EXHIBIT 4.4.3
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REGISTRATION RIGHTS AGREEMENT
Dated as of July 21, 2003
By and Among
Range Resources Corporation
as Issuer,
and
UBS SECURITIES LLC, BANC ONE CAPITAL MARKETS, INC., CREDIT
LYONNAIS SECURITIES (USA) INC. and McDONALD
INVESTMENTS INC.
as Initial Purchasers
7 3/8% Senior Subordinated Notes due 2013
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TABLE OF CONTENTS
Page
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1. Definitions......................................................................................... 1
2. Exchange Offer...................................................................................... 4
3. Shelf Registration.................................................................................. 7
4. Liquidated Damages.................................................................................. 8
5. Registration Procedures............................................................................. 10
6. Registration Expenses............................................................................... 18
7. Indemnification..................................................................................... 19
8. Rules 144 and 144A.................................................................................. 22
9. Underwritten Registrations.......................................................................... 22
10. Miscellaneous....................................................................................... 23
(a) No Inconsistent Agreements.................................................................... 23
(b) Adjustments Affecting Registrable Notes....................................................... 23
(c) Amendments and Waivers........................................................................ 23
(d) Notices....................................................................................... 23
(e) Successors and Assigns........................................................................ 24
(f) Counterparts.................................................................................. 24
(g) Headings...................................................................................... 24
(h) Governing Law................................................................................. 24
(i) Severability.................................................................................. 25
(j) Securities Held by the Issuer or Its Affiliates............................................... 25
(k) Third-Party Beneficiaries..................................................................... 25
(l) Attorneys' Fees............................................................................... 25
(m) Entire Agreement.............................................................................. 25
SIGNATURES................................................................................................... S-1
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated
as of July 21, 2003, by and between Range Resources Corporation, a Delaware
corporation (the "Issuer"), on the one hand, and UBS Securities LLC, Banc One
Capital Markets, Inc. Credit Lyonnais Securities (USA) Inc. and McDonald
Investments Inc. (the "Initial Purchasers"), on the other hand.
This Agreement is entered into in connection with the Purchase
Agreement, dated as of July 21, 2003, by and among the Issuer and the Initial
Purchasers (the "Purchase Agreement"), relating to the offering of $100,000,000
aggregate principal amount of the Issuer's 7 3/8% Senior Subordinated Notes due
2013 (the "Notes"). The execution and delivery of this Agreement is a condition
to the Initial Purchasers' obligation to purchase the Notes under the Purchase
Agreement.
The parties hereby agree as follows:
Section 1. Definitions.
As used in this Agreement, the following terms shall have the
following meanings:
"ACTION" shall have the meaning set forth in Section 7(c)
hereof.
"ADVICE" shall have the meaning set forth in Section 5 hereof.
"AGREEMENT" shall have the meaning set forth in the first
introductory paragraph hereto.
"APPLICABLE PERIOD" shall have the meaning set forth in
Section 2(b) hereof.
"BOARD OF DIRECTORS" shall have the meaning set forth in
Section 5 hereof.
"BUSINESS DAY" shall mean a day that is not a Legal Holiday.
"COMMISSION" shall mean the Securities and Exchange
Commission.
"DAY" shall mean a calendar day.
"DAMAGES PAYMENT DATE" shall have the meaning set forth in
Section 4(b) hereof.
"DELAY PERIOD" shall have the meaning set forth in Section 5
hereof.
"EFFECTIVENESS PERIOD" shall have the meaning set forth in
Section 3(b) hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
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"EXCHANGE NOTES" shall have the meaning set forth in Section
2(a) hereof.
"EXCHANGE OFFER" shall have the meaning set forth in Section
2(a) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall have the meaning
set forth in Section 2(a) hereof.
"GUARANTEES" shall have the meaning set forth in the
Indenture.
"HOLDER" shall mean any holder of a Registrable Note or
Registrable Notes.
"INDENTURE" shall mean the Indenture, dated as of July 21,
2003, by and between the Issuer, the Subsidiary Guarantors named therein and
Bank One, NA as trustee, pursuant to which the Notes are being issued, as
amended or supplemented from time to time in accordance with the terms thereof.
"INITIAL PURCHASERS" shall have the meaning set forth in the
first introductory paragraph hereof.
"INSPECTORS" shall have the meaning set forth in Section 5(n)
hereof.
"ISSUE DATE" shall mean July 21, 2003, the date of original
issuance of the Notes.
"ISSUER" shall have the meaning set forth in the introductory
paragraph hereto and shall also include the Issuer's permitted successors and
assigns.
"LEGAL HOLIDAY" shall mean a Saturday, a Sunday or a day on
which banking institutions in New York, New York are required by law, regulation
or executive order to remain closed.
"LIQUIDATED DAMAGES" shall have the meaning set forth in
Section 4(a) hereof.
"LOSSES" shall have the meaning set forth in Section 7(a)
hereof.
"NASD" shall have the meaning set forth in Section 5(s)
hereof.
"NOTES" shall have the meaning set forth in the second
introductory paragraph hereto.
"PARTICIPANT" shall have the meaning set forth in Section 7(a)
hereof.
"PARTICIPATING BROKER-DEALER" shall have the meaning set forth
in Section 2(b) hereof.
"PERSON" shall mean an individual, corporation, partnership,
joint venture association, joint stock company, trust, unincorporated limited
liability company, government or any agency or political subdivision thereof or
any other entity.
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"PRIVATE EXCHANGE" shall have the meaning set forth in Section
2(b) hereof.
"PRIVATE EXCHANGE NOTES" shall have the meaning set forth in
Section 2(b) hereof.
"PROSPECTUS" shall mean the prospectus included in any
Registration Statement (including, without limitation, any prospectus subject to
completion and a prospectus that includes any information previously omitted
from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A promulgated under the Securities Act), as amended or
supplemented by any prospectus supplement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
"PURCHASE AGREEMENT" shall have the meaning set forth in the
second introductory paragraph hereof.
"RECORDS" shall have the meaning set forth in Section 5(n)
hereof.
"REGISTRABLE NOTES" shall mean each Note upon its original
issuance and at all times subsequent thereto, each Exchange Note as to which
Section 2(c)(iii) hereof is applicable upon original issuance and at all times
subsequent thereto and each Private Exchange Note upon original issuance thereof
and at all times subsequent thereto, in each case until (i) a Registration
Statement (other than, with respect to any Exchange Note as to which Section
2(c)(iii) hereof is applicable, the Exchange Offer Registration Statement)
covering such Note, Exchange Note or Private Exchange Note has been declared
effective by the Commission and such Note, Exchange Note or such Private
Exchange Note, as the case may be, has been disposed of in accordance with such
effective Registration Statement, (ii) such Note has been exchanged pursuant to
the Exchange Offer for an Exchange Note or Exchange Notes that may be resold
without restriction under state and federal securities laws, (iii) such Note,
Exchange Note or Private Exchange Note, as the case may be, ceases to be
outstanding for purposes of the Indenture or (iv) such Note, Exchange Note or
Private Exchange Note has been sold in compliance with Rule 144 or is salable
pursuant to Rule 144(k).
"REGISTRATION DEFAULT" shall have the meaning set forth in
Section 4(a) hereof.
