This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of October 2, 2003, by and among EchoStar DBS Corporation, a
Colorado corporation (the "COMPANY"), the Guarantors named in the Purchase
Agreement (as defined below) (the "GUARANTORS"), and Banc of America Securities
LLC and Credit Suisse First Boston LLC (each, a "PURCHASER" and, collectively,
the "PURCHASERS"), whom have agreed to purchase $1,000,000,000 aggregate
principal amount of 5-3/4% Senior Notes due 2008 of the Company (the "2008
NOTES"), $1,000,000,000 aggregate principal amount of 6-3/8% Senior Notes due
2011 of the Company (the "2011 NOTES") and $500,000,000 aggregate principal
amount of Floating Rate Senior Notes due 2008 of the Company (the "LIBOR
NOTES"), pursuant to the Purchase Agreement. The series of the 2008 Notes, the
series of the 2011 Notes and the series of the LIBOR Notes are collectively
referred to herein as, the "NOTES").
This Agreement is made pursuant to the Purchase Agreement, dated as of
September 18, 2003 (the "PURCHASE AGREEMENT"), among the Company, the Guarantors
and the Purchasers. In order to induce the Purchasers to purchase the Notes, the
Company has agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the
obligations of the Purchasers under the Purchase Agreement. Capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned to
them in the three Indentures, dated as of October 2, 2003, among the Company,
the Guarantors and U.S. Bank National Association, as Trustee, relating to the
three separate series of Notes (each, an "INDENTURE" and, collectively, the
"INDENTURES").
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
ACT: The Securities Act of 1933, as amended.
AFFILIATE: As defined in Rule 144 of the Act.
BROKER-DEALER: Any broker or dealer registered under the Exchange Act.
CLOSING DATE: The date hereof.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: An Exchange Offer related to any series of Notes shall be
deemed "Consummated" for purposes of this Agreement upon the occurrence of (i)
the filing and effectiveness under the Act of the Exchange Offer Registration
Statement relating to that series of Exchange Notes to be issued in the Exchange
Offer, (ii) the maintenance of such Exchange Offer continuously effective and
the keeping of the Exchange Offer open for a period not less than the period
required pursuant to Section 3(b) hereof, and (iii) the delivery by the Company
to the Registrar under the Indenture of that series, Exchange Notes in the same
aggregate principal amount as the aggregate principal amount of Notes of that
series that were tendered by Holders thereof pursuant to the Exchange Offer.
CONSUMMATION DEADLINE: As defined in Section 3(b) hereof.
EFFECTIVENESS DEADLINE: As defined in Section 3(a) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE NOTES: The Company's 5-3/4% Senior Notes due 2008, 6-3/8%
Senior Notes due 2011 and Floating Rate Senior Notes due 2008, in each case
guaranteed by the Guarantors to the same extent as the Notes, to be issued
pursuant to the Indentures: (i) in the Exchange Offers or (ii) as contemplated
by Section 6 hereof.
EXCHANGE OFFERS: The exchange and issuance by the Company of a
principal amount of Exchange Notes of each series (which shall be registered,
pursuant to the Exchange Offer Registration Statement) equal to the outstanding
principal amount of Notes of each series that are tendered by such Holders in
connection with such exchange and issuance.
EXCHANGE OFFER REGISTRATION STATEMENT: A Registration Statement
relating to any of the Exchange Offers, including the related Prospectus, which
may be in the form of a single Registration Statement.
FILING DEADLINE: As defined in Sections 3(a) and 4(a) hereof.
HOLDERS: As defined in Section 2 hereof.
NASD: National Association of Securities Dealers, Inc.
PROSPECTUS: The prospectus included in a Registration Statement at the
same time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
RECOMMENCEMENT DATE: As defined in Section 6(d) hereof.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the Company
relating to (a) an offering of Exchange Notes pursuant to an Exchange Offer or
(b) the registration for resale of Transfer Restricted Securities pursuant to
the Shelf Registration Statement, in each case, that is filed pursuant to the
provisions of this Agreement, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
REGULATION S: Regulation S promulgated under the Act.
RULE 144: Rule 144 promulgated under the Act.
SHELF REGISTRATION STATEMENT: As defined in Section 4 hereof.
SUSPENSION NOTICE: As defined in Section 6(d) hereof.
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TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb)
as in effect on the date of the Indenture.
TRANSFER RESTRICTED SECURITIES: Each Note, until the earliest to occur
of (a) the date on which such Note is exchanged in an Exchange Offer for an
Exchange Note which is entitled to be resold to the public by the Holder thereof
without complying with the prospectus delivery requirements of the Act, (b) the
date on which such Note has been disposed of in accordance with a Shelf
Registration Statement, (c) the date on which such Note may be distributed to
the public pursuant to Rule 144(k) under the Act or (d) each Exchange Note until
the date on which such Exchange Note is disposed of by a Broker-Dealer pursuant
to the "Plan of Distribution" contemplated by the Exchange Offer Registration
Statement (including the delivery of the Prospectus contained therein).
