EXHIBIT 4.9
EXECUTION COPY
Alamosa (Delaware), Inc.
$250,000,000 12 1/2% Notes Due 2011
REGISTRATION RIGHTS AGREEMENT
New York, New York
January 24, 2001
Xxxxxxx Xxxxx Xxxxxx Inc.
TD Securities (USA) Inc.
Credit Suisse First Boston Corporation
First Union Securities, Inc.
Xxxxxx Brothers Inc.
Scotia Capital (USA) Inc.
As Representatives of the Initial Purchasers
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Alamosa (Delaware), Inc., a corporation organized under the
laws of the state of Delaware (the "Company"), proposes to issue and sell
to certain purchasers (the "Initial Purchasers"), upon the terms set forth
in a purchase agreement of even date herewith (the "Purchase Agreement"),
$250,000,000 principal amount of its 12 1/2% Notes Due 2011 (the
"Securities") relating to the initial placement of the Securities (the
"Initial Placement"). To induce the Initial Purchasers to enter into the
Purchase Agreement and to satisfy a condition of your obligations
thereunder, the Company and the Subsidiary Guarantors agree with you for
your benefit and the benefit of the holders from time to time of the
Securities (including the Initial Purchasers) (each a "Holder" and,
together, the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without
definition shall have the respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized defined
terms shall have the following meanings:
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Affiliate" of any specified person shall mean any other
person that, directly or indirectly, controls, is controlled by, or is
under common control with, such specified person. For purposes of this
definition, control of a person shall mean the power, direct or indirect,
to direct or cause the direction of the management and policies of such
person whether through the ownership of securities, by contract or
otherwise; and the terms "controlling" and "controlled" shall have meanings
correlative to the foregoing.
"Broker-Dealer" shall mean any broker or dealer registered
as such under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange
Commission.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission
promulgated thereunder.
"Exchange Offer Prospectus" shall mean the prospectus
included in the Exchange Offer Registration Statement, as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the New Securities covered by such Exchange
Offer Registration Statement, and all amendments and supplements thereto
and all material incorporated by reference therein.
"Exchange Offer Registration Period" shall mean the one-year
period following the consummation of the Registered Exchange Offer,
exclusive of any period during which any stop order shall be in effect
suspending the effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" shall mean a
registration statement of the Company on an appropriate form under the Act
with respect to the Registered Exchange Offer, all amendments and
supplements to such registration statement, including post-effective
amendments thereto, in each case including the Exchange Offer Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Exchanging Dealer" shall mean any Holder (which may include
any Initial Purchaser) that is a Broker-Dealer and elects to exchange for
New Securities any Securities that it acquired for its own account as a
result of market-making activities or other trading activities (but not
directly from the Company or any Affiliate of the Company).
"Holder" shall have the meaning set forth in the preamble
hereto.
"Indenture" shall mean the Indenture relating to the
Securities, dated as of January 31, 2001, between the Company and Xxxxx
Fargo Bank Minnesota, N.A., as trustee, as the same may be amended from
time to time in accordance with the terms thereof.
"Initial Placement" shall have the meaning set forth in the
preamble hereto.
"Initial Purchaser" shall have the meaning set forth in the
preamble hereto.
"Losses" shall have the meaning set forth in Section 6(d)
hereof.
"Majority Holders" shall mean the Holders of a majority of
the aggregate principal amount of Securities registered under a
Registration Statement.
"Managing Underwriters" shall mean the investment banker or
investment bankers and manager or managers that shall administer an
underwritten offering.
"New Securities" shall mean debt securities of the Company
identical in all material respects to the Securities (except that the
interest rate step-up provisions and the transfer restrictions shall be
modified or eliminated, as appropriate) and to be issued under the
Indenture or the New Securities Indenture.
"New Securities Indenture" shall mean an indenture between
the Company and the New Securities Trustee, identical in all material
respects to the Indenture (except that the cash interest and interest rate
step-up provisions will be modified or eliminated, as appropriate).
"New Securities Trustee" shall mean the Trustee or a bank or
trust company reasonably satisfactory to the Initial Purchasers, as trustee
with respect to the New Securities under the New Securities Indenture.
"Prospectus" shall mean the prospectus included in any
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of
an effective registration statement in reliance upon Rule 430A under the
Act), as amended or supplemented by any prospectus supplement, with respect
to the terms of the offering of any portion of the Securities or the New
Securities covered by such Registration Statement, and all amendments and
supplements thereto and all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble hereto.
"Registered Exchange Offer" shall mean the proposed offer of
the Company to issue and deliver to the Holders of the Securities that are
not prohibited by any law or policy of the Commission from participating in
such offer, in exchange for the Securities, a like aggregate principal
amount of the New Securities.
"Registration Statement" shall mean any Exchange Offer
Registration Statement or Shelf Registration Statement that covers any of
the Securities or the New Securities pursuant to the provisions of this
Agreement, any amendments and supplements to such registration statement,
including post-effective amendments (in each case including the Prospectus
contained therein), all exhibits thereto and all material incorporated by
reference therein.
