EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
DATED AS OF OCTOBER 10, 2003
BY AND AMONG
▇▇▇▇▇▇ DRILLING COMPANY
AS ISSUER
THE GUARANTORS LISTED HEREIN
AND
▇▇▇▇▇▇ BROTHERS INC.
DEUTSCHE BANK SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
AS THE INITIAL PURCHASERS
This Registration Rights Agreement (this "AGREEMENT") is dated
as of October 10, 2003, by and among ▇▇▇▇▇▇ Drilling Company, a Delaware
corporation (the "COMPANY"), the subsidiaries listed on Schedule A attached
hereto (the "GUARANTORS"), and ▇▇▇▇▇▇ Brothers Inc., Deutsche Bank Securities
Inc. and Banc of America Securities LLC (each an "INITIAL PURCHASER" and,
collectively, the "INITIAL PURCHASERS"), each of whom has agreed to purchase the
Company's 9-5/8% Senior Notes due October 1, 2013 (the "NOTES") pursuant to the
Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement,
dated as of October 3, 2003 (the "PURCHASE AGREEMENT"), by and among the
Company, the Guarantors and the Initial Purchasers. In order to induce the
Initial Purchasers to purchase the Notes, the Company and the Guarantors 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 6 of the Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the meanings
assigned to them in the Indenture, dated the date hereof (the "INDENTURE"),
among the Company, the Guarantors and JPMorgan Chase Bank, as Trustee (the
"TRUSTEE"), relating to the Notes and the Exchange Notes (as defined below).
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms
shall have the following meanings:
ACT: The U.S. Securities Act of 1933, as amended.
AFFILIATE: As defined in Rule 144 of the Act.
BROKER-DEALER: Any broker or dealer registered under the
Exchange Act.
CERTIFICATED SECURITIES: Definitive Notes, as defined in the
Indenture.
CLOSING DATE: The date of this Agreement.
COMMISSION: The U.S. Securities and Exchange Commission.
CONSUMMATE: An Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Exchange Notes to be issued in the Exchange Offer, (b) the
maintenance of such Exchange Offer Registration Statement continuously effective
and the keeping of the Exchange Offer open for a period not less than the period
required pursuant to Section 3(b) hereof and (c) the delivery by the Company to
the Registrar under the Indenture of Exchange Notes in the same aggregate
principal amount as the aggregate principal amount of Notes tendered by Holders
thereof pursuant to the Exchange Offer.
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CONSUMMATION DEADLINE: As defined in Section 3(b) hereof.
EFFECTIVENESS DEADLINE: As defined in Section 3(a) and 4(a)
hereof.
EXCHANGE ACT: The U.S. Securities Exchange Act of 1934, as
amended.
EXCHANGE NOTES: The Company's 9-5/8% Senior Notes due 2013,
registered under the Act, to be issued pursuant to the Indenture: (a) in the
Exchange Offer or (b) as contemplated by Section 4 hereof.
EXCHANGE OFFER: The exchange and issuance by the Company of a
principal amount of Exchange Notes (which shall be registered pursuant to the
Exchange Offer Registration Statement) equal to the outstanding principal amount
of Notes that are tendered by such Holders in connection with such exchange and
issuance.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration
Statement relating to the Exchange Offer, including the related Prospectus.
EXEMPT RESALES: The transactions in which the Initial
Purchasers propose to sell the Notes to certain "qualified institutional
buyers," as such term is defined in Rule 144A under the Act, and pursuant to
Regulation S under the Act.
FILING DEADLINE: As defined in Sections 3(a) and 4(a) hereof.
HOLDERS: As defined in Section 2 hereof.
INTEREST PAYMENT DATE: As defined in the Notes and the
Exchange Notes.
PERSON: As defined in the Indenture.
PROSPECTUS: The prospectus included in a Registration
Statement at the time such Registration Statement is declared effective, 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.
RECOMMENCEMENT DATE: As defined in Section 6(e) hereof.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the
Company and the Guarantors relating to (a) an offering of Exchange Notes and
related Subsidiary Guarantees pursuant to an Exchange Offer or (b) the
registration for resale of Transfer Restricted Securities pursuant to the Shelf
Registration Statement, in each case (i) that is filed pursuant to the
provisions of this Agreement and (ii) including the Prospectus included therein,
all amendments and supplements thereto (including post-effective amendments) and
all exhibits and material incorporated by reference therein.
REGULATION S: Regulation S promulgated under the Act.
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RULE 144: Rule 144 promulgated under the Act.
SHELF REGISTRATION STATEMENT: As defined in Section 4(a)
hereof.
SUBSIDIARY GUARANTEES: The guarantees of the Notes and
Exchange Notes of the Guarantors under the Indenture, as amended from time to
time.
SUSPENSION NOTICE: As defined in Section 6(e) hereof.
