EXHIBIT 4.2
EXECUTION VERSION
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REGISTRATION RIGHTS AGREEMENT
Dated as of January 28, 2005
Among
ZEUS MERGER TWO LIMITED
and
ZEUS MERGER ONE LIMITED
and
DEUTSCHE BANK SECURITIES INC.,
CREDIT SUISSE FIRST BOSTON LLC
and
▇▇▇▇▇▇ BROTHERS INC.
as Representatives of the Initial Purchasers named on Schedule I
$1,000,000,000 Floating Rate Senior Notes due 2012
$875,000,000 8-1/4% Senior Notes due 2013
$675,000,000 8-5/8% Senior Notes due 2015
TABLE OF CONTENTS
PAGE
1. Definitions................................................................ 1
2. Exchange Offer............................................................. 5
3. Shelf Registration......................................................... 9
4. Additional Interest....................................................... 11
5. Registration Procedures................................................... 13
6. Registration Expenses..................................................... 22
7. Indemnification and Contribution.......................................... 23
8. Rules 144 and 144A........................................................ 27
9. Underwritten Registrations................................................ 27
10. Miscellaneous............................................................ 27
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is dated as of
January 28, 2005, among ZEUS MERGER TWO LIMITED, a company organized under the
laws of Bermuda (the "COMPANY"), Zeus Merger One Limited, a company organized
under the laws of Bermuda ( the "PARENT GUARANTOR"), and DEUTSCHE BANK
SECURITIES INC., CREDIT SUISSE FIRST BOSTON LLC and ▇▇▇▇▇▇ BROTHERS INC. as
representatives (the "REPRESENTATIVES") of the initial purchasers listed on
Schedule I hereto (the "INITIAL PURCHASERS").
This Agreement is entered into in connection with the Purchase
Agreement among the Company and the Parent Guarantor and the Representatives,
dated as of January 24, 2005 (the "PURCHASE AGREEMENT"), which provides for,
among other things, the sale by the Company to the Initial Purchasers of
$1,000,000,000 aggregate principal amount of its Floating Rate Senior Notes due
2012 (the "FLOATING RATE NOTES"), $875,000,000 aggregate principal amount of its
8-1/4% Senior Notes due 2013 (the "2013 NOTES") and $675,000,000 aggregate
principal amount of its 8-5/8% Senior Notes due 2015 (the "2015 NOTES"), each of
which will be guaranteed by the Parent Guarantor. The Floating Rate Notes, 2013
Notes and 2015 Notes are referred to herein as the "NOTES". In order to induce
the Representatives to enter into the Purchase Agreement, the Company and the
Parent Guarantor 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 Notes. The execution and delivery of this Agreement is
a condition to the Initial Purchasers' obligation to purchase the Notes under
the Purchase Agreement. Substantially concurrently with the consummation of the
Acquisition, the Subsidiary Guarantors shall guarantee the Notes on a senior
unsecured basis and shall become party to this Agreement pursuant to a joinder
agreement (the "REGISTRATION RIGHTS JOINDER AGREEMENT") substantially in the
form of the joinder agreement attached as EXHIBIT A hereto. The agreements of
each Subsidiary Guarantor herein shall become effective upon the execution by
such Subsidiary Guarantor of the Registration Rights Joinder Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings:
ACQUISITION: The amalgamations of two subsidiaries of Zeus
Holdings Limited, Zeus Merger One Limited and Zeus Merger Two Limited, with
Intelsat, Ltd. and Intelsat (Bermuda), Ltd., respectively, pursuant to the
transaction agreement relating to the
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amalgamations dated as of August 16, 2004, as amended or otherwise modified from
time to time.
ADDITIONAL INTEREST: See Section 4(a) hereof.
ADVICE: See the last paragraph of Section 5 hereof.
AGREEMENT: See the introductory paragraphs hereof.
APPLICABLE PERIOD: See Section 2(b) hereof.
AUTHORIZED AGENT: See Section 10(m) hereof.
BUSINESS DAY: Any day that is not a Saturday, Sunday or a legal
holiday or day on which banking institutions or trust companies in New York City
are authorized or required by law to be closed.
EFFECTIVENESS PERIOD: See Section 3(a) hereof.
EVENT DATE: See Section 4(b) 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.
HOLDER: Any holder of a Registrable Note or Registrable Notes.
INDENTURE: The Indenture, dated as of January 28, 2005, among the
Company, Parent Guarantor and ▇▇▇▇▇ Fargo Bank, National Association, as
trustee, pursuant to which the Notes are being issued, as amended or
supplemented from time to time in accordance with the terms thereof.
INFORMATION: See Section 5(o) hereof.
INITIAL PURCHASERS: See the introductory paragraphs hereof.
INITIAL SHELF REGISTRATION: See Section 3(a) hereof.
INSPECTORS: See Section 5(o) hereof.
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ISSUE DATE: January 28, 2005, the date of original issuance of
the Notes.
ISSUERS: Has the meaning set forth in the Purchase Agreement.
NASD: See Section 5(s) hereof.
NOTES: See the introductory paragraphs hereof.
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
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 hereof.
RECORDS: See Section 5(o) hereof.
