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EXHIBIT 99(e)
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
DATED AS OF JANUARY 22, 1999
BY AND AMONG
KEY ENERGY SERVICES, INC.,
Yale E. Key, Inc.; Key Energy Drilling, Inc.;
WellTech Eastern, Inc.; Odessa Exploration
Incorporated; Kalkaska Oilfield Services, Inc.;
Well-Co Oil Service, Inc.; Xxxxxxx Well Service,
Inc.; Xxxxxx Well Service, Inc.; Ram Oil Well
Service, Inc.; Xxxxxxx Trucking Co., Inc.; Landmark
Fishing & Rental, Inc.; Xxxxxx Well Service, Inc.;
Frontier Well Service, Inc.; Key Rocky Mountain,
Inc.; Key Four Corners, Inc.; Xxxxx Service Co.;
Xxxxx Well Service, Inc.; Xxxxx Transportation, Inc.;
Industrial Oilfield Supply, Inc.; Xxxxxx Well
Servicing, Inc.; Xxxxxx Brothers, Inc.; X.X. Xxxxxx
Well Service Company; Key Energy Services -- South
Texas, Inc.; Key Energy Services -- California, Inc.;
Xxxxxx Oilfield Service & Supply, Inc.; WellTech
Mid-Continent, Inc.; Xxxxxx Production Management,
Inc.; Xxxxxx Production Xxxxxx, Inc.; Xxxxxx
Production Acquisition Corp.; and Xxxxxx Production
Partners, L.P.
AND
XXXXXX BROTHERS INC.
BEAR, XXXXXXX & CO. INC.
F-A-C/EQUITIES,
a division of First Albany Corporation
XXXX XXXXXXXX XXXXXXX,
a division of Xxxx Xxxxxxxx Incorporated
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This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of January 22, 1999, by and among Key Energy Services, Inc., a
Maryland corporation (the "COMPANY"), Yale E. Key, Inc., a Texas corporation;
Key Energy Drilling, Inc., a Delaware corporation; WellTech Eastern, Inc., a
Delaware corporation; Odessa Exploration Incorporated, a Delaware corporation;
Kalkaska Oilfield Services, Inc., a Michigan corporation; Well-Co Oil Service,
Inc., a Nevada corporation; Xxxxxxx Well Service, Inc., a Kansas corporation;
Xxxxxx Well Service, Inc., a Louisiana corporation; Ram Oil Well Service, Inc.,
a New Mexico corporation; Xxxxxxx Trucking Co., Inc., a New Mexico corporation;
Landmark Fishing & Rental, Inc., an Oklahoma corporation; Xxxxxx Well Service,
Inc., a Colorado corporation; Frontier Well Service, Inc., a Wyoming
corporation; Key Rocky Mountain, Inc., a Delaware corporation; Key Four Corners,
Inc., a Delaware corporation; Xxxxx Service Co., an Oklahoma corporation; Xxxxx
Well Service, Inc., an Oklahoma corporation; Xxxxx Transportation, Inc., an
Oklahoma corporation; Industrial Oilfield Supply, Inc., an Oklahoma corporation;
Xxxxxx Well Servicing, Inc., a Delaware corporation; Xxxxxx Brothers, Inc., a
Wyoming corporation; X.X. Xxxxxx Well Service Company, a Delaware corporation;
Key Energy Services -- South Texas, Inc., a Delaware corporation; Key Energy
Services -- California, Inc., a Delaware corporation; Xxxxxx Oilfield Service &
Supply, Inc., a Delaware corporation; WellTech Mid-Continent, Inc., a Delaware
corporation; Xxxxxx Production Management, Inc., a Delaware corporation; Xxxxxx
Production Xxxxxx, Inc., a Delaware corporation; Xxxxxx Production Acquisition
Corp., a Delaware corporation; and Xxxxxx Production Partners, L.P., a Delaware
limited partnership (collectively, the "GUARANTORS") and Xxxxxx Brothers Inc.,
Bear, Xxxxxxx & Co. Inc., F- A- C/Equities, a division of First Albany
Corporation and Xxxx Xxxxxxxx Xxxxxxx, a division of Xxxx Xxxxxxxx Incorporated
(collectively, the "INITIAL PURCHASERS") who have agreed pursuant to the
Purchase Agreement (as defined below) to purchase severally and not jointly an
aggregate of 150,000 Units of the Company (the "UNITS") consisting of
$150,000,000 aggregate principal amount of the Company's 14% Senior Subordinated
Notes due 2009 (the "NOTES") and 150,000 Warrants (the "WARRANTS") to purchase
an aggregate of 2,032,565 shares of common stock, par value $0.10 per share, of
the Company (the "COMMON STOCK").
