Exhibit 4.4
AMERICAN CELLULAR CORPORATION
9 1/2% SENIOR SUBORDINATED NOTES DUE 2009
REGISTRATION RIGHTS AGREEMENT
March 14, 2001
Lehman Brothers Inc.
Banc of America Securities LLC
c/o Lehman Brothers Inc.
3 World Financial Center
New York, New York 1028
Ladies and Gentlemen:
American Cellular Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell (the "Initial Placement") to Lehman
Brothers Inc., Banc of America Securities LLC, Barclays Capital Inc.,
Deutsche Banc Alex. Brown Inc., First Union Securities, Inc., TD Securities
(USA) Inc. and Wasserstein Perella Securities, Inc. (the "Initial
Purchasers") upon terms set forth in a purchase agreement dated as of March
9, 2001 (the "Purchase Agreement") among the Company and the Initial
Purchasers, $450,000,000 of its 9 1/2% Senior Subordinated Notes due 2009
(the "Initial Notes"). As an inducement to you to enter into the Purchase
Agreement and purchase the Initial Notes and in satisfaction of a condition
to your obligations under the Purchase Agreement, the Company agrees with you
for the benefit of the holders from time to time of the Initial Notes
(including the Initial Purchasers) (each of the foregoing a "Holder" and
together the "Holders"), as follows:
1. DEFINITIONS. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized defined terms shall have the following
meanings:
"AFFILIATE" of any specified person means any other person
that, directly or indirectly, is in control of, is controlled by, or is
under common control with, such specified person. For purposes of this
definition, control of a person means the power, direct or indirect, to
direct or cause the direction of the management and policies of such
person whether by contract or otherwise; and the terms "controlling"
and "controlled" have meanings correlative to the foregoing.
"CLOSING DATE" has the meaning set forth in the Purchase
Agreement.
"COMMISSION" means the Securities and Exchange Commission.
"COMPANY" has the meaning set forth in the preamble hereto.
"DAMAGES PAYMENT DATE" means, with respect to the Initial
Notes, each date on which interest is paid in accordance with the
Indenture.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"EXCHANGE OFFER" means the proposed offer to the Holders to
issue and deliver to such Holders, in exchange for the Notes, a like
aggregate principal amount of Exchange Notes.
"EXCHANGE OFFER REGISTRATION PERIOD" means the longer of (A)
the period until the consummation of the Exchange Offer and (B) two
years after effectiveness of the Exchange Offer
Registration Statement, exclusive of any period during which any
stop order shall be in effect suspending the effectiveness of the
Exchange Offer Registration Statement; PROVIDED, HOWEVER, that in
the event that all resales of Exchange Notes (including, subject to
the time periods set forth herein, any resales by Exchanging
Dealers) covered by such Exchange Offer Registration Statement have
been made, the Exchange Offer Registration Statement need not remain
continuously effective for the period set forth in clause (B) above.
"EXCHANGE OFFER REGISTRATION STATEMENT" means a Registration
Statement of the Company on an appropriate form under the Securities
Act with respect to the Exchange Offer, all amendments and supplements
to such Registration Statement, including post-effective amendments, in
each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"EXCHANGE NOTES" means securities issued by the Company,
identical in all material respects to the Notes to be issued under the
Indenture.
"EXCHANGING DEALER" means any Holder (which may include the
Initial Purchasers) that is a broker-dealer, electing to exchange Notes
acquired for its own account as a result of market-making activities or
other trading activities for Exchange Notes.
"HOLDER" has the meaning set forth in the preamble hereto.
"INDENTURE" means the Indenture, dated as of March , 2001,
between the Company and United States Trust Company of New York, as
trustee, pursuant to which the Notes are to be issued, as such
Indenture is amended or supplemented from time to time in accordance
with the terms thereof.
"INITIAL NOTES" means the 9 1/2% Senior Subordinated Notes due
2009, of the same series under the Indenture as the Exchange Notes, for
so long as such securities constitute Transfer Restricted Securities.
"INITIAL PLACEMENT" has the meaning set forth in the preamble
hereto.
"INITIAL PURCHASERS" has the meaning set forth in the preamble
hereto.
"LOSSES" has the meaning set forth in Section 6(d) hereto.
"MAJORITY HOLDERS" means the Holders of a majority of the
aggregate principal amount of Notes registered under a Registration
Statement.
"MANAGING UNDERWRITERS" means the investment banker or
investment bankers and manager or managers that shall administer an
underwritten offering under a Shelf Registration Statement.
"NOTES" means the Initial Notes and Exchange Notes.
"OFFERING MEMORANDUM" has the meaning set forth in the
Purchase Agreement.
"PROSPECTUS" means 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
Securities Act), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any portion of
the Notes covered by such Registration Statement, and all amendments
and supplements to the Prospectus, including post-effective amendments.
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"PURCHASE AGREEMENT" has the meaning set forth in the preamble
hereto.
"REGISTRATION DEFAULT" has the meaning set forth in Section
5(b) hereof.
"REGISTRATION STATEMENT" means any Exchange Offer Registration
Statement or Shelf Registration Statement pursuant to the provisions of
this Agreement, 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 ACT" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"SHELF REGISTRATION" means a registration effected pursuant to
Section 3 hereof.