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
SECTION 2. HOLDERS
A person is deemed to be a holder of Transfer Restricted Securities
(each, a "HOLDER") whenever such Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless an Exchange Offer with respect to any series of Notes
shall not be permitted by applicable law or Commission policy (after the
procedures set forth in Section 6(a) below have been complied with), the Company
shall with respect to each other series of Notes: (i) cause an Exchange Offer
Registration Statement to be filed with the Commission as soon as practicable
after the Closing Date, but in no event later than 180 days after the Closing
Date (such 180th day being the "FILING DEADLINE"), (ii) use its reasonable best
efforts to cause such Exchange Offer Registration Statement to become effective
at the earliest possible time, but in no event later than 270 days after the
Closing Date (such 270th day being the "EFFECTIVENESS Deadline"), (iii) in
connection with the foregoing, (A) file all pre-effective amendments to such
Exchange Offer Registration Statement as may be necessary in order to cause it
to become effective, (B) file, if applicable, a post-effective amendment to such
Exchange Offer Registration Statement pursuant to Rule 430A under the Act, and
(C) cause all necessary filings, if any, in connection with the registration and
qualification of the Exchange Notes to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit Consummation of the Exchange Offers,
and (iv) upon the effectiveness of such Exchange Offer Registration Statement,
use its reasonable best efforts to commence and Consummate the Exchange Offers
such that the Exchange Offers are Consummated not later than the 315th day after
the Closing Date. The Exchange Offers shall be on the appropriate form
permitting (i) registration of the Exchange Notes to be offered in exchange for
the Notes that are Transfer Restricted Securities and (ii) resales of Exchange
Notes by Broker-Dealers that tendered the Exchange Notes that such Broker-Dealer
acquired for its own account as a result of market making activities or other
trading activities (other than Notes acquired directly from the Company or any
of its Affiliates) as contemplated by Section 3(c) below.
3
(b) The Company shall use its reasonable best efforts to cause an
Exchange Offer Registration Statement with respect to each series of Exchange
Notes (which may be in the form of a single Registration Statement) to be
effective continuously and shall keep the Exchange Offers open for a period of
not less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offers; provided, however, that in no
event shall such period be less than 20 business days. The Company shall cause
the Exchange Offers to comply with all applicable federal and state securities
laws. No securities other than Exchange Notes shall be included in any Exchange
Offer Registration Statement. The Company shall use its reasonable best efforts
to cause the Exchange Offers to be Consummated not later than the 315th day
after the Closing Date (such 315th day being the "CONSUMMATION DEADLINE").
(c) The Company shall include a "Plan of Distribution" section in
the Prospectus contained in each Exchange Offer Registration Statement and
indicate therein that any Broker-Dealer who holds Transfer Restricted Securities
that were acquired for the account of such Broker-Dealer as a result of
market-making activities or other trading activities (other than Notes acquired
directly from the Company or any Affiliate of the Company), may exchange such
Transfer Restricted Securities pursuant to the Exchange Offers. Such "Plan of
Distribution" section shall also contain all other information with respect to
such sales by such Broker-Dealers that the Commission may require in order to
permit such sales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Transfer Restricted
Securities held by any such Broker-Dealer, except to the extent required by the
Commission as a result of a change in policy, rules or regulations after the
date of this Agreement.
Because such Broker-Dealer may be deemed to be an "underwriter" within
the meaning of the Act and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with any initial sale of any Exchange
Notes received by such Broker-Dealer in the Exchange Offers, the Company shall
permit the use of the prospectus contained in each Exchange Offer Registration
Statement by such Broker-Dealer to satisfy such Prospectus delivery requirement.
To the extent necessary to ensure that the prospectus contained in each Exchange
Offer Registration Statement is available for sales of Exchange Notes by
Brokers-Dealers, the Company shall use its reasonable best efforts to keep each
Exchange Offer Registration Statement continuously effective, supplemented,
amended and current as required by and subject to the provisions of Sections
6(a) and 6(c) hereof and in conformity with the requirements of this Agreement,
the Act and the policies, rules and regulations of the Commission as announced
from time to time, for a period of one year from the date on which each Exchange
Offer is Consummated or such shorter period as will terminate when all Transfer
Restricted Securities covered by such Registration Statement have been sold
pursuant thereto. The Company shall provide sufficient copies of the latest
version of such Prospectus to such Broker-Dealers, promptly upon request, and in
no event later than one day after such request, at any time during such period.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) any Exchange Offer is not permitted
by applicable law or Commission policy (after the Company has complied with the
procedures set forth in Section
4
6(a) below) or (ii) if any Holder of Transfer Restricted Securities shall notify
the Company within 20 business days following the date on which any Exchange
Offer is Consummated that (A) such Holder was prohibited by applicable law or
Commission policy from participating in the Exchange Offer, or (B) such Holder
may not resell the Exchange Notes acquired by it in the Exchange Offer to the
public without delivering a prospectus and that the Prospectus contained in such
Exchange Offer Registration Statement is not appropriate or available for such
resales by such Holder, or (C) that such Holder is a Broker-Dealer and holds
Notes acquired directly from the Company or any of its Affiliates, then the
Company shall:
(x) cause to be filed a shelf registration statement pursuant
to Rule 415 under the Act (the "SHELF REGISTRATION STATEMENT"),
relating to all Transfer Restricted Securities of such series of Notes,
on or prior to the later of (1) 30 days after the date on which the
Company determines that an Exchange Offer Registration Statement with
respect to that series of Notes cannot be filed as a result of clause
(a)(i) above, (2) 30 days after the date on which the Company receives
notice specified in clause (a)(ii) above, and (3) the 120th day after
the Closing Date (such later date, the "FILING DEADLINE"); and
(y) shall use its reasonable best efforts to cause such Shelf
Registration Statement to become effective on or prior to the 180th
day, after the Filing Deadline (such 180th day, the "EFFECTIVENESS
DEADLINE"). To the extent necessary to ensure that the Shelf
Registration Statement is available for sales of Transfer Restricted
Securities of such series of Notes by the Holders thereof entitled to
the benefit of this Section 4(a) and other securities required to be
registered therein pursuant to Section 6(b)(ii) hereof, the Company
shall use its reasonable best efforts to keep such Shelf Registration
Statement required by this Section 4(a) continuously effective,
supplemented, amended and current as required by and subject to the
provisions of Sections 6(b) and (c) hereof and in conformity with the
requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for a
period of at least two years (as extended pursuant to Section 6(d)
hereof) following the Closing Date or such shorter period as will
terminate where all Transfer Restricted Securities covered by such
Shelf Registration Statement have been sold pursuant thereto.
