EXHIBIT 4.3
MISSION RESOURCES CORPORATION
$130,000,000
9 7/8% Senior Notes due 2011
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
April 8, 2004
Guggenheim Capital Markets, LLC
000 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Mission Resources Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell to Guggenheim Capital Markets, LLC
("Guggenheim") and Xxxxxx Xxxxxxx & Co. (together with Guggenheim, the "Initial
Purchasers"), upon the terms and subject to the conditions set forth in a
purchase agreement dated March 31, 2004 (the "Purchase Agreement"), $130,000,000
aggregate principal amount of its 9 7/8% Senior Notes due 2011 (the
"Securities") to be jointly and severally guaranteed (the "Guarantees") by the
subsidiaries of the Company listed on Schedule 1 and the signatories hereto
(collectively, the "Guarantors"). Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Purchase Agreement.
As an inducement to the Initial Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to the obligations of the
Initial Purchasers thereunder, the Company and the Guarantors agree with the
Initial Purchasers, for the benefit of the holders (including the Initial
Purchasers) of the Securities, the Exchange Securities (as defined herein) and
the Private Exchange Securities (as defined herein) (collectively, the
"Holders"), as follows:
1. Registered Exchange Offer. The Company shall (i)
prepare and, not later than 60 days following the date of original issuance of
the Securities (the "Issue Date"), file with the Commission a registration
statement (the "Exchange Offer Registration Statement") on an appropriate form
under the Securities Act with respect to a proposed offer to the Holders of the
Securities and the Guarantees (the "Exchange Offer") to issue and deliver to
such Holders, in exchange for the Securities and the Guarantees, a like
aggregate principal amount of debt securities of the Company and guarantees
thereof by the Guarantors (the "Exchange Securities") that are identical in all
material respects to the Securities, except for the transfer restrictions
relating to the Securities, (ii) use its reasonable best efforts to cause the
Exchange Offer Registration Statement to become effective under the Securities
Act no later than 180 days after the Issue Date and the Exchange Offer to be
consummated no later than 220 days after the Issue Date and (iii) keep the
Exchange Offer Registration Statement effective for not less than 30 days (or
longer, if required by applicable law) after the date on which notice of the
Exchange Offer is mailed to the Holders (such period being called the "Exchange
Offer Registration Period"). The Exchange Securities will be issued under the
Indenture or an indenture (the "Exchange Securities Indenture") between the
Company, the Guarantors and the Trustee or such other bank or trust company that
is reasonably satisfactory to the Initial Purchasers, as trustee (the "Exchange
Securities Trustee"), such indenture to be identical in all material respects to
the Indenture, except for the transfer restrictions relating to the Securities
(as described above).
An Exchange Offer Registration Statement pursuant to this
Section 1 or a Shelf Registration Statement pursuant to Section 2 hereof will
not be deemed to have become effective unless it has been declared effective by
the Commission; provided, however, that if, after it has been declared
effective, the offering of Exchange Securities pursuant to an Exchange Offer
Registration Statement or a Shelf Registration Statement is interfered with by
any stop order, injunction or other order or requirement of the Commission or
any other governmental agency or court, such Registration Statement will be
deemed not to have become effective during the period of such interference,
until the offering of Registrable Securities pursuant to such Registration
Statement may legally resume.
Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Exchange Offer, it being the
objective of such Exchange Offer to enable each Holder electing to exchange
Securities for Exchange Securities (assuming that such Holder (a) is not an
affiliate of the Company or an Exchanging Dealer (as defined herein) not
complying with the requirements of the next sentence, (b) is not an Initial
Purchaser holding Securities that have, or that are reasonably likely to have,
the status of an unsold allotment in an initial distribution, (c) acquires the
Exchange Securities in the ordinary course of such Holder's business and (d) has
no arrangements or understandings with any person to participate in the
distribution of the Exchange Securities) and to trade such Exchange Securities
from and after their receipt without any limitations or restrictions under the
Securities Act and without material restrictions under the securities laws of
the several states of the United States. The Company, the Guarantors, the
Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to
current interpretations by the Commission's staff of Section 5 of the Securities
Act, each Holder that is a broker-dealer electing to exchange Securities,
acquired for its own account as a result of market-making activities or other
trading activities, for Exchange Securities (an "Exchanging Dealer"), is
required to deliver a prospectus containing substantially the information set
forth in Annex A hereto on the cover, in Annex B hereto in the "Exchange Offer
Procedures" section and the "Purpose of the Exchange Offer" section and in Annex
C hereto in the "Plan of Distribution" section of such prospectus in connection
with a sale of any such Exchange Securities received by such Exchanging Dealer
pursuant to the Exchange Offer.
If, prior to the consummation of the Exchange Offer, any
Holder holds any Securities acquired by it that have, or that are reasonably
likely to be determined to have, the status of an unsold allotment in an initial
distribution, or any Holder is not entitled to participate in the Exchange
Offer, the Company shall, upon the request of any such Holder, simultaneously
with the delivery of the Exchange Securities in the Exchange Offer, issue and
deliver to any such Holder, in exchange for the Securities held by such Holder
(the "Private Exchange"), a like aggregate principal amount of debt securities
of the Company and guarantees thereof by the Guarantors (the "Private Exchange
Securities") that are identical in all material respects to the Exchange
Securities, except for the transfer restrictions relating to such Private
Exchange Securities. The Private Exchange Securities will be issued under the
same indenture as the Exchange Securities, and the Company shall use its
reasonable best efforts to cause the Private Exchange Securities to bear the
same CUSIP number as the Exchange Securities.