REGISTRABLE NOTES: Each Note upon its original issuance and at all
times subsequent thereto, each Exchange Note as to which Section 2(c)(iv) hereof
is applicable upon original issuance and at all times subsequent thereto and
each Private Exchange Note upon original issuance thereof and at all times
subsequent thereto, until, in each case, the earliest to occur of (i) a
Registration Statement (other than, with respect to any Exchange Note as to
which Section 2(c)(iv) hereof is applicable, the Exchange Offer Registration
Statement) covering such Note, Exchange Note or Private Exchange Note has been
declared effective by the SEC and such Note, 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 Note has been exchanged pursuant to
the Exchange Offer for an Exchange Note or Exchange Notes that may be resold
without restriction under U.S. state and federal securities
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laws, (iii) such Note, Exchange Note or Private Exchange Note, as the case may
be, ceases to be outstanding for purposes of the Indenture, (iv) such Note,
Exchange Note or Private Exchange Note, as the case may be, may be resold
without restriction pursuant to Rule 144(k) (as amended or replaced) under the
Securities Act and (v) such Note, Exchange Note or Private Exchange Note, as the
case may be, is sold pursuant to Rule 144 (as amended or replaced) under the
Securities Act.
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 thereto and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
REGULATORY REQUIREMENTS: See the last paragraph of Section 1 hereof.
REPRESENTATIVES: See the introductory paragraphs hereof.
RULE 144: Rule 144 under the Securities Act.
RULE 144A: Rule 144A under the Securities Act.
RULE 405: Rule 405 under the Securities Act.
RULE 415: Rule 415 under the Securities Act.
RULE 424: Rule 424 under the Securities Act.
SEC: The U.S. Securities and Exchange Commission.
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.
SHELF REGISTRATION STATEMENT: Any Registration Statement relating
to a Shelf Registration.
SHELF SUSPENSION PERIOD: See Section 3(a) hereof.
SUBSEQUENT SHELF REGISTRATION: See Section 3(b) hereof.
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SUBSIDIARY GUARANTORS: Has the meaning set forth in the Purchase
Agreement.
TIA: The Trust Indenture Act of 1939, as amended, and the rules
and regulations of the SEC promulgated thereunder.
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 an Issuer are sold to an underwriter for reoffering to
the public.
Except as otherwise specifically provided, all references in this
Agreement to acts, laws, statutes, rules, regulations, releases, forms,
no-action letters and other regulatory requirements (collectively, "REGULATORY
REQUIREMENTS") shall be deemed to refer also to any amendments thereto and all
subsequent Regulatory Requirements adopted as a replacement thereto having
substantially the same effect therewith; PROVIDED that Rule 144 shall not be
deemed to amend or replace Rule 144A.
2. EXCHANGE OFFER
(a) Unless the Exchange Offer would violate applicable law or any
applicable interpretation of the staff of the SEC, the Issuers shall use their
commercially reasonable efforts to file with the SEC (within such time as to
comply with the requirements of the last sentence of this paragraph) 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 of each series of Notes
for a like aggregate principal amount of debt securities of the Company (the
"EXCHANGE NOTES"), that are identical in all material respects to the applicable
series of Notes, except that (i) the Exchange Notes shall contain no restrictive
legend thereon, (ii) subject to compliance herewith, the Exchange Notes shall
not be subject to any increase in annual interest rate as set forth in Section
4(a) hereof and (iii) interest thereon shall accrue from the last date on which
interest was paid on the Notes or, if no such interest has been paid, 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 identical 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 laws. Each
Issuer shall (x) use its commercially reasonable efforts to cause the Exchange
Offer Registration Statement to be declared effective under the Securities Act;
(y) keep the Exchange Offer open for at least 20 Business Days (or longer if
required by applicable law) after the date that notice of the Exchange Offer is
mailed to Holders; and (z) use its commercially reasonable efforts to consummate
the Exchange Offer on or prior to the 360th
6
day following the closing date of the Acquisition (or if such 360th day is not a
Business Day, the next succeeding Business Day).
Each Holder (including, without limitation, each Participating
Broker-Dealer) who participates in the Exchange Offer will be required to
represent to the Issuers in writing (which may be contained in the applicable
letter of transmittal) that: (i) any Exchange Notes acquired in exchange for
Registrable Notes tendered are being acquired in the ordinary course of business
of the Person receiving such Exchange Notes, whether or not such recipient is
such Holder itself; (ii) at the time of the commencement or consummation of the
Exchange Offer neither such Holder nor, to the actual knowledge of such Holder,
any other Person receiving Exchange Notes from such Holder has an arrangement or
understanding with any Person to participate in the distribution of the Exchange
Notes in violation of the provisions of the Securities Act; (iii) neither the
Holder nor, to the actual knowledge of such Holder, any other Person receiving
Exchange Notes from such Holder is an "affiliate" (as defined in Rule 405) of
any Issuer or, if it is an affiliate of any Issuer, it will comply with the
registration and prospectus delivery requirements of the Securities Act to the
extent applicable and will provide information to be included in the Shelf
Registration Statement in accordance with Section 5 hereof in order to have its
Notes included in the Shelf Registration Statement and benefit from the
provisions regarding Additional Interest in Section 4 hereof; (iv) neither such
Holder nor, to the actual knowledge of such Holder, any other Person receiving
Exchange Notes from such Holder is engaging in or intends to engage in a
distribution of the Exchange Notes; (v) neither the Holder nor, to the actual
knowledge of such Holder, any other Person receiving Exchange Notes from such
Holder is prohibited by any law or policy of the SEC from participating in the
Exchange Offer; and (vi) if such Holder is a Participating BrokerDealer, such
Holder has acquired the Registrable Notes as a result of market-making
activities or other trading activities and that it will comply with the
applicable provisions of the Securities Act (including, but not limited to, the
prospectus delivery requirements thereunder).
Upon consummation of the Exchange Offer in accordance with this
Section 2, the provisions of this Agreement shall continue to apply, MUTATIS
MUTANDIS, 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; PROVIDED, HOWEVER, that the Issuers
shall have no further obligation to register Registrable Notes, or file any
Registration Statement in respect thereof, (other than Private Exchange Notes
and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to this
Agreement.
