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REGISTRATION RIGHTS AGREEMENT
Dated as of July 3, 2006
Among
INTELSAT (BERMUDA), LTD.,
INTELSAT, LTD.
and
the SUBSIDIARY GUARANTORS
and
DEUTSCHE BANK SECURITIES INC.,
XXXXXX BROTHERS INC.,
CREDIT SUISSE SECURITIES (USA) LLC,
and
CITIGROUP GLOBAL MARKETS INC.
as Representatives of the Initial Purchasers named on Schedule I
$750,000,000 9.25% Senior Notes due 2016
TABLE OF CONTENTS
PAGE
1. Definitions..............................................................1
2. Exchange Offer...........................................................5
3. Shelf Registration.......................................................9
4. Additional Interest.....................................................11
5. Registration Procedures.................................................12
6. Registration Expenses...................................................21
7. Indemnification and Contribution........................................23
8. Rules 144 and 144A......................................................26
9. Underwritten Registrations..............................................27
10. Miscellaneous...........................................................27
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is dated as of
July 3, 2006, among INTELSAT (BERMUDA), LTD., a company organized under the laws
of Bermuda (the "COMPANY"), INTELSAT, LTD., a company organized under the laws
of Bermuda ( the "PARENT GUARANTOR"), INTELSAT HOLDINGS LLC, a Delaware limited
liability company, INTELSAT LLC, a Delaware limited liability company, INTELSAT
GLOBAL SALES & MARKETING LTD., a company organized under the laws of England and
Wales, INTELSAT UK FINANCIAL SERVICES LTD., a company organized under the laws
of England and Wales, INTELSAT SUBSIDIARY HOLDING COMPANY, LTD., a company
organized under the laws of Bermuda, INTELSAT USA SALES CORP., a Delaware
corporation, INTELSAT USA LICENSE CORP., a Delaware corporation, and INTELSAT
GLOBAL SERVICE CORPORATION a Delaware corporation (collectively, the "SUBSIDIARY
GUARANTORS" and, together with the Parent Guarantor, the "GUARANTORS"), DEUTSCHE
BANK SECURITIES INC., XXXXXX BROTHERS INC., CREDIT SUISSE SECURITIES (USA) LLC,
and CITIGROUP GLOBAL MARKETS 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, the Guarantors and the Representatives, dated as of
June 19, 2006 (the "PURCHASE AGREEMENT"), which provides for, among other
things, the sale by the Company to the Initial Purchasers of $750,000,000
aggregate principal amount of its 9.25% Senior Notes due 2016 (the "NOTES"),
which will be guaranteed by the Guarantors. In order to induce the
Representatives to enter into the Purchase Agreement, the Company and the
Guarantors 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.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings:
ACQUISITION: The transactions pursuant to which the Company became the
owner of all the outstanding share capital of PanAmSat Holding Corporation
pursuant to the Merger Agreement, dated as of August 28, 2005, among Intelsat
(Bermuda), Ltd., PanAmSat Holding Corporation and Proton Acquisition
Corporation.
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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 the date hereof, among the
Company, the Guarantors and Xxxxx 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.
ISSUE DATE: The date hereof, which is the date of original issuance of
the Notes.
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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 "issuer free writing prospectus" as defined in
Rule 433 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 laws, (iii) such
Note, Exchange Note or Private Exchange Note, as the case may be, ceases to
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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.
SUBSIDIARY GUARANTORS: Has the meaning set forth in the Purchase
Agreement.
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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 for a like aggregate
principal amount of debt securities of the Company (the "EXCHANGE NOTES"), that
are identical in all material respects to the 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 395th day following the closing date of
the Acquisition (or if such 395th day is not a Business Day, the next succeeding
Business Day).
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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 Broker-Dealer, 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 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
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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;
(2) use their 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);
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(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.
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,
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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 395 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 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 395 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
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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 non-public 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 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
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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, 395 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 395th 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
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
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(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 June 15 and December 15 (to the holders of
record on the June 1 and December 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.
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):
-13-
(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 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
-14-
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 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 their commercially reasonable efforts to prevent the issuance
of any order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of a Prospectus or suspending
the qualification (or exemption from qualification) of any of the
Registrable Notes or the Exchange Notes
-15-
to be sold by any Participating Broker-Dealer, for sale in any
jurisdiction, and, if any such order is issued, to use their commercially
reasonable efforts to obtain the withdrawal of any such order at the
earliest 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 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
-16-
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 their commercially reasonable efforts to register or
qualify, and to cooperate with the selling Holders of Registrable Notes or
each such Participating Broker-Dealer, as the case may be, 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.
