DISH DBS Corporation
DISH
DBS Corporation
$400,000,000
7.875%
Senior Notes due 2019
This
Registration Rights Agreement (this “Agreement”)
is made and entered into as of October 5, 2009 by and among DISH DBS
Corporation, a Colorado corporation (the “Company”),
the Guarantors named in the Purchase Agreement (as defined below) (the “Guarantors”),
and Deutsche Bank Securities Inc. (the “Purchaser”),
who have agreed to purchase $400,000,000 aggregate principal amount of the
Company’s 7.875% Senior Notes due 2019 (the “Notes”)
upon the terms and conditions set forth in the Purchase Agreement, dated as of
September 24, 2009 (the “Purchase
Agreement”), among the Company, the Guarantors and the
Purchaser.
This
Agreement is made pursuant to the Purchase Agreement. As an
inducement to the Purchaser to purchase the Notes, the Company has agreed to
provide the registration rights set forth in this Agreement. The
execution and delivery of this Agreement is a condition to the obligations of
the Purchaser under the Purchase Agreement. Capitalized terms used
herein without definition shall have the meanings assigned to them in the
Indenture, dated as of August 17, 2009, among the Company, the Guarantors and
U.S. Bank National Association, as Trustee, relating to the Notes (the “Indenture”).
The
parties hereby agree as follows:
SECTION
1. DEFINITIONS
As used
in this Agreement, the following defined terms shall have the following
meanings:
“Affiliate”: As
defined in Rule 144(a)(1) under the Securities Act.
“Broker-Dealer”: Any
broker or dealer registered as such under the Exchange Act.
“Business
Day”: Any day other than a Saturday, Sunday or other day on
which commercial banks in the State of New York or the State of Colorado are
authorized or required by law or executive order to close.
“Closing
Date”: The date hereof.
“Commission”: The
Securities and Exchange Commission, or any other federal agency at any time
administering the Exchange Act or the Securities Act, whichever is the relevant
statute for the particular purpose.
“Consummate”: The
Exchange Offer shall be deemed “Consummated” for purposes of this Agreement upon
the occurrence of (i) the filing and effectiveness under the Securities Act
of
the
Exchange Offer Registration Statement relating to the Exchange Notes to be
issued in the Exchange Offer, (ii) the maintenance of such Exchange Offer
continuously effective and the keeping of the Exchange Offer open for a period
not less than the period required pursuant to Section 3(b) hereof, and
(iii) the delivery by the Company to the Registrar under the Indenture,
Exchange Notes in the same aggregate principal amount as the aggregate principal
amount of the Notes that were tendered by Holders thereof pursuant to the
Exchange Offer.
“Consummation
Deadline”: As defined in Section 3(b) hereof.
“Effectiveness
Deadline”: As defined in Sections 3(a) and 4(a)
hereof.
“Exchange
Act”: The Securities Exchange Act of 1934, as
amended.
“Exchange
Notes”: The Company’s 7.875% Senior Notes due 2019, guaranteed
by the Guarantors to the same extent as the Notes, to be issued pursuant to the
Indenture: (i) in the Exchange Offer or (ii) as contemplated by
Section 6 hereof.
“Exchange
Offer”: The exchange and issuance by the Company of a
principal amount of Exchange Notes (which shall be registered, pursuant to the
Exchange Offer Registration Statement) equal to the outstanding principal amount
of Notes that are tendered by such Holders in connection with such exchange and
issuance.
“Exchange Offer
Registration Statement”: A Registration Statement relating to the
Exchange Offer, including the related Prospectus.
“Filing
Deadline”: As defined in Sections 3(a) and 4(a)
hereof.
“FINRA”: Financial
Industry Regulatory Authority.
“Free Writing
Prospectus”
means each free writing prospectus (as defined in Rule 405 under the Securities
Act) prepared by or on behalf of the Company or used or referred to by the
Company in connection with the sale of the Notes or the Exchange
Notes.
“Holders”: As
defined in Section 2 hereof.
“Issuer
Information”
shall have the meaning set forth in Section 8(a) hereof.
“Prospectus”: The
prospectus included in a Registration Statement at the same time such
Registration Statement is declared effective, as amended or supplemented by any
prospectus supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by reference into such
Prospectus.
“Recommencement
Date”: As defined in Section 6(d) hereof.
“Registration
Default”: As defined in Section 5 hereof.
“Registration
Statement”: Any registration statement of the Company relating
to (a) an offering of Exchange Notes pursuant to an Exchange Offer or
(b) the registration for resale of
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Transfer
Restricted Securities pursuant to the Shelf Registration Statement, in each
case, that is filed pursuant to the provisions of this Agreement, including
the Prospectus included therein, all amendments and supplements thereto
(including post-effective amendments) and all exhibits and material incorporated
by reference therein.
“Regulation
S”: Regulation S promulgated under the Securities
Act.
“Rule
144”: Rule 144 promulgated under the Securities
Act.
“Securities
Act”: The Securities Act of 1933, as amended.
“Shelf
Registration Statement”: As defined in Section 4(a)
hereof.
“Suspension
Notice”: As defined in Section 6(d) hereof.
“TIA”: The
Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as in effect on the
date of the Indenture.
“Transfer
Restricted Securities”: (a) Each Note, until the earliest to
occur of (x) the date on which such Note is exchanged in an Exchange Offer
for an Exchange Note which is entitled to be resold to the public by the Holder
thereof without complying with the prospectus delivery requirements of the
Securities Act, (y) the date on which such Note has been disposed of in
accordance with a Shelf Registration Statement, (z) the date on which such
Note may be sold to the public in accordance with Rule 144 under the Securities
Act by a person that is not an “affiliate” (as defined in Rule 144 under the
Securities Act) of us where no conditions of Rule 144 are then applicable (other
than the holding period requirement in paragraph (d)(1)(ii) of Rule 144 so long
as such holding period requirement is satisfied at such time of determination);
or (b) each Exchange Note, until the date on which such Exchange Note is
disposed of by a Broker-Dealer pursuant to the “Plan of Distribution”
contemplated by the Exchange Offer Registration Statement (including the
delivery of the Prospectus contained therein).