In connection with the Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus
forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and related
documents;
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(b) keep the Exchange Offer open for not less
than 30 days (or longer, if required by applicable law) after
the date on which notice of the Exchange Offer is mailed to
the Holders;
(c) utilize the services of a depositary for the
Exchange Offer with an address in the Borough of Manhattan,
The City of New York;
(d) permit Holders to withdraw tendered
Securities at any time prior to the close of business, New
York City time, on the last business day on which the Exchange
Offer shall remain open; and
(e) otherwise comply in all respects with all
laws that are applicable to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer
and any Private Exchange, as the case may be, the Company shall:
(a) accept for exchange all Securities tendered
and not validly withdrawn pursuant to the Exchange Offer and
the Private Exchange;
(b) deliver to the Trustee for cancellation all
Securities so accepted for exchange; and
(c) cause the Trustee or the Exchange Securities
Trustee, as the case may be, promptly to authenticate and
deliver to each Holder, Exchange Securities or Private
Exchange Securities, as the case may be, equal in principal
amount to the Securities of such Holder so accepted for
exchange.
The Company shall use its reasonable best efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement the
prospectus contained therein in order to permit such prospectus to be used by
all persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as such persons must comply with such requirements
in order to resell the Exchange Securities; provided that (i) in the case where
such prospectus and any amendment or supplement thereto must be delivered by an
Exchanging Dealer, such period shall be the lesser of 180 days and the date on
which all Exchanging Dealers have sold all Exchange Securities held by them and
(ii) the Company shall make such prospectus and any amendment or supplement
thereto available to any broker-dealer for use in connection with any resale of
any Exchange Securities for a period of not less than 180 days after the
consummation of the Exchange Offer.
The Indenture or the Exchange Securities Indenture, as the
case may be, shall provide that the Securities, the Exchange Securities and the
Private Exchange Securities shall vote and consent together on all matters as
one class and that none of the Securities, the Exchange Securities or the
Private Exchange Securities will have the right to vote or consent as a separate
class on any matter.
Interest on each Exchange Security and Private Exchange
Security issued pursuant to the Exchange Offer and in the Private Exchange will
accrue from the last interest payment date on which interest was paid on the
Securities surrendered in exchange therefor or, if no interest has been paid on
the Securities, from the Issue Date.
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Each Holder participating in the Exchange Offer shall be
required to represent to the Company that at the time of the consummation of the
Exchange Offer (i) any Exchange Securities received by such Holder will be
acquired in the ordinary course of business, (ii) such Holder will have no
arrangements or understanding with any person to participate in the distribution
of the Securities or the Exchange Securities within the meaning of the
Securities Act and (iii) such Holder is not an affiliate of the Company or, if
it is such an affiliate, such Holder will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent applicable.
The Exchange Offer and the Private Exchange shall be subject
to the condition that no action or proceeding shall have been instituted or
threatened in any court or by or before any governmental agency with respect to
the Exchange Offer or the Private Exchange which, in the judgment of the Company
and the Guarantors, would reasonably be expected to impair the ability of the
Company or the Guarantors to proceed with the Exchange Offer or the Private
Exchange. The Company and the Guarantors shall, to the extent such information
is available to the Company or the Guarantors, inform the Initial Purchasers of
the names and addresses of the Holders to whom the Exchange Offer is made,
subject to the right of any Holder to object to the disclosure of such
information with respect to such Holder, and the Initial Purchasers shall have
the right, subject to applicable law, to contact such Holders and otherwise
facilitate the tender of Registrable Securities in the Exchange Offer.
Upon consummation of the Exchange Offer in accordance with
this Agreement, the Company and the Guarantors shall have no further obligation
to register the Registrable Securities pursuant to this Section 1.
Notwithstanding any other provisions hereof, the Company will
ensure that (i) any Exchange Offer Registration Statement and any amendment
thereto and any prospectus forming part thereof and any supplement thereto
complies in all material respects with the Securities Act and the rules and
regulations of the Commission thereunder, (ii) any Exchange Offer Registration
Statement and any amendment thereto does not, when it becomes effective, contain
an 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
and (iii) any prospectus forming part of any Exchange Offer Registration
Statement, and any supplement to such prospectus, does not, as of the
consummation of the Exchange Offer, include an untrue statement of a material
fact or omit 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.
2. Shelf Registration. If (i) because of any change in
law or applicable interpretations thereof by the Commission's staff the Company
and the Guarantors determine after consultation with their outside counsel that
the Company or the Guarantors is not permitted to effect the Exchange Offer as
contemplated by Section 1 hereof, or (ii) for any other reason the Exchange
Offer is not consummated within 220 days after the Issue Date, or (iii) any
Initial Purchaser so requests with respect to Securities or Private Exchange
Securities not eligible to be exchanged for Exchange Securities in the Exchange
Offer and held by it following the consummation of the Exchange Offer, or (iv)
any applicable law or interpretations do not permit any Holder to participate in
the Exchange Offer, or (v) any Holder that participates in the Exchange Offer
does not receive freely transferable Exchange Securities in exchange for
tendered Securities, or (vi) the Company so elects, then the following
provisions shall apply:
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(a) The Company and the Guarantors shall file as
promptly as practicable (but in no event more than the later
of 60 days after so required or requested pursuant to this
Section 2 or 180 days after the Issue Date) with the
Commission (the "Shelf Filing Date"), and thereafter shall use
their reasonable best efforts to cause to be declared
effective, a shelf registration statement on an appropriate
form under the Securities Act relating to the offer and sale
of the Transfer Restricted Securities (as defined below) by
the Holders thereof from time to time in accordance with the
methods of distribution set forth in such registration
statement (hereafter, a "Shelf Registration Statement" and,
together with any Exchange Offer Registration Statement, a
"Registration Statement"). "Transfer Restricted Securities"
means each Security or Private Exchange Security until the
earliest to occur of: (i) the date on which such Security has
been exchanged for a freely transferable Exchange Security in
the Exchange Offer, (ii) the date on which such Security or
Private Exchange Security has been effectively registered
under the Securities Act and disposed of in accordance with
the Shelf Registration Statement or (iii) the date on which
such Security or Private Exchange Security is distributed to
the public pursuant to Rule 144 under the Securities Act or is
saleable pursuant to Rule 144(k) under the Securities Act.
