EXECUTION COPY
$300,000,000
DUNE ENERGY, INC.
10 1/2% Senior Secured Notes due 2012
REGISTRATION RIGHTS AGREEMENT
May 15, 2007
XXXXXXXXX & COMPANY, INC.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Dune Energy, Inc., a Delaware corporation (the "Company"), is issuing and
selling to Xxxxxxxxx & Company, Inc. (the "Initial Purchaser"), upon the terms
set forth in the Purchase Agreement, dated May 1, 2007, by and among the
Company, the Initial Purchaser and the guarantors named therein (the "Purchase
Agreement"), $300,000,000 aggregate principal amount of 10 1/2% Senior Secured
Notes due 2012 issued by the Company (each, together with the related
guarantees, a "Note" and collectively, the "Notes"). As an inducement to the
Initial Purchaser to enter into the Purchase Agreement, the Company and the
Guarantors (as defined below) agree with the Initial Purchaser, for the benefit
of the Holders (as defined below) of the Notes (including, without limitation,
the Initial Purchaser), as follows:
1. Definitions
Capitalized terms that are used herein without definition and are defined
in the Purchase Agreement shall have the respective meanings ascribed to them in
the Purchase Agreement. As used in this Agreement, the following terms shall
have the following meanings:
Additional Interest: See Section 4(a).
Advice: See Section 6(v).
Agreement: This Registration Rights Agreement, dated as of the Closing
Date, among the Company, the Guarantors party hereto and the Initial Purchaser.
Applicable Period: See Section 2(e).
Blackout Period: See Section 3(e).
Business Day: A day that is not a Saturday, a Sunday or a day on which
banking institutions in the City of New York are authorized or required by law
or executive order to be closed.
Closing Date: May 15, 2007.
Company: See the introductory paragraph to this Agreement.
Effectiveness Date: The 180th day after the Issue Date.
Effectiveness Period: See Section 3(a).
Event Date: See Section 4(b).
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Exchange Notes: Senior Secured Notes due 2012 of the Company registered
under the Securities Act, identical in all material respects to the Notes,
including the guarantees endorsed thereon, except for restrictive legends and
additional interest provisions.
Exchange Offer: See Section 2(a).
Exchange Offer Registration Statement: See Section 2(a).
Filing Date: The 90th day after the Issue Date.
Guarantors: Each subsidiary of the Company that guarantees the obligations
of the Company under the Notes and the Indenture.
Holder: Any registered holder of Registrable Notes.
Indemnified Party: See Section 8(c).
Indemnifying Party: See Section 8(c).
Indenture: The Indenture, dated as of the Closing Date, among the Company,
the Guarantors and The Bank of New York, as trustee, pursuant to which the Notes
are being issued, as amended or supplemented from time to time in accordance
with the terms hereof.
Initial Purchaser: See the introductory paragraph to this Agreement.
Initial Shelf Registration Statement: See Section 3(a).
Inspectors: See Section 6(o).
Issue Date: May 1, 2007.
Lien: Has the meaning set forth in the Indenture.
Losses: See Section 8(a).
Maximum Contribution Amount: See Section 8(d).
NASD: National Association of Securities Dealers, Inc.
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Notes: See the introductory paragraph to this Agreement.
Participating Broker-Dealer: See Section 2(e).
Person: An individual, trustee, corporation, partnership, limited
liability company, joint stock company, trust, unincorporated association,
union, business association, firm, government or agency or political subdivision
thereof, or other legal entity.
Private Exchange: See Section 2(f).
Private Exchange Notes: See Section 2(f).
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses 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, with respect to the terms
of the offering of any portion of the Registrable Notes covered by such
Registration Statement, 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: See the introductory paragraph to this Agreement.
Records: See Section 6(o).
Registrable Notes: Notes, Private Exchange Notes and Exchange Notes
received in the Exchange Offer, in each case, that may not be sold or
transferred (i) without restriction under federal or state securities laws or
(ii) pursuant to paragraph (k) of Rule 144.
Registration Statement: Any registration statement of the Company and the
Guarantors filed with the SEC under the Securities Act (including, but not
limited to, the Exchange Offer Registration Statement, the Shelf Registration
Statement and any Subsequent Shelf Registration Statement) that covers any of
the Registrable Notes pursuant to the provisions of this Agreement, including
the Prospectus, amendments and supplements to such registration statement,
including post-effective amendments, all exhibits and all material incorporated
by reference or deemed to be incorporated by reference in such registration
statement.
Rule 144: 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 SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer or such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 144A: 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 SEC.
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Rule 415: 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 SEC.
Rule 430A: Rule 430A 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 SEC.
SEC: The Securities and Exchange Commission.
Securities: The Notes, the Exchange Notes and the Private Exchange Notes.
Securities Act: The Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(i).
Shelf Registration Statement: See Section 3(b).
Subsequent Shelf Registration Statement: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and, if existent, the trustee
under any indenture governing the Exchange Notes and Private Exchange Notes (if
any).
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
2. Exchange Offer
(a) Unless the Exchange Offer would not be permitted by applicable laws
or a policy of the SEC, the Company shall (and shall cause each
Guarantor to) (i) prepare and file with the SEC promptly after the
date hereof, but in no event later than the Filing Date, a
registration statement (the "Exchange Offer Registration Statement")
on an appropriate form under the Securities Act with respect to an
offer (the "Exchange Offer") exchange the Notes for Exchange Notes
guaranteed by the Guarantors which shall have terms substantially
identical in all material respects to the Notes, (ii) use its best
efforts to cause the Exchange Offer Registration Statement to become
effective as promptly as practicable after the filing thereof, but
in no event later than the Effectiveness Date, (iii) use its best
efforts to keep the Exchange Offer Registration Statement effective
until the consummation of the Exchange Offer in accordance with its
terms, and (iv) commence the Exchange Offer and use its reasonable
best efforts to issue on or prior to 30 days after the Effectiveness
Date, Exchange Notes in exchange for all Notes tendered prior
thereto in the Exchange Offer. The Exchange Offer shall not be
subject to any conditions, other than that the Exchange Offer does
not violate applicable law or any applicable interpretation of the
staff of the SEC.
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(b) The Exchange Notes and the Private Exchange Notes shall be issued
under, and entitled to the benefits of the Indenture or a trust
indenture that is identical to the Indenture (other than such
changes as are necessary to comply with any requirements of the SEC
to effect or maintain the qualifications thereof under the TIA)
which in either case will provide that (i) the Exchange Notes will
not be subject to the transfer restrictions or additional interest
provisions set forth in the Indenture, (ii) the Private Exchange
Notes will be subject to the transfer restrictions set forth in the
Indenture and (iii) the Exchange Notes, the Private Exchange Notes
and the Notes, if any, will be deemed one class of security (subject
to the provisions of the Indenture) and entitled to participate in
all the security granted by the Company pursuant to the Collateral
Agreements and in any Guarantee (as such terms are defined in the
Indenture) on an equal and ratable basis.