“Underwritten
Registration or Underwritten Offering”: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
SECTION
2. HOLDERS
A person
is deemed to be a holder of Transfer Restricted Securities (each, a “Holder”
and, collectively, the “Holders”)
whenever such Person owns Transfer Restricted Securities.
SECTION
3. REGISTERED
EXCHANGE OFFER
(a) Unless
the Company determines,
after consultation with counsel, either (x) that an Exchange Offer with
respect to the Notes is not permitted by applicable law or Commission policy or
(y) that such an Exchange Offer is not effective to make Exchange Notes
freely tradeable to the extent contemplated hereby under applicable law or
Commission policy (after the procedures set forth in Section 6(a) below have
been complied with), the Company shall: (i) cause an Exchange
Offer Registration Statement to be filed with the Commission as soon as
reasonably practicable after the Closing Date, but in no event later than 180
days after the
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Closing
Date (such 180th day being the “Filing
Deadline”), (ii) use its reasonable best efforts to cause such
Exchange Offer Registration Statement to become effective at the earliest
possible time, but in no event later than 270 days after the Closing Date (such
270th day being the “Effectiveness
Deadline”), (iii) in connection with the foregoing, (A) file
all pre-effective amendments to such Exchange Offer Registration Statement as
may reasonably be necessary in order to cause it to become effective,
(B) file, if applicable, a post-effective amendment to such Exchange Offer
Registration Statement pursuant to Rule 430A under the Securities Act, and
(C) cause all necessary filings, if any, in connection with the
registration and qualification of the Exchange Notes to be made under the Blue
Sky laws of such jurisdictions as are necessary to permit Consummation of the
Exchange Offer, and (iv) upon the effectiveness of such Exchange Offer
Registration Statement, use its reasonable best efforts to commence and
Consummate the Exchange Offer such that the Exchange Offer is Consummated not
later than the 315th day after the Closing Date. The Exchange Offer
shall be on the appropriate form permitting (i) registration of the
Exchange Notes to be offered in exchange for the Notes that are Transfer
Restricted Securities and (ii) resales of Exchange Notes by Broker-Dealers
that tendered the Exchange Notes that such Broker-Dealer acquired for its own
account as a result of market-making activities or other trading activities
(other than Notes acquired directly from the Company or any of its Affiliates)
as contemplated by Section 3(c) below.
(b) The
Company shall use its reasonable best efforts to cause an Exchange Offer
Registration Statement with respect to the Exchange Notes to be effective
continuously and shall keep the Exchange Offer open for a period of not less
than the minimum period required under applicable federal and state securities
laws to Consummate the Exchange Offer; provided, however, that in no
event shall such period be less than twenty (20) Business Days. The
Company shall cause the Exchange Offer to comply with all applicable federal and
state securities laws. No securities other than Exchange Notes shall
be included in any Exchange Offer Registration Statement. The Company
shall use its reasonable best efforts to cause the Exchange Offer to be
Consummated not later than the 315th day after the Closing Date (such 315th day
being the “Consummation
Deadline”).
(c) The
Company shall include a “Plan of Distribution” section in the Prospectus
contained in each Exchange Offer Registration Statement and indicate therein
that any Broker-Dealer who holds Transfer Restricted Securities that were
acquired for the account of such Broker-Dealer as a result of market-making
activities or other trading activities (other than Notes acquired directly from
the Company or any Affiliate of the Company), may exchange such Transfer
Restricted Securities pursuant to the Exchange Offer. Such “Plan of
Distribution” section shall also contain all other information with respect to
such sales by such Broker-Dealers that the Commission may require in order to
permit such sales pursuant thereto, but such “Plan of Distribution” shall not
name any such Broker-Dealer or disclose the amount of Transfer Restricted
Securities held by any such Broker-Dealer, except to the extent required by the
Commission as a result of a change in policy, rules or regulations after the
date of this Agreement.
Because
such Broker-Dealer may be deemed to be an “underwriter” within the meaning of
the Securities Act and must, therefore, deliver a prospectus meeting the
requirements of the Securities Act in connection with any initial sale of any
Exchange Notes received by such Broker-Dealer in the Exchange Offer, the Company
shall permit the use of the Prospectus
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contained
in each Exchange Offer Registration Statement by such Broker-Dealer to satisfy
such prospectus delivery requirement. To the extent necessary to
ensure that the Prospectus contained in each Exchange Offer Registration
Statement is available for sales of Exchange Notes by Brokers-Dealers, the
Company shall use its reasonable best efforts to keep each Exchange Offer
Registration Statement continuously effective, supplemented, amended and current
as required by and subject to the provisions of Sections 6(a) and 6(c) hereof
and in conformity with the requirements of this Agreement, the Securities Act
and the policies, rules and regulations of the Commission as announced from time
to time, for a period of six months from the date on which each Exchange Offer
is Consummated or such shorter period as will terminate when all Transfer
Restricted Securities covered by such Registration Statement have been sold
pursuant thereto. The Company shall provide sufficient copies of the
latest version of such Prospectus to such Broker-Dealers, promptly upon request,
and in no event later than two Business Days after such request, at any time
during such period.
(d) The
Company represents, warrants and covenants that it (including its agents and
representatives) will not prepare, make, use, authorize, approve or refer to any
Free Writing Prospectus.
SECTION
4. SHELF
REGISTRATION
(x) cause
to be filed a shelf registration statement pursuant to Rule 415 under the
Securities Act (the “Shelf
Registration Statement”), relating to all Transfer Restricted Securities,
on or prior to the later of (1) ninety (90) days after the date on which the
Company determines that an Exchange Offer Registration Statement cannot be filed
as a result of clause (a)(i) above, (2) ninety (90) days after the date on
which the Company receives notice specified in clause (a)(ii) above, and
(3) the 180th day after the Closing Date (such later date, the “Filing
Deadline”); and
(y) shall
use its reasonable best efforts to cause such Shelf Registration Statement to
become effective on or prior to the 270th day after the Filing Deadline (such
270th day, the “Effectiveness
Deadline”). To the extent necessary to ensure that the Shelf
Registration Statement is available for sales of Transfer Restricted Securities
by the Holders thereof entitled to the benefit of this Section 4(a) and other
securities required to
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be
registered therein pursuant to Section 6(b)(ii) hereof, the Company shall use
its reasonable best efforts to keep such Shelf Registration Statement required
by this Section 4(a) continuously effective, supplemented, amended and current
as required by and subject to the provisions of Sections 6(b) and (c) hereof and
in conformity with the requirements of this Agreement, the Securities Act and
the policies, rules and regulations of the Commission as announced from time to
time, for a period of at least two years (as extended pursuant to Section 6(d)
hereof) following the Closing Date or such shorter period as will terminate
where all Transfer Restricted Securities covered by such Shelf Registration
Statement have been sold pursuant thereto.