(b) Provision by Holders of Certain Information in connection with
the Shelf Registration Statement. No Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 days after receipt of a request therefor, (i)
the information specified in Item 507 or 508 of Regulation S-K, as applicable,
of the Act for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein and (ii) the undertaking
specified in Section 8(b) hereof. No Holder of Transfer Restricted Securities
shall be entitled to liquidated damages pursuant to Section 5 hereof unless and
until such Holder shall have used its reasonable best efforts to provide all
such information. Each Selling Holder agrees to furnish promptly to the Company
all information required to be disclosed in order to make the information
previously furnished to the Company by such Holder not materially misleading.
5
SECTION 5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the applicable Filing Deadline, (ii)
any such Registration Statement has not been declared effective by the
Commission on or prior to the applicable Effectiveness Deadline, (iii) any
Exchange Offer has not been Consummated on or prior to the Consummation Deadline
or (iv) any Registration Statement required by this Agreement is filed and
declared effective but shall thereafter (and before the second anniversary of
the initial sale) cease to be effective or fail to be usable in connection with
resales of the Transfer Restricted Securities without being succeeded
immediately by a post-effective amendment to such Registration Statement that
cures such failure and that is itself immediately declared effective, and only
for such time of non-effectiveness or non-usability (each such event referred to
in clauses (i) through (iv), a "REGISTRATION DEFAULT"), then the Company hereby
agrees to pay (and the Guarantors agree to guarantee such payments) liquidated
damages to each Holder of Transfer Restricted Securities affected thereby for
the first 90-day period immediately following the occurrence of such
Registration Default, in an amount equal to $0.05 per week per $1,000 in
principal amount of Transfer Restricted Securities held by such Holder for each
week or portion thereof that the Registration Default continues. The amount of
the liquidated damages shall increase by an additional $0.05 per week per $1,000
in principal amount of Transfer Restricted Securities with respect to each
subsequent 90-day period until all Registration Defaults have been cured, the
Transfer Restricted Securities become freely tradable without registration under
the Act or no Transfer Restricted Securities are outstanding, up to a maximum
amount of liquidated damages of $0.30 per week per $1,000 in principal amount of
Transfer Restricted Securities; provided that the Company shall in no event be
required to pay liquidated damages with respect to any one series of Notes for
more than one Registration Default at any given time. All accrued liquidated
damages shall be paid to the Holders entitled thereto, in the manner provided
for the payment of interest, on each Interest Payment Date, as more fully set
forth in the Indentures and the Notes. Notwithstanding anything to the contrary
set forth herein, (1) upon filing of an Exchange Offer Registration Statement
with respect to the affected series of Transfer Restricted Securities (and/or,
if applicable, the Shelf Registration Statement), in the case of (i) above, (2)
upon the effectiveness of an Exchange Offer Registration Statement with respect
to the affected series of Transfer Restricted Securities (and/or, if applicable,
the Shelf Registration Statement), in the case of (ii) above, (3) upon
Consummation of an Exchange Offer with respect to the affected series of
Transfer Restricted Securities, in the case of (iii) above, or (4) upon the
filing of a post-effective amendment to a Registration Statement or an
additional Registration Statement that causes the Exchange Offer Registration
Statement with respect to the affected series of Transfer Restricted Securities
(and/or, if applicable, the Shelf Registration Statement) to again be declared
effective or made usable in the case of (iv) above, the liquidated damages
payable with respect to the affected series of Transfer Restricted Securities as
a result of such clause (i), (ii), (iii) or (iv), as applicable, shall cease.
Notwithstanding the fact that any securities for which liquidated
damages are due cease to be Transfer Restricted Securities, all obligations of
the Company to pay liquidated damages with respect to securities shall survive
until such time as such obligations with respect to such securities shall have
been satisfied in full.
6
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offers, the Company shall (x) comply with all of the provisions of
Section 6(c) below, (y) use its reasonable best efforts to effect such exchange
and to permit the resale of Exchange Notes by Broker-Dealers that tendered in
the Exchange Offers, Notes that such Broker-Dealer acquired for its own account
as a result of its market making activities as other trading activities (other
than Notes acquired directly from the Company or any of its Affiliates) being
sold in accordance with the intended method or methods of distribution thereof,
and (z) comply with all of the following provisions:
(i) If, following the date hereof there has been
announced a change in Commission policy with respect to exchange offers
such as the Exchange Offers, that in the reasonable opinion of counsel
to the Company raises a substantial question as to whether any Exchange
Offer is permitted by applicable federal law, the Company hereby agrees
to seek a no-action letter or other favorable decision from the
Commission allowing the Company to Consummate such Exchange Offer for
such Transfer Restricted Securities. The Company agrees to pursue the
issuance of such a decision to the Commission staff level. In
connection with the foregoing, the Company agrees, to take all such
other actions as may be requested by the Commission or otherwise
required in connection with the issuance of such decision, including
without limitation (A) participating in telephonic conferences with the
Commission, (B) delivering to the Commission staff an analysis prepared
by counsel to the Company setting forth the legal bases, if any, upon
which such counsel has concluded that such an Exchange Offer should be
permitted and (C) diligently pursuing a resolution (which need not be
favorable) by the Commission staff.