"Securities" shall have the meaning set forth in the
preamble hereto.
"Shelf Registration" shall mean a registration effected
pursuant to Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in
Section 3(b) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company pursuant to the provisions of Section
3 hereof which covers some or all of the Securities or New Securities, as
applicable, on an appropriate form under Rule 415 under the Act, or any
similar rule that may be adopted by the Commission, amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the
Securities under the Indenture.
"underwriter" shall mean any underwriter of Securities in
connection with an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer. (a) Except to the extent that
Section 3(a) below shall apply, the Company shall prepare and, not later
than 90 days following the date of the original issuance of the Securities,
shall file with the Commission the Exchange Offer Registration Statement
with respect to the Registered Exchange Offer. The Company shall use its
reasonable best efforts to cause the Exchange Offer Registration Statement
to become effective under the Act within 180 days of the date of the
original issuance of the Securities.
(b) Upon the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder electing to exchange Securities for New Securities
(assuming that such Holder is not an Affiliate of the Company, acquires the
New Securities in the ordinary course of such Holder's business, has no
arrangements with any person to participate in the distribution of the New
Securities and is not prohibited by any law or policy of the Commission
from participating in the Registered Exchange Offer) to transfer such New
Securities from and after their receipt without any limitations or
restrictions under the Act and without material restrictions under the
securities laws of a substantial proportion of the several states of the
United States.
(c) In connection with the Registered Exchange Offer, the
Company shall:
(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less
than 20 Business Days after the date notice thereof is mailed to
the Holders (or longer if required by applicable law);
(iii) use its best efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented and
amended as required, under the Act to ensure that it is available
for sales of New Securities by Exchanging Dealers during the
Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in New
York City, which may be the Trustee, the New Securities Trustee or
an Affiliate of either of them;
(v) permit Holders to withdraw tendered Securities at any
time prior to the close of business, New York time, on the last
Business Day on which the Registered Exchange Offer is open;
(vi) prior to effectiveness of the Exchange Offer
Registration Statement, if requested or required by the Commission,
provide a supplemental letter to the Commission (A) stating that
the Company is conducting the Registered Exchange Offer in reliance
on the position of the Commission in Exxon Capital Holdings
Corporation (pub. avail. May 13, 1988) and Xxxxxx Xxxxxxx and Co.,
Inc. (pub. avail. June 5, 1991); and (B) including a representation
that the Company has not entered into any arrangement or
understanding with any person to distribute the New Securities to
be received in the Registered Exchange Offer and that, to the best
of the Company's information and belief, each Holder participating
in the Registered Exchange Offer is acquiring the New Securities in
the ordinary course of business and has no arrangement or
understanding with any person to participate in the distribution of
the New Securities; and
(vii) comply in all respects with all applicable laws
relating to the Registered Exchange Offer.
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Company shall:
(i) accept for exchange all Securities tendered and not
validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancelation in accordance
with Section 4(s) all Securities so accepted for exchange; and
(iii) issue and cause the New Securities Trustee promptly to
authenticate and deliver to each Holder of Securities a principal
amount of New Securities equal to the principal amount of the
Securities of such Holder so accepted for exchange.
(e) Each Holder hereby acknowledges and agrees that any such
Holder using the Registered Exchange Offer to participate in a distribution
of the New Securities (x) could not under Commission policy as in effect on
the date of this Agreement rely on the position of the Commission in Xxxxxx
Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991) and Exxon Capital Holdings
Corporation (pub. avail. May 13, 1988), as interpreted in the Commission's
letter to Xxxxxxxx & Sterling dated July 2, 1993 and similar no-action
letters; and (y) must comply with the registration and prospectus delivery
requirements of the Act in connection with any secondary resale transaction
which must be covered by an effective registration statement containing the
selling security holder information required by Item 507 or 508, as
applicable, of Regulation S-K under the Act if the resales are of New
Securities obtained by such Holder in exchange for Securities acquired by
such Holder directly from the Company or one of its Affiliates.
Accordingly, each Holder participating in the Registered Exchange Offer
shall be required to represent to the Company that, at the time of the
consummation of the Registered Exchange Offer:
(i) any New Securities received by such Holder will be
acquired in the ordinary course of business;
(ii) such Holder will have no arrangement or understanding
with any person to participate in the distribution of the
Securities or the New Securities within the meaning of the Act; and
(iii) such Holder is not an Affiliate of the Company.
(f) If any Initial Purchaser determines that it is not
eligible to participate in the Registered Exchange Offer with respect to
the exchange of Securities constituting any portion of an unsold allotment,
at the request of such Initial Purchaser, the Company shall issue and
deliver to such Initial Purchaser or the person purchasing New Securities
registered under a Shelf Registration Statement as contemplated by Section
3 hereof from such Initial Purchaser, in exchange for such Securities, a
like principal amount of New Securities. The Company shall use its best
efforts to cause the CUSIP Service Bureau to issue the same CUSIP number
for such New Securities as for New Securities issued pursuant to the
Registered Exchange Offer.
