ALLTEL COMMUNICATIONS, INC. ALLTEL COMMUNICATIONS FINANCE, INC. $810,000,000 10.375%/11.125% Senior Toggle Notes due 2017 GSMP Registration Rights Agreement
Exhibit 10.3
ALLTEL
COMMUNICATIONS, INC.
ALLTEL
COMMUNICATIONS FINANCE, INC.
$810,000,000
10.375%/11.125% Senior Toggle Notes due 2017
GSMP
Registration Rights Agreement
December
3, 2007
GSMP
V
Onshore US, Ltd.,
GSMP
V
Offshore US, Ltd and
GSMP
V
Institutional US, Ltd
Collectively,
as the GSMP Purchasers
c/o
Goldman, Xxxxx & Co.,
00
Xxxxx
Xxxxxx,
Xxx
Xxxx,
Xxx Xxxx 00000
Tel.:
000-000-0000
Attention:
Xxxx Xxxxxxxxx
Ladies
and Gentlemen:
Alltel
Communications, Inc. (“ACI”) and Alltel Communications Finance, Inc.
(together with ACI, the “Issuer Subs”), corporations organized under the
laws of Delaware, propose to issue and sell to certain initial purchasers (the
“Initial Purchasers”) their $ 1,000,000,000 principal amount of
10.375%/11.125% Senior Toggle Notes due 2017 (the “Senior Toggle Notes”),
upon the terms set forth in the Purchase Agreement among Alltel Corporation,
a
corporation organized under the laws of Delaware (the “Company”), the
Issuer Subs, the Subsidiary Guarantors (as defined below) and the
Representatives (as defined therein) dated November 16, 2007 (the “Purchase
Agreement”) relating to the initial placement of the Securities (as defined
below). Senior Toggle Notes in the principal amount of $190,000,000
purchased by the Initial Purchasers are entitled to the benefits of the
Registration Rights Agreement entered into among the Company, the Issuer Subs,
the Subsidiary Guarantors and the Representatives (as defined therein), dated
December 3, 2007 (the “Initial Purchasers’ Registration Rights
Agreement”).
The
Issuers (as defined below) acknowledge that the Initial Purchasers will resell
(the “Placement”) $810,000,000 in principal amount of Senior Toggle Notes
to certain purchasers parties hereto (the “GSMP
Purchasers”). In order to induce the GSMP Purchasers to purchase
the Senior Toggle Notes, the Issuers are willing to grant to the GSMP
Purchasers, together with the holders from time to time of the GSMP Securities
(as defined below) (each a “Holder” and, collectively, the
“Holders”) registration rights substantially similar to those set forth
in the Initial Purchasers’ Registration Rights Agreement.
The
Senior Toggle Notes will be unconditionally guaranteed on a senior unsecured
basis (the “Guarantees” and together with the Senior Toggle Notes, the
“Securities”) by the subsidiary guarantors listed on the signature pages
hereto (the “Subsidiary Guarantors”) and the Company (collectively, the
“Guarantors” and, together with the Issuer Subs, the
“Issuers”).
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Accordingly,
the Issuers agree with you for your benefit and the benefit of the Holders
as
follows:
1. Definitions. Capitalized
terms used herein without definition shall have their respective meanings set
forth in the Initial Purchaser Registration Rights Agreement, except where
otherwise indicated. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
“Affiliate”
shall have the meaning specified in Rule 405 under the Act and the terms
“controlling” and “controlled” shall have meanings correlative
thereto.
“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.
“Closing
Date” shall mean the date of the first issuance of the
Securities.
“Commission”
shall mean the Securities and Exchange Commission.
“Conduct
Rules” shall mean the Conduct Rules and the By-Laws of the Financial
Industry Regulatory Authority.
“Effective
Time” shall mean the time and date as of which the Commission declares the
Shelf Registration Statement effective or as of which the Shelf Registration
Statement otherwise becomes effective pursuant to the Securities
Act.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder.
“Final
Memorandum” shall mean the offering memorandum, dated November 16, 2007,
relating to the offer and sale of the Securities, including any and all exhibits
thereto and any information incorporated by reference therein as of such
date.
“GSMP
Purchasers” shall have the meaning set forth in the preamble
hereto.
“GSMP
Securities” shall mean $810,000,000 of Senior Toggle Notes
purchased by GSMP Purchasers and the related Guarantees.
“Guarantees”
shall have the meaning set forth in the preamble hereto.
“Guarantors”
shall have the meaning set forth in the preamble hereto.
“Holder”
shall have the meaning set forth in the preamble hereto.
“Indenture”
shall mean the Indenture relating to the Securities, dated as of December 3,
2007, among the Issuers and Xxxxx Fargo Bank, National Association, as trustee,
as the same may be amended from time to time in accordance with the terms
thereof.
“Issuers”
shall have the meaning set forth in the preamble hereto.
