EXHIBIT 4.2
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REGISTRATION RIGHTS AGREEMENT
Dated as of November 10, 2003
By and Among
▇▇▇▇▇▇ ENERGY COMPANY,
the GUARANTORS named herein
and
UBS SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
and
PNC CAPITAL MARKETS, INC.
as Initial Purchasers
6.625% Senior Notes due 2010
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TABLE OF CONTENTS
Page
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Section 1. Definitions ................................................. 1
Section 2. Exchange Offer .............................................. 5
Section 3. Shelf Registration .......................................... 8
Section 4. Additional Interest ......................................... 9
Section 5. Registration Procedures ..................................... 10
Section 6. Registration Expenses ....................................... 18
Section 7. Indemnification ............................................. 19
Section 8. Rules 144 and 144A .......................................... 22
Section 9. Underwritten Registrations .................................. 22
Section 10. Miscellaneous ............................................... 23
(a) No Inconsistent Agreements .................................. 23
(b) Adjustments Affecting Registrable Notes ..................... 23
(c) Amendments and Waivers ...................................... 23
(d) Notices ..................................................... 24
(e) Guarantors .................................................. 24
(f) Successors and Assigns ...................................... 24
(g) Counterparts ................................................ 24
(h) Headings .................................................... 25
(i) Governing Law ............................................... 25
(j) Severability ................................................ 25
(k) Securities Held by the Issuers or Their Affiliates .......... 25
(l) Third-Party Beneficiaries ................................... 25
(m) Attorneys' Fees ............................................. 25
(n) Entire Agreement ............................................ 25
SIGNATURES ................................................................ S-1
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated as of
November 10, 2003, by and among ▇▇▇▇▇▇ ENERGY COMPANY, a Delaware corporation
(the "Company") and each of the guarantors listed on Schedule I hereto (the
"Guarantors") (the Company and the Guarantors are referred to collectively
herein as the "Issuers"), on the one hand, and UBS SECURITIES LLC (the
"Representative"), Citigroup Global Markets Inc. and PNC Capital Markets, Inc.
(together with the Representative, the "Initial Purchasers"), on the other hand.
This Agreement is entered into in connection with the Purchase
Agreement, dated as of November 5, 2003, by and among the Issuers and the
Initial Purchasers (the "Purchase Agreement"), relating to the offering of
$360,000,000 aggregate principal amount of 6.625% Senior Notes due 2010 of the
Company (including the guarantees thereof by the Guarantors, the "Notes"). The
execution and delivery of this Agreement is a condition to the Initial
Purchasers' obligation to purchase the Notes under the Purchase Agreement.
The parties hereby agree as follows:
Section 1. Definitions
As used in this Agreement, the following terms shall have the following
meanings:
"action" shall have the meaning set forth in Section 7(c) hereof.
"Additional Interest" shall have the meaning set forth in Section 4(a)
hereof.
"Advice" shall have the meaning set forth in Section 5 hereof.
"Additional Interest Payment Date" shall have the meaning set forth in
Section 4(b) hereof.
"Agreement" shall have the meaning set forth in the first introductory
paragraph hereto.
"Applicable Period" shall have the meaning set forth in Section 2(b)
hereof.
"Board of Directors" shall have the meaning set forth in Section 5
hereof.
"Business Day" shall mean a day that is not a Legal Holiday.
"Company" shall have the meaning set forth in the introductory
paragraph hereto and shall also include the Company's permitted successors and
assigns.
"Commission" shall mean the Securities and Exchange Commission.
"day" shall mean a calendar day.
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"Delay Period" shall have the meaning set forth in Section 5 hereof.
"Effectiveness Deadline" shall have the meaning set forth in the second
paragraph of Section 3(b) hereof.
"Effectiveness Period" shall have the meaning set forth in the second
paragraph of Section 3(b) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" shall have the meaning set forth in Section 2(a)
hereof.
"Exchange Offer" shall have the meaning set forth in Section 2(a)
hereof.
"Exchange Offer Registration Statement" shall have the meaning set
forth in Section 2(a) hereof.
"Guarantors" shall have the meaning set forth in the preamble and shall
also include any Guarantor's successors and each Person who executes and
delivers a counterpart of this Agreement hereafter pursuant to Section 10(e)
hereof.
"Holder" shall mean any holder of a Registrable Note or Registrable
Notes.
"Indemnified Party" shall have the meaning set forth in Section 7(c)
hereof.