This Agreement is made pursuant to the Purchase Agreement, dated
January 19, 1999 (the "PURCHASE AGREEMENT"), by and among the Company, the
Guarantors and the Initial Purchasers relating to the purchase by the Initial
Purchasers of the Company's Units.
In order to induce the Initial Purchasers to purchase the Units, the
Company has agreed to provide the registration rights for the Notes set forth in
this Agreement. Capitalized terms used herein and not otherwise defined shall
have the meaning assigned to them in the Indenture, dated January 22, 1999,
relating to the Notes and the New Notes (the "INDENTURE") between the Company
and The Bank of New York, as trustee (the "TRUSTEE").
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.
BUSINESS DAY: As defined in the Exchange Act.
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CERTIFICATED SECURITIES: Definitive Notes as defined in the Indenture.
CLOSING DATE: The date hereof.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the New Notes to be issued in the Exchange Offer, (b) the
maintenance of such Exchange Offer Registration Statement 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 (c) the delivery by the Company to
the Registrars under the Indenture of New Notes in the same aggregate principal
amount as the aggregate principal amount of Notes 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) and 4(a) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE OFFER: The offer by the Company to exchange and issue a
principal amount of New Notes (which issuance shall be registered pursuant to
the Exchange Offer Registration Statement) equal to the outstanding principal
amount of the Notes that are tendered by such Holders in connection with such
offer to exchange and issue in accordance with the terms and conditions of this
Agreement.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
EXEMPT RESALES: The transactions in which the Initial Purchasers
propose to sell the Units to certain "qualified institutional buyers," as such
term is defined in Rule 144A under the Act and pursuant to Regulation S under
the Act.
FILING DEADLINE: As defined in Sections 3(a) and 4(a) hereof.
HOLDERS: As defined in Section 2 hereof.
NEW NOTES: The Company's 14% Senior Subordinated Notes due 2009,
identical in all material respects to the Notes, to be issued pursuant to the
Indenture (i) in the Exchange Offer or (ii) as contemplated by Section 4 hereof.
PROSPECTUS: The prospectus included in a Registration Statement at the
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 and
the Guarantors relating to (a) an offering of New Notes pursuant to an Exchange
Offer or (b) the registration for resale of Transfer
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Restricted Securities pursuant to the Shelf Registration Statement, in each
case, (i) that is filed pursuant to the provisions of this Agreement and (ii)
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.
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 (A) Note, until the earliest to
occur of (i) the date on which such Note is exchanged in the Exchange Offer for
a New Note which is entitled to be resold to the public by the Holder thereof
without complying with the prospectus delivery requirements of the Act, (ii) the
date on which such Note has been disposed of pursuant to a Shelf Registration
Statement (and the purchasers thereof have been issued New Notes), or (iii) the
date on which such Note is distributed to the public pursuant to Rule 144 under
the Act and each (B) New Note held by a Broker Dealer until the date on which
such New 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).
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted
Securities (each, a "HOLDER") whenever such Person is the holder of record of
Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by
applicable federal law (after the procedures set forth in Section 6(a)(i) below
have been complied with), the Company and the Guarantors will use their
reasonable best effort to (i) cause the Exchange Offer Registration Statement to
be filed with the Commission no later than 60 days after the Closing Date (such
60th day being the "FILING DEADLINE"), (ii) to cause such Exchange Offer
Registration Statement to become effective no later than 150 days after the
Closing Date (such 150th 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 New Notes to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit Consummation of the Exchange Offer, and
(iv) subject to Section 6(d) hereof, upon the effectiveness of such Exchange
Offer Registration Statement, commence and Consummate the Exchange Offer. The
Exchange Offer Registration Statement shall be on the appropriate form
permitting (i) registration of the issuance of New Notes to be offered in
exchange for the Notes that are Transfer Restricted Securities and (ii) resales
of New Notes by Broker-Dealers that tendered into the Exchange Offer 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.
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(b) Subject to Section 6(d) hereof, the Company and the
Guarantors shall use their respective reasonable best efforts to cause the
Exchange Offer Registration Statement to be effective continuously, and shall
keep the Exchange Offer open for a period of not less than the minimum period
required under applicable federal and state securities laws to Consummate the
Exchange Offer; provided, however, that in no event shall such period be less
than 20 Business Days. The Company and the Guarantors shall cause the Exchange
Offer to comply with all applicable federal and state securities laws. Subject
to Section 6(d) hereof, the Company and the Guarantors shall use their
respective reasonable best efforts to cause the Exchange Offer to be Consummated
within 30 Business Days after the Exchange Offer Registration Statement has
become effective (such 30th day being the "CONSUMMATION DEADLINE").