(b) The Company and the Guarantors shall use
their reasonable best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the
prospectus forming part thereof to be used by Holders of
Transfer Restricted Securities for a period ending on the
earlier of (i) two years from the Issue Date or such shorter
period that will terminate when all the Transfer Restricted
Securities covered by the Shelf Registration Statement have
been sold pursuant thereto and (ii) the date on which the
Securities become eligible for resale without volume
restrictions pursuant to Rule 144 under the Securities Act (in
any such case, such period being called the "Shelf
Registration Period"). The Company and the Guarantors shall be
deemed not to have used their reasonable best efforts to keep
the Shelf Registration Statement effective during the
requisite period if they voluntarily take any action that
would result in Holders of Transfer Restricted Securities
covered thereby not being able to offer and sell such Transfer
Restricted Securities during that period, unless such action
is required by applicable law.
(c) Notwithstanding any other provisions hereof,
the Company will ensure that (i) any Shelf Registration
Statement and any amendment thereto and any prospectus forming
part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and
regulations of the Commission thereunder, (ii) any Shelf
Registration Statement and any amendment thereto (in either
case, other than with respect to information included therein
in reliance upon or in conformity with written information
furnished to the Company by or on behalf of any Holder
specifically for use therein (the "Holders' Information"))
does not contain an 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 and
(iii) any prospectus forming part of any Shelf Registration
Statement, and any supplement to such prospectus (in either
case, other than with respect to Holders' Information), does
not include an untrue
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statement of a material fact or omit 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.
(d) In the absence of the events described in
clauses (i) through (vi) of the first paragraph of this
Section 2, the Company and the Guarantors shall not be
permitted to discharge its obligations hereunder by means of
the filing of a Shelf Registration Statement.
3. Additional Interest. (a) The parties hereto agree
that the Holders of Transfer Restricted Securities will suffer damages if the
Company and the Guarantors fail to fulfill their obligations under Section 1 or
Section 2, as applicable, and that it would not be feasible to ascertain the
extent of such damages. Accordingly, if (i) the Exchange Offer Registration
Statement is not filed with the Commission on or prior to 60 days after the
Issue Date or the Shelf Registration Statement is not filed with the Commission
on or before the Shelf Filing Date, (ii) the Exchange Offer Registration
Statement is not declared effective within 180 days after the Issue Date or the
Shelf Registration Statement is not declared effective within 60 days after the
Shelf Filing Date or (iii) the Exchange Offer is not consummated on or prior to
220 days after the Issue Date (each such event referred to in clauses (i)
through (iii), a "Registration Default"), the Company and the Guarantors will be
jointly and severally obligated to pay additional interest ("Additional
Interest") to each Holder of Transfer Restricted Securities, during the period
of one or more such Registration Defaults, in an amount equal to one-half of one
percent (0.50%) per annum upon the occurrence of each Registration Default,
which rate will increase by one half of one percent (0.50%) at the beginning of
each succeeding 90-day period (or portion thereof) that such Additional Interest
continues to accrue under any such circumstance; provided, however, that the
maximum aggregate increase in the interest rate will in no event exceed one and
one-half percent (1.5%) per annum; provided further, that no Additional Interest
shall be payable if the Exchange Offer Registration Statement is not filed or
declared effective or the Exchange Offer is not consummated on account of the
reasons set forth in clause (i) of the first paragraph of Section 2 (it being
understood, however, that in any such case the Company and the Guarantors shall
be obligated to file a Shelf Registration Statement and additional interest
shall be payable if the Shelf Registration Statement is not declared effective
in accordance with clause (ii) of this paragraph (a)); provided further, that no
Additional Interest shall be payable if the Shelf Registration Statement is not
declared effective as set forth above because of a request under clause (iii) of
Section 2); and provided further, that Additional Interest shall only be payable
in case the Shelf Registration Statement is not declared effective as aforesaid.
Immediately following the cure of a Registration Default, the accrual of
Additional Interest with respect to that particular Registration Default will
cease. Immediately following the cure of all Registration Defaults or the date
on which the Exchange Securities are saleable pursuant to Rule 144(k) under the
1933 Act or any successor provision, the accrual of Additional Interest will
cease and the interest rate will revert to the original rate.
(b) If the Shelf Registration Statement is
declared effective but becomes unusable by the Holders of Registrable Securities
covered by such Shelf Registration Statement ("Shelf Registrable Securities")
for any reason, and the aggregate number of days in any consecutive 365 day
period for which the Shelf Registration Statement shall not be usable exceeds 30
days in the aggregate, then the interest rate borne by the Shelf Registrable
Securities will be increased by 0.50% per annum of the principal amount of the
Securities for the first 90-day period (or portion thereof) beginning on the
31st such day that such Shelf Registration
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Statement remains unusable. If the Shelf Registration Statement remains unusable
for 30 days during any 90-day period for which Additional Interest shall be
payable pursuant to this paragraph, then the interest rate borne by the Shelf
Registrable Securities during such 90-day period shall be increased by an
additional 0.50% per annum of the principal amount of the Securities at the
beginning of each such subsequent 90-day period; provided, however, that the
maximum aggregate increase in the interest rate as a result of a Shelf
Registration Statement being unusable will in no event exceed one and one-half
percent (1.5%) per annum. Upon the Shelf Registration Statement once again
becoming usable, the interest rate borne by the Shelf Registrable Securities
will be reduced to the interest rate in effect prior to the Shelf Registration
Statement becoming unusable. Additional Interest shall be computed based on the
actual number of days elapsed in each 90-day period for which Additional
Interest is due.
(c) The Company shall notify the Trustee and the
Paying Agent under the Indenture immediately upon the happening of each and
every Registration Default. The Company and the Guarantors shall pay the
Additional Interest due on the Transfer Restricted Securities by depositing with
the Paying Agent (which may not be the Company for these purposes), in trust,
for the benefit of the Holders thereof, prior to 10:00 a.m., New York City time,
on the next interest payment date specified by the Indenture and the Securities,
sums sufficient to pay the Additional Interest then due. The Additional Interest
due shall be payable on each interest payment date specified by the Indenture
and the Securities to the record holder entitled to receive the interest payment
to be made on such date. Each obligation to pay Additional Interest shall be
deemed to accrue from and including the date of the applicable Registration
Default.