"Indemnifying Party" shall have the meaning set forth in Section 7(c)
hereof.
"Indenture" shall mean the Indenture, dated as of November 10, 2003, by
and among the Issuers and Wilmington Trust Company, as trustee, pursuant to
which the Notes are being issued, as amended or supplemented from time to time
in accordance with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the first
introductory paragraph hereof.
"Inspectors" shall have the meaning set forth in Section 5(n) hereof.
"Issue Date" shall mean November 10, 2003, the date of original
issuance of the Notes.
"Issuers" shall have the meaning set forth in the first introductory
paragraph hereto.
"Legal Holiday" shall mean a Saturday, a Sunday or a day on which
banking institutions in New York, New York are required by law, regulation or
executive order to remain closed.
"Losses" shall have the meaning set forth in Section 7(a) hereof.
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"NASD" shall have the meaning set forth on Section 5(s) hereof.
"Notes" shall have the meaning set forth in the second introductory
paragraph hereto.
"Participant" shall have the meaning set forth in Section 7(a) hereof.
"Participating Broker-Dealer" shall have the meaning set forth in
Section 2(b) hereof.
"Person" shall mean an individual, corporation, partnership, joint
venture association, joint stock company, trust, unincorporated limited
liability company, government or any agency or political subdivision thereof or
any other entity.
"Private Exchange" shall have the meaning set forth in Section 2(b)
hereof.
"Private Exchange Notes" shall have the meaning set forth in Section
2(b) hereof.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
"Purchase Agreement" shall have the meaning set forth in the second
introductory paragraph hereof.
"Records" shall have the meaning set forth in Section 5(n) hereof.
"Registrable Notes" shall mean each Note upon its original issuance and
at all times subsequent thereto, each Exchange Note as to which Section 2(c)(iv)
hereof is applicable upon original issuance and at all times subsequent thereto
and each Private Exchange Note upon original issuance thereof and at all times
subsequent thereto, in each case until (i) a Registration Statement (other than,
with respect to any Exchange Note as to which Section 2(c)(iv) hereof is
applicable, the Exchange Offer Registration Statement) covering such Note,
Exchange Note or Private Exchange Note has been declared effective by the
Commission and such Note, Exchange Note or such Private Exchange Note, as the
case may be, has been disposed of in accordance with such effective Registration
Statement, (ii) such Note has been exchanged pursuant to the Exchange Offer for
an Exchange Note or Exchange Notes that may be resold without restriction under
state and federal securities laws, (iii) such Note, Exchange Note or Private
Exchange Note, as the case may be, ceases to be outstanding for purposes of the
Indenture or (iv) such Note, Exchange Note or Private Exchange Note has been
sold in compliance with Rule 144 or is salable pursuant to Rule 144(k).
"Registration Default" shall have the meaning set forth in Section 4(a)
hereof.
"Registration Statement" shall mean any appropriate registration
statement of the Issuers covering any of the Registrable Notes filed with the
Commission under the Securities Act, and
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all amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Representative" shall have the meaning set forth in the introductory
paragraph hereto.
"Requesting Participating Broker-Dealer" shall have the meaning set
forth in Section 2(b) hereof.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the Commission providing for offers and
sales of securities made in compliance therewith resulting in offers and sales
by subsequent holders that are not affiliates of an issuer of such securities
being free of the registration and prospectus delivery requirements of the
Securities Act.
"Rule 144A" shall mean Rule 144A promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule (other than
Rule 144) or regulation hereafter adopted by the Commission.
"Rule 415" shall mean Rule 415 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Shelf Filing Event" shall have the meaning set forth in Section 2(c)
hereof.
"Shelf Registration" shall have the meaning set forth in Section 3(a)
hereof.
"Shelf Registration Statement" shall mean a Registration Statement
filed in connection with a Shelf Registration.
"TIA" shall mean the Trust Indenture Act of 1939, as amended.
"Trigger Date" shall have the meaning set forth in Section 2(c) hereof.
"Trustee" shall mean the trustee under the Indenture and the trustee
(if any) under any indenture governing the Exchange Notes and Private Exchange
Notes.
"Underwritten registration or underwritten offering" shall mean a
registration in which securities of the Issuers are sold to an underwriter for
reoffering to the public.