"REGISTRATION STATEMENT" shall mean any appropriate
registration statement of the Issuer covering any of the Registrable Notes filed
with the Commission under the Securities Act, and all amendments and supplements
to any such Registration Statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"REQUESTING PARTICIPATING BROKER-DEALER" shall have the
meaning set forth in Section 2(b) hereof.
"RULE 144" shall mean Rule 144 promulgated under the
Securities Act, as such Rule may be amended from time to time, or any similar
rule (other than Rule 144A) or regulation hereafter adopted by the Commission
providing for offers and sales of securities made in compliance therewith
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resulting in offers and sales by subsequent holders that are not affiliates of
an issuer of such securities being free of the registration and prospectus
delivery requirements of the Securities Act.
"RULE 144A" shall mean Rule 144A promulgated under the
Securities Act, as such Rule may be amended from time to time, or any similar
rule (other than Rule 144) or regulation hereafter adopted by the Commission.
"RULE 415" shall mean Rule 415 promulgated under the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"SHELF FILING EVENT" shall have the meaning set forth in
Section 2(c) hereof.
"SHELF REGISTRATION" shall have the meaning set forth in
Section 3(a) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a Registration
Statement filed in connection with a Shelf Registration.
"SUBSIDIARY GUARANTOR" shall have the meaning set forth in the
Indenture.
"TIA" shall mean the Trust Indenture Act of 1939, as amended.
"TRUSTEE" shall mean the trustee under the Indenture and the
trustee (if any) under any indenture governing the Exchange Notes and Private
Exchange Notes.
"UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING" shall
mean a registration in which securities of the Issuer is sold to an underwriter
for reoffering to the public.
Section 2. Exchange Offer.
(a) The Issuer shall (i) file a Registration Statement
(the "Exchange Offer Registration Statement") within 90 days after the Issue
Date with the Commission on an appropriate registration form with respect to a
registered offer (the "Exchange Offer") to exchange any and all of the
Registrable Notes for a like aggregate principal amount of notes (the "Exchange
Notes") that are identical in all material respects to the Notes (except that
the Exchange Notes shall not contain terms with respect to transfer restrictions
or Liquidated Damages upon a Registration Default), (ii) use its best efforts to
cause the Exchange Offer Registration Statement to be declared effective under
the Securities Act within 180 days after the Issue Date and (iii) use its
reasonable best efforts to consummate the Exchange Offer within 210 days after
the Issue Date. Upon the Exchange Offer Registration Statement being declared
effective by the Commission, the Issuer will offer the Exchange Notes in
exchange for surrender of the Notes. The Issuer shall keep the Exchange Offer
open for not less than
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30 days (or longer if required by applicable law) after the date notice of the
Exchange Offer is mailed to Holders.
Each Holder that participates in the Exchange Offer will be
required to represent to the Issuer in writing that (i) any Exchange Notes to be
received by it will be acquired in the ordinary course of its business, (ii) it
has no arrangement or understanding with any Person to participate in the
distribution (within the meaning of the Securities Act) of the Exchange Notes in
violation of the provisions of the Securities Act or, if it is an affiliate, it
will comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable, (iii) it is not an affiliate of the
Issuer, as defined in Rule 405 under the Securities Act, (iv) if such Holder is
not a broker-dealer, it is not engaged in, and does not intend to engage in, a
distribution of Exchange Notes, (v) if such Holder is a broker-dealer that will
receive Exchange Notes for its own account in exchange for Notes that were
acquired as a result of market-making or other trading activities, it will
deliver a prospectus in connection with any resale of such Exchange Notes and
(vi) such Holder has full power and authority to transfer the Notes in exchange
for the Exchange Notes and that the Issuer will acquire good and unencumbered
title thereto free and clear of any liens, restrictions, charges or encumbrances
and not subject to any adverse claims.
(b) The Issuer and the Initial Purchasers acknowledge
that the staff of the Commission has taken the position that any broker-dealer
that elects to exchange Notes that were acquired by such broker-dealer for its
own account as a result of market-making or other trading activities for
Exchange Notes in the Exchange Offer (a "Participating Broker-Dealer") may be
deemed to be an "underwriter" within the meaning of the Securities Act and must
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Notes (other than a resale of an
unsold allotment resulting from the original offering of the Notes).
The Issuer and the Initial Purchasers also acknowledge that
the staff of the Commission has taken the position that if the Prospectus
contained in the Exchange Offer Registration Statement includes a plan of
distribution containing a statement to the above effect and the means by which
Participating Broker-Dealers may resell the Exchange Notes, without naming the
Participating Broker-Dealers or specifying the amount of Exchange Notes owned by
them, such Prospectus may be delivered by Participating Broker-Dealers to
satisfy their prospectus delivery obligations under the Securities Act in
connection with resales of Exchange Notes for their own accounts, so long as the
Prospectus otherwise meets the requirements of the Securities Act.
In light of the foregoing, if requested by a Participating
Broker-Dealer (a "Requesting Participating Broker-Dealer"), the Issuer agrees to
use its reasonable best efforts to keep the Exchange Offer Registration
Statement continuously effective for a period not to exceed 180 days after the
date on which the Exchange Registration Statement is declared effective, or such
longer period if extended pursuant to the last paragraph of Section 5 hereof
(such period, the "Applicable Period"), or such earlier date as all Requesting
Participating Broker-Dealers shall have notified the Issuer in writing that such
Requesting Participating Broker-Dealers have resold all Exchange Notes acquired
in the Exchange Offer. The Issuer shall include a plan of distribution in such
Exchange Offer Registration Statement that meets the requirements set forth in
the preceding paragraph.
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If, prior to consummation of the Exchange Offer, any Initial
Purchaser or any Holder, as the case may be, holds any Notes acquired by it that
have, or that are reasonably likely to be determined to have, the status of an
unsold allotment in an initial distribution, or if any Holder is not entitled to
participate in the Exchange Offer, the Issuer upon the request of the Initial
Purchasers or any such Holder, as the case may be, shall simultaneously with the
delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the
Initial Purchasers or any such Holder, as the case may be, in exchange (the
"Private Exchange") for such Notes held by the Initial Purchasers or any such
Holder, as the case may be, a like principal amount of notes (the "Private
Exchange Notes") of the Issuer that are identical in all material respects to
the Exchange Notes except that the Private Exchange Notes may be subject to
restrictions on transfer and bear a legend to such effect. The Private Exchange
Notes shall be issued pursuant to the same indenture as the Exchange Notes and
bear the same CUSIP number as the Exchange Notes.
For each Note surrendered in the Exchange Offer, the Holder
will receive an Exchange Note having a principal amount equal to that of the
surrendered Note. Interest on each Exchange Note and Private Exchange Note
issued pursuant to the Exchange Offer and in the Private Exchange will accrue
from the last interest payment date on which interest was paid on the Notes
surrendered in exchange therefor or, if no interest has been paid on the Notes,
from the Issue Date.
Upon consummation of the Exchange Offer in accordance with
this Section 2, the Issuer shall have no further registration obligations other
than the Issuer's continuing registration obligations with respect to (i)
Private Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers
and (iii) Notes or Exchange Notes as to which clause (c)(iii) of this Section 2
applies.
