REGISTRATION RIGHTS AGREEMENT Dated as of May 5, 2006 by and Among Rural Cellular Corporation as Issuer, the Guarantors and Lehman Brothers Inc., Morgan Stanley & Co. Incorporated and Lazard Capital Markets as the Initial Purchasers

 

Exhibit 4.1(c)
 
REGISTRATION RIGHTS AGREEMENT
Dated as of May 5, 2006
by and among
Rural Cellular Corporation
as Issuer,
the Guarantors
and
Lehman Brothers Inc.,
Morgan Stanley & Co. Incorporated
and
Lazard Capital Markets
as the Initial Purchasers
 

 

 

          This Registration Rights Agreement (this “Agreement”) is dated as of May 5, 2006, by and amongRural Cellular Corporation, a Minnesota corporation (the “Company”), RCC Atlantic, Inc., RCCAtlantic Licenses, Inc., RCC Minnesota, Inc., TLA Spectrum, LLC, RCC Transport, Inc., AlexandriaIndemnity Corporation (collectively, the “Guarantors”) and Lehman Brothers Inc., Morgan Stanley &Co. Incorporated and Lazard Capital Markets (each, an “Initial Purchaser” and, collectively, the“Initial Purchasers”), each of whom has agreed to purchase the $160,000,000 in aggregate principalamount of the Company’s 81/4% Senior Secured Notes due March 15, 2012 (the “Notes”), which Notes areguaranteed by the Guarantors (the “Guarantees”), in each case, pursuant to the Purchase Agreement(as defined below). The Notes and the Guarantees are referred to together as the “Securities”.
          This Agreement is made pursuant to the Purchase Agreement, dated as of April 26, 2006 (the“Purchase Agreement”), by and among the Company, the Guarantors and the Initial Purchasers. Inorder to induce the Initial Purchasers to purchase the Securities, the Company has agreed toprovide the registration rights set forth in this Agreement. The execution and delivery of thisAgreement is a condition to the obligations of the Initial Purchasers set forth in Section 5(j) ofthe Purchase Agreement. Capitalized terms used herein and not otherwise defined shall have themeanings assigned to them in the Indenture, dated as of March 25, 2004, and as supplemented by theSupplemental Indenture, dated as of July 29, 2004 (the “Indenture”), among the Company, theGuarantors and U.S. Bank National Association, as Trustee (the “Trustee”), relating to theSecurities and the Exchange Securities (as defined below).
          The parties hereby agree as follows:
SECTION 1. DEFINITIONS
          As used in this Agreement, the following capitalized terms shall have the following meanings:
          Act: The U.S. Securities Act of 1933.
          Affiliate: As defined in Rule 144 of the Act.
          Broker-Dealer: Any broker or dealer registered under the Exchange Act.
          Closing Date: The date of this Agreement.
          Commission: The U.S. Securities and Exchange Commission.
          Consummate: An Exchange Offer shall be deemed “Consummated” for purposes of this Agreementupon the occurrence of (a) the filing and effectiveness under the Act of the Exchange OfferRegistration Statement relating to the Exchange Securities to be issued in the Exchange Offer, (b)the maintenance of such Exchange Offer Registration Statement continuously effective and thekeeping of the Exchange Offer open for a period not less than the minimum period required pursuantto Section 3(b) hereof and (c) the delivery by the Company to the Registrar under the Indenture of


 

 

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Exchange Securities in the same aggregate principal amount as the aggregate principal amountof Securities of like class tendered by Holders thereof pursuant to the Exchange Offer.
          Consummation Deadline: As defined in Section 3(b) hereof.
          Effectiveness Deadline: As defined in Section 3(a) and 4(a) hereof.
          Exchange Act: The U.S. Securities Exchange Act of 1934.
          Exchange Offer: The offer to exchange New Securities (whose issuance shall be registeredpursuant to the Exchange Offer Registration Statement) for a like outstanding principal amount ofSecurities that are tendered by the Holders thereof.
          Exchange Offer Registration Statement: The Registration Statement relating to the ExchangeOffer, including the related Prospectus.
          Exempt Resales: The transactions in which the Initial Purchasers propose to sell theSecurities to certain “qualified institutional buyers,” as such term is defined in Rule 144A underthe Act, and pursuant to Regulation S under the Act.
          Exchange Securities: The New Securities whose issuance is registered under the Act, to beissued pursuant to the Indenture (a) in the Exchange Offer or (b) as contemplated by Section 4hereof.
          Filing Deadline: As defined in Sections 3(a) and 4(a) hereof.
          Holders: As defined in Section 2 hereof.
          Interest Payment Date: Each March 15 and September 15, commencing on September 15, 2006.
          New Securities: The Company’s Series B 8 1/4 % Senior Secured Notes due 2012 and the guaranteesof the Guarantors thereof.
          Person: As defined in the Indenture.
          Prospectus: The prospectus included in a Registration Statement at the time such RegistrationStatement is declared effective, as amended or supplemented by any prospectus supplement and by allother amendments thereto, including post-effective amendments, and all material incorporated byreference into such Prospectus.
          Recommencement Date: As defined in Section 6(e) hereof.
          Registration Default: As defined in Section 5 hereof.
          Registration Statement: Any registration statement of the Company relating to (a) an offeringof Exchange Securities pursuant to an Exchange Offer or (b) the registration for resale of TransferRestricted Securities pursuant to the Shelf


 

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Registration Statement, in each case (i) that is filed pursuant to the provisions of thisAgreement and (ii) including the Prospectus included therein, all amendments and supplementsthereto (including post-effective amendments) and all exhibits and material incorporated byreference therein.
          Regulation S: Regulation S promulgated under the Act.
          Rule 144: Rule 144 promulgated under the Act.
          Shelf Registration Statement: As defined in Section 4(a) hereof.
          Suspension Notice: As defined in Section 6(e) hereof.
          TIA: The U.S. Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as in effect onthe date of the Indenture.
          Transfer Restricted Securities: Each Security, until the earliest to occur of (a) the date onwhich such Security has been exchanged by a Person other than a Broker-Dealer for an ExchangeSecurity in the Exchange Offer, (b) following the exchange by a Broker-Dealer in the Exchange Offerof a Security for an Exchange Security, the date on which such Exchange Security is sold to apurchaser who receives from such Broker-Dealer on or prior to the date of such sale a copy of theProspectus contained in the Exchange Offer Registration Statement, (c) the date on which suchSecurity has been effectively registered under the Act and disposed of in accordance with the ShelfRegistration Statement, (d) the date on which such Security is distributed to the public pursuantto Rule 144 under the Act, or is saleable pursuant to Rule 144(k) under the Act (or similarprovision then in effect), or (e) the date on which such Security ceases to be outstanding;provided, however, that for purposes of this Agreement (other than Section 9 hereof), Securitieswith respect to which the Company has caused to be filed and declared effective an Exchange OfferRegistration Statement and has Consummated an Exchange Offer, in each case pursuant to and inaccordance with Section 3 hereof, and which have not been tendered by the date such Exchange Offeris Consummated by the holder thereof shall not be deemed to be Transfer Restricted Securities,except to the extent the holder thereof provides the notice contemplated by Section 4(a)(ii).
          Underwritten Registration or Underwritten Offering: A registration in which securities of theCompany and/or the Guarantors are sold to an underwriter for reoffering to the public.
SECTION 2. HOLDERS
          A Person is deemed to be a holder of Transfer Restricted Securities (each, a “Holder”)whenever such Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
          (a) Unless the Exchange Offer shall not be permitted by applicable law or Commission policy(after the procedures set forth in Section 6(a)(iii)(A) below


