Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
Dated as of September 22, 2009
Among
DIRECTV HOLDINGS LLC,
DIRECTV FINANCING CO., INC.
and
THE GUARANTORS NAMED HEREIN,
as Issuers,
and
THE INITIAL PURCHASERS NAMED HEREIN,
4.750% Senior Notes due 2014
and
5.875% Senior Notes due 2019
REGISTRATION RIGHTS
AGREEMENT
This Registration Rights Agreement
(this “ Agreement ”) is dated as of
September 22, 2009, among DIRECTV HOLDINGS LLC, a Delaware
limited liability company (the “ Company ”), as
issuer, DIRECTV FINANCING CO., INC., a Delaware corporation
(“ Finance Co. ”), as co-issuer, the other
entities listed on the signature pages hereto, as guarantors
(the “ Guarantors ” and, together with the
Company and Finance Co., the “ Issuers ”), and
J.P. MORGAN SECURITIES INC., CITIGROUP GLOBAL MARKETS, INC. and
CREDIT SUISSE SECURITIES (USA) LLC (collectively, the “
Initial Purchasers ”).
This Agreement is entered into in
connection with the Purchase Agreement, dated as of
September 14, 2009, among the Issuers and the Initial
Purchasers (the “ Purchase Agreement ”), which
provides for, among other things, the sale by the Company and
Finance Co. to the Initial Purchasers of up to
(x) $1,000,000,000 aggregate principal amount of the
Company’s and Finance Co.’s 4.750% Senior Notes due
2014 (the “ 2014 Notes ”) and
(y) $1,000,000,000 aggregate principal amount of the
Company’s and Finance Co.’s 5.875% Senior Notes due
2019 (the “ 2019 Notes ” and, together with the
2014 Notes, the “ Notes ”), in each case,
guaranteed by the Guarantors (the “ Guarantees
”) on a senior basis. The Notes and the Guarantees are
collectively referred to herein as the “ Securities
.” In order to induce the Initial Purchasers to enter
into the Purchase Agreement, the Issuers 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
Securities. The execution and delivery of this Agreement is a
condition to the Initial Purchasers’ obligation to purchase
the Securities 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:
2014 Notes
: See the introductory
paragraphs hereto.
2019 Notes
: See the introductory
paragraphs hereto.
Additional Interest
: See
Section 4(a) hereof.
Advice : See the last paragraph of Section 5
hereof.
Applicable Period
: See
Section 2(b) hereof.
Company : See the introductory paragraphs
hereto.
Effectiveness Date
: The 220th day after the
Issue Date; provided , however , that with respect to
any Shelf Registration, if later than the 220th day after the Issue
Date, the Effectiveness Date shall be the 180th day after the
delivery of a Shelf Notice as required pursuant to
Section 2(c) hereof; provided , further ,
that in the event that applicable law or interpretations of the
staff of the SEC do not permit the Issuers to file a Registration
Statement covering the exchange of the Securities or to complete
the Exchange Offer, the Effectiveness Date shall be extended by 30
days.
Effectiveness Period
: See
Section 3(a) hereof.
Event Date
: See Section 4
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.
Finance Co
.: See the introductory
paragraphs hereto.
FINRA : See
Section 5(r) hereof.
Guarantees
: See the introductory
paragraphs hereto.
Guarantors
: See the introductory
paragraphs hereto.
Holder : As the context requires, means any
holder of a Registrable Note or Registrable Notes.
Indemnified Person
: See
Section 7(c) hereof.
Indemnifying Person
: See
Section 7(c) hereof.
Indenture : The Indenture, dated as of
September 22, 2009, by and among the Issuers and The Bank of
New York Mellon, as trustee, pursuant to which the Securities, the
Exchange Notes and the Private Exchange Notes, if any, are being
issued, as the same may be amended or supplemented from time to
time in accordance with the terms thereof.
Initial Purchasers
: See the introductory
paragraphs hereto.
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Initial Shelf
Registration : See
Section 3(a) hereof.
Inspectors
: See
Section 5(m) hereof.
Issue Date
: September 22, 2009, the
date of original issuance of the Notes.
Issuers : See the introductory paragraphs
hereto.
Notes : See the introductory paragraphs
hereto.
Offering Memorandum
: The final offering
memorandum of the Company and Finance Co., dated September 14,
2009 in respect of the offering of the Securities.
