but in any event
not later than eighteen months after the effective date of
such Shelf Registration Statement, an earning statement of the
Company and its subsidiaries complying with Section 11(a) of
the Securities Act (including, at the option of the Company,
Rule 158 thereunder).
(d) In the event that the Company would be required,
pursuant to Section 3(c)(viii)(F) above, to notify the Electing
Holders, the placement or sales agent, if any, therefor and the
managing underwriters, if any, thereof, the Company shall without delay
prepare and furnish to each of the Electing Holders, to each placement
or sales agent, if any, and to each such underwriter, if any, a
reasonable number of copies of a prospectus supplemented or amended so
that, as thereafter delivered to purchasers of Registrable Securities,
such prospectus shall conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture
Act and the rules and
-13-
regulations of the Commission thereunder and shall not 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 in light of the circumstances then existing.
Each Electing Holder agrees that upon receipt of any notice from the
Company pursuant to Section 3(c)(viii)(F) hereof, such Electing Holder
shall forthwith discontinue the disposition of Registrable Securities
pursuant to the Shelf Registration Statement applicable to such
Registrable Securities until such Electing Holder shall have received
copies of such amended or supplemented prospectus, and if so directed
by the Company, such Electing Holder shall deliver to the Company (at
the Company's expense) all copies, other than permanent file copies,
then in such Electing Holder's possession of the prospectus covering
such Registrable Securities at the time of receipt of such notice.
(e) Until the earlier of the expiration of two years
after the Closing Date or until all outstanding Securities cease to be
Registrable Securities, the Company will not, and will not permit any
of its "affiliates" (as defined in Rule 144) to, resell any of the
Registrable Securities that have been reacquired by any of them except
pursuant to an effective registration statement under the Act.
(f) In connection with the Company's obligations with
respect to the registration of Exchange Securities as contemplated by
Section 2(a) (the "Exchange Registration"), if applicable, the Company
shall, as soon as reasonably possible (or as otherwise specified):
(i) prepare and file with the Commission, as
soon as practicable but no later than 60 days after the
Closing Date, an Exchange Registration Statement on any form
which may be utilized by the Company and which shall permit
the Exchange Offer and resales of Exchange Securities by
broker-dealers during the Resale Period to be effected as
contemplated by Section 2(a), and use commercially reasonably
efforts to cause such Exchange Registration Statement to
become effective as soon as practicable thereafter, but no
later than 150 days after the Closing Date;
(ii) as soon as practicable prepare and file with
the Commission such amendments and supplements to such
Exchange Registration Statement and the prospectus included
therein as may be necessary to effect and maintain the
effectiveness of such Exchange Registration Statement for the
periods and purposes contemplated in Section 2(a) hereof and
as may be required by the applicable rules and regulations of
the Commission and the instructions applicable to the form of
such Exchange Registration Statement, and promptly provide
each broker-dealer holding Exchange Securities with such
number of copies of the prospectus included therein (as then
amended or supplemented), in conformity in all material
respects with the requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the
Commission thereunder, as such broker-dealer reasonably may
request prior to the expiration of the Resale Period, for use
in connection with resales of Exchange Securities;
(iii) promptly notify each broker-dealer that has
requested or received copies of the prospectus included in
such Exchange Registration Statement, and confirm such advice
in writing, (A) when such Exchange Registration Statement or
the prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and,
with respect to such Exchange
-14-
Registration Statement or any post-effective amendment, when
the same has become effective, (B) of any comments by the
Commission or by the Blue Sky or securities commissioner or
regulator of any state with respect thereto or any request by
the Commission for amendments or supplements to such Exchange
Registration Statement or prospectus or for additional
information, (C) of the issuance by the Commission of any stop
order suspending the effectiveness of such Exchange
Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the
representations and warranties of the Company contemplated by
Section 5 cease to be true and correct in all material
respects, (E) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Exchange Securities for sale in any
United States jurisdiction or the initiation or threatening of
any proceeding for such purpose or (F) if at any time during
the Resale Period when a prospectus is required to be
delivered under the Securities Act, that such Exchange
Registration Statement, prospectus, prospectus amendment or
supplement or post-effective amendment to such Exchange
Registration Statement does not conform in all material
respects to the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of
the Commission thereunder or contains an untrue statement of a
material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(iv) in the event that the Company would be
required, pursuant to Section 3(f)(iii)(F) above, to notify
any broker-dealers holding Exchange Securities, without delay