(c) The Company shall include a "Plan of Distribution" section
in the Prospectus contained in the Exchange Offer Registration Statement and
indicate therein that any Broker-Dealer who holds Transfer Restricted Securities
that were acquired for the account of such Broker-Dealer as a result of
market-making activities or other trading activities (other than Notes acquired
directly from the Company or any Affiliate of the Company), may exchange such
Transfer Restricted Securities pursuant to the Exchange Offer. Such "Plan of
Distribution" section shall also contain all other information with respect to
such sales by such Broker-Dealers that the Commission may require in order to
permit such sales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Transfer Restricted
Securities held by any such Broker-Dealer, except to the extent required by the
Commission as a result of a change in policy, rules or regulations after the
date of this Agreement. See the Shearman & Sterling no-action letter (available
July 2, 1993).
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 its initial
sale of any New Notes received by such Broker-Dealer in the Exchange Offer, the
Company and the Guarantors shall subject to Section 6(d) hereof, permit the use
of the Prospectus contained in the 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 the Exchange Offer
Registration Statement is available for sales of New Notes by Broker-Dealers,
the Company and the Guarantors agree, subject to Section 6(d) hereof, to use
their respective reasonable best efforts to keep the Exchange Offer Registration
Statement continuously effective, supplemented, amended and current as required
by and subject to the provisions of Section 6(a) 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 one year from the Consummation Deadline or such shorter period as will
terminate when all Transfer Restricted Securities covered by such Registration
Statement have been sold pursuant thereto. The Company and the Guarantors 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) the Exchange Offer is not
permitted by applicable law or Commission policy (after the Company and the
Guarantors have complied with the procedures set forth in Section 6(a)(i) hereof
and, if applicable, this Section 4(a) hereof) or (ii) if any Holder of Transfer
Restricted Securities shall notify the Company within 20 Business Days following
the Consummation Deadline (and the Company does not reasonably object based on
advice of counsel with respect to applicable law) that (A) such Holder was
prohibited by law or Commission policy from participating in the Exchange Offer
or (B) such Holder may not resell the New 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 Broker-Dealer and holds
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Notes acquired directly from the Company or any of its Affiliates, then the
Company and the Guarantors shall:
(x) subject to Section 6(d) hereof, cause to be filed, on or
prior to 90 days after the earlier of (i) the date on which the
Company determines that the Exchange Offer Registration Statement
cannot be filed as a result of clause (a)(i) above and (ii) the date
on which the Company receives the notice specified in clause (a)(ii)
above, (such earlier date, the "FILING DEADLINE"), a shelf
registration statement pursuant to Rule 415 under the Act (which may
be an amendment to the Exchange Offer Registration Statement (the
"SHELF REGISTRATION STATEMENT")), relating to all Transfer Restricted
Securities, and
(y) subject to Section 6(d) hereof, shall use its reasonable best
efforts to cause such Shelf Registration Statement to become
effective on or prior to 150 days after the Filing Deadline for the
Shelf Registration Statement (such 150th day the "EFFECTIVENESS
DEADLINE").
If, after the Company has filed an Exchange Offer Registration
Statement that satisfies the requirements of Section 3(a) above, the Company is
required to file and make effective a Shelf Registration Statement solely
because the Exchange Offer is not permitted under applicable federal law (i.e.,
clause (a)(i) above), then the filing of the Exchange Offer Registration
Statement shall be deemed to satisfy the requirements of clause (x) above;
provided that, in such event, the Company shall remain obligated to meet the
Effectiveness Deadline set forth in clause (y).