“Issuer
Subs” shall have the meaning set forth in the preamble hereto.
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“Losses”
shall have the meaning set forth in Section 5(d) hereof.
“Majority
Holders” shall mean, on any date, 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 administer an underwritten offering, if any, under
a
Registration Statement.
“New
Securities” shall mean debt securities of the Issuer Subs and guarantees by
the Guarantors, in each case identical in all material respects to the Senior
Toggle Notes and the related Guarantees (except that the transfer restrictions
shall be modified or eliminated, as appropriate) to be issued under the
Indenture in connection with sales effected pursuant to the Shelf Registration
Statement.
“Placement”
shall have the meaning set forth in the preamble hereto.
“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 GSMP Securities covered by such Registration Statement, and all
amendments and supplements thereto, including any and all exhibits thereto
and
any information incorporated by reference therein.
“Purchase
Agreement” shall have the meaning set forth in the preamble
hereto.
“Request
Date” shall have the meaning set forth in Section 2(a)
hereof.
“Registrable
Securities” shall mean the GSMP Securities other than those that have been
(A) registered under a Registration Statement and disposed of in accordance
therewith or (B) distributed to the public pursuant to Rule 144 under the Act
or
any successor rule or regulation thereto that may be adopted by the
Commission.
“Registration
Default” shall have the meaning set forth in Section 7 hereof.
“Registration
Statement” shall mean any Shelf Registration Statement that covers any of
the Registrable 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.
“Securities
Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“Senior
Toggle Notes” shall have the meaning set forth in the preamble
hereto.
“Shelf
Registration” shall mean a registration effected pursuant to Section 2
hereof.
“Shelf
Registration Period” shall have the meaning set forth in
Section 2(b)(ii) hereof.
“Shelf
Registration Statement” shall mean a “shelf” registration statement of the
Issuer Subs pursuant to the provisions of Section 2 hereof which covers
some or all of the GSMP Securities on an appropriate form under Rule 415
under the Securities 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.
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“Trustee”
shall mean the trustee with respect to the Securities under the
Indenture.
“Trust
Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and
the rules and regulations of the Commission promulgated thereunder.
“Underwriter”
shall mean any underwriter of GSMP Securities in connection with an offering
thereof under a Shelf Registration Statement.
2. Shelf
Registration.
(a) If
(i) either (x) an Exchange Offer Registration Statement is required to be filed
pursuant to Section 2(a) of the Initial Purchasers’ Registration Rights
Agreement or (y) the Senior Toggle Notes held by non-affiliates of the Issuers
become eligible for resale to the public without registration under the
Securities Act, and (ii) any GSMP Purchaser so requests with respect to the
Registrable Securities on any date (such date, a “Request Date”)
following the earlier to occur of the consummation of the Registered Exchange
Offer or, if the Exchange Offer Registration Statement is not required to be
filed pursuant to Section 2(a) of the Initial Purchasers’ Registration Rights
Agreement, 367 days after the Closing Date, the Issuers shall use their
commercially reasonable efforts to file a Shelf Registration Statement with
respect to the offer and sale of the Registrable Securities in accordance with
subsection (b) below.
(b) If
a Shelf Registration Statement with respect to the offer and sale of the
Registrable Securities is required to be filed and declared effective pursuant
to this Section 2,
(i) the
Issuers shall as promptly
as practicable (but in no event more than 45 days after the Request Date) file
with the Commission and shall use their commercially reasonable efforts to
cause
to be declared effective under the Securities Act within 367 days after the
Request Date, a Shelf Registration Statement relating to the offer and sale
of
the Registrable Securities (which may be an “automatic shelf registration
statement” as defined in Rule 405 of the Securities Act (an “Automatic Shelf
Registration Statement”) if the filing satisfies all relevant requirements
for such an Automatic Shelf Registration Statement), 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 a GSMP Purchaser) shall be entitled
to have the GSMP 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.
(ii) Subject
to Section 3(h), the Issuers shall use their commercially reasonable efforts
to
keep the Shelf Registration Statement continuously effective, supplemented
and
amended as required by the Securities Act, until the earliest of (A) the second
anniversary of the Request Date; (B) the date upon which all the GSMP Securities
covered by such Shelf Registration Statement have been sold pursuant to such
Shelf Registration Statement; or (C) the date upon which all the GSMP Securities
covered by such Shelf Registration Statement become eligible for resale, without
regard to volume, manner of sale or other restrictions contained in Rule 144
(the “Shelf Registration Period”). The Issuers shall be deemed
not to have used their commercially reasonable efforts to keep the Shelf
Registration
4
Statement
effective during the Shelf Registration Period if they voluntarily take any
action that would result in Holders of GSMP Securities covered thereby not
being
able to offer and sell such GSMP Securities at any time during the Shelf
Registration Period, unless such action is (x) required by applicable law or
otherwise undertaken by the Issuers in good faith and for valid business reasons
(not including avoidance of the Issuers’ obligations hereunder), including the
acquisition or divestiture of assets or a financing and (y) permitted pursuant
to Section 3(h)(ii) hereof.
