REGISTRATION RIGHTS AGREEMENT Dated as of March 11, 2010 Among DIRECTV HOLDINGS LLC, DIRECTV FINANCING CO., INC. and THE GUARANTORS NAMED HEREIN, as Issuers, and THE INITIAL PURCHASERS NAMED HEREIN, and REGISTRATION RIGHTS AGREEMENT
Exhibit
10.2
Execution
Version
Dated as
of March 11, 2010
Among
DIRECTV
FINANCING CO., INC.
and
THE
GUARANTORS NAMED HEREIN,
as
Issuers,
and
THE
INITIAL PURCHASERS NAMED HEREIN,
3.550%
Senior Notes due 2015,
5.200%
Senior Notes due 2020
and
6.350%
Senior Notes due 2040
This
Registration Rights Agreement (this “Agreement”) is dated
as of March 11, 2010, among DIRECTV HOLDINGS LLC, a Delaware limited liability
company (the “Company”), as issuer,
DIRECTV FINANCING CO., INC., a Delaware corporation (“Finance Co.”), as
co-issuer, the other entities listed on the signature pages hereto, as
guarantors (the “Guarantors” and,
together with the Company and Finance Co., the “Issuers”), and
BARCLAYS CAPITAL INC., CITIGROUP GLOBAL MARKETS INC., ▇.▇. ▇▇▇▇▇▇
SECURITIES INC. and UBS SECURITIES LLC as representatives of the several initial
purchasers set forth in Schedule 1 to the Purchase Agreement (collectively, the
“Initial
Purchasers”).
This
Agreement is entered into in connection with the Purchase Agreement, dated as of
March 8, 2010, among the Issuers and the Initial Purchasers (the “Purchase Agreement”),
which provides for, among other things, the sale by the Company and Finance Co.
to the Initial Purchasers of up to (x) $1,200,000,000 aggregate principal amount
of the Company’s and Finance Co.’s 3.550% Senior Notes due 2015 (the “2015 Notes”), (y)
$1,300,000,000 aggregate principal amount of the Company’s and Finance Co.’s
5.200% Senior Notes due 2020 (the “2020 Notes”) and (z)
$500,000,000 aggregate principal amount of the Company’s and Finance Co.’s
6.350% Senior Notes due 2040 (the “2040 Notes” and,
together with the 2015 Notes and the 2020 Notes, the “Notes”), in each
case, guaranteed by the Guarantors (the “Guarantees”) on a
senior basis. The Notes and the Guarantees are collectively referred
to herein as the “Securities.” In
order to induce the Initial Purchasers to enter into the Purchase Agreement, the
Issuers have agreed to provide the registration rights set forth in this
Agreement for the benefit of the Initial Purchasers and any subsequent holder or
holders of the Securities. The execution and delivery of this
Agreement is a condition to the Initial Purchasers’ obligation to purchase the
Securities under the Purchase Agreement.
The
parties hereby agree as follows:
1. Definitions
As used
in this Agreement, the following terms shall have the following
meanings:
2015
Notes: See the introductory paragraphs hereto.
2020
Notes: See the introductory paragraphs hereto.
2040
Notes: See the introductory paragraphs hereto.
Additional
Interest: See Section 4(a) hereof.
Advice: See
the last paragraph of Section 5 hereof.
Applicable
Period: See Section 2(b) hereof.
Company: See
the introductory paragraphs hereto.
Effectiveness
Date: The 220th day after the Issue Date; provided, however, that with
respect to any Shelf Registration, if later than the 220th day after the Issue
Date, the Effectiveness Date shall be the 180th day after the delivery of a
Shelf Notice as required pursuant to Section 2(c) hereof; provided, further, that in the
event that applicable law or interpretations of the staff of the SEC do not
permit the Issuers to file a Registration Statement covering the exchange of the
Securities or to complete the Exchange Offer, the Effectiveness Date shall be
extended by 30 days.
Effectiveness
Period: See Section 3(a) hereof.
Event
Date: See Section 4 hereof.
Exchange
Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Exchange
Notes: See Section 2(a) hereof.
Exchange
Offer: See Section 2(a) hereof.
Exchange Offer Registration
Statement: See Section 2(a) hereof.
Finance
Co.: See the introductory paragraphs hereto.
FINRA: See
Section 5(r) hereof.
Guarantees: See
the introductory paragraphs hereto.
Guarantors: See
the introductory paragraphs hereto.
Holder: As
the context requires, means any holder of a Registrable Note or Registrable
Notes.
Indemnified
Person: See Section 7(c) hereof.
Indemnifying
Person: See Section 7(c) hereof.
Indenture: The
Indenture, dated as of March 11, 2010, by and among the Issuers and The Bank of
New York Mellon, as trustee, pursuant to which the Securities, the Exchange
Notes and the Private Exchange Notes, if any, are being issued, as the same may
be amended or supplemented from time to time in accordance with the terms
thereof.
Initial
Purchasers: See the introductory paragraphs
hereto.
Initial Shelf
Registration: See Section 3(a) hereof.
Inspectors: See
Section 5(m) hereof.
Issue
Date: March 11, 2010, the date of original issuance of the
Notes.
Issuers: See
the introductory paragraphs hereto.
Notes: See
the introductory paragraphs hereto.
Offering
Memorandum: The final offering memorandum of the Company and
Finance Co., dated March 8, 2010 in respect of the offering of the
Securities.
Participant: See
Section 7(a) hereof.
Participating
Broker-Dealer: See Section 2(b) hereof.
Person: An
individual, trustee, corporation, partnership, limited liability company, joint
stock company, trust, unincorporated association, union, business association,
firm or other legal entity.
Private
Exchange: See Section 2(b) hereof.
Private Exchange
Notes: See Section 2(b) hereof.
Prospectus: The
prospectus included in any Registration Statement (including, without
limitation, any prospectus subject to completion and a prospectus that includes
any information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A promulgated
under the Securities Act and any term sheet filed pursuant to Rule 434
under the Securities Act), as amended or supplemented by any prospectus
supplement, and all other amendments and supplements to the Prospectus,
including post-effective amendments, and all material incorporated by reference
or deemed to be incorporated by reference in such Prospectus.
Purchase
Agreement: See the introductory paragraphs
hereto.
Records: See
Section 5(m) hereof.
Registrable
Notes: Each Security upon its original issuance and at all
times subsequent thereto, each Exchange Note (and the related Guarantee) as to
which Section 2(c)(iv) hereof is applicable upon original issuance and at
all times subsequent thereto and each Private Exchange Note (and the related
Guarantee) upon original issuance thereof and at all times subsequent thereto,
until (i) a Registration Statement (other than, with respect only to any
Exchange Note as to which Section 2(c)(iv) hereof is applicable, the
Exchange Offer Registration Statement) covering such Security, Exchange Note or
Private Exchange Note has been declared effective by the SEC and such Security,
Exchange Note or such Private Exchange Note, as the case may be, has been
disposed of in accordance with such effective Registration Statement,
(ii) such Security has been exchanged pursuant to the Exchange Offer for an
Exchange Note or Exchange Notes that may be resold without restriction under
state and federal securities laws, (iii) such Security, Exchange Note or
Private Exchange Note has been disposed of by a broker-dealer pursuant to the
“Plan of Distribution” contemplated by a Registration Statement pursuant to
which such Security, Exchange Note or Private Exchange Note has been registered
(including delivery of the prospectus contained therein), (iv) such
Security, Exchange Note or Private Exchange Note, as the case may be, ceases to
be outstanding for purposes of the Indenture or (v) the second anniversary
of the later of (x) the Issue Date and (y) the last date on which such Security
was held by the Company or an Affiliate of the Company.