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
promulgated under the Securities Act and any term sheet filed
pursuant to Rule 434 under the Securities Act), as amended or
supplemented by any prospectus supplement, and all other amendments
and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to
be incorporated by reference in such Prospectus.
Purchase Agreement
: See the introductory
paragraphs hereto.
Records : See
Section 5(m) hereof.
Registrable Notes
: Each Security upon its
original issuance and at all times subsequent thereto, each
Exchange Note (and the related Guarantee) as to which
Section 2(c)(iv) hereof is applicable upon original
issuance and at all times subsequent thereto and each Private
Exchange Note (and the related Guarantee) upon original issuance
thereof and at all times subsequent thereto, until (i) a
Registration Statement
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(other than, with respect only to
any Exchange Note as to which Section 2(c)(iv) hereof is
applicable, the Exchange Offer Registration Statement) covering
such Security, Exchange Note or Private Exchange Note has been
declared effective by the SEC and such Security, Exchange Note or
such Private Exchange Note, as the case may be, has been disposed
of in accordance with such effective Registration Statement,
(ii) such Security has been exchanged pursuant to the Exchange
Offer for an Exchange Note or Exchange Notes that may be resold
without restriction under state and federal securities laws,
(iii) such Security, Exchange Note or Private Exchange Note
has been disposed of by a broker-dealer pursuant to the “Plan
of Distribution” contemplated by a Registration Statement
pursuant to which such Security, Exchange Note or Private Exchange
Note has been registered (including delivery of the prospectus
contained therein), (iv) such Security, Exchange Note or
Private Exchange Note, as the case may be, ceases to be outstanding
for purposes of the Indenture or (v) the second anniversary of
the later of (x) the Issue Date and (y) the last date on
which such Security was held by the Company or an Affiliate of the
Company.
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, and all material incorporated by reference or deemed to
be incorporated by reference in such registration
statement.
Rule 144
: Rule 144 promulgated
under the Securities Act, as such Rule may be amended from
time to time, or any similar rule (other than Rule 144A)
or regulation hereafter adopted by the SEC providing for offers and
sales of securities made in compliance therewith resulting in
offers and sales by subsequent holders that are not affiliates of
the issuer of such securities being free of the registration and
prospectus delivery requirements of the Securities Act.
Rule 144A
: Rule 144A promulgated
under the Securities Act, as such Rule may be amended from
time to time, or any similar rule (other than Rule 144)
or regulation hereafter adopted by the SEC.
Rule 415
: Rule 415 promulgated
under the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC : The Securities and Exchange
Commission.
Securities
: See the introductory
paragraphs hereto.
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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.
Subsequent Shelf
Registration : See
Section 3(b) hereof.
TIA : The Trust Indenture Act of 1939, as
amended.
Trustee : The trustee under the Indenture and the
trustee (if any) under any indenture governing the Exchange Notes
and Private Exchange Notes.
Underwritten registration or
underwritten offering : A registration in which securities of
one or more of the Issuers are sold to an underwriter for
reoffering to the public.
2.
Exchange
Offer
(a)
To the extent not
prohibited by any applicable law or applicable interpretation of
the staff of the SEC, the Issuers shall use their reasonable best
efforts to file with the SEC 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
notes of the Company and Finance Co., guaranteed by the Guarantors,
that are identical in all material respects to the Securities (the
“ Exchange Notes ”), except that (i) the
Exchange Notes shall contain no restrictive legend thereon and
(ii) interest thereon shall accrue (A) from the latter of
(x) the last interest payment date on which interest was paid
on the Security surrendered in exchange therefor, or (y) if
the Security is surrendered for exchange on a date in a period
which includes the record date for an interest payment date to
occur on or after the date of such exchange and as to which
interest will be paid, the date of such interest payment date or
(B) if no interest has been paid on such Security, from the
Issue Date, and which are entitled to the benefits of the Indenture
or a trust indenture which is identical in all material respects to
the Indenture (other than such changes to the Indenture or any such
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 law. The Issuers shall use their reasonable best
efforts to consummate the Exchange Offer on or prior to the
220th day after the Issue Date.