3. Shelf Registration. (a) If (i) due to any change in law
or applicable interpretations thereof by the Commission's staff, the
Company determines upon advice of its outside counsel that it is not
permitted to effect the Registered Exchange Offer as contemplated by
Section 2 hereof; (ii) for any other reason the Exchange Offer Registration
Statement is not declared effective within 180 days of the date of original
issuance of the Securities or the Registered Exchange Offer is not
consummated within 240 days of the date of original issuance of the
Securities; (iii) any Initial Purchaser so requests within 20 Business Days
following consummation of the Registered Exchange Offer with respect to
Securities that are not eligible to be exchanged for New Securities in the
Registered Exchange Offer and that are held by it following consummation of
the Registered Exchange Offer; (iv) any Holder (other than an Initial
Purchaser) who is not eligible to participate in the Registered Exchange
Offer or does not receive freely tradeable New Securities in the Registered
Exchange Offer other than by reason of such Holder being an Affiliate of
the Company so requests within 20 Business Days following consummation of
the Registered Exchange Offer; or (v) in the case of any Initial Purchaser
that participates in the Registered Exchange Offer or acquires New
Securities pursuant to Section 2(f) hereof, such Initial Purchaser does not
receive freely tradeable New Securities in exchange for Securities
constituting any portion of an unsold allotment and so requests within 20
Business Days following consummation of the Registered Exchange Offer and
(it being understood that (x) the requirement that an Initial Purchaser
deliver a Prospectus containing the information required by Item 507 or 508
of Regulation S-K under the Act in connection with sales of New Securities
acquired in exchange for such Securities shall result in such New
Securities being not "freely tradeable"; and (y) the requirement that an
Exchanging Dealer deliver an Exchange Offer Prospectus in connection with
sales of New Securities acquired in the Registered Exchange Offer in
exchange for Securities acquired as a result of market-making activities or
other trading activities shall not result in such New Securities being not
"freely tradeable"), the Company shall effect a Shelf Registration in
accordance with subsection (b) below.
(b) (i) The Company shall as promptly as practicable (but in
no event more than 60 days after so required or requested pursuant to this
Section 3), file with the Commission and thereafter shall use its
reasonable best efforts to cause to be declared effective under the Act a
Shelf Registration Statement relating to the offer and sale of the
Securities or the New Securities, as applicable, by the Holders thereof
from time to time in accordance with the methods of distribution elected by
such Holders and set forth in such Shelf Registration Statement; provided,
however, that no Holder (other than an Initial Purchaser) shall be entitled
to have the Securities held by it covered by such Shelf Registration
Statement unless such Holder agrees in writing to be bound by all of the
provisions of this Agreement applicable to such Holder and provides to the
Company in writing within 15 days after receipt of a request therefor such
information as the Company may reasonably request for inclusion in the
Shelf Registration Statement or any Prospectus included therein; and
provided further, that with respect to New Securities received by an
Initial Purchaser in exchange for Securities constituting any portion of an
unsold allotment, the Company may, if permitted by current interpretations
by the Commission's staff, file a post-effective amendment to the Exchange
Offer Registration Statement containing the information required by Item
507 or 508 of Regulation S-K, as applicable, in satisfaction of its
obligations under this subsection with respect thereto, and any such
Exchange Offer Registration Statement, as so amended, shall be referred to
herein as, and governed by the provisions herein applicable to, a Shelf
Registration Statement. In the event that facts and circumstances with
respect to a particular Holder change in a manner that would make the
disclosure about such Holder contained in the Shelf Registration Statement
materially misleading, each Holder as to which the Shelf Registration is
being effected agrees to furnish to the Company all information with
respect to such Holder necessary to make the information previously
furnished to the Company by such Holder for inclusion in the Shelf
Registration Statement not materially misleading.
(ii) The Company shall use its reasonable best efforts to
keep the Shelf Registration Statement continuously effective, supplemented
and amended as required by the Act, in order to permit the Prospectus
forming part thereof to be usable by Holders until the earliest of (A) two
years from the date the Shelf Registration Statement is declared effective
by the Commission, (B) such time as all the Securities or New Securities,
as applicable, covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement, and (C) such time as the
Securities or New Securities, as applicable, covered by the Shelf
Registration Statement are eligible for resale pursuant to Rule 144(k) of
the Act (in any such case, such period being called the "Shelf Registration
Period"). The Company shall be deemed not to have used its best efforts to
keep the Shelf Registration Statement effective during the requisite period
if it voluntarily takes any action that would result in Holders of
Securities covered thereby not being able to offer and sell such Securities
during that period, unless (A) such action is required by applicable law;
or (B) such action is taken by the Company in good faith and for valid
business reasons (not including avoidance of the Company's obligations
hereunder), including the acquisition or divestiture of assets, so long as
the Company promptly thereafter complies with the requirements of Section
4(k) hereof, if applicable.