Registration
Statement: Any registration statement of the Issuers that
covers any of the Notes, the Exchange Notes or the Private Exchange Notes filed
with the SEC under the Securities Act, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
Rule
144: Rule 144 promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than
Rule 144A) or regulation hereafter adopted by the SEC providing for offers
and sales of securities made in compliance therewith resulting in offers and
sales by subsequent holders that are not affiliates of the issuer of such
securities being free of the registration and prospectus delivery requirements
of the Securities Act.
Rule
144A: Rule 144A promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than
Rule 144) or regulation hereafter adopted by the SEC.
Rule
415: Rule 415 promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The
Securities and Exchange Commission.
Securities: See
the introductory paragraphs hereto.
Securities
Act: The Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
Shelf
Notice: See Section 2(c) hereof.
Shelf
Registration: See Section 3(b) hereof.
Subsequent Shelf
Registration: See Section 3(b) hereof.
TIA: The
Trust Indenture Act of 1939, as amended.
Trustee: The
trustee under the Indenture and the trustee (if any) under any indenture
governing the Exchange Notes and Private Exchange Notes.
Underwritten registration or
underwritten offering: A registration in which securities of
one or more of the Issuers are sold to an underwriter for reoffering to the
public.
2. Exchange
Offer
(a) To the
extent not prohibited by any applicable law or applicable interpretation of the
staff of the SEC, the Issuers shall use their reasonable best efforts to file
with the SEC a Registration Statement (the “Exchange Offer Registration
Statement”) on an appropriate registration form with respect to a
registered offer (the “Exchange Offer”) to
exchange any and all of the Registrable Notes for a like aggregate principal
amount of notes of the Company and Finance Co., guaranteed by the Guarantors,
that are identical in all material respects to the Securities (the “Exchange Notes”),
except that (i) the Exchange Notes shall contain no restrictive legend
thereon and (ii) interest thereon shall accrue (A) from the latter of
(x) the last interest payment date on which interest was paid on the
Security surrendered in exchange therefor, or (y) if the Security is surrendered
for exchange on a date in a period which includes the record date for an
interest payment date to occur on or after the date of such exchange and as to
which interest will be paid, the date of such interest payment date or (B) if no
interest has been paid on such Security, from the Issue Date, and which are
entitled to the benefits of the Indenture or a trust indenture which is
identical in all material respects to the Indenture (other than such changes to
the Indenture or any such trust indenture as are necessary to comply with the
TIA) and which, in either case, has been qualified under the TIA. The
Exchange Offer shall comply with all applicable tender offer rules and
regulations under the Exchange Act and other applicable law. The
Issuers shall use their reasonable best efforts to consummate the Exchange
Offer on or prior to the 220th day after the Issue Date.
Each
Holder that participates in the Exchange Offer will be required, as a condition
to its participation in the Exchange Offer, to represent to the Issuers in
writing (which may be contained in the applicable letter of transmittal)
that:
(i) any
Exchange Notes to be received by it will be acquired in the ordinary course of
its business,
(ii) at the
time of the commencement of the Exchange Offer such Holder has no arrangement or
understanding with any Person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Notes in violation of the
Securities Act,
(iii) such
Holder is not an affiliate (as defined in Rule 405 promulgated under the
Securities Act) of the Issuers,
(iv) if such
Holder is a broker-dealer, that it is not engaged in, and does not intend to
engage in, the distribution of Exchange Notes,
(v) if such
Holder is a Participating Broker-Dealer (as defined below) that will receive
Exchange Notes for its own account in exchange for Securities that were acquired
as a result of market-making or other trading activities, that it will deliver a
prospectus in connection with any resale of such Exchange Notes and
(vi) the
Holder is not acting on behalf of any persons or entities who could not
truthfully make the foregoing representations.
Such
Holder may also be required to be named as a selling security holder in the
related prospectus and will be required to make such other representations as
may be necessary under applicable SEC rules, regulations or interpretations to
render available the use of Form S-4 or any other appropriate form under the
Securities Act.
Upon
consummation of the Exchange Offer in accordance with this Section 2, the
provisions of this Agreement shall continue to apply solely with respect to
Registrable Notes that are Private Exchange Notes, Exchange Notes as to which
Section 2(c)(iv) is applicable and Exchange Notes held by Participating
Broker-Dealers, and the Issuers shall have no further obligation to register
Registrable Notes (other than Private Exchange Notes and other than in respect
of any Exchange Notes as to which clause 2(c)(iv) is applicable) pursuant
to Section 3 hereof.
No
securities other than the Exchange Notes shall be included in the Exchange Offer
Registration Statement.
(b) The
Issuers shall include within the Prospectus contained in the Exchange Offer
Registration Statement a section entitled “Plan of Distribution,” reasonably
acceptable to the Initial Purchasers, which shall contain a summary statement of
the positions taken or policies made by the staff of the SEC with respect to the
potential “underwriter” status of any broker-dealer that is the beneficial owner
(as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by
such broker-dealer in the Exchange Offer (a “Participating
Broker-Dealer”), whether such positions or policies have been publicly
disseminated by the staff of the SEC or such positions or policies represent the
prevailing views of the staff of the SEC. Such “Plan of Distribution”
section shall also expressly permit, to the extent permitted by applicable
policies and regulations of the SEC, the use of the Prospectus by all Persons
subject to the prospectus delivery requirements of the Securities Act,
including, to the extent permitted by applicable policies and regulations of the
SEC, all Participating Broker-Dealers, and include a statement describing the
means by which Participating Broker-Dealers may resell the Exchange Notes in
compliance with the Securities Act.
The
Issuers shall use their reasonable best efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the Prospectus
contained therein in order to permit such Prospectus to be lawfully delivered by
all Persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as is necessary to comply with applicable law in
connection with any resale of the Exchange Notes covered thereby; provided, however, that such
period shall not be required to exceed 180 days, or such longer period if
extended pursuant to the last sentence of Section 5(s) (the “Applicable
Period”).
If, prior
to consummation of the Exchange Offer, the Initial Purchasers hold any
Securities acquired by them that have the status of an unsold allotment in the
initial distribution, the Issuers upon the request of the Initial Purchasers
shall simultaneously with the delivery of the Exchange Notes in the Exchange
Offer, issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”)
for such Securities held by the Initial Purchasers, a like principal amount of
notes (the “Private
Exchange Notes”) of the Company and Finance Co., guaranteed by the
Guarantors, that are identical in all material respects to the Exchange Notes
except for the placement of a restrictive legend on such Private Exchange
Notes. The Private Exchange Notes shall be issued pursuant to the
same indenture as the Exchange Notes and, if permissible, bear the same CUSIP
number as the Exchange Notes.
In
connection with the Exchange Offer, the Issuers shall:
(1) mail,
or cause to be mailed, to each Holder of record entitled to participate in the
Exchange Offer a copy of the Prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter of transmittal and
related documents;
(2) use
their reasonable best efforts to keep the Exchange Offer open for not less than
20 business days after the date that notice of the Exchange Offer is mailed to
Holders (or longer if required by applicable law);
(3) utilize
the services of a depositary for the Exchange Offer with an address in the
Borough of Manhattan, The City of New York;
(4) permit
Holders to withdraw tendered Securities at any time prior to the close of
business, New York time, on the last business day on which the Exchange Offer
shall remain open; and
(5) otherwise
comply in all material respects with all applicable laws, rules and
regulations.
