REGISTRATION RIGHTS AGREEMENT by and among Linn Energy, LLC, Linn Energy Finance Corp., the Guarantors party hereto, and Citigroup Global Markets Inc., Barclays Capital Inc., BNP Paribas Securities Corp., Credit Agricole Securities (USA) Inc., RBC...
Exhibit 4.2
Execution Version
by and among
Linn Energy Finance Corp.,
the Guarantors party hereto,
and
Citigroup Global Markets Inc., Barclays Capital Inc.,
BNP Paribas Securities Corp., Credit Agricole Securities (USA) Inc.,
RBC Capital Markets, LLC, RBS Securities Inc.,
Xxxxx Fargo Securities, LLC and Credit Suisse Securities (USA) LLC
BNP Paribas Securities Corp., Credit Agricole Securities (USA) Inc.,
RBC Capital Markets, LLC, RBS Securities Inc.,
Xxxxx Fargo Securities, LLC and Credit Suisse Securities (USA) LLC
as representative of the Initial Purchasers
Dated as of May 13, 2011
This Registration Rights Agreement (this “Agreement”) is made and entered into as of May 13,
2011, by and among Linn Energy, LLC, a Delaware limited liability company (the “Company”), Linn
Energy Finance Corp., a Delaware corporation (“Finance Corp” and, together with the Company, the
“Issuers”), the entities listed on Schedule A hereto (collectively, the “Guarantors”), and
Citigroup Global Markets Inc., Barclays Capital Inc., BNP Paribas Securities Corp., Credit Agricole
Securities (USA) Inc., RBC Capital Markets, LLC, RBS Securities Inc., Xxxxx Fargo Securities, LLC
and Credit Suisse Securities (USA) LLC, as representative of the initial purchasers listed on
Schedule 1 to the Purchase Agreement (each an “Initial Purchaser” and, collectively, the “Initial
Purchasers”), each of whom has agreed to purchase the Issuers’ 6.500% Senior Notes due 2019 (the
“Initial Notes”), fully and unconditionally guaranteed by the Guarantors (the “Guarantees”)
pursuant to the Purchase Agreement (as defined below). The Initial Notes and the Guarantees
attached thereto are herein collectively referred to as the “Initial Securities.”
This Agreement is made pursuant to the Purchase Agreement, dated May 10, 2011 (the “Purchase
Agreement”), by and among the Issuers, the Guarantors and the Initial Purchasers (i) for the
benefit of the Initial Purchasers and (ii) for the benefit of the Holders from time to time of
Initial Securities, including the Initial Purchasers. In order to induce the Initial Purchasers to
purchase the Initial Securities, the Issuers have agreed to provide the registration rights set
forth in this Agreement. The execution and delivery of this Agreement is a condition to the
obligations of the Initial Purchasers set forth in Section 7(l) of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. Definitions. As used in this Agreement, the following capitalized terms shall have
the following meanings:
Additional Interest: As defined in Section 5 hereof.
Advice: As defined in Section 6(c) hereof.
Affiliate: As defined in Rule 144 promulgated by the Commission.
Agreement: As defined in the preamble hereto.
Blackout Period: As defined in the last paragraph of Section 4(a) hereof.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: Any day other than a Saturday, Sunday or U.S. federal holiday or a day on which
banking institutions or trust companies located in New York, New York are authorized or obligated
to be closed.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Company: As defined in the preamble hereto
Consummate: A registered Exchange Offer shall be deemed “Consummated” for purposes of this
Agreement upon the occurrence of (i) the filing and effectiveness under the Securities Act of the
Exchange Offer Registration Statement relating to the Exchange Securities to be issued in the
Exchange Offer, (ii) the maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum period required pursuant
to Section 3(b) hereof, and (iii) the delivery by the Issuers to the Registrar under the Indenture
of Exchange Securities in the same aggregate principal amount as the aggregate principal amount of
Initial Securities that were tendered by Holders thereof pursuant to the Exchange Offer.
Controlling Person: As defined in Section 8(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Date: The date that Exchange Securities are delivered by the Issuers to the Registrar
under the Indenture of Exchange Securities in the same aggregate principal amount as the aggregate
principal amount of Initial Securities that were tendered by Holders thereof pursuant to the
Exchange Offer.
Exchange Deadline: As defined in Section 3(b) hereof.
Exchange Offer: An offer registered under the Securities Act by the Issuers and the
Guarantors pursuant to a Registration Statement pursuant to which the Issuers offer the Holders of
all outstanding Transfer Restricted Securities the opportunity to exchange all such outstanding
Transfer Restricted Securities held by such Holders for Exchange Securities in an aggregate
principal amount equal to the aggregate principal amount of the Transfer Restricted Securities
tendered in such exchange offer by such Holders with terms that are identical in all respects to
the Transfer Restricted Securities (except that Exchange Securities will not contain terms with
respect to any increase in annual interest rate as described herein and the transfer restrictions).
Exchange Offer Registration Statement: The Registration Statement relating to the Exchange
Offer, including the related Prospectus, as defined in Section 3(a) hereof.
Exchange Securities: The 6.500% Senior Notes due 2019, of the same series under the Indenture
as the Initial Securities, including the Guarantees attached thereto, to be offered to Holders in
exchange for Transfer Restricted Securities pursuant to this Agreement.
Finance Corp: As defined in the preamble.
FINRA: The Financial Industry Regulatory Authority, Inc., an independent regulatory
organization (formerly National Association of Securities Dealers or NASD).
Guarantees: As defined in the preamble hereto.
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Guarantors: As defined in the preamble hereto.
Holder: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of May 13, 2011, by and among the Issuers, the Guarantors
and U.S. Bank National Association, as trustee (the “Trustee”), pursuant to which the Initial
Securities and the Exchange Securities are to be issued, as such Indenture is amended or
supplemented from time to time in accordance with the terms thereof.
Initial Notes: As defined in the preamble hereto.
Initial Placement: The issuance and sale by the Issuers of the Initial Securities to the
Initial Purchasers pursuant to the Purchase Agreement.
Initial Purchaser: As defined in the preamble hereto.
Initial Securities: As defined in the preamble hereto.
Issuers: As defined in the preamble hereto
Person: An individual, partnership, corporation, limited liability company, trust,
unincorporated organization or other legal entity, or a government or agency or political
subdivision thereof.
Prospectus: The prospectus included in a Registration Statement, as amended or supplemented
by any prospectus supplement and by all other amendments thereto, including post-effective
amendments, and all material incorporated by reference into such Prospectus.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any Exchange Offer Registration Statement or Shelf Registration
Statement, which is filed pursuant to the provisions of this Agreement, in each case, including the
Prospectus included therein, all amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference therein.