TIA: The U.S. Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
TRANSFER RESTRICTED SECURITIES: (a) Each Note and the related
Subsidiary Guarantees, until the earliest to occur of (i) the date on which such
Note has been exchanged by a Person other than a Broker-Dealer for an Exchange
Note in the Exchange Offer and is entitled to be resold to the public by such
Person without complying with the prospectus delivery requirements of the Act,
(ii) the date on which such Note has been effectively registered under the Act
and disposed of in accordance with the Shelf Registration Statement, or (iii)
the date on which such Note is eligible to be distributed to the public pursuant
to Rule 144(k) under the Act, and (b) each Exchange Note and the related
Subsidiary Guarantees acquired by a Broker-Dealer in the Exchange Offer of a
Note for such Exchange Note, until the date on which such Exchange Note is sold
to a purchaser who receives from such Broker-Dealer on or prior to the date of
such sale a copy of the Prospectus contained in the Exchange Offer Registration
Statement.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted
Securities (each, a "HOLDER") whenever such Person owns Transfer Restricted
Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by
applicable federal law (after the procedures set forth in Section 6(a) below
have been complied with), the Company and the Guarantors shall (i) cause the
Exchange Offer Registration Statement to be filed with the Commission as soon as
practicable after the Closing Date, but in no event later than 90 days after the
Closing Date (such 90th day being the "FILING DEADLINE"), (ii) use their
commercially reasonable best efforts to cause such Exchange Offer Registration
Statement to become effective at the earliest possible time, but in no event
later than 180 days after the Closing Date (such 180th day being the
"EFFECTIVENESS DEADLINE"), (iii) in connection with the foregoing, (A) file all
pre-effective amendments to such Exchange Offer Registration Statement as may be
necessary in order to cause it to become effective, (B) file, if applicable, a
post-effective amendment to such Exchange Offer Registration Statement pursuant
to Rule 430A under the Act and (C) cause all necessary filings, if any, in
connection with the registration and qualification of the Exchange Notes to be
made under the 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, commence and Consummate the Exchange
Offer. The Exchange Offer shall be on the appropriate form permitting (I)
registration of the Exchange Notes to be offered in exchange for the Notes that
are Transfer Restricted Securities and (II) resales of Exchange Notes
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by Broker-Dealers that tendered into the Exchange Offer Notes that such
Broker-Dealer acquired for its own account as a result of market making
activities or other trading activities (other than Notes acquired directly from
the Company or any of its Affiliates) as contemplated by Section 3(c) below.
(b) The Company and the Guarantors shall use their
reasonable best efforts to 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. The Company and the
Guarantors shall cause the Exchange Offer to comply with all applicable federal
and state securities laws. No securities other than the Exchange Notes and the
Subsidiary Guarantees shall be included in the Exchange Offer Registration
Statement. The Company and the Guarantors shall use their commercially
reasonable best efforts to cause the Exchange Offer to be Consummated on the
earliest practicable date after the Exchange Offer Registration Statement has
become effective, but in no event later than 30 business days thereafter (such
30th business day being the "CONSUMMATION DEADLINE").
(c) The Company and the Guarantors shall include a "Plan
of Distribution" section in the Prospectus contained in the Exchange Offer
Registration Statement and indicate therein that any Broker-Dealer who holds
Transfer Restricted Securities that were acquired for the account of such
Broker-Dealer as a result of market-making activities or other trading
activities (other than Notes acquired directly from the Company or any Affiliate
of the Company), may exchange such Transfer Restricted Securities pursuant to
the Exchange Offer. Such "Plan of Distribution" section shall also contain all
other information with respect to such sales by such Broker-Dealers that the
Commission may require in order to permit such sales pursuant thereto, but such
"Plan of Distribution" shall not name any such Broker-Dealer or disclose the
amount of Transfer Restricted Securities held by any such Broker-Dealer, except
to the extent required by the Commission as a result of a change in policy,
rules or regulations after the date of this Agreement.
Because such Broker-Dealer may be deemed to be an
"underwriter" within the meaning of the Act and must, therefore, deliver a
prospectus meeting the requirements of the Act in connection with its initial
sale of any Exchange Notes received by such Broker-Dealer in the Exchange Offer,
the Company and the Guarantors shall permit the use of the Prospectus contained
in the Exchange Offer Registration Statement by such Broker-Dealer to satisfy
such prospectus delivery requirement. To the extent necessary to ensure that the
prospectus contained in the Exchange Offer Registration Statement is available
for sales of Exchange Notes by Broker-Dealers, the Company and the Guarantors
agree to use their commercially reasonable best efforts to keep the Exchange
Offer Registration Statement continuously effective, supplemented, amended and
current as required by and subject to the provisions of Section 6(a) and (c)
hereof and in conformity with the requirements of this Agreement, the Act and
the policies, rules and regulations of the Commission as announced from time to
time, for a period of one year from the date on which the Exchange Offer is
Consummated or such shorter period as will terminate when such Broker-Dealers no
longer own any Transfer Restricted Securities. The Company shall provide
sufficient copies of the latest version of such Prospectus to such
Broker-
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Dealers, promptly upon request, and in no event later than one business day
after such request, at any time during such period.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Exchange Offer is not
permitted by applicable law or Commission policy (after the Company and the
Guarantors have complied with the procedures set forth in Section 6(b) hereof)
or (ii) if any Holder of Transfer Restricted Securities shall notify the Company
prior to the 20th business day following the Consummation of the Exchange Offer
that (A) such Holder was prohibited by applicable law or Commission policy from
participating in the Exchange Offer or (B) such Holder may not resell the
Exchange Notes acquired by it in the Exchange Offer to the public without
delivering a prospectus and 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 Notes acquired directly
from the Company or any of its Affiliates, then the Company and the Guarantors
shall:
(I) use their commercially reasonable best efforts to
file, or cause to be filed, on or prior to 60 days after the earlier of (i) the
date on which the Company determines that the Exchange Offer Registration
Statement cannot be filed as a result of clause (a)(i) of this Section and (ii)
the date on which the Company receives the notice specified in clause (a)(ii) of
this Section (the 60th day after such earlier date, the "FILING DEADLINE"), a
shelf registration statement pursuant to Rule 415 under the Act (which may be an
amendment to the Exchange Offer Registration Statement (the "SHELF REGISTRATION
STATEMENT")), relating to all Transfer Restricted Securities; and
(II) use their commercially reasonable best efforts to
cause such Shelf Registration Statement to become effective at the earliest
possible time, but in no event later than 180 days after the Filing Deadline for
the Shelf Registration Statement (such 180th day the "EFFECTIVENESS DEADLINE").
If, after the Company has and the Guarantors have filed an
Exchange Offer Registration Statement that satisfies the requirements of Section
3(a) above, the Company is and the Guarantors are required to file and make
effective a Shelf Registration Statement solely because the Exchange Offer is
not permitted under applicable federal law (i.e., clause (a)(i) of this
Section), then the filing of the Exchange Offer Registration Statement shall be
deemed to satisfy the requirements of clause (I) above; provided that, in such
event, the Company and the Guarantors shall remain obligated to meet the
Effectiveness Deadline set forth in clause (II) above.