To the extent necessary to ensure that the Shelf Registration
Statement is available for sales of Transfer Restricted Securities by the
Holders thereof entitled to the benefit of this Section 4(a) and the other
securities required to be registered therein pursuant to Section 6(b)(ii)
hereof, the Company and the Guarantors shall use their respective reasonable
best efforts to keep any 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 following the Closing Date, or such shorter period as will
terminate when 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, 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. No Holder of
Transfer Restricted Securities shall be entitled to liquidated damages pursuant
to Section 5 hereof unless and until such Holder shall have provided all such
information. Each selling Holder agrees to promptly furnish additional
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) the Exchange Offer Registration Statement required by
this Agreement is not filed with the Commission on or prior to the applicable
Filing Deadline, (ii) the Exchange Offer Registration Statement has not been
declared effective by the Commission on or prior to the applicable Effectiveness
Deadline, (iii) the Exchange Offer has not been Consummated on or prior to the
date which is 180 days after the date hereof, (iv) subject to Section 6(d)
hereof, the Shelf Registration Statement has not been filed with the
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Commission on or prior to the applicable Effectiveness Deadline or if the Shelf
Registration Statement has not been declared effective by the Commission, or (v)
subject to Section 6(d) hereof, any Registration Statement required by this
Agreement is filed and declared effective but shall thereafter cease to be
effective or fail to be usable for its intended purpose without being succeeded
immediately by a post-effective amendment to such Registration Statement that
cures such failure and that is itself declared effective immediately (each such
event referred to in clauses (i) through (iv), a "REGISTRATION DEFAULT"), then
the Company and the Guarantors hereby jointly and severally agree to pay to each
Holder of Transfer Restricted Securities affected thereby liquidated damages in
an amount equal to $.05 per week per $1,000 principal amount of Transfer
Restricted Securities held by such Holder for each week or portion thereof that
the Registration Default continues for the first 90-day period immediately
following the occurrence of such Registration Default. The amount of the
liquidated damages shall increase by an additional $.05 per week per $1,000
principal amount of Transfer Restricted Securities with respect to each
subsequent 90-day period until all Registration Defaults have been cured, up to
a maximum amount of liquidated damages of $.20 per week per $1,000 principal
amount of Transfer Restricted Securities; provided that the Company and the
Guarantors shall in no event be required to pay liquidated damages for more than
one Registration Default at any given time. Notwithstanding anything to the
contrary set forth herein, upon fulfilling the obligation that gave rise to the
obligation of the Company to pay liquidated damages as provided above, the
accrual of liquidated damages shall cease.
All accrued liquidated damages shall be paid to the Holders
entitled thereto, in the manner provided for the payment of interest in the
Indenture, on each Interest Payment Date, as more fully set forth in the
Indenture and the Notes. Notwithstanding the fact that any securities for which
liquidated damages are due cease to be Transfer Restricted Securities, all
obligations of the Company and the Guarantors to pay liquidated damages with
respect to securities shall survive until such time as such obligations with
respect to such securities shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with
the Exchange Offer, the Company and the Guarantors shall subject to Section 6(d)
hereof, (x) comply, in all material respects, with all applicable provisions of
Section 6(c) below, (y) use their respective reasonable best efforts to effect
such exchange and to permit the resale of the New Notes by Broker-Dealers that
tendered in the Exchange Offer and (z) comply with all of the following
provisions:
(i) If, following the date hereof there has been
announced a change in Commission policy with respect to exchange offers
such as the Exchange Offer, that in the reasonable opinion of counsel to
the Company raises a substantial question as to whether the Exchange
Offer is permitted by applicable federal law, the Company and the
Guarantors hereby agree to either (i) seek a no-action letter or other
favorable decision from the Commission allowing the Company and the
Guarantors to Consummate an Exchange Offer for such Transfer Restricted
Securities or (ii) make available a Shelf Registration Statement
pursuant to and within the time periods prescribed in Section 4(a)
hereof. If the Company and the Guarantors elect to proceed under clause
(i) above, the Company and the Guarantors hereby agree to pursue the
issuance of such a decision to the Commission staff level, and the
Company and the Guarantors hereby further agree 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.
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(ii) As a condition to its participation in the Exchange
Offer, each Holder of Transfer Restricted Securities (including, without
limitation, any Holder who is a Broker Dealer) shall furnish, upon the
request of the Company, prior to the Consummation of the Exchange Offer,
a written representation to the Company and the Guarantors (which may be
contained in the letter of transmittal contemplated by the 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 New Notes to be issued in the
Exchange Offer and (C) it is acquiring the New Notes in its ordinary
course of business. As a condition to its participation in the Exchange
Offer, each Holder using the Exchange Offer to participate in a
distribution of the New Notes shall acknowledge and agree that, if the
resales are of New Notes obtained by such Holder in exchange for Notes
acquired 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 secondary resale
transaction must 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 the Exchange Offer
Registration Statement, the Company and the Guarantors shall, upon
request by the Commission, provide a supplemental letter to the
Commission (A) stating that the Company and the Guarantors are
registering the 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 New Notes to be received
in the Exchange Offer and that, to the best of the Company's and each
Guarantor's information and belief, each Holder participating in the
Exchange Offer is acquiring the New Notes in its ordinary course of
business and has no arrangement or understanding with any Person to
participate in the distribution of the New Notes received in the
Exchange Offer and (C) any other undertaking or representation required
by the Commission as set forth in any no-action letter obtained pursuant
to clause (i) above, if applicable.