In connection with the Exchange Offer, the Issuer shall:
(1) mail or cause to be mailed to each Holder entitled to
participate in the Exchange Offer a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New
York;
(3) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York time, on the last Business Day
on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all
applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer
and the Private Exchange, if any, the Issuer shall:
(1) accept for exchange all Notes validly tendered and
not validly withdrawn by the Holders pursuant to the Exchange Offer and
the Private Exchange, if any;
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(2) deliver or cause to be delivered to the Trustee for
cancellation all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver
promptly to each such Holder of Notes, Exchange Notes or Private
Exchange Notes, as the case may be, equal in principal amount to the
Registrable Notes of such Holder so accepted for exchange.
The Exchange Offer and the Private Exchange shall not be
subject to any conditions, other than that (i) the Exchange Offer or Private
Exchange, as the case may be, does not violate applicable law or any applicable
interpretation of the staff of the Commission, (ii) no action or proceeding
shall have been instituted or threatened in any court or by any governmental
agency which might materially impair the ability of the Issuer to proceed with
the Exchange Offer or the Private Exchange, and no material adverse development
shall have occurred in any existing action or proceeding with respect to the
Issuer and (iii) all governmental approvals shall have been obtained, which
approvals the Issuer deems necessary for the consummation of the Exchange Offer
or Private Exchange.
The Exchange Notes and the Private Exchange Notes shall be
issued under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture (in either case, with such changes as are necessary to
comply with any requirements of the Commission to effect or maintain the
qualification thereof under the TIA) and which, in either case, has been
qualified under the TIA and shall provide that (a) the Exchange Notes shall not
be subject to the transfer restrictions set forth in the Indenture and (b) the
Private Exchange Notes shall be subject to the transfer restrictions set forth
in the Indenture. The Exchange Notes and the Private Exchange Notes will be
guaranteed by the Subsidiary Guarantors to the same extent as the Notes. The
Indenture or such indenture shall provide that the Exchange Notes, the Private
Exchange Notes and the Notes shall vote and consent together on all matters as
one class and that none of the Exchange Notes, the Private Exchange Notes or the
Notes will have the right to vote or consent as a separate class on any matter.
The Issuer will cause the Subsidiary Guarantors to become co-registrants under
the Exchange Offer Registration Statement with respect to the Guarantees.
(c) In the event that (i) any changes in law or the
applicable interpretations of the staff of the Commission do not permit the
Issuer to effect the Exchange Offer, (ii) for any reason the Exchange Offer is
not consummated within 210 days of the Issue Date, (iii) any Holder, other than
the Initial Purchasers, notifies the Issuer prior to the 20th Business Day
following the consummation of the Exchange Offer that it is prohibited by law or
the applicable interpretations of the staff of the Commission from participating
in the Exchange Offer, (iv) in the case of any Holder who participates in the
Exchange Offer, such Holder does not receive Exchange Notes on the date of the
exchange that may be sold without restriction under state and federal securities
laws (other than due solely to the status of such holder as an affiliate of the
Issuer within the meaning of the Securities Act) or (v) the Initial Purchaser so
requests with respect to Notes or Private Exchange Notes that have, or that are
reasonably likely to be determined to have, the status of unsold allotments in
an initial distribution (each such event referred to in clauses (i) through (v)
of this sentence, a "Shelf Filing Event"), then the Issuer shall file a Shelf
Registration pursuant to Section 3 hereof.
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Section 3. Shelf Registration.
If at any time a Shelf Filing Event shall occur, then:
(a) Shelf Registration. The Issuer shall file with the
Commission a Registration Statement for an offering to be made on a continuous
basis pursuant to Rule 415 covering all of the Registrable Notes not exchanged
in the Exchange Offer, Private Exchange Notes and Exchange Notes as to which
Section 2(c)(iii) is applicable (the "Shelf Registration"). The Issuer shall use
its reasonable best efforts to file with the Commission the Shelf Registration
as promptly as practicable. The Shelf Registration shall be on Form S-3 or
another appropriate form permitting registration of such Registrable Notes for
resale by Holders in the manner or manners designated by them (including,
without limitation, one or more underwritten offerings). The Issuer shall not
permit any securities other than the Registrable Notes to be included in the
Shelf Registration. The Issuer will cause the Subsidiary Guarantors to become
co-registrants under the Shelf Registration Statement with respect to the
Guarantees.
(b) The Issuer shall use its reasonable best efforts (x)
to cause the Shelf Registration to be declared effective under the Securities
Act on or prior to the later of 180 calendar days after the Issue Date or 90
days after the Shelf Registration is required to be filed with the Commission
and (y) to keep the Shelf Registration continuously effective under the
Securities Act for the period ending on the date which is two years from the
Issue Date, subject to extension pursuant to the penultimate paragraph of
Section 5 hereof (the "Effectiveness Period"), or such shorter period ending
when all Registrable Notes covered by the Shelf Registration have been sold in
the manner set forth and as contemplated in the Shelf Registration; provided,
however, that (i) the Effectiveness Period in respect of the Shelf Registration
shall be extended to the extent required to permit dealers to comply with the
applicable prospectus delivery requirements of Rule 174 under the Securities Act
and as otherwise provided herein and (ii) the Issuer may suspend the
effectiveness of the Shelf Registration Statement by written notice to the
Holders (A) as a result of the filing of a post-effective amendment to the Shelf
Registration Statement to incorporate annual audited financial information with
respect to the Issuer where such post-effective amendment is not yet effective
and needs to be declared effective to permit Holders to use the related
Prospectus or (B) for any purpose and for so long as permitted pursuant to the
penultimate paragraph of Section 5 hereof, including a bona fide business
purpose.
(c) Supplements and Amendments. The Issuer agrees to
supplement or make amendments to the Shelf Registration Statement as and when
required by the rules, regulations or instructions applicable to the
registration form used for such Shelf Registration Statement or by the
Securities Act or rules and regulations thereunder for shelf registration, or if
reasonably requested by the Holders of a majority in aggregate principal amount
of the Registrable Notes covered by such Registration Statement or by any
underwriter of such Registrable Notes.
Section 4. Liquidated Damages.
(a) The Issuer and the Initial Purchasers agree that the
Holders will suffer damages if the Issuer fails to fulfill its obligations under
Section 2 or Section 3 hereof and that it would not be feasible to ascertain the
extent of such damages with precision. Accordingly, the Issuer agrees that if:
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(i) the Exchange Offer Registration Statement is not
declared effective on or prior to the 180th day following the Issue
Date (the "Effectiveness Deadline") or, if that day is not a Business
Day, the next day that is a Business Day,
(ii) the Exchange Offer is not consummated on or prior to
the earlier of the 30th Business Day following the Effectiveness
Deadline or the 210th day following the Issue Date, or, if that day is
not a Business Day, the next day that is a Business Day; or
(iii) the Shelf Registration Statement is required to be
filed but is not declared effective by the later of 180 calendar days
after the Issue Date or 90 days after the Shelf Registration is
required to be filed with the Commission, or, if either such day is not
a Business Day, the next day that is a Business Day, or is declared
effective by such date but thereafter ceases to be effective or usable,
except if the Shelf Registration ceases to be effective or usable as
specifically permitted by the penultimate paragraph of Section 5 hereof
(each such event referred to in clauses (i) through (iii) a "Registration
Default"), liquidated damages in the form of additional cash interest
("Liquidated Damages") will accrue on the affected Notes and the affected
Exchange Notes, as applicable. The rate of Liquidated Damages will be 0.25% per
annum for the first 90-day period immediately following the occurrence of a
Registration Default, increasing by an additional 0.25% per annum with respect
to each subsequent 90-day period up to a maximum amount of additional interest
of 0.50% per annum, from and including the date on which any such Registration
Default shall occur to, but excluding, the earlier of (1) the date on which all
Registration Defaults have been cured or (2) the date on which all the Notes and
Exchange Notes otherwise become freely transferable by Holders other than
affiliates of the Issuer without further registration under the Securities Act.