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
7
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.
Each of the Issuers shall use its commercially reasonable 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;
PROVIDED, HOWEVER, that such period shall not be required to exceed 90 days or
such longer period if extended pursuant to the last paragraph of Section 5
hereof (the "APPLICABLE PERIOD").
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Notes acquired by them that have the status of an unsold
allotment in the initial distribution, the Company, upon the request of the
Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes
issue and deliver to the Initial Purchasers, in exchange (the "PRIVATE
EXCHANGE") for such Notes held by any such Holder, a like principal amount of
notes (the "PRIVATE EXCHANGE NOTES") of the Company, 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 bear
the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service
Bureau.
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;
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(2) use its commercially reasonable 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 Notes at any time prior to
the close of business, New York time, on the last Business Day on which the
Exchange Offer remains 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) cause the Trustee to authenticate and deliver promptly to each
Holder of Notes, a principal amount of Exchange Notes or Private Exchange Notes,
as the case may be, equal in principal amount to the Notes of such Holder so
accepted for exchange; PROVIDED that, in the case of any Notes held in global
form by a depositary, authentication and delivery to such depositary of one or
more replacement Notes in global form in an equivalent principal amount thereto
for the account of such Holders in accordance with the Indenture shall satisfy
such authentication and delivery requirement.
The Exchange Offer and the Private Exchange shall not be subject to
any conditions, other than that (i) the Exchange Offer or 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, and no material adverse development shall have
occurred in any existing action or proceeding with respect to the Company; and
(iii) all governmental approvals shall have been obtained, which approvals the
Issuers deem necessary for the consummation of the Exchange Offer or Private
Exchange.
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The Exchange Notes and the Private Exchange Notes shall be issued
under (i) the Indenture or (ii) 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 indenture shall provide that the Exchange Notes, the
Private Exchange Notes and the Notes shall vote and consent together on all
matters as one class and that none of the Exchange Notes, the Private Exchange
Notes or the Notes 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 Company determines upon advice of
its outside counsel that it is not permitted to effect the Exchange Offer, (ii)
the Exchange Offer is not consummated within 360 days of the closing date of the
Acquisition, (iii) the Initial Purchasers or any other holder of Private
Exchange Notes so requests in writing to the Issuers at any time after the
consummation of the Exchange Offer 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 U.S.
state and federal securities laws (other than due solely to the status of such
Holder as an affiliate of the Issuers within the meaning of the Securities Act
and other than any Participating Broker-Dealer by virtue of any prospectus
delivery requirement) and so notifies the Company prior to the 20th Business Day
following consummation of the Exchange Offer of such restrictions, in the case
of each of clauses (i) to and including (iv) of this sentence, then the Company
shall promptly deliver to the Holders and the Trustee written notice thereof
(the "SHELF NOTICE") and the Issuers shall file a Shelf Registration pursuant to
Section 3 hereof; PROVIDED, HOWEVER, that no Holder (other than an Initial
Purchaser) shall be entitled to have the Notes held by it covered by such Shelf
Registration unless such Holder agrees in writing to be bound by all of the
provisions of this Agreement applicable to such Holder.
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 as promptly as practicable
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 (the "INITIAL SHELF REGISTRATION"). The Issuers shall use their
commercially reasonable efforts to file with the SEC the Initial Shelf
Registration. The Initial Shelf Registration shall be on Form S-1 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
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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 use their commercially reasonable efforts to cause
the Shelf Registration to be declared effective under the Securities Act
within 360 days of the closing date of the Acquisition and to keep the
Initial Shelf Registration continuously effective under the Securities Act
until the date that is two years from the closing date of the Acquisition
or such shorter period ending when all Registrable Notes covered by the
Initial Shelf Registration have been sold in the manner set forth and as
contemplated in the Initial Shelf Registration or, if applicable, a
Subsequent Shelf Registration (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 and shall be
subject to reduction to the extent that the Notes, Exchange Notes or
Private Exchange Notes, as applicable, covered by the Shelf Registration
Statement become eligible for resale, without regard to volume, manner of
sale or other restrictions contained in Rule 144(k). Notwithstanding
anything to the contrary in this Agreement, at any time, the Issuers may
delay the filing of any Initial Shelf Registration Statement or delay or
suspend the effectiveness thereof, for a reasonable period of time, but
not in excess of an aggregate of 90 days in any calendar year (a "SHELF
SUSPENSION PERIOD"), if the Board of Directors of the Company determines
reasonably and in good faith that the filing of any such Initial Shelf
Registration Statement or the continuing effectiveness thereof would
require the disclosure of nonpublic material information that, in the
reasonable judgment of the Board of Directors of the Company, would be
detrimental to the Company (or to the Parent Guarantor, if the Parent
Guarantor's guarantee of the Notes is then in effect) if so disclosed or
would otherwise materially adversely affect a financing, acquisition,
disposition, merger or other material transaction.
(b) WITHDRAWAL OF STOP ORDERS; 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 during a Shelf Suspension Period or because of the sale of all
of the Notes registered thereunder), each Issuer shall use its
commercially reasonable 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 such Shelf Registration
Statement 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, each
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Issuer, other than during a Shelf Suspension Period, shall use its
commercially reasonable 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 and 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 the 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 (or their counsel) covered by such
Registration Statement with respect to the information included therein
with respect to one or more of such Holders, or by any underwriter of such
Registrable Notes with respect to the information included therein with
respect to such underwriter.