(d) The parties hereto agree that the Additional
Interest provided for in this Section 3 constitute a reasonable estimate of and
are intended to constitute the sole damages that will be suffered by Holders of
Transfer Restricted Securities by reason of the failure of (i) the Shelf
Registration Statement or the Exchange Offer Registration Statement to be filed,
(ii) the Shelf Registration Statement to remain effective or (iii) the Exchange
Offer Registration Statement to be declared effective and the Exchange Offer to
be consummated, in each case to the extent required by this Agreement.
4. Registration Procedures. In connection with any
Registration Statement, the following provisions shall apply:
(a) The Company shall (i) furnish to each
Initial Purchaser, prior to the filing thereof with the Commission, a copy of
the Registration Statement and each amendment thereof and each supplement, if
any, to the prospectus included therein and shall use its reasonable best
efforts to reflect in each such document, when so filed with the Commission,
such comments as any Initial Purchaser may reasonably propose; (ii) include the
information set forth in Annex A hereto on the cover, in Annex B hereto in the
"Exchange Offer Procedures" section and the "Purpose of the Exchange Offer"
section and in Annex C hereto in the "Plan of Distribution" section of the
prospectus forming a part of the Exchange Offer Registration Statement, and
include the information set forth in Annex D hereto in the Letter of Transmittal
delivered pursuant to the Exchange Offer; and (iii) if requested by any Initial
Purchaser, include the information required by Items 507 or 508 of Regulation
S-K, as applicable, in the prospectus forming a part of the Exchange Offer
Registration Statement.
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(b) The Company shall advise each Initial
Purchaser, each Exchanging Dealer and the Holders (if applicable) and, if
requested by any such person, confirm such advice in writing (which advice
pursuant to clauses (ii)-(v) hereof shall be accompanied by an instruction to
suspend the use of the prospectus until the requisite changes have been made):
(i) when any Registration Statement and
any amendment thereto has been filed with the Commission and
when such Registration Statement or any post-effective
amendment thereto has become effective;
(ii) of any request by the Commission
for amendments or supplements to any Registration Statement or
the prospectus included therein or for additional information;
(iii) of the issuance by the Commission
of any stop order suspending the effectiveness of any
Registration Statement or the initiation of any proceedings
for that purpose;
(iv) of the receipt by the Company of
any notification with respect to the suspension of the
qualification of the Securities, the Exchange Securities or
the Private Exchange Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such
purpose; and
(v) of the happening of any event that
requires the making of any changes in any Registration
Statement or the prospectus included therein in order that the
statements therein are not misleading and do not omit to state
a material fact required to be stated therein or necessary to
make the statements therein not misleading.
(c) The Company and the Guarantors will make
every reasonable effort to obtain the withdrawal at the earliest practicable
time of any order suspending the effectiveness of any Registration Statement.
(d) The Company will furnish to each Holder of
Transfer Restricted Securities included within the coverage of any Shelf
Registration Statement, without charge, at least one conformed copy of such
Shelf Registration Statement and any post-effective amendment thereto, including
financial statements and schedules and, if any such Holder so requests in
writing, all exhibits thereto (including those, if any, incorporated by
reference).
(e) The Company will, during the Shelf
Registration Period, promptly deliver to each Holder of Transfer Restricted
Securities included within the coverage of any Shelf Registration Statement,
without charge, as many copies of the prospectus (including each preliminary
prospectus) included in such Shelf Registration Statement and any amendment or
supplement thereto as such Holder may reasonably request; and the Company
consents to the use of such prospectus or any amendment or supplement thereto by
each of the selling Holders of Transfer Restricted Securities in connection with
the offer and sale of the Transfer Restricted Securities covered by such
prospectus or any amendment or supplement thereto.
(f) The Company will furnish to each Initial
Purchaser and each Exchanging Dealer, and to any other Holder who so requests,
without charge, at least one
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conformed copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including financial statements and schedules
and, if any Initial Purchaser or Exchanging Dealer or any such Holder so
requests in writing, all exhibits thereto (including those, if any, incorporated
by reference).
(g) The Company will, during the Exchange Offer
Registration Period or the Shelf Registration Period, as applicable, promptly
deliver to each Initial Purchaser, each Exchanging Dealer and such other persons
that are required to deliver a prospectus following the Exchange Offer, without
charge, as many copies of the final prospectus included in the Exchange Offer
Registration Statement or the Shelf Registration Statement and any amendment or
supplement thereto as such Initial Purchaser, Exchanging Dealer or other persons
may reasonably request; and the Company and the Guarantors consent to the use of
such prospectus or any amendment or supplement thereto by any such Initial
Purchaser, Exchanging Dealer or other persons, as applicable, as aforesaid.
(h) In the case of a Shelf Registration, the
Company will notify each Holder of Registrable Securities, at least five
business days prior to filing, that a Shelf Registration Statement with respect
to the Registrable Securities is being filed and advising such Holders that the
distribution of Registrable Securities will be made in accordance with the
method selected by the Initial Purchasers, if any, or if no Initial Purchaser is
participating in the Shelf Registration, by the Holders of a majority of the
aggregate principal amount of Registrable Securities participating in the Shelf
Registration.
(i) Prior to the effective date of any
Registration Statement, the Company and the Guarantors will use their reasonable
best efforts to register or qualify, or cooperate with the Holders of
Securities, Exchange Securities or Private Exchange Securities included therein
and their respective counsel in connection with the registration or
qualification of, such Securities, Exchange Securities or Private Exchange
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions as any such Holder 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 Securities, Exchange Securities or Private Exchange
Securities covered by such Registration Statement; provided that the Company and
the Guarantors 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.
(j) The Company and the Guarantors will
cooperate with the Holders of Securities, Exchange Securities or Private
Exchange Securities to facilitate the timely preparation and delivery of
certificates representing Securities, Exchange Securities or Private Exchange
Securities to be sold pursuant to any Registration Statement free of any
restrictive legends and in such denominations and registered in such names as
the Holders thereof may request in writing prior to sales of Securities,
Exchange Securities or Private Exchange Securities pursuant to such Registration
Statement.