4. Additional Registration Procedures. In connection with
any Shelf Registration Statement and, to the extent applicable, any
Exchange Offer Registration Statement, the following provisions shall
apply.
(a) The Company shall:
(i) furnish to you, not less than five Business Days prior
to the filing thereof with the Commission, a copy of any Exchange
Offer Registration Statement and any Shelf Registration Statement,
and each amendment thereof and each amendment or supplement, if
any, to the Prospectus included therein (excluding any amendments
effected by filing any documents incorporated by reference therein
after the initial filing) and shall provide you with a reasonable
opportunity to provide comments thereon;
(ii) include the information set forth in Annex A hereto on
the facing page of the Exchange Offer Registration Statement, in
Annex B hereto in the forepart of the Exchange Offer Registration
Statement in a section setting forth details of the Exchange Offer,
in Annex C hereto in the underwriting or plan of distribution
section of the Prospectus contained in the Exchange Offer
Registration Statement, and in Annex D hereto in the letter of
transmittal delivered pursuant to the Registered Exchange Offer;
(iii) if requested by an Initial Purchaser, include the
information required by Item 507 or 508 of Regulation S-K, as
applicable, in the Prospectus contained in the Exchange Offer
Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include
the names of the Holders that propose to sell Securities pursuant
to the Shelf Registration Statement as selling security holders.
(b) The Company shall use its reasonable best efforts to
ensure that:
(i) any Registration Statement and any amendment thereto and
any Prospectus forming part thereof and any amendment or supplement
thereto complies in all material respects with the Act and the
rules and regulations thereunder;
(ii) any Registration Statement and any amendment thereto
does not, when it becomes effective, contain an untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and
(iii) any Prospectus forming part of any Registration
Statement, and any amendment or supplement to such Prospectus, does
not include an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(c) The Company shall advise you, the Holders of Securities
covered by any Shelf Registration Statement and any Exchanging Dealer under
any Exchange Offer Registration Statement that has provided in writing to
the Company a telephone or facsimile number and address for notices, and,
if requested by you or any such Holder or Exchanging Dealer, shall confirm
such advice in writing (which notice pursuant to clauses (ii) through (v)
hereof shall be accompanied by an instruction to suspend the use of the
Prospectus until the Company shall have remedied the basis for such
suspension):
(i) when a Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration
Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities
included therein for sale in any jurisdiction or the initiation of
any proceeding for such purpose; and
(v) of the happening of any event that requires any change
in the Registration Statement or the Prospectus so that, as of such
date, the statements therein are not misleading and do not omit to
state a material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, in the
light of the circumstances under which they were made) not
misleading.
(d) The Company shall use its best efforts to obtain the
withdrawal of any order suspending the effectiveness of any Registration
Statement or the qualification of the securities therein for sale in any
jurisdiction at the earliest possible time.
(e) The Company shall furnish to each Holder of Securities
covered by any Shelf Registration Statement, without charge, at least one
copy of such Shelf Registration Statement and any post-effective amendment
thereto, and, if the Holder so requests in writing, all material
incorporated therein by reference and all exhibits thereto (including
exhibits incorporated by reference therein).
(f) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Securities covered by any Shelf Registration
Statement, without charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in such Shelf Registration Statement and
any amendment or supplement thereto as such Holder may reasonably request.
The Company consents to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of Securities in
connection with the offering and sale of the Securities covered by the
Prospectus, or any amendment or supplement thereto, included in the Shelf
Registration Statement.
(g) The Company shall furnish to each Exchanging Dealer
which so requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, and, if
the Exchanging Dealer so requests in writing, all material incorporated by
reference therein and all exhibits thereto (including exhibits incorporated
by reference therein).
(h) The Company shall promptly deliver to each Initial
Purchaser, each Exchanging Dealer and each other person required to deliver
a Prospectus during the Exchange Offer Registration Period, without charge,
as many copies of the Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as any such
person may reasonably request. The Company consents to the use of the
Prospectus or any amendment or supplement thereto by any Initial Purchaser,
any Exchanging Dealer and any such other person that may be required to
deliver a Prospectus following the Registered Exchange Offer in connection
with the offering and sale of the New Securities covered by the Prospectus,
or any amendment or supplement thereto, included in the Exchange Offer
Registration Statement.
(i) Prior to the Registered Exchange Offer or any other
offering of Securities pursuant to any Registration Statement, the Company
shall arrange, if necessary, for the qualification of the Securities or the
New Securities for sale under the state securities or "blue sky" laws of
such jurisdictions as any Holder shall reasonably request and will maintain
such qualification in effect so long as required; provided that in no event
shall the Company be obligated to qualify to do business in any
jurisdiction where it is not then so qualified or to take any action that
would subject it to service of process in suits, in any such jurisdiction
where it is not then so subject or to taxation in any such jurisdiction in
which it is not then so subject.
