EXHIBIT 4.4
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REGISTRATION RIGHTS AGREEMENT
among
XXXX XXXXXXX CORPORATION
XXXX XXXXXXX PROPERTIES INC.
XXXX XXXXXXX PRODUCTION COMPANY
and
XXXXXXX SACHS CREDIT PARTNERS L.P.
Dated as of September 1, 2004
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THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made and
entered into as of September 1, 2004, among Xxxx Xxxxxxx Corporation, a Delaware
corporation (the "COMPANY"), Xxxx Xxxxxxx Properties Inc., a Delaware
corporation, and Xxxx Xxxxxxx Production Company, a Delaware corporation (each,
a "GUARANTOR"), and Xxxxxxx Sachs Credit Partners L.P. as Sole Lead Arranger
(the "ARRANGER").
RECITALS
This Agreement is made pursuant to the Credit and Guaranty Agreement,
dated as of the date hereof (the "CREDIT AGREEMENT"), among the Company, the
Guarantors, the Lenders referred to therein (the "LENDERS"), Xxxxxxx Xxxxx
Credit Partners L.P., as administrative agent (the "ADMINISTRATIVE AGENT") and
the Arranger. In order to induce the Arranger, the Administrative Agent and the
Lenders to enter into the Credit Agreement and related arrangements, the Company
has agreed to provide the registration rights set forth in this Agreement. The
execution and delivery of this Agreement is a condition to the funding of any
Loans (as defined below) under the Credit Agreement.
AGREEMENT
The parties agree as follows:
1. CERTAIN DEFINITIONS. For purposes of this Agreement, the following terms
shall have the following respective meanings:
"BASE INTEREST" means the interest that would otherwise accrue on the
Registrable Securities or the Loans, as the case may be, under the terms
thereof and the Exchange Note Indenture or the Credit Agreement, as
applicable, without giving effect to the provisions of this Agreement.
"BRIDGE LOAN MATURITY DATE" has the meaning assigned thereto in the
Credit Agreement.
"COMMISSION" means the United States Securities and Exchange
Commission, or any other federal agency at the time administering the
Exchange Act or the Securities Act, whichever is the relevant statute for the
particular purpose.
"EFFECTIVE TIME" means the time and date as of which the Commission
declares the Shelf Registration Statement effective or as of which the Shelf
Registration Statement otherwise becomes effective.
"EFFECTIVENESS PERIOD" has the meaning assigned thereto in Section 2(a)
hereof.
"EFFECTIVENESS FAILURE" has the meaning assigned thereto in Section
2(b) hereof.
"ELECTING HOLDER" means any holder of Registrable Securities that has
returned a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(c)(ii) or (iii) hereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.
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"EXCHANGE NOTE INDENTURE" means the Exchange Note Indenture, dated as
of September 1, 2004, among the Company, the Guarantors and Xxxxx Fargo Bank,
National Association, as Trustee, as the same shall be amended from time to
time.
"GUARANTOR" has the meaning assigned thereto in the Credit Agreement
and the Exchange Note Indenture.
The term "HOLDER" means each of the Lenders and other persons who
acquire Registrable Securities from time to time (including any successors or
assigns), in each case for so long as such person owns any Registrable
Securities.
"LOANS" has the meaning assigned thereto in the Credit Agreement.
"NOTICE AND QUESTIONNAIRE" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
The term "PERSON" means a corporation, association, partnership,
organization, business, individual, government or political subdivision
thereof or governmental agency.
"REGISTRABLE SECURITIES" means the Securities; provided, however, that
a Security shall cease to be a Registrable Security when (i) a Shelf
Registration Statement registering such Security under the Securities Act has
been declared or becomes effective and such Security has been sold or
otherwise transferred by the holder thereof pursuant to and in a manner
contemplated by such effective Shelf Registration Statement; (ii) such
Security is sold pursuant to Rule 144 under circumstances in which any legend
borne by such Security relating to restrictions on transferability thereof,
under the Securities Act or otherwise, is removed by the Company or pursuant
to the Exchange Note Indenture; (iii) such Security is eligible to be sold
pursuant to paragraph (k) of Rule 144; or (iv) such Security shall cease to
be outstanding.
"REGISTRATION DEFAULT" has the meaning assigned thereto in Section 2(b)
hereof.
"REGISTRATION EXPENSES" has the meaning assigned thereto in Section 4
hereof.
"RULE 144" and "RULE 415", in each case, means such rule promulgated
under the Securities Act (or any successor provision), as the same shall be
amended from time to time.
"SECURITIES" means, collectively, the Senior Subordinated Exchange
Notes due 2014 of the Company issued on the date hereof under the Exchange
Note Indenture for delivery to the Lenders under the Credit Agreement upon
exchange of Loans in an equal principal amount therefor. Each Security is
entitled to the benefit of the guarantee provided for in the Exchange Note
Indenture (the "GUARANTEE") and, unless the context otherwise requires, any
reference herein to a "Security" or a "Registrable Security" shall include a
reference to the related Guarantee.
"SECURITIES ACT" means the Securities Act of 1933, or any successor
thereto, as the same shall be amended from time to time.
"SHELF REGISTRATION" has the meaning assigned thereto in Section 2(a)
hereof.
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"SHELF REGISTRATION STATEMENT" has the meaning assigned thereto in
Section 2(a) hereof.
"SPECIAL INTEREST" has the meaning assigned thereto in Section 2(b)
hereof.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Agreement, and the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision.
2. REGISTRATION UNDER THE SECURITIES ACT.
(a) The Company shall file under the Securities Act no later than 30
days after the Bridge Loan Maturity Date a "shelf" registration statement
providing for the registration of, and the sale on a continuous or delayed
basis by the holders of, all of the Registrable Securities, pursuant to Rule
415 or any similar rule that may be adopted by the Commission (such filing,
the "SHELF REGISTRATION" and such registration statement, the "SHELF
REGISTRATION STATEMENT"). The Company agrees to use all commercially
reasonable efforts (x) to cause the Shelf Registration Statement to become or
be declared effective no later than 120 days after such Shelf Registration
Statement is filed and to keep such Shelf Registration Statement continuously
effective for a period ending on the earlier of the second anniversary of the
Effective Time or such time as there are no longer any Registrable Securities
outstanding (such period being referred to herein as the "EFFECTIVENESS
PERIOD"), provided, however, that no holder shall be entitled to be named as
a selling securityholder in the Shelf Registration Statement or to use the
prospectus forming a part thereof for resales of Registrable Securities
unless such holder is an Electing Holder, and (y) after the Effective Time of
the Shelf Registration Statement, promptly upon the request of any holder of
Registrable Securities that is not then an Electing Holder, to take any
action reasonably necessary to enable such holder to use the prospectus
forming a part thereof for resales of Registrable Securities, including,
without limitation, any action necessary to identify such holder as a selling
securityholder in the Shelf Registration Statement, provided, however, that
nothing in this clause (y) shall relieve any such holder of the obligation to
return a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(c)(iii) hereof. The Company further agrees to
supplement or make amendments to the Shelf Registration Statement, as and
when required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration Statement
or by the Securities Act or rules and regulations thereunder for shelf
registration, and the Company agrees to furnish to each Electing Holder
copies of any such supplement or amendment prior to its being used or
promptly following its filing with the Commission.
(b) In the event that (i) the Company has not filed the Shelf
Registration Statement on or before the date on which such registration
statement is required to be filed pursuant to Section 2(a), or (ii) such
Shelf Registration Statement has not become effective or been declared
effective by the Commission on or before the date on which such registration
statement is required to become or be declared effective pursuant to Section
2(a), or (iii) any Shelf Registration Statement required by Section 2(a)
hereof is filed and declared effective
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but shall thereafter either be withdrawn by the Company or shall become
subject to an effective stop order issued pursuant to Section 8(d) of the
Securities Act suspending the effectiveness of such registration statement
(except as specifically permitted herein) without being succeeded immediately
by an additional registration statement filed and declared effective (each
such event referred to in clauses (i) through (iii), a "REGISTRATION DEFAULT"
and each period during which a Registration Default has occurred and is
continuing, a "REGISTRATION DEFAULT PERIOD"), then, as liquidated damages for
such Registration Default, subject to the provisions of Section 9(b), special
interest ("SPECIAL INTEREST"), in addition to the Base Interest, shall accrue
on the Securities and Loans, as the case may be, then outstanding at a per
annum rate of 0.50% for the first 90 days of the Registration Default Period,
at a per annum rate of 1.00% for the second 90 days of the Registration
Default Period, at a per annum rate of 1.50% for the third 90 days of the
Registration Default Period and at a per annum rate of 2.00% thereafter for
the remaining portion of the Registration Default Period. In addition, in the
event that during the Effectiveness Period (i) the Shelf Registration
Statement ceases to be effective, (ii) the Company suspends the use of the
Prospectus pursuant to Section 3(c)(viii)(F) and Section 3(d) hereof or (iii)
the Holders are otherwise prevented or restricted by the Company from
effecting sales pursuant to the Shelf Registration Statement (an
"EFFECTIVENESS FAILURE") for more than 30 days, whether or not consecutive,
in any 90-day period, or for more than 90 days, whether or not consecutive,
during any 12-month period, then Special Interest in addition to the Base
Interest shall accrue on the Registrable Securities then outstanding, at a
per annum rate of 0.50% from the 31st day of the applicable 90-day period or
the 91st day of the applicable 12-month period, as the case may be, that any
such Effectiveness Failure has existed until the earlier of (1) the time that
Electing Holders are again able resell Registrable Securities sales under the
Shelf Registration Statement or (2) the expiration of the Effectiveness
Period. Subject to section 2(c), accrued Special Interest shall be payable in
cash on each day on which interest is otherwise payable with respect to the
Loans or Securities, as the case may be.
(c) To the extent that any Special Interest, together with the Base
Interest, would cause the per annum rate of interest on any Security or Loan
to exceed 18.0%, then the Company shall have the option to (i) capitalize
that portion of the interest payment representing interest (including Special
Interest) in excess of 18.0% and adding it to the aggregate principal amount
of outstanding Loans in accordance with Section 2.7(b) of the Credit
Agreement or (ii) issue additional Securities to the holder of such
Securities in an amount equal to the portion of the interest payment
representing interest (including Special Interest) in excess of 18.0% in
accordance with Section 4.01 of the Exchange Note Indenture, as the case may
be. Notwithstanding anything to the contrary in this Section 2, in no event
will the Special Interest, together with the Base Interest, exceed 20.0%.
(d) The Company shall take, and shall cause the Guarantors to take, all
actions necessary or advisable to be taken by it to ensure that the
transactions contemplated herein are effected as so contemplated, including
all actions necessary or desirable to register the Guarantees under the
registration statement contemplated in Section 2(a) hereof.
(e) Any reference herein to a registration statement as of any time
shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time and any reference herein
to any post-effective amendment to a registration
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statement as of any time shall be deemed to include any document
incorporated, or deemed to be incorporated, therein by reference as of such
time.
3. REGISTRATION PROCEDURES.
If the Company files a registration statement pursuant to Section 2(a),
the following provisions shall apply:
(a) At or before the Effective Time of the Shelf Registration, as the case
may be, the Company shall qualify the Exchange Note Indenture under the Trust
Indenture Act of 1939.
(b) In the event that such qualification would require the appointment of
a new trustee under the Exchange Note Indenture, the Company shall appoint a
new trustee thereunder pursuant to the applicable provisions of the Exchange
Note Indenture.
(c) In connection with the Company's obligations with respect to the Shelf
Registration, the Company shall, as soon as practicable (or as otherwise
specified):
(i) prepare and file with the Commission, as soon as practicable but
in any case within the time periods specified in Section 2(a), a Shelf
Registration Statement on any form which may be utilized by the Company
and which shall register all of the Registrable Securities for resale
by the holders thereof in accordance with such method or methods of
disposition as may be specified by such of the holders as, from time to
time, may be Electing Holders and use all commercially reasonable
efforts to cause such Shelf Registration Statement to become effective
as soon as practicable but in any case within the time periods
specified in Section 2(a);
(ii) not less than 30 calendar days prior to the Effective Time of
the Shelf Registration Statement, mail the Notice and Questionnaire to
the holders of Registrable Securities; no holder shall be entitled to
be named as a selling securityholder in the Shelf Registration
Statement as of the Effective Time, and no holder shall be entitled to
use the prospectus forming a part thereof for resales of Registrable
Securities at any time, unless such holder has returned a completed and
signed Notice and Questionnaire to the Company by the deadline for
response set forth therein; provided, however, holders of Registrable
Securities shall have at least 28 calendar days from the date on which
the Notice and Questionnaire is first mailed to such holders to return
a completed and signed Notice and Questionnaire to the Company;
(iii) after the Effective Time of the Shelf Registration Statement,
upon the request of any holder of Registrable Securities that is not
then an Electing Holder, promptly send a Notice and Questionnaire to
such holder; provided that the Company shall not be required to take
any action to name such holder as a selling securityholder in the Shelf
Registration Statement or to enable such holder to use the prospectus
forming a part thereof for resales of Registrable Securities until such
holder has returned a completed and signed Notice and Questionnaire to
the Company;
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(iv) as soon as practicable prepare and file with the Commission
such amendments and supplements to such Shelf Registration Statement
and the prospectus included therein as may be necessary to effect and
maintain the effectiveness of such Shelf Registration Statement for the
period specified in Section 2(a) hereof and as may be required by the
applicable rules and regulations of the Commission and the instructions
applicable to the form of such Shelf Registration Statement, and
furnish to the Electing Holders copies of any such supplement or
amendment simultaneously with or prior to its being used or filed with
the Commission;
(v) comply with the provisions of the Securities Act with respect to
the disposition of all of the Registrable Securities covered by such
Shelf Registration Statement in accordance with the intended methods of
disposition by the Electing Holders provided for in such Shelf
Registration Statement;
(vi) provide (A) the Electing Holders, (B) the underwriters (which
term, for purposes of this Agreement, shall include a person deemed to
be an underwriter within the meaning of Section 2(a)(11) of the
Securities Act), if any, thereof, (C) any sales or placement agent
therefor, (D) counsel for any such underwriter or agent and (E) not
more than one counsel for all the Electing Holders the opportunity to
participate in the preparation of such Shelf Registration Statement,
each prospectus included therein or filed with the Commission and each
amendment or supplement thereto;
(vii) for a reasonable period prior to the filing of such Shelf
Registration Statement, and throughout the period specified in Section
2(a), make available at reasonable times at the Company's principal
place of business or such other reasonable place for inspection by the
persons referred to in Section 3(c)(vi) who shall certify to the
Company that they have a current intention to sell the Registrable
Securities pursuant to the Shelf Registration such financial and other
information and books and records of the Company, and cause the
officers, employees, counsel and independent certified public
accountants of the Company to respond to such inquiries, as shall be
reasonably necessary, in the judgment of the respective counsel
referred to in such Section, to conduct a reasonable investigation
within the meaning of Section 11 of the Securities Act; provided,
however, that each such party shall be required to maintain in
confidence and not to disclose to any other person any information or
records reasonably designated by the Company as being confidential,
until such time as (A) such information becomes a matter of public
record (whether by virtue of its inclusion in such registration
statement or otherwise) except as a result of the disclosure by the
receiving part in violation of this provision, or (B) such person shall
be required so to disclose such information pursuant to a subpoena or
order of any court or other governmental agency or body having
jurisdiction over the matter (subject to the requirements of such
order, and only after such person shall have given the Company prompt
prior written notice of such requirement), or (C) such information is
required to be set forth in such Shelf Registration Statement or the
prospectus included therein or in an amendment to such Shelf
Registration Statement or an amendment or supplement to such prospectus
in order that such Shelf Registration Statement, prospectus, amendment
or supplement, as the case may be,
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complies with applicable requirements of the federal securities laws
and the rules and regulations of the Commission and does not contain an
untrue statement of a material fact or omit to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
(viii) promptly notify each of the Electing Holders, any sales or
placement agent therefor and any underwriter thereof (which
notification may be made through any managing underwriter that is a
representative of such underwriter for such purpose) and confirm such
advice in writing, (A) when such Shelf Registration Statement or the
prospectus included therein or any prospectus amendment or supplement
or post-effective amendment has been filed, and, with respect to such
Shelf Registration Statement or any post-effective amendment, when the
same has become effective, (B) of any comments by the Commission and by
the blue sky or securities commissioner or regulator of any state with
respect thereto or any request by the Commission for amendments or
supplements to such Shelf Registration Statement or prospectus or for
additional information, (C) of the issuance by the Commission of any
stop order suspending the effectiveness of such Shelf Registration
Statement or the initiation or threatening of any proceedings for that
purpose, (D) if at any time the representations and warranties of the
Company contemplated by Section 3(c)(xvii) or Section 5 cease to be
true and correct in all material respects, (E) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose, or (F) if at any time when a prospectus is required to be
delivered under the Securities Act, that such Shelf Registration
Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material respects to
the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the
circumstances then existing;
(ix) use all commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of such
registration statement or any post-effective amendment thereto at the
earliest practicable date;
(x) if requested by any managing underwriter or underwriters, any
placement or sales agent or any Electing Holder, promptly incorporate
in a prospectus supplement or post-effective amendment such information
as is required by the applicable rules and regulations of the
Commission and as such managing underwriter or underwriters, such agent
or such Electing Holder specifies should be included therein relating
to the terms of the sale of such Registrable Securities, including
information with respect to the principal amount of Registrable
Securities being sold by such Electing Holder or agent or to any
underwriters, the name and description of such Electing Holder, agent
or underwriter, the offering price of such Registrable Securities and
any discount, commission or other compensation payable in respect
thereof, the purchase price being paid therefor by such underwriters
and with respect to any other terms of the offering of the Registrable
Securities to be sold by such
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Electing Holder or agent or to such underwriters; and make all required
filings of such prospectus supplement or post-effective amendment
promptly after notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment;
(xi) furnish to each Electing Holder, each placement or sales agent,
if any, therefor, each underwriter, if any, thereof and the respective
counsel referred to in Section 3(c)(vi) an executed copy (or, in the
case of an Electing Holder, a conformed copy) of such Shelf
Registration Statement, each such amendment and supplement thereto (in
each case including all exhibits thereto (in the case of an Electing
Holder of Registrable Securities, upon request) and documents
incorporated by reference therein) and such number of copies of such
Shelf Registration Statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically so requested by
such Electing Holder, agent or underwriter, as the case may be) and of
the prospectus included in such Shelf Registration Statement (including
each preliminary prospectus and any summary prospectus), in conformity
in all material respects with the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder, and such other documents, as
such Electing Holder, agent, if any, and underwriter, if any, may
reasonably request in order to facilitate the offering and disposition
of the Registrable Securities owned by such Electing Holder, offered or
sold by such agent or underwritten by such underwriter and to permit
such Electing Holder, agent and underwriter to satisfy the prospectus
delivery requirements of the Securities Act; and, subject to Section
3(d), the Company hereby consents to the use of such prospectus
(including such preliminary and summary prospectus) and any amendment
or supplement thereto by each such Electing Holder and by any such
agent and underwriter, in each case in the form most recently provided
to such person by the Company, in connection with the offering and sale
of the Registrable Securities covered by the prospectus (including such
preliminary and summary prospectus) or any supplement or amendment
thereto;
(xii) use all commercially reasonable efforts to (A) register or
qualify the Registrable Securities to be included in such Shelf
Registration Statement under such securities laws or blue sky laws of
such jurisdictions as any Electing Holder and each placement or sales
agent, if any, therefor and underwriter, if any, thereof shall
reasonably request, (B) keep such registrations or qualifications in
effect and comply with such laws so as to permit the continuance of
offers, sales and dealings therein in such jurisdictions during the
period the Shelf Registration is required to remain effective under
Section 2(a) above and for so long as may be necessary to enable any
such Electing Holder, agent or underwriter to complete its distribution
of Securities pursuant to such Shelf Registration Statement and (C)
take any and all other actions as may be reasonably necessary or
advisable to enable each such Electing Holder, agent, if any, and
underwriter, if any, to consummate the disposition in such
jurisdictions of such Registrable Securities; provided, however, that
neither the Company nor the Guarantor shall be required for any such
purpose to (1) qualify as a foreign corporation in any jurisdiction
wherein it would not otherwise be required to qualify but for the
requirements of this Section 3(c)(xii), (2) consent to general
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service of process in any such jurisdiction or (3) make any changes to
its certificate of incorporation or by-laws or any agreement between it
and its stockholders;
(xiii) use all commercially reasonable efforts to obtain the consent
or approval of each governmental agency or authority, whether federal,
state or local, which may be required to effect the Shelf Registration
or the offering or sale in connection therewith or to enable the
selling holder or holders to offer, or to consummate the disposition
of, their Registrable Securities in the jurisdictions specified by the
Electing Holders pursuant to Section 3(c)(xii);
(xiv) unless any Registrable Securities shall be in book-entry only
form, cooperate with the Electing Holders and the managing
underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold, which
certificates, if so required by any securities exchange upon which any
Registrable Securities are listed, shall be penned, lithographed or
engraved, or produced by any combination of such methods, on steel
engraved borders, and which certificates shall not bear any restrictive
legends; and, in the case of an underwritten offering, enable such
Registrable Securities to be in such denominations and registered in
such names as the managing underwriters may request at least two
business days prior to any sale of the Registrable Securities;
(xv) provide a CUSIP number for all Registrable Securities, not
later than the applicable Effective Time;
(xvi) enter into one or more underwriting agreements, engagement
letters, agency agreements, "best efforts" underwriting agreements or
similar agreements, as appropriate, including customary provisions
relating to indemnification and contribution, and take such other
actions in connection therewith as any Electing Holders aggregating at
least 20% in aggregate principal amount of the Registrable Securities
at the time outstanding shall request in order to expedite or
facilitate the disposition of such Registrable Securities;
(xvii) whether or not an agreement of the type referred to in
Section 3(c)(xvi) hereof is entered into and whether or not any portion
of the offering contemplated by the Shelf Registration is an
underwritten offering or is made through a placement or sales agent or
any other entity, (A) make such representations and warranties to the
Electing Holders and the placement or sales agent, if any, therefor and
the underwriters, if any, thereof in form, substance and scope as are
customarily made in connection with an offering of debt securities
pursuant to any appropriate agreement or to a registration statement
filed on the form applicable to the Shelf Registration; (B) obtain an
opinion of counsel to the Company in customary form (including as to
limitations on that opinion and with respect to assumptions on which
such opinion is based) and covering such matters, of the type
customarily covered by such an opinion, as the managing underwriters,
if any, or as any Electing Holders of at least 20% in aggregate
principal amount of the Registrable Securities at the time outstanding
may reasonably request, addressed to such Electing Holder or Electing
Holders and the placement or sales agent, if any, therefor and the
underwriters, if any, thereof and dated the effective date of such
Shelf Registration Statement (and if such
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Shelf Registration Statement contemplates an underwritten offering of a
part or all of the Registrable Securities, dated the date of the
closing under the underwriting agreement relating thereto) (it being
agreed that the matters to be covered by such opinion shall include the
due incorporation and good standing of the Company and its
subsidiaries; the qualification of the Company and its subsidiaries to
transact business as foreign corporations; the due authorization,
execution and delivery of the relevant agreement of the type referred
to in Section 3(c)(xvi) hereof; the due authorization, execution,
authentication and issuance, and the validity and enforceability, of
the Securities; the absence of material legal or governmental
proceedings involving the Company; the absence of a breach by the
Company or any of its subsidiaries of, or a default under, material
agreements binding upon the Company or any subsidiary of the Company;
the absence of governmental approvals required to be obtained in
connection with the Shelf Registration, the offering and sale of the
Registrable Securities, this Agreement or any agreement of the type
referred to in Section 3(c)(xvi) hereof, except such approvals as may
be required under state securities or blue sky laws; the material
compliance as to form of such Shelf Registration Statement and any
documents incorporated by reference therein and of the Exchange Note
Indenture with the requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder, respectively; and, as of the date of the opinion and of the
Shelf Registration Statement or most recent post-effective amendment
thereto, as the case may be, the absence from such Shelf Registration
Statement and the prospectus included therein, as then amended or
supplemented, and from the documents incorporated by reference therein
(in each case other than the financial statements and other financial
information contained therein) of an untrue statement of a material
fact or the omission to state therein a material fact necessary to make
the statements therein not misleading (in the case of such documents,
in the light of the circumstances existing at the time that such
documents were filed with the Commission under the Exchange Act)); (C)
obtain a "cold comfort" letter or letters from the independent
certified public accountants of the Company addressed to the selling
Electing Holders, the placement or sales agent, if any, therefor or the
underwriters, if any, thereof, dated (i) the effective date of such
Shelf Registration Statement and (ii) the effective date of any
prospectus supplement to the prospectus included in such Shelf
Registration Statement or post-effective amendment to such Shelf
Registration Statement which includes unaudited or audited financial
statements as of a date or for a period subsequent to that of the
latest such statements included in such prospectus (and, if such Shelf
Registration Statement contemplates an underwritten offering pursuant
to any prospectus supplement to the prospectus included in such Shelf
Registration Statement or post-effective amendment to such Shelf
Registration Statement which includes unaudited or audited financial
statements as of a date or for a period subsequent to that of the
latest such statements included in such prospectus, dated the date of
the closing under the underwriting agreement relating thereto), such
letter or letters to be in customary form (including as to limitations
and assumptions) and covering such matters of the type customarily
covered by letters of such type; (D) deliver such documents and
certificates, including officers' certificates, as may be reasonably
requested by any Electing Holders of at least 20% in aggregate
principal amount of the Registrable Securities at the time outstanding
or the placement or sales agent, if any, therefor and
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the managing underwriters, if any, thereof to evidence the accuracy of
the representations and warranties made pursuant to clause (A) above or
those contained in Section 5(a) hereof and the compliance with or
satisfaction of any agreements or conditions contained in the
underwriting agreement or other agreement entered into by the Company
or the Guarantor; and (E) undertake such obligations relating to
expense reimbursement, indemnification and contribution as are provided
in Section 6 hereof;
(xviii) notify in writing each holder of Registrable Securities of
any proposal by the Company to amend or waive any provision of this
Agreement pursuant to Section 9(h) hereof and of any amendment or
waiver effected pursuant thereto, each of which notices shall contain
the text of the amendment or waiver proposed or effected, as the case
may be;
(xix) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or participate
as a member of an underwriting syndicate or selling group or "assist in
the distribution" (within the meaning of the Conduct Rules (the
"CONDUCT RULES") of the National Association of Securities Dealers,
Inc. ("NASD") or any successor thereto, as amended from time to time)
thereof, whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, assist such broker-dealer in complying
with the requirements of such Conduct Rules, including by (A) if such
Conduct Rules shall so require, engaging a "qualified independent
underwriter" (as defined in such Conduct Rules) to participate in the
preparation of the Shelf Registration Statement relating to such
Registrable Securities, to exercise usual standards of due diligence in
respect thereto and, if any portion of the offering contemplated by
such Shelf Registration Statement is an underwritten offering or is
made through a placement or sales agent, to recommend the yield of such
Registrable Securities, (B) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters
provided in Section 6 hereof (or to such other customary extent as may
be requested by such underwriter), and (C) providing such information
to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Conduct Rules; and
(xx) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon
as practicable but in any event not later than eighteen months after
the effective date of such Shelf Registration Statement, an earning
statement of the Company and its subsidiaries complying with Section
11(a) of the Securities Act (including, at the option of the Company,
Rule 158 thereunder).
(d) In the event that the Company would be required, pursuant to Section
3(c)(viii)(F) above, to notify the Electing Holders, the placement or sales
agent, if any, therefor and the managing underwriters, if any, thereof, the
Company shall without delay prepare and furnish to each of the Electing
Holders, to each placement or sales agent, if any, and to each such
underwriter, if any, a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers of
Registrable Securities, such prospectus shall
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conform in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and regulations of
the Commission thereunder and shall 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 in light of the
circumstances then existing. Each Electing Holder agrees that upon receipt of
any notice from the Company pursuant to Section 3(c)(viii)(F) hereof, such
Electing Holder shall forthwith discontinue the disposition of Registrable
Securities pursuant to the Shelf Registration Statement applicable to such
Registrable Securities until such Electing Holder shall have received copies
of such amended or supplemented prospectus, and if so directed by the
Company, such Electing Holder shall deliver to the Company (at the Company's
expense) all copies, other than permanent file copies, then in such Electing
Holder's possession of the prospectus covering such Registrable Securities at
the time of receipt of such notice.
(e) In the event of a Shelf Registration, in addition to the information
required to be provided by each Electing Holder in its Notice Questionnaire,
the Company may require such Electing Holder to furnish to the Company such
additional information regarding such Electing Holder and such Electing
Holder's intended method of distribution of Registrable Securities as may be
required in order to comply with the Securities Act. Each such Electing
Holder agrees to notify the Company as promptly as practicable of any
inaccuracy or change in information previously furnished by such Electing
Holder to the Company or of the occurrence of any event in either case as a
result of which any prospectus relating to such Shelf Registration contains
or would contain an untrue statement of a material fact regarding such
Electing Holder or such Electing Holder's intended method of disposition of
such Registrable Securities or omits to state any material fact regarding
such Electing Holder or such Electing Holder's intended method of disposition
of such Registrable Securities required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing, and promptly to furnish to the Company any additional information
required to correct and update any previously furnished information or
required so that such prospectus shall not contain, with respect to such
Electing Holder or the disposition of such Registrable Securities, 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 in
light of the circumstances then existing.
(f) Until the expiration of two years after the Closing Date, the Company
will not, and will not permit any of its "affiliates" (as defined in Rule
144) to, resell any of the Securities that have been resold pursuant to an
effective registration statement but subsequently reacquired by any of them
except pursuant to an effective registration statement under the Securities
Act.
4. REGISTRATION EXPENSES. The Company agrees to bear and to pay or cause
to be paid promptly all expenses incident to the Company's performance of or
compliance with this Agreement, including (a) all Commission and any NASD
registration, filing and review fees and expenses including fees and
disbursements of one counsel for the placement or sales agent or underwriters in
connection with such registration, filing and review, (b) all fees and expenses
in connection with the qualification of the Securities for offering and sale
under the State securities and blue sky laws referred to in Section 3(c)(xii)
hereof and determination of their eligibility for investment under the laws of
such jurisdictions in the United States as any managing
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underwriters or the Electing Holders may designate, including any fees and
disbursements of one counsel for the Electing Holders (selected by the majority
of Electing Holders) or underwriters in connection with such qualification and
determination, (c) all expenses relating to the preparation, printing,
production, distribution and reproduction of each registration statement
required to be filed hereunder, each prospectus included therein or prepared for
distribution pursuant hereto, each amendment or supplement to the foregoing, the
expenses of preparing the Securities for delivery and the expenses of printing
or producing any underwriting agreements, agreements among underwriters, selling
agreements and blue sky or legal investment memoranda and all other documents in
connection with the offering, sale or delivery of Securities to be disposed of
(including certificates representing the Securities), (d) messenger, telephone
and delivery expenses relating to the offering, sale or delivery of Securities
and the preparation of documents referred in clause (c) above, (e) fees and
expenses of the Trustee under the Exchange Note Indenture, any agent of the
Trustee and any counsel for the Trustee and of any collateral agent or
custodian, (f) internal expenses (including all salaries and expenses of the
Company's officers and employees performing legal or accounting duties), (g)
fees, disbursements and expenses of counsel and independent certified public
accountants of the Company (including the expenses of any opinions or "cold
comfort" letters required by or incident to such performance and compliance),
(h) fees, disbursements and expenses of any "qualified independent underwriter"
engaged pursuant to Section 3(c)(xix) hereof, (i) fees, disbursements and
expenses of one counsel for the Electing Holders retained in connection with a
Shelf Registration, as selected by the Electing Holders of at least a majority
in aggregate principal amount of the Registrable Securities held by Electing
Holders (which counsel shall be reasonably satisfactory to the Company), (j) any
fees charged by securities rating services for rating the Securities, and (k)
fees, expenses and disbursements of any other persons, including special
experts, retained by the Company in connection with such registration
(collectively, the "REGISTRATION EXPENSES"). To the extent that any Registration
Expenses are incurred, assumed or paid by any holder of Registrable Securities
or any placement or sales agent therefor or underwriter thereof, the Company
shall reimburse such person for the full amount of the Registration Expenses so
incurred, assumed or paid promptly after receipt of a request therefor.
Notwithstanding the foregoing, the holders of the Registrable Securities being
registered shall pay all agency fees and commissions and underwriting discounts
and commissions attributable to the sale of such Registrable Securities and the
fees and disbursements of any counsel or other advisors or experts retained by
such holders (severally or jointly), other than the counsel and experts
specifically referred to above.
5. REPRESENTATIONS AND WARRANTIES. The Company and the Guarantors
represent and warrant to, and agree with, the Arranger, the Administrative Agent
and each Lender and each of the holders from time to time of Registrable
Securities that:
(a) Each registration statement covering Registrable Securities and each
prospectus (including any preliminary or summary prospectus) contained
therein or furnished pursuant to Section 3(c) or Section 3(d) hereof and any
further amendments or supplements to any such registration statement or
prospectus, when it becomes effective or is filed with the Commission, as the
case may be, and, in the case of an underwritten offering of Registrable
Securities, at the time of the closing under the underwriting agreement
relating thereto, will conform in all material respects to the requirements
of the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
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stated therein or necessary to make the statements therein not misleading;
and at all times subsequent to the Effective Time when a prospectus would be
required to be delivered under the Securities Act, other than from (i) such
time as a notice has been given to holders of Registrable Securities pursuant
to Section 3(c)(viii)(F) hereof until (ii) such time as the Company furnishes
an amended or supplemented prospectus pursuant to Section 3(d) or Section
hereof, each such registration statement, and each prospectus (including any
summary prospectus) contained therein or furnished pursuant to Section 3(c)
hereof, as then amended or supplemented, will conform in all material
respects to the requirements of the Securities Act and the Trust Indenture
Act and the rules and regulations of the Commission thereunder and will 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 in the light of the circumstances then existing;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by a holder of Registrable
Securities expressly for use therein.
(b) Any documents incorporated by reference in any prospectus referred to
in Section 5(a) hereof, when they become or became effective or are or were
filed with the Commission, as the case may be, will conform or conformed in
all material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and none of such documents will contain or
contained an untrue statement of a material fact or will omit or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing
to the Company by a holder of Registrable Securities expressly for use
therein.
(c) The compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions herein contemplated will
not conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any
subsidiary of the Company is a party or by which the Company or any
subsidiary of the Company is bound or to which any of the property or assets
of the Company or any subsidiary of the Company is subject, nor will such
action result in any violation of the provisions of the certificate of
incorporation, as amended, or the by-laws of the Company or the Guarantors or
any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any subsidiary of the
Company or any of their properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the consummation by the Company
and the Guarantors of the transactions contemplated by this Agreement, except
the registration under the Securities Act of the Securities, qualification of
the Exchange Note Indenture under the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under State securities or blue sky laws in connection with the offering and
distribution of the Securities.
(d) This Agreement has been duly authorized, executed and delivered by the
Company.
6. INDEMNIFICATION.
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(a) Indemnification by the Company and the Guarantors. The Company and
each of the Guarantors, jointly and severally, will indemnify and hold
harmless each of the holders of Registrable Securities included in an
Exchange Registration Statement, each of the Electing Holders of Registrable
Securities included in a Shelf Registration Statement and each person who
participates as a placement or sales agent or as an underwriter in any
offering or sale of such Registrable Securities against any losses, claims,
damages or liabilities, joint or several, to which such holder, agent or
underwriter may become subject under the Securities Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Exchange Registration Statement
or Shelf Registration Statement, as the case may be, under which such
Registrable Securities were registered under the Securities Act, or any
preliminary, final or summary prospectus contained therein or furnished by
the Company to any such holder, Electing Holder, agent or underwriter, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
and will reimburse such holder, such Electing Holder, such agent and such
underwriter for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that none of the Company or any
Guarantor shall be liable to any such person in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, or preliminary, final or
summary prospectus, or amendment or supplement thereto, in reliance upon and
in conformity with written information furnished to the Company by such
person expressly for use therein.
(b) Indemnification by the Holders and any Agents and Underwriters. The
Company may require, as a condition to including any Registrable Securities
in any registration statement filed pursuant to Section 2(a) hereof and to
entering into any underwriting agreement with respect thereto, that the
Company shall have received an undertaking reasonably satisfactory to it from
the Electing Holder of such Registrable Securities and from each underwriter
named in any such underwriting agreement, severally and not jointly, to (i)
indemnify and hold harmless the Company, each Guarantor, and all other
holders of Registrable Securities, against any losses, claims, damages or
liabilities to which the Company, the Guarantors or such other holders of
Registrable Securities may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in such registration
statement, or any preliminary, final or summary prospectus contained therein
or furnished by the Company to any such Electing Holder, agent or
underwriter, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information
furnished to the Company by such Electing Holder or underwriter expressly for
use therein, and (ii) reimburse the Company and the Guarantors for any legal
or other expenses reasonably incurred by the Company and the Guarantors in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that no such Electing Holder shall
be required to undertake liability to any person
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under this Section 6(b) for any amounts in excess of the dollar amount of the
proceeds to be received by such Electing Holder from the sale of such
Electing Holder's Registrable Securities pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified party
under subsection (a) or (b) above of written notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to
be made against an indemnifying party pursuant to the indemnification
provisions of or contemplated by this Section 6, notify such indemnifying
party in writing of the commencement of such action; but the omission so to
notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under the indemnification
provisions of or contemplated by Section 6(a) or 6(b) hereof. In case any
such action shall be brought against any indemnified party and it shall
notify an indemnifying party of the commencement thereof, such indemnifying
party shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, such indemnifying party shall not be liable to such
indemnified party for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of
the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action
or claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) are unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and the
indemnified party in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative fault of such indemnifying party and indemnified party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state
a material fact relates to information supplied by such indemnifying party or
by such indemnified party, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 6(d) were determined by pro rata
allocation (even if the holders or any agents or underwriters or all of them
were treated as one entity for such purpose) or by any other method of
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allocation which does not take account of the equitable considerations
referred to in this Section 6(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, or liabilities
(or actions in respect thereof) referred to above shall be deemed to include
any legal or other fees or expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6(d), no holder shall be
required to contribute any amount in excess of the amount by which the dollar
amount of the proceeds received by such holder from the sale of any
Registrable Securities (after deducting any fees, discounts and commissions
applicable thereto) 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, and no underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages
which such underwriter 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' and any
underwriters' obligations in this Section 6(d) to contribute shall be several
in proportion to the principal amount of Registrable Securities registered or
underwritten, as the case may be, by them and not joint.
(e) The obligations of the Company and the Guarantors under this Section 6
shall be in addition to any liability which the Company or any Guarantor may
otherwise have and shall extend, upon the same terms and conditions, to each
officer, director and partner of each holder, agent and underwriter and each
person, if any, who controls any holder, agent or underwriter within the
meaning of the Securities Act; and the obligations of the holders and any
agents or underwriters contemplated by this Section 6 shall be in addition to
any liability which the respective holder, agent or underwriter may otherwise
have and shall extend, upon the same terms and conditions, to each officer
and director of the Company and each Guarantor (including any person who,
with his consent, is named in any registration statement as about to become a
director of the Company or the Guarantor) and to each person, if any, who
controls the Company within the meaning of the Securities Act.
7. UNDERWRITTEN OFFERINGS.
(a) Selection of Underwriters. If any of the Registrable Securities
covered by the Shelf Registration are to be sold pursuant to an underwritten
offering, the managing underwriter or underwriters thereof shall be
designated by Electing Holders holding at least a majority in aggregate
principal amount of the Registrable Securities to be included in such
offering, provided that such designated managing underwriter or underwriters
is or are reasonably acceptable to the Company.
(b) Participation by Holders. Each holder of Registrable Securities hereby
agrees with each other such holder that no such holder may participate in any
underwritten offering hereunder unless such holder (i) agrees to sell such
holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
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attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
8. RULE 144.
The Company covenants to the holders of Registrable Securities that to
the extent it shall be required to do so under the Exchange Act, the Company
shall timely file the reports required to be filed by it under the Exchange Act
or the Securities Act (including the reports under Section 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by the
Commission under the Securities Act) and the rules and regulations adopted by
the Commission thereunder, and shall take such further action as any holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitations of the exemption
provided by Rule 144 under the Securities Act, as such Rule may be amended from
time to time, or any similar or successor rule or regulation hereafter adopted
by the Commission. Upon the request of any holder of Registrable Securities in
connection with that holder's sale pursuant to Rule 144, the Company shall
deliver to such holder a written statement as to whether it has complied with
such requirements.
9. MISCELLANEOUS.
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant,
registration rights with respect to Registrable Securities or any other
securities which would be inconsistent with the terms contained in this
Agreement.
(b) Specific Performance. The parties hereto acknowledge that there would
be no adequate remedy at law if the Company or any Guarantor fails to perform
any of its obligations hereunder and that the Lenders and the holders from
time to time of the Registrable Securities may be irreparably harmed by any
such failure, and accordingly agree that the Lenders and such holders, in
addition to any other remedy to which they may be entitled at law or in
equity, shall be entitled to compel specific performance of the obligations
of the Company under this Agreement in accordance with the terms and
conditions of this Agreement, in any court of the United States or any State
thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows:
(i) if to a holder of Registrable Securities, at the most
current address set forth in the security register or other records
of the Company, or to such other address as the Company or any such
holder may have furnished to the other in writing in accordance
herewith (except that notices of change of address shall be
effective only upon receipt), which address initially is, with
respect to the Arranger to it at the address set forth in the Credit
Agreement, with a copy to Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx,
Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx xx Xxxx;
and
B-18
(ii) if to Company, initially to them at the address set forth
in the Credit Agreement and thereafter at such other address, notice
of which is given in accordance with the provisions of this Section,
with a copy to Xxxxxx Xxxxx LLP, 0000 Xxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxxxxx 00000 Attn.: Xxxx Xxxxxxxxx.
(d) Parties in Interest. All the terms and provisions of this Agreement
shall be binding upon, shall inure to the benefit of and shall be enforceable
by the parties hereto and the holders from time to time of the Registrable
Securities and the respective successors and assigns of the parties hereto
and such holders. In the event that any transferee of any holder of
Registrable Securities shall acquire Registrable Securities, in any manner,
whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be
deemed a beneficiary hereof for all purposes and such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by taking
and holding such Registrable Securities such transferee shall be entitled to
receive the benefits of, and be conclusively deemed to have agreed to be
bound by all of the applicable terms and provisions of this Agreement. If the
Company shall so request, any such successor, assign or transferee shall
agree in writing to acquire and hold the Registrable Securities subject to
all of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Agreement or made
pursuant hereto shall remain in full force and effect regardless of any
investigation (or statement as to the results thereof) made by or on behalf
of any holder of Registrable Securities, any director, officer or partner of
such holder, any agent or underwriter or any director, officer or partner
thereof, or any controlling person of any of the foregoing, and shall survive
delivery of and payment for the Registrable Securities pursuant to the
Purchase Agreement and the transfer and registration of Registrable
Securities by such holder and the consummation of an Exchange Offer.
(F) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the
meaning or interpretation of this Agreement.
(h) Entire Agreement; Amendments. This Agreement and the other writings
referred to herein (including the Exchange Note Indenture and the form of
Securities) or delivered pursuant hereto which form a part hereof contain the
entire understanding of the parties with respect to its subject matter. This
Agreement supersedes all prior agreements and understandings between the
parties with respect to its subject matter. This Agreement may be amended and
the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively) only
by a written instrument duly executed by the Company and the holders of at
least a majority in aggregate principal amount of the Registrable Securities
at the time outstanding. Each holder of any Registrable Securities at the
time or thereafter outstanding shall be bound by any amendment or waiver
effected pursuant to this Section 9(h), whether or not any notice, writing or
marking indicating such amendment or waiver appears on such Registrable
Securities or is delivered to such holder.
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(i) Inspection. For so long as this Agreement shall be in effect, this
Agreement and a complete list of the names and addresses of all the holders
of Registrable Securities shall be made available for inspection and copying
on any business day by any holder of Registrable Securities for proper
purposes only (which shall include any purpose related to the rights of the
holders of Registrable Securities under the Securities, the Exchange Note
Indenture and this Agreement) at the offices of the Company at the address
thereof set forth in Section 9(c) above and at the office of the Trustee
under the Exchange Note Indenture.
(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
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If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof, and upon the acceptance hereof by the
Arranger, on behalf of each of the Lenders, this letter and such acceptance
hereof shall constitute a binding agreement among the Company, the Guarantors,
the Arranger and each Lender under the Credit Agreement.
Very truly yours,
XXXX XXXXXXX CORPORATION
By: /s/ XXXXXX X. XXXXX, XX.
-------------------------------------
Xxxxxx X. Xxxxx, Xx., Chief Financial
Officer
XXXX XXXXXXX PROPERTIES INC.
By: /s/ XXXXXX X. XXXXX, XX.
-------------------------------------
Xxxxxx X. Xxxxx, Xx., Chief Financial
Officer
XXXX XXXXXXX PRODUCTION COMPANY
By: /s/ XXXXXX X. XXXXX, XX.
-------------------------------------
Xxxxxx X. Xxxxx, Xx., Chief Financial
Officer
XXXXXXX SACHS CREDIT PARTNERS L.P.
By: /s/ XXXXXX X. XXXXXX
--------------------------------
Xxxxxx X. Xxxxxx, Managing Director
B-21