Securities Act: The Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 4(a) hereof.
Shelf Registration Statement: As defined in Section 4(a)(x) hereof.
Transfer Restricted Securities: Each Initial Security, until the earliest to occur of (a) the
date on which such Initial Security is exchanged in the Exchange Offer for an Exchange Security and
entitled to be resold to the public by the Holder thereof without complying with the prospectus
delivery requirements of the Securities Act; (b) the date on which such Initial Security has been
effectively registered under the Securities Act and disposed of in accordance
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with a Shelf Registration Statement; (c) if a Shelf Registration Statement is required to be
filed in accordance with Section 4 hereof, one year from the effective date of such Shelf
Registration Statement; (d) the date on which such Initial Security is sold pursuant to Rule 144
under circumstances in which any legend borne by such Initial Security relating to restrictions on
transferability thereof, under the Securities Act or otherwise, is removed and the restrictive
CUSIP number is redesignated as non-restrictive, by the Issuers or pursuant to the Indenture; (e)
the date upon which such Initial Security is distributed to the public by a Broker-Dealer pursuant
to the “Plan of Distribution” contemplated by the Exchange Offer Registration Statement (including
delivery of the Prospectus contained therein) and (f) the date on which such Initial Security
ceases to be outstanding.
Trust Indenture Act: The Trust Indenture Act of 1939, as amended.
Trustee: U.S. Bank National Association.
Underwritten Registration or Underwritten Offering: A registration in which securities of the
Issuers are sold to an underwriter for reoffering to the public.
SECTION 2. Securities Subject to this Agreement.
(a) Transfer Restricted Securities. The securities entitled to the benefits of this Agreement
are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to be a holder of Transfer
Restricted Securities (a “Holder”) whenever such Person owns Transfer Restricted Securities.
SECTION 3. Registered Exchange Offer.
(a) Unless the Exchange Offer shall not be permissible under applicable law or Commission
policy (after the procedures set forth in Section 6(a) hereof have been complied with), the Issuers
and the Guarantors shall (i) cause to be filed with the Commission sufficiently promptly so as to
avoid a Registration Default with respect to the Exchange Offer, a Registration Statement under the
Securities Act relating to the Exchange Securities and the Exchange Offer (the “Exchange Offer
Registration Statement”), (ii) use their commercially reasonable efforts to cause such Exchange
Offer Registration Statement to become effective under the Securities Act sufficiently promptly so
as to avoid a Registration Default with respect to the Exchange Offer, (iii) in connection with the
foregoing, file (A) all pre-effective amendments to such Exchange Offer Registration Statement as
may be necessary in order to cause such Exchange Offer Registration Statement to become effective,
(B) if applicable, a post-effective amendment to such Exchange Offer Registration Statement
pursuant to Rule 430A under the Securities Act and (C) cause all necessary filings in connection
with the registration and qualification of the Exchange Securities to be made under the state
securities or blue sky laws of such jurisdictions as are necessary to permit Consummation of the
Exchange Offer, and (iv) upon the effectiveness of such Exchange Offer Registration Statement,
promptly commence the Exchange Offer. The Exchange Offer shall be on the appropriate form
permitting registration of the Exchange
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Securities to be offered in exchange for the Transfer Restricted Securities and to permit
resales of Transfer Restricted Securities held by Broker-Dealers as contemplated by Section 3(c)
hereof.
(b) The Issuers and the Guarantors shall cause the Exchange Offer Registration Statement to be
effective continuously and shall keep the Exchange Offer open for a period of not less than the
minimum period required under applicable federal and state securities laws to Consummate the
Exchange Offer; provided, however, that in no event shall such period be less than 20 Business Days
after the date notice of the Exchange Offer is mailed to the Holders. The Issuers shall cause the
Exchange Offer to comply with all applicable federal and state securities laws. No securities
other than the Exchange Securities shall be included in the Exchange Offer Registration Statement.
The Issuers and the Guarantors shall use commercially reasonable efforts to cause the Exchange
Offer to be Consummated on the earliest practicable date after the Exchange Offer Registration
Statement has become effective, but in no event later than 400 days after the Closing Date (or if
such 400th day is not a Business Day, the next succeeding Business Day) (such 400th day
herein referred to as the “Exchange Deadline”).
(c) The Issuers shall indicate in a “Plan of Distribution” section contained in the Prospectus
forming a part of the Exchange Offer Registration Statement that any Broker-Dealer who holds
Initial Securities that are Transfer Restricted Securities that were acquired for its own account
as a result of market-making activities or other trading activities (other than Transfer Restricted
Securities acquired directly from the Issuers), may exchange such Initial Securities pursuant to
the Exchange Offer; however, such Broker-Dealer may be deemed to be an “underwriter” within the
meaning of the Securities Act and must, therefore, deliver a prospectus meeting the requirements of
the Securities Act in connection with any resales of the Exchange Securities received by such
Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may be satisfied by the
delivery by such Broker-Dealer of the Prospectus contained in the Exchange Offer Registration
Statement. Such “Plan of Distribution” section shall also contain all other information with
respect to such resales by Broker-Dealers that the Commission may require in order to permit such
resales pursuant thereto, but such “Plan of Distribution” shall not name any such Broker-Dealer or
disclose the amount of Initial Securities held by any such Broker-Dealer except to the extent
required by the Commission.
The Issuers and the Guarantors shall use commercially reasonable efforts to keep the Exchange
Offer Registration Statement continuously effective, supplemented and amended as required by the
provisions of Section 6(c) hereof to the extent necessary to ensure that it is available for
resales of Transfer Restricted Securities acquired by Broker-Dealers for their own accounts as a
result of market-making activities or other trading activities, and to ensure that it conforms with
the requirements of this Agreement, the Securities Act and the policies, rules and regulations of
the Commission as announced from time to time, for a period ending on the earlier of (i) 180 days
from the date on which the Exchange Offer Registration Statement is declared effective and (ii) the
date on which a Broker-Dealer is no longer required to deliver a prospectus in connection with
market-making or other trading activities.
The Issuers shall provide sufficient copies of the latest version of such Prospectus to
Broker-Dealers promptly upon request at any time during such 180-day (or shorter as provided in the
foregoing sentence) period in order to facilitate such resales.
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SECTION 4. Shelf Registration.