prepare and furnish to each such holder a reasonable number of
copies of a prospectus supplemented or amended so that, as
thereafter delivered to purchasers of such Exchange Securities
during the Resale Period, such prospectus shall conform in all
material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and shall not 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 in light of the
circumstances then existing;
(v) use commercially reasonably efforts to
obtain the withdrawal of any order suspending the
effectiveness of such Exchange Registration Statement or any
post-effective amendment thereto at the earliest practicable
date;
(vi) use commercially reasonably efforts to (A)
register or qualify the Exchange Securities under the
securities laws or Blue Sky laws of such jurisdictions as are
contemplated by Section 2(a) no later than the commencement of
the Exchange Offer, (B) keep such registrations or
qualifications in effect and comply with such laws so as to
permit the continuance of offers, sales and dealings therein
in such jurisdictions until the expiration of the Resale
Period and (C) take any and all other actions as may be
reasonably necessary or advisable to enable each broker-dealer
holding Exchange Securities to consummate the disposition
thereof in such jurisdictions; provided, however, that the
Company shall not be required for any such purpose to (1)
qualify as a foreign corporation in any jurisdiction wherein
it would not otherwise be required to qualify but for the
requirements of this Section 3(f)(vi),
-15-
(2) consent to general service of process in any such
jurisdiction or (3) make any changes to its articles of
incorporation or by-laws or any agreement between it and its
shareholders;
(vii) use commercially reasonably efforts to
obtain the consent or approval of each United States
governmental agency or authority, whether federal, state or
local, which may be required to effect the Exchange
Registration, the Exchange Offer and the offering and sale of
Exchange Securities by broker-dealers during the Resale
Period;
(viii) provide a CUSIP number for all Exchange
Securities, no later than the applicable Effective Time;
(ix) comply with all applicable rules and
regulations of the Commission, and make generally available to
its security holders as soon as practicable but no later than
eighteen months after the effective date of such Exchange
Registration Statement, an earning statement of the Company
and its subsidiaries complying with Section 11(a) of the
Securities Act (including, at the option of the Company, Rule
158 thereunder).
4. Registration Expenses.
Except as otherwise provided herein or by separate agreement, the
Company agrees to bear and to pay or cause to be paid promptly upon request
being made therefor all expenses incident to the Company's performance of or
compliance with this Exchange and Registration Rights Agreement, including (a)
all Commission and any NASD registration, filing and review fees and expenses
including reasonable fees and disbursements of counsel for the placement or
sales agent or underwriters in connection with such registration, filing and
review, (b) all fees and expenses in connection with the qualification of the
Securities for offering and sale under the State securities and Blue Sky laws
referred to in Sections 3(c)(xii) and 3(f)(vi) hereof, including reasonable fees
and disbursements of counsel for the placement or sales agent or underwriters in
connection with such qualifications, (c) all expenses relating to the
preparation, printing, distribution and reproduction of each registration
statement required to be filed hereunder, each prospectus included therein or
prepared for distribution pursuant hereto, each amendment or supplement to the
foregoing, the certificates representing the Securities and all other documents
relating hereto, (d) messenger and delivery expenses, (e) fees and expenses of
the Trustee under the Indenture and of any escrow agent or custodian, (f)
internal expenses (including all salaries and expenses of the Company's officers
and employees performing legal or accounting duties), (g) fees, disbursements
and expenses of counsel and independent certified public accountants of the
Company (including the expenses of any opinions or "cold comfort" letters
required by or incident to such performance and compliance), (h) fees,
disbursements and expenses of any "qualified independent underwriter" engaged
pursuant to Section 3(c)(xix) hereof, (i) reasonable fees, disbursements and
expenses of one counsel for the Electing Holders retained in connection with a
Shelf Registration as selected by Electing Holders of at least a majority in
aggregate principal amount of the Registrable Securities held by such Electing
Holders, (j) any fees charged by securities rating services for rating the
Securities and (k) fees, expenses and disbursements of any other persons,
including special experts, retained by the Company in connection with such
registration (collectively, the "Registration Expenses"). To the extent that any
Registration Expenses are incurred, assumed or paid by any holder of Registrable
Securities or any placement or sales agent therefor or underwriter thereof, the
Company shall reimburse such person for the full amount of the Registration
Expenses so incurred, assumed or paid promptly after receipt of a
-16-
request therefor. Notwithstanding the foregoing, the holders of the Registrable
Securities being registered shall pay all agency fees and commissions and
underwriting discounts and commissions attributable to the sale of such
Registrable Securities and the fees and disbursements of any counsel or other
advisors or experts retained by such holders (severally or jointly), other than
the counsel and experts specifically referred to above.