(b) Provision by Holders of
Certain Information in connection with the Shelf Registration
Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within twenty (20) days after receipt of a request
therefor, (i) the information specified in Item 507 or 508 of Regulation
S-K, as applicable, of the Securities Act, and any successor provisions, for use
in connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein and (ii) the undertaking specified in Section
8(b) hereof. No Holder of Transfer Restricted Securities shall be
entitled to liquidated damages pursuant to Section 5 hereof unless and until
such Holder shall have used its reasonable best efforts to provide all such
information. Each selling Holder agrees to furnish promptly to the
Company all information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not materially
misleading.
SECTION
5. LIQUIDATED
DAMAGES
If
(i) any Registration Statement required by this Agreement is not filed with
the Commission on or prior to the applicable Filing Deadline, (ii) any such
Registration Statement has not been declared effective by the Commission on or
prior to the applicable Effectiveness Deadline, (iii) any Exchange Offer
has not been Consummated on or prior to the Consummation Deadline or
(iv) any Registration Statement required by this Agreement is filed and
declared effective but shall thereafter (and before the second anniversary of
the initial sale) cease to be effective or fail to be usable in connection with
resales of the Transfer Restricted Securities without being succeeded
immediately by a post-effective amendment to such Registration Statement that
cures such failure and that is itself immediately declared effective, and only
for such time of non-effectiveness or non-usability (each such event referred to
in clauses (i) through (iv), a “Registration
Default”), then the Company hereby agrees to pay (and the Guarantors
agree to guarantee such payments) liquidated damages to each Holder of Transfer
Restricted Securities affected thereby for the first 90-day period immediately
following the occurrence of such Registration Default, in an amount equal to
$0.05 per week per $1,000 in principal amount of Transfer Restricted Securities
held by such Holder for each week or portion thereof that the Registration
Default continues. The amount of the liquidated damages shall
increase by an additional $0.05 per week per $1,000 in principal amount of
Transfer Restricted Securities with respect to each subsequent 90-day period
until all Registration Defaults have been cured, the Transfer Restricted
Securities become freely tradable without registration under the Securities Act
or no Transfer Restricted Securities are outstanding, up to a maximum amount of
liquidated damages of $0.25 per week per $1,000 in principal amount of Transfer
Restricted Securities;
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provided
that the Company shall in no event be required to pay liquidated damages for
more than one Registration Default at any given time. All accrued
liquidated damages shall be paid to the Holders entitled thereto, in the manner
provided for the payment of interest, on each Interest Payment Date, as more
fully set forth in the Indenture and the Notes. Notwithstanding
anything to the contrary set forth herein, (1) upon filing of an Exchange
Offer Registration Statement with respect to the Transfer Restricted Securities
(and/or, if applicable, the Shelf Registration Statement), in the case of (i)
above, (2) upon the effectiveness of an Exchange Offer Registration
Statement with respect to the Transfer Restricted Securities (and/or, if
applicable, the Shelf Registration Statement), in the case of (ii) above,
(3) upon Consummation of an Exchange Offer with respect to the Transfer
Restricted Securities, in the case of (iii) above, or (4) upon the filing
of a post-effective amendment to a Registration Statement or an additional
Registration Statement that causes the Exchange Offer Registration Statement
with respect to the Transfer Restricted Securities (and/or, if applicable, the
Shelf Registration Statement) to again be declared effective or made usable in
the case of (iv) above, the liquidated damages payable with respect to the
Transfer Restricted Securities as a result of such clause (i), (ii), (iii) or
(iv), as applicable, shall cease.
Notwithstanding
the fact that any securities for which liquidated damages are due cease to be
Transfer Restricted Securities, all obligations of the Company to pay liquidated
damages with respect to securities shall survive until such time as such
obligations with respect to such securities shall have been satisfied in
full.
SECTION
6. REGISTRATION
PROCEDURES
(a) Exchange Offer Registration
Statement. In connection with the Exchange Offer, the Company
shall (x) comply with all of the provisions of Section 6(c) below,
(y) use its reasonable best efforts to effect such exchange and to permit
the resale of Exchange Notes by Broker-Dealers that tendered in the Exchange
Offer, Notes that such Broker-Dealer acquired for its own account as a result of
its market making activities as other trading activities (other than Notes
acquired directly from the Company or any of its Affiliates) being sold in
accordance with the intended method or methods of distribution thereof, and
(z) comply with all of the following provisions:
(i) If,
following the date hereof there has been announced a change in Commission policy
with respect to exchange offers such as the Exchange Offer, that in the
reasonable opinion of counsel to the Company raises a substantial question as to
whether any Exchange Offer is permitted by applicable federal law, the Company
hereby agrees to seek a no-action letter or other favorable decision from the
Commission allowing the Company to Consummate such Exchange Offer for such
Transfer Restricted Securities. The Company agrees to pursue the
issuance of such a decision to the Commission staff. In connection
with the foregoing, the Company agrees, to take all such other actions as may be
requested by the Commission or otherwise required in connection with the
issuance of such decision, including without limitation (A) participating
in telephonic conferences with the Commission and (B) delivering to the
Commission staff an analysis prepared by counsel to the Company setting forth
the legal bases, if any, upon which such counsel has concluded that such an
Exchange Offer should be permitted.