(ii) As a condition to its participation in the Exchange
Offers, each Holder of Transfer Restricted Securities (including,
without limitation, any Holder who is a Broker-Dealer) shall furnish,
upon the request of the Company, prior to the Consummation of the
applicable Exchange Offer, a written representation to the Company
(which may be contained in the letter of transmittal contemplated by
the related Exchange Offer Registration Statement) to the effect that
(A) it is not an Affiliate of the Company, (B) it is not engaged in,
and does not intend to engage in, and has no arrangement or
understanding with any person to participate in, a distribution of the
applicable series of Exchange Notes to be issued in the Exchange Offer
and (C) it is acquiring the Exchange Notes of the applicable series in
its ordinary course of business. Each Holder using an Exchange Offer to
participate in a distribution of the Exchange Notes shall acknowledge
and agree that, if the resales are of Exchange Notes obtained by such
Holder in exchange for Notes acquired by such Holder directly from the
Company or an Affiliate thereof, it (1) could not, under Commission
policy as in effect on the date of this Agreement rely on the position
of the Commission enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available
June 5, 1991) and Exxon Capital Holdings Corporation (available May 13,
1988), as interpreted in the Commission's letter to Shearman & Sterling
dated July 2, 1993, and similar no-action letters (including, if
applicable, any no-action letter obtained pursuant to clause (i)
above), and (2) must comply with the registration and prospectus
delivery requirements of the Act in connection with a secondary resale
transaction and that such a
7
secondary resale transaction should be covered by an effective
registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation
S-K.
(iii) Prior to effectiveness of each Exchange Offer
Registration Statement, the Company shall provide a supplemental letter
to the Commission (A) stating that the Company is registering the
related Exchange Offer in reliance on the position of the Commission
enunciated in Exxon Capital Holdings Corporation (available May 13,
1988), Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991), as
interpreted in the Commission's letter to Shearman & Sterling dated
July 2, 1993, and, if applicable, any no-action letter obtained
pursuant to clause (i) above, (B) including a representation that
neither the Company nor any Guarantor has entered into any arrangement
or understanding with any Person to distribute the Exchange Notes to be
received in the Exchange Offers and that, to the best of the Company's
information and belief, each Holder participating in the Exchange
Offers is acquiring the Exchange Notes in its ordinary course of
business and has no arrangement or understanding with any Person to
participate in the distribution of the Exchange Notes received in the
Exchange Offers and (C) any other undertaking or representation
required by the Commission as set forth in any no-action letter
obtained pursuant to clause (i) above, if applicable.
(b) Shelf Registration Statement. In connection with each Shelf
Registration Statement, the Company shall: (i) comply with all the provisions of
Section 6(c) below and shall use its reasonable best efforts to effect such
registration to permit the sale of the Transfer Restricted Securities being sold
in accordance with the intended method or methods of distribution thereof (as
indicated in the information furnished to the Company pursuant to Section 4(b)
hereof), and pursuant thereto the Company will prepare and file with the
Commission, a Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for the sale of
the Transfer Restricted Securities in accordance with the intended method or
methods of distribution thereof within the time periods and otherwise in
accordance with the provisions hereof and (ii) issue, upon the request of any
Holder or purchaser of Notes covered by any Shelf Registration Statement
contemplated by this Agreement, Exchange Notes having an aggregate principal
amount equal to the aggregate principal amount of Notes sold pursuant to the
Shelf Registration Statement and surrendered to the Company for cancellation;
the Company shall register Exchange Notes on the Shelf Registration Statement
for this purpose and issue the Exchange Notes to the purchasers of securities
subject to the Shelf Registration Statement in the names as such purchasers
shall designate.
(c) General Provisions. In connection with any Registration
Statement and any related Prospectus required by this Agreement, the Company
shall:
(i) use its reasonable best efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 or 4 of this
Agreement, as applicable. Upon the occurrence of any event that would
cause any such Registration Statement or the Prospectus contained
therein (A) to contain an untrue statement of material fact or omit to
state any material fact necessary to make the statements therein not
misleading or (B) not to be effective
8
and usable for resale of Transfer Restricted Securities during the
period required by this Agreement, the Company shall file promptly an
appropriate amendment to such Registration Statement, curing such
defect, and if Commission review is required, use its reasonable best
efforts to cause such amendment to be declared effective as soon as
practicable;
(ii) prepare and file with the Commission such amendments
and post-effective amendments to the Registration Statement as may be
necessary to keep such Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as the case may
be; cause the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424
under the Act, and to comply fully with the applicable provisions of
Rules 424 and 430A under the Act in a timely manner; and comply with
the provisions of the Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable
period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iii) advise the underwriters, if any, and each selling
Holder promptly and, if requested by such Holder, confirm such advice
in writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when
the same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements
to the Prospectus or for additional information relating thereto, (C)
of the issuance by the Commission of any stop order suspending the
effectiveness of any Registration Statement under the Act or of the
suspension by any state securities commission of the qualification of
the Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, and (D) of the existence of any fact or the
happening of any event that makes any statement of a material fact made
in any Registration Statement, any Prospectus, any amendment or
supplement thereto, or any document incorporated by reference therein
untrue, or that requires the making of any additions to or changes in
any Registration Statement or any Prospectus in order to make the
statements therein not misleading, or that requires the making of any
additions to or changes in any Prospectus in order to make the
statements therein in the light of the circumstances under which they
were made, not misleading. If at any time the Commission shall issue
any stop order suspending the effectiveness of any Registration
Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted Securities
under state securities or Blue Sky laws, the Company shall use its
reasonable best efforts to obtain the withdrawal or lifting of such
order at the earliest possible time;
(iv) furnish to each selling Holder and each of the
underwriters, if any, in connection with such exchange or sale, if any,
before filing with the Commission, copies of any Registration Statement
or any Prospectus included therein or any amendments or supplements to
any such Registration Statement or Prospectus (including all documents
incorporated by reference after the initial filing of such Registration
Statement), which
9
documents will be subject to the review and comment of such Holders and
underwriter(s), if any, in connection with such sale, if any, for a
period of at least five business days, and the Company will not file
any such Registration Statement or Prospectus or any amendment or
supplement to any such Registration Statement or Prospectus (including
all such documents incorporated by reference) to which such Holders or