(iii) The
Issuers shall
cause the Shelf Registration Statement and the related Prospectus and any
amendment or supplement thereto, as of the effective date of the Shelf
Registration Statement or such amendment or supplement, (A) to comply in all
material respects with the applicable requirements of the Securities Act; and
(B) not to contain any untrue statement of a material fact or omit to state
a
material fact required to be stated therein or necessary in order to make the
statements therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading.
3. Additional
Registration Procedures. In connection with any Shelf
Registration Statement, the following provisions shall apply.
(a) The
Issuers shall:
(i) furnish
to each of the GSMP Purchasers not less than five Business Days prior to the
filing thereof with the Commission, a copy of the Shelf Registration Statement,
and each amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein and shall use their reasonable best efforts to
reflect in each such document, when so filed with the Commission, such comments
as the GSMP Purchasers reasonably propose;
(ii) include
the names of the Holders that propose to sell GSMP Securities pursuant to the
Shelf Registration Statement as selling security holders.
(b) The
Issuers shall 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 Securities Act; and
(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, it being understood that, with respect to the
information about Holders in any Shelf Registration Statement, the Issuers
will
be relying solely on responses provided by Holders to a notice and
questionnaire.
(c) The
Issuers shall advise the GSMP Purchasers and, to the extent the Issuers have
been provided in writing a telephone or facsimile number and address for
notices, the Holders of Securities covered by any Shelf Registration Statement
and, if requested by any such Holder, 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 Issuers shall
have remedied the basis for such suspension):
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(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 institution or threatening of any proceeding
for
that purpose;
(iv) of
the
receipt by the Issuers of any notification with respect to the suspension of
the
qualification of the securities included therein for sale in any jurisdiction
or
the institution or threatening of any proceeding for such purpose;
and
(v) unless
notice has been provided pursuant to Section 3(h)(ii), of the happening of
any
event that requires any change in the Registration Statement or the Prospectus
so that, as of such date, such Registration Statement and Prospectus (A) do
not
contain any untrue statement of a material fact and (B) 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
Issuers shall use their commercially reasonable efforts to obtain as soon as
possible the withdrawal of any order suspending the effectiveness of any
Registration Statement or the qualification of the securities therein for sale
in any jurisdiction.
(e) The
Issuers shall furnish, upon written request, to each Holder of GSMP Securities
covered by the Shelf Registration Statement, without charge, at least one copy
of such Shelf Registration Statement and any post-effective amendment thereto,
including all material incorporated therein by reference, and, if the Holder
so
requests in writing, all exhibits thereto (including exhibits incorporated
by
reference therein).
(f) The
Issuers shall, during the Shelf Registration Period, deliver to each Holder
of
GSMP Securities covered by the Shelf Registration Statement, without charge,
as
many copies of the Prospectus (including the preliminary Prospectus) included
in
such Shelf Registration Statement and any amendment or supplement thereto as
such Holder may reasonably request. The Issuers consent to the use of
the Prospectus or any amendment or supplement thereto by each of the selling
Holders of GSMP Securities in connection with the offering and sale of the
GSMP
Securities covered by the Prospectus, or any amendment or supplement thereto,
included in the Shelf Registration Statement.
(g) Prior
to
any offering of GSMP Securities pursuant to any Registration Statement, the
Issuers shall arrange, if necessary, for the qualification of the GSMP
Securities for sale under the laws of such jurisdictions as any Holder shall
reasonably request and shall maintain such qualification in effect so long
as
required; provided that in no event shall the Issuers be obligated to qualify
to
do business in any jurisdiction where they are not then so qualified or to
take
any action that would subject it to general service of process in any such
jurisdiction where it is not then so subject or otherwise subject itself to
taxation in any such jurisdiction.
(h) The
Issuers shall cooperate with the Holders of GSMP Securities to facilitate the
timely preparation and delivery of certificates representing GSMP Securities
to
be issued or sold pursuant
6
to
any
Registration Statement free of any restrictive legends and in such denominations
and registered in such names as Holders may request.
(i) Subject
to clause (ii) below, upon the occurrence of any event contemplated by
subsections (c)(ii) through (v) above, the Issuers shall promptly (or
within the time period provided for by clause (ii) hereof, if applicable)
prepare a post-effective amendment to the Registration Statement or an amendment
or supplement to the related Prospectus or file any other required document
so
that, as thereafter delivered to GSMP Purchasers of the GSMP Securities included
therein, the Prospectus will not include an 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.