(a) Shelf Registration. If (i) the Issuers and the Guarantors are not required to file an
Exchange Offer Registration Statement or to consummate the Exchange Offer for the Initial
Securities because the Exchange Offer is not permitted by applicable law or Commission policy; (ii)
for any reason the Exchange Offer for the Initial Securities is not Consummated by the Exchange
Deadline; or (iii) with respect to any Holder of Transfer Restricted Securities that is not an
Affiliate of the Issuer or Guarantors (A) such Holder is prohibited by applicable law or Commission
policy from participating in the Exchange Offer, (B) such Holder may not resell the Exchange
Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and
that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Initial
Securities acquired directly from the Issuers or one of their Affiliates, then, upon such Holder’s
request, the Issuers and the Guarantors shall (1) if permitted by law, cause the Transfer
Restricted Securities of such Holder to be reissued in a form that does not bear any restrictive
legends relating to the Securities Act and does not have a restrictive CUSIP number so that such
Securities may be sold to the public in accordance with Rule 144 under the Securities Act by a
person that is not an Affiliate of the Issuer or any of the Guarantors where no conditions of Rule
144 are then applicable (other than the holding period requirement in paragraph (d)(1)(ii) of Rule
144 so long as such holding period requirement is satisfied at such time of such reissue) and (2)
in the event the Issuers cannot or do not comply with the provisions of the foregoing clause within
20 Business Days of the later of (I) the date of receipt by the Issuer of such notice of such
Holder and (II) the first to occur of the Exchange Date and the Exchange Deadline (such later date
being a “Shelf Filing Deadline”), then the Issuers and the Guarantors shall
(x) cause to be filed a shelf registration statement pursuant to Rule 415 under the
Securities Act, which may be an amendment to the Exchange Offer Registration Statement (in
either event, the “Shelf Registration Statement”) on or prior to the Shelf Filing Deadline
which Shelf Registration Statement shall provide for resales of all Transfer Restricted
Securities the Holders of which shall have provided the information required pursuant to
Section 4(b) hereof; and
(y) use their commercially reasonable efforts to cause such Shelf Registration Statement to
be declared effective by the Commission on or before the 90th day after the Shelf Filing
Deadline (or if such 90th day is not a Business Day, the next succeeding Business Day).
Each of the Issuers and the Guarantors shall use its commercially reasonable efforts to keep
any such Shelf Registration Statement continuously effective, supplemented and amended as required
by the provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure that it is
available for resales of Transfer Restricted Securities by the Holders entitled to the benefit of
this Section 4(a), and to ensure that it conforms with the requirements of this Agreement, the
Securities Act and the policies, rules and regulations of the Commission as announced from time to
time, for a period of one year following the effective date of such Shelf Registration Statement
(or such shorter period that will terminate when all the Transferred
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Registered Securities covered by such Shelf Registration Statement have been sold pursuant to
such Shelf Registration Statement). Each of the Issuers and the Guarantors shall be deemed not to
have used commercially reasonable efforts to keep the Shelf Registration Statement effective during
the requisite period if any of the Issuers or the Guarantors voluntarily takes any action that
would result in Holders of Transfer Restricted Securities covered thereby not being able to offer
and sell such Transfer Restricted Securities during that period, unless (X) such action is required
by applicable law; or (Y) such action is taken by any of the Issuers or Guarantors in good faith
and for valid business reasons (not including avoidance of the Issuers or the Guarantors
obligations hereunder) including, but not limited to, the acquisition or divestiture of assets, so
long as the Issuers and the Guarantors promptly thereafter comply with the requirements of the last
paragraph of Section 6(c) hereof (the period during which the Shelf Registration Statement is not
available under clauses (X) or (Y) above, the “Blackout Period”). The Blackout Period shall not
exceed 45 days in any three-month period or 90 days in any twelve-month period except as a result
of a review of any post-effective amendment to the Shelf Registration Statement by the Commission
before declaring any post-effective amendment to the Shelf Registration Statement effective,
provided that the Issuers have used their commercially reasonable efforts to cause such
post-effective amendment to be declared effective.
(b) Provision by Holders of Certain Information in Connection with the Shelf Registration
Statement. No Holder of Transfer Restricted Securities may include any of its Transfer Restricted
Securities in any Shelf Registration Statement pursuant to this Agreement unless and until such
Holder furnishes to the Issuers in writing, within ten Business Days after receipt of a request
therefor, such information as the Issuers may reasonably request for use in connection with any
Shelf Registration Statement or Prospectus or preliminary Prospectus included therein. Each Holder
as to which any Shelf Registration Statement is being effected agrees to furnish promptly to the
Issuers all information required to be disclosed in order to make the information previously
furnished to the Issuers by such Holder not materially misleading.
SECTION 5. Additional Interest. If (a) the Exchange Offer is not Consummated on or prior to
the Exchange Deadline, (b) a Shelf Registration Statement applicable to the Transfer Restricted
Securities required to be filed by the terms of this Agreement is not declared effective (or does
not automatically become effective) on or prior to the 90th calendar day following any Shelf Filing
Deadline (or if such 90th day is not a Business Day, the next succeeding Business Day), or (c) a
Shelf Registration Statement applicable to the Transfer Restricted Securities required to be filed
by the terms of this Agreement is declared effective (or automatically becomes effective) as
required but thereafter fails to remain effective or becomes unusable in connection with resales
for more than 30 calendar days, excluding any Blackout Period (each such event referred to in
clauses (a) through (c) above, a “Registration Default”), the Issuers hereby agree that the
interest rate borne by the Transfer Restricted Securities shall be increased by 0.25% per annum
during the 90-day period immediately following the occurrence of any Registration Default and shall
increase by 0.25% per annum at the end of each subsequent 90-day period (“Additional Interest), in
each case until the Registration Default no longer exists; provided, however, that at no time shall
the amount of Additional Interest exceed in the aggregate 1.0% per annum. Following the cure of all
Registration Defaults, Additional Interest will cease to accrue and the interest rate on the
Transfer Restricted Securities will revert to the original rate; provided, however, that, if after
the date such Additional Interest ceases to accrue,
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another Registration Default occurs, Additional Interest will again commence accruing pursuant
to the foregoing provisions.
All obligations of the Issuers and the Guarantors set forth in the preceding paragraph that
are outstanding with respect to any Transfer Restricted Security at the time such security ceases
to be a Transfer Restricted Security shall survive until such time as all such obligations with
respect to such security shall have been satisfied in full.