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Section 2. Exchange Offer
(a) The Issuers shall (i) use their reasonable best efforts to file a
Registration Statement (the "Exchange Offer Registration Statement") within 90
days after the Issue Date with the Commission on an appropriate registration
form with respect to a registered offer (the "Exchange Offer") to exchange any
and all of the Registrable Notes for a like aggregate principal amount of notes
(including the guarantees with respect thereto, the "Exchange Notes") that are
identical in all material respects to the Notes (except that the Exchange Notes
shall not contain restrictive legends, terms with respect to transfer
restrictions or Additional Interest upon a Registration Default), (ii) use their
reasonable best efforts to cause the Exchange Offer Registration Statement to be
declared effective under the Securities Act within 180 days after the Issue Date
and (iii) use their reasonable best efforts to consummate the Exchange Offer
within 210 days after the Issue Date. Upon the Exchange Offer Registration
Statement being declared effective by the Commission, the Issuers will offer the
Exchange Notes in exchange for surrender of the Notes. The Issuers shall keep
the Exchange Offer open for not less than 20 Business days (or longer if
required by applicable law) after the date notice of the Exchange Offer is
mailed to Holders.
Each Holder that participates in the Exchange Offer will be required to
represent to the Issuers in writing that (i) any Exchange Notes to be received
by it will be acquired in the ordinary course of its business, (ii) it has no
arrangement or understanding with any Person to participate in the distribution
(within the meaning of the Securities Act) of the Exchange Notes in violation of
the provisions of the Securities Act , (iii) it is not an affiliate of the
Company or any Guarantor as defined by Rule 405 of the Securities Act, or if it
is an affiliate, it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable, (iv) if such Holder
is not a broker-dealer, it is not engaged in, and does not intend to engage in,
a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that
will receive Exchange Notes for its own account in exchange for Notes that were
acquired as a result of market-making or other trading activities, it will
deliver a prospectus in connection with any resale of such Exchange Notes.
(b) The Issuers and the Initial Purchasers acknowledge that the staff
of the Commission has taken the position that any broker-dealer that elects to
exchange Notes that were acquired by such broker-dealer for its own account as a
result of market-making or other trading activities for Exchange Notes in the
Exchange Offer (a "Participating Broker-Dealer") may be deemed to be an
"underwriter" within the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Notes (other than a resale of an unsold allotment
resulting from the original offering of the Notes).
The Issuers and the Initial Purchasers also acknowledge that the staff
of the Commission has taken the position that if the Prospectus contained in the
Exchange Offer Registration Statement includes a plan of distribution containing
a statement to the above effect and the means by which Participating
Broker-Dealers may resell the Exchange Notes, without naming the Participating
Broker-Dealers or specifying the amount of Exchange Notes owned by them, such
Prospectus may be delivered by Participating Broker-Dealers to satisfy their
prospectus delivery obligations under the Securities Act in connection with
resales of Exchange Notes for their own accounts, so long as the Prospectus
otherwise meets the requirements of the Securities Act.
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In light of the foregoing, if requested by a Participating
Broker-Dealer (a "Requesting Participating Broker-Dealer"), the Issuers agree to
use their reasonable best efforts to keep the Exchange Offer Registration
Statement continuously effective for a period of at least 180 days after the
date on which the Exchange Offer Registration Statement is declared effective,
or such longer period if extended pursuant to any Delay Period in accordance
with the last paragraph of Section 5 hereof (such period, the "Applicable
Period"), or such earlier date as each Requesting Participating Broker-Dealer
shall have notified the Company in writing that such Requesting Participating
Broker-Dealer has resold all Exchange Notes acquired by it in the Exchange
Offer. The Issuers shall include a plan of distribution in such Exchange Offer
Registration Statement that meets the requirements set forth in the preceding
paragraph.
If, prior to consummation of the Exchange Offer, the Initial Purchasers
or any Holder, as the case may be, holds any Notes acquired by it that have, or
that are reasonably likely to be determined to have, the status of an unsold
allotment in an initial distribution, or if any Holder is not entitled to
participate in the Exchange Offer, the Issuers upon the request of the Initial
Purchasers or any such Holder, as the case may be, shall simultaneously with the
delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the
Initial Purchasers or any such Holder, as the case may be, in exchange (the
"Private Exchange") for such Notes held by the Initial Purchasers or any such
Holder, as the case may be, a like principal amount of notes (the "Private
Exchange Notes") of the Issuers that are identical in all material respects to
the Exchange Notes except that the Private Exchange Notes may be subject to
restrictions on transfer and bear a legend to such effect. The Private Exchange
Notes shall be issued pursuant to the same indenture as the Exchange Notes and
bear the same CUSIP number as the Exchange Notes.