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Each Holder that participates in the
Exchange Offer will be required, as a condition to its
participation in the Exchange Offer, to represent to the Issuers in
writing (which may be contained in the applicable letter of
transmittal) that:
(i)
any Exchange
Notes to be received by it will be acquired in the ordinary course
of its business,
(ii)
at the time of
the commencement of the Exchange Offer such Holder has no
arrangement or understanding with any Person to participate in the
distribution (within the meaning of the Securities Act) of the
Exchange Notes in violation of the Securities Act,
(iii)
such Holder is
not an affiliate (as defined in Rule 405 promulgated under the
Securities Act) of the Issuers,
(iv)
if such Holder is
a broker-dealer, that it is not engaged in, and does not intend to
engage in, the distribution of Exchange Notes,
(v)
if such Holder is
a Participating Broker-Dealer (as defined below) that will receive
Exchange Notes for its own account in exchange for Securities that
were acquired as a result of market-making or other trading
activities, that it will deliver a prospectus in connection with
any resale of such Exchange Notes and
(vi)
the Holder is not
acting on behalf of any persons or entities who could not
truthfully make the foregoing representations.
Such Holder may also be required to be named as
a selling security holder in the related prospectus and will be
required to make such other representations as may be necessary
under applicable SEC rules, regulations or interpretations to
render available the use of Form S-4 or any other appropriate
form under the Securities Act.
Upon consummation of the Exchange
Offer in accordance with this Section 2, the provisions of
this Agreement shall continue to apply 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, and the Issuers shall
have no further obligation to register Registrable Notes (other
than Private Exchange Notes and other than in respect of any
Exchange Notes as to which clause 2(c)(iv) is applicable)
pursuant to Section 3 hereof.
No securities other than the
Exchange Notes shall be included in the Exchange Offer Registration
Statement.
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(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.
The Issuers shall use their
reasonable best 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 covered thereby; provided ,
however , that such period shall not be required to exceed
180 days, or such longer period if extended pursuant to the last
sentence of Section 5(s) (the “ Applicable
Period ”).
If, prior to consummation of the
Exchange Offer, the Initial Purchasers hold any Securities acquired
by them that have the status of an unsold allotment in the initial
distribution, the Issuers upon the request of the Initial
Purchasers shall simultaneously with the delivery of the Exchange
Notes in the Exchange Offer, issue and deliver to the Initial
Purchasers, in exchange (the “ Private Exchange
”) for such Securities held by the Initial Purchasers, a like
principal amount of notes (the “ Private Exchange
Notes ”) of the Company and Finance Co., guaranteed by
the Guarantors, 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,
if permissible, bear the same CUSIP number as the Exchange
Notes.
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;
7
(2)
use their reasonable best 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
Securities at any time prior to the close of business, New York
time, on the last business day on which the Exchange Offer shall
remain 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)
direct the Trustee to authenticate
and deliver promptly to each holder of Securities Exchange Notes or
Private Exchange Notes, as the case may be, equal in principal
amount to the Securities of such Holder so accepted for
exchange.
The Exchange Offer and the Private
Exchange shall not be subject to any conditions, other than that
(i) the Exchange Offer or the 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, (iii) all governmental approvals shall have
been obtained, which approvals the Issuers deem necessary for the
consummation of the Exchange Offer or the Private Exchange,
(iv) there shall not have been any material change, or
development involving a prospective material change, in the
business or financial affairs of the Issuers which, in the
reasonable judgment of the Issuers, would materially impair the
Issuers’ ability to consummate the Exchange Offer or the
Private Exchange, and (v) there shall not have been proposed,
adopted or enacted any law, statute, rule or regulation which,
in the reasonable judgment of the Issuers, would materially impair
the Issuers’ ability to consummate the Exchange Offer or the
Private Exchange or have a material adverse effect on the Issuers
if the Exchange Offer or the Private Exchange was
consummated. In the event that the Issuers are unable to
consummate the Exchange Offer or the Private Exchange due to any
event listed in clauses (i) through (v) above, the
Issuers shall not be deemed to have breached any covenant under
this Section 2.