(ii) Upon
the
occurrence or existence of any pending corporate development or any other
material event that, in the reasonable judgment of the Issuers, makes it
appropriate to suspend the availability of the Shelf Registration Statement
and
the related Prospectus, the Issuers shall give notice (without notice of the
nature or details of such events) to the Holders that the availability of the
Shelf Registration Statement is suspended and, upon actual receipt of any such
notice, each Holder agrees not to sell any Registrable Securities pursuant
to
the Shelf Registration Statement until such Holder’s receipt of copies of the
supplemented or amended Prospectus provided for in clause (i) hereof, or until
it is advised in writing by the Issuers that the Prospectus may be used, and
has
received copies of any additional or supplemental filings that are incorporated
or deemed incorporated by reference in such Prospectus. The period
during which the availability of the Shelf Registration Statement and any
Prospectus is suspended shall not exceed 45 days in any three-month period
or 90
days in any twelve-month period.
(i) Not
later
than the effective date of the Shelf Registration Statement, the Issuers shall
provide a CUSIP number for the GSMP Securities registered under such Shelf
Registration Statement and provide, as may be necessary, the Trustee with
printed certificates for such GSMP Securities, in a form eligible for deposit
with The Depository Trust Company.
(j) The
Issuers shall comply with all applicable rules and regulations of the Commission
and shall make generally available to its security holders an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act and Rule
158 thereunder as soon as practicable after the effective date of the
Registration Statement and in any event no later than 45 days after the end
of a
12-month period (or 90 days, if such period is a fiscal year) beginning with
the
first month of the Issuers’ first fiscal quarter commencing after the effective
date of the Registration Statement.
(k) The
Issuers shall cause the Indenture to be qualified under the Trust Indenture
Act
in a timely manner.
(l) The
Issuers may require each Holder of securities to be sold pursuant to the Shelf
Registration Statement to furnish to the Issuers such information regarding
the
Holder and the distribution of such securities as the Issuers may from time
to
time reasonably require for inclusion in such Shelf Registration
Statement. The Issuers may exclude from such Shelf Registration
Statement the Securities of any Holder that unreasonably fails to furnish such
information within a reasonable time after receiving such request.
(m) In
the
case of the Shelf Registration Statement, the Issuers shall enter into customary
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 GSMP Securities, and in connection
therewith, if an underwriting agreement is entered into, cause the
7
same
to
contain indemnification provisions and procedures no less favorable than those
set forth in Section 5 hereof (or such other provisions and procedures
acceptable to the GSMP Purchasers and the Managing Underwriters, if any, with
respect to all parties to be indemnified pursuant to Section 5).
(n) In
the
case of any Shelf Registration Statement, the Issuers shall:
(ii) cause
each Issuers’ officers, directors, employees, accountants and auditors to supply
all relevant information reasonably requested by the Inspector or any such
underwriter, attorney or accountant in connection with any such Registration
Statement as is customary for similar due diligence examinations;
provided, however, that any information that is designated in
writing by the Issuers, in good faith, as confidential at the time of delivery
of such information shall be kept confidential by such underwriter or
underwriters or any such attorney or accountant, unless such disclosure is
made
in connection with a court proceeding or required by law, or such information
becomes available to the public generally or through a third party without
an
accompanying obligation of confidentiality;
(iii) make
such
representations and warranties to the Holders of GSMP 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 Issuers 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 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
“comfort” letters and updates thereof from the independent certified public
accountants of the Issuers (and, if necessary, any other independent certified
public accountants of any subsidiary of the Issuers or of any business acquired
by the Issuers for which financial statements and financial data are, or are
required to be, included in the Registration Statement), addressed to each
selling Holder of GSMP Securities registered thereunder and the underwriters,
if
any, in customary form and covering matters of the type customarily covered
in
“comfort” letters in connection with primary underwritten offerings;
and
(vi) deliver
such documents and certificates as may be reasonably requested by the GSMP
Purchasers or the Managing Underwriters, if any, including those to evidence
compliance with Section 3(h) and with any customary conditions contained in
the
underwriting agreement or other agreement entered into by the
Issuers.
The
actions set forth in clauses (iii), (iv), (v) and (vi) of this paragraph (n)
shall be performed at (A) the effectiveness of such Registration Statement
and
each post-effective amendment
8
thereto;
and (B) each closing under any underwriting or similar agreement as and to
the
extent required thereunder.
(o) The
Issuers shall use their reasonable best efforts if the GSMP Securities have
been
rated prior to the initial sale of such GSMP Securities, to confirm such ratings
will apply to the GSMP Securities covered by a Registration
Statement.
(p) In
the
event that any broker-dealer shall underwrite any GSMP Securities or participate
as a member of an underwriting syndicate or selling group or “assist in the
distribution” (within the meaning of the Conduct Rules) thereof, whether as a
Holder of such GSMP Securities or as an underwriter, a placement or sales agent
or a broker or dealer in respect thereof, or otherwise, the Issuers shall assist
such broker-dealer in complying with the Conduct Rules.