"SHELF REGISTRATION PERIOD" has the meaning set forth in
Section 3(b) hereof.
"SHELF REGISTRATION STATEMENT" means a "shelf" registration
statement of the Company pursuant to the provisions of Section 3
hereof, which covers some or all of the Notes or Exchange Notes, as
applicable, 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.
"TARGET EFFECTIVENESS DATE" has the meaning set forth in
Section 5(b) hereof.
"TRANSFER RESTRICTED SECURITIES" means each Note until: (i)
the date on which such Note has been exchanged by a Person other than a
broker-dealer for an Exchange Note in the Exchange Offer; (ii)
following the exchange by a broker-dealer in the Exchange Offer of a
Note for an Exchange Note, the date on which such Exchange Note is sold
to a purchaser who receives from such broker-dealer on or prior to the
date of such sale a copy of the Prospectus contained in the Exchange
Offer Registration Statement; (iii) the date on which such Note has
been effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement; or (iv) the date on
which such Note is distributed to the public pursuant to Rule 144 under
the Securities Act.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939,
as amended.
"TRUSTEE" means United States Trust Company of New York and
any successors thereto.
"UNDERWRITER" means any underwriter of Notes in connection
with an offering thereof under a Shelf Registration Statement.
UNDERWRITTEN REGISTRATION or UNDERWRITTEN OFFERING means a
registration in which the Notes of the Company are sold to an
underwriter for reoffering to the public.
2. EXCHANGE OFFER; RESALES OF EXCHANGE NOTES BY EXCHANGING DEALERS;
PRIVATE EXCHANGE.
(a) The Company shall prepare and file with the Commission the
Exchange Offer Registration Statement with respect to the Exchange
Offer on or before the 90th calendar day after the Closing Date. The
Company shall use its best efforts (i) to cause the Exchange Offer
Registration Statement to be declared effective under the Securities
Act on or prior to the 180th calendar day following the Closing Date
and remain effective until the closing of the Exchange Offer and (ii)
to consummate the Exchange Offer on or prior to the 210th calendar day
following the Closing Date.
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(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Exchange Offer, it
being the objective of such Exchange Offer to enable each Holder
electing to exchange Notes for Exchange Notes (assuming that such
Holder (x) is not an "affiliate" of the Company within the meaning of
the Securities Act, (y) is not a broker-dealer that acquired the Notes
in a transaction other than as a part of its market-making or other
trading activities and (z) if such Holder is not a broker-dealer,
acquires the Exchange Notes in the ordinary course of such Holder's
business, is not participating in the distribution of the Exchange
Notes and has no arrangements or understandings with any person to
participate in the distribution of the Exchange Notes) to resell such
Exchange Notes from and after their receipt without any limitations or
restrictions under the Securities 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 Exchange Offer, the Company shall
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, stating, in addition to
such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to
this Agreement and that all Notes validly tendered will be
accepted for exchange;
(ii) the dates of acceptance for exchange;
(iii) that any Notes not tendered will remain
outstanding and continue to accrue interest, but will not
retain any rights under this Agreement;
(iv) that Holders electing to have Notes exchanged
pursuant to the Exchange Offer will be required to surrender
such Notes, together with the enclosed letters of transmittal,
to the institution and at the address (located in the Borough
of Manhattan, The City of New York) specified in the notice
prior to the close of business on the last day of acceptance
for exchange; and
(v) that Holders will be entitled to withdraw their
election, not later than the close of business on the last day
of acceptance for exchange, by sending to the institution and
at the address (located in the Borough of Manhattan, The City
of New York) specified in the notice a telegram, telex,
facsimile transmission or letter setting forth the name of
such Holder, the aggregate principal amount of Notes delivered
for exchange and a statement that such Holder is withdrawing
his election to have such Notes exchanged; and shall keep the
Exchange Offer open for acceptance for not less than 30 days
(or longer if required by applicable law) after the date
notice thereof is mailed to the Holders; utilize the services
of a depositary for the Exchange Offer with an address in the
Borough of Manhattan, The City of New York; and comply in all
respects with all applicable laws relating to the Exchange
Offer.
(d) As soon as practicable after the close of the Exchange
Offer, the Company shall:
(i) accept for exchange all Notes duly tendered and
not validly withdrawn pursuant to the Exchange Offer;
(ii) deliver to the Trustee for cancellation all
Notes so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and
deliver to each Holder Exchange Notes equal in principal
amount to the Notes of such Holder so accepted for exchange.
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(e) The Initial Purchasers and the Company acknowledge that,
pursuant to interpretations by the staff of the Commission of Section 5
of the Securities Act, and in the absence of an applicable exemption
therefrom, each Exchanging Dealer is required to deliver a Prospectus
in connection with a sale of any Exchange Notes received by such
Exchanging Dealer pursuant to the Exchange Offer in exchange for Notes
acquired for its own account as a result of market-making activities or
other trading activities. Accordingly, the Company shall:
(i) include the information set forth in Annex A
hereto on the cover 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
forming a part of the Exchange Offer Registration Statement,
and in Annex D hereto in the letter of transmittal delivered
pursuant to the Exchange Offer; and
(ii) use its best efforts to keep the Exchange Offer
Registration Statement continuously effective under the
Securities Act during the Exchange Offer Registration Period
for delivery of the prospectus included therein by Exchanging
Dealers in connection with sales of Exchange Notes received
pursuant to the Exchange Offer, as contemplated by Section
4(h) below; PROVIDED, HOWEVER, that the Company shall not be
required to maintain the effectiveness of the Exchange Offer
Registration Statement for more than 30 days following the
consummation of the Exchange Offer unless the Company has been
notified in writing on or prior to the 30th day following the
consummation of the Exchange Offer by one or more Exchanging
Dealers that such Holder has received Exchange Notes as to
which it will be required to deliver a prospectus upon resale.