(k) If any event contemplated by Section
4(b)(ii) through (v) occurs during the period for which the Company and the
Guarantors are required to maintain an effective Registration Statement, the
Company will promptly prepare and file with the Commission 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
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purchasers of the Securities, Exchange Securities or Private Exchange Securities
from a Holder, the prospectus will not include an untrue statement of a material
fact or omit 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.
(l) Not later than the effective date of the
applicable Registration Statement, the Company will provide a CUSIP number for
the Securities, the Exchange Securities and the Private Exchange Securities, as
the case may be, and provide the applicable trustee with printed certificates
for the Securities, the Exchange Securities or the Private Exchange Securities,
as the case may be, in a form eligible for deposit with The Depository Trust
Company.
(m) The Company and the Guarantors will comply
with all applicable rules and regulations of the Commission and will make
generally available to its security holders as soon as practicable after the
effective date of the applicable Registration Statement an earning statement
satisfying the provisions of Section 11(a) of the Securities Act; provided that
in no event shall such earning statement be delivered later than 45 days after
the end of a 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 the applicable Registration Statement, which
statement shall cover such 12-month period.
(n) The Company and the Guarantors will cause
the Indenture or the Exchange Securities Indenture, as the case may be, to be
qualified under the Trust Indenture Act as required by applicable law in a
timely manner.
(o) The Company may require each Holder of
Transfer Restricted Securities to be registered pursuant to any Shelf
Registration Statement to furnish to the Company such information concerning the
Holder and the distribution of such Transfer Restricted Securities as the
Company may from time to time reasonably require for inclusion in such Shelf
Registration Statement, and the Company may exclude from such registration the
Transfer Restricted Securities of any Holder that fails to furnish such
information within a reasonable time after receiving such request.
(p) In the case of a Shelf Registration
Statement, each Holder of Transfer Restricted Securities to be registered
pursuant thereto agrees by acquisition of such Transfer Restricted Securities
that, upon receipt of any notice from the Company pursuant to Section 4(b)(ii)
through (v), such Holder will discontinue disposition of such Transfer
Restricted Securities until such Holder's receipt of copies of the supplemental
or amended prospectus contemplated by Section 4(k) or until advised in writing
(the "Advice") by the Company that the use of the applicable prospectus may be
resumed. If the Company shall give any notice under Section 4(b)(ii) through (v)
during the period that the Company is required to maintain an effective
Registration Statement (the "Effectiveness Period"), such Effectiveness Period
shall be extended by the number of days during such period from and including
the date of the giving of such notice to and including the date when each seller
of Transfer Restricted Securities covered by such Registration Statement shall
have received (x) the copies of the supplemental or amended prospectus
contemplated by Section 4(k) (if an amended or supplemental prospectus is
required) or (y) the Advice (if no amended or supplemental prospectus is
required).
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(q) In the case of a Shelf Registration
Statement, the Company and the Guarantors shall (i) enter into customary
agreements (including, if requested, an underwriting agreement in customary
form), (ii) cause the same to set forth indemnification provisions and
procedures comparable in scope to the indemnification provisions and procedures
set forth in Section 6 hereof with respect to the Initial Purchasers and all
other parties to be indemnified pursuant to said Section 6 or, at the request of
any underwriters, such other indemnification provisions customarily provided to
underwriters under the circumstances applicable to the offering; provided,
however, that such underwriting agreement shall contain indemnification
provisions and procedures regarding the indemnification of the Company and the
Guarantors with respect to information provided by the underwriter or by any
other party to be indemnified under Section 6 hereof, comparable in scope to the
indemnification provisions and procedures set forth in Section 6 hereof or, at
the request of the Company or the Guarantors, such other indemnification
provisions customarily provided under the circumstances applicable to the
offering, and (iii) take all such other action, if any, as Holders of a majority
in aggregate principal amount of the Securities, Exchange Securities and Private
Exchange Securities being sold or the managing underwriters (if any) shall
reasonably request in order to facilitate any disposition of Securities,
Exchange Securities or Private Exchange Securities pursuant to such Shelf
Registration Statement.
(r) In the case of a Shelf Registration
Statement, the Company shall (i) make reasonably available for inspection by a
representative of, and Special Counsel (as defined below) acting for, Holders of
a majority in aggregate principal amount of the Securities, Exchange Securities
and Private Exchange Securities being sold and any underwriter participating in
any disposition of Securities, Exchange Securities or Private Exchange
Securities pursuant to such Shelf Registration Statement, all relevant financial
and other records, pertinent corporate documents and properties of the Company
and its subsidiaries and (ii) use its reasonable best efforts to have its
officers, directors, employees, accountants and counsel supply all relevant
information reasonably requested by such representative, Special Counsel or any
such underwriter (an "Inspector") in connection with such Shelf Registration
Statement.
(s) In the case of a Shelf Registration
Statement, the Company shall, if requested by Holders of a majority in aggregate
principal amount of the Securities, Exchange Securities and Private Exchange
Securities being sold, their Special Counsel or the managing underwriters (if
any) in connection with such Shelf Registration Statement, use its reasonable
best efforts to cause (i) its counsel to deliver an opinion relating to the
Shelf Registration Statement and the Securities, Exchange Securities or Private
Exchange Securities, as applicable, that (x) the Company and the Guarantors have
duly authorized, executed and delivered the Exchange Securities and/or Private
Exchange Securities, as applicable, and the related indenture, and (y) each of
the Exchange Securities and related indenture constitutes a legal, valid and
binding obligation of the Company and the Guarantors, enforceable against the
Company and the Guarantors in accordance with its terms (with customary
exceptions); (ii) its officers to execute and deliver all customary documents
and certificates requested by Holders of a majority in aggregate principal
amount of the Securities, Exchange Securities and Private Exchange Securities
being sold, their Special Counsel or the managing underwriters (if any); and
(iii) its independent public accountants to provide a comfort letter or letters
in customary form, subject to receipt of appropriate documentation as
contemplated, and only if permitted, by Statement of Auditing Standards No. 72.