the underwriters, if any, shall reasonably object within five business
days after the receipt thereof. A Holder or underwriter, if any, shall
be deemed to have reasonably objected to such filing if such
Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains an untrue statement of a
material fact or omits to state any material fact necessary to make the
statements therein not misleading or fails to comply with the
applicable requirements of the Act;
(v) promptly prior to the filing of any document that is
to be incorporated by reference into a Registration Statement or
Prospectus, provide copies of such document to each selling Holder and
to the underwriters, if any, in connection with such exchange or sale,
if any, make the Company's representatives available for discussion of
such document and other customary due diligence matters, and include
such information in such document prior to the filing thereof as such
Holders or underwriters, if any, reasonably may request;
(vi) make available, at reasonable times, for inspection
by each selling Holder, any underwriter, if any, participating in any
disposition pursuant to such Registration Statement, and any attorney
or accountant retained by such Holders or any of the underwriters, all
financial and other records, pertinent corporate documents and
properties of the Company and cause the Company's officers, directors
and employees to supply all information reasonably requested by any
such Holder, underwriter, attorney or accountant in connection with
such Registration Statement or any post-effective amendment thereto
subsequent to the filing thereof and prior to its effectiveness;
(vii) if requested by any Holders or the underwriters, if
any, in connection with such exchange or sale, promptly include in any
Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such Holders
and underwriters, if any, may reasonably request to have included
therein, including, without limitation, information relating to the
"Plan of Distribution" of the Transfer Restricted Securities; and make
all required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after the Company is notified of the
matters to be included in such Prospectus supplement or post-effective
amendment;
(viii) cause the Transfer Restricted Securities covered by
each Registration Statement to be rated with the appropriate rating
agencies, if so requested by the Holders of a majority in aggregate
principal amount of Notes covered thereby or the underwriters, if any;
(ix) furnish to each selling Holder (and upon request, any
Holder) and each of the underwriter(s), if any, in connection with such
exchange or sale, without charge, at least one copy of each
Registration Statement, as first filed with the Commission, and of
10
each amendment thereto, including all documents incorporated by
reference therein and all exhibits (including exhibits incorporated
therein by reference);
(x) deliver to each Holder and each of the underwriters,
if any, without charge, as many copies of each Prospectus (including
each preliminary prospectus) and any amendment or supplement thereto as
such Persons reasonably may request; the Company hereby consents to the
use (in accordance with applicable law) of the Prospectus and any
amendment or supplement thereto by each selling Holder and each
underwriter, if any, in connection with the offering and the sale of
the Transfer Restricted Securities covered by each Prospectus or any
amendment or supplement thereto;
(xi) upon the request of any selling Holder, enter into
such agreements (including underwriting agreements), and make, such
representations and warranties, and take all such other actions in
connection therewith in order to expedite or facilitate the disposition
of the Transfer Restricted Securities pursuant to any Registration
Statement contemplated by this Agreement, as may be requested by any
Purchaser or by any selling Holder in connection with any sale or
resale pursuant to any Registration Statement. In such connection, the
Company shall:
(A) upon request of any Holder, furnish to each
Purchaser, each selling Holder and each underwriter, if any,
in such substance and scope as they may request and as are
customarily made by issuers to underwriters in primary
underwritten offerings, upon the Consummation of the Exchange
Offers or upon, the effectiveness of each Shelf Registration
Statement, as the case may be:
(1) a certificate, dated such date
signed on behalf of the Company by (x) the President or any
Vice President and (y) a principal financial or accounting
officer of the Company, confirming, as of the date thereof,
the matters set forth in Sections 2(bb) of the Purchase
Agreement and confirming that the representations and
warranties of the Company contained in any such underwriting
agreement (which shall be of the same tenor as the
representations and warranties contained in the Purchase
Agreement, excluding Sections 2(a) (which shall reference the
related Registration Statement and Prospectus instead of the
Offering Memorandum), (cc), (dd), (ee), (ff), (gg) and (hh))
qualified as to materiality are true and correct, and those
not so qualified are true and correct in all material
respects, in each case, as of the date hereof, and confirming
such other matters as such parties may reasonably request;
(2) an opinion, dated the date of
Consummation of the Exchange Offers and the date of
effectiveness of each Shelf Registration Statement, as the
case may be, of counsel for the Company, covering the matters
similar to those set forth in Annex I and Annex II of the
Purchase Agreement and such other matters as such parties may
reasonably request, and in any event including a statement to
the effect that such counsel has participated in conferences
with officers and other representatives of the Company,
representatives of the independent public accountants for the
Company, the Purchasers' representatives and the Purchasers'
counsel in connection with the
11
preparation of such Registration Statement and the related
Prospectus and have considered the matters required to be
stated therein and the statements contained therein, although
such counsel has not independently verified the accuracy,
completeness or fairness of such statements; and that such
counsel advises that, on the basis of the foregoing (relying
as to materiality to the extent such counsel deems appropriate
upon the statements of officers and other representatives of
the Company and without independent check or verification), no
facts came to such counsel's attention that caused such
counsel to believe that the applicable Registration Statement,
at the time such Registration Statement or any post-effective
amendment thereto became effective, and, in the case of an
Exchange Offer Registration Statement, as of the date of
Consummation of the related Exchange Offer, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the
related Prospectus contained in such Registration Statement as
of its date and, in the case of the opinion dated the date of
Consummation of the related Exchange Offer, as of the date of
Consummation, contained an untrue statement of a material fact
or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading. Without limiting
the foregoing, such counsel may state further that such
counsel assumes no responsibility for, and has not
independently verified, the accuracy, completeness or fairness
of the financial statements, notes and schedules and other
financial data included in any Registration Statement
contemplated by this Agreement or the related Prospectus; and
(3) a customary comfort letter, dated
as of the date of Consummation of each Exchange Offer, or as
of the date of effectiveness of each Shelf Registration
Statement, as the case may be, from the Company's independent
accountants, in the customary form and covering matters of the
type customarily covered in comfort letters to underwriters in
connection with primary underwritten offerings, and affirming
the matters set forth in the comfort letters of KPMG delivered
pursuant to the Purchase Agreement, without exception; and
(B) deliver such other documents and
certificates as may be reasonably requested by such parties to
evidence compliance with the matters covered in clause (A)
above and with any customary conditions contained in any
agreement or other agreement entered into by the Company
pursuant to this clause (xi), if any.