(b) Shelf Registration Statement.
In connection with the Shelf Registration Statement, the
Company and the Guarantors shall:
(i) subject to Section 6(d) hereof, comply, in all
material respects, with all the provisions of Section 6(c) below and use
their respective 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 and the
Guarantors 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
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(ii) issue, upon the request of any Holder or purchaser
of Notes covered by any Shelf Registration Statement contemplated by
this Agreement, New 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 New Notes on the Shelf Registration Statement
for this purpose and issue the New Notes to the purchaser(s) of
securities subject to the Shelf Registration Statement in the names as
such purchaser(s) shall designate.
(c) General Provisions. In connection with any Registration
Statement and any related Prospectus required by this Agreement, the Company and
the Guarantors shall:
(i) subject to Section 6(d) hereof, use their respective
reasonable best efforts to keep such Registration Statement continuously
effective and provide all requisite financial statements for the period
specified in Section 3 or 4 of this Agreement, as applicable. Upon the
occurrence of any event that would cause any such Registration Statement
or the Prospectus contained therein (A) to contain an untrue statement
of material fact or omit to state any material fact necessary to make
the statements therein not misleading or (B) not to be effective and
usable for resale of Transfer Restricted Securities during the period
required by this Agreement, the Company and the Guarantors shall subject
to Section 6(d) hereof, file promptly an appropriate amendment to such
Registration Statement curing such defect, and, if Commission review is
required, use their respective reasonable best efforts to cause such
amendment to be declared effective as soon as practicable.
(ii) subject to Section 6(d) hereof, prepare and file
with the Commission such amendments and post-effective amendments to the
applicable 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; subject to Section 6(d)
hereof, 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 Rules 424, 430A and
462, as applicable, 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 each Holder promptly and, if requested by
such Holder, confirm such advice in writing, (A) when the Prospectus or
any Prospectus supplement (other than a Prospectus Supplement relating
solely to the resale of Transfer Restricted Securities under a
Registration Statement) or post-effective amendment has been filed, and,
with respect to any applicable 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 the
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, (D) of the
existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the
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 the Registration Statement in order to
make the statements therein not misleading, or that requires the making
of any additions to or changes in the 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
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of the 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 and the Guarantors shall use their respective reasonable best
efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
(iv) subject to Section 6(c)(i) and Section 6(d) hereof,
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 the 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, in the light of the circumstances under which they
were made, not misleading;
(v) furnish to each Holder promptly after the time of
filing with the Commission, copies of any Registration Statement or any
Prospectus included therein or any amendments or supplements (excluding
Prospectus supplements relating solely to the resale of Transfer
Restricted Securities under a Registration Statement) to any such
Registration Statement or Prospectus (excluding all documents
incorporated by reference).
(vi) make available, at reasonable times, for inspection
by each Holder and any attorney or accountant retained by such Holders,
all financial and other records, pertinent corporate documents of the
Company and the Guarantors and cause the Company's and the Guarantors'
officers, directors and employees to supply all information reasonably
requested by any such Holders, 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) subject to Section 6(d) hereof, if requested by any
Holders, promptly include in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as such Holders may reasonably request to have included
therein, including, without limitation, information relating to the
"Plan of Distribution" of the Transfer Restricted Securities and the use
of the Registration Statement or Prospectus for market making
activities; and subject to Section 6(d) hereof, 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) furnish to each Holder upon request, without
charge, at least one copy of the Registration Statement, as first filed
with the Commission, and of each amendment thereto, including all
documents incorporated by reference therein and all exhibits (including
exhibits incorporated therein by reference);
(ix) deliver to each Holder without charge, as many
copies of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may request;
the Company and the Guarantors hereby consent to the use (in accordance
with law and subject to Section 6(d) hereof) of the Prospectus and any
amendment or supplement thereto by each selling Holder in connection
with the offering and the sale of the Transfer Restricted Securities
covered by the Prospectus or any amendment or supplement thereto;
(x) upon the request of any 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
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Restricted Securities pursuant to any Shelf Registration Statement
contemplated by this Agreement as may be reasonably requested by any
Holder in connection with any sale or resale pursuant to any Shelf
Registration Statement but only in connection with an underwritten
public offering for a minimum of $50,000,000 principal amount of Notes.