 

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have been complied with), the Company and the Guarantors shall (i) cause the Exchange OfferRegistration Statement to be filed with the Commission on or prior to 180 days after the ClosingDate (the “Filing Deadline”), (ii) use their commercially reasonable efforts to cause such ExchangeOffer Registration Statement to become effective on or prior to 60 days after the Exchange OfferRegistration Statement is filed (the “Effectiveness Deadline”), (iii) in connection with theforegoing, (A) file all pre-effective amendments to such Exchange Offer Registration Statement asmay be reasonably necessary in order to cause it to become effective, (B) file, if applicable, apost-effective amendment to such Exchange Offer Registration Statement pursuant to Rule 430A underthe Act and (C) cause all necessary filings, if any, in connection with the registration andqualification of the Exchange Securities to be made under the Blue Sky laws of such jurisdictionsas are necessary to permit Consummation of the Exchange Offer, and (iv) upon the effectiveness ofsuch Exchange Offer Registration Statement, commence, and use their commercially reasonable effortsto Consummate, the Exchange Offer. The Exchange Offer shall be on the appropriate form permitting(I) registration of the Exchange Securities to be offered in exchange for the Securities that areTransfer Restricted Securities and (II) resales of Exchange Securities by Broker-Dealers thattendered into the Exchange Offer Securities that such Broker-Dealer acquired for its own account asa result of market making activities or other trading activities (other than Securities acquireddirectly from the Company or any Affiliate of the Company) as contemplated by Section 3(c) below.
          (b) The Company and the Guarantors shall use their commercially reasonable efforts to causethe Exchange Offer Registration Statement to be effective continuously, and shall keep the ExchangeOffer open for a period of not less than the minimum period required under applicable federal andstate securities laws to Consummate the Exchange Offer; provided, however, that in no event shallsuch period be less than 20 Business Days. The Company and the Guarantors shall cause the ExchangeOffer to comply with all applicable federal and state securities laws. No securities other thanthe Exchange Securities shall be included in the Exchange Offer Registration Statement. TheCompany and the Guarantors shall use their commercially reasonable efforts to cause the ExchangeOffer to be Consummated no later than 30 Business Days after the Exchange Offer RegistrationStatement is declared effective (the “Consummation Deadline”).
          (c) The Company and the Guarantors shall include a “Plan of Distribution” section in theProspectus contained in the Exchange Offer Registration Statement and indicate therein that anyBroker-Dealer who holds Transfer Restricted Securities that were acquired for the account of suchBroker-Dealer as a result of market-making activities or other trading activities (other thanTransfer Restricted Securities acquired directly from the Company or any Affiliate of the Company),may exchange such Transfer Restricted Securities pursuant to the Exchange Offer. Such “Plan ofDistribution” section shall also contain all other information with respect to such sales by suchBroker-Dealers that the Commission may require in order to permit such sales pursuant thereto, butsuch “Plan of Distribution” shall not name any such Broker-Dealer or disclose the amount ofTransfer Restricted Securities held by any such


 

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Broker-Dealer, except to the extent required by the Commission as a result of a change inpolicy, rules or regulations after the date of this Agreement.
          Because such a Broker-Dealer may be deemed to be an “underwriter” within the meaning of theAct and must, therefore, deliver a prospectus meeting the requirements of the Act in connectionwith its initial sale of any Exchange Securities received by such Broker-Dealer in the ExchangeOffer, the Company and the Guarantors shall permit the use of the Prospectus contained in theExchange Offer Registration Statement by such Broker-Dealer to satisfy such prospectus deliveryrequirement. To the extent necessary to ensure that the prospectus contained in the Exchange OfferRegistration Statement is available for sales of Exchange Securities by Broker-Dealers, the Companyand the Guarantors agree to use their commercially reasonable efforts to keep the Exchange OfferRegistration Statement continuously effective, supplemented, amended and current as required by andsubject to the provisions of Section 6(a) and (c) hereof and in conformity with the requirements ofthis Agreement, the Act and the policies, rules and regulations of the Commission as announced fromtime to time, for a period of one year from the date on which the Exchange Offer is Consummated orsuch shorter period as will terminate when all Transfer Restricted Securities covered by suchRegistration Statement have been sold pursuant thereto. The Company and the Guarantors shallprovide sufficient copies of the latest version of such Prospectus to such Broker-Dealers, promptlyupon request, at any time during such period.
SECTION 4. SHELF REGISTRATION
          (a) Shelf Registration. If (i) the Exchange Offer Registration Statement is notrequired to be filed or the Exchange Offer is not permitted by applicable law or Commission policy(after the Company and the Guarantors have complied with the procedures set forth in Section6(a)(iii)(A) hereof) or (ii) any Holder of Transfer Restricted Securities shall notify the Companyand the Guarantors within 20 Business Days following the Consummation of the Exchange Offer that(A) such Holder was prohibited by applicable law or Commission policy from participating in theExchange Offer, (B) such Holder may not resell the Exchange Securities acquired by it in theExchange Offer to the public without delivering a prospectus and the Prospectus contained in theExchange Offer Registration Statement is not appropriate or available for such resales by suchHolder or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from theCompany or any Affiliate of the Company, then the Company and the Guarantors shall:
               (I) cause to be filed, on or prior to 180 days after the earlier of (x) the date on which theCompany and the Guarantors determine that the Exchange Offer Registration Statement cannot be filedas a result of clause (a)(i) of this Section and (y) the date on which the Company receives thenotice specified in clause (a)(ii) of this Section (such earlier date, the “Filing Deadline”), ashelf registration statement pursuant to Rule 415 under the Act (which may be an amendment to theExchange Offer Registration Statement (in either event, the “Shelf Registration Statement”)),relating to all Transfer Restricted Securities; and

 

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               (II) use their commercially reasonable efforts to cause such Shelf Registration Statement tobe declared effective on or prior to 60 days after the Filing Deadline for the Shelf RegistrationStatement (the “Effectiveness Deadline”).
          If, after the Company and the Guarantors have filed an Exchange Offer Registration Statementthat satisfies the requirements of Section 3(a) above, the Company and the Guarantors are requiredto file and make effective a Shelf Registration Statement solely because the Exchange Offer is notpermitted under applicable law or Commission policy, then the filing of the Exchange OfferRegistration Statement shall be deemed to satisfy the requirements of clause (I) above; providedthat, in such event, the Company and the Guarantors shall remain obligated to meet theEffectiveness Deadline in the manner set forth in clause (II) above.
          To the extent necessary to ensure that the Shelf Registration Statement is available for salesof Transfer Restricted Securities by the Holders thereof entitled to the benefit of this Section4(a) and the other securities required to be registered therein pursuant to Section 6(b)(ii)hereof, the Company and the Guarantors shall use their commercially reasonable efforts to keep anyShelf Registration Statement required by this Section 4(a) continuously effective, supplemented,amended and current as required by and subject to the provisions of Sections 6(b) and (c) hereofand in conformity with the requirements of this Agreement, the Act and the policies, rules andregulations of the Commission as announced from time to time, for a period of at least two years(as extended pursuant to Section 6(c)(i) hereof) following the Closing Date, or such shorter periodas will terminate when all Transfer Restricted Securities covered by such Shelf RegistrationStatement have been sold pursuant thereto.
          (b) Provision by Holders of Certain Information in Connection with the Shelf RegistrationStatement. No Holder of Transfer Restricted Securities may include any of its TransferRestricted Securities in any Shelf Registration Statement pursuant to this Agreement unless anduntil such Holder furnishes to the Company in writing, within 20 days after receipt of a requesttherefor, the information specified in Item 507 or 508 of Regulation S-K, as applicable, of the Actfor use in connection with any Shelf Registration Statement or Prospectus or preliminary Prospectusincluded therein. No Holder of Transfer Restricted Securities shall be entitled to liquidateddamages pursuant to Section 5 hereof unless and until such Holder shall have provided all suchinformation. By its acceptance of Transfer Restricted Securities, each Holder agrees to promptlyfurnish additional information required to be disclosed in order to make the information previouslyfurnished to the Company by such Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
          If (a) any Registration Statement required by this Agreement is not filed with the Commissionon or prior to the applicable Filing Deadline, (b) any such Registration Statement has not beendeclared effective by the Commission on or prior to the applicable Effectiveness Deadline, (c) theExchange Offer has not been Consummated on or prior to the Consummation Deadline or (d) anyRegistration