SECTION 6. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with the Exchange Offer, the Issuers
and the Guarantors shall comply with all of the applicable provisions of Section 6(c) hereof, shall
use commercially reasonable efforts to effect such exchange to permit the sale of Transfer
Restricted Securities being sold in accordance with the intended method or methods of distribution
thereof. As a condition to its participation in the Exchange Offer pursuant to the terms of this
Agreement, each Holder of Transfer Restricted Securities shall furnish, upon the request of the
Issuers, prior to the Consummation thereof, a written representation to the Issuers (which may be
contained in the letter of transmittal contemplated by the Exchange Offer Registration Statement)
to the effect that (A) it is not an affiliate (within the meaning of Rule 405 under the Securities
Act) of the Issuers or the Guarantors, (B) it is not engaged in, and does not intend to engage in,
and has no arrangement or understanding with any Person to participate in, a distribution (within
the meaning of the Securities Act) of the Exchange Securities to be issued in the Exchange Offer
and (C) it is acquiring the Exchange Securities in its ordinary course of business. In addition,
all such Holders of Transfer Restricted Securities shall otherwise cooperate in the Issuers’
preparations for the Exchange Offer. Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Exchange Offer to participate in a distribution of the
securities to be acquired in the Exchange Offer (1) could not under Commission policy as in effect
on the date of this Agreement rely on the position of the Commission enunciated in Xxxxxx
Xxxxxxx and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation
(available May 13, 1988), as interpreted in the Commission’s letter to Shearman & Sterling dated
July 2, 1993, and similar no-action letters, and (2) must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with a secondary resale
transaction and that such a secondary resale transaction should be covered by an effective
registration statement containing the selling security holder information required by Item 507 or
508, as applicable, of Regulation S-K if the resales are of Exchange Securities obtained by such
Holder in exchange for Initial Securities acquired by such Holder directly from the Issuers.
(b) Shelf Registration Statement. In connection with any Shelf Registration Statement, each
of the Issuers and the Guarantors shall comply with all the provisions of Section 6(c) hereof and
shall use commercially reasonable efforts to effect such registration to permit the sale of the
Transfer Restricted Securities being sold in accordance with the intended method or methods of
distribution thereof, and pursuant thereto each of the Issuers and the Guarantors will as
expeditiously as possible prepare and file with the Commission a Registration Statement relating to
the registration on any appropriate form under the Securities Act, which form shall be
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available for the sale of the Transfer Restricted Securities in accordance with the intended
method or methods of distribution thereof.
(c) General Provisions. In connection with any Registration Statement and any Prospectus
required by this Agreement to permit the sale or resale of Transfer Restricted Securities
(including, without limitation, any Registration Statement and the related Prospectus required to
permit resales of Initial Securities by Broker-Dealers), each of the Issuers and the Guarantors
shall:
(i) use commercially reasonable efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements (including, if
required by the Securities Act or any regulation thereunder, financial statements of the
Guarantors) for the period specified in Section 3 or 4 hereof, as applicable; upon the
occurrence of any event that would cause any such Registration Statement or the Prospectus
contained therein (A) to contain a material misstatement or omission or (B) not to be
effective and usable for resale of Transfer Restricted Securities during the period required
by this Agreement, the Issuers shall file promptly an appropriate amendment to such
Registration Statement, in the case of clause (A), correcting any such misstatement or
omission, and, in the case of either clause (A) or (B), use commercially reasonable efforts
to cause such amendment to be declared effective and such Registration Statement and the
related Prospectus to become usable for their intended purposes as soon as practicable
thereafter;
(ii) prepare and file with the Commission such amendments and post-effective amendments
to the applicable Registration Statement as may be necessary to keep the Registration
Statement effective for the applicable period set forth in Section 3 or 4 hereof, as
applicable, or such shorter period as will terminate when all Transfer Restricted Securities
covered by such Registration Statement have been sold; cause the Prospectus to be
supplemented by any required prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Securities Act, and to comply fully with the applicable
provisions of Rules 424, 430A and 430B under the Securities Act in a timely manner; and
comply with the provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable period in accordance
with the intended method or methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(iii) advise the underwriters, if any, and selling Holders promptly and, if requested
by such Persons, to confirm such advice in writing, (A) when the Prospectus or any
prospectus supplement or post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments to the Registration Statement
or amendments or supplements to the Prospectus or for additional information relating
thereto, (C) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Securities Act or of the suspension by
any state securities commission of the qualification of the Transfer
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Restricted Securities for offering or sale in any jurisdiction, or the initiation of
any proceeding for any of the preceding purposes, (D) of the existence of any fact or the
happening of any event that makes any statement of a material fact made in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any document incorporated
by reference therein untrue, or that requires the making of any additions to or changes in
the Registration Statement or the Prospectus in order to make the statements therein (with
respect to the Prospectus, in light of the circumstances under which they were made) not
misleading. If at any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state securities or blue sky laws,
each of the Issuers and the Guarantors shall use commercially reasonable efforts to obtain
the withdrawal or lifting of such order at the earliest possible time;
(iv) furnish without charge to each of the Initial Purchasers, each selling Holder
named in any Registration Statement, and each underwriter, if any, before filing with the
Commission, copies of any Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Registration Statement or Prospectus (including all
documents incorporated by reference after the initial filing of such Registration
Statement), which documents will be subject to the review and comment of such Holders and
underwriters in connection with such sale, if any, for a period of at least two Business
Days, and the Issuers will not file any such Registration Statement or Prospectus or any
amendment or supplement to any such Registration Statement or Prospectus (including all such
documents incorporated by reference) to which an Initial Purchaser of Transfer Restricted
Securities covered by such Registration Statement or the underwriters, if any, shall
reasonably object in writing within two Business Days after the receipt thereof (such
objection to be deemed timely made upon confirmation of telecopy transmission within such
period); provided, that this clause (iv) shall not apply to any filing by the Company of any
annual report on Form 10-K, quarterly report on Form 10-Q or Current Report on Form 8-K with
