Exhibit 4.28
EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
Dated as of January 20, 2004
By and Among
ALAMOSA (DELAWARE), INC.
as Issuer,
THE GUARANTORS LISTED ON THE SIGNATURE PAGES HERETO
and
UBS SECURITIES LLC,
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
and
▇▇▇▇▇▇ BROTHERS INC.
as Initial Purchasers
8 1/2% Senior Notes due 2012
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated as of
January 20, 2004, by and among Alamosa (Delaware), Inc., a Delaware corporation
(the "Issuer"), and the guarantors listed on the signature pages attached hereto
(each a "Guarantor," and collectively, the "Guarantors"), on the one hand, and
UBS Securities LLC, Bear, ▇▇▇▇▇▇▇ & Co. Inc. and ▇▇▇▇▇▇ Brothers Inc. (each an
"Initial Purchaser," and collectively, the "Initial Purchasers"), on the other
hand.
This Agreement is entered into in connection with the Purchase
Agreement, dated as of January 13, 2004, by and among the Issuer, the Guarantors
and the Initial Purchasers (the "Purchase Agreement"), relating to the offering
of $250.0 million aggregate principal amount of the Issuer's 8 1/2% Senior Notes
due 2012 (the "Notes"). The execution and delivery of this Agreement is a
condition to the Initial Purchasers' obligation to purchase the Notes under the
Purchase Agreement.
The parties hereby agree as follows:
Section 1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
"ACTION" shall have the meaning set forth in Section 7(c) hereof.
"ADVICE" shall have the meaning set forth in Section 5 hereof.
"AGREEMENT" shall have the meaning set forth in the first introductory
paragraph hereto.
"APPLICABLE PERIOD" shall have the meaning set forth in Section 2(b)
hereof.
"BOARD OF DIRECTORS" shall have the meaning set forth in Section 5
hereof.
"BUSINESS DAY" shall mean a day that is not a Legal Holiday.
"COMMISSION" shall mean the Securities and Exchange Commission.
"DAY" shall mean a calendar day.
"DAMAGES PAYMENT DATE" shall have the meaning set forth in Section
4(b) hereof.
"DELAY PERIOD" shall have the meaning set forth in Section 5 hereof.
"EFFECTIVENESS PERIOD" shall have the meaning set forth in Section
3(b) hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"EXCHANGE NOTES" shall have the meaning set forth in Section 2(a)
hereof.
"EXCHANGE OFFER" shall have the meaning set forth in Section 2(a)
hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall have the meaning set
forth in Section 2(a) hereof.
"HOLDER" shall mean any holder of any Registrable Notes.
"INDENTURE" shall mean the Indenture, dated as of January 20, 2004, by
and among the Issuer, the Guarantors and ▇▇▇▇▇ Fargo Bank of Minnesota, N.A., as
trustee, pursuant to which the Notes are being issued, as amended or
supplemented from time to time in accordance with the terms thereof.
"INITIAL PURCHASERS" shall have the meaning set forth in the first
introductory paragraph hereof.
"INSPECTORS" shall have the meaning set forth in Section 5(n) hereof.
"ISSUE DATE" shall mean January 20, 2004, the date of original
issuance of the Notes.
"ISSUER" shall have the meaning set forth in the introductory
paragraph hereto and shall also include the Issuer's permitted successors and
assigns.
"LEGAL HOLIDAY" shall mean a Saturday, a Sunday or a day on which
banking institutions in New York, New York are required by law, regulation or
executive order to remain closed.
"LOSSES" shall have the meaning set forth in Section 7(a) hereof.
"NASD" shall have the meaning set forth in Section 5(s) hereof.
"NOTES" shall have the meaning set forth in the second introductory
paragraph hereto.
"PARTICIPANT" shall have the meaning set forth in Section 7(a) hereof.
"PARTICIPATING BROKER-DEALER" shall have the meaning set forth in
Section 2(b) hereof.
"PERSON" shall mean an individual, corporation, partnership, joint
venture association, joint stock company, trust, unincorporated limited
liability company, government or any agency or political subdivision thereof or
any other legal entity.
"PROSPECTUS" shall mean the prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
"PURCHASE AGREEMENT" shall have the meaning set forth in the second
introductory paragraph hereof.
"RECORDS" shall have the meaning set forth in Section 5(n) hereof.
"REGISTRABLE NOTES" shall mean each Note upon its original issuance
and at all times subsequent thereto and each Exchange Note as to which Section
2(c)(iv) hereof is applicable upon original issuance and at all times subsequent
thereto, in each case until (i) a Registration Statement (other than, with
respect to any Exchange Note as to which Section 2(c)(iv) hereof is applicable,
the Exchange Offer Registration Statement) covering such Note or Exchange Note
has been declared effective by the Commission and such Note or Exchange Note, as
the case may be, has been disposed of in accordance
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with such effective Registration Statement, (ii) such Note has been exchanged
pursuant to the Exchange Offer for an Exchange Note or Exchange Notes that may
be resold without restriction under state and federal securities laws, (iii)
such Note or Exchange Note, as the case may be, ceases to be outstanding for
purposes of the Indenture or (iv) such Note or Exchange Note has been sold in
compliance with Rule 144 or is salable pursuant to Rule 144(k).
"REGISTRATION DEFAULT" shall have the meaning set forth in Section
4(a) hereof.
"REGISTRATION STATEMENT" shall mean any appropriate registration
statement of the Issuer and the Guarantors covering any of the Registrable Notes
filed with the Commission under the Securities Act, and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"REQUESTING PARTICIPATING BROKER-DEALER" shall have the meaning set
forth in Section 2(b) hereof.
"RULE 144" shall mean Rule 144 promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule (other than
Rule 144A) or regulation hereafter adopted by the Commission providing for
offers and sales of securities made in compliance therewith resulting in offers
and sales by subsequent holders that are not affiliates of an issuer of such
securities being free of the registration and prospectus delivery requirements
of the Securities Act.
"RULE 144A" shall mean Rule 144A promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule (other than
Rule 144) or regulation hereafter adopted by the Commission.
"RULE 415" shall mean Rule 415 promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"SHELF FILING EVENT" shall have the meaning set forth in Section 2(c)
hereof.
"SHELF REGISTRATION STATEMENT" shall have the meaning set forth in
Section 3(a) hereof.
"SPECIAL INTEREST" shall have the meaning set forth in Section 4(a)
hereof.
"TIA" shall mean the Trust Indenture Act of 1939, as amended.
"TRANSACTIONS" shall have the meaning set forth in Section 5 hereof.
"TRUSTEE" shall mean the trustee under the Indenture and the trustee
(if any) under any indenture governing the Exchange Notes.
"UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING" shall mean a
registration in which securities of the Issuer are sold to an underwriter for
reoffering to the public.
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Section 2. Exchange Offer
(a) The Issuer and the Guarantors shall (i) file a Registration
Statement (the "Exchange Offer Registration Statement") after the Issue Date
with the Commission on an appropriate registration form with respect to a
registered offer (the "Exchange Offer") to exchange any and all of the
Registrable Notes for a like aggregate principal amount of notes (the "Exchange
Notes") that are identical in all material respects to the Notes (except that
the Exchange Notes shall not contain terms with respect to transfer restrictions
or Special Interest upon a Registration Default), (ii) use their reasonable best
efforts to cause the Exchange Offer Registration Statement to be declared
effective by the Commission under the Securities Act within 180 days after the
Issue Date, and (iii) use their reasonable best efforts to consummate the
Exchange Offer within 210 days after the Issue Date. The Exchange Offer shall be
on the appropriate form permitting (i) registration of the Exchange Notes to be
offered in exchange for the Registrable Notes and (ii) resales of Exchange Notes
by Participating Broker-Dealers that tendered into the Exchange Offer
Registrable Notes that such Participating Broker-Dealer acquired for its own
account as a result of market making activities or other trading activities
(other than Registrable Notes acquired directly from the Company or any of its
Affiliates). Upon the Exchange Offer Registration Statement being declared
effective by the Commission, the Issuer and the Guarantors will offer the
Exchange Notes in exchange for surrender of the Notes. The Issuer and Guarantors
shall keep the Exchange Offer open for not less than 20 Business Days (or longer
if required by applicable law) after the date notice of the Exchange Offer is
mailed to Holders.