Upon consummation of the Exchange Offer in accordance with this Section
2, the Issuers shall have no further registration obligations other than the
Issuers' continuing registration obligations with respect to (i) Private
Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and
(iii) Notes or Exchange Notes as to which clause (c)(iv) of this Section 2
applies.
In connection with the Exchange Offer, the Issuers shall:
(1) mail or cause to be mailed to each Holder entitled to participate
in the Exchange Offer a copy of the Prospectus forming part of the Exchange
Offer Registration Statement, together with an appropriate letter of
transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with
an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to the
close of business, New York time, on the last Business Day on which the
Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable
laws, rules and regulations.
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As soon as practicable after the close of the Exchange Offer and the
Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly
withdrawn by the Holders pursuant to the Exchange Offer and the Private
Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation
all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each such
Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may
be, equal in principal amount to the Registrable Notes of such Holder so
accepted for exchange, provided, however, that in the case of any
Registrable Notes held in global form by a depository, authentication and
delivery to such depository of one or more Exchange Notes or Private
Exchange Notes in global form in such amount shall satisfy such
requirement.
The Exchange Offer and the Private Exchange shall not be subject to any
conditions, other than that (i) the Exchange Offer or Private Exchange, as the
case may be, does not violate applicable law or any applicable interpretation of
the staff of the Commission, (ii) no action or proceeding shall have been
instituted or threatened in any court or by any governmental agency which might
materially impair the ability of the Issuers to proceed with the Exchange Offer
or the Private Exchange, and no material adverse development shall have occurred
in any existing action or proceeding with respect to the Issuers and (iii) all
governmental approvals shall have been obtained, which approvals the Company
deems necessary for the consummation of the Exchange Offer or Private Exchange.
The Exchange Notes and the Private Exchange Notes shall be issued under
(i) the Indenture or (ii) an indenture identical in all material respects to the
Indenture (in either case, with such changes as are necessary to comply with any
requirements of the Commission to effect or maintain the qualification thereof
under the TIA) and which, in either case, has been qualified under the TIA and
shall provide that (a) the Exchange Notes shall not be subject to the transfer
restrictions set forth in the Indenture and (b) the Private Exchange Notes shall
be subject to the transfer restrictions set forth in the Indenture. The
Indenture or such other indenture shall provide that the Exchange Notes, the
Private Exchange Notes and the Notes shall vote and consent together on all
matters as one class and that none of the Exchange Notes, the Private Exchange
Notes or the Notes will have the right to vote or consent as a separate class on
any matter.
(c) In the event that (i) any changes in law or the applicable
interpretations of the staff of the Commission do not permit the Issuers to
effect the Exchange Offer, (ii) for any reason the Exchange Offer is not
consummated within 210 days of the Issue Date, (iii) any Holder, other than an
Initial Purchaser notifies the Company prior to the 20th day following
consummation of the Exchange Offer that it is prohibited by law or the
applicable interpretations of the staff of the Commission from participating in
the Exchange Offer, (iv) in the case of any Holder who participates in the
Exchange Offer, such Holder does not receive Exchange Notes on the date of the
exchange that may be sold without restriction under state and federal securities
laws (other than due solely to the status of such holder as an affiliate of any
Issuer within the meaning of the Securities Act) or (v) the Initial Purchasers
so request, by delivering notice to the Company, with respect to Notes or
Private Exchange Notes
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that have, or that are reasonably likely to be determined to have, the status of
unsold allotments in an initial distribution (each such event referred to in
clauses (i) through (v) of this sentence, a "Shelf Filing Event", and the date
on which any of the conditions described in the foregoing clauses occur, which
in the case of clauses (iii) and (v) shall be deemed to be the date notice is
received by the Company, being a "Trigger Date"), then the Issuers shall file a
Shelf Registration pursuant to Section 3 hereof.
Section 3. Shelf Registration
If at any time a Shelf Filing Event shall occur, then:
(a) Shelf Registration. The Issuers shall file with the Commission a
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415 covering all of the Registrable Notes not exchanged in the Exchange
Offer, Private Exchange Notes and Exchange Notes as to which Section 2(c)(iv) is
applicable (the "Shelf Registration"). The Issuers shall use their reasonable
best efforts to file the Shelf Registration with the Commission as promptly as
practicable after the Trigger Date. The Shelf Registration shall be on Form S-3
or another appropriate form permitting registration of such Registrable Notes
for resale by Holders in the manner or manners designated by them (including,
without limitation, one or more underwritten offerings). The Issuers shall not
permit any securities other than the Registrable Notes to be included in the
Shelf Registration.