(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.
-17-
(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.
(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
-18-
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 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,
-19-
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 their 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 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 their
commercially reasonable efforts to cause such trustee to execute, all
documents as may be required to effect such changes, and all other forms
and documents required to be filed with the SEC to enable such indenture to
be so qualified in a timely manner.
-20-
(q) Comply with all applicable rules and regulations of the SEC and
make generally available to their 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 xxxx, 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").
(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
-21-
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 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
-22-
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 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.
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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. 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.
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(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 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
-25-
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 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
-26-
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) 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
-27-
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 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
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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
Broker-Dealer, at the most current address of such Holder or Participating
Broker-Dealer, as the case may be, set forth on the records of the
registrar under the Indenture, with a copy in like manner to the Initial
Purchasers as follows:
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Finance Department
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx LLP
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx, 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:
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Intelsat (Bermuda), Ltd.
Xxxxxxxxx Xxxxx Xxxxx, 0xx Xxxxx
90 Xxxxx Bay Road
Pembroke, HM 08 Bermuda
with a copy to:
Intelsat, Ltd.
Xxxxxxxxx Xxxxx Xxxxx, 0xx Xxxxx
00 Xxxxx Xxx Xxxx
Xxxxxxxx, XX 00 Xxxxxxx
Xxxxxxxxx: General Counsel
and
Milbank, Tweed, Xxxxxx & XxXxxx LLP
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, 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 the mail, postage prepaid, if mailed; one Business Day after
being timely delivered to a next-day 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.
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(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.
(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
-31-
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, 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.
INTELSAT (BERMUDA), LTD.
/s/ Xxxxx Xxxxxxx
By:-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Chairman
INTELSAT, LTD.
/s/ Xxxxx Xxxxxxx
By:-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Chairman
INTELSAT HOLDINGS LLC
/s/ Xxxxx Xxxxxxx
By:-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Chairman
INTELSAT LLC
/s/ Xxxxx Xxxxxxx
By:-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Chairman
INTELSAT GLOBAL SALES & MARKETING LTD.
/s/ Xxxxx Xxxxxxx
By:-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Chairman
S-1
INTELSAT USA SALES CORP.
/s/ Xxxxxxx X. Xxxxxxxx
By:-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title:Chairman
INTELSAT USA LICENSE CORP.
/s/ Xxxxxxx X. Xxxxxxxx
By:-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title:Chairman
INTELSAT GLOBAL SERVICE CORPORATION
/s/ Xxxxxxxx Xxxxx
By:-----------------------------------
Name: Xxxxxxxx Xxxxx
Title: Vice President, General Counsel
and Secretary
INTELSAT UK FINANCIAL SERVICES LTD.
/s/ Xxxxx Xxxxxxx
By:-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Chairman
INTELSAT SUBSIDIARY HOLDING COMPANY,
LTD.
/s/ Xxxxx Xxxxxxx
By:-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Chairman
S-2
The foregoing Agreement is hereby
confirmed and accepted as of the
date first written above.
DEUTSCHE BANK SECURITIES INC.
/s/ Xxxxx Xxxxxxx
By:-------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
/s/ Xxxxxxx Xxxxxx
By:-------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
XXXXXX BROTHERS INC.
By: /s/ Antony Maniscalsa
--------------------------------
Name: Antony Maniscalsa
Title: Managing Director
CREDIT SUISSE SECURITIES (USA) LLC
/s/ Xxxxx X. Xxxxx
By:-------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
CITIGROUP GLOBAL MARKETS INC.
/s/ Xxxxxx X. Xxxx
By:-------------------------------
Name: Xxxxxx X. Xxxx
Title: Managing Director
S-3
Xxxxxxx, Xxxxx & Co.
/s/ Xxxxxxx, Sachs & Co.
----------------------------------
(Xxxxxxx, Xxxxx & Co.)
S-4
SCHEDULE I
INITIAL PURCHASERS
Deutsche Bank Securities Inc.
Xxxxxx Brothers Inc.
Citigroup Global Markets Inc.
Credit Suisse Securities (USA) LLC
Bear, Xxxxxxx & Co. Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx, Sachs & Co.
BNP Paribas Securities Corp.
JPMorgan Securities Inc.
Greenwich Capital Markets, Inc.
