REGISTRATION RIGHTS AGREEMENT by and among SANDRIDGE ENERGY, INC. and the Guarantors party hereto for the benefit of the Holders from time to time of the Senior Notes Due 2015 and Senior Floating Rate Notes Due 2014 Dated as of May 1, 2008
Exhibit 4.2
EXECUTION VERSION
by and among
XXXXXXXXX ENERGY, INC. and
the Guarantors party hereto
for the
benefit of the
Holders from time to time
of the
Senior Notes Due 2015 and
Senior Floating Rate Notes Due 2014
benefit of the
Holders from time to time
of the
Senior Notes Due 2015 and
Senior Floating Rate Notes Due 2014
Dated as of May 1, 2008
This Registration Rights Agreement (this “Agreement”) is made and entered into as of May 1,
2008, by and among XxxxXxxxx Energy, Inc., a Delaware corporation (the “Company”), and the
Guarantors party hereto for the benefit of the holders from time to time of the Initial Securities.
The Company, the Guarantors and the Xxxxx Fargo Bank, National Association, a national banking
association (the “Trustee”) are party to an indenture (the “Indenture”) dated as of May 1, 2008,
which relates to $650,000,000 aggregate principal amount of the Company’s Senior Notes Due 2015
(the “2015 Notes”) and $350,000,000 aggregate principal amount of the Company’s Senior Floating
Rate Notes Due 2014 (the “2014 Notes” and together with the 2015 Notes, the “Initial Notes”). The
Initial Notes are fully and unconditionally guaranteed by the Guarantors (the “Guarantees”)
pursuant to the Indenture. The Initial Notes and the Guarantees are herein collectively referred
to as the “Initial Securities.”
The parties hereby agree as follows:
Section 1. Definitions. As used in this Agreement, the following capitalized terms
shall have the following meanings:
Additional Interest: As defined in Section 5 below.
Additional Interest Payment Date: With respect to the Initial Securities, each Interest
Payment Date.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: Any day other than a Saturday, Sunday or U.S. federal holiday or a day on which
banking institutions or trust companies located in New York, New York are authorized or obligated
to be closed.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummate: A registered Exchange Offer shall be deemed “Consummated” for purposes of this
Agreement upon the occurrence of (i) the filing and effectiveness under the Securities Act of the
Exchange Offer Registration Statement relating to the Exchange Securities to be issued in the
Exchange Offer, (ii) the maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum period required pursuant
to Section 3(b) hereof, and (iii) the delivery by the Company to the Trustee under the Indenture of
Exchange Securities in the same aggregate principal amount as the aggregate principal amount of
Initial Securities that were tendered by Holders thereof pursuant to the Exchange Offer.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The registration by the Company under the Securities Act of the Exchange
Securities pursuant to a Registration Statement pursuant to which the Company offers the Holders of
all outstanding Transfer Restricted Securities the opportunity to exchange all such outstanding
Transfer Restricted Securities held by such Holders for Exchange Securities in an aggregate
principal amount equal to the aggregate principal amount of the Transfer Restricted Securities
tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: A Registration Statement relating to the Exchange
Offer, including the related Prospectus.
Exchange Securities: The 2015 Note and the 2014 Notes, of the respective same series under
the Indenture as the Initial Securities, to be issued to Holders in exchange for Transfer
Restricted Securities pursuant to this Agreement.
FINRA: Financial Institutions Regulatory Authority, Inc.
Freely Tradable: An Initial Security shall be deemed to be “Freely Tradable” at any time of
determination if at such time (i) it may be sold to the public pursuant to Rule 144 under the
Securities Act by a person that is not an “affiliate” (as defined in Rule 144 under the Securities
Act) of the Company and (ii) it does not bear any restrictive legends relating to the Securities
Act.
Guarantors: As defined in the Indenture.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: As defined in the preamble hereto.
Initial Notes: As defined in the preamble hereto.
Initial Securities: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture and the Securities.
Person: An individual, partnership, corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement, as amended or supplemented
by any prospectus supplement and by all other amendments thereto, including post-effective
amendments, and all material incorporated by reference into such Prospectus.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company relating to (a) an offering
of Exchange Securities pursuant to an Exchange Offer or (b) the registration for resale of Transfer
Restricted Securities pursuant to the Shelf Registration Statement, which is filed
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pursuant to the provisions of this Agreement, in each case, including the Prospectus included
therein, all amendments and supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
Securities: The Initial Securities and the Exchange Securities.
Securities Act: The Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 4(a) hereof.
Shelf Registration Statement: As defined in Section 4(a) hereof.
Trust Indenture Act: The Trust Indenture Act of 1939, as amended.
Transfer Restricted Securities: Each Initial Security, until the earliest to occur of the
date on which such Initial Security (a) is exchanged in the Exchange Offer and entitled to be
resold to the public by the Holder thereof without complying with the prospectus delivery
requirements of the Securities Act, (b) has been effectively registered under the Securities Act
and disposed of in accordance with a Shelf Registration Statement, (c) is Freely Tradable or (d) is
distributed by a Broker-Dealer pursuant to the “Plan of Distribution” contemplated by the Exchange
Offer Registration Statement (including delivery of the Prospectus contained therein).
Underwritten Registration or Underwritten Offering: A registration in which securities of the
Company are sold to an underwriter for reoffering to the public.
Section 2. Securities Subject to this Agreement.
(a) Transfer Restricted Securities. The securities entitled to the benefits of this
Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to be a holder of Transfer
Restricted Securities (each, a “Holder”) whenever such Person owns Transfer Restricted Securities.