(c) Interest on the Exchange Notes and Private Exchange Notes will
accrue from (i) the later of (x) the last interest payment date on
which interest was paid on the Notes surrendered in exchange
therefor or (y) if the Note is surrendered for exchange on a date in
a period which includes the record date for an interest payment date
to occur on or after the date of such exchange and as to which
interest will be paid, the date of such interest payment date or
(ii) if no interest has been paid on the Notes, from Issue Date.
Each Exchange Note and Private Exchange Note shall bear interest at
the rate set forth thereon; provided, that interest with respect to
the period prior to the issuance thereof shall accrue at the rate or
rates borne by the Notes from time to time during such period.
(d) The Company may require each Holder as a condition to participation
in the Exchange Offer to represent to the Company that at the time
of the consummation of the Exchange Offer, (i) any Exchange Notes
received by such Holder will be acquired in the ordinary course of
its business, (ii) at the time of commencement and consummation of
the Exchange Offer such Holder has not entered into any 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, (iii) such Holder
is not an "affiliate" (as defined in Rule 405 of the Securities Act)
of the Company or if such Holder is an affiliate such Holder will
comply with the registration and prospectus delivery requirements of
the Securities Act to the extent applicable, (iv) if such Holder is
not a broker-dealer, that it is not engaged in, and does not intend
to engage in, the distribution of the Exchange Notes and (v) if such
Holder is a Participating 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, that it
will deliver a Prospectus in connection with any resale of the
Exchange Notes.
(e) The Company shall (and shall cause each Guarantor to) include within
the Prospectus contained in the Exchange Offer Registration
Statement a section entitled "Plan of Distribution" reasonably
acceptable to the Initial Purchaser which shall contain all of the
information that the SEC may require with respect to the potential
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"underwriter" status of any broker-dealer that is the beneficial
owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Notes received by such broker-dealer in the Exchange Offer for its
own account in exchange for Notes that were acquired by it as a
result of market-making activities or other trading activities (a
"Participating Broker-Dealer"), whether such positions or policies
have been publicly disseminated by the staff of the SEC or such
positions or policies, in the judgment of the Initial Purchaser,
represent the prevailing views of the staff of the SEC. Such "Plan
of Distribution" section shall also allow, to the extent permitted
by applicable policies and regulations of the SEC, the use of the
Prospectus by all Persons subject to the prospectus delivery
requirements of the Securities Act, including, to the extent so
permitted, all Participating Broker-Dealers, and include a statement
describing the manner in which Participating Broker-Dealers may
resell the Exchange Notes. The Company shall use its reasonable best
efforts to keep the Exchange Offer Registration Statement effective
and to amend and supplement the Prospectus contained therein, in
order to permit such Prospectus to be lawfully delivered by all
Persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as such Persons must comply
with such requirements in order to resell the Exchange Notes (the
"Applicable Period").
(f) If, upon consummation of the Exchange Offer, the Initial Purchaser
holds any Notes acquired by it and having the status of an unsold
allotment in the initial distribution, the Company (upon the written
request from the Initial Purchaser) shall, simultaneously with the
delivery of the Exchange Notes pursuant to the Exchange Offer, issue
and deliver to the Initial Purchaser in exchange (the "Private
Exchange") for the Notes held by the Initial Purchaser, a like
principal amount at maturity of debt securities of the Company,
including guarantees endorsed thereon (issued under the same
Indenture as the Exchange Notes) that are identical in all material
respects to the Exchange Notes except for the existence of
restrictions on transfer thereof under the Securities Act and
securities laws of the several states of the United States (the
"Private Exchange Notes"). The Private Exchange Notes shall bear the
same CUSIP number as the Exchange Notes.
(g) In connection with the Exchange Offer, the Company shall (and shall
cause each Guarantor to):
(i) mail to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal (substantially in the form
attached as an exhibit to the Exchange Offer Registration
Statement) and any related documents;
(ii) keep the Exchange Offer open for not less than 20 Business
Days (or longer if required by applicable law) after the date
notice thereof is mailed to the Holders;
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(iii) utilize the services of a depository for the Exchange Offer
with an address in the Borough of Manhattan, The City of New
York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable 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
(v) otherwise comply with all applicable laws.
(h) As soon as practicable after the close of the Exchange Offer or the
Private Exchange, as the case may be, the Company shall (and shall
cause each Guarantor to):
(i) accept for exchange all Registrable Notes validly tendered and
not withdrawn pursuant to the Exchange Offer or the Private
Exchange, as the case may be;
(ii) deliver to the Trustee for cancellation all Registrable Notes
so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each
Holder tendering such Registrable Notes, Exchange Notes or
Private Exchange Notes, as the case may be, equal in principal
amount at maturity to the Notes of such Holder so accepted for
exchange.
(i) If, (i) any change in law or in applicable interpretations thereof
by the staff of the SEC would not permit the consummation of the
Exchange Offer, (ii) the Exchange Offer is not consummated within 30
Business Days after the Effectiveness Date, (iii) the Initial
Purchaser so requests with respect to the Notes (or the Private
Exchange Notes) not eligible to be exchanged for Exchange Notes in
the Exchange Offer and held by it following consummation of the
Exchange Offer, or (iv) in the case of (A) any Holder not permitted
to participate in the Exchange Offer, (B) any Holder participating
in the Exchange Offer that receives Exchange Notes that may not be
sold or transferred without restriction under state and federal
securities laws (other than due solely to the status of such Holder
as an affiliate of the Company within the meaning of the Securities
Act) or (C) any Participating Broker Dealer holds Notes acquired
directly from the Company or one of its affiliates, then in each
case the Company shall promptly deliver to the Holders and the
Trustee notice thereof (the "Shelf Notice") and shall as promptly as
practicable and at its sole expense file an Initial Shelf
Registration Statement pursuant to Section 3.
3. Shelf Registration
If a Shelf Notice is delivered pursuant to Section 2(i), then this Section
3 shall apply to all Registrable Notes. Otherwise, upon consummation of the
Exchange Offer in accordance with Section 2, the provisions of this Section 3
shall apply solely with respect to (i) Notes held by any Holder thereof not
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permitted to participate in the Exchange Offer, (ii) Private Exchange Notes, and
(iii) Exchange Notes that are not freely tradeable as contemplated by Section
2(i)(iv) hereof, provided in each case that the relevant Holder has duly
notified the Company within six months of the Exchange Offer as required by
Section 2(i)(iv).