5. Representations and Warranties.
The Company represents and warrants to, and agrees with, each of the
Purchasers and each of the holders from time to time of Registrable Securities
that:
-17-
(a) Each registration statement covering Registrable
Securities and each prospectus (including any preliminary prospectus or
summary prospectus) contained therein or furnished pursuant to Section
3(c) or Section 3(f) hereof and any further amendments or supplements
to any such registration statement or prospectus, when it becomes
effective or is filed with the Commission, as the case may be, and, in
the case of an underwritten offering of Registrable Securities, at the
time of the closing under the underwriting agreement relating thereto,
will conform in all material respects to the applicable requirements of
the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and will not 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 in light of the circumstances then existing; and at all
times subsequent to the Effective Time when a prospectus would be
required to be delivered under the Securities Act, other than from (i)
such time as a notice has been given to holders of Registrable
Securities pursuant to Section 3(c)(viii)(F) or Section 3(f)(iii)(F)
hereof until (ii) such time as the Company furnishes an amended or
supplemented prospectus pursuant to Section 3(d) or Section 3(f)(iv)
hereof, each such registration statement, and each prospectus
(including any preliminary prospectus or summary prospectus) contained
therein or furnished pursuant to Section 3(c) or Section 3(f) hereof,
as then amended or supplemented, will conform in all material respects
to the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder and will not 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 in light of the
circumstances then existing; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by a holder of Registrable
Securities or any placement or sales agent, if any, therefor or
underwriter, if any, thereof expressly for use therein.
(b) Any documents incorporated by reference in any
prospectus referred to in Section 5(a) hereof, when they become or
became effective or are or were filed with the Commission, as the case
may be, will conform or conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable,
and none of such documents will contain or contained an untrue
statement of a material fact or will omit or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by a holder of Registrable Securities or any placement or sales agent,
if any, therefor or underwriter, if any, thereof expressly for use
therein.
(c) The compliance by the Company with all of the
provisions of this Exchange and Registration Rights Agreement and the
consummation of the transactions herein contemplated will not conflict
with or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument to which the
Company or any subsidiary of the Company is a party or by which the
Company or any subsidiary of the Company is bound or to which any of
the property or assets of the Company or any subsidiary of the Company
is subject, nor will such action result in any violation of the
provisions of the articles of incorporation, as amended, or the by-laws
of the Company or any statute or any order, rule or regulation of any
United States court or governmental agency or body having jurisdiction
over the Company or any subsidiary of the Company
-18-
or any of their properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the consummation by the
Company of the transactions contemplated by this Exchange and
Registration Rights Agreement, except the registration under the
Securities Act of the Securities, qualification of the Indenture under
the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the offering and
distribution of the Securities.
(d) This Exchange and Registration Rights Agreement has
been duly authorized, executed and delivered by the Company.
6. Indemnification.
(a) Indemnification by the Company. The Company will
indemnify and hold harmless each of the holders of Registrable
Securities included in an Exchange Registration Statement, each of the
Electing Holders of Registrable Securities included in a Shelf
Registration Statement and each person who participates as a placement
or sales agent or as an underwriter in any offering or sale of such
Registrable Securities against any losses, claims, damages or
liabilities, joint or several, to which such holder, Electing Holder,
agent or underwriter may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in
any Exchange Registration Statement or Shelf Registration Statement, as
the case may be, under which such Registrable Securities were
registered under the Securities Act, or any preliminary, final or
summary prospectus contained therein or furnished by the Company to any
such holder, Electing Holder, agent or underwriter, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
will reimburse such holder, such Electing Holder, such agent and such
underwriter for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such action or claim
as such expenses are incurred; provided, however, that the Company
shall not be liable to any such person in any such case to the extent
that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in such registration statement, or
preliminary, final or summary prospectus, or amendment or supplement
thereto, in reliance upon and in conformity with written information
furnished to the Company by such person expressly for use therein.