Each Holder that participates in the Exchange Offer will be required
to represent to the Issuer and the Guarantors in writing that (i) any Exchange
Notes to be received by it will be acquired in the ordinary course of its
business, (ii) at the time of commencement of the Exchange Offer, it has no
arrangement or understanding with any Person to participate in the distribution
(within the meaning of the Securities Act) of the Exchange Notes in violation of
the provisions of the Securities Act, (iii) it is not an affiliate (as such term
is defined in Rule 405 under the Securities Act) of the Issuer or any Guarantor
or, if it is an affiliate, it will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable, (iv) if
such Holder is not a broker-dealer, it is not engaged in, and does not intend to
engage in, a distribution of Exchange Notes, (v) if such Holder is a
broker-dealer that will receive Exchange Notes for its own account in exchange
for Notes that were acquired as a result of market-making or other trading
activities, it will deliver a prospectus in connection with any resale of such
Exchange Notes and (vi) such Holder has full power and authority to transfer the
Notes in exchange for the Exchange Notes and that the Issuer and Guarantors will
acquire good and unencumbered title thereto free and clear of any liens,
restrictions, charges or encumbrances and not subject to any adverse claims.
(b) The Issuer, the Guarantors and the Initial Purchasers acknowledge
that the staff of the Commission has taken the position that any broker-dealer
that elects to exchange Notes that were acquired by such broker-dealer for its
own account as a result of market-making or other trading activities for
Exchange Notes in the Exchange Offer (a "Participating Broker-Dealer") may be
deemed to be an "underwriter" within the meaning of the Securities Act and must
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Notes (other than a resale of an
unsold allotment resulting from the original offering of the Notes).
The Issuer, the Guarantors and the Initial Purchasers also acknowledge
that the staff of the Commission has taken the position that if the Prospectus
contained in the Exchange Offer Registration Statement includes a plan of
distribution containing a statement to the above effect and the means by which
Participating Broker-Dealers may resell the Exchange Notes, without naming the
Participating Broker-Dealers or specifying the amount of Exchange Notes owned by
them, such Prospectus may be delivered by Participating Broker-Dealers to
satisfy their prospectus delivery obligations under the
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Securities Act in connection with resales of Exchange Notes for their own
accounts, so long as the Prospectus otherwise meets the requirements of the
Securities Act.
In light of the foregoing, if requested by a Participating
Broker-Dealer in writing not later than 45 Business Days following completion of
the Exchange Offer (a "Requesting Participating Broker-Dealer"), the Issuer and
Guarantors agree to use their reasonable best efforts to keep the Exchange Offer
Registration Statement continuously effective for a period not less than 180
days after the date on which the Exchange Offer Registration Statement is
declared effective by the Commission, or such longer period if extended pursuant
to the third-to-last paragraph of Section 5 hereof (such period, the "Applicable
Period"), or such earlier date as all Requesting Participating Broker-Dealers
shall have notified the Issuer in writing that such Requesting Participating
Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer.
The Company shall provide sufficient copies of the latest version of such
Prospectus to such Requesting Participating Broker-Dealers, promptly upon
request, and in no event later than one day after such request, at any time
during the Applicable Period; provided that Participating Broker-Dealers shall
not be authorized by the Issuer to deliver, and shall not deliver, such
Prospectus after the Applicable Period. The Issuer shall include a plan of
distribution in such Exchange Offer Registration Statement that meets the
requirements set forth in the preceding paragraph.
For each Note surrendered in the Exchange Offer, the Holder will
receive an Exchange Note having a principal amount equal to that of the
surrendered Note. Interest on each Exchange Note issued pursuant to the Exchange
Offer will accrue from the last interest payment date on which interest was paid
on the Notes surrendered in exchange therefor or, if no interest has been paid
on the Notes, from the Issue Date.
Upon consummation of the Exchange Offer in accordance with this
Section 2, the Issuer and Guarantors shall have no further registration
obligations other than the Issuer's and Guarantors' continuing registration
obligations with respect to (i) Exchange Notes held by Participating
Broker-Dealers and (ii) Notes or Exchange Notes as to which clause (c)(iv) of
this Section 2 applies.
In connection with the Exchange Offer, the Issuer and Guarantors
shall:
(1) mail or cause to be mailed to each Holder entitled to participate
in the Exchange Offer a copy of the Prospectus forming part of the Exchange
Offer Registration Statement, together with an appropriate letter of
transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with
an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to the
close of business, New York time, on the last Business Day on which the
Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable
laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer if any,
the Issuer and Guarantors shall:
(1) accept for exchange all Notes validly tendered and not validly
withdrawn by the Holders pursuant to the Exchange Offer;
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(2) deliver or cause to be delivered to the Trustee for cancellation
all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each
such Holder of Notes, Exchange Notes equal in principal amount to the
Registrable Notes of such Holder so accepted for exchange, provided that in
the case of any Registrable Notes held in global form by a depositary,
authentication and delivery to such depositary of one or more Exchange
Notes in global form in an equivalent principal amount thereto for the
account of such Holder in accordance with the Indenture shall satisfy such
authentication and delivery requirement.
The Exchange Offer shall not be subject to any conditions, other than
(i) that the Exchange Offer does not violate applicable law or any applicable
interpretation of the staff of the Commission, (ii) that no action or proceeding
shall have been instituted or threatened in any court or by any governmental
agency which might materially impair the ability of the Issuer or any Guarantor
to proceed with the Exchange Offer, and no material adverse development shall
have occurred in any existing action or proceeding with respect to the Issuer
and Guarantors and (iii) that all governmental approvals shall have been
obtained, which approvals the Issuer and Guarantors deem necessary for the
consummation of the Exchange Offer.
The Exchange Notes shall be issued under (i) the Indenture or (ii) an
indenture identical in all material respects to the Indenture (in either case,
with such changes as are necessary to comply with any requirements of the
Commission to effect or maintain the qualification thereof under the TIA) and
which, in either case, has been qualified under the TIA and shall provide that
the Exchange Notes shall not be subject to the transfer restrictions set forth
in the Indenture. The Indenture or such indenture shall provide that the
Exchange Notes and the Notes shall vote and consent together on all matters as
one class and that none of the Exchange Notes or the Notes will have the right
to vote or consent as a separate class on any matter.