(a) Initial Shelf Registration. The Company shall (and shall cause each
Guarantor to), use its reasonable best efforts to, as promptly as
practicable file with the SEC a Registration Statement for an
offering to be made on a continuous basis pursuant to Rule 415
covering all of the Registrable Notes (the "Initial Shelf
Registration Statement") within 30 days of the delivery of the Shelf
Notice and shall (and shall cause each Guarantor to) use its
reasonable best efforts to cause such Initial Shelf Registration
Statement to be declared effective under the Securities Act as
promptly as practicable thereafter (but in no event more than 90
days after delivery of the Shelf Notice); provided, however, that if
the Company (and each Guarantor) has not yet filed an Exchange Offer
Registration Statement, the Company shall use its reasonable best
efforts to file (and shall cause each Guarantor to file) with the
SEC the Initial Shelf Registration Statement on or prior to the
Filing Date and shall use its reasonable best efforts to cause such
Initial Shelf Registration Statement to be declared effective under
the Securities Act on or prior to the Effectiveness Date. The
Initial Shelf Registration Statement shall be on Form S-1 or another
appropriate form permitting registration of such Registrable Notes
for resale by Holders in the manner or manners reasonably designated
by them (including, without limitation, one or more underwritten
offerings). The Company and Guarantors shall not permit any
securities other than the Registrable Notes to be included in any
Shelf Registration Statement. The Company shall (and shall cause
each Guarantor to) use its reasonable best efforts to keep the
Initial Shelf Registration Statement continuously effective under
the Securities Act until the date which is two years from the
Closing Date (the "Effectiveness Period"), or such shorter period
ending when (i) all Registrable Notes covered by the Initial Shelf
Registration Statement have been sold in the manner set forth and as
contemplated in the Initial Shelf Registration Statement, (ii) a
Subsequent Shelf Registration Statement (as defined below) covering
all of the Registrable Notes covered by and not sold under the
Initial Shelf Registration Statement or an earlier Subsequent Shelf
Registration Statement has been declared effective under the
Securities Act or (iii) there cease to be any outstanding
Registrable Notes.
(b) Subsequent Shelf Registrations. If the Initial Shelf Registration
Statement or any Subsequent Shelf Registration Statement ceases to
be effective for any reason at any time during the Effectiveness
Period (other than during a because of the sale of all of the
securities registered thereunder), the Company shall (and shall
cause each Guarantor to) use its reasonable best efforts to obtain
the prompt withdrawal of any order suspending the effectiveness
thereof, and in any event shall within 30 days of such cessation of
effectiveness amend such Shelf Registration Statement in a manner
designed to obtain the withdrawal of the order suspending the
effectiveness thereof, or file (and cause each Guarantor to file) an
additional "shelf" registration statement pursuant to Rule 415
covering all of the Registrable Notes covered by and not sold under
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the Initial Registration Statement or any earlier Registration
Statement (a "Subsequent Shelf Registration Statement"). If a
Subsequent Shelf Registration Statement is filed, the Company shall
(and shall cause each Guarantor to) use its reasonable best efforts
to cause the Subsequent Shelf Registration Statement to be declared
effective as soon as practicable after such filing and to keep such
Subsequent Shelf Registration Statement continuously effective for a
period equal to the number of days in the Effectiveness Period less
the aggregate number of days during which the Initial Shelf
Registration Statement or any Subsequent Shelf Registration
Statement was previously continuously effective. As used herein the
term "Shelf Registration Statement" means the Initial Shelf
Registration Statement and any Subsequent Shelf Registration
Statements.
(c) Supplements and Amendments. The Company shall promptly amend any
Shelf Registration Statement and/or amend or supplement the
Prospectus constituting a part thereof if required by the rules,
regulations or instructions applicable to the registration form used
for such Shelf Registration Statement, if required by the Securities
Act, or if reasonably requested in writing by the Holders of a
majority in aggregate principal amount of the Registrable Notes
covered by such Shelf Registration Statement or by any underwriter
of such Registrable Notes.
(d) Provision of Information. No Holder shall be entitled to include any
of its Registrable Notes in any Shelf Registration Statement
pursuant to this Agreement unless such Holder furnishes to the
Company and the Trustee in writing, within 20 days after receipt of
a written request therefor, such information as the Company and the
Trustee, after conferring with counsel with regard to information
relating to Holders that would be required by the SEC to be included
in such Shelf Registration Statement or Prospectus included therein,
may reasonably request for inclusion in any Shelf Registration
Statement or Prospectus included therein, and no such Holder shall
be entitled to Additional Interest pursuant to Section 4 hereof
unless and until such Holder shall have provided such information.
(e) Blackout Periods. Notwithstanding anything to the contrary contained
in this Agreement, upon notice to Holders, the Company may suspend
use of the Prospectus included in any Shelf Registration Statement
in the event that and for a period of time (a "Blackout Period") not
to exceed an aggregate of 60 days in any 12-month period if the
board of directors of the Company determines in good faith that (1)
the disclosure of an event, occurrence or other item at such time
could reasonably be expected to have a material adverse effect on
the business, operations or prospects of the Company and the
Guarantors, taken as a whole, or (2) the disclosure otherwise
relates to a material business transaction which has not been
publicly disclosed and that any such disclosure would jeopardize the
success of the transaction or that disclosure of the transaction is
prohibited pursuant to the terms thereof.
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4. Additional Interest
(a) The Company and each Guarantor acknowledges and agrees that the
Holders of Registrable Notes will suffer damages if the Company or
any Guarantor fails to fulfill its material 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 Company and the Guarantors agree to pay additional cash interest
on the Notes ("Additional Interest") under the circumstances and to
the extent set forth below (each of which shall be given independent
effect):
(i) if (A) neither the Exchange Offer Registration Statement nor
the Initial Shelf Registration Statement has been filed with
the SEC on or prior to the Filing Date or (B) notwithstanding
that the Company has consummated or will consummate an
Exchange Offer, the Company is required to file a Shelf
Registration Statement and such Shelf Registration Statement
is not filed on or prior to the date required by this
Agreement, then, commencing on the day after either such
required filing date, Additional Interest shall accrue on the
Notes over and above any stated interest at a rate of 0.25%
per annum of the principal amount at maturity of such Notes
for the first 90 days immediately following such filing date,
such Additional Interest rate increasing by an additional
0.25% per annum at the beginning of each subsequent 90-day
period, subject to the provisos in the last sentence of this
paragraph;
(ii) if (A) neither the Exchange Offer Registration Statement nor
the Initial Shelf Registration Statement is declared effective
by the SEC on or prior to the Effectiveness Date, (B)
notwithstanding that the Company has consummated or will
consummate an Exchange Offer, the Company is required to file
a Shelf Registration Statement and such Shelf Registration
Statement is not declared effective by the SEC on or prior to
the 90th day following the date such Shelf Registration
Statement was filed, then, commencing on the day after either
such required effective date, Additional Interest shall accrue
on the Notes over and above any stated interest at a rate of
0.25% per annum of the principal amount at maturity of such
Notes for the first 90 days immediately following such
effective date, such Additional Interest rate increasing by an
additional 0.25% per annum at the beginning of each subsequent
90-day period, subject to the provisos in the last sentence of
this paragraph;
(iii) if (A) the Company (and any Guarantor) has not exchanged
Exchange Notes for all Notes validly tendered in accordance
with the terms of the Exchange Offer on or prior to 30 days
after the Effectiveness Date, (B) the Exchange Offer
Registration Statement ceases to be effective any time prior
to the consummation of the Exchange Offer, (C) if applicable,
a Shelf Registration Statement has been declared effective and
such Shelf Registration Statement ceases to be effective at
any time prior to the second anniversary of the Issue Date
(other than during a Blackout Period or after such time as all
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Notes have been disposed of thereunder), or (D) the Company
issues a valid notice to suspend the use of the Prospectus
included in any Shelf Registration Statement and such
suspension, when taken together with all other suspensions, if
any (but solely to the extent not concurrent), during any 12
month period exceeds 60 days, then, in each case, Additional
Interest shall accrue on the Notes over and above any stated
interest at a rate of 0.25% per annum of the principal amount
of such Notes for the first 90 days commencing on (x) the 31st
Business Day after the Effectiveness Date, in the case of
clause (A) above, (y) the day such Exchange Offer Registration
Statement or a Shelf Registration Statement ceases to be
effective or useable, in the case of clause (B) or (C) above,
as applicable or (z) the day the Prospectus in any Shelf
Registration Statement ceases to be useable, (in the case of
clause (D) above, such Additional Interest rate increasing by
an additional 0.25% per annum at the beginning of each
subsequent 90-day period, subject to the provisos in the last
sentence of this paragraph;
provided, however, that Additional Interest will not accrue under
more than one of the foregoing clauses (i) through (iii) at any one
time; providsed further, however, that the amount of Additional
Interest accruing on the Notes shall not exceed at any one time in
the aggregate 1.0% per annum; and provided further, however, that
(1) upon the filing of the Exchange Offer Registration Statement or
Initial Shelf Registration Statement (in the case of clause (i)
above), (2) upon the effectiveness of the Exchange Offer
Registration Statement or Shelf Registration Statement (in the case
of clause (ii) above), (3) upon the exchange of Exchange Notes for
all Notes tendered (in the case of clause (iii)(A) above), (4) upon
the effectiveness of the Exchange Offer Registration Statement or a
Shelf Registration Statement, as the case may be, which had ceased
to remain effective (in the case of clauses (iii)(B) or (iii)(C)
above), or (5) upon the day the Prospectus in any Shelf Registration
Statement the use of which was previously suspended may be used
again (in the case of clause (iii)(C) above), Additional Interest on
the Notes as a result of such clause (or the relevant subclause
thereof), as the case may be, shall cease to accrue.