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(ii) As a
condition to its participation in the Exchange Offer, each Holder of Transfer
Restricted Securities (including, without limitation, any Holder who is a
Broker-Dealer) shall furnish, upon the request of the Company, prior to the
Consummation of the applicable Exchange Offer, a written representation to the
Company (which may be contained in the letter of transmittal contemplated by the
related Exchange Offer Registration Statement) to the effect that (A) it is
not an Affiliate of the Company, (B) it is not engaged in, and does not
intend to engage in, and has no arrangement or understanding with any person to
participate in, a distribution of the Exchange Notes to be issued in the
Exchange Offer and (C) it is acquiring the Exchange Notes in its ordinary
course of business. Each Holder using an Exchange Offer to
participate in a distribution of the Exchange Notes shall acknowledge and agree
that, if the resales are of Exchange Notes obtained by such Holder in exchange
for Notes acquired by such Holder directly from the Company or an Affiliate
thereof, it (1) could not, under Commission policy as in effect on the date
of this Agreement rely on the position of the Commission enunciated in Exxon Capital Holdings
Corporation (available May 13, 1988) and Xxxxxx Xxxxxxx and Co.,
Inc. (available June 5, 1991), as interpreted in the Commission’s letter
to Shearman &
Sterling dated July 2, 1993, and similar no-action letters (including, if
applicable, any no-action letter obtained pursuant to clause (i) above), and
(2) must comply with the registration and prospectus delivery requirements
of the Securities Act in connection with a secondary resale transaction and that
such a secondary resale transaction should be covered by an effective
registration statement containing the selling security holder information
required by Item 507 or 508, as applicable, of Regulation S-K or any successor
provisions.
(iii) Prior to
effectiveness of each Exchange Offer Registration Statement, the Company shall
provide a supplemental letter to the Commission (A) stating that the
Company is registering the related Exchange Offer in reliance on the position of
the Commission enunciated in Exxon Capital Holdings
Corporation (available May 13, 1988) and Xxxxxx Xxxxxxx and Co.,
Inc. (available June 5, 1991), as interpreted in the Commission’s letter
to Shearman &
Sterling dated July 2, 1993, and, if applicable, any no-action letter
obtained pursuant to clause (i) above, (B) including a representation that
neither the Company nor any Guarantor has entered into any arrangement or
understanding with any Person to distribute the Exchange Notes to be received in
the Exchange Offer and that, to the best of the Company’s information and
belief, each Holder participating in the Exchange Offer is acquiring the
Exchange Notes in its ordinary course of business and has no arrangement or
understanding with any Person to participate in the distribution of the Exchange
Notes received in the Exchange Offer and (C) any other undertaking or
representation required by the Commission as set forth in any no-action letter
obtained pursuant to clause (i) above, if applicable.
(b) Shelf Registration
Statement. In connection with each Shelf Registration
Statement, the Company shall: (i) comply with all the provisions of Section
6(c) below and shall use its reasonable best efforts to effect such registration
to permit the sale of the Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution thereof (as
indicated in the information furnished to the Company pursuant to
8
Section
4(b) hereof), and pursuant thereto the Company will prepare and file with the
Commission, a Registration Statement relating to the registration on any
appropriate form under the Securities Act, which form shall be available for the
sale of the Transfer Restricted Securities in accordance with the intended
method or methods of distribution thereof within the time periods and otherwise
in accordance with the provisions hereof and (ii) issue, upon the request
of any Holder or purchaser of Notes covered by any Shelf Registration Statement
contemplated by this Agreement, Exchange Notes having an aggregate principal
amount equal to the aggregate principal amount of Notes sold pursuant to the
Shelf Registration Statement and surrendered to the Company for cancellation;
the Company shall register Exchange Notes on the Shelf Registration Statement
for this purpose and issue the Exchange Notes to the purchasers of securities
subject to the Shelf Registration Statement in the names as such purchasers
shall designate.
(c) General
Provisions. In connection with any Registration Statement and
any related Prospectus required by this Agreement, the Company
shall:
(i) use its
reasonable best efforts to keep such Registration Statement continuously
effective and provide all requisite financial statements for the period
specified in Section 3 or 4 of this Agreement, as applicable. Upon
the occurrence of any event that would cause any such Registration Statement or
the Prospectus contained therein (A) to contain an untrue statement of
material fact or omit to state any material fact necessary to make the
statements therein not misleading or (B) not to be effective and usable for
resale of Transfer Restricted Securities during the period required by this
Agreement, the Company shall file promptly an appropriate amendment to such
Registration Statement, curing such defect, and if Commission review is
required, use its reasonable best efforts to cause such amendment to be declared
effective as soon as reasonably practicable;
(ii) prepare
and file with the Commission such amendments and post-effective amendments to
the Registration Statement as may be necessary to keep such Registration
Statement effective for the applicable period set forth in Section 3 or 4
hereof, as the case may be; cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act, and to comply fully with the applicable
provisions of Rules 424 and 430A under the Securities Act in a timely manner;
and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration Statement or
supplement to the Prospectus;
(iii) advise
the underwriters, if any and each selling Holder promptly, (A) when the
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to any Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of any request
by the Commission for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information relating thereto,
(C) of the issuance by the Commission of any stop order suspending the
effectiveness of any
9
Registration
Statement under the Securities Act or of the suspension by any state securities
commission of the qualification of the Transfer Restricted Securities for
offering or sale in any jurisdiction, or the initiation of any proceeding for
any of the preceding purposes, and (D) of the existence of any fact or the
happening of any event that makes any statement of a material fact made in any
Registration Statement, any Prospectus, any amendment or supplement thereto, or
any document incorporated by reference therein untrue, or that requires the
making of any additions to or changes in any Registration Statement or any
Prospectus in order to make the statements therein not misleading, or that
requires the making of any additions to or changes in any Prospectus in order to