(c) In the event that (i) applicable interpretations of the staff of
the Commission do not permit the Issuer and the Guarantors to effect the
Exchange Offer, (ii) for any reason the Exchange Offer Registration Statement is
not declared effective by the Commission within 180 days after the Issue Date or
the Exchange Offer is not consummated within 240 days after the Issue Date,
(iii) an Initial Purchaser so requests, not later than 45 Business Days
following completion of the Exchange Offer, with respect to Registrable Notes
not eligible to be exchanged for Exchange Notes in the Exchange Offer, (iv) any
Holder of Registrable Notes (other than an Initial Purchaser) is not eligible to
participate in such Exchange Offer or does not receive freely tradable Exchange
Notes in such Exchange Offer other than by reason of such Holder being an
affiliate (as such term is defined in Rule 405 under the Securities Act) of the
Issuer or any Guarantor and so requests not later than 45 Business Days
following the completion of the Exchange Offer or (v) in the case of any Initial
Purchaser that participates in the Exchange Offer, such Initial Purchaser does
not receive freely tradable Exchange Notes in exchange for Registrable Notes
constituting any portion of an unsold allotment and so requests not later than
45 Business Days following the completion of the Exchange Offer (it being
understood that the requirement that a Participating Broker-Dealer deliver the
Prospectus contained in the Exchange Offer Registration Statement in connection
with sales of the Exchange Notes shall not result in such Exchange Notes being
not "freely tradable") (each such event referred to in clauses (i) through (v)
of this sentence, a "Shelf Filing Event"), then the Issuer and Guarantors shall
file with the Commission a Shelf Registration Statement pursuant to Section 3
hereof.
Section 3. Shelf Registration
If at any time a Shelf Filing Event shall occur, then:
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(a) Shelf Registration. The Issuer and Guarantors shall file with the
Commission as promptly as practicable a Registration Statement for an offering
to be made on a continuous basis pursuant to Rule 415 covering all of the
Registrable Notes not exchanged in the Exchange Offer and Exchange Notes as to
which Section 2(c)(iv) is applicable (the "Shelf Registration Statement"). The
Shelf Registration Statement shall be on Form S-1 or another appropriate form
permitting registration of such Registrable Notes for resale by Holders in
accordance with the methods of distribution designated by them (including (if
the event described in Section 2(c)(i) shall have occurred), without limitation,
one or more underwritten offerings). The Issuer and Guarantors shall not permit
any securities other than the Registrable Notes to be included in the Shelf
Registration Statement.
(b) The Issuer and Guarantors shall use their reasonable best efforts
(x) to cause the Shelf Registration Statement to be declared effective by the
Commission under the Securities Act on or prior to the later of 180 calendar
days after the Issue Date or 90 days after the Shelf Registration Statement is
required to be filed with the Commission and (y) to keep the Shelf Registration
Statement continuously effective under the Securities Act for the period ending
on the earliest of (i) the date which is two years from the effective date of
such Shelf Registration Statement, subject to extension pursuant to the
third-to-last paragraph of Section 5 hereof, (ii) such time as all of the
Registrable Notes included on the Shelf Registration Statement have been sold
thereunder and (iii) such time as the Registrable Notes included on the Shelf
Registration Statement are eligible for resale under Rule 144(k) (the earliest
of (i) through (iii) above, the "Effectiveness Period"); provided, however, that
(i) the Effectiveness Period in respect of the Shelf Registration Statement
shall be extended to the extent required to permit dealers to comply with the
applicable prospectus delivery requirements of Rule 174 under the Securities Act
and as otherwise provided herein and (ii) from time to time, the Issuer may
suspend the effectiveness of the Shelf Registration Statement by written notice
to the Holders, either in accordance with the penultimate paragraph of Section 5
or as a result of the filing of a post-effective amendment to the Shelf
Registration Statement to incorporate annual audited financial information with
respect to the Issuer where such post-effective amendment is not yet effective
and needs to be declared effective by the Commission to permit Holders to use
the related Prospectus.
(c) Supplements and Amendments. The Issuer and the Guarantors agree 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 for such Shelf Registration Statement or by the
Securities Act or rules and regulations thereunder for shelf registration, or if
reasonably requested by (i) the Holders of a majority in aggregate principal
amount of the Registrable Notes covered by such Registration Statement (if the
event described in Section 2(c)(i) shall have occurred), (ii) a Holder with
respect to information relating to such Holder or (iii) by any underwriter of
such Registrable Notes.
Section 4. Special Interest
(a) The Issuer, the Guarantors and the Initial Purchasers agree that
the Holders will suffer damages if the Issuer fails to fulfill its obligations
under Section 2 or Section 3 hereof and that it would not be feasible to
ascertain the extent of such damages with precision. Accordingly, the Issuer and
the Guarantors hereby jointly and severally agree that if:
(i) on or prior to the 90th day following the Issue Date, neither the
Exchange Offer Registration Statement nor the Shelf Registration Statement
has been filed with the Commission;
(ii) on or prior to the 180th day following the Issue Date, neither
the Exchange Offer Registration Statement nor the Shelf Registration
Statement has been declared effective by the Commission;
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(iii) on or prior to the 210th day following the Issue Date, neither
the Exchange Offer has been consummated nor the Shelf Registration
Statement been has been declared effective by the Commission; or
(iv) after the Shelf Registration Statement has been declared
effective by the Commission, such Registration Statement ceases to be
effective or usable in connection with resales of Notes in accordance with
and during the periods specified herein,
(each such event referred to in clauses (i) through (iv) above, a "Registration
Default"), liquidated damages in the form of additional cash interest ("Special
Interest") will accrue on the affected Notes and the affected Exchange Notes, as
applicable. The rate of Special Interest will be 0.25% per annum for the first
90-day period immediately following the occurrence of a Registration Default,
increasing by an additional 0.25% per annum with respect to each subsequent
90-day period up to a maximum amount of additional interest of 1.0% per annum,
from and including the date on which any such Registration Default shall occur
to but excluding the earlier of (1) the date on which all Registration Defaults
have been cured or (2) the date on which all the Notes and Exchange Notes
otherwise become freely transferable by Holders other than affiliates of the
Issuer and the Guarantors without further registration under the Securities Act.
Notwithstanding the foregoing, (1) the amount of Special Interest payable shall
not increase because more than one Registration Default has occurred and is
pending and (2) a Holder of Notes or Exchange Notes who is not entitled to the
benefits of the Shelf Registration Statement (i.e., such Holder has not provided
the information as required under Section 5 hereof) shall not be entitled to
Special Interest with respect to a Registration Default that pertains to the
Shelf Registration Statement.
(b) So long as Notes remain outstanding, the Issuer shall notify the
Trustee within five Business Days after each and every date on which an event
occurs in respect of which Special Interest is required to be paid. Any amounts
of Special Interest due pursuant to clauses (a)(i), (a)(ii), (a)(iii) or (a)(iv)
of this Section 4 will be payable in cash semi-annually on each January 31 and
July 31 (each a "Damages Payment Date"), commencing with the first such date
occurring after any such Special Interest commences to accrue, to Holders to
whom regular interest is payable on such Damages Payment Date with respect to
Notes that are Registrable Notes. The amount of Special Interest for Registrable
Notes will be determined by multiplying the applicable rate of Special Interest
by the aggregate principal amount of all such Registrable Notes outstanding on
the Damages Payment Date following such Registration Default in the case of the
first such payment of Special Interest with respect to a Registration Default
(and thereafter at the next succeeding Damages Payment Date until the cure of
such Registration Default), and multiplying such product by a fraction, the
numerator of which is the number of days such Special Interest rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months and, in the case of a partial month, the
actual number of days elapsed), and the denominator of which is 360.
Notwithstanding the fact that any securities for which Special Interest are due
cease to be Registrable Notes, all obligations of the Company and the Guarantors
to pay Special Interest with respect to securities shall survive until such time
as such obligations with respect to such securities shall have been satisfied in
full.