(b) The Company shall notify the Trustee within 3 Business Days after
each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "Event Date"). Any
amounts of Additional Interest due pursuant to clause (a)(i),
(a)(ii) or (a)(iii) of this Section 4 will be payable in cash, on
the dates and in the manner provided in the Indenture for interest
payments on the Notes and whether or not any cash interest would
then be payable on such date, commencing with the first such
semi-annual date occurring after any such Additional Interest
commences to accrue. The amount of Additional Interest will be
determined by multiplying the applicable Additional Interest rate by
the principal amount of the Notes, multiplied by a fraction, the
numerator of which is the number of days such Additional Interest
rate was applicable during such period (determined on the basis of a
360-day year comprised of twelve 30-day months and, in the case of a
partial month, the actual number of days elapsed), and the
denominator of which is 360.
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5. Intentionally Omitted
6. Registration Procedures
In connection with the filing of any Registration Statement pursuant to
Sections 2 or 3 hereof, the Company shall (and shall cause each Guarantor to)
effect such registrations to permit the sale of such 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
Company hereunder, the Company shall (and shall cause each Guarantor to):
(a) Prepare and file with the SEC as soon as practicable after the date
hereof but in any event on or prior to the Filing Date, the Exchange
Offer Registration Statement or if the Exchange Offer Registration
Statement is not filed because of the circumstances contemplated by
Section 2(i), a Shelf Registration Statement as prescribed by
Section 3, and use its best efforts to cause each such Registration
Statement to become effective and remain effective as provided
herein; provided that, if (1) a Shelf Registration Statement is
filed pursuant to Section 3 or (2) a Prospectus contained in an
Exchange Offer Registration Statement filed pursuant to Section 2 is
required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto the Company
shall (and shall cause each Guarantor to), if requested, furnish at
no charge to the Holders of the Registrable Notes to be registered
pursuant to such Shelf Registration Statement, each Participating
Broker-Dealer, the managing underwriters, if any, and each of their
respective counsel, 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). The
Company and each Guarantor shall not file (and shall not allow any
of the other Guarantors to) any such Registration Statement or
Prospectus or any amendments or supplements thereto in respect of
which the Holders must provide information for the inclusion therein
without the Holders being afforded an opportunity to review such
documentation 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, or the managing underwriters, if any, or any of their respective
counsel shall reasonably object in writing on a timely basis. 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 Securities Act.
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(b) Provide an indenture trustee for the Registrable Notes, the Exchange
Notes or the Private Exchange Notes, as the case may be, and cause
the Indenture (or other indenture relating to the Registrable Notes)
to be qualified under the TIA not later than the effective date of
the first Registration Statement; and in connection therewith, 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 SEC to enable such indenture to be so qualified in a timely
manner.
(c) Prepare and file with the SEC such pre-effective 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 them 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. The Company and each
Guarantor shall not (and shall not allow any other Guarantor to),
during the Applicable Period, voluntarily take any action that would
result in selling Holders of the Registrable Notes covered by a
Registration Statement or Participating Broker-Dealers seeking to
sell Exchange Notes not being able to sell such Registrable Notes or
such Exchange Notes during that period, unless such action is
required by applicable law, rule or regulation or permitted by this
Agreement.
(d) Furnish to such selling Holders and Participating Broker-Dealers who
so request in writing (i) upon the Company's receipt, a copy of the
order of the SEC declaring such Registration Statement and any post
effective amendment thereto effective, (ii) such reasonable number
of copies of such Registration Statement and of each amendment and
supplement thereto (in each case including any documents
incorporated therein by reference and all exhibits), (iii) such
reasonable number of copies of the Prospectus included in such
Registration Statement (including each preliminary Prospectus) and
each amendment and supplement thereto, and such reasonable number of
copies of the final Prospectus as filed by the Company and each
Guarantor pursuant to Rule 424(b) under the Securities Act, in
conformity with the requirements of the Securities Act and each
amendment and supplement thereto, and (iv) such other documents
(including any amendments required to be filed pursuant to clause
(c) of this Section 6), as any such Person may reasonably request in
writing. The Company and the Guarantors hereby consent to the use of
the Prospectus by each of the selling Holders of Registrable Notes
or each such Participating Broker-Dealer, as the case may be, and
13
the underwriters or agents, if any, and dealers, if any, in
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.
(e) If (1) a Shelf Registration Statement is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 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, the Company shall notify in writing the selling Holders of
Registrable Notes, or each such Participating Broker-Dealer, as the
case may be, and the managing underwriters, if any, and each of
their respective counsel promptly (but in any event within two
Business Days) (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 (including in such notice a written
statement that any Holder may, upon request, obtain, without charge,
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 SEC of any stop order
suspending the effectiveness of a Registration Statement or of any
order preventing or suspending the use of any 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 the
representations and warranties of the Company and any Guarantor
contained in any agreement (including any underwriting agreement
contemplated by Section 6(n)) hereof cease to be true and correct,
(iv) of the receipt by the Company or any Guarantor 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 to be sold by any
Participating Broker-Dealer 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 of
any information becoming known 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 and 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 light of the circumstances under which they
were made, not misleading, (vi) of any reasonable determination by
the Company or any Guarantor that a post-effective amendment to a
Registration Statement would be appropriate and (vii) of any request
by the SEC for amendments to the Registration Statement or
supplements to the Prospectus or for additional information relating
thereto.