Section 3. Registered Exchange Offer.
(a) If any of the Initial Securities are not Freely Tradable by November 30, 2008, then
unless the Exchange Offer shall not be permissible under applicable law or Commission policy (after
the procedures set forth in Section 6(a) below have been complied with), each of the Company and
the Guarantors shall (i) cause to be filed with the Commission a Registration Statement under the
Securities Act relating to the Exchange Securities and the Exchange Offer, (ii) use their best
efforts to cause such Registration Statement to become effective under the Securities Act, (iii) in
connection with the foregoing, (A) file all pre-effective amendments to such Registration Statement
as may be necessary in order to cause such Registration Statement to become effective, (B) if
applicable, file a post-effective amendment to such Registration Statement pursuant to Rule 430A
under the Securities Act and (C) cause all necessary filings in connection with the registration
and qualification of the Exchange Securities to be made under the state securities or blue sky laws
of such jurisdictions as are necessary to permit
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Consummation of the Exchange Offer, and (iv) upon the effectiveness of such Registration
Statement, commence the Exchange Offer. The Company shall take each of the steps set forth in
clauses (i) through (iv) above as of such date that the Exchange Offer shall be Consummated as of
the date set forth in Section 3(b) below. The Exchange Offer shall be on the appropriate form
permitting registration of the Exchange Securities to be offered in exchange for the Transfer
Restricted Securities and to permit resales of Initial Securities held by Broker-Dealers as
contemplated by Section 3(c) below.
(b) If an Exchange Offer Registration Statement is required by Section 3(a) above, the
Company and the Guarantors shall cause the Exchange Offer Registration Statement to be effective
continuously and shall keep the Exchange Offer open for 30 calendar days (or longer if required by
applicable law) days after the date notice of the Exchange Offer is mailed to the Holders. The
Company and the Guarantors shall cause the Exchange Offer to comply with all applicable federal and
state securities laws. No securities other than the Exchange Securities shall be included in the
Exchange Offer Registration Statement. If an Exchange Offer Registration Statement is required by
Section 3(a) above, each of the Company and the Guarantors shall use their best efforts to cause
the Exchange Offer to be Consummated on the earliest practicable date after the Exchange Offer
Registration Statement has become effective, but in no event later than November 30, 2008.
(c) The Company shall indicate in a “Plan of Distribution” section contained in the
Prospectus forming a part of the Exchange Offer Registration Statement that any Broker-Dealer who
holds Initial Securities that are Transfer Restricted Securities and that were acquired for its own
account as a result of market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company), may exchange such Initial Securities
pursuant to the Exchange Offer; however, such Broker-Dealer may be deemed to be an “underwriter”
within the meaning of the Securities Act and must, therefore, deliver a prospectus meeting the
requirements of the Securities Act in connection with any resales of the Exchange Securities
received by such Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may be
satisfied by the delivery by such Broker-Dealer of the Prospectus contained in the Exchange Offer
Registration Statement. Such “Plan of Distribution” section shall also contain all other
information with respect to such resales by Broker-Dealers that the Commission may require in order
to permit such resales pursuant thereto, but such “Plan of Distribution” shall not name any such
Broker-Dealer or disclose the amount of Initial Securities 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.
If an Exchange Offer Registration Statement is required by Section 3(a) above, the Company and
the Guarantors shall use their best efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented and amended as required by the provisions of Section 6(c)
below to the extent necessary to ensure that it is available for resales of Initial Securities
acquired by Broker-Dealers for their own accounts as a result of market-making activities or other
trading activities, and to ensure that it conforms with the requirements of this Agreement, the
Securities Act and the policies, rules and regulations of the Commission as announced from time to
time, for a period ending on the earlier of (i) 180 days from the date on which the Exchange Offer
Registration Statement is declared effective and (ii) the date on which
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Broker Dealers are no longer required to deliver a prospectus in connection with market-making
or other trading activities.
The Company shall provide sufficient copies of the latest version of such Prospectus to
Broker-Dealers promptly upon request at any time during such 180-day (or shorter as provided in the
foregoing sentence) period in order to facilitate such resales.
Section 4. Shelf Registration.
(a) Shelf Registration. If any of the Initial Securities are not Freely Tradable by November
30, 2008 and (i) the Company and the Guarantors are not required to file an Exchange Offer
Registration Statement or to consummate the Exchange Offer because the Exchange Offer is not
permitted by applicable law or Commission policy (after the procedures set forth in Section 6(a)
below have been complied with), (ii) for any reason the Exchange Offer is not Consummated by
November 30, 2008, or (iii) with respect to any Holder of Transfer Restricted Securities (A) such
Holder is prohibited by applicable law or Commission policy from participating in the Exchange
Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange
Offer to the public without delivering a prospectus and that the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for such resales by such
Holder, or (C) such Holder is a Broker-Dealer and holds Initial Securities acquired directly from
the Company or one of its affiliates, then, upon such Holder’s request, the Company and the
Guarantors shall
(x) cause to be filed a shelf registration statement pursuant to Rule 415 under the
Securities Act, which may be an amendment to the Exchange Offer Registration Statement (in
either event, the “Shelf Registration Statement”) on or prior to the earliest to occur of
(1) the 30th day after the date on which the Company determines that it is not
required to file the Exchange Offer Registration Statement, (2) November 30, 2008 and (3)
the 30th day after the date on which the Company receives notice from a Holder of
Transfer Restricted Securities as contemplated by clause (iii) above, but in no event
earlier than the 30th day after the Closing Date (or if such 30th day
is not a Business Day, the next succeeding Business Day) (such date being the “Shelf Filing
Deadline”), which Shelf Registration Statement shall provide for resales of all Transfer
Restricted Securities the Holders of which shall have provided the information required
pursuant to Section 4(b) hereof; and
(y) use their best efforts to cause such Shelf Registration Statement to be declared
effective under the Securities Act on or before the 30th day after the Shelf Filing Deadline
(or if such 30th day is not a Business Day, the next succeeding Business Day).
