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EXHIBIT 4.5
$300,000,000
Chesapeake Energy Corporation
$150,000,000 7 7/8% Senior Notes due 2004
$150,000,000 8 1/2% Senior Notes due 2012
REGISTRATION RIGHTS AGREEMENT
March 12, 1997
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
BEAR, XXXXXXX & CO. INC.
X.X. XXXXXX SECURITIES INC.
XXXXXX BROTHERS INC.
c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Chesapeake Energy Corporation, an Oklahoma corporation (the
"Company"), and its subsidiaries listed on the signature pages hereto (the
"Subsidiary Guarantors") propose to issue and sell to you (the "Initial
Purchasers"), upon the terms set forth in a purchase agreement of even date
herewith (the "Purchase Agreement"), $150,000,000 principal amount of the
Company's 7 7/8% Senior Notes due 2004 (the "2004 Senior Notes") and
$150,000,000 principal amount of the Company's 8 1/2% Senior Notes due 2012
(the "2012 Senior Notes" and, collectively with the 2004 Senior Notes, the
"Senior Notes"). The 2004 Senior Notes and the 2012 Senior Notes will be
issued pursuant to separate indentures, each to be dated as of March 15, 1997
(respectively, the "2004 Senior Notes Indenture" and the "2012 Senior Notes
Indenture" and, collectively, the "Indentures") by and among the Company, the
Subsidiary Guarantors and United States Trust Company of New York, as trustee
(with respect to each of the Indentures, the "Trustee"), substantially in the
forms previously furnished to you.
Capitalized terms used but not specifically defined herein are
defined in the Purchase Agreement and used herein as so defined. References to
each issue of Senior Notes shall include the related Guarantees (as defined in
the related Indenture) of the Subsidiary Guarantors. As used herein,
"Registrable Senior Notes" shall mean each Senior Note of each issue, until the
earliest to occur of (a) the date on which such Senior Note is exchanged in the
applicable Registered Exchange Offer for an Exchange Note (each as defined
below) of such issue and entitled to be resold to the
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public by the holder thereof without complying with the prospectus delivery
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
(b) the date on which such Senior Note has been effectively registered under
the Securities Act and disposed of pursuant to a Senior Notes Shelf
Registration (as defined below) and (c) the date on which such Senior Note is
distributed to the public pursuant to Rule 144 under the Securities Act or by a
Broker-Dealer (as defined below) pursuant to the "Plan of Distribution"
contemplated by the registration statement relating to the Registered Exchange
Offer (including delivery of the prospectus contained therein).
In consideration of the premises, and the mutual covenants,
representations, warranties and agreements herein contained, the parties hereby
agree as follows:
1. Registered Exchange Offers.
(a) Promptly (and in any event not more than 60 days)
following the closing date of the sale of the Senior Notes (the "Closing
Date"), the Company and the Subsidiary Guarantors shall file with the
Commission, with respect to each of the 2004 Senior Notes and the 2012 Senior
Notes, a registration statement on an appropriate form under the Securities Act
with respect to proposed offers (the "Registered Exchange Offers") to the
holders of the Registrable Senior Notes of the applicable issue to issue and
deliver to such holders, in exchange for the Registrable Senior Notes of such
issue, a like principal amount of debt securities of the Company identical in
all material respects to the Registrable Senior Notes of such issue (the
"Exchange Notes"), shall use their best efforts to cause such registration
statement to become effective under the Securities Act no later than 160 days
after the Closing Date and, upon the effectiveness of such registration
statement, shall commence each Registered Exchange Offer and shall cause the
same to remain open for such period of time to be determined by the Company
(but not less than 30 nor more than 60 days after the commencement of the
applicable Registered Exchange Offer), and to be conducted in accordance with
such procedures, as may be required by the applicable provisions of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), it being the
objective of such Registered Exchange Offers to enable each holder of
Registrable Senior Notes of the applicable issue electing to exchange
Registrable Senior Notes of such issue for Exchange Notes of such issue
(assuming that such holder is not an affiliate of the Company within the
meaning of the Securities Act, acquires the Exchange Notes in the ordinary
course of such holder's business and has no arrangements with any person to
participate in the distribution of the Exchange Notes) to trade such Exchange
Notes from and after their receipt without any limitations or restrictions
under the Securities Act, subject as to a Broker-Dealer to the provisions of
Section 1(b) hereof, or the Exchange Act and without material restrictions
under the securities laws of a substantial proportion of the several states of
the United States.