 

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Statement required by this Agreement is filed and declared effective but shall thereaftercease to be effective or fail to be usable for its intended purpose during the periods in which itis required to be effective pursuant to Section 3 or 4 without being succeeded within two BusinessDays by a post-effective amendment to such Registration Statement that cures such failure and thatis itself declared effective within five Business Days after filing such post-effective amendmentto such Registration Statement (each such event referred to in clauses (a) through (d), a“Registration Default”), then the Company and the Guarantors hereby jointly and severally agree topay to each Holder of Transfer Restricted Securities affected thereby liquidated damages in anamount equal to $0.05 per week per $1,000 in principal amount of Transfer Restricted Securitiesheld by such Holder for the first 90-day period immediately following the occurrence of suchRegistration Default. The amount of the liquidated damages shall increase by an additional $0.05per week per $1,000 in principal amount of Transfer Restricted Securities with respect to eachsubsequent 90-day period until all Registration Defaults have been cured, up to a maximum amount ofliquidated damages of $0.50 per week per $1,000 in principal amount of Transfer RestrictedSecurities; provided that the Company and the Guarantors shall in no event be required to payliquidated damages for more than one Registration Default at any given time. Notwithstandinganything to the contrary set forth herein, (i) upon filing of the Exchange Offer RegistrationStatement (and/or, if applicable, the Shelf Registration Statement), in the case of (a) above, (ii)upon the effectiveness of the Exchange Offer Registration Statement (and/or, if applicable, theShelf Registration Statement), in the case of (b) above, (iii) upon Consummation of the ExchangeOffer, in the case of (c) above, or (iv) upon the filing of a post-effective amendment to theRegistration Statement or an additional Registration Statement that causes the Exchange OfferRegistration Statement (and/or, if applicable, the Shelf Registration Statement) to again bedeclared effective or made usable, in the case of (d) above, the liquidated damages payable withrespect to the Transfer Restricted Securities as a result of such clause (a), (b), (c) or (d), asapplicable, shall cease to accrue.
          All accrued liquidated damages shall be paid to the Holders of a class of Transfer RestrictedSecurities entitled thereto, in the manner provided for the payment of interest in the Indenture,on each Interest Payment Date for such class of Transfer Restricted Securities, as more fully setforth in the Indenture and the Securities and the Exchange Securities. Notwithstanding the factthat any securities for which liquidated damages are due cease to be Transfer RestrictedSecurities, all obligations of the Company and the Guarantors to pay liquidated damages withrespect to securities shall survive until such time as such obligations with respect to suchsecurities shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
          (a) Exchange Offer Registration Statement. In connection with the Exchange Offer, theCompany and the Guarantors shall (i) comply with all applicable provisions of Section 6(c) below,(ii) use their commercially reasonable efforts to effect such exchange and to permit the resale ofExchange Securities by any Broker-Dealer that tendered Securities in the Exchange Offer that suchBroker-Dealer acquired for its own account as a result of its market-making activities or othertrading activities (other than


 

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Securities acquired directly from the Company, the Guarantors or any Affiliate of the Companyor the Guarantors) being sold in accordance with the intended method or methods of distributionthereof, and (iii) comply with all of the following provisions:
     (A) If, following the date hereof, there has been announced a change in Commissionpolicy with respect to exchange offers such as the Exchange Offer that in the reasonableopinion of counsel to the Company raises a substantial question as to whether the ExchangeOffer is permitted by applicable federal law or Commission policy, the Company and theGuarantors hereby agree to seek a no-action letter or other favorable decision from theCommission allowing the Company and the Guarantors to Consummate an Exchange Offer for suchTransfer Restricted Securities. The Company and the Guarantors hereby agree to pursue theissuance of such a decision to the Commission staff level. In connection with theforegoing, the Company and the Guarantors hereby agree to take all such other actions asmay be requested by the Commission or otherwise required in connection with the issuance ofsuch decision, including without limitation (I) participating in telephonic conferenceswith the Commission staff, (II) delivering to the Commission staff an analysis prepared bycounsel to the Company setting forth the legal bases, if any, upon which such counsel hasconcluded that such an Exchange Offer should be permitted and (III) diligently pursuing aresolution (which need not be favorable) by the Commission staff.
     (B) As a condition to its participation in the Exchange Offer, each Holder of TransferRestricted Securities (including, without limitation, any Holder who is a Broker-Dealer)shall furnish, upon the request of the Company or any of the Guarantors, prior to theConsummation of the Exchange Offer, a written representation to the Company and theGuarantors (which may be contained in the letter of transmittal contemplated by theExchange Offer Registration Statement) to the effect that (I) it is not an Affiliate of theCompany or any of the Guarantors, (II) it is not engaged in, and does not intend to engagein, and has no arrangement or understanding with any person to participate in, adistribution of the Exchange Securities to be issued in the Exchange Offer, (III) it isacquiring the Exchange Securities in its ordinary course of business and (IV) such otherrepresentations as may be necessary under applicable Commission rules, regulations orinterpretations. Each Holder using the Exchange Offer to participate in a distribution ofthe Exchange Securities will be required to acknowledge and agree that, if the resales areof Exchange Securities obtained by such Holder in exchange for Securities acquired directlyfrom the Company or an Affiliate thereof, it (1) could not, under Commission policy as ineffect on the date of this Agreement, rely on the position of the Commission enunciated inMorgan Stanley and Co., Inc. (available June 5, 1991) and Exxon CapitalHoldings Corporation (available May 13, 1988), as interpreted in the Commission’sletter to Shearman & Sterling dated July 2, 1993, and similar no-action letters(including, if applicable, any no-action letter obtained pursuant to clause (A) above), and(2) must comply with the registration and prospectus delivery requirements of the Act inconnection with a secondary resale transaction and that such a secondary resale transactionmust be covered by an effective

 