Each of the Company and the Guarantors shall use its best efforts to keep such Shelf
Registration Statement continuously effective, supplemented and amended as required by the
provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure that it is available
for resales of Initial Securities by the Holders of Transfer Restricted Securities entitled to the
benefit of this Section 4(a), and to ensure that it conforms with the requirements of this
Agreement, the Securities Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of at least one year following the Closing Date.
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(b) Provision by Holders of Certain Information in Connection with the Shelf Registration
Statement. No Holder of Transfer Restricted Securities may include any of its Transfer Restricted
Securities in any Shelf Registration Statement pursuant to this Agreement unless and until such
Holder furnishes to the Company in writing, within 20 Business Days after receipt of a request
therefor, such information as the Company may reasonably request for use in connection with any
Shelf Registration Statement or Prospectus or preliminary Prospectus included therein. Each Holder
as to which any Shelf Registration Statement is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
Section 5. Additional Interest. If any of the Initial Securities are not Freely
tradable by November 30, 2008 and (i) any Shelf Registration Statement has not been declared
effective by the Commission on or prior to the date specified for such effectiveness in this
Agreement, (ii) the Exchange Offer has not been Consummated by November 30, 2008 or (iii) any
Registration Statement required by this Agreement is filed and declared effective but shall
thereafter cease to be effective or fail to be usable for its intended purpose without being
succeeded immediately by a post-effective amendment to such Registration Statement that cures such
failure and that is itself immediately declared effective (each such event referred to in clauses
(i) through (iii), a “Registration Default”), the Company hereby agrees that the interest rate
borne by the Transfer Restricted Securities shall be increased by an amount (“Additional Interest”)
equal to 0.25% per annum during the 90-day period immediately following the occurrence of any
Registration Default until the earlier of the date on which all of the Initial Securities are
Freely Tradable and such time as no Registration Default is in effect, which amount shall increase
by 0.25% per annum at the end of each subsequent 90-day period, but in no event shall such increase
exceed 0.50% per annum. Following the cure of all Registration Defaults relating to any particular
Transfer Restricted Securities, the interest rate borne by the relevant Transfer Restricted
Securities will be reduced to the original interest rate borne by such Transfer Restricted
Securities; provided, however, that, if after any such reduction in interest rate, a different
Registration Default occurs, the interest rate borne by the relevant Transfer Restricted Securities
shall again be increased pursuant to the foregoing provisions.
All obligations of the Company and the Guarantors set forth in the preceding paragraph that
are outstanding with respect to any Transfer Restricted Security at the time such security ceases
to be a Transfer Restricted Security shall survive until such time as all such obligations with
respect to such security shall have been satisfied in full.
Section 6. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with the Exchange Offer, the
Company and the Guarantors shall comply with all of the provisions of Section 6(c) below, shall use
their best efforts to effect such exchange to permit the sale of Transfer Restricted Securities
being sold in accordance with the intended method or methods of distribution thereof, and shall
comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to the Company there is a question as to
whether the Exchange Offer is permitted by applicable law, each of the Company and
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the Guarantors hereby agrees to seek a no-action letter or other favorable decision
from the Commission allowing the Company and the Guarantors to Consummate an Exchange Offer
for such Initial Securities. Each of the Company and the Guarantors hereby agrees to pursue
the issuance of such a decision to the Commission staff level but shall not be required to
take commercially unreasonable action to effect a change of Commission policy. Each of the
Company and the Guarantors hereby agrees, however, to (A) participate in telephonic
conferences with the Commission staff, (B) deliver to the Commission staff an analysis
prepared by counsel to the Company setting forth the legal bases, if any, upon which such
counsel has concluded that such an Exchange Offer should be permitted and (C) diligently
pursue a favorable resolution by the Commission staff of such submission.
(ii) As a condition to its participation in the Exchange Offer pursuant to the terms
of this Agreement, each Holder of Transfer Restricted Securities shall furnish, upon the
request of the Company, prior to the Consummation thereof, a written representation to the
Company (which may be contained in the letter of transmittal contemplated by the Exchange
Offer Registration Statement) to the effect that (A) it is not an affiliate of the Company,
(B) it is not engaged in, and does not intend to engage in, and has no arrangement or
understanding with any Person to participate in, a distribution of the Exchange Securities
to be issued in the Exchange Offer and (C) it is acquiring the Exchange Securities in its
ordinary course of business. In addition, all such Holders of Transfer Restricted
Securities shall otherwise cooperate in the Company’s preparations for the Exchange Offer.
Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such Holder using
the Exchange Offer to participate in a distribution of the securities to be acquired in the
Exchange Offer (1) could not under Commission policy as in effect on the date of this
Agreement rely on the position of the Commission enunciated in Xxxxxx Xxxxxxx and Co.,
Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available
May 13, 1988), as interpreted in the Commission’s letter to Shearman & Sterling dated July
2, 1993, and similar no-action letters (which may include any no-action letter obtained
pursuant to clause (i) above), and (2) must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with a secondary resale
transaction and that such a secondary resale transaction should be covered by an effective
registration statement containing the selling security holder information required by Item
507 or 508, as applicable, of Regulation S-K if the resales are of Exchange Securities
obtained by such Holder in exchange for Initial Securities acquired by such Holder directly
from the Company.