(b) The Issuers shall use their reasonable best efforts (x) to cause
the Shelf Registration to be declared effective under the Securities Act on or
prior to 180 days after the Trigger Date (such 180th day being the
"Effectiveness Deadline") and (y) to keep the Shelf Registration continuously
effective under the Securities Act for the period ending on the date which is
two years from the Issue Date, subject to extension pursuant to the penultimate
paragraph of Section 5 hereof (the "Effectiveness Period"), or such shorter
period ending when all Registrable Notes covered by the Shelf Registration have
been sold in the manner set forth and as contemplated in the Shelf Registration;
provided, however, that (i) the Effectiveness Period in respect of the Shelf
Registration shall be extended to the extent required to permit dealers to
comply with the applicable prospectus delivery requirements of Rule 174 under
the Securities Act and as otherwise provided herein and (ii) the Company may
suspend the effectiveness of the Shelf Registration Statement by written notice
to the Holders solely as a result of the filing of a post-effective amendment to
the Shelf Registration Statement to incorporate annual audited financial
information with respect to the Company where such post-effective amendment is
not yet effective and needs to be declared effective to permit Holders to use
the related Prospectus.
(c) Supplements and Amendments. The Issuers agree to supplement or make
amendments to the Shelf Registration Statement as and when required by the
rules, regulations or instructions applicable to the registration form used for
such Shelf Registration Statement or by the Securities Act or rules and
regulations thereunder for shelf registration, or if reasonably requested by the
Holders of a majority in aggregate principal amount of the Registrable Notes
covered by such Registration Statement or by any underwriter of such Registrable
Notes; ; provided, however, that the Issuers shall not be required to supplement
or amend any Shelf Registration Statement upon the request of any Holder or any
underwriter if such requested supplement or amendment would, in the good faith
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judgment of the Company (based on advice of counsel) violate any laws, including
the Securities Act, the Exchange Act or the rules and regulations promulgated
thereunder.
Section 4. Additional Interest
(a) The Issuers and the Initial Purchasers agree that the Holders will
suffer damages if the Issuers fail to fulfill their 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 Issuers agree that if:
(i) the Exchange Offer Registration Statement is not filed with the
Commission on or prior to the 90th day following the Issue Date or, if that
day is not a Business Day, the next day that is a Business Day,
(ii) the Exchange Offer Registration Statement is not declared
effective on or prior to the 180th day following the Issue Date or, if that
day is not a Business Day, the next day that is a Business Day,
(iii) the Exchange Offer is not consummated or a Shelf Registration
Statement is not declared effective on or prior to the 210th day following
the Issue Date, or, if that day is not a Business Day, the next day that is
a Business Day; or
(iv) the Shelf Registration Statement is required to be filed but is
not declared effective on or prior to the Effectiveness Deadline or, if
that day is not a Business Day, the next day that is a Business Day, or is
declared effective by such Effectiveness Deadline but thereafter ceases to
be effective or usable, except if the Shelf Registration ceases to be
effective or usable as specifically permitted by the penultimate paragraph
of Section 5 hereof
(each such event referred to in clauses (i) through (iv) a "Registration
Default"), additional interest in the form of additional cash interest
("Additional Interest") will accrue on the affected Registrable Notes. The rate
of Additional Interest will be 0.25% per annum for the first 90-day period
immediately following the occurrence of a Registration Default, increasing by an
additional 0.25% per annum with respect to each subsequent 90-day period up to a
maximum amount of Additional Interest of 1.00% per annum, from and including the
date on which any such Registration Default shall occur to, but excluding, the
earlier of (1) the date on which all Registration Defaults have been cured or
(2) the date on which all the Notes and Exchange Notes otherwise become freely
transferable by Holders other than affiliates of the Issuers without further
registration under the Securities Act. If, after the cure of all Registration
Defaults then in effect, there is a subsequent Registration Default, the rate of
Additional Interest for such subsequent Registration Default shall initially be
0.25% regardless of the rate in effect with respect to any prior Registration
Default at the time of cure of such Registration Default.