4. ADDITIONAL INTEREST
(a) The Issuers and the Initial Purchasers agree that the Holders
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):
(i) if neither (x) the Exchange Offer is completed, nor (y) if
required, the Shelf Registration Statement is declared effective, within,
in each case, 360 days of the closing date of the Acquisition, then
Additional Interest shall accrue on the Registrable Notes at a rate of
0.25% per annum on the principal amount of such Registrable Notes for the
first 90 days from and including such specified date and increasing by an
additional 0.25% per annum at the beginning of each subsequent 90-day
period thereafter; PROVIDED that Additional Interest in the aggregate
under this Section 4 may not exceed 1.00% per annum of the principal
amount of such Registrable Notes; or
(ii) notwithstanding that the Issuers have consummated or will
consummate an Exchange Offer, if the Issuers are required to file a Shelf
Registration Statement and such Shelf Registration Statement is not declared
effective on or prior to the 360th day following the date the filing of such
Shelf Registration Statement is required or requested pursuant to Section 3(a)
hereof, then Additional Interest shall accrue on the Registrable Notes at a rate
of 0.25% per annum of the principal amount
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of such Registrable Notes for the first 90 days from and including such
specified date and increasing by an additional 0.25% per annum at the
beginning of each subsequent 90-day period thereafter; PROVIDED that
Additional Interest in the aggregate under this Section 4 may not exceed
1.00% per annum of the principal amount of such Registrable Notes; or
(iii) if the Shelf Registration Statement required by Section 3(a)
of this Agreement has been declared effective but thereafter ceases to be
effective at any time at which it is required to be effective under this
Agreement and such failure to remain effective exists for more than the
number of days permitted by the second paragraph of Section 3(a) hereof,
then commencing on the first day following the date on which such Shelf
Registration Statement ceases to be effective that exceeds the number of
days permitted by the second paragraph of Section 3(a) hereof, Additional
Interest shall accrue on the Registrable Notes at a rate of 0.25% per
annum of the principal amount of such Notes for the first 90 days from and
including such day, as applicable, following the date on which such Shelf
Registration Statement ceases to be effective and increasing by an
additional 0.25% per annum at the beginning of each subsequent 90-day
period thereafter; PROVIDED that Additional Interest in the aggregate
under this Section 4 may not exceed 1.00% per annum of the principal
amount of such Registrable Notes;
PROVIDED, HOWEVER, that upon (1) the completion of the Exchange Offer (in the
case of paragraph (i) above), (2) the effectiveness of the Shelf Registration
Statement (in the case of paragraph (ii) above) and (3) the effectiveness of the
Shelf Registration Statement which had ceased to remain effective (in the case
of paragraph (iii) above), Additional Interest shall cease to accrue.
(b) The Company shall notify the Trustee within one Business Day
after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "EVENT DATE") and within one
Business Day after such Additional Interest ceases to accrue. Any amounts of
Additional Interest due pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section
4 will be payable in cash semiannually on each January 15 and July 15 (to the
holders of record on the January 1 and July 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 by
multiplying the applicable Additional Interest rate by the principal amount of
the Registrable Notes, multiplied by a fraction, the numerator of which is the
number of days such Additional Interest rate was applicable during such period
(determined on the basis of a 360 day year comprised of twelve 30 day months
and, in the case of a partial month, the actual number of days elapsed), and the
denominator of which is 360.
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5. REGISTRATION PROCEDURES
In connection with the filing of any Registration Statement pursuant
to Section 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 the Issuers shall
(other than during any Shelf Suspension Period):
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Section 2 or 3 hereof, and use
their commercially reasonable 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 from whom the
Issuers have received prior written notice that it will be a Participating
Broker-Dealer in the Exchange Offer, 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
covered by such Registration Statement (with respect to a Registration
Statement filed pursuant to Section 3 hereof) or each such Participating
Broker-Dealer (with respect to any such Registration Statement), 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 two Business
Days prior to such filing).
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration Statement 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, the Applicable Period or until consummation of the Exchange Offer,
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; and comply with the provisions of the
Securities Act and the Exchange Act applicable to it 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 an Participating
Broker-Dealer covered by any such Prospectus. The Issuers shall be deemed
not to have used their commercially reasonable efforts to keep a
Registration Statement effective 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
14
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 Company has received written notice that it will be a
Participating Broker-Dealer in the Exchange Offer, notify the selling
Holders of Registrable Notes (with respect to a Registration Statement
filed pursuant to Section 3 hereof), or each such Participating
Broker-Dealer (with respect to any such Registration Statement), as the
case may be, their counsel and the managing underwriters, if any, promptly
(but in any event within one Business Day), 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 a
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, obtain, at the sole
expense of the Company, 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, if any,
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(n) hereof cease to be true and
correct in all material respects, (iv) of the receipt by any of the
Issuers 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 any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
that in the case of the Prospectus, it will not contain any untrue
statement of a material fact or omit to state any material fact required
to be stated
15
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (vi) of an
Issuer's determination that a post-effective amendment to a Registration
Statement would be appropriate.
(d) Use its 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 its commercially reasonable efforts to obtain
the withdrawal of any such order at the earliest practicable moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and if
requested during the Effectiveness Period by the managing underwriter or
underwriters (if any), 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, give due and
prompt consideration to (i) incorporating in a prospectus supplement or
post-effective amendment such information as the managing underwriter or
underwriters (if any), such Holders, any Participating Broker-Dealer or
counsel for any of them reasonably request to be included therein, (ii)
making all required filings of such prospectus supplement or such
post-effective amendment as soon as practicable after the Issuers have
received notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment, and (iii) supplementing or making
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 (with respect to a Registration Statement
filed pursuant to Section 3 hereof) and to each such Participating
Broker-Dealer who so requests in writing (with respect to any such
Registration Statement) and to their respective counsel and each managing
underwriter, if any, 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, all documents incorporated or deemed to be
incorporated therein by reference, if any, and all exhibits.