(b) The Company shall indicate in a "Plan of
Distribution" section contained in the final prospectus constituting a part of
the registration statement relating to the Registered Exchange Offers that any
broker or dealer registered under the Exchange Act (each a "Broker-Dealer") who
holds Registrable Senior Notes that were acquired for its own account as a
result of market-making activities or other trading activities (other than
Registrable Senior Notes acquired
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directly from the Company), may exchange such Registrable Senior Notes for
Exchange Notes of the applicable issue pursuant to the applicable Registered
Exchange Offer; however, such Broker-Dealer may be deemed an "underwriter"
within the meaning of the Securities Act and, therefore, must deliver a
prospectus meeting the requirements of the Securities Act in connection with
any resales of such Exchange Notes received by it in the applicable Registered
Exchange Offer, which prospectus delivery requirement may be satisfied by the
delivery by such Broker-Dealer of the final prospectus contained in the
registration statement relating to such Registered Exchange Offer. Such "Plan
of Distribution" section also shall state that the delivery by a Broker-Dealer
of the final prospectus relating to the Registered Exchange Offer in connection
with resales of Exchange Notes shall not be deemed to be an admission by such
Broker-Dealer that it is an "underwriter" within the meaning of the Securities
Act, and shall contain all other information with respect to resales of the
Exchange Notes by Broker-Dealers that the Commission may require in connection
therewith, but such "Plan of Distribution" shall not name any such
Broker-Dealer or disclose the amount of Exchange Notes held by any such Broker-
Dealer except to the extent required by the Commission as a result of a change
in policy after the date of this Agreement.
(c) In connection with such Registered Exchange Offers
and the offer and sale of Exchange Notes by Broker-Dealers as contemplated
above, the Company and the Subsidiary Guarantors shall take such other and
further action, including making appropriate filings under state securities
laws and delivering such number of final prospectuses relating to the
Registered Exchange Offers as any Broker-Dealer proposing to deliver the same
in connection with its resales of Exchange Notes may reasonably request, as may
be necessary to realize the foregoing objectives. The Company and the
Subsidiary Guarantors shall cause the registration statement relating to the
Registered Exchange Offers to remain continuously effective for a period of one
year, if required, from the date on which such registration statement is first
declared effective, and shall supplement or amend the prospectus contained
therein to the extent necessary to permit such prospectus (as supplemented or
amended) to be delivered by Broker-Dealers in connection with their resales of
Exchange Notes as aforesaid.
2. Senior Notes Shelf Registration. If, because of any
change in currently prevailing interpretations of the Commission's staff, the
Company is not permitted to effect a Registered Exchange Offer, as contemplated
by Section 1 hereof, the following provisions shall apply with respect to each
issue of Senior Notes:
(a) Promptly (and in any event not more than 60 days)
following the date of closing (the "Closing Date") of the sale of the Senior
Notes, the Company and the Subsidiary Guarantors shall file with the
Commission, and thereafter use their best efforts to have declared effective
not later than 160 days after the Closing Date, a registration statement on an
appropriate form under the Securities Act relating to the offer and sale of the
Registrable Senior Notes by the holders thereof, from time to time in
accordance with the methods of distribution set forth in such registration
statement and Rule 415 under the Securities Act (the "Senior Notes Shelf
Registration").