make the statements therein in the light of the circumstances under which they
were made, not misleading. If at any time the Commission shall issue
any stop order suspending the effectiveness of any Registration Statement, or
any state securities commission or other regulatory authority shall issue an
order suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws, the
Company shall use its reasonable best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(iv) furnish
to each of the underwriters, if any, in connection with such exchange or sale,
if any, before filing with the Commission, copies of any Registration Statement
or any Prospectus included therein or any amendments or supplements to any such
Registration Statement or Prospectus (including all documents incorporated by
reference after the initial filing of such Registration Statement), which
documents will be subject to the review and comment of such underwriter(s), if
any, in connection with such sale, if any, for a period of at least three (3)
Business Days, and the Company shall use its reasonable best efforts to reflect
in any such Registration Statement or Prospectus or any amendment or supplement
to any such Registration Statement or Prospectus (including all such documents
incorporated by reference) such comments as the underwriters, if any, reasonably
propose;
(v) make
available, at reasonable times, for inspection by any underwriter, if any,
participating in any disposition pursuant to such Registration Statement, and
any attorney or accountant retained by any of such underwriters, all financial
and other records, pertinent corporate documents and properties of the Company
and cause the Company’s officers, directors and employees to supply all
information reasonably requested by any such underwriter, attorney or accountant
in connection with such Registration Statement or any post-effective amendment
thereto subsequent to the filing thereof and prior to its
effectiveness;
(vi) cause the
Transfer Restricted Securities covered by each Registration Statement to be
rated with the appropriate rating agencies, if so requested by the Holders of a
majority in aggregate principal amount of Notes covered thereby;
(vii) furnish
to each of the underwriter(s) (and upon request, any selling Holder), if any, in
connection with such exchange or sale, without charge, at least one copy of each
Shelf Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference therein and
all exhibits (including exhibits incorporated therein by
reference);
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(viii) deliver
to each selling Holder and each of the underwriters, if any, without charge, as
many copies of each Prospectus (including each preliminary prospectus) included
with a Shelf Registration Statement and any amendment or supplement thereto as
such Persons reasonably may request; the Company hereby consents to the use (in
accordance with applicable law) of the Prospectus included with a Shelf
Registration Statement and any amendment or supplement thereto by each selling
Holder and each underwriter, if any, in connection with the offering and the
sale of the Transfer Restricted Securities covered by each Prospectus or any
amendment or supplement thereto;
(ix) upon the
request of any selling Holder, enter into such agreements (including
underwriting agreements), and make such representations and warranties, and take
all such other actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted Securities pursuant to any
Shelf Registration Statement contemplated by this Agreement, as may be requested
by any selling Holder in connection with any sale or resale pursuant to any
Shelf Registration Statement. In such connection, the Company
shall:
(A) upon
request of the underwriters, if any, furnish to each such requesting
underwriter, in such substance and scope as they may request and as are
customarily made by issuers to underwriters in primary underwritten offerings,
upon the effectiveness of each Shelf Registration Statement, as the case may
be:
(1) a
certificate, dated such date signed on behalf of the Company by (x) the
President or any Vice President of the Company and (y) a principal
financial or accounting officer of the Company, confirming, as of the date
thereof, that the representations and warranties of the Company contained in any
such underwriting agreement (which shall be of the same tenor as the
representations and warranties contained in the Purchase Agreement, excluding
Sections 2(a) (which shall reference the related Registration Statement and
Prospectus instead of the Offering Memorandum) and (v)) qualified as to
materiality are true and correct, and those not so qualified are true and
correct in all material respects, in each case, as of the date hereof, and
confirming such other matters as such parties may reasonably
request;
(2) an
opinion, dated the date of effectiveness of each Shelf Registration Statement,
as the case may be, of counsel for the Company, similar to the form set forth in
Schedule II of
the Purchase Agreement, and in any event including a statement to the effect
that such counsel has participated in conferences with officers and other
representatives of the Company, representatives of the independent public
accountants for the Company, the Purchaser’s representatives and the Purchaser’s
counsel in connection with the preparation of such Shelf Registration Statement
and the related Prospectus and have considered the matters required to be stated
therein and the statements contained therein, although such counsel has not
independently verified the
11
accuracy,
completeness or fairness of such statements; and that such counsel advises that,
on the basis of the foregoing (relying as to materiality to the extent such
counsel deems appropriate upon the statements of officers and other
representatives of the Company and without independent check or verification),
no facts came to such counsel’s attention that caused such counsel to believe
that the applicable Shelf Registration Statement, at the time such Shelf
Registration Statement or any post-effective amendment thereto became effective,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that the related Prospectus contained in such Shelf
Registration Statement as of its date contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. Without limiting the foregoing, such counsel
may state further that such counsel assumes no responsibility for, and has not
independently verified, the accuracy, completeness or fairness of the financial
statements, notes and schedules and other financial data included in any Shelf
Registration Statement contemplated by this Agreement or the related Prospectus;
and
(3) a
customary comfort letter, dated as of the date of effectiveness of each Shelf
Registration Statement, as the case may be, from the Company’s independent
registered public accounting firm, in the customary form and covering matters of
the type customarily covered in comfort letters to underwriters in connection
with primary underwritten offerings; and
(B) deliver
such other documents and certificates as may be reasonably requested by the
underwriters, if any, to evidence compliance with the matters covered in clause
(A) above and with any customary conditions contained in any agreement or other
agreement entered into by the Company pursuant to this clause (ix), if
any.