Section 5. Registration Procedures
In connection with the filing of any Registration Statement pursuant
to Section 2 or 3 hereof, the Issuer and the Guarantors shall effect such
registrations to permit the sale of the securities covered thereby in accordance
with the intended method or methods of disposition thereof, and pursuant thereto
and in connection with any Registration Statement filed by the Issuer and the
Guarantors hereunder, the Issuer and each of the Guarantors shall:
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(a) Prepare and file with the Commission the Registration Statement or
Registration Statements prescribed by Section 2 or 3 hereof, and use their
reasonable best efforts to cause each such Registration Statement to become
effective and remain effective as provided herein; provided, however, that
if (1) such filing is pursuant to Section 3 hereof, or (2) a Prospectus
contained in the Exchange Offer Registration Statement filed pursuant to
Section 2 hereof is required to be delivered under the Securities Act by
any Requesting Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period relating thereto, before filing any
Registration Statement or Prospectus or any amendments or supplements
thereto, the Issuer and the Guarantors shall furnish to and afford the
Holders of the Registrable Notes covered by such Registration Statement or
each such Requesting Participating Broker-Dealer, as the case may be, its
counsel (if such counsel is known to the Issuer) and the managing
underwriters, if any, a reasonable opportunity to review copies of all such
documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed (in each
case at least five Business Days prior to such filing or such later date as
is reasonable under the circumstances); provided, however, that the Issuer
shall not be required to afford any such Person an opportunity to receive a
copy of any amendments or supplements to such Shelf Registration Statement
or Prospectus which are made solely as a result of any filing by the Issuer
of reports required to be filed pursuant to the Exchange Act.
(b) Prepare and file with the Commission such amendments and
post-effective amendments to each Shelf Registration Statement or Exchange
Offer Registration Statement, as the case may be, as may be necessary to
keep such Registration Statement continuously effective for the
Effectiveness Period or the Applicable Period, as the case may be, subject
to Section 3(b) and the third-to-last paragraphs of Section 5; cause the
related Prospectus to be supplemented by any Prospectus supplement required
by applicable law, and as so supplemented to be filed pursuant to Rule 424
(or any similar provisions then in force) promulgated under the Securities
Act; and comply with the provisions of the Securities Act and the Exchange
Act applicable to it with respect to the disposition of all securities
covered by such Registration Statement as so amended or in such Prospectus
as so supplemented and with respect to the subsequent resale of any
securities being sold by a Participating Broker-Dealer covered by any such
Prospectus, in each case, in accordance with the intended methods of
distribution set forth in such Registration Statement or Prospectus, as so
amended.
(c) If (1) a Shelf Registration Statement is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Requesting Participating Broker-Dealer who
seeks to sell Exchange Notes during the Applicable Period relating thereto
in the applicable Exchange Offer, notify the selling Holders of Registrable
Notes, or each such Participating Broker-Dealer, as the case may be, their
counsel and the managing underwriters, if any, as promptly as possible,
and, if requested by any such Person, confirm such notice in writing, (i)
when a Prospectus or any Prospectus supplement or post-effective amendment
has been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective under the
Securities Act (including in such notice a written statement that any
Holder may, upon request, obtain, at the sole expense of the Issuer, one
conformed copy of such Registration Statement or post-effective amendment
including financial statements and schedules, documents incorporated or
deemed to be incorporated by reference and exhibits), (ii) of the issuance
by the Commission of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of
any preliminary prospectus or the initiation of any proceedings for that
purpose, (iii) if at any time when a Prospectus is required by the
Securities Act to be delivered in connection with sales of the Registrable
Notes or resales of Exchange Notes by Requesting Participating
Broker-Dealers the
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representations and warranties of the Issuer contained in any agreement
(including any underwriting agreement) contemplated by Section 5(m)(i)
hereof cease to be true and correct in all material respects, (iv) of the
receipt by the Issuer of any notification with respect to the suspension of
the qualification or exemption from qualification of a Registration
Statement or any of the Registrable Notes or the Exchange Notes for offer
or sale in any jurisdiction, or the initiation or threatening of any
proceeding for such purpose and (v) of the happening of any event, the
existence of any condition or any information becoming known to the Issuer
or any Guarantor that makes any statement made in such Registration
Statement or related Prospectus or any document incorporated or deemed to
be incorporated therein by reference untrue in any material respect or that
requires the making of any changes in or amendments or supplements to such
Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
that in the case of the Prospectus, it will not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(d) If (1) a Shelf Registration Statement is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Requesting Participating Broker-Dealer who
seeks to sell Exchange Notes during the Applicable Period, use their
reasonable best efforts to prevent the issuance of any order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of a Prospectus or suspending the qualification (or
exemption from qualification) of any of the Registrable Notes or the
Exchange Notes, as the case may be, for sale in any jurisdiction, and, if
any such order is issued, to use their reasonable best efforts to obtain
the withdrawal of any such order at the earliest practicable moment.
(e) If (1) a Shelf Registration Statement is filed pursuant to Section
3 hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Requesting Participating Broker-Dealer who
seeks to sell Exchange Notes during the Applicable Period and if reasonably
requested by the managing underwriter or underwriters (if any), the Holders
of a majority in aggregate principal amount of the Registrable Notes
covered by such Registration Statement or any Participating Broker-Dealer
(each a "Requesting Party"), as the case may be, (i) promptly incorporate
in such Registration Statement or Prospectus a prospectus supplement or
post-effective amendment such information with respect to such Requesting
Party or the distribution of the Registrable Securities by such Requesting
Party as the managing underwriter or underwriters (if any), such Holders or
any Participating Broker-Dealer, as the case may be (based upon advice of
counsel), determine is reasonably necessary to be included therein and (ii)
make all required filings of such prospectus supplement or such
post-effective amendment as soon as practicable after the Issuer has
received notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment; provided, however, that the Issuer
shall not be required to take any action hereunder that would, in the
written opinion of counsel to the Issuer, violate applicable laws.
(f) If (1) a Shelf Registration Statement is filed pursuant to Section
3 hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Requesting Participating Broker-Dealer who
seeks to sell Exchange Notes during the Applicable Period, furnish to each
selling Holder of Registrable Notes or each such Participating
Broker-Dealer, as the case may be,
10
who so requests, its counsel and each managing underwriter, if any, at the
sole expense of the Issuer, one conformed copy of the Registration
Statement or Registration Statements and each post-effective amendment
thereto, including financial statements and schedules, and, if requested,
all documents incorporated or deemed to be incorporated therein by
reference and all exhibits.
(g) If (1) a Shelf Registration Statement is filed pursuant to Section
3 hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Requesting Participating Broker-Dealer who
seeks to sell Exchange Notes during the Applicable Period, deliver to each
selling Holder of Registrable Notes or each such Requesting Participating
Broker-Dealer, as the case may be, its respective counsel, and the
underwriters, if any, at the sole expense of the Issuer, as many copies of
the Prospectus or Prospectuses (including each form of preliminary
prospectus) and each amendment or supplement thereto and any documents
incorporated by reference therein as such Persons may reasonably request;
and, subject to the penultimate paragraph of this Section 5, the Issuer and
the Guarantors hereby consent to the use of such Prospectus and each
amendment or supplement thereto by each of the selling Holders of
Registrable Notes or each such Requesting Participating Broker-Dealer, as
the case may be, and the underwriters or agents, if any, and dealers (if
any), in connection with the offering and sale of the Registrable Notes
covered by, or the sale by Participating Broker-Dealers of the Exchange
Notes pursuant to, such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or Exchange
Notes or any delivery of a Prospectus contained in the Exchange Offer
Registration Statement by any Requesting Participating Broker-Dealer who
seeks to sell Exchange Notes during the Applicable Period, use their
reasonable best efforts to register or qualify, and to cooperate with the
selling Holders of Registrable Notes or each such Requesting Participating
Broker-Dealer, as the case may be, the managing underwriter or
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of, such Registrable Notes or Exchange Notes, as the case
may be, for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any selling Holder, Requesting
Participating Broker-Dealer, or the managing underwriter or underwriters
reasonably request in writing ; provided, however, that where Exchange
Notes or Registrable Notes are offered other than through an underwritten
offering, the Issuer agrees to use its reasonable best efforts to cause the
Issuer's counsel to perform Blue Sky investigations and file registrations
and qualifications required to be filed pursuant to this Section 5(h), to
keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to be
kept effective and to do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such jurisdictions of
such Exchange Notes or Registrable Notes covered by the applicable
Registration Statement; provided, however, that the Issuer shall not be
required to (A) qualify generally to do business in any jurisdiction where
it is not then so qualified, (B) take any action that would subject it to
general service of process in any such jurisdiction where it is not then so
subject or (C) subject itself to taxation in excess of a nominal dollar
amount in any such jurisdiction where it is not then so subject.