If at any time the representations and warranties of the Company contemplated in
clause (A)(1) above cease to be true and correct, the Company shall so advise
the Purchasers and the underwriter(s), if any, and each selling Holder promptly
and, if requested by such Persons, shall confirm such advice in writing;
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with, the selling Holders, the underwriters, if
any, and their respective counsel in connection with the registration
and qualification of the Transfer Restricted Securities
12
under the securities or Blue Sky laws of such jurisdictions as the
selling Holders or underwriters may request and do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the
applicable Registration Statement; provided, however, that the Company
shall not be required to register or qualify as a foreign corporation
where it is not now so qualified or to take any action that would
subject it to the service of process in suits or to taxation, other
than as to matters and transactions relating to any Registration
Statement, in any jurisdiction where it is not now so subject;
(xiii) shall issue, upon the request of any Holder of Notes
covered by each Shelf Registration Statement, Exchange Notes, having an
aggregate principal amount equal to the aggregate principal amount of
Notes surrendered to the Company by such Holder in exchange therefor or
being sold by such Holder; such Exchange Notes to be registered in the
name of such Holder or in the name of the purchaser(s) of such Notes or
Exchange Notes, as the case may be; in return, the Notes held by such
Holder shall be surrendered to the Company for cancellation;
(xiv) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the Holders and the underwriters,
if any, to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to be sold and
not bearing any restrictive legends; and to register such Transfer
Restricted Securities in such denominations and in such names as the
selling Holders or the underwriters, if any, may request at least two
business days prior to any such sale of Transfer Restricted Securities;
(xv) use its reasonable best efforts to cause the
disposition of the Transfer Restricted Securities covered by each
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof or the underwriters, if any, to consummate
the disposition of such Transfer Restricted Securities, subject to the
proviso contained in clause (xii) above;
(xvi) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have
occurred, prepare a supplement or post-effective amendment to each
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, not misleading;
(xvii) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Registration
Statement covering such Transfer Restricted Securities and provide the
Trustee under the Indentures with printed certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with the
Depositary Trust Company;
13
(xviii) cooperate and assist in any filings required to be
made with the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified independent
underwriter") that is required to be retained in accordance with the
rules and regulations of the NASD, and use its reasonable best efforts
to cause such Registration Statement to become effective and approved
by such governmental agencies or authorities as may be necessary to
enable the Holders selling Transfer Restricted Securities to consummate
the disposition of such Transfer Restricted Securities;
(xix) otherwise use its reasonable best efforts to comply
with all applicable rules and regulations of the Commission, and make
generally available to its security holders with regard to any
Registration Statement, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not be
audited) covering a twelve-month period, beginning after the effective
date of the Registration Statement (as such term is defined in
paragraph (c) of rule 158 under the Act);
(xx) cause the Indentures to be qualified under the TIA
not later than the effective date of the first Registration Statement
required by this Agreement, and, in connection therewith, cooperate
with the Trustee and the Holders to effect such changes to the
Indentures as may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute, and use its
reasonable best efforts to cause the Trustee to execute, all documents
that may be required to effect such changes and all other forms and
documents required to be filed with the Commission to enable such
Indentures to be so qualified in a timely manner;
(xxi) cause all Transfer Restricted Securities covered by
the Registration Statement to be listed on each securities exchange on
which similar securities issued by the Company are then listed if
requested by the Holders of a majority in aggregate principal amount of
Notes or the managing underwriters, if any; and
(xxii) provide promptly to each Holder, upon request, each
document filed with the Commission pursuant to the requirements of
Section 13 or Section 15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of
a Transfer Restricted Security that, upon receipt of the notice referenced to in
Section 6(c)(iii)(D) or any notice from the Company of the existence of any fact
of the kind described in Section 6(c)(iii)(D) hereof (in each case, a
"SUSPENSION NOTICE"), such Holder will forthwith discontinue disposition of
Transfer Restricted Securities pursuant to the applicable Registration Statement
until (i) such Holder has received copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(xvi) hereof, or (ii) such Holder is
advised in writing by the Company that the use of the Prospectus may be resumed,
and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus (in each case, the "RECOMMENCEMENT
DATE"). Each Holder receiving a Suspension Notice hereby agrees that it will
either (i) destroy any Prospectuses, other than permanent file copies then in
such Holder's possession which have been replaced by the Company with more
recently dated Prospectuses, or (ii) will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such
14
Transfer Restricted Securities that was current at the time of receipt of such
Suspension Notice. The time period regarding the effectiveness of such
Registration Statement set forth in Section 3 or 4 hereof, as applicable, shall
be extended by a number of days equal to the number of days in the period from
and including the date of delivery of the Suspension Notice to the date of the
Recommencement Date.