(f) In the event that an Initial Purchaser determines that it
is not eligible to participate in the Exchange Offer with respect to
the exchange of Notes constituting any portion of an unsold allotment,
upon the effectiveness of the Shelf Registration Statement as
contemplated by Section 3 hereof and at the request of the Initial
Purchasers, the Company shall issue and deliver to the Initial
Purchasers, or to the party purchasing Initial Notes registered under
the Shelf Registration Statement from the Initial Purchasers, in
exchange for such Initial Notes, a like principal amount of Exchange
Notes. The Company shall use its best efforts to cause the CUSIP
Service Bureau to issue the same CUSIP number for such Exchange Notes
as for Exchange Notes issued pursuant to the Exchange Offer.
(g) The Company shall use its best efforts to complete the
Exchange Offer as provided above and shall comply with the applicable
requirements of the Securities Act, the Exchange Act and other
applicable laws and regulations in connection with the Exchange Offer.
The Exchange Offer shall not be subject to any conditions, other than
that (i) the Exchange Offer does not violate applicable law or any
applicable interpretation of the staff of the Commission, (ii) no
action or proceeding shall have been instituted or threatened in any
court or by any governmental agency which might materially impair the
ability of the Company to proceed with the Exchange Offer, and no
material adverse development shall have occurred in any existing action
or proceeding with respect to the Company and (iii) all governmental
approvals shall have been obtained, which approvals the Company deems
necessary for the consummation of the Exchange Offer. The Company shall
inform the Initial Purchasers, upon their request, of the names and
addresses of the Holders to whom the Exchange Offer is made, and the
Initial Purchasers shall have the right, subject to applicable law, to
contact such Holders and otherwise facilitate the tender of Notes in
the Exchange Offer.
(h) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Company,
prior to the consummation thereof, a written representation to the
Company (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an affiliate of the Company, (B) it is not
engaged in, and
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does not intend to engage in, and has no arrangement or understanding
with any person to participate in, a distribution of the Exchange
Notes to be issued in the Exchange Offer and (C) it is acquiring the
Exchange Notes in its ordinary course of business. In addition, all
such Holders of Transfer Restricted Securities shall otherwise
cooperate in the Company's preparations for the Exchange Offer. Each
Holder hereby acknowledges and agrees that any broker-dealer and any
such Holder using the Exchange Offer to participate in a distribution
of the securities to be acquired in the Exchange Offer (1) could not
under Commission policy as in effect on the date of this Agreement
rely on the position of the Commission enunciated in MORGAN STANLEY
AND CO., INC. (available June 5, 1991) and EXXON CAPITAL HOLDINGS
CORPORATION (available May 13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993, and
similar no-action letters, and (2) must comply with the registration
and prospectus delivery requirements of the Securities Act in
connection with a secondary resale transaction and that such a
secondary resale transaction should 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 if the resales are of Exchange Notes obtained by such Holder in
exchange for Initial Notes acquired by such Holder directly from the
Company.
3. SHELF REGISTRATION. If (i) because of 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 Exchange Offer as contemplated by Section 2 hereof, or (ii) the Company is
not required to file the Exchange Offer Registration Statement for any reason
other than those specified in clause (i) above, or (iii) with respect to any
Holder of Transfer Restricted Securities (A) such Holder is prohibited by
applicable law or Commission policy from participating in the Exchange Offer, or
(B) such Holder may not resell the Exchange Notes acquired by it in the Exchange
Offer to the public without delivering a prospectus and that the Prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales by such Holder, or (C) such Holder is an Exchanging
Dealer and holds Initial Notes acquired directly from the Company or one of its
affiliates (it being understood that, for purposes of this Section 3, (x) the
requirement that the Initial Purchasers deliver a Prospectus containing the
information required by Items 507 and/or 508 of Regulation S-K under the
Securities Act in connection with sales of Exchange Notes acquired in exchange
for such Notes shall result in such Exchange Notes being not "freely tradeable"
and (y) the requirement that an Exchanging Dealer deliver a Prospectus in
connection with sales of Exchange Notes acquired in the Exchange Offer in
exchange for Notes acquired as a result of market-making activities or other
trading activities shall not result in such Exchange Notes being not "freely
tradeable"), the following provisions shall apply:
(a) The Company shall, as promptly as practicable, file with
the Commission a Shelf Registration Statement relating to the offer and
sale of the Notes or the Exchange Notes, as applicable, by the Holders
from time to time in accordance with the methods of distribution
elected by such Holders and set forth in such Shelf Registration
Statement and Rule 415 under the Securities Act, PROVIDED that, with
respect to Exchange Notes received by the Initial Purchasers in
exchange for Initial Notes 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
Regulation S-K Items 507 and/or 508, as applicable, in satisfaction of
its obligations under this paragraph (a) 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.