Notwithstanding the foregoing, (1) the amount of Liquidated Damages payable
shall not increase because more than one Registration Default has occurred and
is pending and (2) a Holder of Notes or Exchange Notes who is not entitled to
the benefits of the Shelf Registration Statement (i.e., such Holder has not
elected to include information) shall not be entitled to Liquidated Damages with
respect to a Registration Default that pertains to the Shelf Registration
Statement.
(b) So long as Notes remain outstanding, the Issuer shall
notify the Trustee within five Business Days after each and every date on which
an event occurs in respect of which Liquidated Damages is required to be paid.
Any amounts of Liquidated Damages due pursuant to clauses (a)(i), (a)(ii) or
(a)(iii) of this Section 4 will be payable in cash semi-annually on each January
15 and July 15 (each a "Damages Payment Date"), commencing with the first such
date occurring after any such Liquidated Damages commence to accrue, to Holders
to whom regular interest is payable on such Damages Payment Date with respect to
Notes that are Registrable Securities. The amount of Liquidated Damages for
Registrable Notes will be determined by multiplying the applicable rate of
Liquidated Damages by the aggregate principal amount of all such Registrable
Notes outstanding on the Damages Payment Date following such Registration
Default in the case of the first such payment of Liquidated Damages with respect
to a Registration Default (and thereafter at the next succeeding Damages Payment
Date until the cure of such Registration Default), multiplied by a fraction, the
numerator of which is the number of days such Liquidated Damages rate was
applicable during such
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period (determined on the basis of a 360-day year comprised of twelve 30-day
months and, in the case of a partial month, the actual number of days elapsed),
and the denominator of which is 360.
Section 5. Registration Procedures.
In connection with the filing of any Registration Statement
pursuant to Section 2 or 3 hereof, the Issuer shall effect such registrations to
permit the sale of the securities covered thereby in accordance with the
intended method or methods of disposition thereof, and pursuant thereto and in
connection with any Registration Statement filed by the Issuer hereunder, the
Issuer shall:
(a) Prepare and file with the Commission the Registration
Statement or Registration Statements prescribed by Section 2 or 3
hereof, and use its reasonable best efforts to cause each such
Registration Statement to become effective and remain effective as
provided herein; provided, however, that if (1) such filing is pursuant
to Section 3 hereof, or (2) a Prospectus contained in the Exchange
Offer Registration Statement filed pursuant to Section 2 hereof is
required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period relating thereto, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, the Issuer shall
furnish to and afford the Holders of the Registrable Notes covered by
such Registration Statement or each such Participating Broker-Dealer,
as the case may be, its counsel (if such counsel is known to the
Issuer) and the managing underwriters, if any, a reasonable opportunity
to review copies of all such documents (including copies of any
documents to be incorporated by reference therein and all exhibits
thereto) proposed to be filed (in each case at least five Business Days
prior to such filing or such later date as is reasonable under the
circumstances). The Issuer shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto if the Holders of a
majority in aggregate principal amount of the Registrable Notes covered
by such Registration Statement, or any such Participating
Broker-Dealer, as the case may be, its counsel, or the managing
underwriters, if any, shall reasonably object on a timely basis.
(b) Prepare and file with the Commission such amendments
and post-effective amendments to each Shelf Registration Statement or
Exchange Offer Registration Statement, as the case may be, as may be
necessary to keep such Registration Statement continuously effective
for the Effectiveness Period or the Applicable Period, as the case may
be; cause the related Prospectus to be supplemented by any Prospectus
supplement required by applicable law, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force)
promulgated under the Securities Act; and comply with the provisions of
the Securities Act and the Exchange Act applicable to it with respect
to the disposition of all securities covered by such Registration
Statement as so amended or in such Prospectus as so supplemented and
with respect to the subsequent resale of any securities being sold by a
Participating Broker-Dealer covered by any such Prospectus, in each
case, in accordance with the intended methods of distribution set forth
in such Registration Statement or Prospectus, as so amended.
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(c) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period relating thereto from whom the Issuer has received written
notice that such Broker-Dealer will be a Participating Broker-Dealer in
the applicable Exchange Offer, notify the selling Holders of
Registrable Notes, or each such Participating Broker-Dealer, as the
case may be, their counsel and the managing underwriters, if any, as
promptly as possible, and, if requested by any such Person, confirm
such notice in writing, (i) when a Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with
respect to a Registration Statement or any post-effective amendment,
when the same has become effective under the Securities Act (including
in such notice a written statement that any Holder may, upon request,
obtain, at the sole expense of the Issuer, one conformed copy of such
Registration Statement or post-effective amendment including financial
statements and schedules, documents incorporated or deemed to be
incorporated by reference and exhibits), (ii) of the issuance by the
Commission of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use
of any preliminary prospectus or the initiation of any proceedings for
that purpose, (iii) if at any time when a Prospectus is required by the
Securities Act to be delivered in connection with sales of the
Registrable Notes or resales of Exchange Notes by Participating
Broker-Dealers the representations and warranties of the Issuer
contained in any agreement (including any underwriting agreement)
contemplated by Section 5(m)(i) hereof cease to be true and correct in
all material respects, (iv) of the receipt by the Issuer of any
notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of the
Registrable Notes or the Exchange Notes for offer or sale in any
jurisdiction, or the initiation or threatening of any proceeding for
such purpose, (v) of the happening of any event, the existence of any
condition or any information becoming known to the Issuer that makes
any statement made in such Registration Statement or related Prospectus
or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making of
any changes in or amendments or supplements to such Registration
Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any 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 not misleading, and
that in the case of the Prospectus, it will not contain any 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 the light of the circumstances under which they were made,
not misleading, and (vi) of the Issuer's determination that a
post-effective amendment to a Registration Statement would be
appropriate.
(d) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, use its reasonable best efforts to prevent the issuance of any
order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of a Prospectus or
suspending the qualification
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(or exemption from qualification) of any of the Registrable Notes or
the Exchange Notes, as the case may be, for sale in any jurisdiction,
and, if any such order is issued, to use its reasonable best efforts to
obtain the withdrawal of any such order at the earliest practicable
moment.
(e) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period and if reasonably requested by the managing underwriter or
underwriters (if any), the Holders of a majority in aggregate principal
amount of the Registrable Notes covered by such Registration Statement
or any Participating Broker-Dealer, as the case may be, (i) promptly
incorporate in such Registration Statement or Prospectus a prospectus
supplement or post-effective amendment such information as the managing
underwriter or underwriters (if any), such Holders or any Participating
Broker-Dealer, as the case may be (based upon advice of counsel),
determine is reasonably necessary to be included therein and (ii) make
all required filings of such prospectus supplement or such
post-effective amendment as soon as practicable after the Issuer has
received notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment; provided, however,
that the Issuer shall not be required to take any action hereunder that
would, in the written opinion of counsel to the Issuer, violate
applicable laws.