SECTION 7. REGISTRATION EXPENSES
Subject to the compliance in all material respects by the Company and
the Guarantors with all of their respective obligations under this Agreement,
the Purchasers agree to pay (and, to the extent not paid by the Purchasers, to
reimburse the Company for) all out-of-pocket expenses reasonably incurred by the
Company and the Guarantors which are incident to the performance of their
obligations under this Agreement, regardless of whether a Registration Statement
becomes effective (unless due to the noncompliance of the Company and the
Guarantors of their obligations under this Agreement), up to a maximum of
$540,000, after which such expenses shall be borne by the Company and the
Guarantors, including without limitation: (i) all registration and filing fees
and expenses (including filings made by any Purchaser or Holder with the NASD
(and, if applicable, the fees and expenses of any "qualified independent
underwriter" and its counsel that may be required by the rules and regulations
of the NASD)); (ii) all fees and expenses of compliance with federal securities
and state Blue Sky or securities laws; (iii) all expenses of printing (including
printing certificates for the Exchange Notes to be issued in the Exchange Offers
and printing of Prospectuses), messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel for the Company and the Holders of
Transfer Restricted Securities; (v) all application and filing fees in
connection with listing Exchange Notes on a national securities exchange
automated quotation system pursuant to the requirements hereof; (vi) all fees
and disbursements of independent certified public accountants of the Company
(including the expenses of any special audit and comfort letters required by or
incidental to such performance); (vii) fees and expenses of the Trustee,
including fees and expenses of counsel and (viii) all travel related expenses
incurred by officers or employees of the Company incident to the performance of
the Company's or the Guarantors' obligations under this Agreement. The
Purchasers' obligations under this Section 7(a) shall be subject in each case to
the submission by the Company and the Guarantors to the Purchasers of invoices
and other documentation with respect to such costs and expenses. In no event
shall the Purchasers' obligations under Section this 7(a) limit their rights
under Section 8 hereof, whether by set-off or otherwise by the Company and the
Guarantors, and no liability of the Company and the Guarantors under Section 8
hereof shall be an obligation required to be paid or reimbursed by the
Purchasers pursuant to this Section 7(a).
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors agree to indemnify and hold
harmless (i) each Holder and (ii) each Person, if any, who controls such Holder
(within the meaning of Section 15
15
of the Act or Section 20 of the Exchange Act) (any of the persons referred to in
this clause (ii) being hereinafter referred to as a "controlling person") and
(iii) the respective officers, directors, partners, employees, representatives
and agents of any Holder or any controlling person, from and against any and all
losses, claims, damages, liabilities, judgments, actions and expenses
(including, without limitation, any legal or other expenses incurred in
connection with, investigating, preparing, pursuing or defending any claim or
action, or any investigation or proceeding by any governmental agency or body,
commenced or threatened, including any action that could give rise to any such
losses, claims, damages, liabilities or judgments) directly or indirectly caused
by, related to, based upon, arising out of or in connection with any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement, preliminary prospectus or Prospectus (or any amendment
or supplement thereto), provided by the Company to any Holder or any prospective
purchaser of Exchange Notes or registered Notes or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities, judgments, actions or expenses are
caused by an untrue statement or omission or alleged untrue statement or
omission that is based upon information relating to such Holder furnished in
writing to the Company by such Holder.
(b) The Company may require, as a condition to including any
Transfer Restricted Securities held by any Holder in a Registration Statement,
that the Company shall have received an undertaking reasonably satisfactory to
it from such Holder that such Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company and the Guarantors, and their respective
directors and officers, and each person, if any, who controls (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act) the Company
or the Guarantors, as the case may be, to the same extent as the foregoing
indemnity from the Company set forth in Section 8(a) above, but only with
reference to information relating to such Holder furnished in writing to the
Company by such Holder expressly for use in any Registration Statement. In no
event shall any Holder, its directors, officers, or any person who controls such
Holder be liable or responsible for any amount in excess of the amount by which
the entire amount received by such Holder with respect to its sale of the
Transfer Restricted Securities pursuant to a Registration Statement exceeds (i)
the amount paid by such Holder for such Transfer Restricted Securities and (ii)
the amount of any damages that such Holder, its directors, officers or any
Person who controls such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 8(a) and 8(b), a Holder shall not be required to assume the
defense of such action pursuant to this Section 8(c), but may employ separate
counsel and participate in the defense thereof, but the fees and expenses of
such counsel, except as provided below, shall be at the expense of the Holder).