(b) The Company shall use its best efforts to cause the Shelf
Registration Statement to be declared effective under the Securities
Act on or prior to the 120th calendar day after the obligation to file
a Shelf Registration Statement under this Section 3 arises and to keep
such Shelf Registration Statement continuously effective in order to
permit the Prospectus contained therein to be usable by Holders for a
period of two years from the date the Shelf Registration Statement is
declared effective by the Commission or such shorter period that will
terminate when all the Initial Notes or Exchange Notes, as applicable,
covered by the Shelf Registration Statement have been sold pursuant to
the Shelf Registration Statement (in any such case, such period being
called the
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"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 the Company voluntarily takes
any action that would result in Holders of Notes covered thereby not
being able to offer and sell such Notes during that period, unless
(i) such action is required by applicable law, (ii) the Company
complies with this Agreement or (iii) such action is taken by the
Company or any Guarantors 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(m) hereof, if applicable.
4. 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, within a reasonable time prior to the
filing of any Registration Statement, any Prospectus, any amendment to
a Registration Statement or amendment or supplement to a Prospectus or
any document which is to be incorporated by reference into a
Registration Statement or a Prospectus after initial filing of a
Registration Statement, provide copies of such document to the Initial
Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, the Holders and their counsel, upon their request) and make
such representatives of the Company as shall be reasonably requested by
the Initial Purchasers or their counsel (and, in the case of a Shelf
Registration Statement, the Majority Holders or their counsel)
available for discussion of such document, and shall not at any time
file or make any amendment to the Registration Statement, any
Prospectus or any amendment of or supplement to a Registration
Statement or a Prospectus or any document which is to be incorporated
by reference into a Registration Statement or a Prospectus, of which
the Initial Purchasers and their counsel (and, in the case of a Shelf
Registration Statement, the Holders and their counsel) shall not have
previously been advised and furnished a copy or to which the Initial
Purchasers or their counsel (and, in the case of a Shelf Registration
Statement, the Holders or their counsel) shall object, except for any
amendment or supplement or document (a copy of which has been
previously furnished to the Initial Purchasers and their counsel (and,
in the case of a Shelf Registration Statement, the Majority Holders and
their counsel, upon their request)) which counsel to the Company shall
advise the Company, in the form of a written opinion, is required in
order to comply with applicable law; the Initial Purchasers agree that,
if it receives timely notice and drafts under this clause (a), it will
not take actions or make objections pursuant to this clause (a) such
that the Company is unable to comply with its obligations under Section
2.
(b) The Company shall ensure that:
(i) any Registration Statement and any amendment
thereto and any Prospectus contained therein and any amendment
or supplement thereto complies in all material respects with
the Securities 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, including 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 light of the circumstances
under which they were made, not misleading.
(c) (1) The Company shall advise the Initial Purchasers and,
in the case of a Shelf Registration Statement, the Holders of Initial
Notes covered thereby, and, if requested by the Initial Purchasers or
any such Holder, confirm such advice in writing:
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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; and
(ii) of any request by the Commission for amendments
or supplements to the Registration Statement or the Prospectus
included therein or for additional information.
(2) During the Shelf Registration Period or the Exchange Offer
Registration Period, as applicable, the Company shall advise the
Initial Purchasers and, in the case of a Shelf Registration Statement,
the Holders of Initial Notes or Exchange Notes covered thereby, and, in
the case of an Exchange Offer Registration Statement, any Exchanging
Dealer that has provided in writing to the Company a telephone or
facsimile number and address for notices, and, if requested by the
Initial Purchasers or any such Holder or Exchanging Dealer, confirm
such advice in writing:
(i) 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;
(ii) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Initial Notes or Exchange Notes included
therein for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(iii) of the happening of any event that requires the
making of any changes in the Registration Statement or the
Prospectus so that, as of such date, the Registration
Statement or the Prospectus does not include an untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they
were made) not misleading (which advice shall be accompanied
by an instruction to suspend the use of the Prospectus until
the requisite changes have been made).
(d) The Company shall use its best efforts to obtain the
withdrawal of any order suspending the effectiveness of any
Registration Statement at the earliest possible time.
(e) The Company shall furnish to each Holder of Notes covered
by any Shelf Registration Statement that so requests, without charge,
at least one copy of such Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if the Holder so requests in writing, all exhibits
thereto.
(f) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Notes 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; and the Company consents to the use of the
Prospectus or any amendment or supplement thereto by each of the
selling Holders of Notes in connection with the offering and sale of
the Notes covered by the Prospectus or any amendment or supplement
thereto.
(g) The Company shall furnish to each Exchanging Dealer that
so requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, any documents
incorporated by reference therein and, if the Exchanging Dealer so
requests in writing, all exhibits thereto.
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(h) The Company shall, during the Exchange Offer Registration
Period, promptly deliver to each Exchanging Dealer, without charge, as
many copies of the Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as such
Exchanging Dealer may reasonably request for delivery by such
Exchanging Dealer in connection with a sale of Exchange Notes received
by it pursuant to the Exchange Offer; and the Company consents to the
use of the Prospectus or any amendment or supplement thereto by any
such Exchanging Dealer, as provided in Section 2(e) above.