(f) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, furnish to each selling Holder of Registrable Notes or each
such Participating Broker-Dealer, as the case may be, who so requests,
its counsel and each managing underwriter, if any, at the sole expense
of the Issuer, one conformed copy of the Registration Statement or
Registration Statements and each post-effective amendment thereto,
including financial statements and schedules, and, if requested, all
documents incorporated or deemed to be incorporated therein by
reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, deliver to each selling Holder of Registrable Notes or each
such Participating Broker-Dealer, as the case may be, its respective
counsel, and the underwriters, if any, at the sole expense of the
Issuer, as many copies of the Prospectus or Prospectuses (including
each form of preliminary prospectus) and each amendment or supplement
thereto and any documents incorporated by reference therein as such
Persons may reasonably request; and, subject to the last paragraph of
this Section 5, the Issuer hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the
selling Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, and the underwriters or agents, if
any, and dealers (if any), in
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connection with the offering and sale of the Registrable Notes covered
by, or the sale by Participating Broker-Dealers of the Exchange Notes
pursuant to, such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or
Exchange Notes or any delivery of a Prospectus contained in the
Exchange Offer Registration Statement by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, use its reasonable best efforts to register or qualify, and to
cooperate with the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, the managing
underwriter or underwriters, if any, and its respective counsel in
connection with the registration or qualification (or exemption from
such registration or qualification) of such Registrable Notes or
Exchange Notes, as the case may be, for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United
States as any selling Holder, Participating Broker-Dealer, or the
managing underwriter or underwriters reasonably request; provided,
however, that where Exchange Notes or Registrable Notes are offered
other than through an underwritten offering, the Issuer agrees to use
its reasonable best efforts to cause the Issuer's counsel to perform
Blue Sky investigations and file registrations and qualifications
required to be filed pursuant to this Section 5(h); keep each such
registration or qualification (or exemption therefrom) effective during
the period such Registration Statement is required to be kept effective
and do any and all other acts or things reasonably necessary or
advisable to enable the disposition in such jurisdictions of such
Exchange Notes or Registrable Notes covered by the applicable
Registration Statement; provided, however, that the Issuer shall not be
required to (A) qualify generally to do business in any jurisdiction
where it is not then so qualified, (B) take any action that would
subject it to general service of process in any such jurisdiction where
it is not then so subject or (C) subject itself to taxation in excess
of a nominal dollar amount in any such jurisdiction where it is not
then so subject.
(i) If a Shelf Registration is filed pursuant to Section
3 hereof, cooperate with the selling Holders of Registrable Notes and
the managing underwriter or underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing
Registrable Notes to be sold, which certificates shall not bear any
restrictive legends and shall be in a form eligible for deposit with
The Depository Trust Company and enable such Registrable Notes to be in
such denominations and registered in such names as the managing
underwriter or underwriters, if any, or selling Holders may request at
least five Business Days prior to any sale of such Registrable Notes.
(j) Use its reasonable best efforts to cause the
Registrable Notes or Exchange Notes covered by any Registration
Statement to be registered with or approved by such other governmental
agencies or authorities as may be reasonably necessary to enable the
seller or sellers thereof or the underwriter or underwriters, if any,
to consummate the disposition of such Registrable Notes or Exchange
Notes, except as may be required solely as a consequence of the nature
of such selling Holder's business, in which case the Issuer will
cooperate in all reasonable respects with the filing of such
Registration Statement and the granting of such approvals.
-14-
(k) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, upon the occurrence of any event contemplated by Section
5(c)(v) or 5(c)(vi) hereof, as promptly as practicable prepare and
(subject to Section 5(a) and the penultimate paragraph of this Section
5) file with the Commission, at the sole expense of the Issuer, a
supplement or post-effective amendment to the Registration Statement or
a supplement to the related Prospectus or any document incorporated or
deemed to be incorporated therein by reference, or file any other
required document so that, as thereafter delivered to the purchasers of
the Registrable Notes being sold thereunder or to the purchasers of the
Exchange Notes to whom such Prospectus will be delivered by a
Participating Broker-Dealer, any such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(l) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee
with certificates for the Registrable Notes in a form eligible for
deposit with The Depository Trust Company and (ii) provide a CUSIP
number for the Registrable Notes.
(m) In connection with any underwritten offering of
Registrable Notes pursuant to a Shelf Registration, enter into an
underwriting agreement as is customary in underwritten offerings of
debt securities similar to the Notes and take all such other actions as
are reasonably requested by the managing underwriter or underwriters in
order to expedite or facilitate the registration or the disposition of
such Registrable Notes and, in such connection, (i) make such
representations and warranties to, and covenants with, the underwriters
with respect to the business of the Issuer and its subsidiaries, as
then conducted (including any acquired business, properties or entity,
if applicable), and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, as are customarily made by issuers to
underwriters in underwritten offerings of debt securities similar to
the Notes, and confirm the same in writing if and when requested; (ii)
use its reasonable best efforts to obtain the written opinions of
counsel to the Issuer and written updates thereof in form, scope and
substance reasonably satisfactory to the managing underwriter or
underwriters, addressed to the underwriters covering the matters
customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by the managing
underwriter or underwriters; (iii) use its reasonable best efforts to
obtain "cold comfort"
-15-
letters and updates thereof in form, scope and substance reasonably
satisfactory to the managing underwriter or underwriters from the
independent certified public accountants of the Issuer (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Issuer or of any business acquired by the Issuer for
which financial statements and financial data are, or are required to
be, included or incorporated by reference in the Registration
Statement), addressed to each of the underwriters, such letters to be
in customary form and covering matters of the type customarily covered
in "cold comfort" letters in connection with underwritten offerings;
and (iv) if an underwriting agreement is entered into, the same shall
contain indemnification provisions and procedures no less favorable
than those set forth in Section 7 hereof (or such other provisions and
procedures acceptable to Holders of a majority in aggregate principal
amount of Registrable Notes covered by such Registration Statement and
the managing underwriter or underwriters or agents) with respect to all
parties to be indemnified pursuant to said Section; provided that the
Issuer shall not be required to provide indemnification to any
underwriter selected in accordance with the provisions of Section 9
hereof with respect to information relating to such underwriter
furnished in writing to the Issuer by or on behalf of such underwriter
expressly for inclusion in such Registration Statement. The above shall
be done at each closing under such underwriting agreement, or as and to
the extent required thereunder.
(n) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, make available for inspection by any selling Holder of such
Registrable Notes being sold or each such Participating Broker-Dealer,
as the case may be, any underwriter participating in any such
disposition of Registrable Notes, if any, and any attorney, accountant
or other agent retained by any such selling Holder or each such
Participating Broker-Dealer, as the case may be, or underwriter
(collectively, the "Inspectors"), at the offices where normally kept,
during reasonable business hours, all financial and other records,
pertinent corporate documents and instruments of the Issuer and its
subsidiaries (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of
the Issuer and its subsidiaries to supply all information reasonably
requested by any such Inspector in connection with such Registration
Statement and Prospectus. Each Inspector shall agree in writing that it
will keep the Records confidential and that it will not disclose, or
use in connection with any market transactions in violation of any
applicable securities laws, any Records that the Issuer determines, in
good faith, to be confidential and that it notifies the Inspectors in
writing are confidential unless (i) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in such
Registration Statement or Prospectus, (ii) the release of such Records
is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, (iii) disclosure of such information is
necessary or advisable in the opinion of counsel for an Inspector in
connection with any action, claim, suit or proceeding, directly or
indirectly, involving or potentially involving such Inspector and
arising out of, based upon, relating to, or involving this Agreement or
the Purchase Agreement, or any transactions contemplated hereby or
thereby or arising hereunder or thereunder, or (iv) the information in
such Records has been made generally available to the public; provided,
however, that (i) each Inspector shall agree to use reasonable best
efforts to provide notice to the Issuer of the potential disclosure of
any information by such Inspector pursuant to clause (i), (ii) or (iii)
of this sentence to permit the Issuer to obtain a protective order (or
waive the provisions of this paragraph (n)) and (ii) each such
Inspector shall take such actions as are reasonably necessary to
protect the confidentiality of such information (if practicable)
-16-
to the extent such action is otherwise not inconsistent with, an
impairment of or in derogation of the rights and interests of the
Holder or any Inspector.