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registration statement containing the selling security holder information required byItem 507 or 508, as applicable, of Regulation S-K.
     (C) Prior to effectiveness of the Exchange Offer Registration Statement, the Companyand the Guarantors shall provide a supplemental letter to the Commission (I) stating thatthe Company and the Guarantors are registering the Exchange Offer in reliance on theposition of the Commission enunciated in Exxon Capital Holdings Corporation(available May 13, 1988), Morgan Stanley and Co., Inc. (available June 5, 1991), asinterpreted in the Commission’s letter to Shearman & Sterling dated July 2, 1993,and, if applicable, any no-action letter obtained pursuant to clause (A) above, (II)including a representation that the Company and the Guarantors have not entered into anyarrangement or understanding with any Person to distribute the Exchange Securities to bereceived in the Exchange Offer and that, to the best of the Company’s and the Guarantors’information and belief, each Holder participating in the Exchange Offer is acquiring theExchange Securities in its ordinary course of business and has no arrangement orunderstanding with any Person to participate in the distribution of the Exchange Securitiesreceived in the Exchange Offer and (III) any other undertaking or representation requiredby the Commission as set forth in any no-action letter obtained pursuant to clause (A)above, if applicable;
     (D) At the completion of the Exchange Offer, each Guarantor shall affirm in writing tothe Trustee that its Guarantee applies to each Exchange Security. The Exchange OfferRegistration Statement shall state that the receipt of such affirmations is a condition tothe closing of the Exchange Offer, and the Exchange Offer shall be deemed not to have beenConsummated unless such affirmations have been made at the closing of the Exchange Offer.
          (b) Shelf Registration Statement. In connection with the Shelf RegistrationStatement, the Company shall:
               (i) comply with all the provisions of Section 6(c) and (d) below and use its commerciallyreasonable efforts to effect such registration to permit the sale of the Transfer RestrictedSecurities being sold in accordance with the intended method or methods of distribution thereof (asindicated in the information furnished to the Company pursuant to Section 4(b) hereof), andpursuant thereto the Company and the Guarantors will prepare and file with the Commission aRegistration Statement relating to the registration on any appropriate form under the Act, whichform shall be available for the sale of the Transfer Restricted Securities in accordance with theintended method or methods of distribution thereof within the time periods and otherwise inaccordance with the provisions hereof; and
               (ii) issue, upon the request of any Holder or purchaser of Securities covered by any ShelfRegistration Statement contemplated by this Agreement, Exchange Securities of the same class havingan aggregate principal amount equal to the aggregate principal amount of Securities sold pursuantto the Shelf Registration Statement and surrendered to the Company for cancellation; the Companyand the

 

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Guarantors shall register the Exchange Securities on the Shelf Registration Statement for thispurpose and issue the Exchange Securities to the purchaser(s) of securities subject to the ShelfRegistration Statement in such names as the purchaser(s) shall designate.
          (c) General Provisions. In connection with any Registration Statement and any relatedProspectus required by this Agreement, the Company and the Guarantors shall:
               (i) use their commercially reasonable efforts to keep such Registration Statement continuouslyeffective and provide all requisite financial statements for the period specified in Section 3 or 4hereof, as applicable. Upon the occurrence of any event that would cause any such RegistrationStatement or the Prospectus contained therein (A) to contain an untrue statement of material factor omit to state any material fact necessary to make the statements therein not misleading or (B)not to be effective and usable for resale of Transfer Restricted Securities during the periodsrequired by this Agreement, the Company and the Guarantors shall file promptly an appropriateamendment to such Registration Statement curing such defect, and, if Commission review is required,use their commercially reasonable efforts to cause such amendment to be declared effective as soonas practicable. If at any time the Commission shall issue any stop order suspending theeffectiveness of any Registration Statement, or any state securities commission or other regulatoryauthority shall issue an order suspending the qualification or exemption from qualification of theTransfer Restricted Securities under state securities or Blue Sky laws, the Company and theGuarantors shall use their commercially reasonable efforts to obtain the withdrawal or lifting ofsuch order at the earliest possible time;
               (ii) use their commercially reasonable efforts to prepare and file with the Commission suchamendments and post-effective amendments to the applicable Registration Statement as may benecessary to keep such Registration Statement effective for the applicable period set forth inSection 3 or 4 hereof, as the case may be; use its commercially reasonable efforts to cause theProspectus to be supplemented by any required Prospectus supplement, and as so supplemented to befiled pursuant to Rule 424 under the Act, and to comply fully with Rules 424, 430A and 462, asapplicable, under the Act in a timely manner during the applicable period; and comply with theprovisions of the Act with respect to the disposition of all securities covered by suchRegistration Statement during the applicable period in accordance with the intended method ormethods of distribution by the sellers thereof set forth in such Registration Statement orsupplement to the Prospectus;
               (iii) in connection with any sale of Transfer Restricted Securities that will result in suchsecurities no longer being Transfer Restricted Securities, cooperate with the Holders to facilitatethe timely preparation and delivery of certificates representing such Transfer RestrictedSecurities to be sold and not bearing any restrictive legends; and to register such TransferRestricted Securities in such denominations and such names as the selling Holders may request atleast two Business Days prior to such sale of Transfer Restricted Securities;

 

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               (iv) use their commercially reasonable efforts to cause the disposition of the TransferRestricted Securities covered by the Registration Statement to be registered with or approved bysuch other governmental agencies or authorities as may be necessary to enable the seller or sellersthereof to consummate the disposition of such Transfer Restricted Securities; provided, however,that none of the Company and the Guarantors shall be required to register or qualify as a foreigncorporation where it is not now so qualified or to take any action that would subject it to theservice of process in suits or to taxation, other than as to matters and transactions relating tothe Registration Statement, in any jurisdiction where it is not now so subject;
               (v) provide a CUSIP number for all Transfer Restricted Securities not later than the effectivedate of a Registration Statement covering such Transfer Restricted Securities and provide theTrustee under the Indenture with certificates for the Transfer Restricted Securities which are in aform eligible for deposit with the Depositary under the Indenture;
               (vi) otherwise (A) use their commercially reasonable efforts to comply with all applicablerules and regulations of the Commission, and (B) make generally available to its security holderswith regard to any applicable Registration Statement, as soon as reasonably practicable, aconsolidated earnings statement meeting the requirements of Rule 158 (which need not be audited)covering a twelve-month period beginning after the effective date of the Registration Statement (assuch term is defined in paragraph (c) of Rule 158 under the Act); and
               (vii) cause the Indenture to be deemed qualified under the TIA upon the effectiveness of theapplicable Registration Statement required by this Agreement and, in connection therewith,cooperate with the Trustee and the Holders to effect such changes to the Indenture as may berequired for such Indenture to be so qualified in accordance with the terms of the TIA; andexecute, and use their commercially reasonable efforts to cause the Trustee to execute, alldocuments that may be required to effect such changes and all other forms and documents required tobe filed with the Commission to enable such Indenture to be so qualified in a timely manner.
          (d) Additional Provisions Applicable to Shelf Registration Statements and Certain ExchangeOffer Prospectuses. In connection with each Shelf Registration Statement, and each ExchangeOffer Registration Statement if and to the extent that an Initial Purchaser has notified theCompany and the Guarantors that it is a holder of Exchange Securities that are Transfer RestrictedSecurities (for so long as such Exchange Securities are Transfer Restricted Securities or for theperiod provided in Section 3 hereof, whichever is shorter), the Company and the Guarantors shall:
               (i) advise each selling Holder promptly and, if requested by such Holder, confirm such advicein writing, (A) when the Prospectus or any Prospectus supplement or post-effective amendment hasbeen filed, and, with respect to any applicable Registration Statement or any post-effectiveamendment thereto, when the same has become effective, (B) of any request by the Commission foramendments to the Registration Statement or amendments or supplements to the Prospectus or foradditional

 