14
(f) Use its 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 (or exemption from qualification) of any of the
Registrable Notes or the Exchange Notes to be sold by any
Participating Broker-Dealer, for sale in any jurisdiction, and, if
any such order is issued, to use its best efforts to obtain the
withdrawal of any such order at the earliest possible date.
(g) If (A) a Shelf Registration Statement is filed pursuant to Section
3, (B) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 is required to be delivered
under the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Notes during the Applicable Period or (C)
reasonably requested in writing by the managing underwriters, if
any, or the Holders of a majority in aggregate principal amount of
the Registrable Notes being sold in connection with an underwritten
offering, (i) promptly incorporate in a Prospectus supplement or
post-effective amendment such information or revisions to
information therein relating to such underwriters or selling Holders
as the managing underwriters, if any, or such Holders or any of
their respective counsel reasonably request in writing to be
included or made therein and (ii) make all required filings of such
Prospectus supplement or such post-effective amendment as soon as
practicable after the Company has received notification of the
matters to be incorporated in such Prospectus supplements or
post-effective amendment.
(h) Prior to any public offering of Registrable 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 cooperate with the selling Holders of
Registrable Notes or each such Participating Broker-Dealer, as the
case may be, the underwriters, if any, and their 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 any
managing underwriter or underwriters, if any, reasonably request in
writing; and, if Exchange Notes held by Participating Broker-Dealers
or Registrable Notes are offered other than through an underwritten
offering, the Company and each Guarantor shall cause its counsel to
perform Blue Sky investigations and use its reasonable best efforts
to file any registrations and qualifications required to be filed
pursuant to this Section 6(h), use its reasonable best efforts to
keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement
is required to be kept effective and use its reasonable best efforts
to do any and all other acts or things reasonably necessary or
advisable to enable the disposition in such jurisdictions of the
Exchange Notes held by Participating Broker-Dealers or the
Registrable Notes covered by the applicable Registration Statement;
provided that neither the Company nor any Guarantor shall be
required to (A) qualify generally to do business in any jurisdiction
15
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
any such jurisdiction where it is not then so subject.
(i) If (A) a Shelf Registration Statement is filed pursuant to Section 3
or (B) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 is requested to be delivered
under the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Notes during the Applicable Period, 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 Holders may reasonably
request in writing.
(j) Use its reasonable best efforts to cause the Registrable Notes
covered by any Registration Statement to be registered with or
approved by such United States governmental agencies or authorities
as may be necessary to enable the seller or sellers thereof or the
underwriter, if any, to consummate the disposition of such
Registrable Notes, except as may be required solely as a consequence
of the nature of such selling Holder's business, in which case the
Company shall (and shall cause each Guarantor to) cooperate in all
reasonable respects with the filing of such Registration Statement
and the granting of such approvals; provided that neither the
Company nor any Guarantor shall 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 jurisdiction where it is not then so
subject or (C) subject itself to taxation in any such jurisdiction
where it is not then so subject.
(k) If (1) a Shelf Registration Statement is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 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 6(e)(v) or 6(e)(vi)
hereof, as promptly as practicable, prepare and file with the SEC,
at the expense of the Company and the Guarantors, 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, 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 light of the circumstances under which they were made,
not misleading, and, if SEC review is required, use its best efforts
to cause such post-effective amendment to be declared effective as
soon as possible.
16
(l) Use its reasonable best efforts to cause the Registrable Notes
covered by a Registration Statement to be rated with such
appropriate rating agencies, if so requested in writing by the
Holders of a majority in aggregate principal amount of the
Registrable Notes covered by such Registration Statement or the
managing underwriter or underwriters, if any.
(m) Prior to the initial issuance of the Exchange Notes, (i) provide the
Trustee with one or more certificates for the Registrable Notes in a
form eligible for deposit with The Depository Trust Company and (ii)
provide a CUSIP number for the Exchange Notes.
(n) If a Shelf Registration Statement is filed pursuant to Section 3,
enter into such agreements (including an underwriting agreement in
form, scope and substance as is customary in underwritten offerings
of debt securities similar to the Notes, as may be appropriate in
the circumstances) and take all such other actions in connection
therewith (including those reasonably requested in writing by the
managing underwriters, if any, or the Holders of a majority in
aggregate principal amount of the Registrable Notes being sold) in
order to expedite or facilitate the registration or the disposition
of such Registrable Notes, and in such connection, whether or not an
underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, (i) make such
representations and warranties to the Holders and the underwriters,
if any, with respect to the business of the Company and its
subsidiaries as then conducted, and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, in form, substance
and scope as are customarily made by issuers to underwriters in
underwritten offerings of debt securities similar to the Notes, as
may be appropriate in the circumstances, and confirm the same if and
when reasonably required; (ii) use reasonable best efforts to obtain
an opinion of counsel to the Company and the Guarantors and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters, if
any, and the Holders of a majority in aggregate principal amount of
the Registrable Notes being sold), addressed to each selling Holder
and each of the underwriters, if any, covering the matters
customarily covered in opinions of counsel to the Company and the
Guarantors requested in underwritten offerings of debt securities
similar to the Notes, as may be appropriate in the circumstances;
(iii) use reasonable best efforts to obtain "cold comfort" letters
and updates thereof (which letters and updates (in form, scope and
substance) shall be reasonably satisfactory to the managing
underwriters) from the independent certified public accountants of
the Company and the Guarantors (and, if necessary, any other
independent certified public accountants of any subsidiary of the
Company or of any business acquired by the Company for which
financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to each of the
17
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 of debt securities similar to
the Notes, as may be appropriate in the circumstances, and such
other matters as reasonably requested in writing by the
underwriters; and (iv) deliver such documents and certificates as
may be reasonably requested in writing by the Holders of a majority
in aggregate principal amount of the Registrable Notes being sold
and the managing underwriters, if any, to evidence the continued
validity of the representations and warranties of the Company and
its subsidiaries made pursuant to clause (i) above and to evidence
compliance with any conditions contained in the underwriting
agreement or other similar agreement entered into by the Company or
any Guarantor.
(o) If (1) a Shelf Registration Statement is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 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 and pertinent
corporate documents of the Company 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 Company and its subsidiaries to supply all information
reasonably requested in writing by any such Inspector in connection
with such Registration Statement. Each Inspector shall agree in
writing that it will keep the Records confidential and not disclose
any of the Records unless (i) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in such
Registration Statement, (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction, (iii) the information in such Records is public or has
been made generally available to the public other than as a result
of a disclosure or failure to safeguard by such Inspector or (iv)
disclosure of such information is, in the reasonable written opinion
of counsel for any Inspector, necessary or advisable in connection
with any action, claim, suit or proceeding, directly or indirectly,
involving or potentially involving such Inspector and arising out
of, based upon, related to, or involving this Agreement, or any
transaction contemplated hereby or arising hereunder. Each selling
Holder of such Registrable Notes and each such Participating
Broker-Dealer will be required to agree that information obtained by
it as a result of such inspections shall be deemed confidential and
shall not be used by it as the basis for any market transactions in
the securities of the Company unless and until such information is
made generally available to the public. Each Inspector, each selling
Holder of such Registrable Notes and each such Participating
Broker-Dealer will be required to further agree that it will, upon
18
learning that disclosure of such Records is sought in a court of
competent jurisdiction, give notice to the Company and, to the
extent practicable, use its best efforts to allow the Company, at
its expense, to undertake appropriate action to prevent disclosure
of the Records deemed confidential at its expense.