(j) The Company shall cooperate with the Holders of
Securities to facilitate the timely preparation and delivery of
certificates representing New Securities or Securities to be issued or sold
pursuant to any Registration Statement free of any restrictive legends and
in such denominations and registered in such names as Holders may request.
(k) Upon the occurrence of any event contemplated by
subsections (c)(ii) through (v) above, the Company shall promptly prepare a
post-effective amendment to the applicable Registration Statement or an
amendment or supplement to the related Prospectus or file any other
required document so that, as thereafter delivered to Initial Purchasers of
the securities included therein, the Prospectus will not include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading. In such circumstances, the period of
effectiveness of the Exchange Offer Registration Statement provided for in
Section 2 shall be extended by the number of days from and including the
date of the giving of a notice of suspension pursuant to Section 4(c) to
and including the date when the Initial Purchasers, the Holders of the
Securities and any known Exchanging Dealer shall have received such amended
or supplemented Prospectus pursuant to this Section.
(l) Not later than the effective date of any Registration
Statement, the Company shall obtain a CUSIP number for the Securities or
the New Securities, as the case may be, registered under such Registration
Statement and provide the Trustee with printed certificates for such
Securities or New Securities, in a form eligible for deposit with The
Depository Trust Company.
(m) The Company shall comply with all applicable rules and
regulations of the Commission and shall make generally available to its
security holders as soon as practicable after the effective date of the
applicable Registration Statement an earnings statement satisfying the
provisions of Section 11(a) of the Act.
(n) The Company shall cause the Indenture or the New
Securities Indenture, as the case may be, to be qualified under the Trust
Indenture Act in a timely manner as required by the TIA.
(o) The Company may require each Holder of Securities to be
sold pursuant to any Shelf Registration Statement and each Exchanging
Dealer holding Securities to be sold pursuant to the Exchange Offer
Registration Statement to furnish to the Company such information regarding
the Holder and the distribution of such Securities as the Company may from
time to time reasonably require for inclusion in such Registration
Statement. The Company may exclude from such Shelf Registration Statement
or Exchange Offer Registration Statement the Securities of any Holder that
unreasonably fails to furnish such information within a reasonable time
after receiving such request.
(p) In the case of any Shelf Registration Statement, the
Company shall enter into such agreements (including if requested an
underwriting agreement in customary form) and take all other appropriate
actions in order to expedite or facilitate the registration or the
disposition of the Securities, and in connection therewith, if an
underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those set
forth in Section 6 (or such other indemnification provisions and procedures
acceptable to the Majority Holders and the Managing Underwriters, if any)
with respect to all parties to be indemnified pursuant to Section 6.
(q) In the case of any Shelf Registration Statement, the
Company shall:
(i) make reasonably available for inspection by the Majority
Holders of Securities to be registered thereunder, any underwriter
participating in any disposition pursuant to such Registration
Statement, and any attorney, accountant or other agent retained by
the Majority Holders or any such underwriter all relevant financial
and other records, pertinent corporate documents and properties of
the Company and its subsidiaries as shall be reasonably necessary
to enable them to exercise any applicable due diligence
responsibilities; provided, however, that any information that is
provided by the Company shall be kept confidential by the Majority
Holders or any such underwriter, attorney, accountant or agent,
unless such disclosure involves information that is generally
available to the public on a non-confidential basis, is made in
connection with a court proceeding or required by law, or involves
information that becomes available to the public generally (other
than by disclosure by the Holder or any such underwriter, attorney,
accountant or agent in violation of this agreement) or through a
third party without an accompanying obligation of confidentiality;
(ii) cause the Company's officers, directors and employees
to supply all relevant information reasonably requested by the
Majority Holders or any such underwriter, attorney, accountant or
agent in connection with any such Registration Statement as is
customary for similar due diligence examinations; provided,
however, that any information that is provided by the Company shall
be kept confidential by the Majority Holders or any such
underwriter, attorney, accountant or agent, unless such disclosure
involves information that is generally available to the public on a
non-confidential basis, is made in connection with a court
proceeding or required by law, or involves information that becomes
available to the public generally (other than by disclosure by the
Holder or any such underwriter, attorney, accountant or agent in
violation of this agreement) or through a third party without an
accompanying obligation of confidentiality;
(iii) make such representations and warranties to the
Majority Holders of Securities registered thereunder and the
underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in primary underwritten
offerings and covering matters including, but not limited to, those
set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Managing Underwriters, if
any) addressed to each selling Majority Holder and the
underwriters, if any, covering such matters as are customarily
covered in opinions requested in underwritten offerings and such
other matters as may be reasonably requested by such Holders and
underwriters;
(v) obtain "cold comfort" letters and updates thereof from
the independent certified public accountants of the Company (and,
if necessary, any other independent certified public accountants of
any subsidiary of the Company or of any business acquired by the
Company for which financial statements and financial data are, or
are required to be, included in the Registration Statement),
addressed to each selling Majority Holder of Securities registered
thereunder and the underwriters, if any, in customary form in
accordance with SAS 72 and covering matters of the type customarily
covered in "cold comfort" letters in connection with primary
underwritten offerings; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the Managing
Underwriters, if any, including those to evidence compliance with
Section 4(k) and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the
Company.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this
subsection shall be performed at (A) the effectiveness of such Registration
Statement and each post-effective amendment thereto; and (B) each closing
under any underwriting or similar agreement as and to the extent required
thereunder.