Notwithstanding the foregoing, (1) the amount of Additional Interest
payable shall not increase because more than one Registration Default has
occurred and is pending and (2) a Holder of Registrable Notes that is not
entitled to the benefits of the Shelf Registration Statement (e.g., such
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Holder has not elected to include information) shall not be entitled to
Additional Interest with respect to a Registration Default that pertains to the
Shelf Registration Statement.
(b) So long as Notes remain outstanding, the Company shall notify the
Trustee within five Business Days after each and every date on which an event
occurs in respect of which Additional Interest is required to be paid. Any
amounts of Additional Interest due pursuant to clauses (a)(i), (a)(ii), (a)(iii)
or (a)(iv) of this Section 4 will be payable in cash semi-annually on each May
15 and November 15 (each a "Additional Payment Date"), commencing with the first
such date occurring after any such Additional Interest commences to accrue, to
Holders to whom regular interest is payable on such Additional Interest Payment
Date with respect to Notes that are Registrable Notes. The amount of Additional
Interest for Registrable Notes will be determined by multiplying the applicable
rate of Additional Interest by the aggregate principal amount of all such
Registrable Notes entitled to Additional Interest hereunder that are outstanding
on the Additional Interest Payment Date following such Registration Default in
the case of the first such payment of Additional Interest with respect to a
Registration Default (and thereafter at the next succeeding Additional Interest
Payment Date until the cure of such Registration Default), 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.
Section 5. Registration Procedures
In connection with the filing of any Registration Statement pursuant to
Section 2 or 3 hereof, the Issuers shall effect such registrations to permit the
sale of the securities covered thereby in accordance with the intended method or
methods of disposition thereof, and pursuant thereto and in connection with any
Registration Statement filed by the Issuers hereunder, the Issuers shall,
subject to the terms and limitations otherwise provided herein:
(a) Prepare and file with the Commission the Registration Statement or
Registration Statements prescribed by Section 2 or 3 hereof, and use their
reasonable best efforts to cause each such Registration Statement to become
effective and remain effective as provided herein; provided, however, that,
if (1) such filing is pursuant to Section 3 hereof, or (2) a Prospectus
contained in the Exchange Offer Registration Statement filed pursuant to
Section 2 hereof is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period relating thereto, before filing any Registration
Statement or Prospectus or any amendments or supplements thereto, the
Issuers shall furnish to and afford the Holders of the Registrable Notes
covered by such Registration Statement or each such Participating
Broker-Dealer, as the case may be, their counsel (if requested in writing
by any such person) and the managing underwriters, if any, a reasonable
opportunity to review copies of all such documents (including copies of any
documents to be incorporated by reference therein and all exhibits thereto)
proposed to be filed (in each case at least five Business Days prior to
such filing or such later date as is reasonable under the circumstances).
The Issuers shall not file any Registration Statement or Prospectus or any
amendments or supplements thereto if the Holders of a majority in aggregate
principal amount of the Registrable Notes covered by such Registration
Statement, or any such Participating
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Broker-Dealer, as the case may be, their counsel, or the managing
underwriters, if any, shall reasonably object on a timely basis.
(b) Prepare and file with the Commission such amendments and
post-effective amendments to each Shelf Registration Statement or Exchange
Offer Registration Statement, as the case may be, as may be necessary to
keep such Registration Statement continuously effective for the
Effectiveness Period or the Applicable Period, as the case may be; cause
the related Prospectus to be supplemented by any Prospectus supplement
required by applicable law, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provisions then in force) promulgated under the
Securities Act; and comply with the applicable provisions of the Securities
Act and the Exchange Act with respect to the disposition of all securities
covered by such Registration Statement as so amended or in such Prospectus
as so supplemented and with respect to the subsequent resale of any
securities being sold by a Participating Broker-Dealer covered by any such
Prospectus, in each case, in accordance with the intended methods of
distribution set forth in such Registration Statement or Prospectus, as so
amended or supplemented.