(p) Comply with all applicable rules and regulations of the SEC and make
generally available to the security holders of the Company with
regard to any applicable Registration Statement earning 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 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 Company after the
effective date of a Registration Statement, which statements shall
cover said 12-month periods.
(q) Upon consummation of an Exchange Offer or Private Exchange, use
reasonable best efforts to obtain an opinion of counsel to the
Company and the Guarantors (in form, scope and substance reasonably
satisfactory to the Initial Purchaser), addressed to the Trustee for
the benefit of all Holders participating in the Exchange Offer or
Private Exchange, as the case may be, to the effect that (i) the
Company and the Guarantors have duly authorized, executed and
delivered the Exchange Notes or the Private Exchange Notes, as the
case may be, and the Indenture, (ii) the Exchange Notes or the
Private Exchange Notes, as the case may be, and the Indenture
constitute legal, valid and binding obligations of the Company and
the Guarantors, enforceable against the Company and the Guarantors
in accordance with their respective terms, except as such
enforcement may be subject to customary United States and foreign
exceptions and (iii) all obligations of the Company and the
Guarantors under the Exchange Notes or the Private Exchange Notes,
as the case may be, and the Indenture are secured by Xxxxx (as
defined in the Indenture) on the assets securing the obligations of
the Company and the Guarantors under the Notes, the Indenture and
the Collateral Agreements to the extent and as discussed in the
Registration Statement.
(r) If the Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable Notes by the Holders to the Company
and the Guarantors (or to such other Person as directed by the
Company and the Guarantors) in exchange for the Exchange Notes or
the Private Exchange Notes, as the case may be, the Company and the
Guarantors shall mark, or cause to be marked, on such Registrable
Notes that the Exchange Notes or the Private Exchange Notes, as the
case may be, are being issued as substitute evidence of the
indebtedness originally evidenced by the Registrable Notes; provided
that in no event shall such Registrable Notes be marked as paid or
otherwise satisfied.
19
(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 Notes and their respective
counsel in connection with any filings required to be made with the
NASD.
(t) Use its reasonable best efforts to take all other steps reasonably
necessary to effect the registration of the Registrable Notes
covered by a Registration Statement contemplated hereby.
(u) The Company may require each seller of Registrable Notes or
Participating Broker-Dealer as to which any registration is being
effected to furnish to the Company such information regarding such
seller or Participating Broker-Dealer and the distribution of such
Registrable Notes as the Company may, from time to time, reasonably
request in writing. The Company may exclude from such registration
the Registrable Notes of any seller who fails to furnish such
information within a reasonable time (which time in no event shall
exceed 30 days) after receiving such request. Each seller of
Registrable Notes or Participating Broker-Dealer as to which any
registration is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make
the information previously furnished by such seller not materially
misleading.
Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by acquisition of such Registrable Notes or Exchange Notes to be sold by
such Participating Broker-Dealer, as the case may be, that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 6(e)(ii), 6(e)(iv), 6(e)(v), or 6(e)(vi), such Holder will forthwith
discontinue disposition of such Registrable Notes covered by a Registration
Statement and such Participating Broker-Dealer will forthwith discontinue
disposition of such Exchange Notes pursuant to any Prospectus and, in each case,
forthwith discontinue dissemination of such Prospectus until such Holder's or
Participating Broker-Dealer's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 6(k), or until it is advised in
writing (the "Advice") by the Company and the Guarantors that the use of the
applicable Prospectus may be resumed, and has received copies of any amendments
or supplements thereto and, if so directed by the Company and the Guarantors,
such Holder or Participating Broker-Dealer, as the case may be, will deliver to
the Company all copies, other than permanent file copies, then in such Holder's
or Participating Broker-Dealer's possession, of the Prospectus covering such
Registrable Notes current at the time of the receipt of such notice. In the
event the Company and the Guarantors shall give any such notice, the Applicable
Period shall be extended by the number of days during such periods from and
including the date of the giving of such notice to and including the date when
each Participating Broker-Dealer shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 6(k) or (y) the
Advice.
7. Registration Expenses
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Company and the Guarantors shall be borne
by the Company and the Guarantors, whether or not the Exchange Offer
20
or a Shelf Registration Statement is filed or becomes effective,
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 any
underwritten offering and (B) fees and expenses of compliance with
state securities or Blue Sky laws as provided in Section 6(h) hereof
(including, without limitation, reasonable fees and disbursements of
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 are located, in the case of the Exchange Notes, or (y) as
provided in Section 6(h), in the case of Registrable Notes or
Exchange Notes to be sold by a Participating Broker-Dealer during
the Applicable Period), (ii) printing expenses, including, without
limitation, expenses 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 by any Participating Broker-Dealer during
the Applicable Period, as the case may be, (iii) messenger,
telephone and delivery expenses incurred in connection with the
performance of their obligations hereunder, (iv) fees and
disbursements of counsel for the Company, the Guarantors and,
subject to Section 7(b), the Holders, (v) fees and disbursements of
all independent certified public accountants referred to in Section
6 (including, without limitation, the expenses of any special audit
and "cold comfort" letters required by or incident to such
performance), (vi) rating agency fees and the fees and expenses
incurred in connection with the listing of the Securities to be
registered on any securities exchange, (vii) Securities Act
liability insurance, if the Company and the Guarantors desire such
insurance, (viii) fees and expenses of all other Persons retained by
the Company and the Guarantors, (ix) fees and expenses of any
"qualified independent underwriter" or other independent appraiser
participating in an offering pursuant to Section 3 of Schedule E to
the bylaws of the NASD, but only where the need for such a
"qualified independent underwriter" arises due to a relationship
with the Company and the Guarantors, (x) internal expenses of the
Company and the Guarantors (including, without limitation, all
salaries and expenses of officers and employees of the Company or
the Guarantors performing legal or accounting duties), (xi) the
expense of any annual audit, (xii) the fees and expenses of the
Trustee and the Exchange Agent and (xiii) the expenses relating to
printing, word processing and distributing all Registration
Statements, underwriting agreements, securities sales agreements,
indentures and any other documents necessary in order to comply with
this Agreement.
(b) The Company and the Guarantors shall reimburse the Holders for the
reasonable fees and disbursements of not more than one counsel
chosen by the Holders of a majority in aggregate principal amount of
the Registrable Notes to be included in any Registration Statement.
The Company and the Guarantors shall pay all documentary, stamp,
transfer or other transactional taxes attributable to the issuance
or delivery of the Exchange Notes or Private Exchange Notes in
exchange for the Notes; provided that the Company shall not be
21
required to pay taxes payable in respect of any transfer involved in
the issuance or delivery of any Exchange Note or Private Exchange
Note in a name other than that of the Holder of the Note in respect
of which such Exchange Note or Private Exchange Note is being
issued. The Company and the Guarantors shall reimburse the Holders
for fees and expenses (including reasonable fees and expenses of
counsel to the Holders) relating to any enforcement of any rights of
the Holders under this Agreement.