To the extent necessary to ensure that the Shelf Registration
Statement is available for sales of Transfer Restricted Securities by the
Holders thereof entitled to the benefit of this Section 4(a) and the other
securities required to be registered therein pursuant to Section 6(b)(ii)
hereof, the Company and the Guarantors shall use their commercially reasonable
best efforts to keep any Shelf Registration Statement required by this Section
4(a) continuously effective, supplemented, amended and current as required by
and subject to the provisions of Sections 6(b) hereof and (c) hereof and in
conformity with the requirements of this Agreement,
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the Act and the policies, rules and regulations of the Commission as announced
from time to time, for a period of at least two years (as extended pursuant to
Section 6(c)(i) hereof) following the Closing Date, or such shorter period as
will terminate when all Transfer Restricted Securities covered by such Shelf
Registration Statement have been sold pursuant thereto.
(b) Provision by Holders of Certain Information in
Connection with the Shelf Registration Statement. No Holder of Transfer
Restricted Securities may include any of its Transfer Restricted Securities in
any Shelf Registration Statement pursuant to this Agreement unless and until
such Holder furnishes to the Company in writing, within 20 days after receipt of
a request therefor, the information specified in Item 507 or 508 of Regulation
S-K, as applicable, of the Act for use in connection with any Shelf Registration
Statement or Prospectus or preliminary Prospectus included therein. No Holder of
Transfer Restricted Securities shall be entitled to liquidated damages pursuant
to Section 5 hereof unless and until such Holder shall have provided all such
information. By its acceptance of Transfer Restricted Securities, each Holder
agrees to promptly furnish additional information required to be disclosed in
order to make the information previously furnished to the Company by such Holder
not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (a) any Registration Statement required by this Agreement
is not filed with the Commission on or prior to the applicable Filing Deadline,
(b) any such Registration Statement has not been declared effective by the
Commission on or prior to the applicable Effectiveness Deadline, (c) the
Exchange Offer has not been Consummated on or prior to the Consummation Deadline
or (d) any Registration Statement required by this Agreement is filed and
declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded within two business days
by a post-effective amendment to such Registration Statement that cures such
failure and that is itself declared effective within five business days of
filing such post-effective amendment to such Registration Statement (each such
event referred to in clauses (a) through (d), a "REGISTRATION DEFAULT"), then
the Company and the Guarantors hereby jointly and severally agree to pay to each
Holder of Transfer Restricted Securities affected thereby liquidated damages in
an amount equal to $.05 per week per $1,000 in principal amount of Transfer
Restricted Securities held by such Holder for the first 90-day period
immediately following the occurrence of such Registration Default. The amount of
the liquidated damages shall increase by an additional $.05 per week per $1,000
in principal amount of Transfer Restricted Securities with respect to each
subsequent 90-day period until all Registration Defaults have been cured, up to
a maximum amount of liquidated damages of $.50 per week per $1,000 in principal
amount of Transfer Restricted Securities; provided that the Company and the
Guarantors shall in no event be required to pay liquidated damages for more than
one Registration Default at any given time. Notwithstanding anything to the
contrary set forth herein, (i) upon filing of the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement), in the case
of (a) above, (ii) upon the effectiveness of the Exchange Offer Registration
Statement (and/or, if applicable the Shelf Registration Statement), in the case
of (b) above, (iii) upon Consummation of the Exchange Offer, in the case of (c)
above, or (iv) upon the filing of a post-effective amendment to the Registration
Statement or an additional Registration Statement that causes the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration Statement)
to again be declared effective or made usable, in
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the case of (d) above, the liquidated damages payable with respect to the
Transfer Restricted Securities as a result of such clause (a), (b), (c) or (d),
as applicable, shall cease.
All accrued liquidated damages shall be paid to the Holders
entitled thereto, in the manner provided for the payment of interest in the
Indenture, on each Interest Payment Date, as more fully set forth in the
Indenture and the Notes and the Exchange Notes. Notwithstanding the fact that
any securities for which liquidated damages are due cease to be Transfer
Restricted Securities, all obligations of the Company and the Guarantors to pay
liquidated damages with respect to securities shall survive until such time as
such obligations with respect to such securities shall have been satisfied in
full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection
with the Exchange Offer, the Company and the Guarantors shall (i) comply with
all applicable provisions of Section 6(c) below, (ii) use their commercially
reasonable best efforts to effect such exchange and to permit the resale of
Exchange Notes by any Broker-Dealer that tendered Notes in the Exchange Offer
that such Broker-Dealer acquired for its own account as a result of its market
making activities or other trading activities (other than Notes acquired
directly from the Company or any of its Affiliates) being sold in accordance
with the intended method or methods of distribution thereof, and (iii) comply
with all of the following provisions:
(A) If, following the date hereof there has been
announced a change in Commission policy with respect to
exchange offers such as the Exchange Offer, that in the
reasonable opinion of counsel to the Company raises a
substantial question as to whether the Exchange Offer is
permitted by applicable federal law, the Company and the
Guarantors hereby agree to seek a no-action letter or other
favorable decision from the Commission allowing the Company
and the Guarantors to Consummate an Exchange Offer for such
Transfer Restricted Securities. The Company and the Guarantors
hereby agree to pursue the issuance of such a decision to the
Commission staff level. In connection with the foregoing, the
Company and the Guarantors hereby agree to take all such other
actions as may be requested by the Commission or otherwise
required in connection with the issuance of such decision,
including without limitation (I) participating in telephonic
conferences with the Commission staff, (II) delivering to the
Commission staff an analysis prepared by counsel to the
Company setting forth the legal bases, if any, upon which such
counsel has concluded that such an Exchange Offer should be
permitted and (III) diligently pursuing a resolution (which
need not be favorable) by the Commission staff.