(c) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period relating thereto from whom the
Company has received written notice that such Broker-Dealer will be a
Participating Broker-Dealer in the applicable Exchange Offer, notify the
selling Holders of Registrable Notes, or each such Participating
Broker-Dealer, as the case may be, their counsel (if such counsel is known
to the Issuers) and the managing underwriters, if any, as promptly as
possible, and, if requested by any such Person, confirm such notice in
writing, (i) when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same has
become effective under the Securities Act (including in such notice a
written statement that any Holder may, upon request in writing, obtain, at
the sole expense of the Issuers, one conformed copy of such Registration
Statement or post-effective amendment including financial statements and
schedules, documents incorporated or deemed to be incorporated by reference
and exhibits), (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus or the
initiation of any proceedings for that purpose, (iii) if at any time when a
Prospectus is required by the Securities Act to be delivered in connection
with sales of the Registrable Notes or resales of Exchange Notes by
Participating Broker-Dealers the representations and warranties of the
Issuers contained in any agreement (including any underwriting agreement)
contemplated by Section 5(m) hereof cease to be true and correct in all
material respects, (iv) of the receipt by any of the Issuers of any
notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of the
Registrable Notes or the Exchange Notes for offer or sale in any
jurisdiction, or the initiation or threatening of any proceeding for such
purpose, (v) of the happening of any event, the existence of any condition
or any information becoming known to any Issuer that makes any statement
made in such Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in
any material respect or that requires the making
-12-
of any changes in or amendments or supplements to such Registration
Statement, Prospectus or documents so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and that in the case of the
Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and (vi) of the Company's
determination that a post-effective amendment to a Registration Statement
would be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, use their reasonable best
efforts to prevent the issuance of any order suspending the effectiveness
of a Registration Statement or of any order preventing or suspending the
use of a Prospectus or suspending the qualification (or exemption from
qualification) of any of the Registrable Notes or the Exchange Notes, as
the case may be, for sale in any jurisdiction, and, if any such order is
issued, to use their reasonable best efforts to obtain the withdrawal of
any such order at the earliest practicable moment.
(e) If (1) a Shelf Registration is filed pursuant to Section 3 hereof
or (2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period and if reasonably requested by
the managing underwriter or underwriters (if any), the Holders of a
majority in aggregate principal amount of the Registrable Notes covered by
such Registration Statement or any Participating Broker-Dealer, as the case
may be, (i) promptly incorporate in such Registration Statement,
Prospectus, prospectus supplement or post-effective amendment such
information as the managing underwriter or underwriters (if any), such
Holders or any Participating Broker-Dealer, as the case may be (based upon
advice of counsel), determine is reasonably necessary to be included
therein and (ii) make all required filings of such prospectus supplement or
such post-effective amendment as soon as practicable after the Company has
received notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment; provided, however, that the Issuers
shall not be required to take any action hereunder that would, in the
written opinion of counsel to the Issuers, violate applicable laws.
(f) If (1) a Shelf Registration is filed pursuant to Section 3 hereof
or (2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, furnish to each selling Holder
of Registrable Notes or each such Participating Broker-Dealer, as the case
may be, who so requests in writing, their counsel (if requested in writing
by any such person) and each managing underwriter, if any, at the sole
expense of the Issuers, one conformed copy of the Registration Statement or
Registration Statements and each post-effective amendment thereto,
including financial statements and schedules, and, if requested, all
documents incorporated or deemed to be incorporated therein by reference
and all exhibits.
-13-
(g) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, deliver to each selling Holder
of Registrable Notes or each such Participating Broker-Dealer, as the case
may be, their respective counsel, and the underwriters, if any, at the sole
expense of the Issuers, as many copies of the Prospectus or Prospectuses
(including each form of preliminary prospectus) and each amendment or
supplement thereto and any documents incorporated by reference therein as
such Persons may reasonably request in writing; and, subject to the last
paragraph of this Section 5, the Issuers hereby consent to the use of such
Prospectus and each amendment or supplement thereto (provided the manner of
such use complies with any limitations resulting from any applicable laws,
including state securities laws and subject to the provisions of this
Agreement) by each of the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, and the underwriters or
agents, if any, and dealers (if any), in connection with the offering and
sale of the Registrable Notes covered by, or the sale by Participating
Broker-Dealers of the Exchange Notes pursuant to, such Prospectus and any
amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or Exchange Notes
or any delivery of a Prospectus contained in the Exchange Offer
Registration Statement by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, use their reasonable best
efforts to register or qualify, and to cooperate with the selling Holders
of Registrable Notes or each such Participating Broker-Dealer, as the case
may be, the managing underwriter or underwriters, if any, and 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 the managing
underwriter or underwriters reasonably request; provided, however, that
where Exchange Notes or Registrable Notes are offered other than through an
underwritten offering, the Issuers agree to use their reasonable best
efforts to cause the Issuers' counsel to perform Blue Sky investigations
and file registrations and qualifications required to be filed pursuant to
this Section 5(h); keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration
Statement is required to be kept effective and do any and all other acts or
things reasonably necessary or advisable to enable the disposition in such
jurisdictions of such Exchange Notes or Registrable Notes covered by the
applicable Registration Statement; provided, however, that no Issuer 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 such jurisdiction where it is not
then so subject or (C) subject itself to taxation in excess of a nominal
dollar amount in any such jurisdiction where it is not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3 hereof,
cooperate with the selling Holders of Registrable Notes and the managing
underwriter or underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Notes to be sold,
which certificates shall not bear any restrictive legends and shall be in a
form eligible for deposit with The Depository Trust Company; and enable
such Registrable Notes to be in
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such denominations and registered in such names as the managing underwriter
or underwriters, if any, or selling Holders may request in writing at least
five Business Days prior to any sale of such Registrable Notes.