(b) Indemnification by the Holders and any Agents and
Underwriters. The Company may require, as a condition to including any
Registrable Securities in any registration statement filed pursuant to
Section 2(b) hereof and to entering into any underwriting agreement
with respect thereto, that the Company shall have received an
undertaking reasonably satisfactory to it from the Electing Holder of
such Registrable Securities and from each underwriter named in any such
underwriting agreement, severally and not jointly, to (i) indemnify and
hold harmless the Company, and all other holders of Registrable
Securities, against any losses, claims, damages or liabilities to which
the Company or such other holders of Registrable Securities may become
subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement
-19-
or alleged untrue statement of a material fact contained in such
registration statement, or any preliminary, final or summary prospectus
contained therein or furnished by the Company to any such Electing
Holder, agent or underwriter, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to
the Company by such Electing Holder or underwriter expressly for use
therein, and (ii) reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred;
provided, however, that no such Electing Holder shall be required to
undertake liability to any person under this Section 6(b) for any
amounts in excess of the dollar amount of the proceeds to be received
by such Electing Holder from the sale of such Electing Holder's
Registrable Securities pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an
indemnified party under subsection (a) or (b) above of written notice
of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against an indemnifying party
pursuant to the indemnification provisions of or contemplated by this
Section 6, notify such indemnifying party in writing of the
commencement of such action; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may
have to any indemnified party other than under the indemnification
provisions of or contemplated by Section 6(a) or 6(b) hereof. In case
any such action shall be brought against any indemnified party and it
shall notify an indemnifying party of the commencement thereof, such
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to
such indemnified party of its election so to assume the defense
thereof, such indemnifying party shall not be liable to such
indemnified party for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party,
in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless
such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such
action 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) Contribution. If for any reason the indemnification
provisions contemplated by Section 6(a) or Section 6(b) are unavailable
to or insufficient to hold harmless an indemnified party in respect of
any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified
-20-
party in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative fault of such indemnifying party and indemnified party shall
be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The parties hereto agree
that it would not be just and equitable if contributions pursuant to
this Section 6(d) were determined by pro rata allocation (even if the
holders or any agents or underwriters or all of them were treated as
one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to in
this Section 6(d). The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, or liabilities (or actions
in respect thereof) referred to above shall be deemed to include any
legal or other fees or expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 6(d), no holder
shall be required to contribute any amount in excess of the amount by
which the dollar amount of the proceeds received by such holder from
the sale of any Registrable Securities (after deducting any fees,
discounts and commissions applicable thereto) exceeds the amount of any
damages which such holder has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged
omission, and no underwriter shall be required to contribute any amount
in excess of the amount by which the total price at which the
Registrable Securities underwritten by it and distributed to the public
exceeds the amount of any damages which such underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The holders'
and any underwriters' obligations in this Section 6(d) to contribute
shall be several in proportion to the principal amount of Registrable
Securities registered or underwritten, as the case may be, by them and
not joint.
(e) The obligations of the Company under this Section 6
shall be in addition to any liability which the Company may otherwise
have and shall extend, upon the same terms and conditions, to each
officer, director and partner of each holder, agent and underwriter and
each person, if any, who controls any holder, agent or underwriter
within the meaning of the Securities Act; and the obligations of the
holders and any agents or underwriters contemplated by this Section 6
shall be in addition to any liability which the respective holder,
agent or underwriter may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company
(including any person who, with his consent, is named in any
registration statement as about to become a director of the Company)
and to each person, if any, who controls the Company within the meaning
of the Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable
Securities covered by the Shelf Registration are to be sold pursuant to
an underwritten offering, the managing underwriter or underwriters
thereof shall be designated by the Company, provided that such
designated managing underwriter or underwriters is or are reasonably
acceptable to
-21-
a majority in aggregate principal amount of the Registrable Securities
to be included in such offering.