11
(t) In the case of a Shelf Registration, if so
requested by the Initial Purchasers, if any, or the Holders of a majority of the
aggregate principal amount of Registrable Securities, or if requested by the
underwriter or underwriters as appointed by the Initial Purchasers, if any, the
Company shall (i) use its reasonable best efforts to cause all Exchange
Securities and Shelf Registrable Securities to be listed on any securities
exchange on which similar debt securities issued by the Company or the
Guarantors are then listed, and (ii) use its reasonable best efforts to cause
the Shelf Registrable Securities to be rated by two nationally recognized
statistical rating agencies.
(u) The Company shall cooperate and assist in
any filings required to be made with the NASD and, in the case of a Shelf
Registration, in the performance of any due diligence investigation by any
underwriter as appointed by the Initial Purchasers, if any, or the Holders of a
majority of the aggregate principal amount of Registrable Securities and such
underwriter's counsel (including any "qualified independent underwriter" that is
required to be retained in accordance with the rules and regulations of the
NASD).
5. Registration Expenses. The Company and the Guarantors
will bear all expenses incurred in connection with the performance of its
obligations under Sections 1, 2, 3 and 4 and the Company will reimburse the
Initial Purchasers and the Holders for the reasonable fees and disbursements of
one firm of attorneys (in addition to any local counsel) chosen by the Holders
of a majority in aggregate principal amount of the Securities, the Exchange
Securities and the Private Exchange Securities to be sold pursuant to each
Registration Statement (the "Special Counsel") acting for the Initial Purchasers
or Holders in connection therewith.
6. Indemnification. (a) In the event of a Shelf
Registration Statement or in connection with any prospectus delivery pursuant to
an Exchange Offer Registration Statement by an Initial Purchaser or Exchanging
Dealer, as applicable, the Company and each of the Guarantors shall jointly and
severally indemnify and hold harmless each Holder (including, without
limitation, any such Initial Purchaser or Exchanging Dealer), its affiliates,
their respective officers, directors, employees, representatives and agents, and
each person, if any, who controls such Holder within the meaning of the
Securities Act or the Exchange Act (collectively referred to for purposes of
this Section 6 and Section 7 as a Holder) from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, without limitation, any loss, claim, damage, liability or action
relating to purchases and sales of Securities, Exchange Securities or Private
Exchange Securities), to which that Holder may become subject, whether commenced
or threatened, under the Securities Act, the Exchange Act, any other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material fact contained in
any such Registration Statement or any prospectus forming part thereof or in any
amendment or supplement thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and shall reimburse each Holder promptly
upon demand for any legal or other expenses reasonably incurred by that Holder
in connection with investigating or defending or preparing to defend against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company and the Guarantors shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, an untrue statement or alleged untrue statement in or omission or
12
alleged omission from any of such documents in reliance upon and in conformity
with any Holders' Information; and provided, further, that with respect to any
such untrue statement in or omission from any related preliminary prospectus,
the indemnity agreement contained in this Section 6(a) shall not inure to the
benefit of any Holder from whom the person asserting any such loss, claim,
damage, liability or action received Securities, Exchange Securities or Private
Exchange Securities to the extent that such loss, claim, damage, liability or
action of or with respect to such Holder results from the fact that both (A) a
copy of the final prospectus and any amendment or supplement thereto was not
sent or given to such person at or prior to the written confirmation of the sale
of such Securities, Exchange Securities or Private Exchange Securities to such
person and (B) the untrue statement in or omission from the related preliminary
prospectus was corrected in the final prospectus or any amendment or supplement
thereto unless, in either case, such failure to deliver the final prospectus or
any amendment or supplement thereto was a result of non-compliance by the
Company with Section 4(d), 4(e), 4(f) or 4(g).
(a) In the event of a Shelf Registration
Statement, each Holder shall indemnify and hold harmless the Company, each
Guarantor and their respective affiliates, their respective officers, directors,
employees, representatives and agents, and each person, if any, who controls the
Company or any Guarantor within the meaning of the Securities Act or the
Exchange Act (collectively referred to for purposes of this Section 6(b),
Section 6(d) and Section 7 as the Company), from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof, to
which the Company may become subject, whether commenced or threatened, under the
Securities Act, the Exchange Act, any other federal or state statutory law or
regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any such Registration
Statement or any prospectus forming part thereof or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with any Holders' Information furnished to
the Company by such Holder, and shall reimburse the Company for any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending or preparing to defend against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action as such expenses are incurred; 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 Securities, Exchange
Securities or Private Exchange Securities pursuant to such Shelf Registration
Statement.
(b) Promptly after receipt by an indemnified
party under this Section 6 of notice of any claim or the commencement of any
action, the indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party pursuant to Section 6(a) or 6(b), notify the
indemnifying party in writing of the claim or the commencement of that action;
provided, however, that the failure to notify the indemnifying party shall not
relieve it from any liability which it may have under this Section 6 except to
the extent that it has been materially prejudiced by such failure; and provided,
further, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have to an indemnified party otherwise than
under this Section 6. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to
13
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than the reasonable costs of investigation; provided, however,
that an indemnified party shall have the right to employ its own counsel in any
such action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based upon written advice of counsel to the indemnified party) that
there may be legal defenses available to it or other indemnified parties that
are different from or in addition to those available to the indemnifying party,
(3) a conflict or potential conflict exists (based upon written advice of
counsel to the indemnified party) between the indemnified party and the
indemnifying party (in which case the indemnifying party will not have the right
to direct the defense of such action on behalf of the indemnified party) or (4)
the indemnifying party has not in fact employed counsel reasonably satisfactory
to the indemnified party to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees, disbursements and other charges of more than one separate
firm of attorneys (in addition to any local counsel) at any one time for all
such indemnified party or parties. Each indemnified party, as a condition of the
indemnity agreements contained in Sections 6(a) and 6(b), shall use all
reasonable efforts to cooperate with the indemnifying party in the defense of
any such action or claim. No indemnifying party shall be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld), effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement (i) includes
an unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding and (ii) does not include a
statement or admission of fault, culpability or a failure to act, by or on
behalf of the indemnified party.