(b) Shelf Registration Statement. In connection with the Shelf Registration Statement, each
of the Company and the Guarantors shall comply with all the provisions of Section 6(c) below and
shall use its best efforts to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended method or methods of distribution
thereof, and pursuant thereto each of the Company and the Guarantors will as expeditiously as
possible prepare and file with the Commission a Registration Statement relating to the registration
on any appropriate form under the Securities Act, which form shall be available for the sale of the
Transfer Restricted Securities in accordance with the intended method or methods of distribution
thereof.
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(c) General Provisions. In connection with any Registration Statement and any Prospectus
required by this Agreement to permit the sale or resale of Transfer Restricted Securities
(including, without limitation, any Registration Statement and the related Prospectus required to
permit resales of Initial Securities by Broker-Dealers), each of the Company and the Guarantors
shall:
(i) use its best efforts to keep such Registration Statement continuously effective
and provide all requisite financial statements (including, if required by the Securities Act
or any regulation thereunder, financial statements of the Guarantors for the period
specified in Section 3 or 4 hereof, as applicable); and upon the occurrence of any event
that would cause any such Registration Statement or the Prospectus contained therein (A) to
contain a material misstatement or omission or (B) not to be effective and usable for resale
of Transfer Restricted Securities during the period required by this Agreement, the Company
shall file promptly an appropriate amendment to such Registration Statement, in the case of
clause (A), correcting any such misstatement or omission, and, in the case of either clause
(A) or (B), use its best efforts to cause such amendment to be declared effective and such
Registration Statement and the related Prospectus to become usable for their intended
purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and post-effective
amendments to the applicable Registration Statement as may be necessary to keep the
Registration Statement effective for the applicable period set forth in Section 3 or 4
hereof, as applicable, or such shorter period as will terminate when all Transfer Restricted
Securities covered by such Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Securities Act, and to comply fully with the applicable
provisions of Rules 424 and 430A under the Securities Act in a timely manner; and comply
with the provisions of the Securities Act with respect to the disposition of all securities
covered by such Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders named in any Registration
Statement promptly and, if requested by such Persons, to confirm such advice in writing, (A)
when the Prospectus or any Prospectus supplement or post-effective amendment has been filed,
and, with respect to any Registration Statement or any post-effective amendment thereto,
when the same has become effective, (B) of any request by the Commission for amendments to
the Registration Statement or amendments or supplements to the Prospectus or for additional
information relating thereto, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement under the Securities Act or of
the suspension by any state securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, or (D) of the existence of any fact or the
happening of any event that makes any statement of a material fact made in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any document incorporated
by reference therein untrue, or that requires the making of any additions to or changes in
the
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Registration Statement or the Prospectus in order to make the statements therein not
misleading. If at any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state securities or blue sky laws,
each of the Company and the Guarantors shall use its best efforts to obtain the withdrawal
or lifting of such order at the earliest possible time;
(iv) furnish without charge to each selling Holder named in any Registration
Statement, and each of the underwriter(s), if any, before filing with the Commission, copies
of any Registration Statement or any Prospectus included therein or any amendments or
supplements to any such Registration Statement or Prospectus (including all documents
incorporated by reference after the initial filing of such Registration Statement), which
documents will be subject to the review and comment of such Holders and underwriter(s) in
connection with such sale, if any, for a period of at least five Business Days, and the
Company will not file any such Registration Statement or Prospectus or any amendment or
supplement to any such Registration Statement or Prospectus (including all such documents
incorporated by reference) to which the underwriter(s), if any, shall reasonably object in
writing within five Business Days after the receipt thereof (such objection to be deemed
timely made upon confirmation of telecopy transmission within such period). The objection
of an underwriter, if any, shall be deemed to be reasonable if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be filed, contains a
material misstatement or omission;
(v) promptly prior to the filing of any document that is to be incorporated by
reference into a Registration Statement or Prospectus, provide copies of such document to
each selling Holder named in such Registration Statement, and to the underwriter(s), if any,
make the Company’s and the Guarantors’ representatives available for discussion of such
document and other customary due diligence matters, and include such information in such
document prior to the filing thereof as such selling Holders or underwriter(s), if any,
reasonably may request;
(vi) make available at reasonable times for inspection by the managing underwriter(s),
if any, participating in any disposition pursuant to such Registration Statement and any
attorney or accountant retained by any of the underwriter(s), all financial and other
records, pertinent corporate documents and properties of each of the Company and the
Guarantors and cause the Company’s and the Guarantors’ officers, directors and employees to
supply all information reasonably requested by any such Holder, underwriter, attorney or