(B) As a condition to its participation in the
Exchange Offer, each Holder of Transfer Restricted Securities
(including, without limitation, any Holder who is a Broker
Dealer) shall furnish, upon the request of the Company, prior
to the Consummation of the Exchange Offer, a written
representation to the Company and the Guarantors (which may be
contained in the letter of transmittal contemplated by the
Exchange Offer Registration Statement) to the effect that (I)
it is not an Affiliate of the Company, (II) it is not engaged
in, and does not intend
8
to engage in, and has no arrangement or understanding with any
person to participate in, a distribution of the Exchange Notes
to be issued in the Exchange Offer and (III) it is acquiring
the Exchange Notes in its ordinary course of business. Each
Holder using the Exchange Offer to participate in a
distribution of the Exchange Notes will be required to
acknowledge and agree that, if the resales are of Exchange
Notes obtained by such Holder in exchange for Notes acquired
directly from the Company or an Affiliate thereof, it (1)
could not, under Commission policy as in effect on the date of
this Agreement, rely on the position of the Commission
enunciated in Exxon Capital Holdings Corporation (available
May 13, 1988) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June
5, 1991), as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993, and similar no-action
letters (including, if applicable, any no-action letter
obtained pursuant to clause (A) above), and (2) must comply
with the registration and prospectus delivery requirements of
the Act in connection with a secondary resale transaction and
that such a secondary resale transaction must 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.
(C) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company and the Guarantors shall
provide a supplemental letter to the Commission (I) stating
that the Company and the Guarantors are registering the
Exchange Offer in reliance on the position of the Commission
enunciated in Exxon Capital Holdings Corporation (available
May 13, 1988) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June
5, 1991), as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993, and, if applicable,
any no-action letter obtained pursuant to clause (A) above,
(II) including a representation that neither the Company nor
any Guarantor has entered into any arrangement or
understanding with any Person to distribute the Exchange Notes
to be received in the Exchange Offer and that, to the best of
the Company's and each Guarantor's information and belief,
each Holder participating in the Exchange Offer is acquiring
the Exchange Notes in its ordinary course of business and has
no arrangement or understanding with any Person to participate
in the distribution of the Exchange Notes received in the
Exchange Offer and (III) including any other undertaking or
representation required by the Commission as set forth in any
no-action letter obtained pursuant to clause (A) above, if
applicable.
(b) Shelf Registration Statement. In connection with the
Shelf Registration Statement, the Company and the Guarantors shall:
(i) comply with all the provisions of Section 6(c) and
6(d) below and use their reasonable best efforts to effect such
registration to permit the sale of the Transfer Restricted Securities
being sold in accordance with the intended method or methods of
distribution thereof (as indicated in the information furnished to the
Company pursuant to Section 4(b) hereof), and pursuant thereto the
Company and the Guarantors will prepare and file with the Commission a
Registration Statement relating to the registration on any appropriate
form under the Act, which form shall be available for the sale of the
Transfer Restricted Securities in accordance with the intended method
or methods of distribution
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thereof within the time periods and otherwise in accordance with the
provisions hereof; and
(ii) issue, upon the request of any Holder or purchaser of
Notes covered by any Shelf Registration Statement contemplated by this
Agreement, Exchange Notes having an aggregate principal amount equal to
the aggregate principal amount of Notes sold pursuant to the Shelf
Registration Statement and surrendered to the Company for cancellation;
the Company and the Guarantors shall register Exchange Notes and the
related Subsidiary Guarantees on the Shelf Registration Statement for
this purpose and issue the Exchange Notes to the purchaser(s) of
securities subject to the Shelf Registration Statement in the names as
such purchaser(s) shall designate.
(c) General Provisions. In connection with any
Registration Statement and any related Prospectus required by this Agreement,
the Company and the Guarantors shall:
(i) use their commercially reasonable efforts to keep
such Registration Statement continuously effective and provide all
requisite financial statements 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 an untrue statement of material fact or omit to
state any material fact necessary to make the statements therein not
misleading or (B) not to be effective and usable for resale of Transfer
Restricted Securities during the period required by this Agreement, the
Company and the Guarantors shall file promptly an appropriate amendment
to such Registration Statement curing such defect, and, if Commission
review is required, use their commercially reasonable best efforts to
cause such amendment to be declared effective as soon as practicable.
If at any time the Commission shall issue any stop order suspending the
effectiveness of any 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,
the Company and the Guarantors shall use their commercially reasonable
best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
(ii) prepare and file with the Commission such amendments
and post-effective amendments to the applicable Registration Statement
as may be necessary to keep such Registration Statement effective for
the applicable period set forth in Section 3 or 4 hereof, as the case
may be; cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Act, and to comply fully with Rules 424, 430A and
462, as applicable, under the Act in a timely manner; and comply with
the provisions of the 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) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing
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Transfer Restricted Securities to be sold and not bearing any
restrictive legends; and to register such Transfer Restricted
Securities in such denominations and such names as the selling Holders
may request at least two business days prior to such sale of Transfer
Restricted Securities;
(iv) use their commercially reasonable best efforts to
cause the disposition of the Transfer Restricted Securities covered by
the Registration Statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof to consummate the disposition of
such Transfer Restricted Securities; provided, however, that neither
the Company nor any Guarantor shall be required to register or qualify
as a foreign corporation where it is not now so qualified or to take
any action that would subject it to the service of process in suits or
to taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not now so
subject;
(v) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Registration
Statement covering such Transfer Restricted Securities and provide the
Trustee under the Indenture with certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with The
Depository Trust Company;
(vi) otherwise use their commercially reasonable best
efforts to comply with all applicable rules and regulations of the
Commission, and make generally available to its security holders with
regard to any applicable Registration Statement, as soon as
practicable, a consolidated earnings statement meeting the requirements
of Rule 158 (which need not be audited) covering a twelve-month period
beginning after the effective date of the registration statement (as
such term is defined in paragraph (c) of Rule 158 under the Act); and
(vii) cause the Indenture to be qualified under the TIA 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 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 TIA; and execute and use their commercially
reasonable best efforts to cause the Trustee to execute, all documents
that may be required to effect such changes and all other forms and
documents required to be filed with the Commission to enable such
Indenture to be so qualified in a timely manner.