(q) The
Issuers shall use their reasonable best efforts to take all other steps
necessary to effect the registration of the GSMP Securities covered by a
Registration Statement.
(r) Upon
consummation of a sale of the GSMP Securities pursuant to the Shelf Registration
Statement, the Issuers shall use commercially reasonable efforts, subject to
such applicable rules and regulations as may be relevant, including those of
applicable clearing systems, to ensure that the GSMP Securities shall have
the
same CUSIP or, are otherwise fungible with, the New Securities.
4. Registration
Expenses. The Issuers shall bear all expenses incurred
in connection with the performance of their obligations under Sections 2
and 3 hereof and will reimburse the Holders for the reasonable fees and
disbursements of one firm or counsel (which shall initially be Fried, Frank,
Harris, Xxxxxxx & Xxxxxxxx LLP, but which may be another nationally
recognized law firm experienced in securities matters designated by the GSMP
Purchasers) to act as counsel for the Holders in connection
therewith. Notwithstanding the foregoing, the Holders shall pay all
agency fees and commissions and underwriting discounts and commissions and
the
fees and disbursements of any counsel or other advisors or experts retained
by
such Holders (severally or jointly), other than the one counsel specifically
referred to above.
5. Indemnification
and Contribution.
(a) The
Issuers agree, jointly and severally, to indemnify and hold harmless each Holder
of GSMP Securities, covered by any Registration Statement and each GSMP
Purchaser the directors, officers, employees, Affiliates and agents of each
such
Holder or GSMP Purchaser and each person who controls any such Holder or GSMP
Purchaser against any and all losses, claims, damages or liabilities, joint
or
several, to which they or any of them may become subject under the Securities
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 a
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 (in the case of any preliminary
Prospectus or the Prospectus, in the light of the circumstances under which
they
were made) not misleading, and agrees to reimburse each such indemnified party,
as incurred, for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that no Issuer will be
liable in any such 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
9
in
reliance upon and in conformity with written information furnished to the
Issuers by or on behalf of any GSMP Purchaser or any Holder specifically for
inclusion therein. This indemnity agreement shall be in addition to
any liability that the Issuers may otherwise have.
Each
Issuer also jointly and severally agrees to indemnify as provided in this
Section 5(a) or contribute as provided in Section 5(d) hereof to Losses of
each
underwriter, if any, of GSMP Securities registered under the Shelf Registration
Statement, their directors, officers, employees, Affiliates or agents and each
person who controls such underwriter on substantially the same basis as that
of
the indemnification of the GSMP Purchasers and the selling Holders provided
in
this Section 5(a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement, as provided in
Section 3(m) hereof.
(b) Each
Holder of GSMP Securities covered by a Registration Statement (including each
GSMP Purchaser that is a Holder) severally and not jointly agrees to indemnify
and hold harmless the Issuers, each of their respective directors, each of
their
respective officers who signs such Registration Statement and each person who
controls the Issuers within the meaning of either the Securities Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Issuers
to
each such Holder, but only with reference to written information relating to
such Holder furnished to the Issuers 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 that any such Holder may otherwise have.
(c) Promptly
after receipt by an indemnified party under this Section 5 or 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 (including local 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, other than local counsel if not appointed by the
indemnifying party, 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 (including local 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 that 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 notice of the institution of such action; or (iv) the
indemnifying party shall authorize the indemnified party 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
(such consent not be to unreasonably withheld or delayed), 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
10
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 any loss, claim, liability, damage or action)
(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 Placement and the Registration Statement which resulted
in
such Losses; provided, however, that in no case 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 Issuer shall be deemed to be
equal to the total net proceeds from the Placement (before deducting expenses)
as set forth in the Final Memorandum. Benefits received by any Holder
shall be deemed to be equal to the value of receiving GSMP Securities registered
under the Securities 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 untrue or any
alleged untrue statement of a material fact or omission or alleged omission
to
state a material fact 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 Securities 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 Securities 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 any Issuer within the meaning of either the Securities Act or the
Exchange Act, each officer, director, employee and agent of Issuers who shall
have signed the Registration Statement and each director of the Issuers shall
have the same rights to contribution as the Issuers, subject in each case to
the
applicable terms and conditions of this paragraph (d).
(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 Issuers or any
of
the indemnified persons referred to in this Section 5, and will survive the
sale
by a Holder of securities covered by a Registration Statement.
11
6. Underwritten
Registrations.
(a) If
any of
the GSMP Securities covered by any Shelf Registration Statement are to be sold
in an underwritten offering, the Managing Underwriters shall be selected by
the
GSMP Purchasers, if any GSMP Purchaser is a Holder, or by the Majority Holders,
if no GSMP Purchaser is a Holder.
(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 GSMP Securities
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.