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information relating thereto, (C) of the issuance by the Commission of any stop ordersuspending the effectiveness of the Registration Statement under the Act or of the suspension byany state securities commission of the qualification of the Transfer Restricted Securities foroffering or sale in any jurisdiction, or the initiation of any proceeding for any of the precedingpurposes, (D) of the existence of any fact or the happening of any event that makes any statementof a material fact made in the Registration Statement, the Prospectus, any amendment or supplementthereto or any document incorporated by reference therein untrue, or that requires the making ofany additions to or changes in the Registration Statement in order to make the statements thereinnot misleading, or that requires the making of any additions to or changes in the Prospectus inorder to make the statements therein, in the light of the circumstances under which they were made,not misleading (it being understood that in the case of this clause 6(d)(i)(D), only the existenceof the fact or event must be disclosed and the nature of the facts or events may be keptconfidential for such period as reasonably required for bona fide business reasons);
               (ii) if any fact or event contemplated by Section 6(d)(i)(D) above shall exist or haveoccurred, prepare a supplement or post-effective amendment to the Registration Statement or relatedProspectus or any document incorporated therein by reference or file any other required document sothat, as thereafter delivered to the purchasers of Transfer Restricted Securities, the Prospectuswill not contain an untrue statement of a material fact or omit to state any material factnecessary to make the statements therein, in the light of the circumstances under which they weremade, not misleading;
               (iii) subject to Section 6(e), furnish to each selling Holder in connection with such exchangeor sale, if any, before filing with the Commission, copies of any Registration Statement or anyProspectus included therein (except the Prospectus included in the Exchange Offer RegistrationStatement at the time it was declared effective) or any amendments or supplements to any suchRegistration Statement or Prospectus (including all documents incorporated by reference after theinitial filing of such Registration Statement), which documents will be subject to the review andcomment of such Holders in connection with such sale, if any, for a period of at least fiveBusiness Days, and the Company will not file any such Registration Statement or Prospectus or anyamendment or supplement to any such Registration Statement or Prospectus (including all suchdocuments incorporated by reference) to which a Holder of Transfer Restricted Securities covered bysuch Registration Statement shall reasonably object in writing within five Business Days after thereceipt thereof. A Holder shall be deemed to have reasonably objected to such filing if suchRegistration Statement, amendment, Prospectus or supplement, as applicable, as proposed to befiled, contains an untrue statement of a material fact or omits to state any material factnecessary to make the statements therein not misleading or fails to comply with the applicablerequirements of the Act;
               (iv) promptly prior to the filing of any document that is to be incorporated by reference intoa Registration Statement or Prospectus, provide copies of such document to each selling Holdernamed in the Registration Statement in connection

 

13

with such exchange or sale, if any, make the Company’s representatives available as may bereasonably necessary for discussion of such document and other customary due diligence matters, andinclude such information in such document prior to the filing thereof as such Holders mayreasonably request;
               (v) make available, subject to appropriate confidentiality agreements, during reasonablebusiness hours, for inspection in the offices where such records are normally maintained by eachselling Holder and any attorney or accountant retained by such selling Holders, all relevantfinancial and other records, pertinent corporate documents of the Company and the Guarantors as maybe reasonably necessary to enable them to exercise the appropriate due diligence responsibility,and cause the Company’s officers, directors and employees to supply all information that is (a)reasonably requested by any such selling Holder, attorney or accountant in connection with suchRegistration Statement or any post-effective amendment thereto subsequent to the filing thereof andprior to its effectiveness and (b) customarily furnished in transactions of the type contemplatedby such Registration Statement;
               (vi) if requested by any selling Holders in connection with such exchange or sale, promptlyinclude in any Registration Statement or Prospectus, pursuant to a supplement or post-effectiveamendment if necessary, such information as such selling Holders may reasonably request to haveincluded therein, including, without limitation, information relating to the “Plan of Distribution”of the Transfer Restricted Securities; and make all required filings of such Prospectus supplementor post-effective amendment as soon as practicable after the Company is notified of the matters tobe included in such Prospectus supplement or post-effective amendment;
               (vii) furnish to each selling Holder in connection with such exchange or sale without charge,at least one copy of the Registration Statement, as first filed with the Commission, and of eachamendment thereto, including all documents incorporated by reference therein and all exhibits(including exhibits incorporated therein by reference);
               (viii) deliver to each selling Holder without charge, as many copies of the Prospectus(including each preliminary prospectus) and any amendment or supplement thereto as such Holdersreasonably may request; the Company and the Guarantors hereby consent to the use (in accordancewith law) of the Prospectus and any amendment or supplement thereto by each selling Holder inconnection with the offering and the sale of the Transfer Restricted Securities covered by theProspectus or any amendment or supplement thereto;
               (ix) upon the request of any selling Holder, enter into such agreements (includingunderwriting agreements) and make such reasonable representations and warranties and take all suchother reasonable actions in connection therewith in order to expedite or facilitate the dispositionof the Transfer Restricted Securities pursuant to any applicable Registration Statementcontemplated by this Agreement as may be reasonably requested by any Holder in connection with anysale or resale pursuant to any applicable Registration Statement contemplated by this

 

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Agreement, which agreements must be in customary form. In such connection, the Company shall:
     (A) upon request of any selling Holder, furnish (or in the case of paragraphs (2) and(3), use their commercially reasonable efforts to cause to be furnished) to each sellingHolder, upon Consummation of the Exchange Offer or upon the effectiveness of the ShelfRegistration Statement, as the case may be:
          (1) a certificate, dated such date, signed on behalf of the Company and the Guarantorsby an appropriate officer of the Company and the Guarantors confirming, as of the datethereof, the accuracy of the representations and warranties made by the Company and theGuarantors in the Purchase Agreement as if made on such date, (ii) the matters set forth inSections 5(o), 5(p) and 5(r) of the Purchase Agreement, and such other similar matters assuch Holders may reasonably request;
          (2) an opinion, dated the date of Consummation of the Exchange Offer or the date ofeffectiveness of the Shelf Registration Statement, as the case may be, of counsel for theCompany and the Guarantors (which may include in-house counsel of the Company and theGuarantors) covering matters customarily covered in such opinions as such parties mayreasonably request, and in any event including a statement to the effect that such counselhas participated in conferences with officers and other representatives of the Company andthe Guarantors and representatives of the independent public accountants for the Companyand the Guarantors, and has considered the matters required to be stated therein and thestatements contained therein, although such counsel has not independently verified theaccuracy, completeness or fairness of such statements; and that such counsel advises that,on the basis of the foregoing, no facts came to such counsel’s attention that caused suchcounsel to believe that the applicable Registration Statement, at the time suchRegistration Statement or any post-effective amendment thereto became effective and, in thecase of the Exchange Offer Registration Statement, as of the date of Consummation of theExchange Offer, contained an untrue statement of a material fact or omitted to state amaterial fact required to be stated therein or necessary to make the statements therein notmisleading, or that the Prospectus contained in such Registration Statement as of its dateand, in the case of the opinion dated the date of Consummation of the Exchange Offer, as ofthe date of Consummation, contained an untrue statement of a material fact or omitted tostate a material fact necessary in order to make the statements therein, in the light ofthe circumstances under which they were made, not misleading. Without limiting theforegoing, such counsel may state further that such counsel assumes no responsibility for,and has not independently verified, the accuracy, completeness or fairness of the financialstatements, notes and schedules and other financial data included in any RegistrationStatement contemplated by this Agreement or the related Prospectus; and

 