accountant in connection with such Registration Statement or any post-effective amendment
thereto subsequent to the filing thereof and prior to its effectiveness and to participate
in meetings with investors to the extent requested by the managing underwriter(s), if any;
(vii) if requested by any selling Holders named in any Registration Statement or the
underwriter(s), if any, promptly incorporate in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
9
information as such selling Holders and underwriter(s), if any, may reasonably request
to have included therein, including, without limitation, information relating to the “Plan
of Distribution” of the Transfer Restricted Securities, information with respect to the
principal amount of Transfer Restricted Securities being sold to such underwriter(s), the
purchase price being paid therefor and any other terms of the offering of the Transfer
Restricted Securities to be sold in such offering; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as practicable after the Company
is notified of the matters to be incorporated in such Prospectus supplement or
post-effective amendment;
(viii) if the Securities are not then rated, cause the Transfer Restricted Securities
covered by the Registration Statement to be rated with the appropriate rating agencies, if
so requested by the Holders of a majority in aggregate principal amount of Securities
covered thereby or the underwriter(s), if any;
(ix) furnish to each selling Holder named in any Registration Statement and each of
the underwriter(s), if any, without charge, at least one copy of the Registration Statement,
as first filed with the Commission, and of each amendment thereto, including financial
statements and schedules, all documents incorporated by reference therein and all exhibits
(including exhibits incorporated therein by reference);
(x) deliver to each selling Holder and each of the underwriter(s), if any, without
charge, as many copies of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may request; each of the Company
and the Guarantors hereby consents to the use of the Prospectus and any amendment or
supplement thereto by each of the selling Holders and each of the underwriter(s), if any, in
connection with the offering and the sale of the Transfer Restricted Securities covered by
the Prospectus or any amendment or supplement thereto;
(xi) enter into such agreements (including an underwriting agreement), and make such
representations and warranties, and take all such other actions in connection therewith in
order to expedite or facilitate the disposition of the Transfer Restricted Securities
pursuant to any Shelf Registration Statement contemplated by this Agreement, all to such
extent as may be requested by any Holder of Transfer Restricted Securities or underwriter in
connection with any sale or resale pursuant to any Shelf Registration Statement contemplated
by this Agreement; and whether or not an underwriting agreement is entered into and whether
or not the registration is an Underwritten Registration, each of the Company and the
Guarantors shall:
(A) furnish to each selling Holder named in any Registration Statement and
each underwriter, if any, in such substance and scope as they may request and as are
customarily made by issuers to underwriters in primary underwritten offerings, upon
the effectiveness of the Shelf Registration Statement:
(1) a certificate, dated the date of effectiveness of the Shelf
Registration Statement signed by (y) the President or any Vice President and
(z) a principal financial or accounting officer of each of the Company
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and the Guarantors, confirming, as of the date thereof, such matters as such
parties may reasonably request;
(2) an opinion, dated the date of effectiveness of the Shelf
Registration Statement; of counsel for the Company and the Guarantors,
covering such matters as such parties may reasonably request, and in any
event including a statement to the effect that such counsel has participated
in conferences with officers and other representatives of the Company
and the Guarantors, representatives of the independent public accountants
for the Company and the Guarantors, representatives of the underwriter(s),
if any, and counsel to the underwriter(s), if any, in connection with the
preparation of such Registration Statement and the related Prospectus and
have considered the matters required to be stated therein and the statements
contained therein, although such counsel has not independently verified the
accuracy, completeness or fairness of such statements; and that such counsel
advises that, on the basis of the foregoing, no facts came to such counsel’s
attention that caused such counsel to believe that the applicable
Registration Statement, at the time such Registration Statement or any
post-effective amendment thereto became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, or that the Prospectus contained in such Registration Statement
as of its date contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein
not misleading, in light of the circumstances under which they were made.
Without limiting the foregoing, such counsel may state further that such
counsel assumes no responsibility for, and has not independently verified,
the accuracy, completeness or fairness of the financial statements, notes
and schedules and other financial data included in any Registration
Statement contemplated by this Agreement or the related Prospectus; and
(3) a customary comfort letter, as of the date of the Shelf
Registration Statement, from the Company’s independent accountants, in the
customary form and covering matters of the type customarily requested to be
covered in comfort letters by underwriters in connection with primary
underwritten offerings, and covering or affirming matters customarily set
forth in comfort letters;
(B) set forth in full or incorporate by reference in the underwriting
agreement, if any, the indemnification provisions and procedures of Section 8 hereof
with respect to all parties to be indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be reasonably
requested by such parties to evidence compliance with Section 6(c)(xi)(A) above and
with any customary conditions contained in the underwriting agreement or
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other
agreement entered into by the Company or any of the Guarantors pursuant to this
Section 6(c)(xi), if any.