respect to matters unrelated to the Initial Securities, the Transfer Restricted Securities
and the Exchange Securities and the offering or exchange therefor. The objection of an
Initial Purchaser or underwriter, if any, shall be deemed to be reasonable if such
Registration Statement, amendment, Prospectus or supplement, as applicable, as proposed to
be filed, contains a material misstatement or omission;
(v) in the case of a Shelf Registration Statement, make available during normal
business hours for inspection by the Initial Purchasers, the managing underwriters, if any,
participating in any disposition pursuant to such Registration Statement and any attorney or
accountant retained by such Initial Purchasers or any of the underwriters, all financial and
other records, pertinent corporate documents and properties of each of the Issuers and the
Guarantors and cause the Issuers’ and the Guarantors’ officers, directors and employees to
supply all information reasonably requested by any such Holder, underwriter, attorney or
accountant in connection with such Registration Statement or any post-effective amendment
thereto subsequent to the
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filing thereof and prior to its effectiveness and to participate in meetings with
investors to the extent requested by the managing underwriters, if any;
(vi) if requested by any selling Holders or the underwriters, if any, promptly
incorporate in any Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such selling Holders and
underwriters, if any, may reasonably request to have included therein, including, without
limitation, information relating to the “Plan of Distribution” of the Transfer Restricted
Securities, information with respect to the principal amount of Transfer Restricted
Securities being sold to such underwriters, the purchase price being paid therefor and any
other terms of the offering of the Transfer Restricted Securities to be sold in such
offering; and make all required filings of such prospectus supplement or post-effective
amendment as soon as practicable after the Issuers are notified of the matters to be
incorporated in such prospectus supplement or post-effective amendment;
(vii) in the case of a Shelf Registration Statement, furnish to each Initial Purchaser,
each selling Holder and each of the underwriters, if any, without charge, at least one copy
of the Registration Statement, as first filed with the Commission, and of each amendment
thereto, including financial statements and schedules, all documents incorporated by
reference therein and all exhibits (including exhibits incorporated therein by reference);
(viii) deliver to each selling Holder and each of the underwriters, if any, without
charge, as many copies of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may request; each of the Issuers
and the Guarantors hereby consents to the use of the Prospectus and any amendment or
supplement thereto by each of the selling Holders and each of the underwriters, if any, in
connection with the offering and the sale of the Transfer Restricted Securities covered by
the Prospectus or any amendment or supplement thereto;
(ix) in the case of a Shelf Registration Statement, enter into such agreements
(including an underwriting agreement), and make such representations and warranties, and
take all such other actions in connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to any Registration Statement
contemplated by this Agreement, all to such extent as may be requested by any Initial
Purchaser or by any Holder of Transfer Restricted Securities or underwriter in connection
with any sale or resale pursuant to any Registration Statement contemplated by this
Agreement; and, whether or not an underwriting agreement is entered into and whether or not
the registration is an Underwritten Registration, each of the Issuers and the Guarantors
shall:
(A) furnish to each Initial Purchaser, each selling Holder and each
underwriter, if any, in such substance and scope as they may request and as are
customarily made by issuers to underwriters in primary underwritten offerings, upon
the effectiveness of the Shelf Registration Statement:
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(1) a certificate, dated the date of effectiveness of the Shelf
Registration Statement signed by the Chief Executive Officer and the Chief
Financial Officer of each of the Issuers and the Guarantors, confirming, as
of the date thereof, the matters set forth in Section 7(h) of the Purchase
Agreement and such other matters as such parties may reasonably request;
(2) an opinion, dated the date of effectiveness of the Shelf
Registration Statement, as the case may be, of counsel for the Issuers and
the Guarantors, covering the matters set forth in Sections 7(c) of the
Purchase Agreement and such other matter as such parties may reasonably
request, and in any event including a statement to the effect that such
counsel has participated in conferences with officers and other
representatives of the Issuers and the Guarantors, representatives of the
independent public accountants for the Issuers and the Guarantors,
representatives of the underwriters, if any, and counsel to the
underwriters, if any, at which the contents of such Shelf Registration
Statement and the related Prospectus were discussed and although such
counsel has not independently verified the accuracy, completeness or
fairness of such statements; and that such counsel advises that, on the
basis of the foregoing, no facts came to such counsel’s attention that
caused such counsel to believe that the Shelf Registration Statement, at the
time such Shelf Registration Statement became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, or that the Prospectus contained in such Registration Statement
as of its date contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made not misleading.
Without limiting the foregoing, such counsel may state further that such
counsel assumes no responsibility for, and has not independently verified,
the accuracy, completeness or fairness of the financial statements, notes
and schedules and other financial, accounting and reserve data included in
any Shelf Registration Statement contemplated by this Agreement or the
related Prospectus;
(3) a customary comfort letter, dated the date of effectiveness of the
Shelf Registration Statement, from the Company’s independent accountants and
any other independent accountants who have certified audited financial
statements contained in or incorporated by reference into the Shelf
Registration Statement, in the customary form and covering matters of the
type customarily requested to be covered in comfort letters by underwriters
in connection with primary underwritten offerings, and covering or affirming
the matters set forth in the comfort letters delivered pursuant to Section
7(e) and 7(f) of the Purchase Agreement, provided that to be an addressee of
the comfort letter, if requested by the applicable
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accountant, each Initial Purchaser and Holder may be required to
confirm that it is in the category of persons to whom a comfort letter may
be delivered in accordance with applicable accounting literature; and
(4) a customary comfort letter, dated the date of effectiveness of the
Shelf Registration Statement, from any of the Company’s independent
petroleum engineers whose reports are referenced in the Shelf Registration
Statement or any document incorporated by reference into the Shelf
Registration Statement, each in a form and substance reasonably satisfactory
to the Initial Purchasers.
(B) set forth in full or incorporate by reference in the underwriting
agreement, if any, the indemnification provisions and procedures of Section 8 hereof
with respect to all parties to be indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be reasonably
requested by such parties to evidence compliance with Section 6(c)(ix)(A) hereof and
with any customary conditions contained in the underwriting agreement or other
agreement entered into by the Issuers or any of the Guarantors pursuant to this
Section 6(c)(ix), if any.