(d) Additional Provisions Applicable to Shelf
Registration Statements and Certain Exchange Offer Prospectuses. In connection
with each Shelf Registration Statement, and each Exchange Offer Registration
Statement if and to the extent that an Initial Purchaser has notified the
Company that it is a holder of Exchange Notes that are Transfer Restricted
Securities (for so long as such Exchange Notes are Transfer Restricted
Securities or for the period provided in Section 3 hereof, whichever is
shorter), the Company and the Guarantors shall:
(i) advise each Holder promptly and, if requested by such
Holder, confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-
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effective amendment has been filed, and, with respect to any applicable
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 Act or of the
suspension by any state securities commission of the qualification of
the Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, (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 in order to make the statements therein not
misleading, or that requires the making of any additions to or changes
in the Prospectus in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
(ii) if any fact or event contemplated by Section
6(d)(i)(D) above 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 to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(iii) furnish to each Holder in connection with such
exchange or sale, if any, before filing with the Commission, copies of
any Registration Statement or any Prospectus included therein (except
the Prospectus included in the Exchange Offer Registration Statement at
the time it was declared effective) 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 in connection with such sale, if any, for a period of
at least five business days, and the Company will not file any such
Registration Statement or Prospectus or any amendment or supplement to
any such Registration Statement or Prospectus (including all such
documents incorporated by reference) to which such Holders shall
reasonably object within five business days after the receipt thereof a
Holder shall be deemed to have reasonably objected to such filing if
such Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains an untrue statement of a
material fact or omits to state any material fact necessary to make the
statements therein not misleading or fails to comply with the
applicable requirements of the Act;
(iv) promptly prior to the filing of any document that is
to be incorporated by reference into a Registration Statement or
Prospectus, provide copies of such document to each Holder in
connection with such exchange or sale, if any, make the Company's and
the Guarantors' representatives available for discussion of such
document and other
12
customary due diligence matters, and include such information in such
document prior to the filing thereof as such Holders may reasonably
request;
(v) make available, at reasonable times, for inspection
by each Holder and any attorney or accountant retained by such Holders,
all financial and other records, pertinent corporate documents of the
Company and the Guarantors and cause the Company's and the Guarantors'
officers, directors and employees to supply all information reasonably
requested by any such Holder, attorney or accountant in connection with
such Registration Statement or any post-effective amendment thereto
subsequent to the filing thereof and prior to its effectiveness;
(vi) if requested by any Holders in connection with such
exchange or sale, promptly include in any Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such Holders may reasonably request to
have included therein, including, without limitation, information
relating to the "Plan of Distribution" of the Transfer Restricted
Securities; and make all required filings of such Prospectus supplement
or post-effective amendment as soon as practicable after the Company is
notified of the matters to be included in such Prospectus supplement or
post-effective amendment;
(vii) furnish to each Holder in connection with such
exchange or sale without charge, at least one copy of the Registration
Statement, as first filed with the Commission, and of each amendment
thereto, including all documents incorporated by reference therein and
all exhibits (including exhibits incorporated therein by reference);
(viii) deliver to each Holder without charge, as many copies
of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Holders reasonably may request;
the Company and the Guarantors hereby consent to the use (in accordance
with law) of the Prospectus and any amendment or supplement thereto by
each selling Holder in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto;
(ix) upon the request of any Holder, enter into such
agreements (including underwriting agreements) 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 applicable
Registration Statement contemplated by this Agreement as may be
reasonably requested by any Holder in connection with any sale or
resale pursuant to any applicable Registration Statement. In such
connection, the Company and the Guarantors shall:
(A) upon request of any Holder, furnish (or in
the case of paragraphs (2) and (3), use their commercially
reasonable best efforts to cause to be furnished) to each
Holder, upon Consummation of the Exchange Offer or upon the
effectiveness of the Shelf Registration Statement, as the case
may be:
(1) a certificate, dated such date,
signed on behalf of the Company and each Guarantor by
(x) the President or any Vice President
13
and (y) a principal financial or accounting officer
of the Company and such Guarantor, confirming, as of
the date thereof, the matters set forth in Section
6(f) and (g) of the Purchase Agreement and such other
similar matters as such Holders may reasonably
request;
(2) an opinion, dated the date of
Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as
the case may be, of counsel for the Company covering
matters similar to those set forth in Section 6(a) of
the Purchase Agreement and such other matters as such
Holder may reasonably request, and in any event
including a statement to the effect that such counsel
has participated in conferences with officers and
other representatives of the Company and the
Guarantors, representatives of the independent public
accountants for the Company and the Guarantors and
has considered the matters required to be stated
therein and the statements contained therein,
although such counsel has not independently verified
the accuracy, completeness or fairness of such
statements; and that such counsel advises that, on
the basis of the foregoing, no facts came to such
counsel's attention that caused such counsel to
believe that the applicable Registration Statement,
at the time such Registration Statement or any
post-effective amendment thereto became effective
and, in the case of the Exchange Offer Registration
Statement, as of the date of Consummation of the
Exchange Offer, 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 and, in the case of the opinion dated
the date of Consummation of the Exchange Offer, as of
the date of Consummation, contained an untrue
statement of a material fact or omitted to state a
material fact necessary in order to make the
statements therein, in the 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
data included in any Registration Statement
contemplated by this Agreement or the related
Prospectus; and
(3) a customary comfort letter, dated
the date of Consummation of the Exchange Offer, or as
of the date of effectiveness of the Shelf
Registration Statement, as the case may be, from the
Company's independent accountants, in the customary
form and covering matters of the type customarily
covered in comfort letters to underwriters in
connection with underwritten offerings, and affirming
the matters set forth in the comfort letters
delivered pursuant to Section 6(d) of the Purchase
Agreement; and
14
(B) deliver such other documents and
certificates as may be reasonably requested by the selling
Holders to evidence compliance with the matters covered in
clause (A) above and with any customary conditions contained
in any agreement entered into by the Company and the
Guarantors pursuant to this clause (ix);
(x) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel in
connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders may request and do any and all
other acts or things necessary or advisable to enable the disposition
in such jurisdictions of the Transfer Restricted Securities covered by
the applicable Registration Statement; provided, however, that neither
the Company nor any Guarantor shall be required to register or qualify
as a foreign corporation where it is not now so qualified or to take
any action that would subject it to the service of process in suits or
to taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not now so
subject; and
(xi) provide promptly to each Holder, upon request, each
document filed with the Commission pursuant to the requirements of
Section 13 or Section 15(d) of the Exchange Act.