(i) If a Shelf Registration Statement is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Registrable Notes and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Notes to
be sold, which certificates shall not bear any restrictive legends and
shall be in a form eligible for deposit with The Depository Trust Company
and enable such Registrable Notes to be in such denominations (subject to
applicable requirements set forth in the Indenture) and registered in
11
such names as the managing underwriter or underwriters, if any, or selling
Holders may request at least five Business Days prior to any sale of such
Registrable Notes or Exchange Notes.
(j) Use their reasonable best efforts to cause the Registrable Notes
or Exchange Notes covered by any Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may
be reasonably necessary to enable the seller or sellers thereof or the
underwriter or underwriters, if any, to consummate the disposition of such
Registrable Notes or Exchange Notes, except as may be required solely as a
consequence of the nature of such selling Holder's business, in which case
the Issuer and the Guarantors will cooperate in all reasonable respects
with the filing of such Registration Statement and the granting of such
approvals.
(k) If (1) a Shelf Registration Statement is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Requesting Participating Broker-Dealer who
seeks to sell Exchange Notes during the Applicable Period, upon the
occurrence of any event contemplated by Section 5(c)(v) hereof, as promptly
as practicable prepare and (subject to Section 5(a) and the third-to-last
paragraph of this Section 5) file with the Commission, at the sole expense
of the Issuer, a supplement or post-effective amendment to the Registration
Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, or file any
other required document so that, as thereafter delivered to the purchasers
of the Registrable Notes being sold thereunder or to the purchasers of the
Exchange Notes to whom such Prospectus will be delivered by a Requesting
Participating Broker-Dealer, any such Prospectus 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, in the light
of the circumstances under which they were made, not misleading.
(l) Prior to the effective date of the first Registration Statement
relating to the Registrable Notes, (i) provide the Trustee with
certificates for the Registrable Notes in a form eligible for deposit with
The Depository Trust Company and (ii) provide a CUSIP number for the
Registrable Notes.
(m) In connection with any underwritten offering of Registrable Notes
pursuant to a Shelf Registration Statement, enter into an underwriting
agreement as is customary in underwritten offerings of debt securities
similar to the Notes and take all such other actions as are reasonably
requested by the managing underwriter or underwriters in order to expedite
or facilitate the registration or the disposition of such Registrable Notes
and, in such connection, (i) make such representations and warranties to,
and covenants with, the underwriters with respect to the business of the
Issuer and its subsidiaries, as then conducted (including any acquired
business, properties or entity, if applicable), and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, as are customarily made by
issuers to underwriters in underwritten offerings of debt securities
similar to the Notes, and confirm the same in writing if and when
requested; (ii) obtain the written opinions of counsel to the Issuer and
written updates thereof in form, scope and substance reasonably
satisfactory to the managing underwriter or underwriters, addressed to the
underwriters covering the matters customarily covered in opinions requested
in underwritten offerings (including negative assurance letters) and such
other matters as may be reasonably requested by the managing underwriter or
underwriters; (iii) obtain "cold comfort" letters and updates thereof in
form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters from the independent certified public
accountants of the Issuer (and, if necessary, any other independent
certified public accountants of any subsidiary of the Issuer or of any
business
12
acquired by the Issuer for which financial statements and financial data
are, or are required to be, included or incorporated by reference in the
Registration Statement), addressed to each of the underwriters, such
letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings of debt securities similar to the Notes; and (iv) if
an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable than those set
forth in Section 7 hereof (or such other provisions and procedures
acceptable to Holders of a majority in aggregate principal amount of
Registrable Notes covered by such Registration Statement and the managing
underwriter or underwriters or agents) with respect to all parties to be
indemnified pursuant to said Section; provided that the Issuer shall not be
required to provide indemnification to any underwriter selected in
accordance with the provisions of Section 9 hereof with respect to
information relating to such underwriter furnished in writing to the Issuer
by or on behalf of such underwriter expressly for inclusion in such
Registration Statement; provided further, however, that with respect to any
such untrue statement or omission made in any preliminary Prospectus, the
indemnity agreement contained in such underwriting agreement shall not
inure to the benefit of any underwriter for losses to the extent that such
losses are finally judicially determined to have resulted from the fact
that (A) such underwriter failed to send or give a copy of the final
Prospectus (as amended or supplemented) to the person asserting any such
loss at or prior to written confirmation of the sale of such Registrable
Notes to such person and (B) the untrue statement or omission in the
preliminary Prospectus was corrected in the final Prospectus or an
amendment or supplement thereto, unless the failure to deliver the final
Prospectus (as amended or supplemented) was a result of noncompliance by
the Issuer with Section 5(g). The above shall be done at each closing under
such underwriting agreement, or as and to the extent required thereunder.
(n) If (1) a Shelf Registration Statement is filed pursuant to Section
3 hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Requesting Participating Broker-Dealer who
seeks to sell Exchange Notes during the Applicable Period, make available
for inspection by any selling Holder of such Registrable Notes being sold
or such Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Notes, if any, and any
attorney, accountant or other agent retained by any such selling Holder or
each such Participating Broker-Dealer, as the case may be, or underwriter
(collectively, the "Inspectors"), at the offices where normally kept,
during reasonable business hours, all financial and other records, and
pertinent corporate documents and instruments of the Issuer and its
subsidiaries (collectively, the "Records") as shall be reasonably necessary
to enable them to exercise any applicable due diligence responsibilities,
and cause the officers, directors and employees of the Issuer and its
subsidiaries to supply all information reasonably requested by any such
Inspector in connection with such Registration Statement and Prospectus.
Each Inspector shall agree in writing that it will keep the Records
confidential and that it will not disclose, or use in connection with any
market transactions in violation of any applicable securities laws, any
such Records unless (i) the disclosure of such Records is necessary to
avoid or correct a misstatement or omission in such Registration Statement
or Prospectus, (ii) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction or (iii) the
information in such Records has been made generally available to the
public; provided, however, that (i) each Inspector shall agree to use
reasonable best efforts to provide notice to the Issuer of the potential
disclosure of any information by such Inspector pursuant to clause (i) or
(ii) of this sentence to permit the Issuer to obtain a protective order (or
waive the provisions of this paragraph (n)) and (ii) each such Inspector
shall take such actions as are reasonably necessary to protect the
confidentiality of such information (if practicable) to the extent such
action is
13
otherwise not inconsistent with, an impairment of or in derogation of the
rights and interests of the Holder or any Inspector.