As soon
as practicable after the close of the Exchange Offer and the Private Exchange,
if any, the Issuers shall:
(1) accept
for exchange all Registrable Notes validly tendered and not validly withdrawn
pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver
to the Trustee for cancellation all Registrable Notes so accepted for exchange;
and
(3) direct
the Trustee to authenticate and deliver promptly to each holder of Securities
Exchange Notes or Private Exchange Notes, as the case may be, equal in principal
amount to the Securities of such Holder so accepted for exchange.
The
Exchange Offer and the Private Exchange shall not be subject to any conditions,
other than that (i) the Exchange Offer or the Private Exchange, as the case
may be, does not violate applicable law or any applicable interpretation of the
staff of the SEC, (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 Issuers to proceed with the Exchange Offer or the
Private Exchange, (iii) all governmental approvals shall have been
obtained, which approvals the Issuers deem necessary for the consummation of the
Exchange Offer or the Private Exchange, (iv) there shall not have been any
material change, or development involving a prospective material change, in the
business or financial affairs of the Issuers which, in the reasonable judgment
of the Issuers, would materially impair the Issuers’ ability to consummate the
Exchange Offer or the Private Exchange, and (v) there shall not have been
proposed, adopted or enacted any law, statute, rule or regulation which, in the
reasonable judgment of the Issuers, would materially impair the Issuers’ ability
to consummate the Exchange Offer or the Private Exchange or have a material
adverse effect on the Issuers if the Exchange Offer or the Private Exchange was
consummated. In the event that the Issuers are unable to consummate
the Exchange Offer or the Private Exchange due to any event listed in clauses
(i) through (v) above, the Issuers shall not be deemed to have breached any
covenant under this Section 2.
The
Exchange Notes and the Private Exchange Notes shall be issued under the
Indenture or under an indenture identical in all material respects to the
Indenture and which, in either case, has been qualified under the TIA or is
exempt from such qualification and shall provide that the Exchange Notes shall
not be subject to the transfer restrictions set forth in the
Indenture. The Indenture or such other indenture shall provide that
the Exchange Notes, the Private Exchange Notes and the Securities shall vote and
consent together on all matters as one class and that none of the Exchange
Notes, the Private Exchange Notes or the Securities will have the right to vote
or consent as a separate class on any matter.
(c) If
(i) because of any change in law or in currently prevailing interpretations
of the staff of the SEC, the Issuers are not permitted to effect the Exchange
Offer, (ii) the Exchange Offer is not consummated within 220 days of
the Issue Date, (iii) a Holder of Private Exchange Notes notifies the
Company in writing within 60 days following the consummation of the Exchange
Offer that (A) such Holder is prohibited by law or SEC 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 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 a Participating Broker-Dealer and holds Securities acquired
directly from the Company or any of its affiliates (as defined in Rule 405
promulgated under the Securities Act), or (iv) in the case of any Holder
that participates in the Exchange Offer, such Holder does not
receive Exchange Notes on the date of the exchange that may be sold
without restriction under state and federal securities laws (other than due
solely to the status of such Holder as an affiliate of one of the Issuers within
the meaning of the Securities Act), then in the case of each of clauses (i) to
and including (iv) of this sentence, the Issuers shall promptly deliver to the
Holders and the trustee written notice thereof (the “Shelf Notice”) and
shall use their reasonable best efforts to file a Shelf Registration pursuant to
Section 3 hereof.
3. Shelf
Registration
If at any
time a Shelf Notice is delivered as contemplated by Section 2(c) hereof,
then:
(a) Shelf
Registration. The Issuers shall use their reasonable best
efforts to file with the SEC a Registration Statement for an offering to be made
on a continuous basis pursuant to Rule 415 covering all of the Registrable Notes
not exchanged in the Exchange Offer, Private Exchange Notes and Exchange Notes
as to which Section 2(c)(iv) is applicable (the “Initial Shelf
Registration”). The Initial Shelf Registration shall be on
Form S-3 or another appropriate form permitting registration of such Registrable
Notes for resale by Holders in the manner or manners designated by them
(including, without limitation, one or more underwritten
offerings). The Issuers shall not permit any securities other than
the Registrable Notes to be included in the Initial Shelf Registration or any
Subsequent Shelf Registration (as defined below).
The
Issuers shall, subject to applicable law or applicable interpretation of the
staff of the SEC, use their reasonable best efforts to cause the Initial Shelf
Registration to be declared effective under the Securities Act on or prior to
the Effectiveness Date and to keep the Initial Shelf Registration continuously
effective under the Securities Act until the earlier of (x) the date which is
two years from the Issue Date or (y) the date on which no Registrable Notes are
outstanding (the “Effectiveness
Period”); provided, however, that the
Effectiveness Period in respect of the Initial Shelf Registration shall be
extended to the extent required to permit dealers to comply with the applicable
prospectus delivery requirements of Rule 174 under the Securities Act and
as otherwise provided herein.
No Holder
of Registrable Notes may include any of its Registrable Notes in any Shelf
Registration pursuant to this Agreement unless and until such Holder furnishes
to the Company in writing, within 15 business days after receipt of a request
therefor, such information concerning such Holder required to be included in any
Shelf Registration or Prospectus or preliminary prospectus included
therein. No holder of Registrable Notes shall be entitled to
Additional Interest pursuant to Section 4 hereof unless and until such Holder
shall have provided all such information, if so requested. Each
Holder of Registrable Notes as to which any Shelf Registration is being effected
agrees to furnish promptly to the Company all information required to be
disclosed so that the information previously furnished to the Company by such
Holder not materially misleading and does not omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading.
(b) Subsequent Shelf
Registrations. If the Initial Shelf Registration or any
Subsequent Shelf Registration ceases to be effective for any reason at any time
during the Effectiveness Period (other than because of the sale of all of the
securities registered thereunder), the Issuers shall use their reasonable best
efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within 30 days of such cessation
of effectiveness amend the Initial Shelf Registration in a manner to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an
additional “shelf” Registration Statement pursuant to Rule 415 covering all of
the Registrable Notes covered by and not sold under the Initial Shelf
Registration or an earlier Subsequent Shelf Registration (each, a “Subsequent Shelf
Registration”). If a Subsequent Shelf Registration is filed,
the Issuers shall use their reasonable best efforts to cause the Subsequent
Shelf Registration to be declared effective under the Securities Act as soon as
practicable after such filing and to keep such subsequent Shelf Registration
continuously effective for a period equal to the number of days in the
Effectiveness Period less the aggregate number of days during which the Initial
Shelf Registration or any Subsequent Shelf Registration was previously
continuously effective. As used herein the term “Shelf Registration”
means the Initial Shelf Registration and any Subsequent Shelf
Registration.
(c) Supplements and
Amendments. The Issuers shall promptly supplement and amend
any Shelf Registration if required by the rules, regulations or instructions
applicable to the registration form used for such Shelf Registration, if
required by the Securities Act, or if reasonably requested by the Holders of a
majority in aggregate principal amount of the Registrable Notes covered by such
Registration Statement or by any managing underwriter of such Registrable Notes,
provided, however, that the
Issuers shall not be required to supplement or amend any Shelf Registration upon
the request of a Holder or any managing underwriter if such requested supplement
or amendment would, in the good faith judgment of the Company, violate the
Securities Act, the Exchange Act or the rules and regulations promulgated
thereunder.