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(b) The Company and the Subsidiary Guarantors agree to
use their best efforts to keep the registration statement relating to the
Senior Notes Shelf Registration continuously effective in order to permit the
prospectus included therein to be usable by the holders of the Registrable
Senior Notes for a period of three years from the Closing Date or such shorter
period (i) as may be set forth in any amendment to Rule 144(k) of the
Securities Act of 1933, or any amendment thereto, when such amendment becomes
effective, or (ii) that will terminate when all the Registrable Senior Notes
covered by the registration statement have been sold pursuant to such
registration statement; provided, that the Company and the Subsidiary
Guarantors shall be deemed not to have used their best efforts to keep the
registration statement effective during the requisite period if they
voluntarily take any action that would result in holders of the Registrable
Senior Notes covered thereby not being able to offer and sell such Registrable
Senior Notes during that period, unless such action is required by applicable
law, and provided, further, that the foregoing shall not apply if the Company
determines, in its reasonable judgment, upon advice of counsel, as authorized
by a resolution of its Board of Directors, that the continued effectiveness and
usability of such registration statement would (i) require the disclosure of
material information, which the Company has a bona fide business reason for
preserving as confidential, or (ii) interfere with any financing, acquisition,
corporate reorganization or other material transaction involving the Company or
any of its Affiliates (as defined in the rules and regulations adopted under
the Exchange Act); provided, however, that the failure to keep the registration
statement effective and usable for offers and sales of Registrable Senior Notes
for such reasons shall last no longer than 60 days in any 12-month period
(whereafter Senior Notes Liquidated Damages (as defined in Section 6) shall
accrue and be payable), so long as the Company promptly thereafter complies
with the requirements of Section 3(h) hereof, if applicable. Any such period
during which the Company and the Subsidiary Guarantors fail to keep the
registration statement effective and usable for offers and sales of Registrable
Senior Notes is referred to as a "Suspension Period." A Suspension Period
shall commence on and include the date that the Company gives notice that the
registration statement is no longer effective or the prospectus included
therein is no longer usable for offers and sales of Registrable Senior Notes
and shall end on the date when each seller of Registrable Senior Notes covered
by such registration statement either receives the copies of the supplemented
or amended prospectus contemplated by Section 3(h) hereof or is advised in
writing by the Company that use of the prospectus may be resumed.
(c) Notwithstanding any other provisions of this
Agreement to the contrary, the Company and the Subsidiary Guarantors will cause
the Senior Notes Shelf Registration and the related prospectus and any
amendment or supplement thereto, as of the effective date of such registration
statement, amendment or supplement, (i) to comply in all material respects with
the applicable requirements of the Securities Act and the rules and regulations
of the Commission and (ii) not to contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
3. Registration Procedures. In connection with, to the
extent applicable, any Registered Exchange Offer pursuant to Section 1 hereof,
or any Senior Notes Shelf Registration
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pursuant to Section 2 hereof, the following provisions shall apply with respect
to each issue of Senior Notes:
(a) If requested by any holder of Registrable Senior
Notes or the managing underwriter, if any, with respect to the Senior Notes
Shelf Registration, the Company shall furnish to each such holder of
Registrable Senior Notes or such managing underwriter, prior to the filing
thereof with the Commission, a copy of the applicable registration statement
and each amendment thereof and each supplement, if any, to the prospectus
included therein. The Company shall use its best efforts to reflect in each
such document, when so filed with the Commission, such comments as such holder
or managing underwriter reasonably may propose.
(b) The Company shall advise the holders of Registrable
Senior Notes or the Exchange Notes, and the managing underwriter, if any, and,
if requested by any such person, confirm such advice in writing:
(i) when the applicable registration statement and any
amendment thereto has been filed with the Commission and when the
registration statement or any post-effective amendment thereto has
become effective;
(ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the applicable registration statement
or the initiation of any proceedings for that purpose;
(iii) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Registrable
Senior Notes or the Exchange Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and
(iv) of the happening of any event that requires the
making of any changes in the registration statement or the prospectus
in order to make the statements therein not misleading (which advice
shall be accompanied by an instruction to suspend the use of the
prospectus until the requisite changes have been made).
(c) The Company will make every reasonable effort to
obtain the withdrawal of any order suspending the effectiveness of the
registration statement at the earliest possible time.