If at any time the representations and warranties of the Issuers and the Guarantors
contemplated in Section 6(c)(ix)(A)(1) hereof cease to be true and correct, the Issuers or
the Guarantors shall so advise the Initial Purchasers and the underwriters, if any, and each
selling Holder promptly and, if requested by such Persons, shall confirm such advice in
writing;
(x) prior to any public offering of Transfer Restricted Securities pursuant to a Shelf
Registration Statement, cooperate with the selling Holders, the underwriters, if any, and
their respective counsel in connection with the registration and qualification of the
Transfer Restricted Securities under the state securities or blue sky laws of such
jurisdictions as the selling Holders or underwriters, if any, may reasonably request and do
any and all other acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the Shelf Registration
Statement; provided, however, that none of the Issuers nor the Guarantors shall be required
to register or qualify as a foreign entity where it is not then so qualified or to take any
action that would subject it to the service of process in suits or to taxation in any
jurisdiction where it is not then so subject;
(xi) shall issue, in connection with the Consummation of the Exchange Offer and in
accordance with the Indenture, Exchange Securities having an aggregate principal amount
equal to the aggregate principal amount of Initial Securities surrendered to the Issuers by
the Holders in exchange therefore;
(xii) cooperate with the selling Holders and the underwriters, if any, to facilitate
the timely preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends; and enable such
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Transfer Restricted Securities to be in such denominations and registered in such names
as the Holders or the underwriters, if any, may request at least two Business Days prior to
any sale of Transfer Restricted Securities made by such Holders or underwriters;
(xiii) use commercially reasonable efforts to cause the Transfer Restricted Securities
covered by the Registration Statement to be registered with or approved by such other
domestic governmental agencies or authorities as may be necessary to enable the seller or
sellers thereof or the underwriters, if any, to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in Section 6(c)(xii) hereof;
(xiv) if any fact or event contemplated by Section 6(c)(iii)(D) hereof shall exist or
have occurred, prepare a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue statement of a material
fact or omit to state any material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading;
(xv) provide a CUSIP number for all Exchange Securities not later than the effective
date of the Registration Statement covering such Exchange Securities and provide the Trustee
under the Indenture with printed certificates for such Exchange Securities which are in a
form eligible for deposit with the Depository Trust Company and take all other action
necessary to ensure that all such Exchange Securities are eligible for deposit with the
Depository Trust Company;
(xvi) cooperate and assist in any filings required to be made with the FINRA and in the
performance of any due diligence investigation by any underwriter (including any “qualified
independent underwriter” as that term is defined within the rules and regulations of the
FINRA) that is required to be retained in accordance with the rules and regulations of the
FINRA;
(xvii) otherwise use commercially reasonable efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to its security
holders, as soon as practicable, a consolidated earnings statement meeting the requirements
of Rule 158 under the Securities Act (which need not be audited) for the twelve-month period
(A) commencing at the end of any fiscal quarter in which Transfer Restricted Securities are
sold to underwriters in a firm commitment or best efforts Underwritten Offering or (B) if
not sold to underwriters in such an offering, beginning with the first month of the Issuers’
first fiscal quarter commencing after the effective date of the Registration Statement;
(xviii) cause the Indenture to be qualified under the Trust Indenture Act not later
than the effective date of the first Registration Statement required by this Agreement, and,
in connection therewith, cooperate with the Trustee and the Holders of the Initial
Securities to effect such changes to the Indenture as may be required for such Indenture to
be so qualified in accordance with the terms of the Trust Indenture Act; and to execute
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and use commercially reasonable efforts to cause the Trustee to execute, all documents
that may be required to effect such changes and all other forms and documents required to be
filed with the Commission to enable such Indenture to be so qualified in a timely manner;
and
(xix) in the case of a Shelf Registration Statement, cause all Transfer Restricted
Securities covered by such Shelf Registration Statement to be listed on each securities
exchange or automated quotation system on which similar securities issued by the Issuers are
then listed if requested by the Holders of a majority in aggregate principal amount of
Initial Securities or the managing underwriters, if any.
Each Holder agrees by acquisition of a Transfer Restricted Security that, upon receipt of any
notice from the Issuers of the existence of any fact of the kind described in Section 6(c)(iii)(D)
hereof or any Blackout Period described in Section 4(a) hereof, such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the applicable Registration
Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(xiv) hereof, or until it is advised in writing (the “Advice”) by the
Issuers that the use of the Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus. If so directed by the
Issuers, each Holder will deliver to the Issuers (at the Issuers’ expense) all copies, other than
permanent file copies then in such Holder’s possession, of the Prospectus covering such Transfer
Restricted Securities that was current at the time of receipt of such notice. In the event the
Issuers shall give any such notice, the time period regarding the effectiveness of such
Registration Statement set forth in Section 3 or 4 hereof, as applicable, shall be extended by the
number of days during the period from and including the date of the giving of such notice pursuant
to Section 6(c)(iii)(D) hereof or notice of any Blackout Period to and including the date when each
selling Holder covered by such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xiv) hereof or shall have received
the Advice.
SECTION 7. Registration Expenses.
(a) All expenses incident to the Issuers’ and the Guarantors’ performance of or compliance
with this Agreement will be borne by the Issuers and the Guarantors, jointly and severally,
regardless of whether a Registration Statement becomes effective, including, without limitation:
(i) all registration and filing fees and expenses (including filings made by any Initial Purchaser
or Holder with the FINRA (and, if applicable, the fees and expenses of any “qualified independent
underwriter” and its counsel that may be required by the rules and regulations of the FINRA)); (ii)
all fees and expenses of compliance with federal securities and state securities or blue sky laws;
(iii) all expenses of printing (including printing of Prospectuses), if any, messenger and delivery
services and telephone; (iv) all fees and disbursements of counsel for the Issuers, the Guarantors
and, subject to Section 7(b) hereof, the Holders of Transfer Restricted Securities; and (v) all
fees and disbursements of independent certified public accountants of the Issuers and the
Guarantors (including the expenses of any special audit and comfort letters required by or incident
to such performance).
-15-
Each of the Issuers and the Guarantors will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expenses of any annual audit and the fees and expenses of any
Person, including special experts, retained by the Issuers or the Guarantors.
(b) In connection with any Shelf Registration Statement required by this Agreement, the
Issuers and the Guarantors, jointly and severally, will reimburse the Initial Purchasers and the
Holders of Transfer Restricted Securities being registered pursuant to the Shelf Registration
Statement, as applicable, for the reasonable fees and disbursements of not more than one counsel,
who shall be Xxxxxx & Xxxxxxx LLP or such other counsel as may be chosen by the Holders of a
majority in principal amount of the Transfer Restricted Securities for whose benefit such
Registration Statement is being prepared.
SECTION 8. Indemnification.
(a) The Issuers and the Guarantors, jointly and severally, agree to indemnify and hold
harmless (i) each Holder and (ii) each Person, if any, who controls (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) any Holder (any of the Persons referred
to in this clause (ii) being hereinafter referred to as a “controlling person”) and (iii) the
respective officers, directors, partners, employees, representatives and agents of any Holder or
any controlling person (any Person referred to in clause (i), (ii) or (iii) may hereinafter be
referred to as an “Indemnified Holder”), to the fullest extent lawful, from and against any and all
losses, claims, damages or liabilities (or actions in respect thereof) including, without
limitation, and as incurred, reimbursement of each such Indemnified Holder for any legal or other
expenses reasonably incurred by them in connection with investigating or defending any such loss,
claim damage, liability or action, joint or several, directly or indirectly arising out of or based
upon any untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or
alleged omission to state therein a material fact required to be stated therein (in the case of the
Registration Statement or any amendment or supplement thereto) or necessary to make the statements
therein (with respect to the Prospectus, in light of the circumstances under which they were made)
not misleading, except insofar as such losses, claims, damages, liabilities or actions are caused
by an untrue statement or omission or alleged untrue statement or omission that is made in reliance
upon and in conformity with information relating to any of the Holders furnished in writing to the
Issuers by any of the Holders expressly for use therein. This indemnity agreement shall be in
addition to any liability which the Issuers or any of the Guarantors may otherwise have.