(o) Provide an indenture trustee for the Registrable Notes or the
Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a) hereof to be qualified under the TIA
not later than the effective date of the Exchange Offer or the first
Registration Statement relating to the Registrable Notes; and in connection
therewith, cooperate with the trustee under any such indenture and the
Holders of the Registrable Notes or Exchange Notes, as applicable, to
effect such changes to such indenture as may be required for such indenture
to be so qualified in accordance with the terms of the TIA; and execute,
and use their reasonable best efforts to cause such trustee to execute, all
documents as may be required to effect such changes, and all other forms
and documents required to be filed with the Commission to enable such
indenture to be so qualified in a timely manner.
(p) Comply with all applicable rules and regulations of the Commission
and make generally available to the Issuer's securityholders earnings
statements satisfying the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month period
(or 90 days after the end of any 12-month period if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which Registrable
Notes or Exchange Notes are sold to underwriters in a firm commitment or
best efforts underwritten offering and (ii) if not sold to underwriters in
such an offering, commencing on the first day of the first fiscal quarter
of the Issuer after the effective date of a Registration Statement, which
statements shall cover said 12-month periods consistent with the
requirements of Rule 158.
(q) If the Exchange Offer is to be consummated, upon delivery of the
Registrable Notes by Holders to the Issuer (or to such other Person as
directed by the Issuer) in exchange for the Exchange Notes, ▇▇▇▇, or cause
to be marked, on such Registrable Notes that such Registrable Notes are
being cancelled in exchange for the Exchange Notes; provided that in no
event shall such Registrable Notes be marked as paid or otherwise
satisfied.
(r) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in
connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD").
(s) Use their reasonable best efforts to take all other steps
reasonably necessary or advisable to effect the registration of the
Exchange Notes and/or Registrable Notes covered by a Registration Statement
contemplated hereby in accordance with Section 2 or Section 3 hereof.
The Issuer may require each seller of Registrable Notes or Exchange
Notes as to which any registration is being effected to furnish to the Issuer
such information regarding such seller and the distribution of such Registrable
Notes or Exchange Notes as the Issuer may, from time to time, reasonably
request. The Issuer may exclude from such registration the Registrable Notes of
any seller so long as such seller fails to furnish such information within a
reasonable time after receiving such request and in the event of such an
exclusion, the Issuer shall have no further obligation under this Agreement
(including, without limitation, the obligations under Section 4) with respect to
such seller or any subsequent Holder of such Registrable Notes. Each seller as
to which any Shelf Registration Statement is being effected agrees to furnish
promptly to the Issuer all information required to be disclosed in order to make
any information previously furnished to the Issuer by such seller not materially
misleading.
14
If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Issuer, then such Holder shall
have the right to require (i) the insertion therein of language, in form and
substance reasonably satisfactory to such Holder, to the effect that the holding
by such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the securities covered thereby and that
such holding does not imply that such Holder will assist in meeting any future
financial requirements of the Issuer, or (ii) in the event that such reference
to such Holder by name or otherwise is not required by the Securities Act or any
similar federal statute then in force, the deletion of the reference to such
Holder in any amendment or supplement to the applicable Registration Statement
filed or prepared subsequent to the time that such reference ceases to be
required.
Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by acquisition of such Registrable Notes or Exchange Notes that, upon
actual receipt of any notice from the Issuer (x) of the happening of any event
of the kind described in Section 5(c)(ii), 5(c)(iii), 5(c)(iv), or 5(c)(v)
hereof, or (y) that the Board of Directors of the Issuer (the "Board of
Directors") determines that the Issuer has a bona fide business purpose for
doing so, then the Issuer may delay the filing or the effectiveness of the
Exchange Offer Registration Statement or the Shelf Registration Statement (if
not then filed or effective, as applicable) and shall not be required to
maintain the effectiveness thereof or amend or supplement the Exchange Offer
Registration Statement or the Shelf Registration Statement, in all cases, for a
period (a "Delay Period") expiring upon the earlier to occur of (i) in the case
of the immediately preceding clause (x), such Holder's or Participating
Broker-Dealer's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(k) hereof or until it is advised in writing (the
"Advice") by the Issuer that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or supplements thereto or
(ii) in the case of the immediately preceding clause (y), the date which is the
earlier of (A) the date on which such business purpose ceases to interfere with
the Issuer's obligations to file or maintain the effectiveness of any such
Registration Statement pursuant to this Agreement or (B) 60 days after the
Issuer notifies the Holders of such good faith determination. There shall not be
more than 90 days of Delay Periods during any 12-month period. Each of the
Effectiveness Period and the Applicable Period, if applicable, shall be extended
by the number of days during any Delay Period. Any Delay Period will not alter
the obligations of the Issuer to pay Special Interest under the circumstances
set forth in Section 4 hereof.
In the event of any Delay Period pursuant to clause (y) of the
preceding paragraph, notice shall be given as soon as practicable after the
Board of Directors makes such a determination of the need for a Delay Period and
shall state, to the extent practicable, an estimate of the duration of such
Delay Period and shall advise the recipient thereof of the agreement of such
Holder provided in the next succeeding sentence. Each Holder, by his acceptance
of any Registrable Note, agrees to maintain in confidence and not disclose the
occurrence of such Delay Period (except for the reasons described in paragraphs
(i) or (iii) in the proviso to the ultimate sentence of Section 5(n)) or the
delivery by Issuer of such notice, and agrees that during any Delay Period, such
Holder will discontinue disposition of such Notes or Exchange Notes covered by
such Registration Statement or Prospectus or Exchange Notes to be sold by such
Holder or Participating Broker-Dealer, as the case may be.
Notwithstanding anything herein to the contrary, any party to this
Agreement (and any employee, representative, or other agent of any party to this
Agreement) may disclose to any and all Persons, without limitation of any kind,
the U.S. federal income tax treatment and tax structure of the transactions
contemplated by this Agreement (the "Transactions") and all materials of any
kind (including opinions or other tax analyses) that are provided to it relating
to such tax treatment and tax structure; provided, however, that neither party
(nor any employee, representative or other agent thereof) shall disclose any
information (a) that is not relevant to an understanding of the U.S. federal
income tax
15
treatment or tax structure of the Transactions or (b) to the extent such
disclosure could result in a violation of any federal or state securities laws.
Section 6. Registration Expenses
All fees and expenses incident to the performance of or compliance
with this Agreement by the Issuer and the Guarantors (other than any
underwriting discounts or commissions) shall be borne by the Issuer, whether or
not the Exchange Offer Registration Statement or the Shelf Registration
Statement is filed or becomes effective or the Exchange Offer is consummated,
including, without limitation, (i) all registration and filing fees (including,
without limitation, (A) fees with respect to filings required to be made with
the NASD in connection with an underwritten offering and (B) fees and expenses
of compliance with state securities or Blue Sky laws (including, without
limitation, reasonable fees and disbursements of counsel in connection with Blue
Sky qualifications of the Registrable Notes or Exchange Notes and determination
of the eligibility of the Registrable Notes or Exchange Notes for investment
under the laws of such jurisdictions (x) where the holders of Registrable Notes
are located, in the case of an Exchange Offer, or (y) as provided in Section
5(h) hereof, in the case of a Shelf Registration Statement or in the case of
Exchange Notes to be sold by a Participating Broker-Dealer during the Applicable
Period)), (ii) printing expenses, including, without limitation, expenses of
printing certificates for Registrable Notes or Exchange Notes in a form eligible
for deposit with The Depository Trust Company and of printing prospectuses if
the printing of prospectuses is requested by the managing underwriter or
underwriters, if any, or by the Holders of a majority in aggregate principal
amount of the Registrable Notes included in any Registration Statement or in
respect of Exchange Notes to be sold by any Participating Broker-Dealer during
the Applicable Period, as the case may be, (iii) messenger, telephone and
delivery expenses, (iv) fees and disbursements of counsel for the Issuer and
reasonable fees and disbursements of one special counsel for all of the sellers
of Registrable Notes pursuant to a Shelf Registration Statement (exclusive of
any counsel retained pursuant to Section 7 hereof), (v) fees and disbursements
of all independent certified public accountants referred to in Section 5(m)(iii)
hereof (including, without limitation, the expenses of any special audit and
"cold comfort" letters required by or incident to such performance), (vi)
Securities Act liability insurance, if the Issuer desires such insurance, (vii)
fees and expenses of all other Persons retained by the Issuer, (viii) internal
expenses of the Issuer (including, without limitation, all salaries and expenses
of officers and employees of the Issuer performing legal or accounting duties),
(ix) the expense of any annual audit, (x) the fees and expenses incurred in
connection with the listing of the securities to be registered on any securities
exchange, and the obtaining of a rating of the securities, in each case, if
applicable, and (xi) the expenses relating to printing, word processing and
distributing all Registration Statements, underwriting agreements, indentures
and any other documents necessary in order to comply with this Agreement.