4. Additional
Interest
(a) The
Issuers and the Initial Purchasers agree that the Holders of Registerable Notes
will suffer damages if the Issuers fail to fulfill their obligations under
Section 2 or Section 3 hereof and that it would not be feasible to
ascertain the extent of such damages with precision. Accordingly, the
Issuers agree to pay, as liquidated damages, additional interest on the
Registrable Notes (“Additional Interest”)
under the circumstances and to the extent set forth below (each of which shall
be given independent effect) (it being understood that the Additional Interest
provided for in this section shall be the sole remedy at law for the matters set
forth in clauses (i) through (iii) below; provided, however, that nothing
contained herein shall prevent the Holders of a majority of Registrable Notes
from seeking specific performance of the Issuers’ obligations with respect to
such matters):
(i) if the
Issuers are required to file a Shelf Registration and such Shelf Registration is
not declared effective by the SEC on or prior to the Effectiveness Date in
respect of such Shelf Registration, then, commencing on the day after such
Effectiveness Date, Additional Interest shall accrue on the principal amount of
the Securities at a rate of 0.25% per annum for the first 90 days immediately
following such Effectiveness Date, and such Additional Interest rate shall
increase by an additional 0.25% per annum at the beginning of each subsequent
90-day period; or
(ii) if (A)
the Issuers have not exchanged Exchange Notes for all Securities validly
tendered in accordance with the terms of the Exchange Offer on or prior to the
220th day after the Issue Date and a Shelf Registration has not become effective
for all such Securities or (B) if applicable, a Shelf Registration has been
declared effective and such Shelf Registration ceases to be effective at any
time prior to the termination of the Issuers’ obligations to keep such Shelf
Registration effective pursuant to Section 3 above, then Additional Interest
shall accrue on the principal amount of the Securities at a rate of 0.25% per
annum for the first 90 days commencing on (x) the 221st day after the Issue
Date, in the case of (A) above, or (y) the day such Shelf Registration ceases to
be effective, in the case of (B) above, and such Additional Interest rate shall
increase by an additional 0.25% per annum at the beginning of each such
subsequent 90-day period;
provided, however, that the
Additional Interest rate on the Notes may not accrue under more than one of the
foregoing clauses (i) and (ii) at any one time and at no time shall the
aggregate amount of Additional Interest accruing exceed in the aggregate 1.00%
per annum; provided, further, however, that (1)
upon the effectiveness of the applicable Shelf Registration as required
hereunder (in the case of clause (a)(i) of this Section 4), or
(2) upon the exchange of the applicable Exchange Notes for all Securities
tendered or the effectiveness of a Shelf Registration covering all such
Securities (in the case of clause (a)(ii)(A) of this Section 4), or upon
the effectiveness of the applicable Shelf Registration which had ceased to
remain effective (in the case of clause(a)(ii)(B) of this Section 4),
Additional Interest on the Notes as a result of such clause (or the relevant
subclause thereof), as the case may be, shall cease to accrue; provided, further, however, that
notwithstanding the foregoing provisions of this Section 4(a), Additional
Interest shall not be payable if effectiveness of a Shelf Registration ceased
solely as a result of (i) the filing of a post-effective amendment to such Shelf
Registration to incorporate annual audited financial information with respect to
the Issuers required pursuant to rules or regulations promulgated by the
Commission where such post-effective amendment is not yet effective and needs to
be declared effective to permit Holders to use the related prospectus or (ii)
other material events, with respect to the Issuers that would need to be
described in such Shelf Registration Statement or related prospectus and the
Issuers are proceeding promptly and in good faith to amend or supplement such
Shelf Registration or related prospectus to describe such events; provided, that in any
case if such a Shelf Registration is not declared effective on the thirtieth day
after effectiveness ceased, Additional Interest shall be payable from the day
following such 30-day period until the date on which such Shelf Registration is
declared effective.
(b) The
Issuers shall notify the Trustee within three business days after each and every
date on which an event occurs in respect of which Additional Interest is
required to be paid (an “Event
Date”). Any amounts of Additional Interest due pursuant to
clauses (a)(i) or (a)(ii) of this Section 4 will be payable in cash
semiannually on each May 15 and November 15 (to the holders of record on the May
1 and November 1 immediately preceding such dates), commencing with the first
such date occurring after any such Additional Interest commences to
accrue. The amount of Additional Interest will be determined on the
basis of a 360-day year comprised of twelve 30-day months.
5. Registration
Procedures
In
connection with the filing of any Registration Statement pursuant to
Sections 2 or 3 hereof, the Issuers shall effect such registrations to
permit the sale of the securities covered thereby in accordance with the
intended method or methods of disposition thereof, and pursuant thereto and in
connection with any Registration Statement filed by the Issuers hereunder each
of the Issuers shall:
(a) Prepare
and file with the SEC, a Registration Statement or Registration Statements as
prescribed by Sections 2 or 3 hereof, and use their reasonable best efforts
to cause each such Registration Statement to become effective and remain
effective as provided herein; provided, however, that, if
(1) such filing is pursuant to Section 3 hereof, or (2) a
Prospectus contained in the Exchange Offer Registration Statement filed pursuant
to Section 2 hereof is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period relating thereto, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, the Issuers shall furnish
to and afford the Holders of the Registrable Notes included in such Registration
Statement or each such Participating Broker-Dealer, as the case may be, their
counsel and the managing underwriters, if any, a reasonable opportunity to
review copies of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed to be filed
(in each case at least five days prior to such filing, or such later date as is
reasonable under the circumstances).
(b) Prepare
and file with the SEC such amendments and post-effective amendments to each
Shelf Registration or Exchange Offer Registration Statement, as the case may be,
as may be necessary to keep such Registration Statement continuously effective
for the Effectiveness Period or the Applicable Period, as the case may be; cause
the related Prospectus to be supplemented by any Prospectus supplement required
by applicable law, and as so supplemented to be filed pursuant to Rule 424 (or
any similar provisions then in force) promulgated under the Securities Act; and
comply with the provisions of the Securities Act and the Exchange Act applicable
to each of them with respect to the disposition of all securities covered by
such Registration Statement as so amended or in such Prospectus as so
supplemented and with respect to the subsequent resale of any securities being
sold by a Participating Broker-Dealer covered by any such
Prospectus. The Issuers shall be deemed not to have used their
reasonable best efforts to keep a Registration Statement effective during the
Effectiveness Period or the Applicable Period, as the case may be, relating
thereto if any Issuer voluntarily takes any action that would result in selling
Holders of the Registrable Notes covered thereby or Participating Broker-Dealers
seeking to sell Exchange Notes not being able to sell such Registrable Notes or
such Exchange Notes during that period unless such action is required by
applicable law or permitted by this Agreement.
(c) If
(1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period relating thereto from whom the Issuers have
received written notice that it will be a Participating Broker-Dealer in the
Exchange Offer, notify the selling Holders of Registrable Notes, or each such
Participating Broker-Dealer, as the case may be, and their counsel promptly (but
in any event within two business days), and confirm such notice in writing,
(i) when a Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to any applicable Registration
Statement or any post-effective amendment, when the same has become effective
under the Securities Act (including in such notice a written statement that any
Holder may, upon request in writing, obtain, at the sole expense of the Issuers,
one conformed copy of such Registration Statement or post-effective amendment
including financial statements and schedules, documents incorporated or deemed
to be incorporated by reference and exhibits), (ii) of the issuance by the
SEC of any stop order suspending the effectiveness of a Registration Statement
or of any order preventing or suspending the use of any preliminary prospectus
or the initiation of any proceedings for that purpose, (iii) if at any time
when a prospectus is required by the Securities Act to be delivered in
connection with sales of the Registrable Notes or resales of Exchange Notes by
Participating Broker-Dealers the representations and warranties of the Issuers
contained in any agreement (including any underwriting agreement) contemplated
by Section 5(l) hereof cease to be true and correct in all material
respects, (iv) of the receipt by any Issuer of any notification with
respect to the suspension of the qualification or exemption from qualification
of a Registration Statement or any of the Registrable Notes or the Exchange
Notes to be sold by any Participating Broker-Dealer for offer or sale in any
jurisdiction, or the initiation or threatening of any proceeding for such
purpose, (v) of the happening of any event, the existence of any condition
or any information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or
that requires the making of any changes in or amendments or supplements to such
Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain 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 that in the case of the
Prospectus, it will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, and (vi) of the Issuers’ determination that a
post-effective amendment to a Registration Statement would be
appropriate.