In case any action or proceeding (including any governmental or regulatory investigation or
proceeding) shall be brought or asserted against any of the Indemnified Holders with respect to
which indemnity may be sought against the Issuers or the Guarantors, such Indemnified Holder (or
the Indemnified Holder controlled by such controlling person) shall promptly notify the Issuers and
the Guarantors in writing; provided, however, that the failure to give such notice shall not
relieve the Issuers or any of the Guarantors of their respective obligations pursuant to this
Agreement. Such Indemnified Holder shall have the right to employ its own counsel in any such
action and the fees and expenses of such counsel shall be paid, as incurred, by the Issuers
-16-
and the Guarantors (regardless of whether it is ultimately determined that an Indemnified
Holder is not entitled to indemnification hereunder). The Issuers and the Guarantors shall not, in
connection with any one such action or proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) at any time for such Indemnified Holders, which firm
shall be designated by the Holders. The Issuers and the Guarantors shall be liable for any
settlement of any such action or proceeding effected with the Issuers’ and the Guarantors’ prior
written consent, and each of the Issuers and the Guarantors agrees to indemnify and hold harmless
any Indemnified Holder from and against any loss, claim, damage, liability or expense by reason of
any settlement of any action effected with the written consent of the Issuers and the Guarantors.
The Issuers and the Guarantors shall not, without the prior written consent of each Indemnified
Holder, settle or compromise or consent to the entry of judgment in or otherwise seek to terminate
any pending or threatened action, claim, litigation or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not any Indemnified Holder is a
party thereto), unless (i) such settlement, compromise, consent or termination includes an
unconditional release of each Indemnified Holder from all liability arising out of such action,
claim, litigation or proceeding and (ii) does not include any statements as to or any findings of
fact or admissions of fault or culpability as to any indemnified party.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Issuers,
the Guarantors and their respective directors, officers of the Issuers and the Guarantors who sign
a Registration Statement, and any Person controlling (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) the Issuers or any of the Guarantors, and the
respective officers, directors, partners, employees, representatives and agents of each such
Person, to the same extent as the foregoing indemnity from the Issuers and the Guarantors to each
of the Indemnified Holders, but only with respect to claims and actions based on information
relating to such Holder furnished in writing by such Holder expressly for use in any Registration
Statement or Prospectus. In case any action or proceeding shall be brought against the Issuers,
the Guarantors or their respective directors or officers or any such controlling person in respect
of which indemnity may be sought against a Holder of Transfer Restricted Securities, such Holder
shall have the rights and duties given the Issuers and the Guarantors, and the Issuers, the
Guarantors, their respective directors and officers and such controlling person shall have the
rights and duties given to each Holder by the preceding paragraph.
(c) If the indemnification provided for in this Section 8 is unavailable to an indemnified
party under Section 8(a) or (b) hereof (other than by reason of exceptions provided in those
Sections) in respect of any losses, claims, damages, liabilities or actions referred to therein,
then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities in such proportion as is appropriate to reflect the relative
benefits received by the Issuers and the Guarantors, on the one hand, and the Holders, on the other
hand, from the Initial Placement (which in the case of the Issuers and the Guarantors shall be
deemed to be equal to the total gross proceeds to the Issuers and the Guarantors from the Initial
Placement and in the case of the Holders shall be deemed to be equal to the total discount received
by such Holder with respect to the Initial Securities), the amount of Additional Interest
-17-
which did not become payable as a result of the filing of the Registration Statement resulting
in such losses, claims, damages, liabilities or actions, and such Registration Statement, or if
such allocation is not permitted by applicable law, the relative fault of the Issuers and the
Guarantors, on the one hand, and the Holders, on the other hand, in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Issuers and the Guarantors on the one
hand and of the Indemnified Holder on the other shall be determined by reference to, among other
things, whether the untrue or 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 or any of
the Guarantors, on the one hand, or the Indemnified Holders, on the other hand, and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and actions referred to above shall be deemed to include, subject to the
limitations set forth in the second paragraph of Section 8(a) hereof, any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or defending any action
or claim.
The Issuers, the Guarantors and each Holder agree that it would not be just and equitable if
contribution pursuant to this Section 8(c) were determined by pro rata allocation (even if the
Holders were treated as one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or actions referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Xxxxxxx 0, xxxx of the Holders (and its related
Indemnified Holders) shall be required to contribute, in the aggregate, any amount in excess of the
amount by which the total discount received by such Holder with respect to the Initial Securities
exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
The Holders’ obligations to contribute pursuant to this Section 8(c) are several in proportion to
the respective principal amount of Initial Securities held by each of the Holders hereunder and not
joint.
SECTION 9. Rule 144A. Each of the Issuers and the Guarantors hereby agrees with each Holder,
for so long as any Transfer Restricted Securities remain outstanding, to make available to any
Holder or beneficial owner of Transfer Restricted Securities in connection with any sale thereof
and any prospective purchaser of such Transfer Restricted Securities from such Holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Securities Act in order to permit
resales of such Transfer Restricted Securities pursuant to Rule 144A under the Securities Act.
SECTION 10. Participation in Underwritten Registrations. No Holder may participate in any
Underwritten Registration hereunder unless such Holder (a) agrees to sell such
-18-
Holder’s Transfer Restricted Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b) completes and
executes all reasonable questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up letters and other documents required under the terms of such underwriting arrangements.
SECTION 11. Selection of Underwriters. The Holders of Transfer Restricted Securities covered
by the Shelf Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the investment bankers
and managing underwriter(s) that will administer such offering will be selected by the Holders of a
majority in aggregate principal amount of the Transfer Restricted Securities included in such
offering; provided, however, that such investment banker(s) and managing underwriters must be
reasonably satisfactory to the Issuers.
SECTION 12. Miscellaneous.