(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
17
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, deliver to each selling Holder of Registrable Notes
(with respect to a Registration Statement filed pursuant to Section 3
hereof), or each such Participating Broker-Dealer (with respect to any
such Registration Statement), as the case may be, their respective
counsel, and the underwriters, if any, 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 any
documents incorporated by reference therein, if any, as such Persons may
reasonably request in writing; and, subject to the last paragraph of this
Section 5, the Issuers hereby consent to the use of such Prospectus and
each amendment or supplement thereto by each of the selling Holders of
Registrable Notes or each such Participating Broker-Dealer, as the case
may be, and the 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 its 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, the managing underwriter or underwriters, if any, and their
respective counsel 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,
Participating Broker-Dealer, or the managing underwriter or underwriters
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
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, FURTHER,
that none of the Issuers 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.
17
(i) If a Shelf Registration is filed pursuant to Section 3 hereof,
cooperate with the selling Holders of Registrable Notes and the managing
underwriter or underwriters, if any, 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 (subject to applicable
requirements contained in the Indenture) and registered in such names as
the managing underwriter or underwriters, if any, or Holders may request.
(j) Use their commercially reasonable efforts to cause the
Registrable Notes covered by the Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may
be necessary to enable the seller or sellers thereof or the underwriter or
underwriters, if any, to consummate the disposition of such Registrable
Notes, except as may be required solely as a consequence of the nature of
such selling Holder's business, in which case the Issuers will cooperate
in all respects with the filing of such Registration Statement and the
granting of such approvals.
(k) 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 paragraph 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 (with respect to a Registration Statement filed
pursuant to Section 3 hereof) or to the purchasers of the Exchange Notes
to whom such Prospectus will be delivered by a Participating Broker-Dealer
(with respect to any such Registration Statement), 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 the light of the circumstances under which they
were made, not misleading.
(l) Use their commercially reasonable efforts to cause the
Registrable Notes covered by a Registration Statement or the Exchange
Notes, as the case may be, to be rated with the appropriate rating
agencies, if so requested by the Holders of a majority in aggregate
principal amount of Registrable Notes covered by such Registration
Statement or the Exchange Notes, as the case may be, or the managing
underwriter or underwriters, if any.
18
(m) Prior to the effective date of the first Registration Statement
relating 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.
(n) In connection with any underwritten offering of Registrable
Notes pursuant to a Shelf Registration, if requested by the managing
underwriter or underwriters, enter into an underwriting agreement as is
customary in underwritten offerings of debt securities similar to the
Notes, and take all such other actions as are reasonably requested by the
managing underwriter or underwriters 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
(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 Notes, and confirm the same in
writing if and when requested; (ii) obtain the written opinions of counsel
to the Issuers, and written updates thereof in form, scope and substance
reasonably satisfactory to the managing underwriter or underwriters,
addressed to the underwriters covering the matters customarily covered in
opinions reasonably requested in underwritten offerings; (iii) obtain
"cold comfort" letters and updates thereof in form, scope and substance
reasonably satisfactory to the managing underwriter or underwriters from
the independent certified public accountants of the Issuers (and, if
necessary, any other independent certified public accountants 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 Notes; and (iv) if an underwriting agreement is entered into, the same
shall 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 reasonably 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.
(o) 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
19
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, make available for inspection by any Initial Purchaser,
any selling Holder of such Registrable Notes being sold (with respect to a
Registration Statement filed pursuant to Section 3 hereof), 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 (with respect to any such
Registration Statement), as the case may be, or underwriter (any such
Initial Purchasers, Holders, Participating Broker-Dealers, underwriters,
attorneys, accountants or agents, collectively, the "INSPECTORS"), upon
written request, at the offices where normally kept, during reasonable
business hours, all pertinent 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 its
subsidiaries to supply all information ("INFORMATION") reasonably
requested by any such Inspector in connection with such due diligence
responsibilities. Each Inspector shall agree in writing that it will keep
the Records and Information confidential and that it will not disclose any
of the Records or Information that any of the Issuers determines, in good
faith, to be confidential and notifies the Inspectors in writing are
confidential unless (i) the disclosure of such Records or Information is
necessary to avoid or correct a misstatement or omission in such
Registration Statement or Prospectus, (ii) the release of such Records or
Information is ordered pursuant to a subpoena or other order from a court
of competent jurisdiction, (iii) disclosure of such Records or Information
is necessary or advisable, in the opinion of counsel for any Inspector, in
connection with any action, claim, suit or proceeding, directly or
indirectly, involving or potentially involving such Inspector and arising
out of, based upon, relating to, or involving this Agreement or the
Purchase Agreement, or any transactions contemplated hereby or thereby or
arising hereunder or thereunder, or (iv) the information in such Records
or Information has been made generally available to the public other than
by an Inspector or an "affiliate" (as defined in Rule 405) thereof;
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 clauses (i) or (ii) of this sentence to
permit the Issuers to obtain a protective order (or waive the provisions
of this paragraph (o)) 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.
(p) 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
20
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 (if any) 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 its 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.
(q) 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 earning 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 45 days after the end of any fiscal quarter (or 90 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.
(r) Upon consummation of the Exchange Offer or a Private Exchange,
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, and the related indenture constitute
legal, valid and binding obligations of the Issuers, enforceable against
each Issuer in accordance with their respective terms, subject to
customary exceptions and qualifications. 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 cancelled
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.
(s) 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 National
Association of Securities Dealers, Inc. (the "NASD").
21
(t) Use their commercially reasonable efforts to take all other
steps necessary to effect the registration of the Exchange Notes and/or
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 Issuers all information required to be disclosed in
order to make the information previously furnished to the Issuers by such seller
not materially misleading.