8. Indemnification
(a) Indemnification by the Company and the Guarantors. The Company and
the Guarantors jointly and severally agree to indemnify and hold
harmless each Holder of Registrable Notes, Exchange Notes or Private
Exchange Notes and each Participating Broker-Dealer selling Exchange
Notes during the Applicable Period, each Person, if any, who
controls each such Holder (within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act) and the
officers, directors and partners of each such Holder, Participating
Broker-Dealer and controlling person, to the fullest extent lawful,
from and against any and all losses, claims, damages, liabilities,
costs (including, without limitation, reasonable costs of
preparation and reasonable attorneys' fees as provided in this
Section 8) and expenses (including, without limitation, reasonable
costs and expenses incurred in connection with investigating,
preparing, pursuing or defending against any of the foregoing)
(collectively, "Losses"), as incurred, directly or indirectly caused
by, related to, based upon, arising out of or in connection with any
untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement, Prospectus or form of
prospectus, or in any amendment or supplement thereto, or in any
preliminary prospectus, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under
which they were made, not misleading, except insofar as such Losses
are based upon information relating to such Holder or Participating
Broker-Dealer and furnished in writing to the Company and the
Guarantors (or reviewed and approved in writing) by such Holder or
Participating Broker-Dealer or their counsel expressly for use
therein; provided, however, that the Company and the Guarantors will
not be liable to any Indemnified Party (as defined below) under this
Section 8 to the extent Losses were caused by an untrue statement or
omission or alleged untrue statement or omission that was contained
or made in any preliminary prospectus and corrected in the
Prospectus or any amendment or supplement thereto if (i) the
Prospectus does not contain any other untrue statement or omission
or alleged untrue statement or omission of a material fact that was
the subject matter of the related proceedings, (ii) any such Losses
resulted from an action, claim or suit by any Person who purchased
Registrable Notes or Exchange Notes which are the subject thereof
from such Indemnified Party and (iii) it is established in the
related proceeding that such Indemnified Party failed to deliver or
provide a copy of the Prospectus (as amended or supplemented) to
such Person with or prior to the confirmation of the sale of such
Registrable Notes or Exchange Notes sold to such Person if required
by applicable law, unless such failure to deliver or provide a copy
22
of the Prospectus (as amended or supplemented) was a result of
noncompliance by the Company with Section 6 of this Agreement. The
Company and the Guarantors also agree to indemnify underwriters,
selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, their officers,
directors, agents and employees and each Person who controls such
Persons (within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act) to the same extent as provided
above with respect to the indemnification of the Holders or the
Participating Broker-Dealer.
(b) Indemnification by Xxxxxx. In connection with any Registration
Statement, Prospectus or form of prospectus, any amendment or
supplement thereto, or any preliminary prospectus in which a Holder
is participating, such Holder shall furnish to the Company and the
Guarantors in writing such information as the Company and the
Guarantors reasonably request for use in connection with any
Registration Statement, Prospectus or form of prospectus, any
amendment or supplement thereto, or any preliminary prospectus and
shall indemnify and hold harmless the Company, the Guarantors, their
respective directors and each Person, if any, who controls the
Company and the Guarantors (within the meaning of Section 15 of the
Securities Act and Section 20(a) of the Exchange Act), and the
directors, officers and partners of such controlling persons, to the
fullest extent lawful, from and against all Losses arising out of or
based upon any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement, Prospectus or
form of prospectus or in any amendment or supplement thereto or in
any preliminary prospectus, or 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 light of the
circumstances under which they were made, not misleading to the
extent, but only to the extent, that such losses are finally
judicially determined by a court of competent jurisdiction in a
final, unappealable order to have resulted from an untrue statement
or alleged untrue statement of a material fact or omission or
alleged omission of a material fact contained in or omitted from any
information so furnished in writing by such Holder to the Company
and the Guarantors expressly for use therein. Notwithstanding the
foregoing, in no event shall the liability of any selling Holder be
greater in amount than such Holder's Maximum Contribution Amount (as
defined below).
(c) Conduct of Indemnification Proceedings. If any proceeding shall be
brought or asserted against any Person entitled to indemnity
hereunder (an "Indemnified Party"), such Indemnified Party shall
promptly notify the party or parties from which such indemnity is
sought (the "Indemnifying Party" or "Indemnifying Parties", as
applicable) in writing; provided, that the failure to so notify the
Indemnifying Parties shall not relieve the Indemnifying Parties from
any obligation or liability except to the extent (but only to the
extent) that it shall be finally determined by a court of competent
jurisdiction (which determination is not subject to appeal) that the
Indemnifying Parties have been prejudiced materially by such
failure.
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The Indemnifying Party shall have the right, exercisable by giving written
notice to an Indemnified Party, within 20 Business Days after receipt of written
notice from such Indemnified Party of such proceeding, to assume, at its
expense, the defense of any such proceeding, provided, that an Indemnified Party
shall have the right to employ separate counsel in any such proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party or parties unless: (1) the
Indemnifying Party has agreed to pay such fees and expenses; or (2) the
Indemnifying Party shall have failed promptly to assume the defense of such
proceeding or shall have failed to employ counsel reasonably satisfactory to
such Indemnified Party; or (3) the named parties to any such proceeding
(including any impleaded parties) include both such Indemnified Party and the
Indemnifying Party or any of its affiliates or controlling persons, and such
Indemnified Party shall have been advised by counsel that there may be one or
more defenses available to such Indemnified Party that are in addition to, or in
conflict with, those defenses available to the Indemnifying Party or such
affiliate or controlling person (in which case, if such Indemnified Party
notifies the Indemnifying Parties in writing that it elects to employ separate
counsel at the expense of the Indemnifying Parties, the Indemnifying Parties
shall not have the right to assume the defense and the reasonable fees and
expenses of such counsel shall be at the expense of the Indemnifying Party; it
being understood, however, that, the Indemnifying Party shall not, in connection
with any one such proceeding or separate but substantially similar or related
proceedings 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 (together with appropriate local counsel) at any
time for such Indemnified Party).
No Indemnifying Party shall be liable for any settlement of any such
proceeding effected without its written consent, which shall not be unreasonably
withheld, but if settled with its written consent, or if there be a final
judgment for the plaintiff in any such proceeding, each Indemnifying Party
jointly and severally agrees, subject to the exceptions and limitations set
forth above, to indemnify and hold harmless each Indemnified Party from and
against any and all Losses by reason of such settlement or judgment. The
Indemnifying Party shall not consent to the entry of any judgment or enter into
any settlement that does not include as an unconditional term thereof the giving
by the claimant or plaintiff to each Indemnified Party of a release, in form and
substance reasonably satisfactory to the Indemnified Party, from all liability
in respect of such proceeding for which such Indemnified Party would be entitled
to indemnification hereunder (whether or not any Indemnified Party is a party
thereto).