(a) Remedies. Each of the Issuers and the Guarantors hereby agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agree to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Each of the Issuers and the Guarantors will not on or after
the date of this Agreement enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with
the provisions hereof. The rights granted to the Holders hereunder do not in any way conflict with
and are not inconsistent with the rights granted to the holders of the Issuers’ or any of the
Guarantors’ securities under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions hereof may not be given
unless the Issuers have (i) in the case of Section 5 hereof and this Section 12(d)(i), obtained the
written consent of Holders of all outstanding Transfer Restricted Securities and (ii) in the case
of all other provisions hereof, obtained the written consent of Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities (excluding any Transfer Restricted
Securities held by the Issuers or their respective Affiliates). Notwithstanding the foregoing, a
waiver or consent to departure from the provisions hereof that relates exclusively to the rights of
Holders whose securities are being tendered pursuant to the Exchange Offer and that does not affect
directly or indirectly the rights of other Holders whose securities are not being tendered pursuant
to such Exchange Offer may be given by the Holders of a majority of the outstanding principal
amount of Transfer Restricted Securities being tendered or registered; provided, however, that,
with respect to any matter that directly or indirectly affects the rights of any Initial Purchaser
hereunder, the Issuers shall obtain the written consent of each such Initial Purchaser with respect
to which such amendment, qualification, supplement, waiver, consent or departure is to be
effective.
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(d) Notices. All notices and other communications provided for or permitted hereunder shall
be made in writing by hand-delivery, first-class mail (registered or certified, return receipt
requested), telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the Trustee under the
Indenture, with a copy to the Trustee under the Indenture; and
(ii) if to the Issuers:
Linn Energy, LLC
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Fax: 000-000-0000
Attention: General Counsel
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Fax: 000-000-0000
Attention: General Counsel
with a copy (which shall not constitute notice) to:
Xxxxx Xxxxx LLP
One Shell Plaza
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxxx Rose
One Shell Plaza
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxxx Rose
All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if
telecopied; and on the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other communications shall be concurrently delivered by
the Person giving the same to the Trustee at the address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon
the successors and assigns of each of the parties, including, without limitation, and without the
need for an express assignment, subsequent Holders of Transfer Restricted Securities; provided,
however, that this Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or assign acquired Transfer Restricted
Securities from such Holder.
(f) 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.
-20-
(g) Headings. The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW RULES THEREOF.
(i) Severability. In the event that any one or more of the provisions contained herein, or
the application thereof in any circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.
(j) Entire Agreement. This Agreement is intended by the parties as a final expression of
their agreement and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained herein. There are
no restrictions, promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Issuers with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and understandings between
the parties with respect to such subject matter.
[signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| ISSUERS Linn Energy, LLC Linn Energy Finance Corp. |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer |
|||
| GUARANTORS Linn Energy Holdings, LLC Linn Exploration Midcontinent, LLC Linn Exploration & Production Michigan LLC Linn Exploration & Production Michigan Midstream LLC Linn Gas Marketing, LLC Linn Gas Processing MI LLC Linn Midwest Energy LLC Linn Operating, Inc. Mid-Continent I, LLC Mid-Continent II, LLC Mid-Continent Holdings I, LLC Mid-Continent Holdings II, LLC |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer |
|||
Signature Page to Registration Rights Agreement
The foregoing Registration Rights Agreement is hereby confirmed and accepted as of the date
first above written:
Citigroup Global Markets Inc.
Barclays Capital Inc.
BNP Paribas Securities Corp.
Credit Agricole Securities (USA) Inc.
RBC Capital Markets, LLC
RBS Securities Inc.
Xxxxx Fargo Securities, LLC
Credit Suisse Securities (USA) LLC
For themselves and as Representatives
of the several Initial Purchasers named
in Schedule 1 to the Purchase Agreement
Barclays Capital Inc.
BNP Paribas Securities Corp.
Credit Agricole Securities (USA) Inc.
RBC Capital Markets, LLC
RBS Securities Inc.
Xxxxx Fargo Securities, LLC
Credit Suisse Securities (USA) LLC
For themselves and as Representatives
of the several Initial Purchasers named
in Schedule 1 to the Purchase Agreement
By: Citigroup Global Markets Inc.
By: |
/s/ XXXXXXX XXXXXXXX | |||
| Title: Managing Director |
Signature Page to Registration Rights Agreement
By: Barclays Capital Inc.
By: |
/s/ XXXX XXXXX | |||
| Title: Managing Director |
Signature Page to Registration Rights Agreement
By: BNP Paribas Securities Corp.
By: |
/s/ XXX XXXXXX | |||
| Title: Managing Director |
Signature Page to Registration Rights Agreement
By: Credit Agricole Securities (USA) Inc.
By: |
/s/ XXXX XXXXXXX | |||
| Title: Head of DEM origination for the Americas |
Signature Page to Registration Rights Agreement
By: RBC Capital Markets, LLC
By: |
/s/ XXXX XXXXX | |||
| Title: Managing Director |
Signature Page to Registration Rights Agreement
By: RBS Securities Inc.
By: |
/s/ XXXXXXXX XXXX | |||
| Title: Vice President |
Signature Page to Registration Rights Agreement
By: Xxxxx Fargo Securities, LLC
By: |
/s/ XXXX XXXX | |||
| Title: Managing Director |
Signature Page to Registration Rights Agreement
By: Credit Suisse Securities (USA) LLC
By: |
/s/ XXXXX XXXXXX | |||
| Title: Director |
Signature Page to Registration Rights Agreement
SCHEDULE A
Guarantors
Linn Energy Holdings, LLC (Delaware)
Linn Exploration Midcontinent, LLC (Oklahoma)
Linn Exploration & Production Michigan LLC (Delaware)
Linn Exploration & Production Michigan Midstream LLC (Delaware)
Linn Gas Marketing, LLC (Delaware)
Linn Gas Processing MI LLC (Delaware)
Linn Midwest Energy LLC (Delaware)
Linn Operating, Inc. (Delaware)
Mid-Continent I, LLC (Delaware)
Mid-Continent II, LLC (Delaware)
Mid-Continent Holdings I, LLC (Delaware)
Mid-Continent Holdings II, LLC (Delaware)
Linn Exploration Midcontinent, LLC (Oklahoma)
Linn Exploration & Production Michigan LLC (Delaware)
Linn Exploration & Production Michigan Midstream LLC (Delaware)
Linn Gas Marketing, LLC (Delaware)
Linn Gas Processing MI LLC (Delaware)
Linn Midwest Energy LLC (Delaware)
Linn Operating, Inc. (Delaware)
Mid-Continent I, LLC (Delaware)
Mid-Continent II, LLC (Delaware)
Mid-Continent Holdings I, LLC (Delaware)
Mid-Continent Holdings II, LLC (Delaware)