(d) If
(1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, use their commercially reasonable efforts to
prevent the issuance of any order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of a Prospectus or
suspending the qualification (or exemption from qualification) of any of the
Registrable Notes or the Exchange Notes to be sold by any Participating
Broker-Dealer, for sale in any jurisdiction, and, if any such order is issued,
to use their commercially reasonable efforts to obtain the withdrawal of any
such order at the earliest possible moment.
(e) If a
Shelf Registration is filed pursuant to Section 3 and if requested by the
managing underwriter, the Holders of a majority in aggregate principal amount of
the Registrable Notes being sold in connection with an underwritten offering or
any Participating Broker-Dealer, (i) as promptly as practicable incorporate
in a prospectus supplement or post-effective amendment such information as the
managing underwriter, such Holders, any Participating Broker-Dealer or counsel
for any of them reasonably request to be included therein, provided, however, that the
Issuers shall not be required to include any such information upon the request
of a Holder or any underwriter if the inclusion of such information would, in
the good faith judgment of the Company, violate the Securities Act, the Exchange
Act or the rules and regulations promulgated thereunder, (ii) make all
required filings of such prospectus supplement or such post-effective amendment
as soon as practicable after an Issuer has received notification of the matters
to be incorporated in such prospectus supplement or post-effective amendment,
and (iii) supplement or make amendments to such Registration
Statement.
(f) If
(1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, furnish to each selling Holder of
Registrable Notes, a single counsel to such Holders (chosen in accordance with
Section 6(b)) and to each such Participating Broker-Dealer who so requests and
to its counsel at the sole expense of the Issuers, one conformed copy of the
Registration Statement or Registration Statements and each post-effective
amendment thereto, including financial statements and schedules, and, if
requested in writing one copy of any document incorporated or deemed to be
incorporated therein by reference and one copy of any exhibit.
(g) If
(1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, deliver to each selling Holder of
Registrable Notes, a single counsel to such Holders (chosen in accordance with
Section 6(b)), or each such Participating Broker-Dealer and its counsel, as the
case may be, at the sole expense of the Issuers, as many copies of the
Prospectus or Prospectuses (including each form of preliminary prospectus) and
each amendment or supplement thereto and if requested in writing, any documents
incorporated by reference therein as such Persons may reasonably request; and,
subject to the last paragraph of Section 5(s), the Issuers hereby consent
to the use of such Prospectus and each amendment or supplement thereto (provided
the manner of such use complies with any limitations resulting from any
applicable state securities “Blue Sky” laws as provided in writing to such
Holders by the Company and subject to the provisions of this Agreement) by each
of the selling Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, and the managing underwriters or agents, if
any, and dealers (if any), in connection with the offering and sale of the
Registrable Notes covered by, or the sale by Participating Broker-Dealers of the
Exchange Notes pursuant to, such Prospectus and any amendment or supplement
thereto.
(h) Prior to
any public offering of Registrable Notes or any delivery of a Prospectus
contained in the Exchange Offer Registration Statement by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, use
their commercially reasonable efforts to register or qualify, and to cooperate
with the selling Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Registrable Notes for offer and sale under the securities or Blue Sky laws of
such jurisdictions within the United States as any selling Holder or
Participating Broker-Dealer, reasonably request in writing; provided, however, that where
Exchange Notes held by Participating Broker-Dealers or Registrable Notes are
offered other than through an underwritten offering, the Issuers agree to cause
their counsel to perform Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section 5(h), keep
each such registration or qualification (or exemption therefrom) effective
during the period such Registration Statement is required to be kept effective
and do any and all other acts or things reasonably necessary or advisable to
enable the disposition in such jurisdictions of the Exchange Notes held by
Participating Broker-Dealers or the Registrable Notes covered by the applicable
Registration Statement; provided, however, that no
Issuer shall be required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any action that
would subject it to general service of process in any such jurisdiction where it
is not then so subject or (C) subject itself to taxation in any such
jurisdiction where it is not then so subject.
(i) If a
Shelf Registration is filed pursuant to Section 3 hereof, cooperate with
the selling Holders of Registrable Notes to facilitate the timely preparation
and delivery of certificates representing Registrable Notes to be sold, which
certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company; and enable such
Registrable Notes to be in such denominations and registered in such names as
the selling Holders may reasonably request.
(j) If
(1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, upon the occurrence of any event
contemplated by Sections 5(c)(v) or 5(c)(vi) hereof, as promptly as
practicable prepare and (subject to Section 5(a) hereof) file with the SEC,
at the sole expense of the Issuers, a supplement or post-effective amendment to
the Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference, or file
any other required document so that, as thereafter delivered to the purchasers
of the Registrable Notes being sold thereunder or to the purchasers of the
Exchange Notes to whom such Prospectus will be delivered by a Participating
Broker-Dealer, any such Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. Notwithstanding the foregoing,
the Issuers shall not be required to amend or supplement a Registration
Statement, any related Prospectus or any document incorporated therein by
reference, in the event that an event occurs and is continuing as a result
of which the Shelf Registration would, in the good faith judgment of the
Company, contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or, for a period
not to exceed an aggregate of 90 days in any calendar year, (a) the Company
determines in its good faith judgment that the disclosure of such event at such
time would reasonably be expected to have a material adverse effect on the
business, operations or prospects of the Company or (b) the disclosure
otherwise relates to a pending material business transaction that has not yet
been publicly disclosed.
(k) Prior to
the effective date of the first Registration Statement elating to the
Registrable Notes, (i) provide the Trustee with certificates for the
Registrable Notes in a form eligible for deposit with The Depository Trust
Company and (ii) provide a CUSIP number for the Registrable
Notes.
(l) In
connection with any underwritten offering of Registrable Notes pursuant to a
Shelf Registration, enter into an underwriting agreement as is customary in
underwritten offerings of debt securities similar to the Securities in form and
substance reasonably satisfactory to the Issuers and take all such other actions
as are reasonably requested by the managing underwriter in order to expedite or
facilitate the registration or the disposition of such Registrable Notes and, in
such connection, (i) make such representations and warranties to, and
covenants with, the underwriters with respect to the business of the Issuers and
the subsidiaries of the Issuers (including any acquired business, properties or
entity, if applicable) and the Registration Statement, Prospectus and documents,
if any, incorporated or deemed to be incorporated by reference therein, in each
case, as are customarily made by issuers to underwriters in underwritten
offerings of debt securities similar to the Securities, and confirm the same in
writing if and when requested in form and substance reasonably satisfactory to
the Issuers; (ii) upon the request of any underwriter use all reasonable
efforts to obtain the written opinions of counsel to the Issuers and written
updates thereof in form, scope and substance reasonably satisfactory to the
managing underwriter, addressed to the underwriters covering the matters
customarily covered in opinions reasonably requested in underwritten offerings
and such other matters as may be reasonably requested by the managing
underwriter; (iii) upon the request of any managing underwriter use their
commercially reasonable efforts to obtain “cold comfort” letters and updates
thereof in form, scope and substance reasonably satisfactory to the managing
underwriter from the independent public accountants of the Issuers (and, if
necessary, any other independent public accountants of the Issuers, any
subsidiary of the Issuers or of any business acquired by the Issuers for which
financial statements and financial data are, or are required to be, included or
incorporated by reference in the Registration Statement), addressed to each of
the underwriters, such letters to be in customary form and covering matters of
the type customarily covered in “cold comfort” letters in connection with
underwritten offerings of debt securities similar to the Securities and such
other matters as reasonably requested by the managing underwriter as permitted
by the Statement on Auditing Standards No. 72; and (iv) if an
underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable to the sellers and
underwriters, if any, than those set forth in Section 7 hereof (or such
other provisions and procedures acceptable to Holders of a majority in aggregate
principal amount of Registrable Notes covered by such Registration Statement and
the managing underwriter or underwriters or agents, if any). The
above shall be done at each closing under such underwriting agreement, or as and
to the extent required thereunder.