(x) prior to
any public offering of Transfer Restricted Securities, cooperate with the
underwriters, if any, and their respective counsel in connection with the
registration and qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as the underwriters may
request and do any and all other acts or things necessary or advisable to enable
the disposition in such jurisdictions of the Transfer Restricted Securities
covered by the applicable Registration Statement; provided, however, that the
Company shall not be required to register or qualify as a foreign corporation
where it is not now so qualified or to take any action that would subject it to
the service of process in suits or to taxation, other than as to matters and
transactions relating to any Registration Statement, in any jurisdiction where
it is not now so subject;
12
(xi) shall
issue, upon the request of any Holder of Notes covered by each Shelf
Registration Statement, Exchange Notes, having an aggregate principal amount
equal to the aggregate principal amount of Notes surrendered to the Company by
such Holder in exchange therefor or being sold by such Holder; such Exchange
Notes to be registered in the name of such Holder or in the name of the
purchaser(s) of such Notes or Exchange Notes, as the case may be; in return, the
Notes held by such Holder shall be surrendered to the Company for
cancellation;
(xii) in
connection with any sale of Transfer Restricted Securities that will result in
such securities no longer being Transfer Restricted Securities, cooperate with
the Holders and the underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Transfer Restricted Securities to be
sold and not bearing any restrictive legends; and to register such Transfer
Restricted Securities in such denominations and in such names as the selling
Holders or the underwriters, if any, may request at least five (5) Business Days
prior to any such sale of Transfer Restricted Securities;
(xiii) use its
reasonable best efforts to cause the disposition of the Transfer Restricted
Securities covered by each Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the underwriters, if any, to consummate the disposition of such
Transfer Restricted Securities, subject to the proviso contained in clause (xii)
above;
(xiv) subject
to Section 6(c)(i), if any fact or event contemplated by Section 6(c)(iii)(D)
above shall exist or have occurred, prepare a supplement or post-effective
amendment to each Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to the purchasers of Transfer Restricted Securities, the
Prospectus will not contain an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, not
misleading;
(xv) provide a
CUSIP number for all Transfer Restricted Securities not later than the effective
date of a Registration Statement covering such Transfer Restricted Securities
and provide the Trustee under the Indenture with printed certificates for the
Transfer Restricted Securities which are in a form eligible for deposit with the
Depositary Trust Company;
(xvi) cooperate
and assist in any filings required to be made with FINRA and in the performance
of any due diligence investigation by any underwriter, if any, (including any
“qualified independent underwriter”) that is required to be retained in
accordance with the rules and regulations of FINRA, and use its reasonable best
efforts to cause such Registration Statement to become effective and approved by
such governmental agencies or authorities as may be necessary to enable the
Holders selling Transfer Restricted Securities to consummate the disposition of
such Transfer Restricted Securities;
13
(xvii) otherwise
use its reasonable best efforts to comply with all applicable rules and
regulations of the Commission, and make generally available to its security
holders with regard to any Registration Statement, as soon as reasonably
practicable, a consolidated earning statement meeting the requirements of Rule
158 under the Securities Act (which need not be audited) covering a twelve-month
period, beginning after the effective date of the Registration Statement (as
such term is defined in paragraph (c) of Rule 158 of the Securities
Act);
(xviii) cause the
Indenture to be qualified under the TIA not later than the effective date of the
Registration Statement required by this Agreement, and, in connection therewith,
cooperate with the Trustee and the Holders to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in accordance
with the terms of the TIA; and execute, and use its reasonable best efforts to
cause the Trustee to execute, all documents that may be required to effect such
changes and all other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a timely
manner;
(xix) cause all
Transfer Restricted Securities covered by the Registration Statement to be
listed on each securities exchange on which similar securities issued by the
Company are then listed if requested by the Holders of a majority in aggregate
principal amount of Notes or the managing underwriters, if any; and
(xx) provide
promptly to each underwriter, if any, upon request, each document filed with the
Commission pursuant to the requirements of Section 13 or Section 15(d) of the
Exchange Act since the Company’s most recent Annual Report on Form
10-K.
(d) Restrictions on
Holders. Each Holder agrees by acquisition of a Transfer
Restricted Security that, upon receipt of the notice referenced to in Section
6(c)(iii)(D) or any notice from the Company of the existence of any fact of the
kind described in Section 6(c)(iii)(D) hereof (in each case, a “Suspension
Notice”), such Holder will forthwith discontinue disposition of Transfer
Restricted Securities pursuant to the applicable Registration Statement until
(i) such Holder has received copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(xvi) hereof, or (ii) such Holder is
advised in writing by the Company that the use of the Prospectus may be resumed,
and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus (in each case, the “Recommencement
Date”). Each Holder receiving a Suspension Notice hereby
agrees that it will either (i) destroy any Prospectuses, other than
permanent file copies then in such Holder’s possession which have been replaced
by the Company with more recently dated Prospectuses, or (ii) will deliver
to the Company (at the Company’s expense) all copies, other than permanent file
copies then in such Holder’s possession, of the Prospectus covering such
Transfer Restricted Securities that was current at the time of receipt of such
Suspension Notice. The time period regarding the effectiveness of
such Registration Statement set forth in Section 3 or 4 hereof, as applicable,
shall be extended by a number of days equal to the number of days in the period
from and including the date of delivery of the Suspension Notice to the date of
the Recommencement Date.
14
SECTION
7. REGISTRATION
EXPENSES
Subject
to the compliance in all material respects by the Company and the Guarantors
with all of their respective obligations under this Agreement, the Purchaser
agrees to pay (and, to the extent not paid by the Purchaser, to reimburse the
Company for) all out-of-pocket costs and expenses reasonably incurred by the
Issuers in connection with the registration of the Exchange Notes in an aggregate amount not to exceed $750,000, including (i)
Commission filing fees; (ii) costs of printing or word processing or other
production of documents incurred in connection with the exchange offer; (iii)
fees and expenses of the Trustee, and any transfer or exchange agent;
(iv) all fees and expenses of compliance with federal securities and state
Blue Sky or securities laws; (v) all application and filing fees in connection
with listing Exchange Notes on a national securities exchange automated
quotation system pursuant to the requirements hereof; (vi) all fees and
disbursements of the Issuers’ counsel and independent accountants incurred in
connection therewith; and (vii) all expenses of printing (including
printing certificates for the Exchange Notes to be issued in the Exchange Offer
and printing of Prospectuses), messenger and delivery services and
telephone. To the extent not paid or reimbursed, such expenses shall
be borne by the Company and the Guarantors. The Purchaser’s
obligations under this Section 7 shall be subject in each case to the submission
by the Company and the Guarantors to the Purchaser of invoices and other
documentation with respect to such costs and expenses. In no event
shall the Purchaser’s obligations under this Section 7 limit their rights under
Section 8 hereof, whether by set-off or otherwise by the Company and the
Guarantors, and no liability of the Company and the Guarantors under Section 8
hereof shall be an obligation required to be paid or reimbursed by the Purchaser
pursuant to this Section 7.
The
Company will, in any event, bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expenses of any annual audit and the fees and
expenses of any Person, including special experts, retained by the
Company.