(i) Each Holder of Notes and each Exchange Dealer agrees by
its acquisition of such Notes or Exchange Notes to be sold by such
Exchange Dealer, as the case may be, that, upon actual receipt of any
notice from the Company of the happening of any event of the kind
described in paragraph (c)(2)(i), (c)(2)(ii), or (c)(2)(iii) of this
Section 4, such Holder will forthwith discontinue disposition of such
Notes covered by such Registration Statement or Prospectus or Exchange
Notes to be sold by such Holder or Exchange Dealer, as the case may be,
until such Holder's or Exchange Dealer's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 4(l) hereof,
or until it is advised in writing by the Company that the use of the
applicable Prospectus may be resumed, and has received copies of any
amendments or supplements thereto. In the event that the Company shall
give any such notice, the Exchange Offer Registration Period shall be
extended by the number of days during such periods from and including
the date of the giving of such notice to and including the date when
each seller of the Exchange Notes covered by such Registration
Statement or Exchange Notes to be sold by such Exchange Dealer, as the
case may be, shall have received (x) the copies of the supplemented or
amended Prospectus contemplated by Section 4(l) hereof or (y) the
advice in writing.
(j) Prior to the Exchange Offer or any other offering of
Initial Notes or Exchange Notes pursuant to any Registration Statement,
the Company shall register or qualify or cooperate with the Holders of
Notes included therein and their respective counsel in connection with
the registration or qualification of such Initial Notes or Exchange
Notes for offer and sale under the securities or blue sky laws of such
states as any such Holders reasonably request in writing and do any and
all other acts or things necessary or advisable to enable the offer and
sale in such states of the Notes covered by such Registration
Statement; PROVIDED, HOWEVER, that the Company will not be required to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not then so qualified, to file any general
consent to service of process 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 to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so
subject.
(k) The Company shall issue, upon the request of any Holder of
Initial Notes covered by the Shelf Registration Statement, Exchange
Notes, having an aggregate principal amount equal to the aggregate
principal amount of Initial Notes surrendered to the Company by such
Holder in exchange therefor or being sold by such Holder; such Exchange
Notes to be registered in the name of such Holder or in the name of the
purchaser(s) of such Exchange Notes, as the case may be; in return, the
Initial Notes held by such Holder shall be surrendered to the Company
for cancellation.
(l) The Company shall cooperate with the Holders to facilitate
the timely preparation and delivery of certificates representing
Initial Notes or Exchange Notes to be sold pursuant to any Registration
Statement free of any restrictive legends and in denominations of
$1,000 or an integral multiple thereof and registered in such names as
Holders may request prior to sales of Initial Notes or Exchange Notes
pursuant to such Registration Statement.
(m) Upon the occurrence of any event contemplated by paragraph
(c)(2)(iii) of this Section 4, the Company shall promptly prepare and
file a post-effective amendment to any Registration Statement or an
amendment or supplement to the related Prospectus or any other required
document so that, as thereafter delivered to purchasers of the Initial
Notes or Exchange Notes included therein, the Prospectus will not
include an untrue statement of a material fact or
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omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading and, in the case of a Shelf Registration Statement, notify
the Holders to suspend use of the Prospectus as promptly as
practicable after the occurrence of such an event. Notwithstanding the
foregoing, the Company shall not be required to amend or supplement a
Shelf Registration Statement, any related Prospectus or any document
incorporated therein by reference, for a period not to exceed an
aggregate of 30 days in any calendar year, if the Company determines
in its good faith judgment that the disclosure of such event at such
time would have a material adverse effect on the business, operations,
or prospects of the Company or the disclosure otherwise related to a
pending material business transaction that has not yet been publicly
disclosed.
(n) Not later than the effective date of any such Registration
Statement hereunder, the Company shall provide a CUSIP number for the
Initial Notes or Exchange Notes, as the case may be, registered under
such Registration Statement, and provide the Trustee with certificates
for such Initial Notes or Exchange Notes, in a form eligible for
deposit with The Depository Trust Company.
(o) The Company shall use its best efforts to 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 meeting the requirements of Rule 158 under the
Securities Act.
(p) The Company shall cause the Indenture to be qualified
under the Trust Indenture Act not later than the effective date of the
first Registration Statement required by this Agreement, and, in
connection therewith, cooperate with the Trustee and the Holders of
Initial Notes or Exchange Notes to effect such changes to the Indenture
as may be required for such Indenture to be so qualified in accordance
with the terms of the Trust Indenture Act; and to execute and use its
best efforts to cause the Trustee to execute, all documents that may be
required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to be
so qualified in a timely manner.
(q) The Company may require each Holder of Notes to be sold
pursuant to any Shelf Registration Statement to furnish to the Company
such information regarding the Holder and the distribution of such
Initial Notes as the Company may from time to time reasonably require
for inclusion in such Registration Statement.
(r) The Company shall, if requested, promptly incorporate in a
Prospectus supplement or post-effective amendment to a Shelf
Registration Statement, such information as the Managing Underwriters,
if any, and Majority Holders reasonably agree should be included
therein, and shall make all required filings of such Prospectus
supplement or post-effective amendment promptly upon notification of
the matters to be incorporated in such Prospectus supplement or
post-effective amendment.