(e) Restrictions on Holders. Each Holder's acquisition of
a Transfer Restricted Security constitutes such Holder's agreement that, upon
receipt of the notice referred to in Section 6(d)(i)(C) or any notice from the
Company of the existence of any fact of the kind described in Section 6(d)(i)(D)
hereof (in each case, a "SUSPENSION NOTICE"), such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the
applicable Registration Statement until (i) such Holder has received copies of
the supplemented or amended Prospectus contemplated by Section 6(d)(ii) hereof,
or (ii) such Holder is advised in writing by the Company that the use of the
Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus (in
each case, the "RECOMMENCEMENT DATE"). Each Holder receiving a Suspension Notice
shall be required to either (I) destroy any Prospectuses, other than permanent
file copies, then in such Holder's possession that have been replaced by the
Company with more recently dated Prospectuses or (II) deliver to the Company (at
the Company's expense) all copies, other than permanent file copies, then in
such Holder's possession of the Prospectuses covering such Transfer Restricted
Securities that were current at the time of receipt of the Suspension 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 a number of
days equal to the number of days in the period from and including the date of
delivery of the Suspension Notice to the date of delivery of the Recommencement
Date.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the
Guarantors' performance of or compliance with this Agreement will be borne by
the Company, regardless of whether a Registration Statement becomes effective,
including without limitation: (i) all registration and
15
filing fees and expenses; (ii) all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws; (iii) all expenses of printing
(including certificates for the Exchange Notes to be issued in the Exchange
Offer and printing of Prospectuses, messenger and delivery services and
telephone); (iv) all fees and disbursements of counsel for the Company, the
Guarantors and one counsel for the Holders of Transfer Restricted Securities
(which shall be ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP or such other counsel as may be
selected by a majority of such Holders); (v) all application and filing fees in
connection with listing the Exchange Notes on a national securities exchange or
automated quotation system pursuant to the requirements hereof; and (vi) all
fees and disbursements of independent certified public accountants of the
Company and the Guarantors (including the expenses of any special audit and
comfort letters required by or incident to such performance).
The Company will, in any event, bear its and the Guarantors'
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the expenses
of any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company or the Guarantors.
(b) In connection with any Registration Statement
required by this Agreement (including, without limitation, the Exchange Offer
Registration Statement and the Shelf Registration Statement), the Company and
the Guarantors will reimburse the Initial Purchasers and the Holders of Transfer
Restricted Securities who are tendering Notes in the Exchange Offer and/or
selling or reselling Notes or Exchange Notes pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or the
Shelf Registration Statement, as applicable, for the reasonable fees and
disbursements of not more than one counsel (who shall be ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP unless another firm shall be chosen by the Holders of a majority in
principal amount of the Transfer Restricted Securities for whose benefit such
Registration Statement is being prepared).
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors agree, jointly and
severally, to indemnify and hold harmless each Holder, its directors, officers
and each Person, if any, who controls (within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act) such Holder, from and against any and all
losses, claims, damages, liabilities or judgments (including without limitation,
any legal or other expenses incurred in connection with investigating or
defending any matter, including any action that could give rise to any such
losses, claims, damages, liabilities or judgments) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement, preliminary prospectus or Prospectus (or any amendment
or supplement thereto) provided by the Company to any Holder or any prospective
purchaser of Exchange Notes or registered Notes, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities or judgments are caused by an untrue
statement or omission or alleged untrue statement or omission that is based upon
information relating to any of the Holders furnished in writing to the Company
by any of the Holders.
16
(b) By its acquisition of Transfer Restricted Securities,
each Holder of Transfer Restricted Securities agrees, severally and not jointly,
to indemnify and hold harmless the Company and the Guarantors, and their
respective directors and officers, and each Person, if any, who controls (within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act) the
Company or the Guarantors to the same extent as the foregoing indemnity from the
Company and the Guarantors set forth in Section 8(a) hereof, but only with
reference to information relating to such Holder furnished in writing to the
Company by such Holder expressly for use in any Registration Statement. In no
event shall any Holder, its directors, officers or any Person who controls such
Holder be liable or responsible for any amount in excess of the amount by which
the total amount received by such Holder with respect to its sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds (i) the
amount paid by such Holder for such Transfer Restricted Securities and (ii) the
amount of any damages that such Holder, its directors, officers or any Person
who controls such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
(c) In case any action shall be commenced involving any
Person in respect of which indemnity may be sought pursuant to Section 8(a) or
(b) hereof (the "INDEMNIFIED PARTY"), the indemnified party shall promptly
notify the Person against whom such indemnity may be sought (the "INDEMNIFYING
PERSON") in writing and the indemnifying party shall assume the defense of such
action, including the employment of counsel reasonably satisfactory to the
indemnified party and the payment of all fees and expenses of such counsel, as
incurred (except that in the case of any action in respect of which indemnity
may be sought pursuant to both Sections 8(a) and (b) hereof, a Holder shall not
be required to assume the defense of such action pursuant to this Section 8(c),
but may employ separate counsel and participate in the defense thereof, but the
fees and expenses of such counsel, except as provided below, shall be at the
expense of the Holder). Any indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the indemnified
party unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by a majority of the Holders, in the case of the parties indemnified
pursuant to Section 8(a) hereof, and by the Company and the Guarantors, in the
case of parties indemnified pursuant to Section 8(b) hereof. The indemnifying
party shall indemnify and hold harmless the indemnified party from and against
any and all losses, claims, damages, liabilities and judgments by reason of any
settlement of any action (A) effected with its written consent or (B) effected
without its written consent if the settlement is
17
entered into more than twenty business days after the indemnifying party shall
have received a request from the indemnified party for reimbursement for the
fees and expenses of counsel (in any case where such fees and expenses are at
the expense of the indemnifying party) and, prior to the date of such
settlement, the indemnifying party shall have failed to comply with such