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The Exchange Notes and the Private
Exchange Notes shall be issued under the Indenture or under an
indenture identical in all material respects to the Indenture and
which, in either case, has been qualified under the TIA or is
exempt from such qualification and shall provide that the Exchange
Notes shall not be subject to the transfer restrictions set forth
in the Indenture. The Indenture or such other indenture shall
provide that the Exchange Notes, the Private Exchange Notes and the
Securities shall vote and consent together on all matters as one
class and that none of the Exchange Notes, the Private Exchange
Notes or the Securities 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 Issuers are not
permitted to effect the Exchange Offer, (ii) the Exchange
Offer is not consummated within 220 days of the Issue Date,
(iii) a Holder of Private Exchange Notes notifies the Company
in writing within 60 days following the consummation of the
Exchange Offer that (A) such Holder is prohibited by law or
SEC 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 the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such
resales by such Holder or (C) such Holder is a Participating
Broker-Dealer and holds Securities acquired directly from the
Company or any of its affiliates (as defined in Rule 405
promulgated under the Securities Act), 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 state and federal
securities laws (other than due solely to the status of such Holder
as an affiliate of one of the Issuers within the meaning of the
Securities Act), then in the case of each of clauses (i) to
and including (iv) of this sentence, the Issuers shall
promptly deliver to the Holders and the trustee written notice
thereof (the “ Shelf Notice ”) and shall use
their reasonable best efforts to file a Shelf Registration pursuant
to Section 3 hereof.
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 use their
reasonable best efforts to 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 not
exchanged in the Exchange Offer, Private Exchange Notes and
Exchange Notes as to which Section 2(c)(iv) is applicable
(the “ Initial Shelf Registration ”). The
Initial Shelf Registration shall be on Form S-3 or another
appropriate form permitting registration of such Registrable Notes
for resale by Holders in the manner or manners designated by
them
9
(including, without limitation, one
or more underwritten offerings). The Issuers shall not permit
any securities other than the Registrable Notes to be included in
the Initial Shelf Registration or any Subsequent Shelf Registration
(as defined below).
The Issuers shall, subject to
applicable law or applicable interpretation of the staff of the
SEC, use their reasonable best efforts to cause the Initial Shelf
Registration to be declared effective under the Securities Act on
or prior to the Effectiveness Date and to keep the Initial Shelf
Registration continuously effective under the Securities Act until
the earlier of (x) the date which is two years from the Issue
Date or (y) the date on which no Registrable Notes are
outstanding (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.
No Holder of Registrable Notes may
include any of its Registrable Notes in any Shelf Registration
pursuant to this Agreement unless and until such Holder furnishes
to the Company in writing, within 15 business days after receipt of
a request therefor, such information concerning such Holder
required to be included in any Shelf Registration or Prospectus or
preliminary prospectus included therein. No holder of
Registrable Notes shall be entitled to Additional Interest pursuant
to Section 4 hereof unless and until such Holder shall have
provided all such information, if so requested. Each Holder
of Registrable Notes as to which any Shelf Registration is being
effected agrees to furnish promptly to the Company all information
required to be disclosed so that the information previously
furnished to the Company by such Holder not materially misleading
and does not omit to state a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading.
(b)
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 because of the sale of all of the
securities registered thereunder), the Issuers shall use their
reasonable best 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 the Initial
Shelf Registration in a manner to obtain the withdrawal of the
order suspending the effectiveness thereof, or file an additional
“shelf” Registration Statement pursuant to
Rule 415 covering all of the Registrable Notes covered by and
not sold under the Initial Shelf Registration or an earlier
Subsequent Shelf Registration (each, a “ Subsequent Shelf
Registration ”). If a Subsequent Shelf Registration
is filed, the Issuers shall use their reasonable best 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
10
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 or 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 any 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
covered by such Registration Statement or by any managing
underwriter of such Registrable Notes, provided ,
however , that the Issuers shall not be required to
supplement or amend any Shelf Registration upon the request of a
Holder or any managing underwriter if such requested supplement or
amendment would, in the good faith judgment of the Company, violate
the Securities Act, the Exchange Act or the rules and
regulations promulgated thereunder.
4.