(b) Participation by Holders. Each holder of Registrable
Securities hereby agrees with each other such holder that no such
holder may participate in any underwritten offering hereunder unless
such holder (i) agrees to sell such holder's Registrable Securities on
the basis provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
8. Rule 144.
The Company covenants to the holders of Registrable Securities that to
the extent it shall be required to do so under the Exchange Act, the Company
shall timely file the reports required to be filed by it under the Exchange Act
or the Securities Act (including the reports under Sections 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by the
Commission under the Securities Act) and the rules and regulations adopted by
the Commission thereunder, and shall take such further action as any holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitations of the exemption
provided by Rule 144 under the Securities Act, as such Rule may be amended from
time to time, or any similar or successor rule or regulation hereafter adopted
by the Commission. Upon the request of any holder of Registrable Securities in
connection with that holder's sale pursuant to Rule 144, the Company shall
deliver to such holder a written statement as to whether it has complied with
such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents,
warrants, covenants and agrees that it has not granted, and shall not
grant, registration rights with respect to Registrable Securities or
any other securities which would be inconsistent with the terms
contained in this Exchange and Registration Rights Agreement.
(b) Specific Performance. The parties hereto acknowledge
that there would be no adequate remedy at law if any party fails to
perform any of its obligations hereunder and that each party may be
irreparably harmed by any such failure, and accordingly agree that each
party, in addition to any other remedy to which it may be entitled at
law or in equity, shall be entitled to compel specific performance of
the obligations of any other party under this Exchange and Registration
Rights Agreement in accordance with the terms and conditions of this
Exchange and Registration Rights Agreement, in any court of the United
States or any state thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands,
waivers and other communications hereunder shall be in writing and
shall be deemed to have been duly given when delivered by hand, if
delivered personally, by fax or courier, or three days after being
deposited in the mail (registered or certified mail, postage prepaid,
return receipt requested) as follows: if to the Company, to it at 0000
000xx Xxxxxx X.X., Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000, Attention:
Xxxxxxx Xxxxxxxxxxxx, and if to a holder, to the address of such holder
set forth in the security register or other records of the
-22-
Company, or to such other address as the Company or any such holder may
have furnished to the other in writing in accordance herewith, except
that notices of change of address shall be effective only upon receipt.
(d) Parties in Interest. All the terms and provisions of
this Exchange and Registration Rights Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the parties
hereto and the holders from time to time of the Registrable Securities
and the respective successors and assigns of the parties hereto and
such holders. In the event that any transferee of any holder of
Registrable Securities shall acquire Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or
otherwise, such transferee shall, without any further writing or action
of any kind, be deemed a party hereto for all purposes and such
Registrable Securities shall be held subject to all of the terms of
this Exchange and Registration Rights Agreement, and by taking and
holding such Registrable Securities such transferee shall be entitled
to receive the benefits of, and be conclusively deemed to have agreed
to be bound by and to perform, all of the applicable terms and
provisions of this Exchange and Registration Rights Agreement. If the
Company shall so request, any such successor, assign or transferee
shall agree in writing to acquire and hold the Registrable Securities
subject to all of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
Exchange and Registration Rights Agreement or made pursuant hereto
shall remain in full force and effect regardless of any investigation
(or statement as to the results thereof) made by or on behalf of any
holder of Registrable Securities, any director, officer or partner of
such holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and
shall survive delivery of and payment for the Registrable Securities
pursuant to the Purchase Agreement and the transfer and registration of
Registrable Securities by such holder and the consummation of an
Exchange Offer.
(f) LAW GOVERNING. THIS EXCHANGE AND REGISTRATION RIGHTS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW
OF THE STATE OF NEW YORK.
(g) Headings. The descriptive headings of the several
Sections and clauses of this Exchange and Registration Rights Agreement
are inserted for convenience only, do not constitute a part of this
Exchange and Registration Rights Agreement and shall not affect in any
way the meaning or interpretation of this Exchange and Registration
Rights Agreement.
(h) Entire Agreement; Amendments. This Exchange and
Registration Rights Agreement and the other writings referred to herein
(including the Indenture and the form of Securities) or delivered
pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to its subject matter. This
Exchange and Registration Rights Agreement supersedes all prior
agreements and understandings between the parties with respect to its
subject matter. This Exchange and Registration Rights Agreement may be
amended and the observance of any term of this Exchange and
Registration Rights Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only by
a written instrument duly executed by the Company and the holders of a
majority in aggregate principal amount of the Registrable Securities
-23-
at the time outstanding. Each holder of any Registrable Securities at
the time or thereafter outstanding shall be bound by any amendment or
waiver effected pursuant to this Section 9(h), whether or not any
notice, writing or marking indicating such amendment or waiver appears
on such Registrable Securities or is delivered to such holder.