reimbursement request. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement or compromise of, or
consent to the entry of judgment with respect to, any pending or threatened
action in respect of which the indemnified party is or could have been a party
and indemnity or contribution may be or could have been sought hereunder by the
indemnified party, unless such settlement, compromise or judgment (I) includes
an unconditional release of the indemnified party from all liability on claims
that are or could have been the subject matter of such action and (II) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
(d) To the extent that the indemnification provided for
in this Section 8 is unavailable to an indemnified party in respect of any
losses, claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or judgments (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company and
the Guarantors on the one hand, and the Holders, on the other hand, from their
initial sale of Transfer Restricted Securities (or in the case of Exchange Notes
that are Transfer Restricted Securities, the sale of the Notes for which such
Exchange Notes were exchanged) or (ii) if the allocation provided by clause
8(d)(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in such clause
8(d)(i) but also the relative fault of the Company and the Guarantors, on the
one hand, and of the Holder, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative fault of the Company and the Guarantors, on the one
hand, and of the Holder, on the other hand, 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 Company or such Guarantor, on the one hand, or by
the Holder, 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 judgments referred to above shall be deemed to
include, subject to the limitations set forth in Section 8(c) hereof, any legal
or other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
The Company, the Guarantors and, by its acquisition of
Transfer Restricted Securities, each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) 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 judgments 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 matter, including any
action
18
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 8, no Holder, its
directors, its officers or any Person, if any, who controls such Holder shall be
required to contribute, in the aggregate, any amount in excess of the amount by
which the total received by such Holder with respect to the sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds (i) the
amount paid by such Holder for such Transfer Restricted Securities and (ii) 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 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(d) are several in
proportion to the respective principal amount of Transfer Restricted Securities
held by each Holder hereunder and not joint.
SECTION 9. RULE 144A AND RULE 144
The Company and each Guarantor agrees with each Holder, for so
long as any Transfer Restricted Securities remain outstanding and during any
period in which the Company or such Guarantor (a) is not subject to Section 13
or 15(d) of the Exchange Act, to make available, upon request of any Holder, or
beneficial owner of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted Securities
designated by such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A, and (b) is subject to Section 13 or 15(d) of
the Exchange Act, to make all filings required thereby in a timely manner in
order to permit resales of such Transfer Restricted Securities pursuant to Rule
144.
SECTION 10. FUTURE SUBSIDIARY GUARANTEES
If, prior to the Consummation of the Exchange Offer or prior
to the effectiveness of the Shelf Registration Statement, as the case may be,
any subsidiary of the Company executes a Subsidiary Guarantee in accordance with
the terms and provisions of the Indenture, the Company shall cause such
subsidiary to execute and deliver to the parties hereto a counterpart signature
page to this Agreement and such subsidiary shall be bound by all the provisions
of this Agreement as a "Guarantor."
SECTION 11. MISCELLANEOUS
(a) Remedies. The Company and the Guarantors acknowledge
and agree that any failure by the Company and/or the Guarantors to comply with
their respective obligations under Sections 3 and 4 hereof may result in
material irreparable injury to the Initial Purchasers or the Holders for which
there is no adequate remedy at law, that it will not be possible to measure
damages for such injuries precisely and that, in the event of any such failure,
the Initial Purchasers or any Holder may obtain such relief as may be required
to specifically enforce the Company's and the Guarantors' obligations under
Sections 3 and 4 hereof. The Company and the Guarantors further agree to waive
the defense in any action for specific performance that a remedy at law would be
adequate.
19
(b) No Inconsistent Agreements. The Company and the
Guarantors will not, on or after the date of this Agreement, enter into any
agreement with respect to their respective securities that is inconsistent with
the rights granted to the Holders in this Agreement or otherwise conflicts with
the provisions hereof. The Company and the Guarantors have not previously
entered into any agreement granting any registration rights with respect to
their respective securities to any Person that would require such securities to
be included in any Registration Statement filed hereunder. The rights granted to
the Holders hereunder do not in any way conflict with and are not inconsistent
with the rights granted to the holders of the Company's and 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 of or
consents to or departures from the provisions hereof may not be given unless (i)
in the case of Section 5 hereof and this Section 11(c)(i), the Company has
obtained the written consent of Holders of all outstanding Transfer Restricted
Securities and (ii) in the case of all other provisions hereof, the Company has
obtained the written consent of Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities (excluding Transfer
Restricted Securities held by the Company or its Affiliates). Notwithstanding
the foregoing, a waiver of or consent to departure from the provisions hereof
that relates exclusively to the rights of Holders whose Transfer Restricted
Securities are being tendered pursuant to the Exchange Offer, and that does not
affect directly or indirectly the rights of other Holders whose Transfer
Restricted 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 subject to such Exchange Offer.
(d) Third Party Beneficiary. The Holders shall be third
party beneficiaries to the agreements made hereunder between the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent they may
deem such enforcement necessary or advisable to protect their rights hereunder.
(e) 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 Registrar under the Indenture, with a copy to the
Registrar under the Indenture; and
(ii) if to the Company or any of the Guarantors:
▇▇▇▇▇▇ Drilling Company
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
20
All such notices and communications shall be deemed to have
been duly given at the time delivered by hand, when receipt is acknowledged, if
telecopied; and on the next business day, if timely delivered to an air courier
guaranteeing overnight delivery.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders; provided, that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Transfer Restricted
Securities in violation of the terms hereof or of the Purchase Agreement or the
Indenture. If any transferee of any Holder shall acquire Transfer Restricted
Securities in any manner, whether by operation of law or otherwise, such
Transfer Restricted Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Transfer Restricted Securities such
Person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement, including the restrictions on
resale set forth in this Agreement and, if applicable, the Purchase Agreement,
and such Person shall be entitled to receive the benefits hereof.