In such connection, the Company and the Guarantors shall:
(A) upon request of any Holder, furnish (or in the case of
paragraphs (2) and (3), use their respective reasonable best efforts to cause to
be furnished) to each Holder, upon consummation of the Exchange Offer or upon
the effectiveness of the Shelf Registration Statement, as the case may be:
(3) a certificate, dated such date, signed on behalf
of the Company and each Guarantor by (x) the President or any
Vice President and (y) a principal financial or accounting
officer of the Company and such Guarantor, confirming, as of
the date thereof, the matters set forth in Sections 1, 7(h),
7(i) and 7(j) of the Purchase Agreement and such other similar
matters as such Holder may reasonably request;
(4) an opinion, dated the date of Consummation of the
Exchange Offer or date of effectiveness of the Shelf
Registration Statement, as the case may be, of counsel for the
Company and the Guarantors covering matters similar to those
set forth in paragraph (e) of Section 9 of the Purchase
Agreement and such other matter as such Person 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 and the
Guarantors, representatives of the independent public
accountants for the Company and the Guarantors and has
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, 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 the Exchange Offer
Registration Statement, as of the date of Consummation of the
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 Prospectus contained in such
Registration Statement as of its date and, in the case of the
opinion dated the date of Consummation of the 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
(5) a customary comfort letter, dated the date of
Consummation of the Exchange Offer, or as of the date of
effectiveness of the 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
underwritten offerings, and affirming the matters set forth in
the comfort letters delivered pursuant to Section 7(f) of the
Purchase Agreement; and
(B) deliver such other documents and certificates as may be
reasonably requested by
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the selling Holders to evidence compliance with the matters covered in clause
(A) above and with any customary conditions contained in the any agreement
entered into by the Company and the Guarantors pursuant to this clause (x);
(xi) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel in
connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders may reasonably 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 neither the Company nor any Guarantor shall 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 the Registration Statement, in any jurisdiction where it is not now
so subject;
(xii) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the Holders 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 such names as the selling Holders may request at least
two Business Days prior to such sale of Transfer Restricted Securities;
(xiii) use their respective reasonable best efforts to
cause the disposition of the Transfer Restricted Securities covered by
the Registration Statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof to consummate the disposition of such
Transfer Restricted Securities, subject to the proviso contained in
clause (xi) above;
(xiv) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Registration Statement
covering such Transfer Restricted Securities and provide the Trustee
under the Indenture with printed certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with The
Depository Trust Company;
(xv) otherwise use their respective 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 applicable 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);
(xvi) cause the Indenture 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 Indenture 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 Indenture to be so qualified in
a timely manner; and
(xvii) provide promptly to each Holder and affiliated
market maker, upon request, each document filed with the Commission
pursuant to the requirements of Section 13 or Section 15(d) of the
Exchange Act.
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(d) Restrictions on Holders. Each Holder agrees by acquisition
of a Transfer Restricted Security that, upon receipt of the notice referred to
in Section 6(c)(iii)(C) 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)(iv) hereof, or (ii) such Holder is
advised in writing by the Company that the use of the Prospectus may be resumed
(in each case, the "RECOMMENCEMENT DATE", with each such period of time from the
Suspension Notice until the Recommencement Date being referred to herein as a
"Black Out Period"). 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) deliver to the Company (at the
Company's expense) all copies, other than permanent file copies, then in such
Holder's possession of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of the Suspension Notice. If
the Company issues a Suspension Notice after commencement, before completion, of
the Exchange Offer, then the Exchange Offer will be suspended immediately until
the Recommencement Date. On the Recommencement Date, the Exchange Offer will
recommence and will remain effective for the periods set forth in Section 3(b)
as if the Exchange Offer had commenced on the Recommencement Date.
Notwithstanding the provisions of Section 5 hereof, no liquidated damages shall
accrue pursuant to clauses (iv) and (v) of Section 5 hereof during any Black Out
Period or during the period the Company is seeking a no-action letter or other
favorable decision pursuant to Section 6(a)(i) hereof.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the Guarantors'
performance of or compliance with this Agreement will be borne by the Company,
regardless of whether a Registration Statement becomes effective, including
without limitation: (i) all registration and filing fees and expenses; (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 New Notes to be issued in the Exchange Offer and printing of
Prospectuses whether for exchanges, sales, market making or otherwise),
messenger and delivery services and telephone; (iv) all fees and disbursements
of counsel for the Company and the Guarantors; (v) all application and filing
fees in connection with listing the New Notes on a national securities exchange
or automated quotation system pursuant to the requirements hereof; and (vi) all
fees and disbursements of independent certified public accountants of the
Company and the Guarantors (including the expenses of any special audit and
comfort letters required by or incident to such performance).