15

          (3) a customary comfort letter, dated the date of Consummation of the Exchange Offer,or as of the date of effectiveness of the Shelf Registration Statement, as the case may be,from the independent accountants for the Company and the Guarantors, in the customary formand covering matters of the type customarily covered in comfort letters to underwriters inconnection with underwritten offerings;
     (B) deliver such other documents and certificates as may be reasonably requested bythe selling Holders to evidence compliance with the matters covered in clause (A) above andwith any customary conditions contained in any agreement entered into by the Company or anyof the Guarantors pursuant to this clause (ix);
               (x) prior to any public offering of Transfer Restricted Securities, cooperate with the sellingHolders and their counsel in connection with the registration and qualification of the TransferRestricted Securities under the securities or Blue Sky laws of such jurisdictions as the sellingHolders may reasonably request and do any and all other acts or things reasonably necessary oradvisable to enable the disposition in such jurisdictions of the Transfer Restricted Securitiescovered by the applicable Registration Statement; provided, however, that none of the Company andthe Guarantors shall be required to register or qualify as a foreign corporation where it is notnow so qualified or to take any action that would subject it to the service of process in suits orto taxation, other than as to matters and transactions relating to the Registration Statement, inany jurisdiction where it is not now so subject; and
               (xi) provide promptly to each Holder, upon request, each document filed with the Commissionpursuant to the requirements of Section 13 or Section 15(d) of the Exchange Act.
          (e) Restrictions on Holders. Each Holder’s acquisition of a Transfer RestrictedSecurity constitutes such Holder’s agreement that, upon receipt of the notice referred to inSection 6(d)(i)(C) or any notice from the Company or any of the Guarantors of the existence of anyfact of the kind described in Section 6(d)(i)(D) hereof (a “Suspension Notice”), such Holder willforthwith discontinue disposition of Transfer Restricted Securities pursuant to the applicableRegistration Statement until (i) such Holder has received copies of the supplemented or amendedProspectus contemplated by Section 6(d)(ii) hereof or (ii) such Holder is advised in writing by theCompany or any of the Guarantors that the use of the Prospectus may be resumed, and has receivedcopies of any additional or supplemental filings that are incorporated by reference in theProspectus (in each case, the “Recommencement Date”). Each Holder receiving a Suspension Noticeshall be required to either (I) destroy any Prospectuses, other than permanent file copies, then insuch Holder’s possession which have been replaced by the Company with a more recently datedProspectus or (II) deliver to the Company (at the Company’s expense) all copies, other thanpermanent file copies, then in such Holder’s possession of the Prospectus covering such TransferRestricted Securities that was current at the time of receipt of the Suspension Notice. The timeperiod regarding the effectiveness of such Registration Statement set forth in Section 3 or 4hereof, as applicable, shall be extended


 

16

by a number of days equal to the number of days in the period from and including the date ofdelivery of the Suspension Notice to the Recommencement Date.
SECTION 7. REGISTRATION EXPENSES
          (a) All expenses incident to the performance of or compliance with this Agreement by theCompany and the Guarantors will be borne by the Company and the Guarantors jointly and severally,regardless of whether a Registration Statement becomes effective, including without limitation: (i)all registration and filing fees and expenses; (ii) all fees and expenses of compliance withfederal securities and state Blue Sky or securities laws; (iii) all expenses of printing (includingcertificates for the Exchange Securities to be issued in the Exchange Offer and printing ofProspectuses), messenger and delivery services and telephone; (iv) all fees and disbursements ofcounsel for the Company and the Guarantors and one counsel for the Holders of Transfer RestrictedSecurities (which shall be Paul, Weiss, Rifkind, Wharton & Garrison LLP or such other counsel asmay be selected by the Holders of a majority in principal amount of the Transfer RestrictedSecurities for whose benefit such Registration Statement is being prepared); (v) all applicationand filing fees in connection with listing the Exchange Securities on a national securitiesexchange or automated quotation system pursuant to the requirements hereof; and (vi) all fees anddisbursements of independent certified public accountants of the Company and the Guarantors(including the expenses of any special audit and comfort letters required by or incident to suchperformance).
          The Company and the Guarantors will, in any event, bear their internal expenses (including,without limitation, all salaries and expenses of their officers and employees performing legal oraccounting duties), the expenses of any annual audit and the fees and expenses of any Person,including special experts, retained by the Company or any of the Guarantors.
          (b) In connection with any Registration Statement required by this Agreement (including,without limitation, the Exchange Offer Registration Statement and the Shelf RegistrationStatement), the Company and the Guarantors will jointly and severally reimburse the InitialPurchasers and the Holders of Transfer Restricted Securities who are tendering Securities into theExchange Offer and/or selling or reselling Securities or Exchange Securities pursuant to the “Planof Distribution” contained in the Exchange Offer Registration Statement or the Shelf RegistrationStatement, as applicable, for the reasonable fees and disbursements of not more than one counsel(who shall be Paul, Weiss, Rifkind, Wharton & Garrison LLP unless another firm shall be chosen bythe Initial Purchasers or the Holders of a majority in principal amount of the Transfer RestrictedSecurities for whose benefit such Registration Statement is being prepared). Each Holder shall payall expenses of its counsel except as set forth in this Section, all underwriting discounts andcommissions and transfer taxes, if any, relating to the sale or disposition of such Holder’sTransfer Restricted Securities pursuant to a Shelf Registration Statement.

 

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SECTION 8. INDEMNIFICATION
          (a) The Company and each of the Guarantors jointly and severally agree to indemnify and holdharmless each Holder, its directors, officers and each Person, if any, who controls such Holder(within the meaning of Section 15 of the Act or Section 20 of the Exchange Act), from and againstany and all losses, claims, damages, liabilities or judgments (including without limitation, anylegal or other expenses incurred in connection with investigating or defending any matter,including any action that could give rise to any such losses, claims, damages, liabilities orjudgments) caused by any untrue statement or alleged untrue statement of a material fact containedin any Registration Statement, preliminary prospectus or Prospectus (or any amendment or supplementthereto) provided by the Company or any of the Guarantors to any Holder or any prospectivepurchaser of Exchange Securities or registered Securities, or caused by any omission or allegedomission to state therein a material fact required to be stated therein or necessary to make thestatements therein not misleading, except insofar as such losses, claims, damages, liabilities orjudgments are caused by an untrue statement or omission or alleged untrue statement or omissionthat is based upon information relating to any of the Holders furnished in writing to the Companyby any of the Holders expressly for use in any Registration Statement; provided, however, that theCompany and the Guarantors shall not be liable to any indemnified party (as defined below) underthis Section 8 to the extent, but only to the extent, that (i) such loss, claim, damage orliability of such indemnified party results in connection with an initial resale by suchindemnified party, (ii) such loss, claim, damage or liability of such indemnified party resultsfrom an untrue statement of a material fact or an omission of a material fact contained in thepreliminary prospectus, which untrue statement or omission was completely corrected in theProspectus, (iii) the Company and the Guarantors had previously furnished sufficient quantities ofthe Prospectus to such indemnified party within a reasonable amount of time prior to such sale,(iv) such indemnified party failed to deliver the Prospectus in connection with such initial resaleand (v) the Company or any of the Guarantors sustains the burden of proving that such indemnifiedparty sold the Securities or Exchange Securities to the person alleging such loss, claim, damage orliability without sending or giving, at or prior to written confirmation of such sale, a copy ofthe Prospectus.
          (b) By its acquisition of Transfer Restricted Securities, each Holder of Transfer RestrictedSecurities agrees, severally and not jointly, to indemnify and hold harmless the Company and theGuarantors, and their directors and officers, and each person, if any, who controls (within themeaning of Section 15 of the Act or Section 20 of the Exchange Act) the Company or any of theGuarantors to the same extent as the foregoing indemnity from the Company and the Guarantors setforth in Section 8(a) hereof, but only with reference to information relating to such Holderfurnished in writing to the Company by such Holder expressly for use in any Registration Statement.In no event shall any Holder, its directors, officers or any Person who controls such Holder beliable or responsible for any amount in excess of the amount by which the total amount received bysuch Holder with respect to its sale of Transfer Restricted Securities pursuant to a RegistrationStatement exceeds (i) the amount paid by such Holder for such Transfer Restricted Securities and(ii) the amount of any damages that such Holder, its directors,