(d) The Company will furnish to each holder of the
Registrable Senior Notes or the Exchange Notes included within the coverage of
the Registered Exchange Offer or the Senior Notes Shelf Registration, as
appropriate, without charge, at least one copy of the registration statement in
the form in which it was declared effective by the Commission and any
post-effective amendment thereto, including financial statements and schedules,
and, if the holder so requests in writing, all exhibits (including those
incorporated by reference).
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(e) The Company will deliver to each holder of the
Registrable Senior Notes or the Exchange Notes included within the coverage of
the Registered Exchange Offer or the Senior Notes Shelf Registration, as
appropriate, without charge, as many copies of the prospectus (including each
preliminary prospectus) included in the registration statement and any
amendment or supplement thereto as such persons may reasonably request; the
Company consents to the use of the prospectus or any amendment or supplement
thereto by each of the selling holders of the Registrable Senior Notes or the
Exchange Notes in connection with the offering and sale of the Registrable
Senior Notes or the Exchange Notes covered by the prospectus or any amendment
or supplement thereto.
(f) Prior to any public offering of the Registrable
Senior Notes or the Exchange Notes pursuant to the Registered Exchange Offer or
the Senior Notes Shelf Registration, as the case may be, the Company will
register or qualify, or cooperate with the holders of the Registrable Senior
Notes or the Exchange Notes covered thereby and their respective counsel in
connection with the registration or qualification of, such Registrable Senior
Notes or Exchange Notes for offer and sale under the securities or blue sky
laws of such jurisdictions as any seller reasonably requests in writing and do
any and all other acts or things necessary or advisable to enable the offer and
sale in such jurisdictions, of the Registrable Senior Notes or the Exchange
Notes covered by the Registered Exchange Offer or the Senior Notes Shelf
Registration, as the case may be; provided, that the Company will not be
required to qualify generally to do business in any jurisdiction where it is
not then so qualified or to take any action which would subject it to general
service of process or to taxation in any such jurisdiction where it is not then
so subject.
(g) The Company will cooperate with the holders of the
Registrable Senior Notes and the Exchange Notes to facilitate the timely
preparation and delivery of certificates representing the Registrable Senior
Notes and the Exchange Notes to be sold in the Registered Exchange Offer or the
Senior Notes Shelf Registration, as the case may be, free of any restrictive
legends and in such denominations and registered in such names as the holders
may request prior to sales of the Registrable Senior Notes or the Exchange
Notes, pursuant to the Registered Exchange Offer or the Senior Notes Shelf
Registration, as the case may be.
(h) Upon the occurrence of any event contemplated by
paragraph (b)(v) above, the Company will prepare a post-effective amendment to
the registration statement or a supplement to the related prospectus or file
any other required document so that, as thereafter delivered to purchasers of
the Registrable Senior Notes or the Exchange Notes, the prospectus will not
contain an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading.
(i) Not later than the effective date of the applicable
registration statement, the Company will provide a CUSIP number for the
Registrable Senior Notes or the Exchange Notes, as the case may be, and provide
the Trustee with printed certificates for the Registrable Senior Notes or the
Exchange Notes, as the case may be, in a form eligible for deposit with The
Depository Trust Company.
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(j) The Company will use its best efforts to comply with
all applicable rules and regulations of the Commission and will make generally
available to its security holders an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act, no later than 60 days after
the end of 12-month period (or 90 days, if such period is a fiscal year)
beginning with the first month of the Company's first fiscal quarter commencing
after the effective date of each of the Registered Exchange Offer and the
Senior Notes Shelf Registration, which statements shall cover such 12-month
period.
(k) The Company will cause the Indenture to be qualified
under the Trust Indenture Act of 1939 upon effectiveness of the registration
statement contemplated by Section 1(a) or Section 2(a).
(l) The Company may require each holder of Registrable
Senior Notes to be sold pursuant to the Senior Notes Shelf Registration, to
furnish to the Company such information regarding the holder and the
distribution of such Registrable Senior Notes as the Company may from time to
time reasonably require for inclusion in the registration statement.