7. Registration
Defaults. The Issuers agree to pay, jointly and
severally, as liquidated damages, additional interest on the Senior Toggle
Notes
constituting GSMP Securities (“Additional Interest”) if:
(a) on
or
prior to the 367th day after the Request Date, the Shelf Registration Statement
has not been declared effective, if applicable; or
(b) the
Shelf
Registration Statement required by this Agreement has been declared effective
but ceases to be effective at any time at which it is required to be effective
under this Agreement
(each
such event referred to in clauses (a) and (b) a “Registration Default”),
then, except during any suspension of the availability of the Shelf Registration
and any related Prospectus pursuant to Section 3(h)(ii), Additional Interest
will accrue on the principal amount of the Senior Toggle Notes (in addition
to
the stated interest on the Senior Toggle Notes) at a rate of 0.25 percent per
annum (which rate will be increased by an additional 0.25 percent per annum
for
each subsequent 90-day period during which such Additional Interest continues
to
accrue; provided that the rate at which such Additional Interest accrues
may in no event exceed 0.50 percent per annum) commencing on (x) the 368th
day
after the Request Date, in the case of subsection (a) above, or (y) the day
on
which such Shelf Registration Statement ceases to be effective, in the case
of
subsection (b) above; provided, however, that upon the
effectiveness of the Shelf Registration Statement (in the case of subsection
(a)
above) or upon the effectiveness of the Shelf Registration Statement which
had
ceased to remain effective (in the case of subsection (b) above), Additional
Interest on such GSMP
Securities as a result
of such subsection shall cease to
accrue.
Any
amounts of Additional Interest due will be payable on the same original interest
payment dates as interest on the Senior Toggle Notes is payable. Such
Additional Interest will be payable in the form of additional Senior Toggle
Notes, as applicable, if the then applicable interest rate thereon exceeds
10.375% with respect to the Senior Toggle Notes.
8. No Inconsistent
Agreements. Each Issuer has not entered into, and agrees
not to enter into, any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders herein or that otherwise
conflicts with the provisions hereof.
9. Amendments and
Waivers. The provisions of this Agreement may not be
amended, qualified, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the Issuers
have
obtained the written consent of the Holders of a majority of the aggregate
principal amount of the Registrable Securities outstanding; provided
that, with respect to any matter that directly or indirectly affects the rights
of any GSMP Purchaser hereunder, the Issuers shall obtain the written consent
of
each such GSMP Purchaser against which such amendment, qualification,
12
supplement,
waiver or consent is to be effective; provided, further, that no
amendment, qualification, supplement, waiver or consent with respect to Section
7 hereof shall be effective as against any Holder of Registered Securities
unless consented to in writing by such Holder; and provided,
further, that the provisions of this Section 9 may not be amended,
qualified, modified or supplemented, and waivers or consents to departures
from
the provisions hereof may not be given, unless the Issuers have obtained the
written consent of each GSMP Purchaser and each
Holder. Notwithstanding the foregoing (except the foregoing
provisos), a waiver or consent to departure from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders whose
GSMP
Securities 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
GSMP Purchasers, determined on the basis of GSMP Securities being sold rather
than registered under such Registration Statement.
10. Notices. All
notices, requests 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 in accordance with
the
provisions of this Section 10, which address initially is, with respect to
each
Holder, the address of such Holder maintained by the Trustee under the
Indenture;
(b) if
to the
Issuers, 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
GSMP
Purchasers or the Issuers 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 parties hereto,
their respective successors and assigns, including, without the need for an
express assignment or any consent by the Issuers thereto, subsequent Holders
of
GSMP Securities and the indemnified persons referred to in Section 5
hereof. The Issuers hereby agree to extend the benefits of this
Agreement to any Holder of GSMP 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 signed in one or more counterparts, each of which shall
constitute an original and all of which together shall constitute one and the
same agreement.
13. Headings. The
section 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. The parties hereto
each hereby waive, to the fullest extent permitted by the applicable law, any
right to trial by jury in any action, proceeding or counterclaim arising out
of
or relating to this Agreement.
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
13
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. GSMP Securities Held by the Issuers,
etc. Whenever the consent or approval of Holders of a
specified percentage of principal amount of GSMP Securities is required
hereunder, GSMP Securities held by the Issuers or their Affiliates (other than
subsequent Holders of GSMP Securities if such subsequent Holders are deemed
to
be Affiliates solely by reason of their holdings of such GSMP Securities) shall
not be counted in determining whether such consent or approval was given by
the
Holders of such required percentage.
14
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 between the Issuers and the
several Purchasers named herein.
ALLTEL
COMMUNICATIONS, INC.
By:
/s/ Xxxxxxxx
X. Xxxxxxx
Name:Xxxxxxxx
X. Xxxxxxx
Title:Executive
Vice President and
Chief
Financial
Officer
ALLTEL
COMMUNICATIONS
FINANCE, INC.