(i) Inspection. For so long as this Exchange and
Registration Rights Agreement shall be in effect, this Exchange and
Registration Rights Agreement and a complete list of the names and
addresses of all the holders of Registrable Securities shall be made
available for inspection and copying on any business day by any holder
of Registrable Securities for proper purposes only (which shall include
any purpose related to the rights of the holders of Registrable
Securities under the Securities, the Indenture and this Exchange and
Registration Rights Agreement) at the offices of the Company at the
address thereof set forth in Section 9(c) above or at the office of the
Trustee under the Indenture.
(j) Counterparts. This agreement may be executed by the
parties in counterparts (including by facsimile transmission), each of
which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us 7 counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Purchasers, this letter and such acceptance hereof
shall constitute a binding agreement between each of the Purchasers and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Purchasers is pursuant to the authority set forth in a form of Agreement
among Purchasers, the form of which shall be submitted to the Company for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
Very truly yours,
Western Wireless Corporation
By /s/ Xxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
X.X. Xxxxxx Securities Inc.
Wachovia Capital Markets, LLC
By: /s/ Xxxxxxx, Sachs & Co.
---------------------------------
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Purchasers
-24-
EXHIBIT A
WESTERN WIRELESS CORPORATION
INSTRUCTION TO DTC PARTICIPANTS
(Insert Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [INSERT DATE]*
The Depository Trust Company ("DTC") has identified you as a DTC Participant
through which beneficial interests in the Western Wireless Corporation (the
"Company") 9.250% Senior Notes due 2013 (the "Securities") are held.
The Company is in the process of registering the Securities under the Securities
Act of 1933,as amended, for resale by the beneficial owners thereof. In order to
have their Securities included in the registration statement, beneficial owners
must complete and return the enclosed Notice of Registration Statement and
Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of the
enclosed materials as soon as possible as their rights to have the Securities
included in the registration statement depend upon their returning the Notice
and Questionnaire by [INSERT DEADLINE FOR RESPONSE]. Please forward a copy of
the enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact Western Wireless
Corporation, 0000 000xx Xxxxxx X.X., Xxxxxxxx, Xxxxxxxxxx 00000, Attention:
Investor Relations, (000) 000-0000.
------------------
* Not less than 25 calendar days from date of mailing.
WESTERN WIRELESS CORPORATION
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Insert Date)
Reference is hereby made to the Exchange and Registration Rights Agreement (the
"Registration Rights Agreement") between Western Wireless Corporation (the
"Company") and the Purchasers named therein. Pursuant to the Registration Rights
Agreement, the Company has filed with the United States Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (the "Shelf
Registration Statement") for the registration and resale under Rule 415 of the
Securities Act of 1933, as amended (the "Securities Act"), of the Company's
9.250% Senior Notes due 2013 (the "Securities"). A copy of the Registration
Rights Agreement is attached hereto. All capitalized terms not otherwise defined
herein shall have the meanings ascribed thereto in the Registration Rights
Agreement.
Each beneficial owner of Registrable Securities (as defined in the Registration
Rights Agreement) is entitled to have the Registrable Securities beneficially
owned by it included in the Shelf Registration Statement. In order to have
Registrable Securities included in the Shelf Registration Statement, this Notice
of Registration Statement and Selling Securityholder Questionnaire ("Notice and
Questionnaire") must be completed, executed and delivered to the Company's
counsel at the address set forth herein for receipt ON OR BEFORE [INSERT
DEADLINE FOR RESPONSE]. Beneficial owners of Registrable Securities who do not
complete, execute and return this Notice and Questionnaire by such date (i) will
not be named as selling securityholders in the Shelf Registration Statement and
(ii) may not use the prospectus forming a part thereof for resales of
Registrable Securities.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related prospectus. Accordingly, holders
and beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
related prospectus.