(m) If
(1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, make available for inspection by any selling
Holder of such Registrable Notes being sold, or each such Participating
Broker-Dealer, as the case may be, any underwriter participating in any such
disposition of Registrable Notes, if any, and any attorney, accountant or other
agent retained by any such selling Holder or each such Participating
Broker-Dealer, as the case may be, or underwriter (collectively, the “Inspectors”), at the
offices where normally kept, during reasonable business hours, all financial and
other records, pertinent corporate documents and instruments of the Issuers and
subsidiaries of the Issuers (collectively, the “Records”) as shall be
reasonably necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of the Issuers
and any of their subsidiaries to supply all information reasonably requested by
any such Inspector in connection with such Registration Statement and
Prospectus. The foregoing inspection and information gathering shall
be coordinated on behalf of the other parties by one counsel designated by such
parties as described in Section 6(b) hereof. Each Inspector shall
agree in writing that it will keep the Records confidential and that it will not
disclose any of the Records that the Issuers determine, in good faith, to be
confidential unless (i) the release of such Records is ordered pursuant to
a subpoena or other order from a court of competent jurisdiction, or
(ii) the information in such Records has been made generally available to
the public other than through the acts of such Inspector; provided, however, that prior
notice shall be provided as soon as practicable to the Issuers of the potential
disclosure of any information by such Inspector pursuant to clause (i) of this
sentence to permit the Issuers to obtain a protective order or take other
appropriate action to prevent the disclosure of such information at the Issuers’
sole expense (or waive the provisions of this paragraph (m)) and that such
Inspector shall take such actions as are reasonably necessary to protect the
confidentiality of such information (if practicable) to the extent such action
is otherwise not inconsistent with, an impairment of or in derogation of the
rights and interests of the Holder or any Inspector.
(n) Provide
an indenture trustee for the Registrable Notes or the Exchange Notes, as the
case may be, and cause the Indenture or the trust indenture provided for in
Section 2(a) hereof, as the case may be, to be qualified under the TIA not
later than the effective date of the first Registration Statement relating to
the Registrable Notes; and in connection therewith, cooperate with the trustee
under any such indenture and the Holders of the Registrable Notes to effect such
changes to such indenture as may be required for such indenture to be so
qualified in accordance with the terms of the TIA; and execute, and use their
commercially reasonable efforts to cause such trustee to execute, all documents
as may be required to effect such changes, and all other forms and documents
required to be filed with the SEC to enable such indenture to be so qualified in
a timely manner.
(o) Comply
with all applicable rules and regulations of the SEC and make generally
available to its securityholders with regard to any applicable Registration
Statement, a consolidated earnings statement satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act) no later than 60 days after the end
of any fiscal quarter (or 120 days after the end of any 12-month period if such
period is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Notes are sold to underwriters in a firm commitment or best
efforts underwritten offering and (ii) if not sold to underwriters in such
an offering, commencing on the first day of the first fiscal quarter of the
Company after the effective date of a Registration Statement, which statements
shall cover said 12-month periods.
(p) Upon
consummation of the Exchange Offer or a Private Exchange, if requested by the
Trustee in writing, obtain an opinion of counsel to the Issuers, in a form
customary for underwritten transactions, addressed to the Trustee for the
benefit of all Holders of Registrable Notes participating in the Exchange Offer
or the Private Exchange, as the case may be, that the Exchange Notes or Private
Exchange Notes, as the case may be, the related guarantee and the related
indenture constitute legal, valid and binding obligations of the Issuers,
enforceable against them in accordance with their respective terms, subject to
customary exceptions and qualifications.
(q) If the
Exchange Offer or a Private Exchange is to be consummated, upon delivery of the
Registrable Notes by Holders to the Issuers (or to such other Person as directed
by the Issuers) in exchange for the Exchange Notes or the Private Exchange
Notes, as the case may be, the Issuers shall ▇▇▇▇, or cause to be marked, on
such Registrable Notes that such Registrable Notes are being canceled in
exchange for the Exchange Notes or the Private Exchange Notes, as the case may
be; in no event shall such Registrable Notes be marked as paid or otherwise
satisfied, in connection with any such exchange.
(r) Cooperate
with each seller of Registrable Notes covered by any Registration Statement and
each underwriter, if any, participating in the disposition of such Registrable
Notes and their respective counsel in connection with any filings required to be
made with the Financial Industry Regulatory Authority (the “FINRA”).
(s) Use their
commercially reasonable efforts to take all other steps reasonably necessary to
effect the registration of the Registrable Notes covered by a Registration
Statement contemplated hereby.
The
Issuers may require each seller of Registrable Notes as to which any
registration is being effected to furnish to the Issuers such information
regarding such seller and the distribution of such Registrable Notes as the
Issuers may, from time to time, reasonably request. The Issuers may
exclude from such registration the Registrable Notes of any seller so long as
such seller fails to furnish such information within a reasonable time after
receiving such request. Each seller as to which any Shelf
Registration is being effected agrees to furnish promptly to the Company all
information required to be disclosed so that the information previously
furnished to the Company by such seller is not materially misleading and does
not omit to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading in the light of the
circumstances under which they were made.
Each
Holder of Registrable Notes and each Participating Broker-Dealer agrees by its
acquisition of such Registrable Notes or Exchange Notes to be sold by such
Participating Broker-Dealer, as the case may be, that, upon actual receipt of
any notice from the Issuers of the happening of any event of the kind
described in Section 5(c)(ii), 5(c)(iv), 5(c)(v) or 5(c)(vi) hereof, such Holder
will forthwith discontinue disposition of such Registrable Notes covered by such
Registration Statement or Prospectus or Exchange Notes to be sold by such Holder
or Participating Broker-Dealer, as the case may be, until such Holder’s or
Participating Broker-Dealer’s receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(j) hereof, or until it is advised
in writing (the “Advice”) by the
Issuers 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 Issuers shall give any such notice, the Applicable 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
Registrable Notes covered by such Registration Statement or Exchange Notes to be
sold by such Participating Broker-Dealer, as the case may be, shall have
received (x) the copies of the supplemented or amended Prospectus contemplated
by Section 5(j) hereof or (y) the Advice.