(d) Contribution. If the indemnification provided for in this Section 8
is unavailable to an Indemnified Party or is insufficient to hold
such Indemnified Party harmless for any Losses in respect of which
this Section 8 would otherwise apply by its terms (other than by
reason of exceptions provided in this Section 8), then each
applicable Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall have a joint and several obligation to
contribute to the amount paid or payable by such Indemnified Party
as a result of such Losses, in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party, on the one
hand, and such Indemnified Party, on the other hand, in connection
with the actions, statements or omissions that resulted in such
Losses as well as any other relevant equitable considerations. The
relative fault of such Indemnifying Party, on the one hand, and
Indemnified Party, on the other hand, shall be determined by
24
reference to, among other things, whether any untrue or alleged
untrue statement of a material fact or omission or alleged omission
to state a material fact relates to information supplied by such
Indemnifying Party or Indemnified Party, and the parties' relative
intent, knowledge, access to information and opportunity to correct
or prevent any such statement or omission. The amount paid or
payable by an Indemnified Party as a result of any Losses shall be
deemed to include any legal or other fees or expenses incurred by
such party in connection with any proceeding, to the extent such
party would have been indemnified for such fees or expenses if the
indemnification provided for in Section 8(a) or 8(b) was available
to such party. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 8(d) were
determined by pro rata allocation or by another method of allocation
that does not take account of the equitable considerations referred
to in the immediately preceding paragraph. Notwithstanding the
provisions of this Section 8(d), a selling Holder shall not be
required to contribute, in the aggregate, any amount in excess of
such Holder's Maximum Contribution Amount. A selling Holder's
"Maximum Contribution Amount" shall equal the excess of (i) the
aggregate proceeds received by such Holder pursuant to the sale of
such Registrable Notes or Exchange Notes over (ii) the aggregate
amount of damages that such Holder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation. The
Holders' obligations to contribute pursuant to this Section 8(d) are
several in proportion to the respective principal amount of the
Registrable Securities held by each Holder hereunder and not joint.
The Company's and Guarantors' obligations to contribute pursuant to
this Section 8(d) are joint and several.
The indemnity and contribution agreements contained in this Section 8 are
in addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties.
9. Rules 144 and 144A
The Company covenants that it shall (a) file the reports required to be
filed by it (if so required) under the Securities Act and the Exchange Act in a
timely manner and, if at any time the Company is not required to file such
reports, it will, upon the written request of any Holder of Registrable Notes,
make publicly available other information necessary to permit sales pursuant to
Rule 144 and 144A and (b) take such further action as any Holder may reasonably
request in writing, all to the extent required from time to time to enable such
Holder to sell Registrable Notes without registration under the Securities Act
pursuant to the exemptions provided by Rule 144 and Rule 144A. Upon the request
of any Holder, the Company shall deliver to such Xxxxxx a written statement as
to whether it has complied with such information and requirements.
10. Underwritten Registrations of Registrable Notes
If any of the Registrable Notes covered by any Shelf Registration
Statement 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
25
selected by the Holders of a majority in aggregate principal amount of such
Registrable Notes to be included in such offering; provided, however, that such
investment banker or investment bankers and manager or managers must be
reasonably acceptable to the Company.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Xxxxxx (a) agrees to sell such Xxxxxx's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
11. Miscellaneous
(a) Remedies. In the event of a breach by either the Company or any of
the Guarantors of any of their respective obligations under this
Agreement, each Holder, in addition to being entitled to exercise
all rights provided herein, in the Indenture or, in the case of the
Initial Purchaser, in the Purchase Agreement, or granted by law,
including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Company and the
Guarantors agree that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by either
the Company or any of the Guarantors of any of the provisions of
this Agreement and hereby further agree that, in the event of any
action for specific performance in respect of such breach, the
Company shall (and shall cause each Guarantor to) waive the defense
that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company and each of the Guarantors
have not entered, as of the date hereof, and the Company and each of
the Guarantors shall not enter, after the date of this Agreement,
into any agreement with respect to any of its securities that is
inconsistent with the rights granted to the Holders of Securities in
this Agreement or otherwise conflicts with the provisions hereof.
The Company and each of the Guarantors have not entered and will not
enter into any agreement with respect to any of its securities that
will grant to any Person piggy-back rights with respect to a
Registration Statement.
(c) Adjustments Affecting Registrable Notes. The Company 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 to include such Registrable Notes in a registration
undertaken pursuant to this Agreement.
(d) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given, other than
with the prior written consent of the Holders of not less than a
majority in aggregate principal amount of the then outstanding
Registrable Notes in circumstances that would adversely affect any
Holders of Registrable Notes; provided, however, that Section 8 and
26
this Section 11(d) may not be amended, modified or supplemented
without the prior written consent of each Holder. 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
tendered pursuant to the Exchange Offer or sold pursuant to a Notes
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 tendered
or being sold by such Holders pursuant to such Notes Registration
Statement.
(e) Notices. All notices and other communications 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 Securities or to 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 of the Notes, with a copy in like
manner to the Initial Purchaser as follows:
Xxxxxxxxx & Company, Inc.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx Xxxxxx, Esq.
(ii) if to the Initial Purchaser, at the address specified in
Section 11(e)(i);
(iii) if to the Company or any Guarantor, as follows:
Dune Energy, Inc.
0000 Xxxx Xxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
with a copy to:
Xxxxx & Xxx Xxxxxx LLP
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
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 United States mail, postage prepaid, if mailed; one
Business Day after being timely delivered to a next-day air courier guaranteeing
overnight delivery; and when receipt is acknowledged by the addressee, if
telecopied.
27
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in such 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 hereto, including, without limitation and without the need
for an express assignment, subsequent Holders of Securities.
(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; Submission to Jurisdiction; Waiver of Jury Trial.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAW. EACH OF THE COMPANY AND THE GUARANTORS HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT
SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY
FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW
YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITS AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION
OF THE AFORESAID COURTS. EACH OF THE COMPANY AND THE GUARANTORS
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO
UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE COMPANY AND THE
GUARANTORS IRREVOCABLY CONSENTS, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, TO THE SERVICE OF PROCESS OF
ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY
THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE COMPANY AND THE GUARANTORS AT THEIR SAID
ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH
28
MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY HOLDER TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY OR THE
GUARANTORS IN ANY OTHER JURISDICTION.
(j) 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.
(k) Securities Held by the Company or Its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of
Securities is required hereunder, Securities held by the Company or
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.
(l) Third Party Beneficiaries. Holders and Participating Broker-Dealers
are intended third party beneficiaries of this Agreement and this
Agreement may be enforced by such Persons.
(m) Entire Agreement. This Agreement, together with the Purchase
Agreement, the Indenture and the Collateral Agreements, 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,
understanding, correspondence, conversations and memoranda between
the Initial Purchaser on the one hand and the Company and the
Guarantors 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.
[Remainder of page intentionally left blank.]
29
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Initial Purchaser, the Guarantors and the Company in accordance with
its terms.
DUNE ENERGY, INC.
By: /s/ Xxxxx X. Xxxx
--------------------------------------------
Name: Xxxxx X. Xxxx
Title: President and Chief Executive Officer
VAQUERO PARTNERS LLC
DUNE OPERATING COMPANY
By: /s/ Xxxxx Xxxxx
--------------------------------------------
Name: Xxxxx Xxxxx
Title: President
30
Accepted and Agreed to:
XXXXXXXXX & COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Managing Director
31