(d) The Company shall not be liable for any
settlement of any proceedings effected without its written consent (which
consent shall not be unreasonably withheld). Notwithstanding the immediately
preceding sentence, if at any time an indemnified party shall have requested the
Company to reimburse such indemnified party for legal or other expenses in
connection with investigating, responding to or defending any proceedings as
contemplated by Section 6(a), the Company shall be liable for any settlement of
any proceedings effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by the Company of such request for
the reimbursement, (ii) the Company shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such settlement and
(iii)
14
the Company shall not have responded in writing to such request, specifying
those expenses that it has chosen not to reimburse and the reason for such
non-reimbursement, prior to the date of such settlement. The Company shall not,
without the prior written consent of an indemnified party (which consent shall
not be unreasonably withheld), effect any settlement of any pending or
threatened proceedings in respect of which indemnity could have been sought
hereunder by such indemnified party unless such settlement (x) includes an
unconditional release of such indemnified party in form and substance
satisfactory to such indemnified party from all liability on claims that are the
subject matter of such proceedings and (y) does not include any statement as to
or any admission of fault, culpability or failure to act by or on behalf of any
indemnified party. In addition, except as otherwise set forth in this paragraph,
an indemnified party shall not, without the prior written consent of the Company
(which consent shall not be unreasonably withheld), effect any settlement of any
pending or threatened proceedings in respect of which indemnity could have been
sought hereunder by such indemnified party unless such settlement (x) includes
an unconditional release of the Company in form and substance satisfactory to
the Company from all liability on claims that are the subject matter of such
proceedings and (y) does not include any statement as to or any admission of
fault, culpability or failure to act by or on behalf of the Company.
7. Contribution. If the indemnification provided for in
Section 6 is unavailable or insufficient to hold harmless an indemnified party
under Section 6(a) or 6(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company and the Guarantors from
the offering and sale of the Securities, on the one hand, and a Holder with
respect to the sale by such Holder of Securities, Exchange Securities or Private
Exchange Securities, on the other, or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and each of the Guarantors on
the one hand and such Holder on the other with respect to the statements or
omissions that resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Company and each of the Guarantors on the one
hand and a Holder on the other with respect to such offering and such sale shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Securities (before deducting expenses) received by or on behalf
of the Company and each of the Guarantors, on the one hand, and the total
discounts and commissions received by such Holder with respect to the
Securities, Exchange Securities or Private Exchange Securities, on the other,
bear to the total gross proceeds from the sale of Securities, Exchange
Securities or Private Exchange Securities. The relative fault 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 the Company and each of the Guarantors or information
supplied by the Company and each of the Guarantors on the one hand or to any
Holders' Information supplied by such Holder on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The parties hereto agree
that it would not be just and equitable if contributions pursuant to this
Section 7 were to be determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable considerations referred
to herein. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
7 shall be deemed to include any legal or other expenses reasonably incurred by
15
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, an indemnifying party that is
a Holder of Securities, Exchange Securities or Private Exchange Securities shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Securities, Exchange Securities or Private Exchange
Securities sold by such indemnifying party to any purchaser exceeds the amount
of any damages which such indemnifying party has otherwise paid or become liable
to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
8. Rules 144 and 144A. The Company shall use its
reasonable best efforts to file the reports required to be filed by it under the
Securities Act and the Exchange Act in a timely manner and, if at any time the
Company is not required to file such reports, it will, upon the written request
of any Holder of Transfer Restricted Securities, make publicly available other
information so long as necessary to permit sales of such Holder's securities
pursuant to Rules 144 and 144A. The Company and the Guarantors covenant that
they will take such further action as any Holder of Transfer Restricted
Securities may reasonably request, all to the extent required from time to time
to enable such Holder to sell Transfer Restricted Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rules 144 and 144A (including, without limitation, the requirements
of Rule 144A(d)(4)). Upon the written request of any Holder of Transfer
Restricted Securities, the Company and the Guarantors shall deliver to such
Holder a written statement as to whether it has complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 8 shall be deemed to
require the Company to register any of its securities pursuant to the Exchange
Act.
9. Underwritten Registrations. If any of the Transfer
Restricted Securities covered by any Shelf Registration Statement are to be sold
in an underwritten offering, the investment banker or investment bankers and
manager or managers that will administer the offering will be selected by the
Holders of a majority in aggregate principal amount of such Transfer Restricted
Securities included in such offering, subject to the consent of the Company
(which shall not be unreasonably withheld or delayed), and such Holders shall be
responsible for all underwriting commissions and discounts in connection
therewith.
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Transfer
Restricted Securities on the basis reasonably provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
10. 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 Securities, the
16
Exchange Securities and the Private Exchange Securities, taken as a single
class. Notwithstanding the foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose Securities, Exchange Securities or Private Exchange
Securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other Holders may be given by
Holders of a majority in aggregate principal amount of the Securities, the
Exchange Securities and the Private Exchange Securities being sold by such
Holders pursuant to such Registration Statement.
(b) Notices. All notices and other
communications provided for or permitted hereunder shall be made in writing by
hand-delivery, first-class mail, telecopier or air courier guaranteeing next-day
delivery:
(1) if to a Holder, at the most current
address given by such Holder to the Company in accordance
with the provisions of this Section 10(b), which address
initially is, with respect to each Holder, the address of
such Holder maintained by the Registrar under the
Indenture, with a copy in like manner to Guggenheim
Capital Markets, LLC and each Initial Purchaser;
(2) if to an Initial Purchaser,
initially at its address set forth in the Purchase
Agreement;
(3) if to the Company, initially at the
address of the Company set forth in the Purchase
Agreement; and
(4) if to the Guarantors, initially at
the address of the Guarantors set forth in the Purchase
Agreement.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; one business
day after being delivered to a next-day air courier; five business days after
being deposited in the mail; and when receipt is acknowledged by the recipient's
telecopier machine, if sent by telecopier.