6. Registration
Expenses
(a) All fees
and expenses incident to the performance of or compliance with this Agreement by
the Issuers (other than any underwriting discounts or commissions which shall
not be borne by the Issuers) shall be borne by the Issuers including, without
limitation, (i) all registration and filing fees (including, without
limitation, (A) fees with respect to filings required to be made with the
FINRA in connection with an underwritten offering and (B) fees and
expenses of compliance with state securities or Blue Sky laws (including,
without limitation, reasonable fees and disbursements of one counsel in
connection with Blue Sky qualifications of the Registrable Notes or Exchange
Notes and determination of the eligibility of the Registrable Notes or Exchange
Notes for investment under the laws of such jurisdictions (x) where the
holders of Registrable Notes are located, in the case of the Exchange Notes, or
(y) as provided in Section 5(h) hereof, in the case of Registrable Notes or
Exchange Notes to be sold by a Participating Broker-Dealer during the Applicable
Period)), (ii) printing expenses, including, without limitation, expenses
of printing certificates for Registrable Notes or Exchange Notes in a form
eligible for deposit with The Depository Trust Company and of printing
prospectuses if the printing of prospectuses is requested by the managing
underwriter, if any, by the Holders of a majority in aggregate principal amount
of the Registrable Notes included in any Registration Statement or in
respect of Registrable Notes or Exchange Notes to be sold by any Participating
Broker-Dealer during the Applicable Period, as the case may be,
(iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Issuers, (v) fees and disbursements of all
independent certified public accountants referred to in Section 5(l)(iii)
hereof (including, without limitation, the expenses of any special audit and
“cold comfort” letters required by or incident to such performance),
(vi) Securities Act liability insurance, if the Issuers desire such
insurance, (vii) fees and expenses of all other Persons retained by the
Issuers, (viii) internal expenses of the Issuers (including, without
limitation, all salaries and expenses of officers and employees of the Issuers
performing legal or accounting duties), (ix) the expense of any annual
audit, (x) any fees and expenses incurred in connection with the listing of
the securities to be registered on any securities exchange, and the obtaining of
a rating of the securities, in each case, if applicable, and (xi) the
expenses relating to printing, word processing and distributing all Registration
Statements, underwriting agreements, indentures and any other documents
necessary in order to comply with this Agreement.
(b) The
Issuers shall reimburse the Initial Purchasers for the reasonable fees and
expenses of one counsel in connection with the Exchange Offer, which shall be
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp or such other
counsel as selected by a majority in interests of the Holders, and shall not be
required to pay any other legal expenses in connection therewith.
7. Indemnification
(a) Each of
the Issuers, jointly and severally, agrees to indemnify and hold harmless each
Holder of Registrable Notes and each Participating Broker-Dealer selling
Exchange Notes during the Applicable Period, the affiliates, officers,
directors, representatives, employees and agents of each such Person, and each
Person, if any, who controls any such Person within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act
(each, a “Participant”), from
and against any and all losses, claims, damages, judgments, liabilities and
expenses (including, without limitation, the reasonable legal fees and other
expenses actually incurred in connection with any suit, action or proceeding or
any claim asserted) caused by, arising out of or based upon any untrue statement
or alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto) or Prospectus (as amended or supplemented
if the Issuers shall have furnished any amendments or supplements thereto) or
any preliminary prospectus, or caused by, arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the case of the
Prospectus in light of the circumstances under which they were made, not
misleading, except insofar as
such losses, claims, judgments, damages, liabilities or expenses are caused by
any untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to any Participant
furnished to the Issuers in writing by such Participant expressly for use
therein and with respect to any preliminary Prospectus, or except to the extent
that any such loss, claim, damage or liability arises solely from the fact that
any Participant sold Notes to a person to whom there was not sent or given a
copy of the Prospectus (as amended or supplemented) at or prior to the written
confirmation of such sale if the Issuers shall have previously furnished copies
thereof to the Participant in accordance herewith and the Prospectus (as amended
or supplemented) would have corrected any such untrue statement or
omission.
(b) Each
Participant agrees, severally and not jointly, to indemnify and hold harmless
each Issuer, their respective affiliates, officers, directors, representatives,
employees and agents of each Issuer and each Person who controls each Issuer
within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent (but on a several, and not joint, basis)
as the foregoing indemnity from the Issuers to each Participant under
paragraph (a) above, but only with reference to information relating to
such Participant furnished to the Issuers in writing by such Participant
expressly for use in any Registration Statement or Prospectus, any amendment or
supplement thereto, or any preliminary prospectus. The liability of
any Participant under this paragraph shall in no event exceed the proceeds
received by such Participant from sales of Registrable Notes or Exchange Notes
giving rise to such obligations.
(c) If any
suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any Person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such Person (the “Indemnified Person”)
shall promptly notify the Persons against whom such indemnity may be sought (the
“Indemnifying
Persons”) in writing, and the Indemnifying Persons, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others entitled
to indemnification pursuant to this Section 7 that the Indemnifying Person
may reasonably designate in such proceeding and shall pay the reasonable fees
and expenses actually incurred by such counsel related to such proceeding; provided, however, that the
failure to so notify the Indemnifying Persons will not relieve it from any
liability under paragraph (a) or (b) above unless and to the extent such failure
results in the forfeiture by the Indemnifying Person of substantial rights and
defenses and the Indemnifying Person was not otherwise aware of such action or
claim. In any such proceeding, any Indemnified Person shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such Indemnified Person unless (i) the Indemnifying
Persons and the Indemnified Person shall have mutually agreed to the contrary in
writing, (ii) the Indemnifying Persons shall have failed within a
reasonable period of time to retain counsel reasonably satisfactory to the
Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both any Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between
them. It is understood that the Indemnifying Persons shall not, in
connection with such proceeding or separate but substantially similar related
proceeding in the same jurisdiction arising out of the same general allegations,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed promptly as they are incurred. Any such
separate firm for the Participants and such control Persons of Participants
shall be designated in writing by Participants who sold a majority in interest
of Registrable Notes and Exchange Notes sold by all such Participants and shall
be reasonably acceptable to the Issuers, and any such separate firm for the
Issuers, their affiliates, officers, directors, representatives, employees and
agents and such control Persons of such Issuer shall be designated in writing by
such Issuer and shall be reasonably acceptable to the Holders.
The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its prior written consent (which consent shall not be
unreasonably withheld or delayed), but if settled with such consent or if there
be a final non-appealable judgment for the plaintiff for which the Indemnified
Person is entitled to indemnification pursuant to this Agreement, each
Indemnifying Person agrees to indemnify and hold harmless each Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person (which consent shall not be unreasonably
withheld or delayed), effect any settlement or compromise of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party, or indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement (A) includes an unconditional
written release of such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability on claims that are
the subject matter of such proceeding and (B) does not include any statement as
to an admission of fault, culpability or failure to act by or on behalf of such
Indemnified Person.
(d) If the
indemnification provided for in paragraphs (a) and (b) of this Section 7 is
for any reason unavailable to, or insufficient to hold harmless, an Indemnified
Person in respect of any losses, claims, damages or liabilities referred to
therein, then each Indemnifying Person under such paragraphs, in lieu of
indemnifying such Indemnified Person thereunder and in order to provide for just
and equitable contribution, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative fault
of the Indemnifying Person or Persons on the one hand and the Indemnified Person
or Persons on the other in connection with the statements or omissions or
alleged statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Issuers on the one hand
or such Participant or such other Indemnified Person, as the case may be, on the
other, the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission, and any other
equitable considerations appropriate in the circumstances.
(e) The
parties agree that it would not be just and equitable if contribution pursuant
to this Section 7 were determined by pro rata allocation (even if
the Participants were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid
or payable by an Indemnified Person as a result of the losses, claims, damages,
judgments, liabilities and expenses referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses actually incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7, in
no event shall a Participant be required to contribute any amount in excess of
the amount by which proceeds received by such Participant from sales of
Registrable Notes or Exchange Notes, as the case may be, exceeds the amount of
any damages that such Participant has otherwise been required to pay or has paid
by reason of such untrue or alleged untrue statement or omission or alleged
omission. 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.
(f) Any
losses, claims, damages, liabilities or expenses for which an indemnified party
is entitled to indemnification or contribution under this Section 7 shall
be paid by the Indemnifying Person to the Indemnified Person as such losses,
claims, damages, liabilities or expenses are incurred. The indemnity
and contribution agreements contained in this Agreement shall remain operative
and in full force and effect, regardless of (i) any investigation made by
or on behalf of any Holder or any person who controls a Holder, the Issuers,
their directors, officers, employees or agents or any person who controls an
Issuer, and (ii) any termination of this Agreement.