By:
/s/ Xxxxxxxx
X. Xxxxxxx
Name:Xxxxxxxx
X. Xxxxxxx
Title:Executive
Vice President and
Chief
Financial Officer
ALLTEL
CORPORATION
By:
/s/ Xxxxxxxx
X. Xxxxxxx
Name:Xxxxxxxx
X. Xxxxxxx
Title:Executive
Vice President and
Chief
Financial Officer
EACH
OF THE
GUARANTORS LISTED
ON
ANNEX A HERETO
By:
/s/ Xxxxxxxx
X. Xxxxxxx
Name:Xxxxxxxx
X. Xxxxxxx
Title:Authorized
Signatory
15
The
foregoing Agreement is hereby confirmed and accepted as of the date first above
written.
By: GSMP
V ONSHORE US, LTD.
By
/s/ Xxxxxx
Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title:
Managing Director
By: GSMP
V OFFSHORE US, LTD.
By
/s/ Xxxxxx
Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title:
Managing Director
By: GSMP
V INSTITUTIONAL US, LTD.
By
/s/ Xxxxxx
Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title:
Managing Director
16
ANNEX
A
|
Subsidiary
Guarantors
|
|
|
1.
|
ACI
Procurement Company LP
|
|
2.
|
Alltel
Cellular Associates of Arkansas Limited Partnership
|
|
3.
|
Alltel
Communications Investments, Inc.
|
|
4.
|
Alltel
Communications of Michigan RSA #4, Inc.
|
|
5.
|
Alltel
Communications of Michigan RSA #6 Cellular Limited
Partnership
|
|
6.
|
Alltel
Communications of Michigan RSAs, Inc.
|
|
7.
|
Alltel
Communications of Mississippi RSA #2, Inc.
|
|
8.
|
Alltel
Communications of Mississippi RSA #6, Inc.
|
|
9.
|
Alltel
Communications of Mississippi RSA #7, Inc.
|
|
10.
|
Alltel
Communications of Nebraska, Inc.
|
|
11.
|
Alltel
Communications of New Mexico, Inc.
|
|
12.
|
Alltel
Communications of North Arkansas, Inc.
|
|
13.
|
Alltel
Communications of North Louisiana Cellular Limited
Partnership
|
|
14.
|
Alltel
Communications of Ohio No. 2, Inc.
|
|
15.
|
Alltel
Communications of Ohio No. 3, Inc.
|
|
16.
|
Alltel
Communications of Petersburg, Inc.
|
|
17.
|
Alltel
Communications of Pine Bluff, LLC
|
|
18.
|
Alltel
Communications of Saginaw, Inc.
|
|
19.
|
Alltel
Communications of South Arkansas, Inc.
|
|
20.
|
Alltel
Communications of Southern Michigan Cellular Limited
Partnership
|
|
21.
|
Alltel
Communications of Southern Michigan, Inc.
|
|
22.
|
Alltel
Communications of Southwest Arkansas Cellular Limited
Partnership
|
|
23.
|
Alltel
Communications of Texarkana, Inc.
|
|
24.
|
Alltel
Communications of Texas Limited Partnership
|
|
25.
|
Alltel
Communications of the Southwest Limited Partnership
|
|
26.
|
Alltel
Communications of Virginia No. 1, Inc.
|
|
27.
|
Alltel
Communications of Virginia, Inc.
|
|
28.
|
Alltel
Communications Southwest Holdings, Inc.
|
|
29.
|
Alltel
Communications Wireless of Louisiana, Inc.
|
|
30.
|
Alltel
Communications Wireless, Inc.
|
A-1
|
Subsidiary
Guarantors
|
|
|
31.
|
Alltel
Group
|
|
32.
|
Alltel
Group LLC
|
|
33.
|
Alltel
Incentives LLC
|
|
34.
|
Alltel
International Holding, Inc.
|
|
35.
|
Alltel
Investments, Inc.
|
|
36.
|
Alltel
Mobile of Louisiana, LLC
|
|
37.
|
Alltel
Newco LLC
|
|
38.
|
Alltel
Ohio Limited Partnership
|
|
39.
|
Alltel
Properties, LLC
|
|
40.
|
Alltel
Remote Access, Inc.
|
|
41.
|
Alltel
Telelink, Inc.
|
|
42.
|
Alltel
Wireless Holdings of Nebraska, Inc.
|
|
43.
|
Alltel
Wireless Holdings, L.L.C.
|
|
44.
|
Alltel
Wireless of Alexandria, LLC
|
|
45.
|
Alltel
Wireless of LaCrosse, LLC
|
|
46.
|
Alltel
Wireless of Michigan RSA #1 and RSA #2, Inc.
|
|
47.
|
Alltel
Wireless of Mississippi RSA #5, LLC
|
|
48.