(o) Provide an indenture trustee for the Registrable
Notes or the Exchange Notes, as the case may be, and cause the
Indenture or the trust indenture provided for in Section 2(a) hereof to
be qualified under the TIA not later than the effective date of the
Exchange Offer or the first Registration Statement relating to the
Registrable Notes; and in connection therewith, cooperate with the
trustee under any such indenture and the Holders of the Registrable
Notes or Exchange Notes, as applicable, to effect such changes to such
indenture as may be required for such indenture to be so qualified in
accordance with the terms of the TIA; and execute, and use its
reasonable best efforts to cause such trustee to execute, all documents
as 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.
(p) Comply with all applicable rules and regulations of
the Commission and make generally available to the Issuer's
securityholders earnings statements satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any
similar rule promulgated under the Securities Act) no later than 45
days after the end of any 12-month period (or 90 days after the end of
any 12-month period if such period is a fiscal year) (i) commencing at
the end of any fiscal quarter in which Registrable Notes or Exchange
Notes are sold to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter of
the Issuer after the effective date of a Registration Statement, which
statements shall cover said 12-month periods consistent with the
requirements of Rule 158.
(q) Upon the request of a Holder, upon consummation of
the Exchange Offer or a Private Exchange, use its reasonable best
efforts to obtain an opinion of counsel to the Issuer, in a form
customary for underwritten transactions, addressed to the Trustee for
the benefit of all Holders of Registrable Notes participating in the
Exchange Offer or the Private Exchange, as the case may be, that the
Exchange Notes or Private Exchange Notes, as the case may be, and the
related indenture constitute legal, valid and binding obligations of
the Issuer, enforceable against the Issuer in accordance with its
respective terms, subject to customary exceptions and qualifications.
(r) If the Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the
Issuer (or to such other Person as directed by the Issuer) in exchange
for the Exchange Notes or the Private Exchange Notes, as the case may
be, ▇▇▇▇, or cause to be marked, on such Registrable Notes that such
Registrable Notes are being cancelled in exchange for the Exchange
Notes or the Private Exchange Notes, as the case may be; provided that
in no event shall such Registrable Notes be marked as paid or otherwise
satisfied.
(s) Cooperate with each seller of Registrable Notes
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable
-17-
Notes and their respective counsel in connection with any filings
required to be made with the National Association of Securities
Dealers, Inc. (the "NASD").
(t) Use its reasonable best efforts to take all other
steps reasonably necessary or advisable to effect the registration of
the Exchange Notes and/or Registrable Notes covered by a Registration
Statement contemplated hereby.
The Issuer may require each seller of Registrable Notes or
Exchange Notes as to which any registration is being effected to furnish to the
Issuer such information regarding such seller and the distribution of such
Registrable Notes or Exchange Notes as the Issuer may, from time to time,
reasonably request. The Issuer may exclude from such registration the
Registrable Notes of any seller so long as such seller fails to furnish such
information within a reasonable time after receiving such request and in the
event of such an exclusion, the Issuer shall have no further obligation under
this Agreement (including, without limitation, the obligations under Section 4)
with respect to such seller or any subsequent Holder of such Registrable Notes.
Each seller as to which any Shelf Registration is being effected agrees to
furnish promptly to the Issuer all information required to be disclosed in order
to make any information previously furnished to the Issuer by such seller not
materially misleading.
If any such Registration Statement refers to any Holder by
name or otherwise as the holder of any securities of the Issuer, then such
Holder shall have the right to require (i) the insertion therein of language, in
form and substance reasonably satisfactory to such Holder, to the effect that
the holding by such Holder of such securities is not to be construed as a
recommendation by such Holder of the investment quality of the securities
covered thereby and that such holding does not imply that such Holder will
assist in meeting any future financial requirements of the Issuer, or (ii) in
the event that such reference to such Holder by name or otherwise is not
required by the Securities Act or any similar federal statute then in force, the
deletion of the reference to such Holder in any amendment or supplement to the
applicable Registration Statement filed or prepared subsequent to the time that
such reference ceases to be required.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes or Exchange Notes
that, upon actual receipt of any notice from the Issuer (x) of the happening of
any event of the kind described in Section 5(c)(ii), 5(c)(iii), 5(c)(iv), or
5(c)(v) hereof, or (y) that the Board of Directors of the Issuer (the "Board of
Directors") has resolved that the Issuer has a bona fide business purpose for
doing so, then the Issuer may delay the filing or the effectiveness of the
Exchange Offer Registration Statement or the Shelf Registration Statement (if
not then filed or effective, as applicable) and shall not be required to
maintain the effectiveness thereof or amend or supplement the Exchange Offer
Registration Statement or the Shelf Registration, in all cases, for a period (a
"Delay Period") expiring upon the earlier to occur of (i) in the case of the
immediately preceding clause (x), such Holder's or Participating Broker-Dealer's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 5(k) hereof or until it is advised in writing (the "Advice") by the
Issuer that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto or (ii) in the case of
the immediately preceding clause (y), the date which is the earlier of (A) the
date on which such business purpose
-18-
ceases to interfere with the Issuer's obligations to file or maintain the
effectiveness of any such Registration Statement pursuant to this Agreement or
(B) 60 days after the Issuer notifies the Holders of such good faith
determination. There shall not be more than 60 days of Delay Periods during any
12-month period. Each of the Effectiveness Period and the Applicable Period, if
applicable, shall be extended by the number of days during any Delay Period. Any
Delay Period will not alter the obligations of the Issuer to pay Liquidated
Damages under the circumstances set forth in Section 4 hereof.
In the event of any Delay Period pursuant to clause (y) of the
preceding paragraph, notice shall be given as soon as practicable after the
Board of Directors makes such a determination of the need for a Delay Period and
shall state, to the extent practicable, an estimate of the duration of such
Delay Period and shall advise the recipient thereof of the agreement of such
Holder provided in the next succeeding sentence. Each Holder, by his acceptance
of any Registrable Note, agrees that during any Delay Period, each Holder will
discontinue disposition of such Notes or Exchange Notes covered by such
Registration Statement or Prospectus or Exchange Notes to be sold by such Holder
or Participating Broker-Dealer, as the case may be.
Section 6. Registration Expenses.