If at any time the representations and warranties of the Company and the Guarantors
contemplated in Section 6(c)(xi)(A)(1) above cease to be true and correct, the Company or
the Guarantors shall so advise the underwriter(s), if any, and each selling Holder promptly
and, if requested by such Persons, shall confirm such advice in writing;
(xii) prior to any public offering of Transfer Restricted Securities, cooperate with
the selling Holders named in any Registration Statement, the underwriter(s), if any, and
their respective counsel in connection with the registration and qualification of the
Transfer Restricted Securities under the state securities or blue sky laws of such
jurisdictions as such selling Holders or underwriter(s), if any, may request and do any and
all other acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the Shelf Registration
Statement; provided, however, that neither the Company nor the Guarantors shall be required
to register or qualify as a foreign corporation where it is not then so qualified or to take
any action that would subject it to the service of process in suits or to taxation, other
than as to matters and transactions relating to the Registration Statement, in any
jurisdiction where it is not then so subject;
(xiii) issue, upon the request of any Holder of Initial Securities covered by the
Shelf Registration Statement, Exchange Securities having an aggregate principal amount equal
to the aggregate principal amount of Initial Securities surrendered to the Company by such
Holder in exchange therefor or being sold by such Holder, such Exchange Securities to be
registered in the name of such Holder or in the name of the purchaser(s) of such Securities,
as the case may be; in return, the Initial Securities held by such Holder shall be
surrendered to the Company for cancellation;
(xiv) unless the Securities are then in book-entry form, cooperate with the selling
Holders named in any Registration Statement and the underwriter(s), if any, to facilitate
the timely preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends; and enable such Transfer
Restricted Securities to be in such denominations and registered in such names as the
Holders or the underwriter(s), if any, may request at least two Business Days prior to any
sale of Transfer Restricted Securities made by such Holders or underwriter(s);
(xv) use its best efforts to cause the Transfer Restricted Securities covered by the
Registration Statement to be registered with or approved by such other governmental agencies
or authorities as may be necessary to enable the seller or sellers thereof or the
underwriter(s), if any, to consummate the disposition of such Transfer Restricted
Securities, subject to the proviso contained in Section 6(c)(xii) hereof;
(xvi) if any fact or event contemplated by Section 6(c)(iii)(D) hereof shall exist or
have occurred, prepare a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the purchasers of Transfer
12
Restricted Securities, the Prospectus will not contain an untrue statement of a material
fact or omit to state any material fact necessary in order to make the statements therein
not misleading;
(xvii) provide a CUSIP number for all Securities not later than the effective date of
the Registration Statement covering such Securities and provide the Trustee under the
Indenture with certificates for such Securities which are in a form eligible for deposit
with The Depository Trust Company and take all other action necessary to ensure that
all such Securities are eligible for deposit with The Depository Trust Company;
(xviii) cooperate and assist in any filings required to be made with the FINRA and in
the performance of any due diligence investigation by any underwriter (including any
“qualified independent underwriter”) that is required to be retained in accordance with the
rules and regulations of the FINRA, and use its commercially reasonable best efforts to
cause such Registration Statement to become effective and approved by such governmental
agencies or authorities as may be necessary to enable the Holders selling Transfer
Restricted Securities to consummate the disposition of such Transfer Restricted Securities;
(xix) otherwise use its best efforts to comply with all applicable rules and
regulations of the Commission, and make generally available to its security holders, as soon
as practicable, a consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) for the twelve-month period (A) commencing at the end of any
fiscal quarter in which Transfer Restricted Securities are sold to underwriters in a firm
commitment or best efforts Underwritten Offering or (B) if not sold to underwriters in such
an offering, beginning with the first month of the Company’s first fiscal quarter commencing
after the effective date of the Shelf Registration Statement;
(xx) cause the Indenture to be qualified under the Trust Indenture Act not later than
the effective date of the first Registration Statement required by this Agreement, and, in
connection therewith, cooperate with the Trustee and the Holders of Securities to effect
such changes to the Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the Trust Indenture Act; and to execute and use its best
efforts to cause the Trustee to execute, all documents that may be required to effect such
changes and all other forms and documents required to be filed with the Commission to enable
such Indenture to be so qualified in a timely manner;
(xxi) cause all Securities covered by the Registration Statement to be listed on each
securities exchange or automated quotation system on which similar securities issued by the
Company are then listed if requested by the Holders of a majority in aggregate principal
amount of Initial Securities or the managing underwriter(s), if any; and
(xxii) provide promptly to each Holder upon request each document filed with the
Commission pursuant to the requirements of Section 13 and Section 15 of the Exchange Act.
13
Each Holder agrees by acquisition of a Transfer Restricted Security that, upon receipt of any
notice from the Company of the existence of any fact of the kind described in Section 6(c)(iii)(D)
hereof, such Holder will forthwith discontinue disposition of Transfer Restricted Securities
pursuant to the applicable Registration Statement until such Holder’s receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof, or until it is advised
in writing (the “Advice”) by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus. If so directed by the Company, each Holder will
deliver to the Company (at the Company’s expense) all copies, other than permanent file copies then
in such Holder’s possession, of the Prospectus covering such Transfer Restricted Securities that
was current at the time of receipt of such notice. In the event the Company shall give any such
notice, the time period regarding the effectiveness of such Registration Statement set forth in
Section 3 or 4 hereof, as applicable, shall be extended by the number of days during the period
from and including the date of the giving of such notice pursuant to Section 6(c)(iii)(D) hereof to
and including the date when each selling Holder covered by such Registration Statement shall have
received the copies of the supplemented or amended Prospectus contemplated by Section 6(c)(xvi)
hereof or shall have received the Advice; provided, however, that no such extension shall be taken
into account in determining whether Additional Interest is due pursuant to Section 5 hereof or the
amount of such Additional Interest, it being agreed that the Company’s option to suspend use of a
Registration Statement pursuant to this paragraph shall be treated as a Registration Default for
purposes of Section 5 above.
Section 7. Registration Expenses.
(a) All expenses incident to the Company’s and the Guarantor’s performance of or compliance
with this Agreement will be borne by the Company and the Guarantors, jointly and severally,
regardless of whether a Registration Statement becomes effective, including, without limitation:
(i) all registration and filing fees and expenses (including filings made by any Holder with the
FINRA (and, if applicable, the fees and expenses of any “qualified independent underwriter” and its
counsel that may be required by the rules and regulations of the FINRA)); (ii) all fees and
expenses of compliance with federal securities and state securities or blue sky laws; (iii) all
expenses of printing (including preparing certificates for the Exchange Securities to be issued in
the Exchange Offer and printing of Prospectuses), messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel for the Company, the Guarantors and, subject to Section
7(b) below, the Holders of Transfer Restricted Securities; (v) all application and filing fees in
connection with listing the Exchange Securities on a securities exchange or automated quotation
system pursuant to the requirements thereof; and (vi) all fees and disbursements of independent
certified public accountants of the Company and the Guarantors (including the expenses of any
special audit and comfort letters required by or incident to such performance).
Each of the Company and the Guarantor will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expenses of any annual audit and the fees and expenses of any
Person, including special experts, retained by the Company or the Guarantors.