Notwithstanding the foregoing or anything to the contrary, each Holder shall pay
all underwriting discounts and commissions of any underwriters with respect to
any Registrable Notes sold by or on behalf of it.
Section 7. Indemnification
(a) Each of the Issuer and the Guarantors agree, jointly and
severally, to indemnify and hold harmless each Holder of Registrable Notes and
each Participating Broker-Dealer selling Exchange Notes during the Applicable
Period, each Person, if any, who controls any such Person within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act, the
agents, employees, officers and directors of each Holder and each such
Participating Broker-Dealer and the agents, employees, officers and directors of
any such controlling Person (each, a "Participant") from and against any and all
losses, liabilities, claims, damages and expenses (including, but not limited
to, reasonable attorneys' fees and any and all reasonable out-of-pocket expenses
actually incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
reasonable amounts paid in settlement of any claim or litigation (in the manner
set forth in
16
clause (c) below)) (collectively, "Losses") to which they or any of them may
become subject under the Securities Act, the Exchange Act or otherwise insofar
as such Losses (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement (or any amendment thereto) or Prospectus (as amended
or supplemented if the Issuer shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or are caused by, arise out of or are
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the case of the Prospectus, in the light of the circumstances under which they
were made, not misleading, provided that (i) the foregoing indemnity shall not
be available to any Participant insofar as such Losses are caused by, arise out
of or are based upon any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
relating to such Participant furnished to the Issuer in writing by or on behalf
of such Participant expressly for use therein, and (ii) with respect to any such
untrue statement or omission made in any preliminary Prospectus, the indemnity
agreement contained in this Section 7(a) shall not inure to the benefit of any
Participant for losses to the extent that such losses are finally judicially
determined to have resulted from the fact that (A) such Participant failed to
send or give a copy of the final Prospectus to the person asserting any such
loss at or prior to written confirmation of the sale of such Registrable Notes
to such person and (B) the untrue statement or omission in the preliminary
Prospectus was corrected in the final Prospectus or an amendment or supplement
thereto, unless the failure to deliver the final Prospectus or such amendment or
supplement was a result of noncompliance by the Issuer with Section 5(g).
(b) Each Participant agrees, severally and not jointly, to indemnify
and hold harmless the Issuer and the Guarantors, each Person, if any, who
controls the Issuer or Guarantors within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, and each of their
respective agents, employees, officers and directors and the agents, employees,
officers and directors of any such controlling Person from and against any
Losses to which they or any of them may become subject under the Securities Act,
the Exchange Act or otherwise insofar as such Losses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement (or any
amendment thereto) or Prospectus (as amended or supplemented if the Issuer shall
have furnished any amendments or supplements thereto) or any preliminary
Prospectus, or were caused by, arise out of or are based upon any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in the case of the Prospectus, in
the light of the circumstances under which they were made, not misleading, in
each case to the extent, but only to the extent, that any such Loss arises out
of or is based upon any untrue statement or alleged untrue statement or omission
or alleged omission made in reliance upon and in conformity with information
relating to such Participant furnished in writing to the Issuer by or on behalf
of such Participant expressly for use therein.
(c) Promptly after receipt by an indemnified party under subsection
7(a) or 7(b) above of notice of the commencement of any action, suit or
proceeding (collectively, an "action"), such indemnified party shall, if a claim
in respect thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to be sought in
writing of the commencement of such action (but the failure so to notify an
indemnifying party shall not relieve such indemnifying party from any liability
that it may have under this Section 7 except to the extent that it has been
prejudiced in any material respect by such failure). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement of such action, the indemnifying party will be entitled to
participate in such action, and to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense of such action with counsel
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such action, but the reasonable fees and expenses of such counsel
shall be at
17
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by the indemnifying parties
in connection with the defense of such action, (ii) the indemnifying parties
shall not have employed counsel to take charge of the defense of such action
within a reasonable time after notice of commencement of the action, or (iii)
the named parties to such action (including any impleaded parties) include such
indemnified party and the indemnifying party or parties (or such indemnifying
parties have assumed the defense of such action), and such indemnified party or
parties shall have reasonably concluded (based on advice of counsel to such
indemnified party or parties), that there may be defenses available to it or
them that are different from or additional to those available to one or all of
the indemnifying parties (in which case the indemnifying parties shall not have
the right to direct the defense of such action on behalf of the indemnified
party or parties), in any of which events such reasonable fees and expenses of
counsel shall be borne by the indemnifying parties. In no event shall the
indemnifying party be liable for the fees and expenses of more than one counsel
(together with appropriate local counsel) at any time for all indemnified
parties in connection with any one action or separate but substantially similar
or related actions arising in the same jurisdiction out of the same general
allegations or circumstances. Any such separate firm for the Participants shall
be designated in writing by Participants who sold a majority in interest of
Registrable Notes sold by all such Participants and shall be reasonably
acceptable to the Issuer and any such separate firm for the Issuer, its
affiliates, officers, directors, representatives, employees and agents and such
control Person of the Issuer shall be designated in writing by the Issuer and
shall be reasonable acceptable to the Holders. An indemnifying party shall not
be liable for any settlement of any claim or action effected without its written
consent, which consent may not be unreasonably withheld. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) In order to provide for contribution in circumstances in which the
indemnification provided for in this Section 7 is for any reason held to be
unavailable from the indemnifying party, or is insufficient to hold harmless a
party indemnified under this Section 7, each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of such
aggregate Losses (i) in such proportion as is appropriate to reflect the
relative benefits received by each indemnifying party, on the one hand, and each
indemnified party, on the other hand, from the sale of the Notes to the Initial
Purchasers or the resale of the Registrable Notes by such Holder, as applicable,
or (ii) if such allocation is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of each indemnified party, on
the one hand, and each indemnifying party, on the other hand, in connection with
the statements or omissions that resulted in such Losses, as well as any other
relevant equitable considerations. The relative benefits received by the Issuer
and the Guarantors, on the one hand, and each Participant, on the other hand,
shall be deemed to be in the same proportion as (x) the total proceeds from the
sale of the Notes to the Initial Purchasers (net of discounts and commissions
but before deducting expenses) received by the Issuer and the Guarantors are to
(y) the total net profit received by such Participant in connection with the
sale of the Registrable Notes. The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Issuer and Guarantors or
such Participant and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission or
alleged statement or omission.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
or by any other method of allocation that does not take into account the
equitable considerations referred to above. Notwithstanding the provisions of
this
18
Section 7, (i) in no case shall any Participant be required to contribute any
amount in excess of the amount by which the net profit received by such
Participant in connection with the sale of the Registrable Notes exceeds the
amount of any damages that such Participant has otherwise been required to pay
by reason of any untrue or alleged untrue statement or omission or alleged
omission and (ii) 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. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action against such party in respect of
which a claim for contribution may be made against another party or parties
under this Section 7, notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any obligation it
or they may have under this Section 7 or otherwise, except to the extent that it
has been prejudiced in any material respect by such failure; provided, however,
that no additional notice shall be required with respect to any action for which
notice has been given under this Section 7 for purposes of indemnification.