 

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officers or any Person who controls such Holder has otherwise been required to pay by reasonof such untrue or alleged untrue statement or omission or alleged omission.
          (c) In case any action shall be commenced involving any Person in respect of which indemnitymay be sought pursuant to Section 8(a) or (b) hereof (the “indemnified party”), the indemnifiedparty shall promptly notify the Person against whom such indemnity may be sought (the “indemnifyingparty”) in writing and the indemnifying party shall assume the defense of such action, includingthe employment of counsel reasonably satisfactory to the indemnified party and the payment of allfees and expenses of such counsel, as incurred (except that in the case of any action in respect ofwhich indemnity may be sought pursuant to both Sections 8(a) and (b) hereof, a Holder shall not berequired to assume the defense of such action pursuant to this Section 8(c), but may employseparate counsel and participate in the defense thereof, but the fees and expenses of such counsel,except as provided below, shall be at the expense of the Holder). Any indemnified party shall havethe right to employ separate counsel in any such action and participate in the defense thereof, butthe fees and expenses of such counsel shall be at the expense of the indemnified party unless (i)the employment of such counsel shall have been specifically authorized in writing by theindemnifying party, (ii) the indemnifying party shall have failed to assume the defense of suchaction or (iii) the named parties to any such action (including any impleaded parties) include boththe indemnified party and the indemnifying party, and the indemnified party shall have been advisedby its counsel that there may be one or more legal defenses available to it which are differentfrom or additional to those available to the indemnifying party (in which case the indemnifyingparty shall not have the right to assume the defense of such action on behalf of the indemnifiedparty). In any such case, the indemnifying party shall not, in connection any one action orseparate but substantially similar or related actions in the same jurisdiction arising out of thesame general allegations or circumstances, be liable for the fees and expenses of more than oneseparate firm of attorneys (in addition to any local counsel) for all indemnified parties and allsuch reasonable fees and expenses shall be reimbursed as they are incurred. Such firm shall bedesignated in writing by a majority of the Holders, in the case of the parties indemnified pursuantto Section 8(a) hereof, and by the Company and the Guarantors, in the case of parties indemnifiedpursuant to Section 8(b) hereof. The indemnifying party shall indemnify and hold harmless theindemnified party from and against any and all losses, claims, damages, liabilities and judgmentsby reason of any settlement of any action (A) effected with its written consent or (B) effectedwithout its written consent if the settlement is entered into more than 20 Business Days after theindemnifying party shall have received a request from the indemnified party for reimbursement forthe fees and expenses of counsel (in any case where such fees and expenses are at the expense ofthe indemnifying party) and, prior to the date of such settlement, the indemnifying party shallhave failed to comply with such reimbursement request. No indemnifying party shall, without theprior written consent of the indemnified party, effect any settlement or compromise of, or consentto the entry of judgment with respect to, any pending or threatened action in respect of which theindemnified party is or could have been a party and indemnity or contribution may be or could havebeen sought hereunder by the indemnified party, unless such settlement, compromise or judgment (I)includes an unconditional release of the indemnified party from all liability on claims that are orcould have been the subject


 

19

matter of such action and (II) does not include a statement as to or an admission of fault,culpability or a failure to act, by or on behalf of the indemnified party.
          (d) To the extent that the indemnification provided for in this Section 8 is unavailable to anindemnified party in respect of any losses, claims, damages, liabilities or judgments referred toherein, then each indemnifying party, in lieu of indemnifying such indemnified party shallcontribute to the amount paid or payable by such indemnified party as a result of such losses,claims, damages, liabilities or judgments (i) in such proportion as is appropriate to reflect therelative benefits received by the Company and the Guarantors on the one hand, and the Holders, onthe other hand, from their initial sale of Transfer Restricted Securities (or in the case ofExchange Securities that are Transfer Restricted Securities, the sale of the Securities for whichsuch Exchange Securities were exchanged) or (ii) if the allocation provided by clause 8(d)(i) aboveis not permitted by applicable law, in such proportion as is appropriate to reflect not only therelative benefits referred to in such clause 8(d)(i) but also the relative fault of the Company andthe Guarantors, on the one hand, and of the Holder, on the other hand, in connection with thestatements or omissions which resulted in such losses, claims, damages, liabilities or judgments,as well as any other relevant equitable considerations. The relative fault of the Company and theGuarantors, on the one hand, and of the Holder, on the other hand, shall be determined by referenceto, among other things, whether the untrue or alleged untrue statement of a material fact or theomission or alleged omission to state a material fact relates to information supplied by theCompany and the Guarantors, on the one hand, or by the Holder, on the other hand, and the parties’relative intent, knowledge, access to information and opportunity to correct or prevent suchstatement or omission. The amount paid or payable by a party as a result of the losses, claims,damages, liabilities and judgments referred to above shall be deemed to include, subject to thelimitations set forth in Section 8(c) hereof, any legal or other fees or expenses reasonablyincurred by such party in connection with investigating or defending any action or claim.
          The Company and the Guarantors, on the one hand, and each Holder (by its acquisition ofTransfer Restricted Securities), on the other hand, agree that it would not be just and equitableif contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if theHolders were treated as one entity for such purpose) or by any other method of allocation whichdoes not take account of the equitable considerations referred to in the immediately precedingparagraph. The amount paid or payable by an indemnified party as a result of the losses, claims,damages, liabilities or judgments referred to in the immediately preceding paragraph shall bedeemed to include, subject to the limitations set forth above, any legal or other expensesreasonably incurred by such indemnified party in connection with investigating or defending anymatter, including any action that could have given rise to such losses, claims, damages,liabilities or judgments. Notwithstanding the provisions of this Section 8, no Holder, itsdirectors, its officers or any Person, if any, who controls such Holder shall be required tocontribute, in the aggregate, any amount in excess of the amount by which the total received bysuch Holder with respect to the sale of Transfer Restricted Securities pursuant to a RegistrationStatement exceeds (i) the amount paid by such Holder for such Transfer Restricted Securities and(ii) the amount of any damages which such Holder has


 

20

otherwise been required to pay by reason of such untrue or alleged untrue statement oromission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaningof Section 11(f) of the Act) shall be entitled to contribution from any Person who was not guiltyof such fraudulent misrepresentation. The Holders’ obligations to contribute pursuant to thisSection 8(d) are several in proportion to the respective principal amount of Transfer RestrictedSecurities held by each Holder hereunder and not joint.
SECTION 9. RULE 144A AND RULE 144
          The Company and the Guarantors agree with each Holder, for so long as any Transfer RestrictedSecurities remain outstanding and during any period in which the Company (a) is not subject toSection 13 or 15(d) of the Exchange Act, to make available, upon request of any Holder of TransferRestricted Securities, to such Holder or beneficial owner of Transfer Restricted Securities inconnection with any sale thereof and any prospective purchaser of such Transfer RestrictedSecurities designated by such Holder or beneficial owner, the information required by Rule144A(d)(4) under the Act in order to permit resales of such Transfer Restricted Securities pursuantto Rule 144A, and (b) is subject to Section 13 or 15(d) of the Exchange Act, to make all filingsrequired thereby in a timely manner in order to permit resales of such Transfer RestrictedSecurities pursuant to Rule 144.
SECTION 10. UNDERWRITTEN REGISTRATIONS
          No Holder may participate in any Underwritten Registration unless such Holder (a) agrees tosell such Holder’s Transfer Restricted Securities proposed to be included in such UnderwrittenRegistration on the basis provided in customary underwriting arrangements entered into inconnection therewith and (b) completes and executes all reasonable questionnaires, powers ofattorney, and other documents required under the terms of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
          For any Underwritten Offering, the investment banker or investment bankers and manager ormanagers for any Underwritten Offering that will administer such offering will be selected by theHolders of a majority in aggregate principal amount of the Transfer Restricted Securities includedin such offering and consented to by the Company and the Guarantors, which consent shall not beunreasonably withheld. Such investment bankers and managers are referred to herein as the“underwriters.”
SECTION 12. MISCELLANEOUS
          (a) Remedies. The Company and the Guarantors acknowledge and agree that any failureby the Company and the Guarantors to comply with their obligations under Sections 3 and 4 hereofmay result in material irreparable injury to the Initial Purchasers or the Holders for which thereis no adequate remedy at law, that it will not be possible to measure damages for such injuriesprecisely and that, in the event of any such failure, the Initial Purchasers or any Holder mayobtain such relief as may be