SECTION
8. INDEMNIFICATION
(a) The
Company and the Guarantors agree to indemnify and hold harmless (i) each
Holder and (ii) each Person, if any, who controls such Holder (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
(any of the persons referred to in this clause (ii) being hereinafter referred
to as a “controlling person”) and (iii) the respective officers, directors,
partners, employees, representatives and agents of any Holder or any controlling
person, from and against any and all losses, claims, damages, liabilities,
judgments, actions and expenses (including, without limitation, any legal or
other expenses incurred in connection with, investigating, preparing, pursuing
or defending any claim or action, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, including any action that
could give rise to any such losses, claims, damages, liabilities or judgments)
directly or indirectly caused by, related to, based upon, arising out of or in
connection with any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement, preliminary prospectus, Prospectus
(or any amendment or supplement thereto) or any Free Writing Prospectus used in
violation of this Agreement or any “issuer information” (“Issuer
15
Information”)
filed or required to be filed pursuant to Rule 433(d) under the Securities Act,
provided by the Company to any Holder or any prospective purchaser of Exchange
Notes or registered Notes or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities, judgments, actions or expenses are caused by an untrue
statement or omission or alleged untrue statement or omission that is based upon
information relating to such Holder furnished in writing to the Company by such
Holder.
(b) The
Company may require, as a condition to including any Transfer Restricted
Securities held by any Holder in a Registration Statement, that the Company
shall have received an undertaking reasonably satisfactory to it from such
Holder that such Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company and the Guarantors, and their respective directors and
officers, and each person, if any, who controls (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) the Company or the
Guarantors, as the case may be, to the same extent as the foregoing indemnity
from the Company set forth in Section 8(a) above, but only with reference to
information relating to such Holder furnished in writing to the Company by such
Holder expressly for use in any Registration Statement. In no event
shall any Holder, its directors, officers, or any person who controls such
Holder be liable or responsible for any amount in excess of the amount by which
the entire amount received by such Holder with respect to its sale of the
Transfer Restricted Securities pursuant to a Registration Statement exceeds
(i) the amount paid by such Holder for such Transfer Restricted Securities
and (ii) the amount of any damages that such Holder, its directors,
officers or any Person who controls such Holder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission.
(c) In case
any action shall be commenced involving any person in respect of which indemnity
may be sought pursuant to Section 8(a) or 8(b) (the “Indemnified
Party”), the Indemnified party shall promptly notify the person against
whom such indemnity may be sought (the “Indemnifying
Party”) in writing and the Indemnifying Party shall assume the defense of
such action, including the employment of counsel reasonably satisfactory to the
Indemnified Party and the payment of all fees and expenses of such counsel, as
incurred (except that in the case of any action in respect of which indemnity
may be sought pursuant to both Sections 8(a) and 8(b), a Holder shall not be
required to assume the defense of such action pursuant to this Section 8(c), but
may employ separate counsel and participate in the defense thereof, but the fees
and expenses of such counsel, except as provided below, shall be at the expense
of the Holder). Any Indemnified Party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the Indemnified
Party unless (i) the employment of such counsel shall have been
specifically authorized in writing by the Indemnifying Party, (ii) the
Indemnifying Party shall have failed to assume the defense of such action or
employ counsel reasonably satisfactory to the Indemnified Party or
(iii) the named parties to any such action (including any impleaded
parties) include both the Indemnified Party and the Indemnifying Party, and the
Indemnified Party shall have been advised by such counsel that there may be one
or more legal defenses available to it which are different from or additional to
those available to the Indemnifying Party (in which case the Indemnifying Party
shall not have the right to assume the defense of such action on behalf of the
Indemnified Party). In any such case, the Indemnifying Party shall
not, in connection with any one action or separate but substantially similar or
related actions in the same jurisdiction
16
arising
out of the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for all indemnified parties and all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in
writing by a majority of the Holders, in the case of the parties indemnified
pursuant to Section 8(a), and by the Company, in the case of parties indemnified
pursuant to Section 8(b). The Indemnifying Party shall indemnify and
hold harmless the Indemnified Party from and against any and all losses, claims,
damages, liabilities, judgments and expenses by reason of any settlement of any
action (i) effected with its written consent or (ii) effected without
its written consent if the settlement is entered into more than twenty (20)
Business Days after the Indemnifying Party shall have received a request from
the Indemnified Party for reimbursement for the fees and expenses of counsel (in
any case where such fees and expenses are at the expense of the Indemnifying
Party) and, prior to the date of such settlement, the Indemnifying Party shall
have failed to comply with such reimbursement request. No
Indemnifying Party shall, without the prior written consent of the Indemnified
Party, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of which
the Indemnified Party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the Indemnified
Party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the Indemnified Party from all liability on claims that
are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the Indemnified Party.
(d) To the
extent that the indemnification provided for in this Section 8 is unavailable to
an Indemnified Party under Section 8(a) or Section 8(b) hereof in respect of any
losses, claims, damages, liabilities, judgments or expenses referred to therein,
then each Indemnifying Party, in lieu of indemnifying such Indemnified Party,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such losses, claims, damages, liabilities, judgments or expenses
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Holders, on the other hand,
from their sale of Transfer Restricted Securities or (ii) if the allocation
provided by clause 8(d)(i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause 8(d)(i) above but also the relative fault of the Company, on the
one hand, and of the Holder, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities, judgments or expenses, as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand,
and of the Holder, on the other hand, 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 Company, on the one hand, or by such Holder, on the
other hand, and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The
Company, the Guarantors and each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were determined by pro
rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a
result of the losses, claims, damages, liabilities, judgments or expenses
referred to in the
17
immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Party in
connection with investigating or defending any such action or claim including
any action that could have given rise to such losses, claims, damages,
liabilities, judgments or expenses. Notwithstanding the provisions of
this Section 8, no Holder shall be required to contribute, in the aggregate, any
amount in excess of the amount by which the total received by such Holder with
respect to the sale of Transfer Restricted Securities pursuant to a Registration
Statement exceeds (i) the amount paid by such Holder for such Transfer
Restricted Securities and (ii) the amount of any damages which such Holder
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Holders’ obligations
to contribute pursuant to this Section 8(d) are several in proportion to the
respective principal amount of Transfer Restricted Securities held by each
Holder hereunder and not joint.