Anything in this section to the contrary notwithstanding, no party shall be
liable for contribution with respect to any action or claim settled without its
written consent, provided, however, that such written consent was not
unreasonably withheld.
Section 8. Rules 144 and 144A
The Issuer and each Guarantor covenants that it will file the reports
required, if any, to be filed by it under the Securities Act and the Exchange
Act and the rules and regulations adopted by the Commission thereunder in a
timely manner in accordance with the requirements of the Securities Act and the
Exchange Act and, if at any time the Issuer is not required to file such
reports, it will, upon the request of any Holder or beneficial owner of
Registrable Notes, make available such information necessary to permit sales
pursuant to Rule 144A under the Securities Act. The Issuer and each Guarantor
further covenants that for so long as any Registrable Notes remain outstanding
it will take such further action as any Holder of Registrable Notes may
reasonably request from time to time to enable such Holder to sell Registrable
Notes without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144(k) and Rule 144A under the Securities Act,
as such Rules may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the Commission.
Section 9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the investment banker or
investment bankers and manager or managers that will manage the offering will be
selected by the Holders of a majority in aggregate principal amount of such
Registrable Notes included in such offering and shall be reasonably acceptable
to the Issuer.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder if such Holder does not (a) agree to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
complete and execute all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
Section 10. Miscellaneous
(a) No Inconsistent Agreements. The Issuer and each of the Guarantors
have not, as of the date hereof, and shall not have, after the date of this
Agreement, entered into any agreement with respect to any of its securities that
is inconsistent with the rights granted to the Holders of Registrable Notes in
this Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the
19
Holders hereunder do not conflict with and are not inconsistent with, in any
material respect, the rights granted to the holders of any of the Issuer's and
the Guarantors' other issued and outstanding securities under any such
agreements. The Issuer and each of the Guarantors have not entered and will not
enter into any agreement with respect to any of its securities which will grant
to any Person piggy-back registration rights with respect to any Registration
Statement.
(b) Adjustments Affecting Registrable Notes. The Issuer and the
Guarantors shall not, directly or indirectly, take any action with respect to
the Registrable Notes as a class that would adversely affect the ability of the
Holders of Registrable Notes to include such Registrable Notes in a registration
undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given except pursuant to a written agreement
duly signed and delivered by (i) the Issuer and the Guarantors and (ii)(A) the
Holders of not less than a majority in aggregate principal amount of the then
outstanding Registrable Notes and (B) in circumstances that would adversely
affect the Participating Broker-Dealers, the Participating Broker-Dealers
holding not less than a majority in aggregate principal amount of the Exchange
Notes held by all Participating Broker-Dealers; provided, however, that Section
7 and this Section 10(c) may not be amended, modified or supplemented except
pursuant to a written agreement duly signed and delivered by the Issuer and the
Guarantors and each Holder and each Participating Broker-Dealer (including any
Person who was a Holder or Participating Broker-Dealer of Registrable Notes or
Exchange Notes, as the case may be, disposed of pursuant to any Registration
Statement) affected by any such amendment, modification, supplement or waiver.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders of Registrable Notes whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect, impair,
limit or compromise the rights of other Holders of Registrable Notes may be
given by Holders of at least a majority in aggregate principal amount of the
Registrable Notes being sold pursuant to such Registration Statement.
(d) Notices. All notices and other communications (including, without
limitation, any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or telecopier:
(i) if to a Holder of the Registrable Notes or any Participating
Broker-Dealer, at the most current address of such Holder or Participating
Broker-Dealer, as the case may be, set forth on the records of the
registrar under the Indenture.
(ii) if to the Issuer or the Guarantors, at the address as follows:
Alamosa (Delaware), Inc.
c/o Alamosa Holdings, Inc.
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
with a copy to
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
20
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, III, Esq.
(iii) if to the Initial Purchasers, at the address as follows:
UBS Securities LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: High Yield Syndicate Department
With a copy at such address to the attention of Legal
Department, fax number (▇▇▇) ▇▇▇-▇▇▇▇
And a further copy to
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; when receipt is
acknowledged by the recipient's telecopier machine, if telecopied; and on the
next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto,
the Holders and the Participating Broker-Dealers; provided, however, that this
Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or assign holds
Registrable Notes.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(H) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
21
(i) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
(j) Securities Held by the Issuer, the Guarantors or Their Respective
Affiliates. Whenever the consent or approval of Holders of a specified
percentage of Registrable Notes is required hereunder, Registrable Notes held by
the Issuer, the Guarantors or any of their respective affiliates (as such term
is defined in Rule 405 under the Securities Act) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
(k) Third-Party Beneficiaries. Holders and beneficial owners of
Registrable Notes and Participating Broker-Dealers are intended third-party
beneficiaries of this Agreement, and this Agreement may be enforced by such
Persons. No other Person is intended to be, or shall be construed as, a
third-party beneficiary of this Agreement.
(l) Entire Agreement. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Holders on the one hand
and the Issuer and the Guarantors on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest or
successors in interest with respect to the subject matter hereof and thereof are
merged herein and replaced hereby.
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ALAMOSA (DELAWARE), INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
ALAMOSA PCS, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
ALAMOSA HOLDINGS, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
ALAMOSA WISCONSIN GP, LLC,
a Wisconsin limited liability company
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
ALAMOSA WISCONSIN LIMITED PARTNERSHIP,
a Wisconsin limited partnership
By: ALAMOSA WISCONSIN GP, L.L.C., a Wisconsin
limited liability company, as the sole
general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
ALAMOSA (WISCONSIN) PROPERTIES, LLC,
a Wisconsin limited liability company
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
ALAMOSA FINANCE, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
ALAMOSA LIMITED, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
ALAMOSA DELAWARE GP, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
TEXAS TELECOMMUNICATIONS, LP,
a Texas limited partnership
By: ALAMOSA DELAWARE GP, L.L.C.,
a Delaware limited liability company,
as the sole general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
ALAMOSA PROPERTIES, LP,
a Texas limited partnership
By: ALAMOSA DELAWARE GP, L.L.C.,
a Delaware limited liability company,
as the sole general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
ALAMOSA MISSOURI, LLC,
a Missouri limited liability company
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
ALAMOSA MISSOURI PROPERTIES, LLC,
a Missouri limited liability company
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
WASHINGTON OREGON WIRELESS, LLC,
a Oregon limited liability company
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
WASHINGTON OREGON WIRELESS PROPERTIES, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
WASHINGTON OREGON WIRELESS LICENSES, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
SWGP, L.L.C.,
an Oklahoma limited liability company
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
SWLP, L.L.C.,
an Oklahoma limited liability company
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
SOUTHWEST PCS, L.P.,
an Oklahoma limited partnership
By: SWGP, L.L.C.,
an Oklahoma limited liability company,
as the sole general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
SOUTHWEST PCS PROPERTIES, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
SOUTHWEST PCS LICENSES, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
UBS SECURITIES LLC,
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇ BROTHERS INC.
By: UBS Securities LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇
Title: Director
High Yield Capital Markets
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director