(s) In the case of any Shelf Registration Statement, the
Company shall enter into such agreements (including underwriting
agreements) and take all other appropriate actions in order to expedite
or to facilitate the registration or the disposition of any Initial
Notes included therein, 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 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.
(t) In the case of any Shelf Registration Statement, the
Company shall:
(i) make reasonably available for inspection by the
Holders of Notes to be registered thereunder, any underwriter
participating in any disposition pursuant to such Shelf
Registration Statement, and any attorney, accountant or other
agent retained by the
10
Holders or any such underwriter all relevant financial and
other records, pertinent corporate documents and properties
of the Company and any of its subsidiaries;
(ii) cause the Company's officers, directors and
employees to supply all relevant information reasonably
requested by the Holders or any such underwriter, attorney,
accountant or agent in connection with any such Registration
Statement as is customary for similar due diligence
examinations and make such representatives of the Company as
shall be reasonably requested by the Initial Purchasers or
Managing Underwriters, if any, available for discussion of any
such Registration Statement; PROVIDED, HOWEVER, that any
non-public information that is designated in writing by the
Company, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by the
Holders or any such underwriter, attorney, accountant or
agent, 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
other than as a result of a disclosure of such information by
any such Holder, underwriter, attorney, accountant or agent;
(iii) make such representations and warranties to the
Holders of Notes registered thereunder and the underwriters,
if any, in form, substance and scope as are customarily made
by issuers to underwriters in similar underwritten offerings
as may be reasonably requested by them;
(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
Holder and the underwriters, if any, covering such matters as
are customarily covered in opinions requested in similar
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 the
underwriters, if any, and use reasonable efforts to have such
letter addressed to the selling Holders of Notes registered
thereunder (to the extent consistent with Statement on
Auditing Standards No. 72 of the American Institute of
Certified Public Accountants (AICPA) ("SAS 72")), in customary
form and covering matters of the type customarily covered in
"cold comfort" letters in connection with similar underwritten
offerings, or if the provision of such "cold comfort" letters
is not permitted by SAS 72 or if requested by the Initial
Purchasers or their counsel in lieu of a "cold comfort"
letter, an agreed-upon procedures letter under Statement on
Auditing Standards No. 75 of the AICPA, covering matters
requested by the Initial Purchasers or their counsel; and
(vi) deliver such documents and certificates as may
be reasonably requested by the Majority Holders and the
Managing Underwriters, if any, and customarily delivered in
similar offerings, including those to evidence compliance with
Section 4(m) and with any conditions contained in the
underwriting agreement or other agreement entered into by the
Company.
The foregoing actions set forth in clauses (iii), (iv), (v)
and (vi) of this Section 4(t) shall be performed at (A) the
effectiveness of such Shelf 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.
11
(u) The Company shall, in the case of a Shelf Registration,
use their best efforts to cause all Notes to be listed on any
securities exchange or any automated quotation system on which similar
securities issued by the Company are then listed if requested by the
Majority Holders, to the extent such Notes satisfy applicable listing
requirements.
5. REGISTRATION EXPENSES; REMEDIES.
(a) The Company shall bear all expenses incurred in connection
with the performance of its obligations under Sections 2, 3 and 4
hereof, including without limitation: (i) all Commission, stock
exchange or National Association of Securities Dealers, Inc.
registration and filing fees, (ii) all fees and expenses incurred in
connection with compliance with state securities or blue sky laws
(including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with blue sky qualification of
any of the Exchange Notes or Initial Notes), (iii) all expenses of any
persons in preparing or assisting in preparing, word processing,
printing and distributing any Registration Statement, any Prospectus,
any amendments or supplements thereto, any underwriting agreements,
securities sales agreements and other documents relating to the
performance of and compliance with this Agreement, (iv) the fees and
disbursements of the Trustee and its counsel, (v) the fees and
disbursements of counsel for the Company and, in the case of a Shelf
Registration Statement, the fees and disbursements of one counsel for
the Holders (which counsel shall be selected by the Majority Holders
and which counsel may also be counsel for the Initial Purchasers) and
in the case of any Exchange Offer Registration Statement, the fees and
expenses of counsel to the Initial Purchasers acting in connection
therewith and (vi) the fees and disbursements of the independent public
accountants of the Company and its predecessor, PriCellular
Corporation, including the expenses of any special audits or "cold
comfort" letters required by or incident to such performance and
compliance, but excluding fees and expenses of counsel to the
underwriters (other than fees and expenses set forth in clause (ii)
above) or the Holders and underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of Notes by
a Holder.