All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuer (other than any underwriting
discounts or commissions) shall be borne by the Issuer, whether or not the
Exchange Offer Registration Statement or the Shelf Registration is filed or
becomes effective or the Exchange Offer is consummated, including, without
limitation, (i) all registration and filing fees (including, without limitation,
(A) fees with respect to filings required to be made with the NASD in connection
with an underwritten offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of one counsel in connection with Blue Sky qualifications of the
Registrable Notes or Exchange Notes and determination of the eligibility of the
Registrable Notes or Exchange Notes for investment under the laws of such
jurisdictions (x) where the holders of Registrable Notes are located, in the
case of an Exchange Offer, or (y) as provided in Section 5(h) hereof, in the
case of a Shelf Registration or in the case of Exchange Notes to be sold by a
Participating Broker-Dealer during the Applicable Period)), (ii) printing
expenses, including, without limitation, expenses of printing a certificate or
certificates for Registrable Notes or Exchange Notes in a form eligible for
deposit with The Depository Trust Company and of printing prospectuses if the
printing of prospectuses is requested by the managing underwriter or
underwriters, if any, or by the Holders of a majority in aggregate principal
amount of the Registrable Notes included in any Registration Statement or in
respect of Exchange Notes to be sold by any Participating Broker-Dealer during
the Applicable Period, as the case may be, (iii) messenger, telephone and
delivery expenses, (iv) fees and disbursements of counsel for the Issuer and
reasonable fees and disbursements of one special counsel for all of the sellers
of Registrable Notes (exclusive of any counsel retained pursuant to Section 7
hereof), (v) fees and disbursements of all independent certified public
accountants referred to in Section 5(m)(iii) hereof (including, without
limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (vi) Securities Act liability
insurance, if the Issuer desires such insurance, (vii) fees and expenses of all
other Persons retained by the Issuer, (viii) internal expenses of the Issuer
(including, without limitation, all salaries and expenses of officers and
employees of the Issuer performing legal
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or accounting duties), (ix) the expense of any annual audit, (x) the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange, and the obtaining of a rating of the
securities, in each case, if applicable, and (xi) the expenses relating to
printing, word processing and distributing all Registration Statements,
underwriting agreements, indentures and any other documents necessary in order
to comply with this Agreement. Notwithstanding the foregoing or anything to the
contrary, each Holder shall pay all underwriting discounts and commissions of
any underwriters with respect to any Registrable Notes sold by or on behalf of
it.
Section 7. Indemnification.
(a) The Issuer agrees to indemnify and hold harmless each
Holder of Registrable Notes and each Participating Broker-Dealer selling
Exchange Notes during the Applicable Period, each Person, if any, who controls
any such Person within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act, the agents, employees, officers and directors
of each Holder and each such Participating Broker-Dealer and the agents,
employees, officers and directors of any such controlling Person (each, a
"Participant") from and against any and all losses, liabilities, claims, damages
and expenses (including, but not limited to, reasonable attorneys' fees and any
and all reasonable out-of-pocket expenses actually incurred in investigating,
preparing or defending against any litigation, commenced or threatened, or any
claim whatsoever, and any and all reasonable amounts paid in settlement of any
claim or litigation (in the manner set forth in clause (c) below))
(collectively, "Losses") to which they or any of them may become subject under
the Securities Act, the Exchange Act or otherwise insofar as such Losses (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto) or Prospectus (as amended or supplemented
if the Issuer shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by, arising out of or based upon any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the case of the
Prospectus, in the light of the circumstances under which they were made, not
misleading, provided that (i) the foregoing indemnity shall not be available to
any Participant insofar as such Losses are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to such Participant furnished to the Issuer
in writing by or on behalf of such Participant expressly for use therein, and
(ii) that the foregoing indemnity with respect to any preliminary prospectus
shall not inure to the benefit of any Participant from whom the Person asserting
such Losses purchased Registrable Notes if (x) it is established in the related
proceeding that such Participant failed to send or give a copy of the Prospectus
(as amended or supplemented if such amendment or supplement was furnished to
such Participant prior to the written confirmation of such sale) to such Person
with or prior to the written confirmation of such sale, if required by
applicable law, and (y) the untrue statement or omission or alleged untrue
statement or omission was completely corrected in the Prospectus (as amended or
supplemented if amended or supplemented as aforesaid) and such Prospectus does
not contain any other untrue statement or omission or alleged untrue statement
or omission that was the subject matter of the related proceeding. This
indemnity agreement will be in addition to any liability that the Issuer may
otherwise have, including, but not limited to, liability under this Agreement.
-20-
(b) Each Participant agrees, severally and not jointly,
to indemnify and hold harmless the Issuer, each Person, if any, who controls the
Issuer within the meaning of Section 15 of the Securities Act or Section 20(a)
of the Exchange Act, and each of its agents, employees, officers and directors
and the agents, employees, officers and directors of any such controlling Person
from and against any Losses to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise insofar as such Losses
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto) or Prospectus (as amended or
supplemented if the Issuer shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or caused by, arising out of or based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the case of
the Prospectus, in the light of the circumstances under which they were made,
not misleading, in each case to the extent, but only to the extent, that any
such Loss arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in
conformity with information relating to such Participant furnished in writing to
the Issuer by or on behalf of such Participant expressly for use therein.
(c) Promptly after receipt by an indemnified party under
subsection 7(a) or 7(b) above of notice of the commencement of any action, suit
or proceeding (collectively, an "action"), such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to be sought in
writing of the commencement of such action (but the failure so to notify an
indemnifying party shall not relieve such indemnifying party from any liability
that it may have under this Section 7 except to the extent that it has been
prejudiced in any material respect by such failure). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement of such action, the indemnifying party will be entitled to
participate in such action, and to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense of such action with counsel
reasonably satisfactory to such indemnified party. Notwithstanding the
foregoing, the indemnified party or parties shall have the right to employ its
or their own counsel in any such action, but the reasonable fees and expenses of
such counsel shall be at the expense of such indemnified party or parties unless
(i) the employment of such counsel shall have been authorized in writing by the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take charge of the
defense of such action within a reasonable time after notice of commencement of
the action, or (iii) the named parties to such action (including any impleaded
parties) include such indemnified party and the indemnifying party or parties
(or such indemnifying parties have assumed the defense of such action), and such
indemnified party or parties shall have reasonably concluded, after consultation
with counsel, that there may be defenses available to it or them that are
different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such reasonable fees and expenses of counsel
shall be borne by the indemnifying parties. In no event shall the indemnifying
party be liable for the reasonable fees and expenses of more than one counsel
(together with appropriate local counsel) at any time for all indemnified
parties in connection with any one action or separate but substantially similar
or
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related actions arising in the same jurisdiction out of the same general
allegations or circumstances. Any such separate firm for the Participants shall
be designated in writing by Participants who sold a majority in interest of
Registrable Notes sold by all such Participants and shall be reasonably
acceptable to the Issuer and any such separate firm for the Issuer, its
affiliates, officers, directors, representatives, employees and agents and such
control Person of the Issuer shall be designated in writing by the Issuer and
shall be reasonably acceptable to the Holders. An indemnifying party shall not
be liable for any settlement of any claim or action effected without its written
consent, which consent may not be unreasonably withheld. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) In order to provide for contribution in circumstances
in which the indemnification provided for in this Section 7 is for any reason
held to be unavailable from the indemnifying party, or is insufficient to hold
harmless a party indemnified under this Section 7, each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such aggregate Losses (i) in such proportion as is appropriate to reflect the
relative benefits received by each indemnifying party, on the one hand, and each
indemnified party, on the other hand, from the sale of the Notes to the Initial
Purchasers or the resale of the Registrable Notes by such Holder, as applicable,
or (ii) if such allocation is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of each indemnified party, on
the one hand, and each indemnifying party, on the other hand, in connection with
the statements or omissions that resulted in such Losses, as well as any other
relevant equitable considerations. The relative benefits received by the Issuer,
on the one hand, and each Participant, on the other hand, shall be deemed to be
in the same proportion as (x) the total proceeds from the sale of the Notes to
the Initial Purchasers (net of discounts and commissions but before deducting
expenses) received by the Issuer are to (y) the total net profit received by
such Participant in connection with the sale of the Registrable Notes. 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 Issuer or such Participant and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission or alleged statement or omission.