14
(b) In connection with any Shelf Registration Statement required by this Agreement, the
Company and the Guarantors, jointly and severally, will reimburse the Holders of Transfer
Restricted Securities being resold pursuant to the Shelf Registration Statement, for the reasonable
fees and disbursements of not more than one counsel, who shall be Xxxxx Xxxx & Xxxxxxxx or such
other counsel as may be chosen by the Holders of a majority in principal amount of the Transfer
Restricted Securities for whose benefit such Registration Statement is being prepared.
Section 8. Indemnification.
(a) The Company and the Guarantors, jointly and severally, agree to indemnify and hold
harmless (i) each Holder and (ii) each Person, if any, who controls (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) any Holder (any of the Persons referred
to in this clause (ii) being hereinafter referred to as a “controlling person”) and (iii) the
respective officers, directors, partners, employees, representatives and agents of any Holder or
any controlling person (any Person referred to in clause (i), (ii) or (iii) may hereinafter be
referred to as an “Indemnified Holder”), to the fullest extent lawful, from and against any and all
losses, claims, damages, liabilities, judgments, actions and expenses (including, without
limitation, and as incurred, reimbursement of all reasonable costs of investigating, preparing,
pursuing, settling, compromising, paying or defending any claim or action, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, including the reasonable
fees and expenses of counsel to any Indemnified Holder), joint or several, directly or indirectly
caused by, related to, based upon, arising out of or in connection with any untrue statement or
alleged untrue statement of a material fact contained in any Registration Statement or Prospectus
(or any amendment or supplement thereto), or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or expenses are caused by
an untrue statement or omission or alleged untrue statement or omission that is made in reliance
upon and in conformity with information relating to any of the Holders furnished in writing to the
Company by any of the Holders expressly for use therein. This indemnity agreement shall be in
addition to any liability which the Company or any of the Guarantors may otherwise have.
In case any action or proceeding (including any governmental or regulatory investigation or
proceeding) shall be brought or asserted against any of the Indemnified Holders with respect to
which indemnity may be sought against the Company or the Guarantors, such Indemnified Holder (or
the Indemnified Holder controlled by such controlling person) shall promptly notify the Company and
the Guarantors in writing; provided, however, that the failure to give such notice shall not
relieve any of the Company or the Guarantors of its obligations pursuant to this Agreement. Such
Indemnified Holder shall have the right to employ its own counsel in any such action and the fees
and expenses of such counsel shall be paid, as incurred, by the Company and the Guarantors
(regardless of whether it is ultimately determined that an Indemnified Holder is not entitled to
indemnification hereunder). The Company and the Guarantors shall not, in connection with any one
such action or proceeding 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
any local counsel) at any time for such Indemnified Holders, which firm
15
shall be designated by the
Holders. The Company and the Guarantors shall be liable for any settlement of any such action or
proceeding effected with the Company’s and the Guarantors’ prior written consent, which consent
shall not be withheld unreasonably, and each of the Company and the Guarantors agrees to indemnify
and hold harmless any Indemnified Holder from and against any loss, claim, damage, liability or
expense by reason of any settlement of any action effected with the written consent of the Company
and the Guarantors. The Company and the Guarantors shall not, without the prior written consent of
each Indemnified Holder, settle or compromise or consent to the entry of judgment in or otherwise
seek to terminate any pending or
threatened action, claim, litigation or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not any Indemnified Holder is a party thereto),
unless such settlement, compromise, consent or termination includes an unconditional release of
each Indemnified Holder from all liability arising out of such action, claim, litigation or
proceeding.
(b) Each Holder of Transfer Restricted Securities agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Guarantors and their respective directors, officers of
the Company and the Guarantors who sign a Registration Statement, and any Person controlling
(within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the
Company or any of the Guarantors, and the respective officers, directors, partners, employees,
representatives and agents of each such Person, to the same extent as the foregoing indemnity from
the Company and the Guarantors to each of the Indemnified Holders, but only with respect to claims
and actions based on information relating to such Holder furnished in writing by such Holder
expressly for use in any Registration Statement. In case any action or proceeding shall be brought
against the Company, the Guarantors or their respective directors or officers or any such
controlling person in respect of which indemnity may be sought against a Holder of Transfer
Restricted Securities, such Holder shall have the rights and duties given the Company and the
Guarantors, and the Company, the Guarantors, their respective directors and officers and such
controlling person shall have the rights and duties given to each Holder by the preceding
paragraph.
(c) If the indemnification provided for in this Section 8 is unavailable to an indemnified
party under Section 8(a) or (b) above (other than by reason of exceptions provided in those
Sections) in respect of any losses, claims, damages, liabilities, judgments, actions or expenses
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 expenses in such proportion as is
appropriate to reflect the relative benefits received by the Company and the Guarantors, on the one
hand, and the Holders, on the other hand, from the Exchange Offer (which in the case of the Company
and the Guarantors shall be deemed to be equal to the aggregate principal amount of the Initial
Notes), the amount of Additional Interest which did not become payable as a result of the filing of
the Registration Statement resulting in such losses, claims, damages, liabilities, judgments
actions or expenses, and such Registration Statement, or if such allocation is not permitted by
applicable law, the relative fault of the Company and the Guarantors, on the one hand, and the
Holders, on the other hand, in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of the Indemnified Holder on
the other shall be determined by reference to, among other things, whether the untrue or
16
alleged
untrue statement of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or any of the Guarantors, on the one hand, or the
Indemnified Holders, on the other hand, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the limitations set forth in the second paragraph of
Section 8(a) hereof, 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 Guarantors and each Holder of Transfer Restricted Securities agree that it
would not be just and equitable if contribution pursuant to this Section 8(c) were determined by
pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable considerations referred to
in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or expenses referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the provisions of this Xxxxxxx
0, xxxx of the Holders (and their related Indemnified Holders) shall be required to contribute, in
the aggregate, any amount in excess of the amount by which the benefits received by such Holder as
a third-party beneficiary to this Agreement exceeds the amount of any damages which such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No Person guilty of fraudulent misrepresentation (within the 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. The Holders’ obligations to contribute pursuant to this
Section 8(c) are several in proportion to the respective principal amount of Initial Securities
held by each of the Holders hereunder and not joint.