The Company will, in any event, bear its and the Guarantors' 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 or the Guarantors.
(b) In connection with any Registration Statement required by
this Agreement, the Holders of Transfer Restricted Securities who are tendering
Notes into in the Exchange Offer and/or selling or reselling Notes or New Notes
pursuant to the "Plan of Distribution" contained in the Exchange Offer
Registration Statement or the Shelf Registration Statement, as applicable, shall
be responsible for all of their expenses incurred including the fees and
disbursements of its counsel.
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors agree, jointly and severally,
to indemnify and hold harmless each Holder, its directors, officers and each
person, if any, who controls such Holder (within the
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meaning of Section 15 of the Act or Section 20 of the Exchange Act), from and
against any and all losses, claims, damages, liabilities, judgments, (including
without limitation, any legal or other expenses incurred in connection with
investigating or defending any matter, including any action that could give rise
to any such losses, claims, damages, liabilities or judgments) caused by 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 purchaser of
the New Notes or of the 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 or judgments are caused by an untrue
statement or omission or alleged untrue statement or omission that is based upon
information relating to any of the Holders furnished in writing to the Company
by any of the Holders.
(b) Each Holder agrees, severally and not jointly, to indemnify
and hold harmless the Company and the Guarantors, and their 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
to the same extent as the foregoing indemnity from the Company and the
Guarantors set forth in section (a) above, but only with reference to
information relating to such Holders furnished in writing to the Company by such
Holders 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 total amount
received by such Holder with respect to its 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 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 reasonable fees and expenses of such counsel, as
incurred (except that in the case of any action in respect of which indemnity
may be sought pursuant to both Sections 8(a) and 8(b), a Holder shall not be
required to assume the defense of such action pursuant to this Section 8(c), but
may employ separate counsel and participate in the defense thereof, but the fees
and expenses of such counsel, except as provided below, shall be at the expense
of the Holder). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the indemnified party
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action failed (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 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 and the Guarantors, in the case of parties indemnified pursuant to
Section 8(b). The indemnifying party shall indemnify and hold harmless the
indemnified party from and
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against any and all losses, claims, damages, liabilities and judgments 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
20 Business Days after the indemnifying party shall have received a request from
the indemnified party for reimbursement for the fees and expenses of counsel (in
any case where such fees and expenses are at the expense of the indemnifying
party) and, prior to the date of such settlement, the indemnifying party shall
have failed to comply with such reimbursement request. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement or compromise of, or consent to the entry of judgment with respect
to, any pending or threatened action in respect of which the indemnified party
is or could have been a party and indemnity or contribution may be or could have
been sought hereunder by the indemnified party, unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability on claims that are or could have been the subject
matter of such action and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of the
indemnified party.
(d) To the extent that the indemnification provided for in this
Section 8 is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments 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 or judgments (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company and
the Guarantors, 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) hereof but also the relative fault of the Company and the Guarantors, on
the one hand, and of the Holders, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative fault of the Company and the Guarantors, on the one
hand, and of the Holders, on the other hand, shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or such Guarantor, on the one
hand, or by the Holders, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities and judgments referred to
above shall be deemed to include, subject to the limitations set forth in the
second paragraph of this Section 8(d), any legal or other fees or expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any matter, including any action that could have given use to such
losses, claims, damages, liabilities or judgments.
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 preceding paragraph. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages,
liabilities or judgments referred to in the preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any matter, including any action that could have
given rise to such losses, claims, damages, liabilities or judgments.
Notwithstanding the provisions of this Section 8, no Holder, its directors, its
officers or any Person, if any, who controls such 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
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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(c) are several in
proportion to the respective principal amounts of Transfer Restricted Securities
held by each Holder.
SECTION 9. RULE 144A and RULE 144
The Company and the Guarantors agree with each Holder, for so
long as any Transfer Restricted Securities remain outstanding and during any
period in which the Company or such Guarantor (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. MISCELLANEOUS
(a) Remedies. The Company and the Guarantors acknowledge and
agree that any failure by the Company and/or the Guarantors to comply with their
respective obligations under Sections 3 and 4 hereof may result in material
irreparable injury to the Initial Purchasers or the 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 Initial
Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Company's and the Guarantors' 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. Neither the Company nor any
Guarantor will, 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 materially conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not conflict
with and are not materially inconsistent with the rights granted to the holders
of the Company's and the Guarantors' securities under any agreement in effect on
the date hereof.