(c) Successors And Assigns. This Agreement shall
be binding upon the Company, the Guarantors and their respective successors and
assigns, including, without limitation and without the need for an express
assignment, subsequent Holders; provided, however, that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement or the Indenture.
If any transferee of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable 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 the Indenture, and such person
shall be entitled to receive the benefits hereof.
(d) Counterparts. This Agreement may be executed
in any number of counterparts (which may be delivered in original form or by
telecopier) 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.
17
(e) Third Party Beneficiaries. The Initial
Purchasers (even if the Initial Purchasers are not Holders of Registrable
Securities) shall be third party beneficiaries to the agreements made hereunder
between the Company and the Guarantors, on the one hand, and the Holders, on the
other hand, and shall have the right to enforce such agreements directly to the
extent they deem such enforcement necessary or advisable to protect their rights
or the rights of Holders hereunder. Each Holder of Registrable Securities shall
be a third party beneficiary to the 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 it deems such enforcement necessary or advisable to protect its rights
hereunder.
(f) Definition of Terms. For purposes of this
Agreement, (a) the term "business day" means any day on which the New York Stock
Exchange, Inc. is open for trading, (b) the term "subsidiary" has the meaning
set forth in Rule 405 under the Securities Act and (c) except where otherwise
expressly provided, the term "affiliate" has the meaning set forth in Rule 405
under the Securities Act.
(g) Headings. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
(i) Remedies. In the event of a breach by the
Company or any of the Guarantors or by any Holder of any of their respective
obligations under this Agreement, each Holder or the Company or any Guarantor,
as the case may be, in addition to being entitled to exercise all rights granted
by law, including recovery of damages (other than the recovery of damages for a
breach by the Company or any Guarantor of their obligations under Sections 1 or
2 hereof for which additional interest has been paid pursuant to Section 3
hereof), will be entitled to specific performance of its rights under this
Agreement. The Company, each Guarantor and each Holder agree that monetary
damages would not be adequate compensation for any loss incurred by reason of a
breach by it of any of the provisions of this Agreement and hereby further agree
that, in the event of any action for specific performance in respect of such
breach, it shall waive the defense that a remedy at law would be adequate.
(j) No Inconsistent Agreements. Each of the
Company and each Guarantor represents, warrants and agrees that (i) it has not
entered into, shall not, on or after the date of this Agreement, enter into any
agreement that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof, (ii) it has not
previously entered into any agreement which remains in effect granting any
registration rights with respect to any of its debt securities to any person and
(iii) without limiting the generality of the foregoing, without the written
consent of the Holders of a majority in aggregate principal amount of the then
outstanding Transfer Restricted Securities, it shall not grant to any person the
right to request the Company to register any debt securities of the Company
under the Securities Act unless the rights so granted are not in conflict or
inconsistent with the provisions of this Agreement.
(k) No Piggyback on Registrations. Neither the
Company nor the Guarantors nor any of its security holders (other than the
Holders of Transfer Restricted
18
Securities in such capacity) shall have the right to include any securities of
the Company in any Shelf Registration or Exchange Offer other than Transfer
Restricted Securities.
(l) Severability. The remedies provided herein
are cumulative and not exclusive of any remedies provided by law. If any term,
provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their reasonable best efforts
to find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms, provisions, covenants
and restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
19
Please confirm that the foregoing correctly sets forth the
agreement among the Company and the Initial Purchasers.
Very truly yours,
MISSION RESOURCES CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
BLACK HAWK OIL COMPANY
By /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
MISSION HOLDINGS LLC
By /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Manager
MISSION E&P LIMITED PARTNERSHIP
By: Black Hawk Oil Company
General Partner
By /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
Accepted:
GUGGENHEIM CAPITAL MARKETS, LLC
By /s/ Xxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxx Xxxxx
Title: Senior Managing Director
SCHEDULE I
GUARANTORS
Black Hawk Oil Company
Mission Holdings LLC
Mission E&P Limited Partnership
S-1
ANNEX A
Each broker-dealer that receives Exchange Securities for its
own account pursuant to the Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Securities. The
Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Securities received in exchange for
Securities where such Securities were acquired by such broker-dealer as a result
of market-making activities or other trading activities. The Company has agreed
that, for a period of 180 days after the Expiration Date (as defined herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
A-1
ANNEX B
Each broker-dealer that receives Exchange Securities for its
own account in exchange for Securities, where such Securities were acquired by
such broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution".
B-1
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its
own account pursuant to the Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Company has agreed
that, for a period of 180 days after the Expiration Date, it will make this
prospectus, as amended or supplemented, available to any broker-dealer for use
in connection with any such resale. In addition, until _______________, 200_,
all dealers effecting transactions in the Exchange Securities may be required to
deliver a prospectus.
The Company will not receive any proceeds from any sale of
Exchange Securities by broker-dealers. Exchange Securities received by
broker-dealers for their own account pursuant to the Exchange Offer may be sold
from time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange
Securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or at negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such broker-dealer or the
purchasers of any such Exchange Securities. Any broker-dealer that resells
Exchange Securities that were received by it for its own account pursuant to the
Exchange Offer and any broker or dealer that participates in a distribution of
such Exchange Securities may be deemed to be an "underwriter" within the meaning
of the Securities Act and any profit on any such resale of Exchange Securities
and any commission or concessions received by any such persons may be deemed to
be underwriting compensation under the Securities Act. The Letter of Transmittal
states that, by acknowledging that it will deliver and by delivering a
prospectus, a broker- dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date the Company
will promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
Holders of the Securities) other than commissions or concessions of any broker-
dealers and will indemnify the Holders of the Securities (including any broker-
dealers) against certain liabilities, including liabilities under the Securities
Act.
C-1
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
Address:
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Securities that were acquired as
a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
D-1