If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Issuers, then such Holder shall
have the right to require (i) the insertion therein of language, in form and
substance reasonably satisfactory to such Holder, to the effect that the holding
by such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the securities covered thereby and that
such holding does not imply that such Holder will assist in meeting any future
financial requirements of the Issuers, or (ii) in the event that such reference
to such Holder by name or otherwise is not required by the Securities Act or any
similar federal statute then in force, the deletion of the reference to such
Holder in any amendment or supplement to the Registration Statement filed or
prepared subsequent to the time that such reference ceases to be required.
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 Company of (a) 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 or (b) a Shelf Suspension Period, such Holder will forthwith discontinue
disposition of such Registrable Notes covered by such Registration Statement or
Prospectus or (only in the case of clause (a) of this paragraph) 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(k) hereof (in
the case of clause (a) of this paragraph), or until it is advised in writing
(the "ADVICE") by the Company that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or supplements thereto. In
the event that the Company shall give any such notice, each of the Applicable
Period and the Effectiveness 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
22
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(k) hereof or (y) the Advice.
6. REGISTRATION EXPENSES
All fees and expenses incident to the performance of or compliance
with this Agreement by the Issuers shall be borne by the Issuers, whether or not
the Exchange Offer Registration Statement or any Shelf Registration Statement is
filed or becomes effective or the Exchange Offer is consummated, including,
without limitation, (i) all registration and filing fees (including, without
limitation, (A) fees with respect to filings required to be made with the NASD
in connection with an underwritten offering and (B) fees and expenses of
compliance with state securities or Blue Sky laws (including, without
limitation, fees and disbursements of 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 or underwriters, 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 and, in the
case of a Shelf Registration, reasonable fees and disbursements of one special
counsel for all of the sellers of Registrable Notes selected by the Holder of a
majority in aggregate principal amount of Registrable Notes covered by such
Shelf Registration (exclusive of any counsel retained pursuant to Section 7
hereof), (v) fees and disbursements of all independent certified public
accountants referred to in Section 5(n)(iii) hereof (including, without
limitation, the expenses of any "cold comfort" letters required by or incident
to such performance), (vi) Securities Act liability insurance, if any of the
Issuers desires 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. Except as set forth in the
preceding sentence, each Holder shall pay all other expenses relating to the
sale or disposition
23
of such Holder's Notes, Exchange Notes or Private Exchange Notes, including
without limitation, all underwriting discounts and commissions of any
underwriters with respect to any Notes, Exchange Notes, or Private Exchange
Notes sold by or on behalf of such Holder, if any.
7. INDEMNIFICATION AND CONTRIBUTION.
(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, and each
Person, if any, who controls such Person or its affiliates within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a
"PARTICIPANT") against any losses, claims, damages or liabilities to which any
Participant may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as any such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any 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
(ii) the omission or alleged omission to state, 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 any other document
or any amendment or supplement thereto, a material fact required to be
stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
and will reimburse, as incurred, the Participant for any legal or other expenses
reasonably incurred by the Participant in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; PROVIDED, HOWEVER, the Issuers
will not be liable in any such case to the extent that any such loss, claim,
damage, or liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made 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 any amendment or supplement thereto in
reliance upon and in conformity with written information relating to any
Participant furnished to any of the Issuers by such Participant specifically for
use therein; PROVIDED, FURTHER, that with respect to any such untrue statement
or alleged untrue statement or omission or alleged omission from any preliminary
Prospectus, the indemnity agreement contained in this paragraph (a) shall not
inure to the benefit of any Participant from whom such Person asserting such
loss, claim, damage or liability purchased the Exchange Notes concerned, to the
extent that both (i) a copy of the final Prospectus was
24
not sent or given to such Person at or prior to the written confirmation of the
sale of the Notes or Exchange Notes to such Person and (ii) the untrue statement
in or omission from such preliminary Prospectus was corrected in the final
Prospectus unless, in either case, such failure to deliver the final Prospectus
was a result of non-compliance by the Issuers with the provisions of Section 5
hereof. The indemnity provided for in this Section 7 will be in addition to any
liability that the Issuers may otherwise have to the indemnified parties. The
Issuers shall not be liable under this Section 7 to any indemnified party
regarding any settlement or compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent is consented to
by the Company, which consent shall not be unreasonably withheld.
(b) Each Participant, severally and not jointly, agrees to indemnify
and hold harmless each Issuer, its respective directors, officers and each
person, if any, who controls such Issuer within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any losses, claims,
damages or liabilities to which such Issuer or any such director, officer or
controlling person may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in any Registration
Statement or Prospectus, any amendment or supplement thereto, or any preliminary
prospectus, or (ii) the omission or the alleged omission to state therein a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning such Participant, furnished to
any of the Issuers by the Participant, specifically for use therein; and subject
to the limitation set forth immediately preceding this clause, will reimburse,
as incurred, any reasonable legal or other expenses incurred by the Issuers or
any such director, officer or controlling person in connection with
investigating or defending against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action in respect
thereof. The indemnity provided for in this Section 7 will be in addition to any
liability that the Participants may otherwise have to the indemnified parties.