Additional
Interest
(a)
The Issuers and
the Initial Purchasers agree that the Holders of Registerable Notes
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) (it being understood that the
Additional Interest provided for in this section shall be the sole
remedy at law for the matters set forth in clauses (i) through
(iii) below; provided , however , that nothing
contained herein shall prevent the Holders of a majority of
Registrable Notes from seeking specific performance of the
Issuers’ obligations with respect to such
matters):
(i)
if the Issuers
are required to file a Shelf Registration and such Shelf
Registration is not declared effective by the SEC on or prior to
the Effectiveness Date in respect of such Shelf Registration, then,
commencing on the day after such Effectiveness Date, Additional
Interest shall accrue on the principal amount of the Securities at
a rate of 0.25% per annum for the first 90 days immediately
following such Effectiveness Date, and such Additional Interest
rate shall increase by an additional 0.25% per annum at the
beginning of each subsequent 90-day period; or
(ii)
if (A) the
Issuers have not exchanged Exchange Notes for all Securities
validly tendered in accordance with the terms of the Exchange Offer
on or prior to the 220th day after the Issue Date and a Shelf
Registration has not become effective for all such Securities or
(B) if applicable, a Shelf Registration has been declared
effective and such Shelf Registration ceases to be effective at any
time prior to the termination
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of the
Issuers’ obligations to keep such Shelf Registration
effective pursuant to Section 3 above, then Additional
Interest shall accrue on the principal amount of the Securities at
a rate of 0.25% per annum for the first 90 days commencing on
(x) the 221st day after the Issue Date, in the case of
(A) above, or (y) the day such Shelf Registration ceases
to be effective, in the case of (B) above, and such Additional
Interest rate shall increase by an additional 0.25% per annum at
the beginning of each such subsequent 90-day period;
provided , however , that the Additional Interest
rate on the Notes may not accrue under more than one of the
foregoing clauses (i) and (ii) at any one time and at no
time shall the aggregate amount of Additional Interest accruing
exceed in the aggregate 1.00% per annum; provided ,
further , however , that (1) upon the
effectiveness of the applicable Shelf Registration as required
hereunder (in the case of clause (a)(i) of this
Section 4), or (2) upon the exchange of the applicable
Exchange Notes for all Securities tendered or the effectiveness of
a Shelf Registration covering all such Securities (in the case of
clause (a)(ii)(A) of this Section 4), or upon the
effectiveness of the applicable Shelf Registration which had ceased
to remain effective (in the case of clause(a)(ii)(B) of this
Section 4), Additional Interest on the Notes as a result of
such clause (or the relevant subclause thereof), as the case may
be, shall cease to accrue; provided , further ,
however , that notwithstanding the foregoing provisions of
this Section 4(a), Additional Interest shall not be payable if
effectiveness of a Shelf Registration ceased solely as a result of
(i) the filing of a post-effective amendment to such Shelf
Registration to incorporate annual audited financial information
with respect to the Issuers required pursuant to rules or
regulations promulgated by the Commission where such post-effective
amendment is not yet effective and needs to be declared effective
to permit Holders to use the related prospectus or (ii) other
material events, with respect to the Issuers that would need to be
described in such Shelf Registration Statement or related
prospectus and the Issuers are proceeding promptly and in good
faith to amend or supplement such Shelf Registration or related
prospectus to describe such events; provided , that in any
case if such a Shelf Registration is not declared effective on the
thirtieth day after effectiveness ceased, Additional Interest shall
be payable from the day following such 30-day period until the date
on which such Shelf Registration is declared effective.
(b)
The Issuers shall
notify the Trustee within three business days after each and every
date on which an event occurs in respect of which Additional
Interest is required to be paid (an “ Event Date
”). Any amounts of Additional Interest due pursuant to
clauses (a)(i) or (a)(ii) of this Section 4 will be
payable in cash semiannually on each May 15 and
November 15 (to the holders of record on the May 1 and
November 1 immediately preceding such dates), commencing with
the first such date occurring after any such Additional Interest
commences to accrue. The amount of Additional Interest will
be determined on the basis of a 360-day year comprised of twelve
30-day months.
12
5.
Registration
Procedures
In connection with the filing of any
Registration Statement pursuant to Sections 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 each of the Issuers shall:
(a)
Prepare and file
with the SEC, a Registration Statement or Registration Statements
as prescribed by Sections 2 or 3 hereof, and use their
reasonable best 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,
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 included in such
Registration Statement or each such Participating Broker-Dealer, 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 five days prior to such filing, or such
later date as is reasonable under the circumstances).
(b)
Prepare and file
with the SEC such amendments and post-effective amendments to each
Shelf Registration 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 or
the Applicable Period, as the case may be; cause the related
Prospectus to be supplemented by any Pros