(c) 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 10(c)(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 or that are being resold pursuant to the Exchange Offer
Registration Statement or the Shelf Registration Statement, 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 or
that are not being resold pursuant to the Exchange Offer Registration Statement
or the Shelf Registration Statement, may be given by the Holders of a majority
of the outstanding principal amount of Transfer Restricted Securities subject to
such Exchange Offer.
(d) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the
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agreements made hereunder between the Company and the Guarantors, on the one
hand, and the Initial 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 their rights or the rights of Holders
hereunder.
(e) 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:
Key Energy Services, Inc.
Xxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxx Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: General Counsel
With a copy to:
Xxxxxx & Xxxxxx, L.L.P.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
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.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders; provided, that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Transfer Restricted
Securities in violation of the terms hereof or of the Purchase Agreement or the
Indenture. If any transferee of any Holder shall acquire Transfer Restricted
Securities in any manner, whether by operation of law or otherwise, such
Transfer Restricted Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Transfer Restricted Securities such
Person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement, including the restrictions on
resale set forth in this Agreement and, if applicable, the Purchase Agreement,
and such Person shall be entitled to receive the benefits hereof.
(g) 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.
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(h) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(i) 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.
(j) 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.
(k) 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.
(l) Universal Shelf Registration Statements. The Initial
Purchasers acknowledge that the Company currently has on file with the
Commission two shelf registration statements on Forms S-3 and S-4 covering a
specific dollar amount of unspecified securities (the "UNIVERSAL SHELF
REGISTRATION STATEMENTS"). The Initial Purchasers agree that the Company may
amend the Universal Shelf Registration Statements to satisfy the requirements to
file Registration Statements within the applicable Filing Deadlines provided
that the Universal Shelf Registration Statements cover the type of transactions
required to be registered herein in accordance with applicable law and the rules
and regulations of the Commission; and provided, that such use of the Universal
Shelf Registration Statements do not affect the exemption from registration
under the Act of the issuance and sale of the Units to the Initial Purchasers.
(Signature pages follow)
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
KEY ENERGY SERVICES, INC.
By _________________________________
Name:
Title:
YALE E. KEY, INC., KEY ENERGY DRILLING, INC., WELLTECH EASTERN, INC.,
ODESSA EXPLORATION INCORPORATED, KALKASKA OILFIELD SERVICES, INC.,
WELL-CO OIL SERVICE, INC., XXXXXXX WELL SERVICE, INC., XXXXXX WELL
SERVICE, INC., RAM OIL WELL SERVICE, INC., XXXXXXX TRUCKING CO., INC.,
LANDMARK FISHING & RENTAL, INC., XXXXXX WELL SERVICE, INC., FRONTIER
WELL SERVICE, INC., KEY ROCKY MOUNTAIN, INC., KEY FOUR CORNERS, INC.,
XXXXX SERVICE CO., XXXXX WELL SERVICE, INC., XXXXX TRANSPORTATION,
INC., INDUSTRIAL OILFIELD SUPPLY, INC., XXXXXX WELL SERVICING, INC.,
XXXXXX BROTHERS, INC., X.X. XXXXXX WELL SERVICE COMPANY, KEY ENERGY
SERVICES--SOUTH TEXAS, INC., KEY ENERGY SERVICES--CALIFORNIA, INC.,
XXXXXX OILFIELD SERVICE & SUPPLY, INC., WELLTECH MID-CONTINENT, INC.,
XXXXXX PRODUCTION MANAGEMENT, INC., XXXXXX PRODUCTION XXXXXX, INC.,
XXXXXX PRODUCTION ACQUISITION CORP.,
By _________________________________
Name:
Title:
XXXXXX PRODUCTION PARTNERS, L.P.
BY XXXXXX PRODUCTION MANAGEMENT INC., ITS SOLE GENERAL
PARTNER.
By _________________________________
Name:
Title:
20
Accepted:
XXXXXX BROTHERS INC.
BEAR, XXXXXXX & CO. INC.
F-A-C/Equities, a division
of First Albany Corporation
XXXX XXXXXXXX XXXXXXX, a division
of Xxxx Xxxxxxxx Incorporated
By: XXXXXX BROTHERS INC.
By _________________________________
Name:
Title:
By: BEAR, XXXXXXX & CO. INC.
By _________________________________
Name:
Title:
By: F-A-C/Equities, a division
of First Albany Corporation
By _________________________________
Name:
Title:
By: XXXX XXXXXXXX XXXXXXX, a division
of Xxxx Xxxxxxxx Incorporated
21
By _________________________________
Name:
Title:
