Exhibit 4.4
$110,000,000
XXXXXX OFFSHORE LLC
XXXXXX OFFSHORE FINANCE CORP.
10% Senior Notes due 2008
REGISTRATION RIGHTS AGREEMENT
April 29, 1998
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXXXXXX XXXXXXX SECURITIES, INC.
c/o Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
Xxxxxx Offshore LLC, a Delaware limited liability company ("Xxxxxx"),
and Xxxxxx Offshore Finance Corp., a Delaware corporation ("Finance" and,
together with Xxxxxx, the "Issuers"), propose to issue and sell to Credit
Suisse First Boston Corporation and Xxxxxxxxxxx Xxxxxxx Securities, Inc.
(collectively, the "Initial Purchasers"), upon the terms set forth in a
purchase agreement of even date herewith (the "Purchase Agreement"),
$110,000,000 aggregate principal amount of their 10% Senior Notes due 2008
(the "Initial Securities") to be unconditionally guaranteed (the
"Guaranties") by Xxxxxx Columbus LLC, a Delaware limited liability company
("Columbus") and Xxxxxx Magellan LLC, a Delaware limited liability company
("Magellan" and, together with Columbus, the "Guarantors" and together with
the Issuer, the "Company"). The Initial Securities will be issued pursuant to
an Indenture, dated as of April 29, 1998, (the "Indenture") among the Issuer,
the Guarantors named therein and U.S. Bank Trust National Association (the
"Trustee"). As an inducement to the Initial Purchasers, the Issuers agree
with the Initial Purchasers, for the benefit of the holders of the Initial
Securities (including, without limitation, the Initial Purchasers), the
Exchange Securities (as defined below) and the Private Exchange Securities
(as defined below) (collectively, the "Holders"), as follows:
1. Registered Exchange Offer. The Issuers shall, at their own cost,
prepare and, not later than 60 days after (or if the 60th day is not a
business day, the first business day thereafter) the date of original issue
of the Initial Securities (the "Issue Date"), file with the Securities and
Exchange Commission (the "Commission") a registration statement (the
"Exchange Offer Registration
Statement") on an appropriate form under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to a proposed offer (the
"Registered Exchange Offer") to the Holders of Transfer Restricted Securities
(as defined in Section 6 hereof), who are not prohibited by any law or policy
of the Commission from participating in the Registered Exchange Offer, to
issue and deliver to such Holders, in exchange for the Initial Securities, a
like aggregate principal amount of debt securities (the "Exchange
Securities") of the Issuers issued under the Indenture and identical in all
material respects to the Initial Securities (except for the transfer
restrictions relating to the Initial Securities and the provisions relating
to the matters described in Section 6 hereof) that would be registered under
the Securities Act. The Issuers shall use their reasonable best efforts to
cause such Exchange Offer Registration Statement to become effective under
the Securities Act within 120 days (or if the 120th day is not a business
day, the first business day thereafter) after the Issue Date of the Initial
Securities and shall keep the Exchange Offer Registration Statement effective
for not less than 30 days (or longer, if required by applicable law) after
the date notice of the Registered Exchange Offer is mailed to the Holders
(such period being called the "Exchange Offer Registration Period").
If the Issuers effect the Registered Exchange Offer, the Issuers will be
entitled to close the Registered Exchange Offer 30 days after the
commencement thereof provided that the Issuers have accepted all the Initial
Securities theretofore validly tendered and not withdrawn in accordance with
the terms of the Registered Exchange Offer.
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Issuers shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder of Transfer Restricted Securities (as defined in Section 6
hereof) electing to exchange the Initial Securities for Exchange Securities
(assuming that such Holder is not an affiliate of the Issuers within the
meaning of the Securities Act, acquires the Exchange Securities in the
ordinary course of such Xxxxxx's business and has no arrangements with any
person to participate in the distribution of the Exchange Securities and is
not prohibited by any law or policy of the Commission from participating in
the Registered Exchange Offer) to trade such Exchange Securities from and
after their receipt without any limitations or restrictions under the
Securities Act and without material restrictions under the securities laws of
the several states of the United States.
The Issuers and the Initial Purchasers acknowledge that, pursuant to
current interpretations by the Commission's staff of Section 5 of the
Securities Act, in the absence of an applicable exemption therefrom, (i) each
Holder which is a broker-dealer electing to exchange Securities, acquired for
its own account as a result of market making activities or other trading
activities, for Exchange Securities (an "Exchanging Dealer"), is required to
deliver a prospectus containing the information set forth in (a) Annex A
hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures"
section and the "Purpose of the Exchange Offer" section, and (c) Annex C
hereto in the "Plan of Distribution" section of such prospectus in connection
with a sale of any such Exchange Securities received by such Exchanging
Dealer pursuant to the Registered Exchange Offer and (ii) an Initial
Purchaser that elects to sell Exchange Securities acquired in exchange for
Initial Securities constituting any portion of an unsold allotment is
required to deliver a prospectus containing the
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information required by Items 507 or 508 of Regulation S-K under the Securities
Act, as applicable, in connection with such sale.
The Issuers shall use their reasonable best efforts to keep the Exchange
Offer Registration Statement effective and to amend and supplement the
prospectus contained therein, in order to permit such prospectus to be
lawfully delivered by all persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such persons
must comply with such requirements in order to resell the Exchange
Securities; provided, however, that (i) in the case where such prospectus and
any amendment or supplement thereto must be delivered by an Exchanging Dealer
or an Initial Purchaser, such period shall be the lesser of 180 days and the
date on which all Exchanging Dealers and the Initial Purchasers have sold all
Exchange Securities held by them (unless such period is extended pursuant to
Section 3(j) below) and (ii) the Issuers shall make such prospectus and any
amendment or supplement thereto, available to any broker-dealer for use in
connection with any resale of any Exchange Securities for a period of not
less than 90 days after the consummation of the Registered Exchange Offer.
If, upon consummation of the Registered Exchange Offer, any Initial
Purchaser holds Initial Securities acquired by it as part of its initial
distribution, the Issuers, simultaneously with the delivery of the Exchange
Securities pursuant to the Registered Exchange Offer, shall issue and deliver
to such Initial Purchaser upon the written request of such Initial Purchaser,
in exchange (the "Private Exchange") for the Initial Securities held by such
Initial Purchaser, a like principal amount of debt securities of the Issuers
issued under the Indenture and identical in all material respects (including
the existence of restrictions on transfer under the Securities Act and the
securities laws of the several states of the United States, but excluding
provisions relating to the matters described in Section 6 hereof) to the
Initial Securities (the "Private Exchange Securities"). The Initial
Securities, the Exchange Securities and the Private Exchange Securities are
herein collectively called the "Securities".
In connection with the Registered Exchange Offer, the Issuers shall:
(a) mail to each Holder a copy of the prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30
days (or longer, if required by applicable law) after the date notice thereof
is mailed to the Holders;
(c) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of New
York, which may be the Trustee or an affiliate of the Trustee;
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(d) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last business day on
which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws.
As soon as practicable after the close of the Registered Exchange Offer
or the Private Exchange, as the case may be, the Issuers shall:
(x) accept for exchange all the Securities validly tendered and
not withdrawn pursuant to the Registered Exchange Offer and the Private
Exchange;
(y) deliver to the Trustee for cancellation all the Initial
Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each
Holder of the Initial Securities, Exchange Securities or Private Exchange
Securities, as the case may be, equal in principal amount to the Initial
Securities of such Holder so accepted for exchange.
The Indenture will provide that the Exchange Securities will not be
subject to the transfer restrictions set forth in the Indenture and that all
the Securities will vote and consent together on all matters as one class and
that none of the Securities will have the right to vote or consent as a class
separate from one another on any matter.
Interest on each Exchange Security and Private Exchange Security issued
pursuant to the Registered Exchange Offer and in the Private Exchange will
accrue from the last interest payment date on which interest was paid on the
Initial Securities surrendered in exchange therefor or, if no interest has
been paid on the Initial Securities, from the date of original issue of the
Initial Securities.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Issuers that at the time of the consummation of
the Registered Exchange Offer (i) any Exchange Securities received by such
Holder will be acquired in the ordinary course of business, (ii) such Holder
will have no arrangements or understanding with any person to participate in
the distribution of the Securities or the Exchange Securities within the
meaning of the Securities Act, (iii) such Holder is not an "affiliate," as
defined in Rule 405 of the Securities Act, of either of the Issuers or if it
is an affiliate, such Holder will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable, (iv) if
such Holder is not a broker-dealer, that it is not engaged in, and does not
intend to engage in, the distribution of the Exchange Securities and (v) if
such Holder is a broker-dealer, that it will receive Exchange Securities for
its own account in exchange for Initial Securities that were acquired as a
result of market-making activities or other trading activities and that it
will be required to acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Securities.
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Notwithstanding any other provisions hereof, the Issuers will ensure
that (i) any Exchange Offer Registration Statement and any amendment thereto
and any prospectus forming part thereof and any supplement thereto complies
in all material respects with the Securities Act and the rules and
regulations thereunder, (ii) any Exchange Offer Registration Statement and
any amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) any prospectus forming part of any Exchange Offer Registration
Statement, and any supplement to such prospectus, does not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
2. Shelf Registration. If, (i) because of any change in law or in
applicable interpretations thereof by the staff of the Commission, the
Issuers are not permitted to effect a Registered Exchange Offer, as
contemplated by Section 1 hereof, (ii) the Registered Exchange Offer is not
consummated within 150 days of the Issue Date, (iii) any Initial Purchaser so
requests with respect to the Initial Securities (or the Private Exchange
Securities) not eligible to be exchanged for Exchange Securities in the
Registered Exchange Offer and held by it following consummation of the
Registered Exchange Offer or (iv) any Holder (other than an Exchanging
Dealer) is not eligible to participate in the Registered Exchange Offer or,
in the case of any Holder (other than an Exchanging Dealer) that participates
in the Registered Exchange Offer, such Holder does not receive freely
tradeable Exchange Securities on the date of the exchange, the Issuers shall
take the following actions:
(a) The Issuers shall, at their cost, as promptly as practicable (but
in no event more than 60 days after so required or requested pursuant to this
Section 2) file with the Commission and thereafter shall use their reasonable
best efforts to cause to be declared effective a registration statement (the
"Shelf Registration Statement" and, together with the Exchange Offer
Registration Statement, a "Registration Statement") on an appropriate form
under the Securities Act relating to the offer and sale of the Transfer
Restricted Securities (as defined in Section 6 hereof) by the Holders thereof
from time to time in accordance with the methods of distribution set forth in
the Shelf Registration Statement and Rule 415 under the Securities Act
(hereinafter, the "Shelf Registration"); provided, however, that with respect
to Exchange Securities received by an Initial Purchaser in exchange for
Initial Securities constituting any portion of an unsold allotment, the
Issuers may, if permitted by current interpretations by the Commission's
staff, file a post-effective amendment to the Exchange Offer Registration
Statement containing the information required by Regulation S-K Items 507
and/or 508, as applicable, in satisfaction of its obligations under this
paragraph (a) with respect thereof, and any such Exchange Offer Registration
Statement, as so amended, shall be referred to herein as, and governed by,
the provisions herein applicable to, a Shelf Registration Statement; and
provided further, however, that no Holder (other than an Initial Purchaser)
shall be entitled to have the Securities held by it covered by such Shelf
Registration Statement unless such Holder agrees in writing to be bound by
all the provisions of this Agreement applicable to such Holder as provided in
a written notice and questionnaire delivered to all Holders (including the
Initial Purchasers) notifying such Holders that a Shelf Registration
Statement will be filed by the Issuers, requesting such information with
respect to the Holders as required to be disclosed by the
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Shelf Registration Statement and setting forth a deadline for response
therein (which in no event shall be less than 30 calendar days).
(b) The Issuers shall use their reasonable best efforts to keep the
Shelf Registration Statement continuously effective in order to permit the
prospectus included therein to be lawfully delivered by the Holders of the
relevant Securities, for a period of two years (or for such longer period if
extended pursuant to Section 3(j) below) from the date of its effectiveness
or such shorter period that will terminate when all the Securities covered by
the Shelf Registration Statement (i) have been sold pursuant thereto or (ii)
are no longer restricted securities (as defined in Rule 144 under the
Securities Act, or any successor rule thereof). During any consecutive
365-day period, the Issuers will have the ability to suspend the availability
of the Shelf Registration Statement for up to two periods of up to 45
consecutive days, but no more than an aggregate of 60 days during any 365-
day period. The Issuers shall be deemed not to have used their reasonable
best efforts to keep the Shelf Registration Statement effective during the
requisite period if they voluntarily take any action that would result in
Holders of Securities covered thereby not being able to offer and sell such
Securities during that period, unless (i) such action is required by
applicable law, or (ii) upon the occurrence of any event contemplated by
Section 3(b)(ii) through (v) below, such action is taken by the Issuer in
good faith and for valid business reasons (not including avoidance of the
Issuers' obligations hereunder), so long as the Issuers promptly thereafter
comply with the requirements of Section 3(j) hereof, if applicable, if the
Issuers have determined in good faith that there are no material legal or
commercial impediments in so doing.
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Issuers shall cause the Shelf Registration Statement and the
related prospectus and any amendment or supplement thereto, as of the
effective date of the Shelf Registration Statement, amendment or supplement,
(i) to comply in all material respects with the applicable requirements of
the Securities Act and the rules and regulations of the Commission and (ii)
not to contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading (other than with respect to information supplied in writing by
the selling Holders for expressly use in the Shelf Registration Statement
pursuant to this Agreement).
3. Registration Procedures. In connection with any Shelf Registration
contemplated by Section 2 hereof and, to the extent applicable, any
Registered Exchange Offer contemplated by Section 1 hereof, the following
provisions shall apply:
(a) The Issuers shall (i) furnish to each Initial Purchaser, prior to
the filing thereof with the Commission, a copy of the Registration Statement
and each amendment thereof and each supplement, if any, to the prospectus
included therein and, in the event that an Initial Purchaser (with respect to
any portion of an unsold allotment from the original offering) is
participating in the Registered Exchange Offer or the Shelf Registration
Statement, the Issuers shall use their reasonable best efforts to reflect in
each such document, when so filed with the Commission, such comments as such
Initial Purchaser reasonably may propose; (ii) include the information set
forth in Annex A
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hereto on the cover, in Annex B hereto in the "Exchange Offer Procedures"
section and the "Purpose of the Exchange Offer" section and in Annex C hereto
in the "Plan of Distribution" section of the prospectus forming a part of the
Exchange Offer Registration Statement and include the information set forth
in Annex D hereto in the Letter of Transmittal delivered pursuant to the
Registered Exchange Offer; (iii) if requested by an Initial Purchaser,
include the information required by Items 507 or 508 of Regulation S-K under
the Securities Act, as applicable, in the prospectus forming a part of the
Exchange Offer Registration Statement; (iv) include within the prospectus
contained in the Exchange Offer Registration Statement a section entitled
"Plan of Distribution," reasonably acceptable to the Initial Purchasers,
which shall contain a summary statement of the positions taken or policies
made by the staff of the Commission with respect to the potential
"underwriter" status of any broker-dealer that is the beneficial owner (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) of Exchange Securities received by such broker-dealer
in the Registered Exchange Offer (a "Participating Broker-Dealer"), whether
such positions or policies have been publicly disseminated by the staff of
the Commission or such positions or policies, in the reasonable judgment of
the Initial Purchasers based upon advice of counsel (which may be in-house
counsel), represent the prevailing views of the staff of the Commission; and
(v) in the case of a Shelf Registration Statement, include the names of the
Holders, who propose to sell Securities pursuant to the Shelf Registration
Statement, as selling securityholders.
(b) The Issuers shall give written notice to the Initial Purchasers,
and, in the case of a Shelf Registration Statement only, the Holders of the
Securities and, in the case of a Exchange Offer Registration Statement only,
any Participating Broker-Dealer from whom the Issuers have received prior
written notice that it will be a Participating Broker-Dealer in the
Registered Exchange Offer (which notice pursuant to clauses (ii)-(v) hereof
shall be accompanied by an instruction to suspend the use of the prospectus
until the requisite changes have been made):
(i) when the Registration Statement or any amendment thereto has
been filed with the Commission and when the Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements
to the Registration Statement or the prospectus included therein or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Issuers or their legal counsel of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose; and
7
(v) of the happening of any event that requires the Issuers to make
changes in the Registration Statement or the prospectus in order that the
Registration Statement or the prospectus do not contain an untrue
statement of a material fact nor omit to state a material fact required to
be stated therein or necessary to make the statements therein (in the case
of the prospectus, in light of the circumstances under which they were
made) not misleading (which written notice shall be accompanied by an
instruction to suspend the use of the prospectus until the requisite
changes have been made and which need not provide any detail as to the
nature of such event).
(c) The Issuers shall make every reasonable commercial effort to
obtain the withdrawal, at the earliest possible time, of any order suspending
the effectiveness of the Registration Statement.
(d) The Issuers shall furnish to each Holder of Securities included
within the coverage of the Shelf Registration and each Initial Purchaser,
without charge, one copy of the Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if the Holder or Initial Purchaser so requests in writing,
all exhibits thereto (excluding those, if any, incorporated by reference and
available on-line via XXXXX).
(e) The Issuers shall deliver to each Exchanging Dealer and each
Initial Purchaser, without charge, one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, and, if any Initial Purchaser or any such
Exchanging Dealer requests, all exhibits thereto (excluding, those, if any,
incorporated by reference and available on-line via XXXXX).
(f) The Issuers shall, during the Shelf Registration Period, deliver
to each Holder of Securities included within the coverage of the Shelf
Registration, without charge, as many copies of the prospectus (including
each preliminary prospectus) included in the Shelf Registration Statement and
any amendment or supplement thereto as such person may reasonably request.
The Issuers consent, subject to the provisions of this Agreement, to the use
of the prospectus or any amendment or supplement thereto by each of the
selling Holders of the Securities in connection with the offering and sale of
the Securities covered by the prospectus, or any amendment or supplement
thereto, included in the Shelf Registration Statement.
(g) The Issuers shall deliver to each Initial Purchaser, any
Exchanging Dealer, any Participating Broker-Dealer and such other persons
required to deliver a prospectus following the Registered Exchange Offer,
without charge, as many copies of the final prospectus included in the
Exchange Offer Registration Statement and any amendment or supplement thereto
as such persons may reasonably request. The Issuers consent, subject to the
provisions of this Agreement, to the use of the prospectus or any amendment
or supplement thereto by any Initial Purchaser, if necessary, any
Participating Broker-Dealer and such other persons required to deliver a
prospectus following the Registered Exchange Offer in connection with the
offering and sale of the Exchange
8
Securities covered by the prospectus, or any amendment or supplement thereto,
included in such Exchange Offer Registration Statement.
(h) Prior to any public offering of the Securities, pursuant to any
Registration Statement, the Issuers shall register or qualify or cooperate
with the Holders of the Securities included therein and their respective
counsel in connection with the registration or qualification of the
Securities for offer and sale under the securities or "blue sky" laws of such
states of the United States as any Holder of the Securities reasonably
requests in writing and do any and all other acts or things necessary or
advisable to enable the offer and sale in such jurisdictions of the
Securities covered by such Registration Statement; provided, however, that
the Issuers shall not be required to (i) qualify generally to do business in
any jurisdiction where it is not then so qualified or (ii) take any action
which would subject it to general service of process or to taxation in any
jurisdiction where it is not then so subject.
(i) The Issuers shall cooperate with the Holders of the Securities to
facilitate the timely preparation and delivery of certificates representing
the Securities to be sold pursuant to any Registration Statement free of any
restrictive legends and in such denominations and registered in such names as
the Holders may request a reasonable period of time prior to sales of the
Securities pursuant to such Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 3(b) above during the period for which the Issuers are
required to maintain an effective Registration Statement, the Issuers shall
promptly prepare and file a post-effective amendment to the Registration
Statement or a supplement to the related prospectus and any other required
document so that, as thereafter delivered to Holders of the Securities or
purchasers of Securities, the prospectus will not contain an untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. If the Issuers
notify the Initial Purchasers, the Holders of the Securities and any known
Participating Broker-Dealer in accordance with paragraphs (ii) through (v) of
Section 3(b) above to suspend the use of the prospectus until the requisite
changes to the prospectus have been made, then the Initial Purchasers, the
Holders of the Securities and any such Participating Broker-Dealers shall
suspend use of such prospectus, and the period of effectiveness of the
Exchange Offer Registration Statement provided for in Section 1 above shall
be extended by the number of days from and including the date of the giving
of such notice to and including the date when the Initial Purchasers, the
Holders of the Securities and any known Participating Broker-Dealer shall
have received such amended or supplemented prospectus pursuant to this
Section 3(j).
(k) Not later than the effective date of the applicable Registration
Statement, the Issuers will provide a CUSIP number for the Initial
Securities, the Exchange Securities or the Private Exchange Securities, as
the case may be, and provide the applicable trustee with printed certificates
for the Initial Securities, the Exchange Securities or the Private Exchange
Securities, as the case may be, in a form eligible for deposit with The
Depository Trust Company.
9
(l) The Issuers will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the Registered
Exchange Offer or the Shelf Registration and will make generally available to
its security holders (or otherwise provide in accordance with Section 11(a)
of the Securities Act) an earnings statement satisfying the provisions of
Section 11(a) of the Securities Act, no later than 45 days after the end of a
12-month period (or 90 days, if such period is a fiscal year) beginning with
the first month of the Issuers' first fiscal quarter commencing after the
effective date of the Registration Statement, which statement shall cover
such 12-month period.
(m) The Issuers shall cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended, in a timely manner and containing
such changes, if any, as shall be necessary for such qualification. In the
event that such qualification would require the appointment of a new trustee
under the Indenture, the Issuers shall appoint a new trustee thereunder
pursuant to the applicable provisions of the Indenture.
(n) The Issuers may require each Holder of Securities to be sold
pursuant to the Shelf Registration Statement to furnish to the Issuers such
information regarding the Holder and the distribution of the Securities as
the Issuers may from time to time reasonably require for inclusion in the
Shelf Registration Statement, and the Issuers may exclude from such
registration the Securities of any Holder that unreasonably fails to furnish
such information within a reasonable time after receiving such request.
(o) The Issuers shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form with
managing underwriters reasonably acceptable to the Issuers) and shall use
reasonable best efforts to take all such other action, if any, as any Holder
of the Securities shall reasonably request in order to facilitate the
disposition of the Securities pursuant to any Shelf Registration.
(p) In the case of any Shelf Registration, the Issuers and the
Guarantors shall (i) make reasonably available for inspection by the Holders
of the Securities, any underwriter participating in any disposition pursuant
to the Shelf Registration Statement and any attorney, accountant or other
agent retained by the Holders of the Securities or any such underwriter all
relevant financial and other records, pertinent corporate documents and
properties of the Issuers and (ii) cause the Issuers' officers, directors,
employees, accountants and auditors to supply all relevant information
reasonably requested by the Holders of the Securities or any such
underwriter, attorney, accountant or agent in connection with the Shelf
Registration Statement, in each case, as shall be reasonably necessary to
enable such persons, to conduct a reasonable investigation within the meaning
of Section 11 of the Securities Act; provided, however, that any information
that is designated in writing by the Issuers, in good faith, as confidential
at the time of delivery of such information shall be kept confidential by the
Holders or any such underwriter, attorney, accountant or agent, unless such
disclosure is made in connection with a court proceeding or required by law,
or such information becomes available to the public generally or through a
third party without an accompanying obligation of confidentiality and that
the foregoing inspection and information
10
gathering (i) shall be coordinated on behalf of the Initial Purchasers by you
and on behalf of the other parties, by one counsel (the "Designated Counsel")
designated by the Holders of a majority in principal amount of the Securities
covered by the Registration Statement and (ii) shall not be available for any
such Holder that is a competitor of the Issuers.
(q) In the case of any Shelf Registration, the Issuers and the
Guarantors, if requested by the Designated Counsel, shall cause (i) their
counsel to deliver an opinion and updates thereof relating to the Securities
in customary form addressed to such Holders and the managing underwriters, if
any, thereof and dated, in the case of the initial opinion, the effective
date of such Shelf Registration Statement (it being agreed that the matters
to be covered by such opinion shall include, without limitation, subject to
usual and customary qualifications, the due incorporation and good standing
of the Issuers and its subsidiaries; the qualification of the Issuers 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(o) hereof; the due authorization, execution,
authentication and issuance, and the validity and enforceability, of the
applicable Securities; the absence of material legal or governmental
proceedings involving the Issuers and its subsidiaries; the absence of
governmental approvals required to be obtained in connection with the Shelf
Registration Statement, the offering and sale of the applicable Securities,
or any agreement of the type referred to in Section 3(o) hereof; the
compliance as to form of such Shelf Registration Statement and any documents
incorporated by reference therein and of the Indenture with the requirements
of the Securities Act and the Trust Indenture Act, respectively; and, as of
the date of the opinion and as of the effective date of the Shelf
Registration Statement or most recent post-effective amendment thereto, as
the case may be, negative assurance with respect to the absence from such
Shelf Registration Statement and the prospectus included therein, as then
amended or supplemented, and from any documents incorporated by reference
therein of an untrue statement of a material fact or the omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading (in the case of any such documents, in
the light of the circumstances existing at the time that such documents were
filed with the Commission under the Exchange Act)); (ii) its officers to
execute and deliver all customary documents and certificates and updates
thereof requested by the Designated Counsel; and (iii) its independent public
accountants to provide to the selling Holders of the applicable Securities
and any managing underwriter therefor a comfort letter in customary form and
covering matters of the type customarily covered in comfort letters in
connection with primary underwritten offerings, subject to receipt of
appropriate documentation as contemplated, and only if permitted, by
Statement of Auditing Standards No. 72.
(r) In the case of the Registered Exchange Offer, if requested by any
Initial Purchaser or any known Participating Broker-Dealer, the Issuers shall
cause (i) their counsel to deliver to such Initial Purchaser or such
Participating Broker-Dealer a signed opinion substantially in the form set
forth in Section 6(c) of the Purchase Agreement with such changes as are
customary in connection with the preparation of a Registration Statement and
(ii) their independent public accountants to deliver to such Initial
Purchaser or such Participating Broker- Dealer a comfort letter, in customary
form, meeting the requirements as to the substance thereof as set forth in
Section 6(a) of the Purchase Agreement, with appropriate date changes.
11
(s) If a Registered Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Initial Securities by Holders to the
Issuers (or to such other Person as directed by the Issuers) in exchange for
the Exchange Securities or the Private Exchange Securities, as the case may
be, the Issuers shall mark, or caused to be marked, on the Initial Securities
so exchanged that such Initial Securities are being canceled in exchange for
the Exchange Securities or the Private Exchange Securities, as the case may
be; in no event shall the Initial Securities be marked as paid or otherwise
satisfied.
(t) The Company will use its reasonable best efforts to continue to
have the Securities rated by the rating agencies that rated the Securities in
connection with the sale to the Initial Purchasers and, at the request of any
Holder, confirm to such Holder the current rating of the Securities at the
time of such request.
(u) In the event that any broker-dealer registered under the Exchange
Act shall underwrite any 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 "Rules") of the National
Association of Securities Dealers, Inc. ("NASD")) thereof, whether as a
Holder of such Securities or as an underwriter, a placement or sales agent or
a broker or dealer in respect thereof, or otherwise, the Issuers will assist
such broker-dealer in complying with the requirements of such Rules,
including, without limitation, by (i) if such Rules, including Rule 2720,
shall so require, engaging a "qualified independent underwriter" (as defined
in Rule 2720) on customary terms to participate in the preparation of the
Registration Statement relating to such Securities, to exercise usual
standards of due diligence in respect thereto and, if any portion of the
offering contemplated by such Registration Statement is an underwritten
offering or is made through a placement or sales agent, to recommend the
yield of such Securities, (ii) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters provided in
Section 5 hereof and (iii) providing such information to such broker-dealer
as may be required in order for such broker-dealer to comply with the
requirements of the Rules.
(v) The Issuers shall use their reasonable best efforts to take all
other steps necessary to effect the registration of the Securities covered by
a Registration Statement contemplated hereby.
4. Registration Expenses. The Issuers shall bear all fees and expenses
incurred in connection with the performance of their obligations under
Sections 1 through 3 hereof (including the reasonable fees and expenses, if
any, of Xxxxxxx & Xxxxx L.L.P., counsel for the Initial Purchasers, incurred
in connection with the Registered Exchange Offer), whether or not the
Registered Exchange Offer or a Shelf Registration is filed or becomes
effective, and, in the event of a Shelf Registration, shall bear or reimburse
the Holders of the Securities covered thereby for the reasonable fees and
disbursements of Designated Counsel.
5. Indemnification. (a) The Issuers and the Guarantors, jointly and
severally, agree to indemnify and hold harmless each Holder of the
Securities, any Participating Broker-Dealer and each
12
person, if any, who controls such Holder or such Participating Broker-Dealer
within the meaning of the Securities Act or the Exchange Act (each Holder,
any Participating Broker-Dealer and such controlling persons are referred to
collectively as the "Indemnified Parties") from and against any losses,
claims, damages or liabilities, joint or several, or any actions in respect
thereof (including, but not limited to, any losses, claims, damages,
liabilities or actions relating to purchases and sales of the Securities) to
which each Indemnified Party may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in a Registration
Statement or prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to a Shelf Registration, 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 shall reimburse, as incurred, the Indemnified
Parties for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action in respect thereof; provided, however, that (i) the
Issuers shall not be liable in any such case to the extent that such loss,
claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
a Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to a Shelf Registration in
reliance upon and in conformity with written information pertaining to such
Holder and furnished to the Issuers by or on behalf of such Holder
specifically for inclusion therein and (ii) with respect to any untrue
statement or omission or alleged untrue statement or omission made in any
preliminary prospectus relating to a Shelf Registration Statement, the
indemnity agreement contained in this subsection (a) shall not inure to the
benefit of any Holder or Participating Broker-Dealer from whom the person
asserting any such losses, claims, damages or liabilities purchased the
Securities concerned, to the extent that a prospectus relating to such
Securities was required to be delivered by such Holder or Participating
Broker-Dealer under the Securities Act in connection with such purchase and
any such loss, claim, damage or liability of such Holder or Participating
Broker-Dealer results from the fact that there was not sent or given to such
person, at or prior to the written confirmation of the sale of such
Securities to such person, a copy of the final prospectus if the Issuers had
previously furnished copies thereof to such Holder or Participating
Broker-Dealer; provided further, however, that this indemnity agreement will
be in addition to any liability which the Issuers may otherwise have to such
Indemnified Party. The Issuers shall also indemnify underwriters, their
officers and directors and each person who controls such underwriters within
the meaning of the Securities Act or the Exchange Act to the same extent as
provided above with respect to the indemnification of the Holders of the
Securities if requested by such Holders.
(b) Each Holder of the Securities, severally and not jointly, will
indemnify and hold harmless the Issuers and each person, if any, who controls
the Issuers within the meaning of the Securities Act or the Exchange Act from
and against any losses, claims, damages or liabilities or any actions in
respect thereof, to which the Issuers or any such controlling person may
become subject under the Securities Act, the Exchange Act or otherwise,
insofar as such losses, claims, damages, liabilities or actions arise out of
or are based upon any untrue statement or alleged untrue statement of a
material fact contained in a Registration Statement or prospectus or in any
amendment
13
or supplement thereto or in any preliminary prospectus relating to a Shelf
Registration, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or omission or alleged untrue statement or omission was made in
reliance upon and in conformity with written information pertaining to such
Holder and furnished to the Issuers by or on behalf of such Holder
specifically for inclusion therein; and, subject to the limitation set forth
immediately preceding this clause, shall reimburse, as incurred, the Issuers
for any legal or other expenses reasonably incurred by the Issuers or any
such controlling person in connection with investigating or defending any
loss, claim, damage, liability or action in respect thereof. This indemnity
agreement will be in addition to any liability which such Holder may
otherwise have to the Issuers or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this Section
5 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under this
Section 5, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not, in any event (except
to the extent that a defense or counterclaim thereto has been foreclosed
thereby), relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and,
to the extent that it may 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 the indemnifying party will not be
liable to such indemnified party under this Section 5 for any legal or other
expenses, other than reasonable costs of investigation, subsequently incurred
by such indemnified party in connection with the defense thereof. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless
such settlement includes an unconditional release of such indemnified party
from all liability on any claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof)
referred to in subsection (a) or (b) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party on the other from
the exchange of the Securities, pursuant to the Registered Exchange Offer, or
(ii) if the allocation provided by the foregoing clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the
14
relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions
that 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 the parties shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Issuers on the one hand or such Holder or such
other indemnified party, as the case may be, on the other, and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred to
in the first sentence of this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding any other provision of this
Section 5(d), the Holders of the Securities shall not be required to
contribute any amount in excess of the amount by which the net proceeds
received by such Holders from the sale of the Securities pursuant to a
Registration Statement exceeds the amount of damages which such Holders have
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. For purposes of this paragraph (d), each
person, if any, who controls such indemnified party within the meaning of the
Securities Act or the Exchange Act shall have the same rights to contribution
as such indemnified party and each person, if any, who controls the Issuers
within the meaning of the Securities Act or the Exchange Act shall have the
same rights to contribution as the Issuers.
(e) The agreements contained in this Section 5 shall survive the sale
of the Securities pursuant to a Registration Statement and shall remain in
full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
6. Additional Interest Under Certain Circumstances. (a) Additional
interest (the "Additional Interest") with respect to the Initial Securities
shall be assessed as follows if any of the following events occur (each such
event in clauses (i) through (iii) below a "Registration Default"):
(i) If by June 28, 1998, neither the Exchange Offer Registration
Statement nor a Shelf Registration Statement has been filed with the
Commission;
(ii) If by August 27, 1998, neither the Registered Exchange Offer
is consummated nor, if required in lieu thereof, the Shelf Registration
Statement is declared effective by the Commission; or
(iii) If after either the Exchange Offer Registration Statement or
the Shelf Registration Statement is declared effective (A) such
Registration Statement thereafter ceases to be effective; or (B) such
Registration Statement or the related prospectus ceases to be
15
usable (except as permitted in paragraph (b)) in connection with resales of
Transfer Restricted Securities during the periods specified herein because
either (1) any event occurs as a result of which the related prospectus
forming part of such Registration Statement would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or (2) it shall be necessary to amend
such Registration Statement or supplement the related prospectus, to comply
with the Securities Act or the Exchange Act or the respective rules
thereunder.
Additional Interest shall accrue on the Initial Securities over and above the
interest set forth in the title of the Securities from and including the date
on which any such Registration Default shall occur to but excluding the date
on which all such Registration Defaults have been cured, at a rate of 0.50%
per annum.
(b) A Registration Default referred to in Section 6(a)(iii)(B) hereof
shall be deemed not to have occurred and be continuing in relation to a Shelf
Registration Statement or the related prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to such Shelf Registration Statement to incorporate annual audited
financial information with respect to the Issuers where such post-effective
amendment is not yet effective and needs to be declared effective to permit
Holders to use the related prospectus or (y) other material events, with
respect to the Issuers that would need to be described in such Shelf
Registration Statement or the related prospectus and (ii) in the case of
clause (y), the Issuers are proceeding promptly and in good faith to amend or
supplement such Shelf Registration Statement and related prospectus to
describe such events; provided, however, that in any case if such
Registration Default occurs for a continuous period in excess of 30 days,
Additional Interest shall be payable in accordance with the above paragraph
from the day such Registration Default occurs until such Registration Default
is cured.
(c) Any amounts of Additional Interest due pursuant to clause (i),
(ii) or (iii) of Section 6(a) above will be payable in cash on the regular
interest payment dates with respect to the Initial Securities. The amount of
Additional Interest will be determined by multiplying the applicable
Additional Interest rate by the principal amount of the Initial Securities,
multiplied by a fraction, the numerator of which is the number of days such
Additional Interest rate was applicable during such period (determined on the
basis of a 360-day year comprised of twelve 30-day months), and the
denominator of which is 360.
(d) "Transfer Restricted Securities" means each Security until (i)
the date on which such Transfer Restricted Security has been exchanged by a
person other than a broker-dealer for a freely transferable Exchange Security
in the Registered Exchange Offer, (ii) following the exchange by a
broker-dealer in the Registered Exchange Offer of an Initial Security for an
Exchange Security, the date on which such Exchange Security is sold to a
purchaser who receives from such broker-dealer on or prior to the date of
such sale a copy of the prospectus contained in the Exchange Offer
Registration Statement, (iii) the date on which such Initial Security has
been effectively
16
registered under the Securities Act and disposed of in accordance with the
Shelf Registration Statement or (iv) the date on which such Initial Security
is distributed to the public pursuant to Rule 144 under the Securities Act or
is saleable pursuant to Rule 144(k) under the Securities Act.
(e) Notwithstanding anything to the contrary contained in this
Agreement, it is hereby acknowledged and agreed that the Issuers will have no
other liabilities for monetary damages to the Initial Purchasers or any
Holder for a Registration Default other than the payment of Additional
Interest; provided, however, that in the event of a Registration Default, the
Initial Purchasers and any Holder shall be entitled to, and the Issuers shall
not oppose the granting of, equitable relief, including injunction and
specific performance, to enforce the Issuers' obligations under Sections 1
and 2 hereof.
7. Rules 144 and 144A. The Issuers shall use their reasonable best
efforts to file the reports required to be filed by it under the Securities
Act and the Exchange Act in a timely manner and, if at any time the Issuers
are not required to file such reports, they will, upon the request of any
Holder of Initial Securities, make publicly available other information so
long as necessary to permit sales of their securities pursuant to Rules 144
and 144A. The Issuers covenant that they will take such further action as any
Holder of Initial Securities may reasonably request, all to the extent
required from time to time to enable such Holder to sell Initial Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rules 144 and 144A (including the requirements of Rule
144A(d)(4)). The Issuers will provide a copy of this Agreement to prospective
purchasers of Initial Securities identified to the Issuers by the Initial
Purchasers upon request. Upon the request of any Holder of Initial
Securities, the Issuers shall deliver to such Holder a written statement as
to whether it has complied with such requirements. Notwithstanding the
foregoing, nothing in this Section 7 shall be deemed to require the Issuers
to register any of its securities pursuant to the Exchange Act.
8. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by any Shelf Registration are to be sold in an
underwritten offering, the investment banker or investment bankers and
manager or managers that will administer the offering ("Managing
Underwriters") will be selected by the Holders of a majority in aggregate
principal amount of such Transfer Restricted Securities to be included in
such offering, subject to the consent of the Issuers, which shall not be
unreasonably withheld.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and
(ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements.
9. Miscellaneous.
17
(a) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, except by the Issuers and the
written consent of the Holders of a majority in principal amount of the
Securities affected by such amendment, modification, supplement, waiver or
consents.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class
mail, facsimile transmission, or air courier which guarantees overnight
delivery:
(1) if to a Holder of the Securities, at the most current
address given by such Holder to the Issuers.
(2) if to the Initial Purchasers:
Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax No.: (000) 000-0000
Attention: Transactions Advisory Group
with a copy to:
Xxxxxxx & Xxxxx X.X.X.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
(3) if to the Issuers, at its address as follows:
Xxxxxx Offshore LLC
0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxx
with a copy to:
18
Xxxx, Gotshal & Xxxxxx LLP
000 Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxx XXX, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when
receipt is acknowledged by recipient's facsimile machine operator, if sent by
facsimile transmission; and on the day delivered, if sent by overnight air
courier guaranteeing next day delivery.
(c) No Inconsistent Agreements. The Issuers have not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into,
any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders herein or otherwise conflicts with the
provisions hereof.
(d) Successors and Assigns. This Agreement shall be binding upon the
Issuers and their successors and assigns.
(e) 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.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
(h) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid,
illegal or unenforceable, the validity, legality and enforceability of any
such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(i) Securities Held by the Issuers. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities is
required hereunder, Securities held by the Issuers or their affiliates (other
than subsequent Holders of Securities if such subsequent Holders are deemed
to be affiliates solely by reason of their holdings of such Securities) shall
not be counted in determining whether such consent or approval was given by
the Holders of such required percentage.
19
(j) Submission to Jurisdiction. By the execution and delivery of this
Agreement, each of the Issuers and the Subsidiary Guarantors submits to the
nonexclusive jurisdiction of the federal and state courts in the Borough of
Manhattan in The City of New York in such suit or proceeding arising out of
or relating to this Agreement or the transactions contemplated hereby.
20
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Issuers a counterpart of this
Registration Rights Agreement, whereupon this instrument, along with all
counterparts, will become a binding agreement among the several Initial
Purchasers, the Issuers and the Guarantors in accordance with its terms.
Very truly yours,
XXXXXX OFFSHORE LLC
By:/s/ Xxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Vice President, Chief
Financial Officer and Secretary
XXXXXX OFFSHORE FINANCE CORP.
By:/s/ Xxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Vice President, Chief
Financial Officer and Secretary
XXXXXX COLUMBUS LLC
By:/s/ Xxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Vice President, Chief
Financial Officer and Secretary
XXXXXX MAGELLAN LLC
By:/s/ Xxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Vice President, Chief
Financial Officer and Secretary
21
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first above
written.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXXXXXX XXXXXXX SECURITIES, INC.
By: CREDIT SUISSE FIRST BOSTON
CORPORATION
By: /s/ X. Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
Title: Director
22
ANNEX A
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The
Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as
it may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of Exchange Securities received in
exchange for Initial Securities where such Initial Securities were acquired
by such broker-dealer as a result of market-making activities or other
trading activities. The Issuers have agreed that, for a period of 180 days
after the Expiration Date (as defined herein), they will make this Prospectus
available to any broker-dealer for use in connection with any such resale.
See "Plan of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Securities for its own account
in exchange for Securities, where such Initial Securities were acquired by
such broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Securities
received in exchange for Initial Securities where such Initial Securities
were acquired as a result of market-making activities or other trading
activities. The Issuers have agreed that, for a period of 180 days after the
Expiration Date, they will make this prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In
addition, until , 199 , all dealers effecting transactions in the Exchange
Securities may be required to deliver a prospectus.1
The Issuers will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers
for their own account pursuant to the Exchange Offer may be sold from time to
time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange
Securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation
in the form of commissions or concessions from any such broker-dealer or the
purchasers of any such Exchange Securities. Any broker-dealer that resells
Exchange Securities that were received by it for its own account pursuant to
the Exchange Offer and any broker or dealer that participates in a
distribution of such Exchange Securities may be deemed to be an "underwriter"
within the meaning of the Securities Act and any profit on any such resale of
Exchange Securities and any commissions or concessions received by any such
persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that, by acknowledging that it will
deliver and by delivering a prospectus, a broker-dealer will not be deemed to
admit that it is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date the Issuers will promptly
send additional copies of this Prospectus and any amendment or supplement to
this Prospectus to any broker-dealer that requests such documents in the Letter
of Transmittal. The Issuers have agreed to pay all expenses incident to the
Exchange Offer (including the expenses of one counsel for the Holders of the
Securities) other than commissions or concessions of any brokers or dealers and
will indemnify the Holders of the Securities (including any broker-dealers)
against certain liabilities, including liabilities under the Securities Act.
[If applicable, add information required by Regulation S-K Items 507 and/or
508.]
--------------
1 In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Exchange Offer prospectus.
ANNEX D
|_| CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
-------------------------------
Address:
-------------------------------
-------------------------------
If the undersigned is not a broker-dealer, the undersigned represents that it
is not engaged in, and does not intend to engage in, a distribution of
Exchange Securities. If the undersigned is a broker-dealer that will receive
Exchange Securities for its own account in exchange for Initial Securities
that were acquired as a result of market-making activities or other trading
activities, it acknowledges that it will deliver a prospectus in connection
with any resale of such Exchange Securities; however, by so acknowledging and
by delivering a prospectus, the undersigned will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act.