(g) The
indemnity and contribution agreements contained in this Section 7 will be
in addition to any liability which the Indemnifying Persons may otherwise have
to the Indemnified Persons referred to above.
8. Rules 144 and
144A
Each of
the Issuers covenants and agrees that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder in a timely manner in accordance with
the requirements of the Securities Act and the Exchange Act and, for so long as
any Registrable Notes remain outstanding, and if such Issuer is not required to
file such reports, such Issuer will, upon the request of any Holder or
beneficial owner of Registrable Notes, make available such information of the
type specified in Sections 13 and 15(d) of the Exchange Act. Each of
the Issuers further covenants and agrees, for so long as any Registrable Notes
remain outstanding, to make available to any Holder or beneficial owner of
Registrable Notes in connection with any sale thereof and any prospective
purchaser of such Registrable Notes from such Holder or beneficial owner the
information required by Rule 144A(d)(4) and 144(c) under the Securities Act in
order to permit resales of such Registrable Notes pursuant to Rule 144A and Rule
144.
9. Underwritten
Registrations
If any of
the Registrable Notes covered by any Shelf Registration are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will manage the offering will be selected by the Holders of a
majority in aggregate principal amount of such Registrable Notes included in
such offering and shall be reasonably acceptable to the Issuers.
No Holder
of Registrable Notes may participate in any underwritten registration hereunder
unless such Holder (a) agrees to sell such Holder’s Registrable Notes on
the basis provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements and (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
10. Miscellaneous
(a) No Inconsistent
Agreements. The Issuers have not, as of the date hereof, and
the Issuers shall not, after the date of this Agreement, enter into any
agreement with respect to any of their securities that is inconsistent with the
rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to
the Holders hereunder do not in any way conflict with and are not inconsistent
with the rights granted to the holders of the Issuers’ other issued and
outstanding securities under any such agreements. The Issuers shall
not, after the date of this agreement, enter into any agreement with respect to
any of their securities which will grant to any Person piggy-back registration
rights with respect to any Registration Statement.
(b) Adjustments Affecting
Registrable Notes. The Issuers shall not, directly or
indirectly, take any action with respect to the Registrable Notes as a class
that would adversely affect the ability of the Holders of Registrable Notes to
include such Registrable Notes in a registration undertaken pursuant to this
Agreement.
(c) Amendments and
Waivers. The provisions of this Agreement may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, otherwise than with the prior written
consent of (I) the Issuers and (II)(A) the Holders of not less than a
majority in aggregate principal amount of the then outstanding Registrable Notes
and (B) in circumstances that would adversely affect the Participating
Broker-Dealers holding not less than a majority in aggregate principal amount of
the Exchange Notes held by all Participating Broker-Dealers; provided, however, that
Section 7 and this Section 10(c) may not be amended, modified or
supplemented without the prior written consent of each Holder and each
Participating Broker-Dealer (including any person who was a Holder or
Participating Broker-Dealer of Registrable Notes or Exchange Notes, as the case
may be, disposed of pursuant to any Registration Statement) affected by any such
amendment, modification or supplement. Notwithstanding the foregoing,
a waiver or consent to depart from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders of Registrable Notes
whose securities are being sold pursuant to a Registration Statement and that
does not directly or indirectly affect, impair, limit or compromise the rights
of other Holders of Registrable Notes may be given by Holders of at least a
majority in aggregate principal amount of the Registrable Notes being sold
pursuant to such Registration Statement.
(d) Notices. All
notices and other communications (including, without limitation, any notices or
other communications to the Trustee) provided for or permitted hereunder shall
be made in writing by hand-delivery, registered first-class mail, next-day air
courier or facsimile:
(i) if to a
Holder of the Registrable Notes or any Participating Broker-Dealer, at the most
current address of such Holder or Participating Broker-Dealer, as the case may
be, set forth on the records of the registrar under the Indenture.
(ii) if to the
Issuers, at the address as follows:
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▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Attention:
General Counsel
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with a
copy to:
Weil,
Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇
▇▇▇▇▇▇▇▇, Esq.
All such
notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; one business
day after being timely delivered to a next-day air courier; and when
transmission is confirmed, if sent by facsimile.
Copies of
all such notices, demands or other communications shall be concurrently
delivered by the Person giving the same to the Trustee at the address and in the
manner specified in such Indenture.
(e) Successors and
Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties hereto, the
Holders and the Participating Broker-Dealers; provided, however, that nothing
herein shall be deemed to permit any assignment, transfer or other disposition
of Registrable Notes in violation of the terms of the Purchase Agreement or the
Indenture.
(f) Counterparts. This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the
same agreement.
(g) Headings. The
headings in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.
(h) Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO
SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, illegal, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(j) Securities Held by the
Issuers or Their Affiliates. Whenever the consent or approval
of Holders of a specified percentage of Registrable Notes is required hereunder,
Registrable Notes held by the Issuers or their affiliates (as such term is
defined in Rule 405 under the Securities Act) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
(k) Third-Party
Beneficiaries. Holders of Registrable Notes and Participating
Broker-Dealers are intended third-party beneficiaries of this Agreement, and
this Agreement may be enforced by such Persons.
(l) Entire
Agreement. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Holders on the one hand
and the Issuers on the other, or between or among any agents, representatives,
parents, subsidiaries, affiliates, predecessors in interest or successors in
interest with respect to the subject matter hereof and thereof are merged herein
and replaced hereby.
WITNESS
the due execution hereof by the respective duly authorized officers of the
undersigned as of the date first written above.
By: /s/
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: J.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Senior
Vice President and Treasurer
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DIRECTV
FINANCING CO., INC.
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By: /s/
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: J.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Senior
Vice President and Treasurer
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DIRECTV,
INC., as Guarantor
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By: /s/
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: J.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Senior
Vice President and Treasurer
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DIRECTV
CUSTOMER SERVICES, INC.,
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as
Guarantor
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By: /s/
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: J.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Senior
Vice President and Treasurer
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DIRECTV
MERCHANDISING, INC.,
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as
Guarantor
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By: /s/
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: J.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Senior
Vice President and Treasurer
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DIRECTV
ENTERPRISES, LLC,
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as
Guarantor
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By: /s/
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: J.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Senior
Vice President and Treasurer
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DIRECTV
OPERATIONS, LLC,
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as
Guarantor
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By: /s/
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: J.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Senior
Vice President and Treasure
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LABC
PRODUCTIONS, LLC,
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as
Guarantor
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By: /s/
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: J.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Senior
Vice President and Treasurer
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DIRECTV
HOME SERVICES, LLC,
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as
Guarantor
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By: /s/
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: J.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Senior
Vice President and Treasurer
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DIRECTV
PROGRAMMING HOLDINGS I, INC.,
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as
Guarantor
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By: /s/
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: J.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Senior
Vice President and Treasurer
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DIRECTV
PROGRAMMING HOLDINGS II, INC.,
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as
Guarantor
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By: /s/
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: J.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Senior
Vice President and Treasurer
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The
foregoing Agreement is hereby
confirmed
and accepted by the Initial Purchasers
as of the
date first above written.
By: /s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Director
CITIGROUP
GLOBAL MARKETS INC.
By: /s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
Managing Director
▇.▇.
▇▇▇▇▇▇ SECURITIES INC.
By: /s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Executive Director
UBS
SECURITIES LLC
By: /s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Managing Director
By: /s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Associate Director
For
themselves and the other several Initial
Purchasers.