(r) In the case of any Exchange Offer Registration
Statement, the Company shall:
(i) make reasonably available for inspection by such Initial
Purchaser, and any attorney, accountant or other agent retained by
such Initial Purchaser, all relevant financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries; provided, however, that any information that is
provided by the Company shall be kept confidential by the Majority
Holders or any such underwriter, attorney, accountant or agent,
unless such disclosure involves information that is generally
available to the public on a non-confidential basis, is made in
connection with a court proceeding or required by law, or involves
information that becomes available to the public generally (other
than by disclosure by the Holder or any such underwriter, attorney,
accountant or agent in violation of this agreement) or through a
third party without an accompanying obligation of confidentiality;
(ii) cause the Company's officers, directors and employees
to supply all relevant information reasonably requested by such
Initial Purchaser or any such attorney, accountant or agent in
connection with any such Registration Statement as is customary for
similar due diligence examinations; provided, however, that any
information that is provided by the Company shall be kept
confidential by such Initial Purchaser or any such attorney,
accountant or agent, unless such disclosure involves information
that is generally available to the public on a non-confidential
basis, is made in connection with a court proceeding or required by
law, or involves information that becomes available to the public
generally (other than by disclosure by the Holder or any such
underwriter, attorney, accountant or agent in violation of this
agreement) or through a third party without an accompanying
obligation of confidentiality;
(iii) make such representations and warranties to such
Initial Purchaser, in form, substance and scope as are customarily
made by issuers to underwriters in primary underwritten offerings
and covering matters including, but not limited to, those set forth
in the Purchase Agreement;
(iv) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to such Initial Purchaser and its
counsel, addressed to such Initial Purchaser, covering such matters
as are customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by
such Initial Purchaser or its counsel;
(v) obtain "cold comfort" letters and updates thereof from
the independent certified public accountants of the Company (and,
if necessary, any other independent certified public accountants of
any subsidiary of the Company or of any business acquired by the
Company for which financial statements and financial data are, or
are required to be, included in the Registration Statement),
addressed to such Initial Purchaser, in customary form in
accordance with SAS 72 and covering matters of the type customarily
covered in "cold comfort" letters in connection with primary
underwritten offerings, or if requested by such Initial Purchaser
or its counsel in lieu of a "cold comfort" letter, an agreed-upon
procedures letter under Statement on Auditing Standards No. 35,
covering matters requested by such Initial Purchaser or its
counsel; and
(vi) deliver such documents and certificates as may be
reasonably requested by such Initial Purchaser or its counsel,
including those to evidence compliance with Section 4(k) and with
conditions customarily contained in underwriting agreements.
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of
this subsection shall be performed at the close of the Registered Exchange
Offer and the effective date of any post-effective amendment to the
Exchange Offer Registration Statement.
(s) If a Registered Exchange Offer is to be consummated,
upon delivery of the Securities by Holders to the Company (or to such other
person as directed by the Company) in exchange for the New Securities, the
Company shall mark, or cause to be marked, on the Securities so exchanged
that such Securities are being canceled in exchange for the New Securities.
In no event shall the Securities be marked as paid or otherwise satisfied.
(t) The Company will use its reasonable best efforts (i) if
the Securities have been rated prior to the initial sale of such
Securities, to confirm such ratings will apply to the Securities or the New
Securities, as the case may be, covered by a Registration Statement; or
(ii) if the Securities were not previously rated, to cause the Securities
covered by a Registration Statement to be rated with at least one
nationally recognized statistical rating agency, if so requested by
Majority Holders with respect to the related Registration Statement or by
any Managing Underwriters.
(u) In the event that any Broker-Dealer shall underwrite any
Securities or participate as a member of an underwriting syndicate or
selling group or "assist in the distribution" (within the meaning of the
Rules of Fair Practice and the By-Laws of the National Association of
Securities Dealers, Inc.) thereof, whether as a Holder of such Securities
or as an underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, the Company shall assist such Broker-Dealer
in complying with the requirements of such Rules and By-Laws, including,
without limitation, by:
(i) if such Rules or By-Laws shall so require, engaging a
"qualified independent underwriter" (as defined in such Rules) to
participate in the preparation of the Registration Statement, to
exercise usual standards of due diligence with respect thereto and,
if any portion of the offering contemplated by such Registration
Statement is an underwritten offering or is made through a
placement or sales agent, to recommend the yield of such
Securities;
(ii) indemnifying any such qualified independent underwriter
to the extent of the indemnification of underwriters provided in
Section 6 hereof; and
(iii) providing such information to such Broker-Dealer as
may be required in order for such Broker-Dealer to comply with the
requirements of such Rules.