A-2
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable Securities
hereby elects to include in the Shelf Registration Statement the Registrable
Securities beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees to
be bound with respect to such Registrable Securities by the terms and conditions
of this Notice and Questionnaire and the Registration Rights Agreement,
including, without limitation, Section 6 of the Registration Rights Agreement,
as if the undersigned Selling Securityholder were an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and Trustee the Notice of Transfer set forth as Exhibit B to the Registration
Rights Agreement.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Registered Holder (if not the same as in (a)
above) of Registrable Securities Listed in Item (3) below:
(c) Full Legal Name of DTC Participant (if applicable and if not the
same as (b) above) Through Which Registrable Securities Listed in
Item (3) below are Held:
(2) Address for Notices to Selling Securityholder:
__________________
__________________
__________________
Telephone: __________________
Fax: __________________
Contact Person: __________________
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount of Registrable Securities beneficially owned:
___________________________ CUSIP No(s). of such Registrable
Securities:
A-3
(b) Principal amount of Securities other than Registrable Securities
beneficially owned: _______________________________________________
CUSIP No(s). of such other Securities:_____________________________
(c) Principal amount of Registrable Securities which the undersigned
wishes to be included in the Shelf Registration Statement:
CUSIP No(s). of such Registrable Securities to be included in the
Shelf Registration Statement:______________________________________
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other
securities of the Company, other than the Securities listed above in
Item (3).
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below in this Item (5), neither the Selling
Securityholder nor any of its affiliates, officers, directors or
principal equity holders (5% or more) has held any position or office
or has had any other material relationship with the Company (or its
predecessors or affiliates) during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below in this Item (6), the undersigned Selling
Securityholder intends to distribute the Registrable Securities listed
above in Item (3) only as follows (if at all): Such Registrable
Securities may be sold from time to time directly by the undersigned
Selling Securityholder or, alternatively, through underwriters,
broker-dealers or agents. Such Registrable Securities may be sold in
one or more transactions at fixed prices, at prevailing market prices
at the time of sale, at varying prices determined at the time of sale,
or at negotiated prices. Such sales may be effected in transactions
(which may involve crosses or block transactions) (i) on any national
securities exchange or quotation service on which the Registered
Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter market, or (iv)
through the writing of options. In connection with sales of the
Registrable Securities or otherwise, the Selling Securityholder may
enter into hedging transactions with
A-4
broker-dealers, which may in turn engage in short sales of the
Registrable Securities in the course of hedging the positions they
assume. The Selling Securityholder may also sell Registrable Securities
short and deliver Registrable Securities to close out such short
positions, or loan or pledge Registrable Securities to broker-dealers
that in turn may sell such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
In the event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Registration Rights
Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related prospectus.
In accordance with the Selling Securityholder's obligation under Section 3(c) of
the Exchange and Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Company of any inaccuracies
or changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Exchange and Registration
Rights Agreement shall be made in writing, by hand-delivery, first-class mail,
or air courier guaranteeing overnight delivery as follows:
Xxxxxxxx Xxxxxx Xxxxxx & Xxxxxxx LLP
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention:
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder (with respect to the Registrable Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above). This
Agreement shall be governed in all respects by the laws of the State of New
York.
A-5
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated:___________________________
Selling Securityholder
(Print/type full legal name of beneficial owner of
Registrable Securities)
By __________________________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [INSERT DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
Xxxxxxxx Xxxxxx Xxxxxx & Xxxxxxx LLP
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention:
A-6
EXHIBIT B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
The Bank of New York
Western Wireless Corporation
x/x Xxx Xxxx xx Xxx Xxxx
000 Xxxxxxx Xxxxxx, Xxxxx 0 Xxxx
Xxx Xxxx, Xxx Xxxx 10286
Attention: Corporate Trust Administration
Re: Western Wireless Corporation (the "Company")
9.250% Senior Notes due 2013 (the "Securities")
Dear Sirs:
Please be advised that __________________ has transferred $_____________________
aggregate principal amount of the above-referenced Securities pursuant to an
effective Registration Statement on Form S-3 (File No. 333-__________) filed by
the Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Securities is named as a "Selling Holder" in the
Prospectus dated [INSERT DATE] or in a supplement thereto, and that the
aggregate principal amount of the Securities transferred are the Securities
listed in such Prospectus opposite such owner's name.
Dated:_________________________
Very truly yours,
By ___________________________________
(Name)
___________________________________
(Authorized Signature)
B-1