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(j) Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any circumstance,
is held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted with respect to the
Transfer Restricted Securities. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject matter.
21
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
▇▇▇▇▇▇ DRILLING COMPANY
By: _____________________________________
Name:
Title:
GUARANTORS:
ANACHORETA, INC.
CANADIAN RIG LEASING, INC.
CHOCTAW INTERNATIONAL RIG CORP.
CREEK INTERNATIONAL RIG CORP.
DGH, INC.
INDOCORP OF OKLAHOMA, INC.
PARDRIL, INC.
▇▇▇▇▇▇ AVIATION, INC.
▇▇▇▇▇▇ DRILLING (KAZAKSTAN), LTD.
▇▇▇▇▇▇ DRILLING COMPANY EASTERN HEMISPHERE, LTD.
▇▇▇▇▇▇ DRILLING COMPANY INTERNATIONAL, INC.
▇▇▇▇▇▇ DRILLING COMPANY INTERNATIONAL LIMITED
▇▇▇▇▇▇ DRILLING COMPANY LIMITED (NEVADA)
▇▇▇▇▇▇ DRILLING COMPANY NORTH AMERICA, INC.
▇▇▇▇▇▇ DRILLING COMPANY OF ARGENTINA, INC.
▇▇▇▇▇▇ DRILLING COMPANY OF BOLIVIA, INC.
▇▇▇▇▇▇ DRILLING COMPANY OF NEW GUINEA, INC.
▇▇▇▇▇▇ DRILLING COMPANY OF NIGER
▇▇▇▇▇▇ DRILLING COMPANY OF OKLAHOMA, INCORPORATED
▇▇▇▇▇▇ DRILLING COMPANY OF SINGAPORE, LTD.
▇▇▇▇▇▇ DRILLING COMPANY OF SOUTH AMERICA, INC.
▇▇▇▇▇▇ DRILLING OFFSHORE CORPORATION
▇▇▇▇▇▇ DRILLING OFFSHORE INTERNATIONAL, INC.
▇▇▇▇▇▇ NORTH AMERICA OPERATIONS, INC.
▇▇▇▇▇▇ TECHNOLOGY, INC.
▇▇▇▇▇▇ TECHNOLOGY, LLC
▇▇▇▇▇▇ USA DRILLING COMPANY
▇▇▇▇▇▇-VSE, INC.
QUAIL USA, LLC
SELECTIVE DRILLING CORPORATION
UNIVERSAL RIG SERVICE CORP.
By: ____________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ DRILLING COMPANY OF MEXICO, LLC
▇▇▇▇▇▇ DRILLING OFFSHORE USA, LLC
By: _____________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ DRILLING MANAGEMENT SERVICES, INC.
By: _____________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇ OFFSHORE RESOURCES, L.P.
By: _____________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President, ▇▇▇▇▇▇ Drilling Management
Services, Inc., General Partner
▇▇▇▇▇▇ TOOLS, LLC
By: _____________________________________
Name: ▇▇▇ Junk
Title: President
▇▇▇▇▇▇ USA RESOURCES, LLC
By: _____________________________________
Name: ▇▇▇ Junk
Title: President
PD MANAGEMENT RESOURCES, L.P.
By: _____________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President, ▇▇▇▇▇▇ Drilling Management
Services, Inc., General Partner
QUAIL TOOLS, LP
By: _____________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President, Quail USA, LLC,
General Partner
▇▇▇▇▇▇ BROTHERS INC.
DEUTSCHE BANK SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
BY ▇▇▇▇▇▇ BROTHERS INC., AS AUTHORIZED REPRESENTATIVE
By: _____________________________
Name:
Title:
SCHEDULE A
GUARANTORS
Anachoreta, Inc.
Canadian Rig Leasing, Inc.
Choctaw International Rig Corp.
Creek International Rig Corp.
DGH, Inc.
Indocorp of Oklahoma, Inc.
Pardril, Inc.
▇▇▇▇▇▇ Aviation, Inc.
▇▇▇▇▇▇ Drilling (Kazakstan), Ltd.
▇▇▇▇▇▇ Drilling Company Eastern Hemisphere, Ltd.
▇▇▇▇▇▇ Drilling Company International, Inc.
▇▇▇▇▇▇ Drilling Company International Limited
▇▇▇▇▇▇ Drilling Company Limited
▇▇▇▇▇▇ Drilling Company North America, Inc.
▇▇▇▇▇▇ Drilling Company of Argentina, Inc.
▇▇▇▇▇▇ Drilling Company of Mexico, LLC
▇▇▇▇▇▇ Drilling Company of New Guinea, Inc.
▇▇▇▇▇▇ Drilling Company of Niger
▇▇▇▇▇▇ Drilling Company of Oklahoma, Incorporated
▇▇▇▇▇▇ Drilling Company of Singapore, Ltd.
▇▇▇▇▇▇ Drilling Company of South America, Inc.
▇▇▇▇▇▇ Drilling Management Services, Inc.
▇▇▇▇▇▇ Drilling Offshore USA, LLC
▇▇▇▇▇▇ Drilling Offshore Corporation
▇▇▇▇▇▇ Drilling Offshore International, Inc.
▇▇▇▇▇▇ North America Operations, Inc.
▇▇▇▇▇▇ Offshore Resources, ▇.▇.
▇▇▇▇▇▇ Technology, Inc.
▇▇▇▇▇▇ Technology, LLC
▇▇▇▇▇▇ Tools, LLC
▇▇▇▇▇▇ USA Drilling Company
▇▇▇▇▇▇ USA Resources, LLC
▇▇▇▇▇▇-VSE, Inc.
PD Management Resources, L.P.
Quail Tools, LP
Quail USA, LLC
Selective Drilling Corporation
Universal Rig Service Corp.
