REGISTRATION RIGHTS AGREEMENT

Exhibit 4.3

 

REGISTRATION RIGHTS AGREEMENT

Dated as of July 18, 2008

Among

INTELSAT CORPORATION

and

the SUBSIDIARY GUARANTORS

and

CREDIT SUISSE SECURITIES (USA) LLC,

MORGAN STANLEY & CO. INCORPORATED

and

BANC OF AMERICA SECURITIES LLC

as Representatives of the Initial Purchasers named on Schedule I

$658,119,000 9  ¹ / 4 % Senior Notes Due 2014

$580,719,000 9  ¹ / 4 % Senior Notes Due 2016

 

TABLE OF CONTENTS

 

 

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REGISTRATION RIGHTS AGREEMENT

This Registration Rights Agreement (this “ Agreement ”) is dated as of July 18, 2008, among INTELSAT CORPORATION, a Delaware corporation (the “ Company ”), the guarantors of the Notes (as defined herein) listed on Schedule II and Schedule III hereto (the “ Guarantors ”), CREDIT SUISSE SECURITIES (USA) LLC, MORGAN STANLEY & CO. INCORPORATED and BANC OF AMERICA SECURITIES LLC, 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 July 15, 2008 (the “ Purchase Agreement ”), which provides for, among other things, the sale by the Company to the Initial Purchasers of $658,119,000 aggregate principal amount of its 9  ¹ / 4 % Senior Notes due 2014 (the “ 2014 Notes ”), which will be guaranteed by the Guarantors, and $580,719,000 aggregate principal amount of its 9  ¹ / 4 % Senior Notes due 2016 (the “ 2016 Notes ”), which will be guaranteed by the Guarantors. The 2014 Notes and the 2016 Notes may each be referred to herein as a “ Series of Notes ”. The terms “ Note ” or “ Notes ” may refer to one or more notes issued in either Series of Notes. 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:

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.

DTC : The Depository Trust Company.

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.

FINRA : See Section 5(s) hereof.

Freely Tradable : means, with respect to a Note, a Note that at any time of determination (i) may be sold to the public in accordance with Rule 144 under the Securities Act or any other similar provision then in force, by a person that is not an “affiliate” (as defined in Rule 144) of any Issuer without restrictions in compliance with Rule 144 (other than the holding period requirement in paragraph (d) of Rule 144, so long as such holding period requirement is satisfied at such time of determination) and (ii) does not bear any restrictive legends relating to the Securities Act.

Holder : Any holder of a Registrable Note or Registrable Notes.

Indentures : The indentures, dated as of the date hereof, among (i) the Company, the Guarantors and Wells Fargo Bank, National Association, as trustee, pursuant to which the 2014 Notes are being issued and (ii) the Company, the Guarantors and Wells Fargo Bank, National Association, as trustee, pursuant to which the 2016 Notes are being issued, each indenture 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.

 

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Inspectors : See Section 5(o) hereof.

Issue Date : The date hereof, which is the date of original issuance of the Notes.

Issuers : Has the meaning set forth in the Purchase Agreement.

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) the date on which such Notes cease to be outstanding or (iii) the date on which such Notes are Freely Tradable.

 

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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.

TIA : The Trust Indenture Act of 1939, as amended, and the rules and regulations of the SEC promulgated thereunder.

 

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Trustee : The trustee under the Indentures and the trustee (if any) under any indentures 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

If on the 366th day following the Issue Date of any Series of Notes, such Series of Notes is not Freely Tradable without a restrictive legend as a result of (i) the Company failing to timely file reports pursuant to the Exchange Act (as required by Rule 144(c)(1) and (2) of the Securities Act), (ii) an affiliate of the Company enters the chain of ownership of that Series of Notes, or (iii) a change in law, regulation or interpretation by the SEC or DTC, the result of which would prohibit the removal of the restrictive legend on or prior to the 365th day following the Issue Date for such Series of Notes, then with respect to such Notes:

(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 such Series of Notes, except that (i) the Exchange Notes shall contain no restrictive legend thereon, (ii) subject to compliance herewith, the Exchange Notes shall not be subject to any increase in annual interest rate as set forth in Section 4(a) hereof and (iii) interest thereon shall accrue from the last date on which interest was paid on such Series of Notes or, if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the applicable Indenture or a trust indenture which is identical in all material respects to the applicable Indenture (other than such changes to the Indentures 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

 

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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 365th day following the one year anniversary of the Issue Date (or if such 365th day is not a Business Day, the next succeeding Business Day); provided , however , that no Issuer shall be required to consummate such Exchange Offer if all the Notes in any Series of Notes are Freely Tradable.

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.

 

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No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement.

(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “ Participating Broker-Dealer ”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act.

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 an Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Company, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “ Private Exchange ”) for such Notes held by any such Holder, a like principal amount of notes (the “ Private Exchange Notes ”) of the Company, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau.

In connection with the Exchange Offer, the Issuers shall:

(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;

 

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(2) use 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);

(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 applicable Indenture shall satisfy such authentication and delivery requirement.

The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Company; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange.

 

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The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indentures or (ii) indentures identical in all material respects to the Indentures and which, in either case, have been qualified under the TIA or are exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indentures. The Indentures or such indentures shall provide that the Exchange Notes, the Private Exchange Notes and the Notes outstanding in any applicable Series of 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 outstanding in the applicable Series of 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 365 days of the first anniversary of the Issue Date, (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 for the applicable Series of 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

 

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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 of the applicable Series of 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 365 days of the first anniversary of the Issue Date and to keep the Initial Shelf Registration continuously effective under the Securities Act until the date that is three years from the Issue Date 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 a Series of 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 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 in a Series of 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

 

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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 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, 365 days of the first anniversary of the Issue Date, 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 365th day following the date the filing of such Shelf Registration Statement is

 

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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

(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 the payment dates stated in the indenture applicable to such Series of Notes (to the holders of record on the record dates stated in the indenture applicable to such Series of Notes immediately preceding such dates), commencing with the first such date occurring after any such Additional Interest commences to accrue. The amount of Additional Interest will be determined by multiplying the applicable Additional Interest rate by the principal amount of the Registrable Notes, multiplied by a fraction, the numerator of which is the number of days such Additional Interest rate was applicable during such period (determined on the basis of a 360 day year comprised of twelve 30 day months and, in the case of a partial month, the actual number of days elapsed), and the denominator of which is 360.

 

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5.

Registration Procedures

In connection with the filing of any Registration Statement pursuant to Section 2 or 3 hereof, the Issuers shall effect such registrations to permit the sale of the securities covered thereby in accordance with the intended method or methods of disposition thereof, and pursuant thereto and in connection with any Registration Statement filed by the Issuers hereunder, the Issuers shall (other than during any Shelf Suspension Period):

(a) Prepare and file with the SEC a Registration Statement or Registration Statements as prescribed by Section 2 or 3 hereof, and use its 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

 

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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 t