4. Registration Expenses. The Company and the Subsidiary
Guarantors will bear all expenses incurred in connection with the performance
of their obligations under Sections 1 through 3 hereof and will bear or
reimburse the holders of the Registrable Senior Notes for the reasonable fees
and disbursements of one firm of counsel designated by the holders of a
majority in principal amount of the Registrable Senior Notes to act as counsel
for the holders of the Registrable Senior Notes in connection therewith.
5. Indemnification.
(a) Indemnification by Company and the Subsidiary Guarantors. The
Company and the Subsidiary Guarantors, jointly and severally, shall indemnify
and hold harmless (i) each Initial Purchaser, (ii) in the case of any Senior
Notes Shelf Registration, each holder of Registrable Senior Notes, and (iii) in
the case of any Registered Exchange Offer, each Broker-Dealer who holds
Exchange Notes acquired for its own account pursuant to the Exchange Offer,
and, in any such case, each Initial Purchaser's and such holder's officers,
directors, employees and agents and each person who controls each such Initial
Purchaser, now or hereafter, and each such holder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act (each such
person being sometimes hereinafter referred to as an "Indemnified Person") from
and against any and all losses, claims, damages, liabilities and judgments
caused by any untrue statement or alleged untrue statement of a material fact
contained in any registration statement or prospectus or in any amendment or
supplement thereto relating to the Senior Notes Shelf Registration or the
Registered Exchange Offer, as the case may be, 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, in light of the circumstances
under which they were made, not misleading, except insofar as such losses,
claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or allegation thereof based upon information relating to
such Indemnified Person furnished in writing
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to the Company by such Indemnified Person expressly for use therein. The
indemnity will be in addition to any liability which the Company and the
Subsidiary Guarantors may otherwise have.
If any action or proceeding (including any governmental
investigation or inquiry) shall be brought or asserted against an Indemnified
Person in respect of which indemnity may be sought from the Company or the
Subsidiary Guarantors, such Indemnified Person shall promptly notify the
Company and the Subsidiary Guarantors in writing, and the Company and the
Subsidiary Guarantors shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to such Indemnified Person and
the payment of all reasonable expenses. Such Indemnified Person shall have
the right to employ separate counsel in any such action and to participate in
the defense thereof, but the fees and expenses of such counsel shall be the
expense of such Indemnified Person unless (a) the Company and the Subsidiary
Guarantors have agreed to pay such fees and expenses or (b) the Company and the
Subsidiary Guarantors shall have failed to assume the defense of such action or
proceeding and to employ counsel reasonably satisfactory to such Indemnified
Person in any such action or proceeding within a reasonable time after notice
of commencement of such action or proceeding or (c) the named parties to any
such action or proceeding (including any impleaded parties) include such
Indemnified Person and the Company and/or the Subsidiary Guarantors, and such
Indemnified Person shall have been advised in writing by counsel that there
may be one or more legal defenses available to such Indemnified Person which
are different from or additional to those available to the Company and/or the
Subsidiary Guarantors (in which case, if such Indemnified Person notifies the
Company and the Subsidiary Guarantors in writing that it elects to employ
separate counsel at the expense of the Company and the Subsidiary Guarantors,
the Company and the Subsidiary Guarantors shall not have the right to assume
the defense of such action or proceeding on behalf of such Indemnified Person,
it being understood, however, that the Company and the Subsidiary Guarantors
shall not, in connection with any one such action or separate but substantially
similar or related actions or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (in addition to
local counsel) at any time for such Indemnified Person and any other
Indemnified Persons, which firm shall be designated in writing by such
Indemnified Persons (which shall be reasonably satisfactory to the Company and
the Subsidiary Guarantors), and that all such fees and expenses shall be
reimbursed as they are billed). The Company and the Subsidiary Guarantors
shall not be liable for any settlement of any such action or proceeding
effected without their written consent (not to be unreasonably withheld), but
if settled with their written consent, or if there be a final, unappealable
judgment for the plaintiff in any such action or proceeding, the Company and
the Subsidiary Guarantors agree to indemnify and hold harmless such Indemnified
Persons from and against any loss or liability by reason of such settlement or
judgment. The Company and the Subsidiary Guarantors shall not, without the
prior written consent of the Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person is
a party and indemnity has been sought hereunder by such Indemnified Person;
provided however, that the Company and the Subsidiary Guarantors may effect
such a settlement without the consent of such Indemnified Person if such
settlement includes an unconditional release of such Indemnified Person from
all lability for claims that are the subject matter of such proceeding or the
Company and the Subsidiary Guarantors
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indemnify such Indemnified Person in writing and post a bond for an amount
equal to the maximum liability for all such claims as contemplated above.