The Participants shall not be liable under this Section 7 for any settlement of
any claim or action effected without their consent, which shall not be
unreasonably withheld.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action for which such indemnified
party is entitled to indemnification under this Section 7, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 7, notify the indemnifying party of the commencement
thereof in writing; but the omission to so notify the indemnifying
25
party (i) 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 party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraphs (a) and
(b) above. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party; PROVIDED, HOWEVER, that if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party or (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
one separate counsel to defend such action on behalf of such indemnified party
or parties. After notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action, the indemnifying
party will not be liable to such indemnified party under this Section 7 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the immediately preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by Participants who sold a majority in
interest of the Registrable Notes and Exchange Notes sold by all such
Participants in the case of paragraph (a) of this Section 7 or the Issuers in
the case of paragraph (b) of this Section 7, representing the indemnified
parties under such paragraph (a) or paragraph (b), as the case may be, who are
parties to such action or actions) or (ii) the indemnifying party has authorized
in writing the employment of counsel for the indemnified party at the expense of
the indemnifying party. All fees and expenses reimbursed pursuant to this
paragraph (c) shall be reimbursed as they are incurred. After such notice from
the indemnifying party to such indemnified party, the indemnifying party will
not be liable for the costs and expenses of any settlement of such action
effected by such indemnified party without the prior written consent of the
indemnifying party (which consent shall not be unreasonably withheld), unless
such indemnified party waived in writing its rights under this Section 7, in
which case the
26
indemnified party may effect such a settlement without such consent. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement or compromise of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party, or indemnity could have been sought hereunder by any indemnified party,
unless such settlement (A) includes an unconditional written release of the
indemnified party, in form and substance reasonably satisfactory to the
indemnified party, 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 any indemnified party.
(d) In circumstances in which the indemnity agreement provided for
in the preceding paragraphs of this Section 7 is unavailable to, or insufficient
to hold harmless, an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof), each indemnifying party, in
order to provide for just and equitable contribution, shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect (i) the relative benefits received by the indemnifying party or
parties on the one hand and the indemnified party on the other from the offering
of the Notes or (ii) if the allocation provided by the foregoing clause (i) is
not permitted by applicable law, not only such relative benefits but also the
relative fault of the indemnifying party or parties on the one hand and the
indemnified party 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). The relative benefits received by
the Issuers on the one hand and such Participant on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering (before
deducting expenses) of the Notes received by the Issuers bear to the total net
profit received by such Participant in connection with the sale of the Notes.
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 the Participants on the
other, the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission or alleged
statement or omission, and any other equitable considerations appropriate in the
circumstances. The parties agree that it would not be equitable if the amount of
such contribution were determined by pro rata or per capita allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to in the first sentence of this paragraph (d).
Notwithstanding any other provision of this paragraph (d), no Participant shall
be obligated to make contributions hereunder that in the aggregate exceed the
total net profit received by such Participant in connection with the sale of the
Notes, less the aggregate amount of any damages that such Participant has
otherwise been required to pay by reason of the untrue or alleged untrue
statements or the omissions or alleged omissions to state a material fact, and
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act)
27
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this paragraph (d), each person,
if any, who controls a Participant within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Participants, and each director of any Issuer, each officer
of any Issuer and each person, if any, who controls any Issuer within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
shall have the same rights to contribution as the Issuers.
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, if at any time it is not required to file such reports, it will, upon the
request of any Holder or beneficial owner of Registrable Notes, make available
such information necessary to permit sales pursuant to Rule 144A. Each of the
Issuers further covenants and agrees, for so long as any Registrable Notes
remain outstanding that it will take such further action as any Holder of
Registrable Notes may reasonably request, all to the extent required from time
to time to enable such holder to sell Registrable Notes without registration
under the Securities Act within the limitation of the exemptions provided by
Rule 144(k) under the Securities Act and Rule 144A.
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 consented to by the Issuers (such
consent not to be unreasonably withheld).
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. No Issuer has, as of the date
hereof, and no Issuer shall, after the date of this Agreement, enter into any
agreement with respect to any of its 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
28
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the other issued and outstanding securities
of any of the Issuers under any such agreements.
(b) ADJUSTMENTS AFFECTING REGISTRABLE NOTES. No Issuer shall,
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,
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
BrokerDealer, 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, with a copy in like manner to the Initial Purchasers as
follows:
Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Finance Department
29
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
(ii) if to the Initial Purchasers, at the address specified in
Section 10(d)(i);
(iii) if to any of the Issuers, at the address as follows:
Zeus Merger Two Limited
Canon's Court
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇
with a copy to:
Intelsat (Bermuda), Ltd.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
90 ▇▇▇▇▇ Bay Road
Pembroke, HM 08 Bermuda
and
Intelsat Global Service Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
with a copy to:
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III.
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
30
the mail, postage prepaid, if mailed; one Business Day after being timely
delivered to a nextday air courier; and upon written confirmation, 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.
(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 best 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) NOTES 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.
31
(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.
(m) JURISDICTION. Each Issuer agrees that any suit, action or
proceeding against any Issuer brought by any Initial Purchaser, the directors,
officers, employees and agents of any Initial Purchaser, or by any person who
controls any Initial Purchaser, arising out of or based upon this Agreement or
the transactions contemplated hereby may be instituted in the Supreme Court of
the State of New York sitting in New York County and the United States District
Court of the Southern District of New York, and any appellate court from any
thereof, and waives any objection which it may now or hereafter have to the
laying of venue of any such proceeding, and irrevocably submits to the
non-exclusive jurisdiction of such courts in any suit, action or proceeding.
Each Issuer hereby appoints CT Corporation System as its authorized agent (the
"AUTHORIZED AGENT") upon whom process may be served in any suit, action or
proceeding arising out of or based upon this Agreement or the transactions
contemplated herein that may be instituted in the Supreme Court of the State of
New York sitting in New York County and the United States District Court of the
Southern District of New York, and any appellate court from any thereof, by any
Initial Purchaser, the directors, officers, employees, affiliates and agents of
any Initial Purchaser, or by any person who controls any Initial Purchaser, and
expressly accepts the non-exclusive jurisdiction of any such court in respect of
any such suit, action or proceeding. Each Issuer hereby represents and warrants
that the Authorized Agent has accepted such appointment and has agreed to act as
said agent for service of process, and each Issuer agrees to take any and all
action, including the filing of any and all documents, that may be necessary to
continue such appointment in full force and effect as aforesaid. Service of
process upon the Authorized Agent shall be deemed, in every respect, effective
service of process upon each Issuer. The parties hereto each hereby waive any
right to trial by jury in any action, proceeding or counterclaim arising out of
or relating to this Agreement.