Section 9. Rule 144A. Each of the Company and the Guarantors hereby agrees with
each Holder, for so long as any Transfer Restricted Securities remain outstanding, to make
available to any Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted Securities from such
Holder or beneficial owner, the information required by Rule 144A(d)(4) under the Securities Act in
order to permit resales of such Transfer Restricted Securities pursuant to Rule 144A under the
Securities Act.
Section 10. Participation in Underwritten Registrations. No Holder may participate
in any Underwritten Registration hereunder unless such Holder (a) agrees to sell such Holder’s
Transfer Restricted Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting agreements, lock-up
letters and other documents required under the terms of such underwriting arrangements.
Section 11. Selection of Underwriters. The Holders of Transfer Restricted
Securities covered by the Shelf Registration Statement who desire to do so may sell such Transfer
Restricted Securities in an Underwritten Offering. In any such Underwritten Offering, the
17
investment banker(s) and managing underwriter(s) that will administer such offering will be
selected by the Holders of a majority in aggregate principal amount of the Transfer Restricted
Securities included in such offering; provided, however, that such investment banker(s) and
managing underwriter(s) must be reasonably satisfactory to the Company.
Section 12. Miscellaneous.
(a) Remedies. Each of the Company and the Guarantors hereby agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach by it
of the provisions of this Agreement and hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Each of the Company and the Guarantors will not on or after
the date of this Agreement enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with
the provisions hereof. The rights granted to the Holders hereunder do not in any way conflict with
and are not inconsistent with the rights granted to the holders of the Company’s or any of the
Guarantors’ securities under any agreement in effect on the date hereof.
(c) Adjustments Affecting the Securities. The Company will not take any action, or permit
any change to occur, with respect to the Securities that would materially and adversely affect the
ability of the Holders to Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions hereof may not be given
unless the Company has (i) in the case of Section 5 hereof and this Section 12(d)(i), obtained the
written consent of Holders of all outstanding Transfer Restricted Securities and (ii) in the case
of all other provisions hereof, obtained the written consent of Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities (excluding any Transfer Restricted
Securities held by the Company or its Affiliates). Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the rights of Holders
whose Securities are being tendered pursuant to the Exchange Offer and that does not affect
directly or indirectly the rights of other Holders whose Securities are not being tendered pursuant
to such Exchange Offer may be given by the Holders of a majority of the outstanding principal
amount of Transfer Restricted Securities being tendered or registered.
(e) Notices. All notices and other communications provided for or permitted hereunder shall
be made in writing in the English language by hand-delivery, first-class mail (registered or
certified, return receipt requested), telex, telecopier, or air courier guaranteeing overnight
delivery:
(i) if to a Holder, at the address set forth on the records of the Trustee, with a
copy to the Trustee; and
(ii) if to the Company or any Guarantor:
XxxxXxxxx Energy, Inc.
0000 Xxxxxxxxx Xxxxxxxxxx, Xxxxx 0000
0000 Xxxxxxxxx Xxxxxxxxxx, Xxxxx 0000
00
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxx X. Xxx Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Electronic Mail: xxxxxxxxx@xxxxx.xxx
Website Address: xxx.xxxxxxxxxxxxxxx.xxx
U.S. Taxpayer Identification Number: 00-0000000
Attention: Xxxx X. Xxx Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Electronic Mail: xxxxxxxxx@xxxxx.xxx
Website Address: xxx.xxxxxxxxxxxxxxx.xxx
U.S. Taxpayer Identification Number: 00-0000000
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, if
telecopied; and on the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other communications shall be concurrently delivered by
the Person giving the same to the Trustee at the address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon
the successors and assigns of each of the parties, including, without limitation, and without the
need for an express assignment, subsequent Holders of Transfer Restricted Securities; provided,
however, that this Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or assign acquired Transfer Restricted
Securities from such Holder.
(g) Counterparts. This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions contained herein, or
the application thereof in any circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a final expression of
their agreement and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained herein. There are
no restrictions, promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and understandings between
the parties with respect to such subject matter.
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| XXXXXXXXX ENERGY, INC. |
||||
| By: | /s/ Xxxx X. Xxx Xxxxx | |||
| Name: | Xxxx X. Xxx Xxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer |
|||
| GUARANTORS: XXXXXXXXX ONSHORE, LLC LARIAT SERVICES, INC. XXXXXXXXX OPERATING COMPANY INTEGRA ENERGY, L.L.C. XXXXXXXXX EXPLORATION AND PRODUCTION, LLC, XXXXXXXXX TERTIARY, LLC, XXXXXXXXX MIDSTREAM, INC, XXXXXXXXX OFFSHORE, LLC, and XXXXXXXXX HOLDINGS, INC., as Guarantors |
||||
| By: | /s/ Xxxx X. Xxx Xxxxx | |||
| Name: | Xxxx X. Xxx Xxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer |
|||
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