(b) Indemnification by Holders. In the event of a Senior Notes
Shelf Registration, each holder of Registrable Senior Notes agrees to indemnify
and hold harmless the Company and the Subsidiary Guarantors, their directors
and officers, employees and agents and each person, if any, controlling the
Company and the Subsidiary Guarantors within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to such holder, but only with respect
to information relating to such holder or the distribution furnished in writing
by such holder expressly for use in any registration statement or prospectus or
any amendment or supplement thereto or any preliminary prospectus relating to
the Senior Notes Shelf Registration, provided, however, that no such holder
shall be liable for any indemnity claims hereunder in excess of the amount of
net proceeds received by such holder from the sale of Registrable Senior Notes
pursuant to the Senior Notes Shelf Registration. If any action or proceeding
shall be brought against the Company, the Subsidiary Guarantors or their
directors, officers, employees or agents or any such controlling person, in
respect of which indemnity may be sought against a holder of Registrable Senior
Notes, such holder shall have the rights and duties given the Company and the
Subsidiary Guarantors and the Company and the Subsidiary Guarantors or their
directors, officers, employees or agents or such controlling person shall have
the rights and duties given to each holder by Section 5(a) hereof. The Company
and the Subsidiary Guarantors shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, to the same extent as provided
above with respect to information so furnished in writing by such persons
specifically for inclusion in any prospectus or registration statement or any
amendment or supplement thereto.
(c) Contribution. If the indemnification provided for in this
Section 5 is unavailable to an indemnified party under Section 5(a) or Section
5(b) hereof (other than by reason of exceptions provided in those Sections) in
respect of any losses, claims, damages, liabilities or judgments referred to
therein, then each applicable 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 in such proportion as is appropriate to reflect not only the relative
benefits but also the relative fault of the Company and the Subsidiary
Guarantors on the one hand and of the Indemnified Person on the other 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 Subsidiary
Guarantors on the one hand and of the Indemnified Person on the other 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 and the
Subsidiary Guarantors or by the Indemnified Person 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 a party as a result
of the losses, claims, damages, liabilities and expenses referred to above
shall be deemed to include, subject to the
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limitations set forth in the second paragraph of Section 5(a), any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
The Company, the Subsidiary Guarantors and the holders of the
Registrable Senior Notes and Exchange Notes agree that it would not be just and
equitable if contribution pursuant to this Section 5(c) were determined by pro
rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
6. Additional Interest Under Certain Circumstances;
Remedies.
If the Company and the Subsidiary Guarantors fail to file
within 60 days, or cause to become effective within 160 days, the registration
statement relating to the Registered Exchange Offers or the Senior Notes Shelf
Registration, as applicable, or (subject to Section 2(b)) the Senior Notes
Shelf Registration is declared effective but thereafter ceases to be effective
in connection with resales of the Registrable Senior Notes (each such event, a
"Registration Default"), then the Company agrees to pay to each holder of
Registrable Senior Notes of the applicable issue, accruing from the date of the
first such Registration Default, liquidated damages in an amount equal to
one-half of one percent (0.5%) per annum of the principal amount of Registrable
Senior Notes held by such holder during the first 160-day period immediately
following the occurrence of the first such Registration Default, increasing by
an additional one-half of one percent (0.5%) per annum of the principal amount
of such Registrable Senior Notes during each subsequent 160-day period, up to a
maximum amount of liquidated damages equal to two percent (2.0%) per annum of
the principal amount of such Registrable Senior Notes ("Senior Notes Liquidated
Damages"), and ceasing to accrue on the date such Registration Default has been
cured by, as applicable, the filing, declaration of effectiveness or withdrawal
of suspension of effectiveness of the applicable registration statement. The
Company shall notify the Trustee within one business day after (i) each and
every Registration Default and (ii) the date the Registration Default has been
so cured. Until the Trustee and the Paying Agent have received an Officers'
Certificate from the Company to the effect that all Senior Notes Liquidated
Damages then due have been paid in full, the Company (in respect of any payment
date) shall pay Senior Notes Liquidated Damages then due by depositing with the
Trustee, in trust, for the benefit of the affected holders of Registrable
Senior Notes, on or before the applicable semi-annual interest payment date,
immediately available funds in sums sufficient to pay the liquidated damages
then due and provide to the Trustee and the Paying Agent a list of holders
entitled to Senior Notes Liquidated Damages together with the amount of cash
such holder is due. The Senior Notes Liquidated Damages amount due shall be
payable as additional interest (from funds received pursuant to such deposit)
on each interest payment date to the record holder and Registrable Senior Notes
entitled to receive the interest payment to be made on such date as set forth
in the Indenture.