(n) IMMUNITY. To the extent that any Issuer has or hereafter may
acquire any immunity (sovereign or otherwise) from any legal action, suit or
proceeding, from jurisdiction of any court or from set-off or any legal process
(whether service or notice,
32
attachment in aid or otherwise) with respect to itself or any of its property,
such Issuer hereby irrevocably waives and agrees not to plead or claim such
immunity in respect of its obligations under this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
ZEUS MERGER TWO LIMITED
By: _____________________________
Name:
Title:
ZEUS MERGER ONE LIMITED
By: _____________________________
Name:
Title:
S-1
The foregoing Agreement is hereby
confirmed and accepted as of the date
first written above.
DEUTSCHE BANK SECURITIES INC.
By: _____________________________________
Name:
Title:
By: _____________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON LLC
By: _____________________________________
Name:
Title:
▇▇▇▇▇▇ BROTHERS INC.
By: _____________________________________
Name:
Title:
S-2
SCHEDULE I
INITIAL PURCHASERS
Deutsche Bank Securities Inc.
Credit Suisse First Boston LLC
▇▇▇▇▇▇ Brothers Inc.
Banc of America Securities LLC
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
BNP Paribas Securities Corp.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
CIBC World Markets Corp.
RBC Capital Markets Corporation
Greenwich Capital Markets, Inc.
SG Americas Securities, LLC
EXHIBIT A
January [ ], 2005
REGISTRATION RIGHTS JOINDER AGREEMENT
WHEREAS, Zeus Merger Two Limited, Zeus Merger One Limited and
Deutsche Bank Securities Inc., Credit Suisse First Boston LLC and ▇▇▇▇▇▇
Brothers Inc., as representatives of the Initial Purchasers named therein (the
"INITIAL PURCHASERS") heretofore executed and delivered a Registration Rights
Agreement ("REGISTRATION RIGHTS AGREEMENT"), dated January 28, 2005, providing
for the registration of notes substantially similar to the Notes (as defined
therein); and
WHEREAS, each Subsidiary Guarantor (as defined in the Registration
Rights Agreement), which was originally not a party thereto, has agreed to join
in the Registration Rights Agreement on or immediately following consummation of
the Acquisition.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed to such terms in the Registration Rights Agreement.
NOW, THEREFORE, each Subsidiary Guarantor hereby agrees for the
benefit of the Initial Purchasers, as follows:
1. JOINDER. Each of the undersigned signatory parties hereby
acknowledges that it has received and reviewed a copy of the Registration Rights
Agreement and all other documents it deems fit to enter into this Joinder
Agreement (the "JOINDER AGREEMENT"), and acknowledges and agrees to (i) join and
become a party to the Registration Rights Agreement as indicated by its
signature below; (ii) be bound by all covenants, agreements, representations,
warranties, indemnities and acknowledgments attributable to such signatory party
in the Registration Rights Agreement as if made by, and with respect to, such
signatory party; and (iii) perform all obligations and duties required and be
entitled to all the benefits of such signatory party pursuant to the
Registration Rights Agreement.
2. REPRESENTATIONS AND WARRANTIES AND AGREEMENTS OF THE SUBSIDIARY
GUARANTORS. Each of the undersigned hereby represents and warrants to and agrees
with the Initial Purchasers that it has all the requisite corporate or limited
liability company power and authority, as the case may be, to execute, deliver
and perform its obligations under this Joinder Agreement and to consummate the
transaction contemplated hereby and that when this Joinder Agreement is executed
and delivered, it will constitute a valid and legally binding agreement
enforceable against each of the undersigned in accordance with its terms, except
that the enforcement thereof may be subject to (i) bankruptcy, insolvency,
liquidation, possessory liens, rights of set-off, fraudulent transfer,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting creditors' rights generally, (ii) general principles of
equity and the discretion of the court before which any proceeding
A-1
therefor may be brought and (iii) any rights to indemnity or contribution
thereunder may be limited by U.S. federal and state securities laws and public
policy considerations.
3. COUNTERPARTS. This Joinder Agreement may be signed in one or more
counterparts (which may be delivered in original form or via facsimile), each of
which shall constitute an original when so executed and all of which together
shall constitute one and the same agreement.
4. AMENDMENTS. No amendment or waiver of any provision of this
Joinder Agreement, nor any consent or approval to any departure therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
parties to the Registration Rights Agreement.
5. HEADINGS. The section headings used herein are for convenience
only and shall not affect the construction hereof.
6. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS JOINDER
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
A-2
IN WITNESS WHEREOF, the undersigned has executed this agreement as
of the date first written above.
INTELSAT HOLDINGS LLC
By: ___________________________
Name:
Title:
INTELSAT LLC
By: ___________________________
Name:
Title:
INTELSAT GLOBAL SALES & MARKETING
LTD.
By: ___________________________
Name:
Title:
INTELSAT USA SALES CORP.
By: ___________________________
Name:
Title:
INTELSAT USA LICENSE CORP.
By: ___________________________
Name:
Title:
A-3
INTELSAT GLOBAL SERVICE CORPORATION
By: ___________________________
Name:
Title:
A-4