(b) In the event that the Company:
(i) fails to file the Exchange Offer Registration
Statement or Shelf Registration Statement, as the case may be,
on or before the date specified for either such filing;
(ii) either such registration statement is not
declared effective by the Commission on or prior to the date
specified for such effectiveness (the "Effectiveness Target
Date");
(iii) the Company fails to consummate the Exchange
Offer within 30 days of the Effectiveness Target Date with
respect to the Exchange Offer Registration Statement; or
(iv) the Shelf Registration Statement or the Exchange
Offer Registration Statement is declared effective but
thereafter ceases to be effective or usable in connection with
the resales of Transfer Restricted Securities during the
periods specified in this Registration Rights Agreement (each
such event referred to in clauses (i) through (iv) above, a
"Registration Default"),
then the Company will pay liquidated damages ("Liquidated Damages") to
each holder of Initial Notes or Exchange Notes, with respect to the
first 90-day period immediately following the occurrence of the first
Registration Default in an amount equal to $0.05 per week per $1,000
principal amount of Initial Notes or Exchange Notes held by that
holder. The amount of the Liquidated Damages will increase by an
additional $0.05 per week per $1,000 principal amount of Initial Notes
or Exchange Notes with respect to each subsequent 90-day period until
all Registration Defaults have been cured, up to a maximum amount of
Liquidated Damages for all
12
Registration Defaults of $0.50 per week per $1,000 principal amount
of Initial Notes or Exchange Notes.
(c) The Company shall pay all accrued Liquidated Damages on
each Damages Payment Date to the Global Note Holder by wire transfer of
immediately available funds and to holders of Certificate Notes by wire
transfer to the accounts specified by them or by mailing checks to
their registered addresses if no such accounts have been specified.
(d) Following the cure of all Registration Defaults, the
accrual of Liquidated Damages will cease.
(e) Without limiting the remedies available to the Initial
Purchasers and the Holders, the Company acknowledges that any failure
by the Company to comply with its obligations under Sections 2 and 3
hereof may result in material irreparable injury to the Initial
Purchasers or the Holders for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Initial
Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Company's obligations under Sections 2 and 3
hereof.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) In connection with any Registration Statement, the Company
agrees to indemnify and hold harmless each Holder of Notes covered
thereby (including the Initial Purchasers and, with respect to any
Prospectus delivery as contemplated by Sections 2(e) and 4(h) hereof,
each Exchanging Dealer) the directors, officers, employees and agents
of such Holder and each person who controls such Holder within the
meaning of either the Securities 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 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 such Registration Statement as originally filed or in
any amendment thereof, or in any preliminary Prospectus or 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 the Prospectus, in 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 them in connection with
investigating or defending any such loss, claim, damage or liability
(or action in respect thereof); 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
indemnified party specifically for inclusion therein; PROVIDED FURTHER,
HOWEVER, that the Company will not be liable in any case with respect
to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary Prospectus or Prospectus, or in any
amendment thereof or supplement thereto to the extent that any such
loss, claim, damage or liability (or action in respect thereof)
resulted from the fact that any indemnified party sold Notes or
Exchange Notes to a person to whom there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the
Prospectus as then amended or supplemented, if the Company had
previously complied with the provisions of Section 4(c)(2) and 4(f) or
4(h) hereof and if the untrue statement contained in or omission from
such preliminary Prospectus or Prospectus was corrected in the
Prospectus as then amended or supplemented. This indemnity agreement
will be in addition to any liability that the Company may otherwise
have.
The Company also agrees to indemnify or contribute to Losses
of, as provided in Section 6(d) hereof, any underwriters of Notes
registered under a Shelf Registration Statement, their
13
employees, officers, directors and agents and each person who controls
such underwriters on 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(s)
hereof.
(b) Each Holder of Notes covered by a Registration Statement
(including the Initial Purchasers and, with respect to any Prospectus
delivery as contemplated by Sections 2(e) and 4(h) hereof, each
Exchanging Dealer) severally agrees to indemnify and hold harmless (i)
the Company, (ii) each of the directors of the Company, (iii) each of
the officers of the Company who signs such Registration Statement and
(iv) each Person who controls the Company within the meaning of either
the Securities Act or the Exchange Act to the same extent as the
foregoing indemnity from the Company to each such Holder, but only with
respect to written information 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 that any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 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 6, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify
the indemnifying party (i) will not relieve the indemnifying party 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 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 (and local 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 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. It is
understood that the indemnifying party shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be
liable for the fees and expenses of more than one separate firm (in
addition to any local counsel) for all such indemnified parties and
that all such fees and expenses shall be reimbursed as they are
incurred. 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 6 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party,
shall have a joint
14
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 the 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 that resulted in such Losses; PROVIDED,
HOWEVER, that in no case shall the Initial Purchasers or any
subsequent Holder of any Security or Exchange 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 an Exchange
Note, applicable to the Security that was exchangeable into such
Exchange Security, as set forth on the cover page of the Final
Memorandum, nor shall any underwriter be responsible for any amount in
excess of the underwriting discount or commission applicable to the
Notes purchased by such underwriter under the Registration Statement
that 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 that 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 total net proceeds from the
Initial Placement (before deducting expenses) as set forth on the cover
page of the Final Memorandum. Benefits received by the Initial
Purchasers shall be deemed to be equal to the total purchase discounts
and commissions as set forth on the cover page of the Final Memorandum,
and benefits received by any other Holders shall be deemed to be equal
to the value of receiving Notes or Exchange Notes, as applicable,
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 that resulted
in such Losses. Relative fault shall be determined by reference to
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 parties agree that it would
not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation that did 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 6, 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 the
Company within the meaning of either the Securities Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director 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).
(e) The provisions of this Section 6 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 officers, directors or controlling
persons referred to in Section 6 hereof, and will survive the sale by a
Holder of Notes covered by a Registration Statement.