SECTION
9. RULE
144 AND RULE 144A
The
Company hereby agrees with each Holder, for so long as any Transfer Restricted
Securities remain outstanding and during any period in which the Company
(i) is not subject to Section 13 or 15(d) of the Exchange Act, to make
available, upon request of any Holder, to such Holder or beneficial owner of
Transfer Restricted Securities in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Securities designated by such
Holder or beneficial owner, the information required by Rule 144A(d)(4) under
the Securities Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A, and (ii) is subject to Section 13 or
15(d) of the Exchange Act, to make all filings required thereby in a timely
manner in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144.
SECTION
10. PARTICIPATION
IN UNDERWRITTEN REGISTRATIONS
No Holder
may participate in any Underwritten Registration hereunder unless such Holder
(a) agrees to sell such Holder’s Transfer Restricted Securities on the
basis provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of such
underwriting arrangements.
SECTION
11. SELECTION
OF UNDERWRITERS
The
Holders of Transfer Restricted Securities covered by the Shelf Registration
Statement who desire to do so may sell such Transfer Restricted Securities in an
Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided that such investment bankers and managers must be
reasonably satisfactory to the Company.
18
SECTION
12. MISCELLANEOUS
(a) Remedies. The
Company and the Guarantors acknowledge and agree that any failure by the Company
to comply with its obligations under Sections 3 and 4 hereof may result in
material irreparable injury to the Purchaser or Holders for which there is no
adequate remedy at law, that it will not be possible to measure damages for such
injuries precisely and that, in the event of any such failure, the Purchaser or
any Holder may obtain such relief as may be required to specifically enforce the
Company’s obligations under Sections 3 and 4 hereof. The Company and
the Guarantors further agree to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent
Agreements. The Company will not, on or after the date of this
Agreement, enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to
the Holders hereunder do not in any way conflict with and are not inconsistent
with the rights granted to the holders of the Company’s securities under any
agreement in effect on the date hereof.
(c) Adjustments Affecting the
Notes or Exchange Notes. The Company will not take any action,
or permit any change to occur, with respect to the Notes or the Exchange Notes
that would materially and adversely affect the ability of the Holders to
Consummate any Exchange Offer.
(d) Amendments and
Waivers. The provisions of this Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the
provisions hereof may not be given unless (i) in the case of Section 5
hereof and this Section 12(d)(i), the Company has obtained the written consent
of Holders of all outstanding Transfer Restricted Securities and (ii) in
the case of all other provisions hereof, the Company has obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities (excluding Transfer Restricted Securities held by the
Company or its Affiliates). Notwithstanding the foregoing, a waiver
or consent to departure from the provisions hereof that relates exclusively to
the rights of Holders whose Transfer Restricted Securities are being tendered
pursuant to the Exchange Offer and that does not affect directly or indirectly
the rights of other Holders whose Transfer Restricted Securities are not being
tendered pursuant to such Exchange Offer may be given by the Holders of a
majority of the outstanding principal amount of Transfer Restricted Securities
subject to such Exchange Offer.
(e) Third Party
Beneficiary. The Holders shall be third party beneficiaries to
the agreements made hereunder between the Company, on the one hand, and the
Purchaser, on the other hand, and shall have the right to enforce such
agreements directly to the extent they may deem such enforcement necessary or
advisable to protect its rights or the rights of Holders hereunder.
19
(f) Notices. All
notices and other communications provided for or permitted hereunder shall be
made in writing by hand-delivery, first-class mail (registered or certified,
return receipt requested), telex, telecopier, or air courier guaranteeing
overnight delivery:
(i) if to a
Holder, at the address set forth on the records of the Registrar under the
Indenture, with a copy to the Registrar under the Indenture; and
(ii) if to the
Company or the Guarantors:
|
|
DISH
DBS Corporation
|
|
|
0000
Xxxxx Xxxxxxxx Xxxxxxxxx
|
|
|
Xxxxxxxxx,
Xxxxxxxx 00000
|
|
|
Telecopier
No.: (000) 000-0000
|
|
|
Attention:
X. Xxxxxxx Dodge, Esq.
|
|
|
With
a copy to:
|
|
|
Xxxxxxxx
& Xxxxxxxx LLP
|
|
|
0000
Xxxxxxxxxxx Xxxx
|
|
|
Xxxx
Xxxx, Xxxxxxxxxx 00000
|
|
|
Telecopier
No.: (000) 000-0000
|
|
|
Attention:
Xxxxx X. Xxxxxx, Esq.
|
All such
notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five (5) Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if
telecopied; and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
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 specified
in the Indenture.
(g) Successors and
Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders; provided, that nothing herein shall be deemed to permit any assignment,
transfer or other disposition of Transfer Restricted Securities in violation of
the terms hereof or of the Purchase Agreement or the Indenture. If
any transferee of any Holder shall acquire Transfer Restricted Securities in any
manner, whether by operation of law or otherwise, such Transfer Restricted
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Transfer Restricted Securities such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement, including the restrictions on resale set
forth in this Agreement and, if applicable, the Purchase Agreement, and such
Person shall be entitled to receive the benefits hereof.
(h) 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
20
deemed
to be an original and all of which taken together shall constitute one and the
same agreement.
(i) Headings. The
headings in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.
(j) Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(k) Severability. In
the event that any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
(l) Entire
Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted with respect to the
Transfer Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
21
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
DISH DBS
CORPORATION
By: /s/ Xxxxxxx X.
Xxxxx
Name: Xxxxxxx
X. Xxxxx
Title: Chairman
and Chief Executive Officer
DISH
NETWORK L.L.C.
ECHOSPHERE
L.L.C.
DISH
NETWORK SERVICE L.L.C.
DISH
OPERATING L.L.C.
as
Guarantors
By: /s/ Xxxxxxx X.
Xxxxx
Name: Xxxxxxx
X. Xxxxx
Title: Chairman
and Chief Executive Officer
23
BY: DEUTSCHE
BANK SECURITIES INC.
By: /s/ Xxxxx
Xxxxx
Name: Xxxxx
Xxxxx
Title: Managing
Director
By: /s/ Xxxxxxxxx
Xxxxx
Name: Xxxxxxxxx
Xxxxx
Title: Managing
Director
24