(v) The Company shall use its reasonable best efforts to
take all other steps reasonably necessary to effect the registration of the
Securities or the New Securities, as the case may be, covered by a
Registration Statement.
5. Registration Expenses. The Company shall bear all
expenses incurred in connection with the performance of its obligations
under Sections 2, 3 and 4 hereof and, in the event of any Shelf
Registration Statement, will reimburse the Holders for the reasonable fees
and disbursements of one firm or counsel designated by the Majority Holders
to act as counsel for the Holders in connection therewith, and, in the case
of any Exchange Offer Registration Statement, will reimburse the Initial
Purchasers for the reasonable fees and disbursements of counsel acting in
connection therewith. Each Holder shall pay all expenses of its other
advisors, experts or agents, all underwriting discounts and commissions and
all transfer taxes, if any in combination with the sale or disposition of
such Holder's Registrable Securities pursuant to any Registration
Statement.
6. Indemnification and Contribution. (a) The Company agrees
to indemnify and hold harmless each Holder of Securities or New Securities,
as the case may be, covered by any Registration Statement (including each
Initial Purchaser and, with respect to any Prospectus delivery as
contemplated in Section 4(h) hereof, each Exchanging Dealer), the
directors, officers, employees and agents of each such Holder and each
person who controls any such Holder within the meaning of either the Act or
the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (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 the Registration Statement as originally filed
or in any amendment thereof, or in any preliminary Prospectus or the
Prospectus, or in any amendment thereof 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 agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any such Holder specifically
for inclusion therein. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
The Company also agrees to indemnify or contribute as
provided in Section 6(d) to Losses of each underwriter of Securities or New
Securities, as the case may be, registered under a Shelf Registration
Statement, their directors, officers, employees or agents and each person
who controls such underwriter on substantially the same basis as that of
the indemnification of the Initial Purchasers and the selling Holders
provided in this Section 6(a) and shall, if requested by any Holder, enter
into an underwriting agreement reflecting such agreement, as provided in
Section 4(p) hereof.
(b) Each Holder of securities covered by a Registration
Statement (including each Initial Purchaser and, with respect to any
Prospectus delivery as contemplated in Section 4(h) hereof, each Exchanging
Dealer) severally and not jointly agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs such
Registration Statement, each of the Company's employees and agents and each
person who controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the
Company to each such Holder, but only with reference to written information
relating to such Holder furnished to the Company by or on behalf of such
Holder specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph
(a) or (b) above unless and to the extent it did not otherwise learn of
such action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses; and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a)
or (b) above. The indemnifying party shall be entitled to appoint counsel
of the indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below); provided,
however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the use
of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest; (ii) the
actual or potential defendants in, or targets of, any such action include
both the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different from
or additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after its receipt of notice of the institution of such
action; or (iv) the indemnifying party shall authorize the indemnified
party in writing to employ separate counsel at the expense of the
indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent
to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless
such settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section is unavailable to or insufficient to hold
harmless an indemnified party for any reason, then each applicable
indemnifying party shall have a joint and several obligation to contribute
to the aggregate losses, claims, damages and liabilities (including legal
or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which such indemnified party may
be subject in such proportion as is appropriate to reflect the relative
benefits received by such indemnifying party, on the one hand, and such
indemnified party, on the other hand, from the Initial Placement and the
Registration Statement which resulted in such Losses; provided, however,
that in no case shall any Initial Purchaser or any subsequent Holder of any
Security or New Security be responsible, in the aggregate, for any amount
in excess of the purchase discount or commission applicable to such
Security, or in the case of a New Security, applicable to the Security that
was exchangeable into such New Security, nor shall any underwriter be
responsible for any amount in excess of the underwriting discount or
commission applicable to the securities purchased by such underwriter under
the Registration Statement which resulted in such Losses. If the allocation
provided by the immediately preceding sentence is unavailable for any
reason, the indemnifying party and the indemnified party shall contribute
in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of such indemnifying party, on the one
hand, and such indemnified party, on the other hand, in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company shall
be deemed to be equal to the sum of (x) the total net proceeds from the
Initial Placement (before deducting expenses) and (y) the total amount of
additional interest which the Company was not required to pay as a result
of registering the securities covered by the Registration Statement which
resulted in such Losses. Benefits received by the Initial Purchasers shall
be deemed to be equal to the total purchase discounts and commissions
received by the Initial Purchasers, and benefits received by any other
Holders shall be deemed to be equal to the value of receiving Securities or
New Securities, as applicable, registered under the Act. Benefits received
by any underwriter shall be deemed to be equal to the total underwriting
discounts and commissions, as set forth on the cover page of the Prospectus
forming a part of the Registration Statement which resulted in such Losses.