(e) The parties agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to above. Notwithstanding the provisions
of this Section 7, (i) in no case shall any Participant be required to
contribute any amount in excess of the amount by which the net profit received
by such Participant in connection with the sale of the Registrable Notes exceeds
the amount of any damages that such Participant has otherwise been required to
pay by reason of any untrue or alleged untrue statement or omission or alleged
omission and (ii) 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. Any party entitled to contribution will, promptly after
receipt of notice of
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commencement of any action against such party in respect of which a claim for
contribution may be made against another party or parties under this Section 7,
notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any obligation it or they may
have under this Section 7 or otherwise, except to the extent that it has been
prejudiced in any material respect by such failure; provided, however, that no
additional notice shall be required with respect to any action for which notice
has been given under this Section 7 for purposes of indemnification. Anything in
this section to the contrary notwithstanding, no party shall be liable for
contribution with respect to any action or claim settled without its written
consent, provided, however, that such written consent was not unreasonably
withheld.
Section 8. Rules 144 and 144A.
The Issuer covenants that it will file the reports required,
if any, to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the Commission thereunder in a timely manner in
accordance with the requirements of the Securities Act and the Exchange Act and,
if at any time the Issuer is not required to file such reports, it will, upon
the request of any Holder or beneficial owner of Registrable Notes, make
available such information necessary to permit sales pursuant to Rule 144A under
the Securities Act. The Issuer further covenants that for so long as any
Registrable Notes remain outstanding it will take such further action as any
Holder of Registrable Notes may reasonably request from time to time to enable
such Holder to sell Registrable Notes without registration under the Securities
Act within the limitation of the exemptions provided by (a) Rule 144(k) and Rule
144A under the Securities Act, as such Rules may be amended from time to time,
or (b) any similar rule or regulation hereafter adopted by the Commission.
Section 9. Underwritten Registrations.
If any of the Registrable Notes 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 manage the offering will
be selected by the Holders of a majority in aggregate principal amount of such
Registrable Notes included in such offering and shall be reasonably acceptable
to the Issuer.
No Holder of Registrable Notes may participate in any
underwritten registration hereunder if such Holder does not (a) agree to sell
such Holder's Registrable Notes on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) complete and execute all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
Section 10. Miscellaneous.
(a) No Inconsistent Agreements. The Issuer has not, as of
the date hereof, and shall not have, after the date of this Agreement, entered
into any agreement with respect to any of its securities that is inconsistent
with the rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder
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do not conflict with and are not inconsistent with, in any material respect, the
rights granted to the holders of any of the Issuer's other issued and
outstanding securities under any such agreements. The Issuer has not entered and
will not enter into any agreement with respect to any of its securities which
will grant to any Person piggy-back registration rights with respect to any
Registration Statement.
(b) Adjustments Affecting Registrable Notes. The Issuer
shall not, directly or indirectly, take any action with respect to the
Registrable Notes as a class that would adversely affect the ability of the
Holders of Registrable Notes to include such Registrable Notes in a registration
undertaken pursuant to this Agreement.
(c) 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 pursuant to a
written agreement duly signed and delivered by (I) the Issuer and (II)(A) the
Holders of not less than a majority in aggregate principal amount of the then
outstanding Registrable Notes and (B) in circumstances that would adversely
affect the Participating Broker-Dealers, the Participating Broker-Dealers
holding not less than a majority in aggregate principal amount of the Exchange
Notes held by all Participating Broker-Dealers; provided, however, that Section
7 and this Section 10(c) may not be amended, modified or supplemented except
pursuant to a written agreement duly signed and delivered by the Issuer and each
Holder and each Participating Broker-Dealer (including any Person who was a
Holder or Participating Broker-Dealer of Registrable Notes or Exchange Notes, as
the case may be, disposed of pursuant to any Registration Statement) affected by
any such amendment, modification, supplement or waiver. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders of Registrable
Notes whose securities are being sold pursuant to a Registration Statement and
that does not directly or indirectly affect, impair, limit or compromise the
rights of other Holders of Registrable Notes may be given by Holders of at least
a majority in aggregate principal amount of the Registrable Notes being sold
pursuant to such Registration Statement.
(d) Notices. All notices and other communications
(including, without limitation, any notices or other communications to the
Trustee) provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, next-day air courier or telecopier:
(i) if to a Holder of the Registrable Notes or any
Participating Broker-Dealer, at the most current address of such Holder
or Participating Broker-Dealer, as the case may be, set forth on the
records of the registrar under the Indenture.
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(ii) if to the Issuer, at the address as follows:
Range Resources Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(iii) if to the Initial Purchasers, at the address as
follows:
UBS Securities LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (203) 719-
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: High Yield Capital Markets
With a copy at such address to the attention
of Legal Department, fax number
(▇▇▇) ▇▇▇-▇▇▇▇
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; when receipt is
acknowledged by the recipient's telecopier machine, 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 and in the manner specified in such 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 hereto, the Holders and the Participating Broker-Dealers; 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 holds Registrable Notes.
(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.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
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(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED
TO CONTRACTS MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Securities Held by the Issuer or Its Affiliates.
Whenever the consent or approval of Holders of a specified percentage of
Registrable Notes is required hereunder, Registrable Notes held by the Issuer or
any of its affiliates (as such term is defined in Rule 405 under the Securities
Act) shall not be counted in determining whether such consent or approval was
given by the Holders of such required percentage.
(k) Third-Party Beneficiaries. Holders and beneficial
owners of Registrable Notes and Participating Broker-Dealers are intended
third-party beneficiaries of this Agreement, and this Agreement may be enforced
by such Persons. No other Person is intended to be, or shall be construed as, a
third-party beneficiary of this Agreement.
(l) Attorneys' Fees. As between the parties to this
Agreement, in any action or proceeding brought to enforce any provision of this
Agreement, or where any provision hereof is validly asserted as a defense, the
successful party shall be entitled to recover reasonable attorneys' fees
actually incurred in addition to its costs and expenses and any other available
remedy.
(m) Entire Agreement. This Agreement, together with the
Purchase Agreement and the Indenture, is intended by the parties as a final and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein and any and all prior
oral or written agreements, representations, or warranties, contracts,
understandings, correspondence, conversations and memoranda between the Holders
on the one hand and the Issuer on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest or
successors in interest with respect to the subject matter hereof and thereof are
merged herein and replaced hereby.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
RANGE RESOURCES CORPORATION,
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
UBS SECURITIES LLC,
on behalf of itself and the other Initial Purchasers
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Director
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director