7. RULE 144A
The Company hereby agrees with each Holder, for so long as any
Transfer Restricted Securities remain outstanding, to make available to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information required by
Rule 144A(d)(4) under the Securities Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
15
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such underwriting arrangements.
9. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the
Shelf Registration Statement who desire to do so may sell such Transfer
Restricted Securities in an Underwritten Offering. In any such Underwritten
Offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be selected by the Holders of a majority
in aggregate principal amount of the Transfer Restricted Securities included in
such offering; PROVIDED, that such investment bankers and managers must be
reasonably satisfactory to the Company.
10. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENT. The Company has not, as of the
date hereof, entered into, nor shall it, on or after the date hereof,
enter into, any agreement that conflicts with the rights granted to the
Holders herein or otherwise conflicts with the provisions hereof.
(b) 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 Notes
(or, after the consummation of any Exchange Offer in accordance with
Section 2 hereof, of Exchange Notes); PROVIDED that, with respect to
any matter that directly or indirectly affects the rights of the
Initial Purchasers hereunder, the Company shall obtain the written
consent of the Initial Purchasers. 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 Initial Notes or Exchange Notes 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 Notes being sold
rather than registered under such Registration Statement.
(c) 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:
(i) if to a Holder, at the most current address given
by such Holder to the Company in accordance with the
provisions of this Section 7(c), which address initially is,
with respect to each Holder, the address of such Holder
maintained by the Trustee, with a copy in like manner to
Lehman Brothers LLC.;
(ii) if to the Initial Purchasers, at Lehman Brothers
Inc., Three World Financial Center, New York, New York 10285,
Attention: High Yield Capital Markets, with a copy to Weil,
Gotshal & Manges LLP, 767 Fifth Avenue, New York, New York
10153, Attention: Jeremy W. Dickens; and
(iii) if to the Company, American Cellular
Corporation, 13439 N. Broadway Extension, Suite 200, Oklahoma
City, Oklahoma 73114, Attention: Bruce R. Knoohuizen, with a
copy to McAfee & Taft A Professional Corporation, 211 North
Robinson, Suite 1000, Oklahoma City, Oklahoma 73102,
Attention: Theodore M. Elam.
16
All such notices and communications shall be deemed to have
been duly given when received. The Initial Purchasers, on the one hand,
or the Company, on the other, by notice to the other party or parties
may designate additional or different addresses for subsequent notices
or communications.
(d) SUCCESSORS AND ASSIGNS. 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 Initial Notes
and/or Exchange Notes. The Company hereby agrees to extend the benefits
of this Agreement to any Holder of Initial Notes and/or Exchange Notes
and any such Holder may specifically enforce the provisions of this
Agreement as if an original party hereto.
(e) COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same
Agreement.
(f) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(h) SEVERABILITY. In the event that any one or 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.
(i) INITIAL NOTES HELD BY THE COMPANY, ETC. Whenever the
consent or approval of Holders of a specified percentage of the
aggregate principal amount of Initial Notes or Exchange Notes is
required hereunder, Initial Notes or Exchange Notes, as applicable,
held by the Company or its Affiliates (other than subsequent Holders of
Initial Notes or Exchange Notes if such subsequent Holders are deemed
to be Affiliates solely by reason of their holdings of such Initial
Notes or Exchange Notes) shall not be counted in determining whether
such consent or approval was given by the Holders of such required
percentage.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
17
Please confirm that the foregoing correctly sets forth the
agreements under the Registration Rights Agreement between the Company and you.
Very truly yours,
AMERICAN CELLULAR CORPORATION
By: /s/ Everett R. Dobson
----------------------------
Name: Everett R. Dobson
Title: President
The foregoing Agreement is hereby accepted as of the date first above written.
LEHMAN BROTHERS INC.
By: /s/ Terry Hoffmeister
-----------------------------
Name: Terry Hoffmeister
Title: Managing Director
BANC OF AMERICA SECURITIES LLC
By: /s/ Ray Cubero
-----------------------------
Name: Ray Cubero
Title: Managing Director
ANNEX A
Each broker-dealer that receives Exchange Notes for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Notes received in exchange for Notes where such Notes
were acquired by such broker-dealer as a result of market-making activities or
other trading activities. The Company has agreed that, starting on the
Expiration Date (as defined herein) and ending on the close of business one year
after the Expiration Date, it will make this Prospectus available to any
broker-dealer for use in connection with any such resale. See "Plan of
Distribution."
ANNEX B
Each broker-dealer that receives Exchange Notes for its own
account in exchange for Notes, where such Notes were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes. See "Plan of Distribution."
ANNEX C
Each broker-dealer that receives Exchange Notes for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Notes where such Notes were acquired as a result of market-making
activities or other trading activities. The Company has agreed that, starting on
the Expiration Date and ending on the close of business one year after the
Expiration Date, it will make this Prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In
addition, until such date all dealers effecting transactions in the Exchange
Notes may be required to deliver a prospectus.
ANNEX D
If the undersigned is a broker-dealer that will receive
Exchange Notes for its own account in exchange for Notes, it represents that the
Notes to be exchanged for the Exchange Notes were acquired by it as a result of
market-making activities or other trading activities and acknowledges that it
will deliver a prospectus in connection with any resale of such Exchange Notes;
however, by so acknowledging and by delivering a prospectus, the undersigned
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act.