Relative fault shall be determined by reference to, among other things,
whether any alleged untrue statement or omission relates to information
provided by the indemnifying party, on the one hand, or by the indemnified
party, on the other hand, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The parties agree that it would not be just
and equitable if contribution were determined by pro rata allocation (even
if the Holders were treated as one entity for such purpose) or any other
method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section, each person who controls a Holder within the
meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of such Holder shall have the same rights to
contribution as such Holder, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of
the Company who shall have signed the Registration Statement and each
director employee and agent of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms
and conditions of this paragraph (d). In the event that in a final,
non-appealable judgment a court of competent jurisdiction enters a ruling
to the effect that a party that has received an indemnification payment
under this Section 6 is not entitled to such payment, then such party shall
repay such portion of the indemnification payment that has been disallowed
by such judgment to the indemnifying party.
(e) The provisions of this Section will remain in full force
and effect, regardless of any investigation made by or on behalf of any
Holder or the Company or any of the directors, officers, employees, agents
or controlling persons referred to in this Section hereof, and will survive
the sale by a Holder of securities covered by a Registration Statement.
7. Underwritten Registrations. (a) If any of the Securities
or New Securities, as the case may be, covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the Managing
Underwriters shall be selected by the Majority Holders.
(b) No person may participate in any underwritten offering
pursuant to any Shelf Registration Statement, unless such person (i) agrees
to sell such person's Securities or New Securities, as the case may be, on
the basis reasonably 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. No Inconsistent Agreements. The Company has not, as of
the date hereof, entered into, nor shall it, on or after the date hereof,
enter into, any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
9. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the
written consent of the Holders of at least a majority of the then
outstanding aggregate principal amount of Securities (or, after the
consummation of any Registered Exchange Offer in accordance with Section 2
hereof, of New Securities); provided that, with respect to any matter that
materially and adversely affects the rights of any Initial Purchaser under
Sections 2, 3, 5 or 6 of this Agreement, the Company shall obtain the
written consent of each such Initial Purchaser against which such
amendment, qualification, supplement, waiver or consent is to be effective.
Notwithstanding the foregoing (except the foregoing proviso), a waiver or
consent to departure from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders whose Securities or New
Securities, as the case may be, are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect the rights of
other Holders may be given by the Majority Holders, determined on the basis
of Securities or New Securities, as the case may be, being sold rather than
registered under such Registration Statement.
10. Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telex, telecopier or air courier guaranteeing overnight
delivery:
(a) if to a Holder, at the most current address given by
such Holder to the Company in accordance with the provisions of this
Section, which address initially is, with respect to each Holder, the
address of such Holder maintained by the Registrar under the Indenture,
with a copy in like manner to Xxxxxxx Xxxxx Xxxxxx Inc.
(b) if to you, initially at the respective addresses set
forth in the Purchase Agreement; and
(c) if to the Company, initially at its address set forth in
the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given when received.
The Initial Purchasers or the Company by notice to the other
parties may designate additional or different addresses for subsequent
notices or communications.
11. Successors. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties,
including, without the need for an express assignment or any consent by the
Company thereto, subsequent Holders of Securities and the New Securities.
The Company hereby agrees to extend the benefits of this Agreement to any
Holder of Securities and the New Securities, and any such Holder may
specifically enforce the provisions of this Agreement as if an original
party hereto.
12. Counterparts. This Agreement may be in signed
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
13. Headings. The headings used herein are for convenience
only and shall not affect the construction hereof.
14. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable
to contracts made and to be performed in the State of New York.
15. Severability. In the event that any one of more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for
any reason, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions hereof shall not be
in any way impaired or affected thereby, it being intended that all of the
rights and privileges of the parties shall be enforceable to the fullest
extent permitted by law.
16. Securities Held by the Company, etc. Whenever the
consent or approval of Holders of a specified percentage of principal
amount of Securities or New Securities is required hereunder, Securities or
New Securities, as applicable, held by the Company or its Affiliates shall
be disregarded and deemed not to be outstanding in determining whether such
consent or approval was given by the Holders of such required percentage.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement among the Company and the several Initial Purchasers.
Very truly yours,
Alamosa (Delaware), Inc.
By
/s/ Xxxxx Xxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chairman of the Board and CEO
On Behalf of the Subsidiary
Guarantors set forth on
Schedule I hereto (other than
Alamosa Limited, LLC):
By:
/s/ Xxxxx Xxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chairman of the Board and CEO
Alamosa Limited, LLC
By:
/s/ Xxxxx X. Xxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxx
Title: Manager and Vice President
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Xxxxxxx Xxxxx Xxxxxx Inc.
TD Securities (USA) Inc.
Credit Suisse First Boston Corporation
First Union Securities, Inc.
Xxxxxx Brothers Inc.
Scotia Capital (USA) Inc.
By: Xxxxxxx Xxxxx Xxxxxx Inc.
by
/s/ Xxxxxxx Xxxxxx
---------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
For themselves and the other
several Initial Purchasers named
in Schedule I to the Purchase Agreement.