|
Alltel
Wireless of North Louisiana, LLC
|
|
49.
|
Alltel
Wireless of Shreveport, LLC
|
|
50.
|
Alltel
Wireless of Texarkana, LLC
|
|
51.
|
Alltel
Wireless of Wisconsin Appleton-Oshkosh- Neenah MSA, LLC
|
|
52.
|
Alltel
Wireless of Wisconsin RSA #1, LLC
|
|
53.
|
Alltel
Wireless of Wisconsin RSA #10, LLC
|
|
54.
|
Alltel
Wireless of Wisconsin RSA #2, LLC
|
|
55.
|
Alltel
Wireless of Wisconsin RSA #3, LLC
|
|
56.
|
Alltel
Wireless of Wisconsin RSA #6, LLC
|
|
57.
|
Alltel
Wireless of Wisconsin RSA #8, LLC
|
|
58.
|
Appleton-Oshkosh-Neenah
MSA Limited Partnership
|
|
59.
|
Cellular
of Southern Illinois, Inc.
|
|
60.
|
Celutel,
Inc.
|
|
61.
|
Central
Florida Cellular Telephone Company, Inc.
|
|
62.
|
Control
Communications Industries, Inc.
|
A-2
|
SubsidiaryGuarantors
|
|
|
63.
|
CP
National Corporation
|
|
64.
|
Dynalex,
Inc.
|
|
65.
|
Eau
Claire Cellular Telephone Limited Partnership
|
|
66.
|
Eau
Claire Cellular, Inc.
|
|
67.
|
First
Wireless, LLC
|
|
68.
|
Great
Western Cellular Holdings, LLC
|
|
69.
|
ID
Holding, LLC
|
|
70.
|
KIN
Network, Inc.
|
|
71.
|
Midwest
Wireless Communications L.L.C.
|
|
72.
|
Midwest
Wireless Holdings L.L.C.
|
|
73.
|
Midwest
Wireless Iowa L.L.C.
|
|
74.
|
Midwest
Wireless Wisconsin L.L.C.
|
|
75.
|
Minford
Cellular Telephone Company
|
|
76.
|
MVI
Corp.
|
|
77.
|
N12AR,
LLC
|
|
78.
|
North-West
Cellular of Eau Claire, Inc.
|
|
79.
|
Ocean
Technology, Inc.
|
|
80.
|
Ocean
Technology International, Inc.
|
|
81.
|
Pacific
Telecom Cellular of Washington, Inc.
|
|
82.
|
Pacific
Telecom Cellular, Inc.
|
|
83.
|
Pascagoula
Cellular Services, Inc.
|
|
84.
|
Radiofone,
Inc.
|
|
85.
|
RCTC
Wholesale Corporation
|
|
86.
|
Saginaw
Bay Cellular Company
|
|
87.
|
Six
Zulu Echo, LLC
|
|
88.
|
Southern
Illinois Cellular Corp.
|
|
89.
|
Southern
Illinois RSA Partnership
|
|
90.
|
Switch
2000 L.L.C.
|
|
91.
|
Telecor
Cellular, Inc.
|
|
92.
|
Tucson
21 Cellular Limited Partnership
|
|
93.
|
UC/PTC
of Wisconsin, LLC
|
|
94.
|
Universal
Cellular, Inc.
|
A-3
|
Subsidiary
Guarantors
|
|
|
95.
|
Virginia
Cellular LLC
|
|
96.
|
Western
CLEC Corporation
|
|
97.
|
Western
COG Corporation
|
|
98.
|
Western
Wireless International Austria Corporation
|
|
99.
|
Western
Wireless International Bolivia III Corporation
|
|
100.
|
Western
Wireless International Corporation
|
|
101.
|
Western
Wireless International Georgia Corporation
|
|
102.
|
Western
Wireless International Ghana Corporation
|
|
103.
|
Western
Wireless International Haiti Corporation
|
|
104.
|
Western
Wireless International Holding Corporation
|
|
105.
|
Western
Wireless International Ivory Coast Corporation
|
|
106.
|
Western
Wireless International Ivory Coast II Corporation
|
|
107.
|
Western
Wireless International Kosovo Corporation
|
|
108.
|
Western
Wireless International SakSat Corporation
|
|
109.
|
Western
Wireless International Slovenia Corporation
|
|
110.
|
Western
Wireless International Slovenia II Corporation
|
|
111.
|
Western
Wireless LLC
|
|
112.
|
WWC
CLEC Holding Corporation
|
|
113.
|
WWC
Holding Co., Inc.
|
|
114.
|
WWC
License Holding LLC
|
|
115.
|
WWC
License LLC
|
|
116.
|
WWC
Systems Purchasing Corporation
|
|
117.
|
WWC
Texas RSA Holding Corporation
|
|
118.
|
WWC
Texas RSA Limited Partnership
|
A-4