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7. Miscellaneous.
(a) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, unless the Company
has obtained the written consent of holders of a majority in aggregate
principal amount of the Registrable Senior Notes (insofar as such matters
relate to the Registrable Senior Notes) or the Exchange Notes (insofar as such
matters relate to the Exchange Notes).
(b) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telex, telecopier, or air courier guaranteeing overnight
delivery:
(1) if to a holder of Registrable Senior Notes or
Exchange Notes, at the most current address given by such holder to
the Company in accordance with the provisions of this Section 7(b),
which address initially is, with respect to each holder, the address
of such holder to which confirmation of the sale of the Senior Notes
was first sent by an Initial Purchaser, with a copy in like manner to
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Finance Department,
Bear, Xxxxxxx & Co. Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Corporate Finance Department, X.X. Xxxxxx Securities Inc.,
00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Finance
Department and Xxxxxx Brothers Inc., 000 Xxxxx Xxxxxx, 0 Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Finance Department;
(2) if to an Initial Purchaser, to the addresses set
forth in clause (b)(1) above; and
(3) if to the Company, initially at its address set forth
in the Purchase Agreement.
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 answered back, if telexed; when receipt acknowledged by recipient's
telecopy operator, if telecopied; and on the day delivered, if sent by
overnight air courier guaranteeing next day delivery.
(a) 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 of the Registrable Senior Notes.
(b) Counterparts. This Agreement may be executed in any
number of 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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(c) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(d) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York, without
giving effect to principles of conflicts of laws to the extent the application
of the law of another jurisdiction would be required thereby.
(e) Severability. If 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.
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13
REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above:
Very truly yours,
CHESAPEAKE ENERGY CORPORATION
By: /s/ XXXXXX X. XXXXXXXXX
-----------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Chairman and CEO
SUBSIDIARY GUARANTORS:
CHESAPEAKE OPERATING, INC.
CHESAPEAKE GAS DEVELOPMENT CORPORATION
For each of the above:
By: /s/ XXXXXX X. XXXXXXXXX
-----------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Chairman and CEO
CHESAPEAKE EXPLORATION LIMITED
PARTNERSHIP
By: Chesapeake Operating, Inc.,
General Partner
By: /s/ XXXXXX X. XXXXXXXXX
-----------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Chairman and CEO
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REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE
Accepted and agreed to as of
the first date written above
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
By: /s/ XXXXX XXXX
-------------------------------------------------
Name: Xxxxx Xxxx
Title: Managing Director
BEAR, XXXXXXX & CO. INC.
By: /s/ X. XXXXXX XXXXX
-------------------------------------------------
Name: X. Xxxxxx Xxxxx
Title: Senior Managing Director
X.X. XXXXXX SECURITIES INC.
By: /s/ XXXX XXXXXXXXX
-------------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Managing Director
XXXXXX BROTHERS INC.
By: /s/ H. E. XXXXX III
-------------------------------------------------
Name: H. E. XxXxx XXX
Title: Managing Director
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