Any indemnified party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such
16
counsel shall be at the expense of the indemnified party unless (i) the
employment of such counsel shall have been specifically authorized in writing by
the indemnifying party, (ii) the indemnifying party shall have failed to assume
the defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the indemnified party). In any such case, the indemnifying party
shall not, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all indemnified parties and all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by a majority of the
Holders, in the case of the parties indemnified pursuant to Section 8(a), and by
the Company, in the case of parties indemnified pursuant to Section 8(b). The
indemnifying party shall indemnify and hold harmless the indemnified party from
and against any and all losses, claims, damages, liabilities, judgments and
expenses by reason of any settlement of any action (i) effected with its written
consent or (ii) effected without its written consent if the settlement is
entered into more than twenty business days after the indemnifying party shall
have received a request from the indemnified party for reimbursement for the
fees and expenses of counsel (in any case where such fees and expenses are at
the expense of the indemnifying party) and, prior to the date of such
settlement, the indemnifying party shall have failed to comply with such
reimbursement request. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement or compromise of, or
consent to the entry of judgment with respect to, any pending or threatened
action in respect of which the indemnified party is or could have been a party
and indemnity or contribution may be or could have been sought hereunder by the
indemnified party, unless such settlement, compromise or judgment (i) includes
an unconditional release of the indemnified party from all liability on claims
that are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
(d) To the extent that the indemnification provided for in this
Section 8 is unavailable to an indemnified party under Section 8(a) or Section
8(b) hereof in respect of any losses, claims, damages, liabilities, judgements
or expenses referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities, judgments or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand, and the
Holders, on the other hand, from their sale of Transfer Restricted Securities or
(ii) if the allocation provided by clause 8(d)(i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause 8(d)(i) above but also the relative fault of the
Company, on the one hand, and of the Holder, on the other hand, in connection
with the statements or omissions which resulted in such losses, claims, damages,
liabilities, judgments or expenses, as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and of the
Holder, on the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state
17
a material fact relates to information supplied by the Company, on the one hand,
or by such Holder, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, the Guarantors and each Holder agree that it would not be
just and equitable if contribution pursuant to this Section 8(d) were determined
by pro rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities, judgments or expenses referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
indemnified party in connection with investigating or defending any such action
or claim including any action that could have given rise to such losses, claims,
damages, liabilities, judgments or expenses. Notwithstanding the provisions of
this Section 8, no Holder shall be required to contribute, in the aggregate, any
amount in excess of the amount by which the total received by such Holder with
respect to the sale of Transfer Restricted Securities pursuant to a Registration
Statement exceeds (i) the amount paid by such Holder for such Transfer
Restricted Securities and (ii) the amount of any damages which such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute pursuant to this
Section 8(d) are several in proportion to the respective principal amount of
Transfer Restricted Securities held by each Holder hereunder and not joint.
SECTION 9. RULE 144A
The Company hereby agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which the
Company (i) is not subject to Section 13 or 15(d) of the Exchange Act, to make
available, upon request of any Holder, to such Holder or beneficial owner of
Transfer Restricted Securities in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Securities designated by such
Holder or beneficial owner, the information required by Rule 144A(d)(4) under
the Act in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144A, and (ii) is subject to Section 13 or 15(d) of the
Exchange Act, to make all filings required thereby in a timely manner in order
to permit resales of such Transfer Restricted Securities pursuant to Rule 144.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
18
SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided that such investment bankers and managers must be
reasonably satisfactory to the Company.
SECTION 12. MISCELLANEOUS
(a) Remedies. The Company and the Guarantors acknowledge and agree
that any failure by the Company to comply with its obligations under Sections 3
and 4 hereof may result in material irreparable injury to the Purchasers or
Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the Purchasers or any Holder may obtain such relief as may
be required to specifically enforce the Company's obligations under Sections 3
and 4 hereof. The Company and the Guarantors further agree to waive the defense
in any action for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not, on or after
the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. The rights granted
to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's securities
under any agreement in effect on the date hereof.
(c) Adjustments Affecting the Notes or Exchange Notes. The Company
will not take any action, or permit any change to occur, with respect to the
Notes or the Exchange Notes that would materially and adversely affect the
ability of the Holders to Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless (i) in the case of
Section 5 hereof and this Section 12(d)(i), the Company has obtained the written
consent of Holders of all outstanding Transfer Restricted Securities and (ii) in
the case of all other provisions hereof, the Company has obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities (excluding Transfer Restricted Securities held by the
Company or its Affiliates). Notwithstanding the foregoing, a waiver or consent
to departure from the provisions hereof that relates exclusively to the rights
of Holders whose Transfer Restricted Securities are being tendered pursuant to
the Exchange Offer and that does not affect directly or indirectly the rights of
other Holders whose Transfer Restricted Securities are not being tendered
pursuant to such Exchange Offer may be given by the Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities subject to such
Exchange Offer.
19
(e) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Purchasers, on the other hand, and shall have the right to enforce
such agreements directly to the extent they may deem such enforcement necessary
or advisable to protect its rights or the rights of Holders hereunder.
(f) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Registrar under the Indenture, with a copy to the
Registrar under the Indenture; and
(ii) if to the Company or the Guarantors:
EchoStar DBS Corporation
0000 Xxxxx Xxxxx Xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
With a copy to:
Xxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxxxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(g) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders; provided, that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Transfer Restricted
Securities in violation of the terms hereof or of the Purchase Agreement or the
Indenture. If any transferee of any Holder shall acquire Transfer Restricted
Securities in any manner, whether by operation of law or otherwise, such
Transfer Restricted Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Transfer Restricted Securities such
Person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement, including the restrictions on
resale set forth in this
20
Agreement and, if applicable, the Purchase Agreement, and such Person shall be
entitled to receive the benefits hereof.
(h) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICT OF LAW RULES THEREOF.
(k) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(l) Entire Agreement. This Agreement is intended by the parties as
a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted with respect to the
Transfer Restricted Securities. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject matter.
21
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ECHOSTAR DBS CORPORATION
By: ________________________________________
Name:
Title:
S-1
ECHOSTAR SATELLITE CORPORATION
ECHOSTAR TECHNOLOGIES CORPORATION
ECHO ACCEPTANCE CORPORATION
ECHOSPHERE CORPORATION
DISH NETWORK SERVICE CORPORATION
ECHOSTAR INTERNATIONAL CORPORATION
as Guarantors
By: ________________________________________
Name:
Title:
BANC OF AMERICA SECURITIES LLC
CREDIT SUISSE FIRST BOSTON LLC
By: BANC OF AMERICA SECURITIES LLC
By: ________________________________________
Name:
Title:
S-2