 

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required to specifically enforce the Company’s obligations under Sections 3 and 4 hereof. TheCompany and the Guarantors further agree to waive the defense in any action for specificperformance that a remedy at law would be adequate.
          (b) No Inconsistent Agreements. The Company and the Guarantors will not, on or afterthe date of this Agreement, enter into any agreement with respect to its securities that isinconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts withthe provisions hereof. The Company and the Guarantors have not previously entered into anyagreement granting any registration rights with respect to its securities to any Person that wouldrequire such securities to be included in any Registration Statement filed hereunder. The rightsgranted to the Holders hereunder do not in any way conflict with and are not inconsistent with therights granted to the holders of the Company’s securities under any agreement in effect on the datehereof.
          (c) Amendments and Waivers. The provisions of this Agreement may not be amended,modified or supplemented, and waivers or consents to or departures from the provisions hereof maynot be given unless (i) in the case of Section 5 hereof and this Section 10(c)(i), the Company andthe Guarantors have obtained the written consent of Holders of all outstanding Transfer RestrictedSecurities and (ii) in the case of all other provisions hereof, the Company and the Guarantors haveobtained the written consent of Holders of a majority of the outstanding principal amount ofTransfer Restricted Securities (excluding Transfer Restricted Securities held by the Company, theGuarantors or any of their Affiliates). Notwithstanding the foregoing, a waiver or consent todeparture from the provisions hereof that relates exclusively to the rights of Holders whoseTransfer Restricted Securities are being tendered pursuant to the Exchange Offer, and that does notaffect directly or indirectly the rights of other Holders whose Transfer Restricted Securities arenot being tendered pursuant to such Exchange Offer, may be given by the Holders of a majority ofthe outstanding principal amount of Transfer Restricted Securities subject to such Exchange Offer.
          (d) Third Party Beneficiary. The Holders shall be third party beneficiaries to theagreements made hereunder between the Company and the Guarantors, on the one hand, and the InitialPurchasers, on the other hand, and shall have the right to enforce such agreements directly to theextent they may deem such enforcement necessary or advisable to protect their rights hereunder.
          (e) Notices. All notices and other communications provided for or permitted hereundershall be made in writing by hand-delivery, first-class mail (registered or certified, returnreceipt requested), telecopier, or air courier guaranteeing overnight delivery:
               (i) if to a Holder, at the address set forth on the records of the Registrar under theIndenture, with a copy to the Registrar under the Indenture; and

 

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  (ii)   if to the Company or any Guarantor:
 
      Rural Cellular Corporation
P.O. Box 2000
3905 Dakota Street, S.W.
Alexandria, Minnesota 56308
Telecopier No.: 320-808-2102
Attention: President





 
      With a copy to:
 
      Moss & Barnett, A Professional Association
4800 Wells Fargo Center
90 South Seventh Street
Minneapolis, Minnesota 55402
Telecopier No.: 612-339-6686
Attention: Richard J. Kelber





          All such notices and communications shall be deemed to have been duly given at the timedelivered by hand, when receipt acknowledged, if telecopied; and on the next Business Day, iftimely delivered to an air courier guaranteeing overnight delivery.
          Copies of all such notices, demands or other communications shall be concurrently delivered bythe Person giving the same to the Trustee at the address specified in the Indenture.
          (f) Successors and Assigns. This Agreement shall inure to the benefit of and bebinding upon the successors and assigns of each of the parties, including without limitation andwithout the need for an express assignment, subsequent Holders; provided, however, that thisAgreement shall not inure to the benefit of or be binding upon a successor or assign of a Holderunless and to the extent such successor or assign acquired Transfer Restricted Securities;provided, that nothing herein shall be deemed to permit any assignment, transfer or otherdisposition of Transfer Restricted Securities in violation of the terms hereof or of the PurchaseAgreement or the Indenture. If any transferee of any Holder shall acquire Transfer RestrictedSecurities in any manner, whether by operation of law or otherwise, such Transfer RestrictedSecurities shall be held subject to all of the terms of this Agreement, and by taking and holdingsuch Transfer Restricted Securities such Person shall be conclusively deemed to have agreed to bebound by and to perform all of the terms and provisions of this Agreement, including therestrictions on resale set forth in this Agreement and, if applicable, the Purchase Agreement, andsuch Person shall be entitled to receive the benefits hereof.
          (g) Counterparts. This Agreement may be executed in any number of counterparts and bythe parties hereto in separate counterparts, each of which when so executed shall be deemed to bean original and all of which taken together shall constitute one and the same agreement.

 

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          (h) Headings. The headings in this Agreement are for convenience of reference onlyand shall not limit or otherwise affect the meaning hereof.
          (i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCEWITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE RULES OF CONFLICT OF LAWS OF THESTATE OF NEW YORK OR ANY OTHER STATE THAT WOULD INDICATE THE APPLICABILITY OF THE LAWS OF ANY OTHERJURISDICTION.
          (i) Severability. In the event that any one or more of the provisions containedherein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable,the validity, legality and enforceability of any such provision in every other respect and of theremaining provisions contained herein shall not be affected or impaired thereby.
          (j) Entire Agreement. This Agreement is intended by the parties as a final expressionof their agreement and intended to be a complete and exclusive statement of the agreement andunderstanding of the parties hereto in respect of the subject matter contained herein. There areno restrictions, promises, warranties or undertakings, other than those set forth or referred toherein with respect to the registration rights granted with respect to the Transfer RestrictedSecurities. This Agreement supersedes all prior agreements and understandings between the partieswith respect to such subject matter.

 

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          IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first writtenabove.
         
  RURAL CELLULAR CORPORATION
 
 
  By:   /s/ Wesley E. Schultz  
    Name:   Wesley E. Schultz   
    Title:   Executive Vice Presidentand Chief Financial Officer   
 
  ALEXANDRIA INDEMNITY
          CORPORATION
RCC ATLANTIC, INC.
RCC ATLANTIC LICENSES, INC.
RCC MINNESOTA, INC.
RCC TRANSPORT, INC.
TLA SPECTRUM, LLC
 






 
     
     
     
 
     
  By:   /s/ Wesley E. Schultz  
    Name:   Wesley E. Schultz   
    Title:   Executive Vice Presidentand Chief Financial Officer of each Guarantor,
except Treasures of
Alexandria Indemnity
Corporation


 

 

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  LEHMAN BROTHERS INC.
MORGAN STANLEY & CO. INCORPORATED
LAZARD CAPITAL MARKETS

Acting severally on behalf of themselves and the several
Initial Purchasers
 





 
      By:   LEHMAN BROTHERS INC., as representative   
       
       
 
     
          By:   /s/ Anthony Maniscalco  
    Name:   Anthony Maniscalco  
    Title:   Managing Director