(j) Use their reasonable best efforts to cause the Registrable Notes or
Exchange Notes covered by any Registration Statement to be registered with
or approved by such other governmental agencies or authorities as may be
reasonably necessary to enable the seller or sellers thereof or the
underwriter or underwriters, if any, to consummate the disposition of such
Registrable Notes or Exchange Notes, except as may be required solely as a
consequence of the nature of such selling Holder's business, in which case
the Issuers will cooperate in all reasonable respects with the filing of
such Registration Statement and the granting of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, upon the occurrence of any
event contemplated by Section 5(c)(v) or 5(c)(vi) hereof, as promptly as
practicable prepare and (subject to Section 5(a) and the penultimate
paragraph of this Section 5) file with the Commission, at the sole expense
of the Issuers, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference, or
file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Notes being sold thereunder or to the
purchasers of the Exchange Notes to whom such Prospectus will be delivered
by a Participating Broker-Dealer, any such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(l) Prior to the effective date of the first Registration Statement
relating to the Registrable Notes, (i) provide the Trustee with
certificates for the Registrable Notes in a form eligible for deposit with
The Depository Trust Company and (ii) provide a CUSIP number for the
Registrable Notes.
(m) In connection with any underwritten offering of Registrable Notes
pursuant to a Shelf Registration, enter into an underwriting agreement in a
form reasonably satisfactory to the Issuers as is customary in underwritten
offerings of debt securities similar to the Notes and take all such other
actions as are reasonably requested by the managing underwriter or
underwriters in order to expedite or facilitate the registration or the
disposition of such Registrable Notes and, in such connection, (i) make
such representations and warranties to, and covenants with, the
underwriters with respect to the business of the Issuers and their
subsidiaries, as then conducted (including any acquired business,
properties or entity, if applicable), and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be incorporated
by reference therein, in each case, as are customarily made by issuers to
underwriters in underwritten offerings of debt securities similar to the
Notes, and confirm the same in writing if and when requested; (ii) use
their reasonable best efforts to obtain the written opinions of
-15-
counsel to the Issuers and written updates thereof in form, scope and
substance reasonably satisfactory to the managing underwriter or
underwriters, addressed to the underwriters covering the matters
customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by the managing
underwriter or underwriters; (iii) use their reasonable best efforts to
obtain "cold comfort" letters and updates thereof in form, scope and
substance reasonably satisfactory to the managing underwriter or
underwriters from the independent certified public accountants of the
Issuers (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 or incorporated by reference in the Registration
Statement), addressed to each of the underwriters, such letters to be in
reasonable and customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with underwritten
offerings; and (iv) if an underwriting agreement is entered into, the same
shall contain indemnification provisions and procedures no less favorable
than those set forth in Section 7 hereof (or such other provisions and
procedures acceptable to Holders of a majority in aggregate principal
amount of Registrable Notes covered by such Registration Statement and the
managing underwriter or underwriters or agents) with respect to all parties
to be indemnified pursuant to said Section; provided that the Issuers shall
not be required to provide indemnification to any underwriter selected in
accordance with the provisions of Section 9 hereof with respect to
information relating to such underwriter furnished in writing to the
Company by or on behalf of such underwriter expressly for inclusion in such
Registration Statement. The above shall be done at each closing under such
underwriting agreement, or as and to the extent required thereunder.
(n) If (1) a Shelf Registration is filed pursuant to Section 3 hereof
or (2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, make available for inspection
by any selling Holder of such Registrable Notes being sold or each such
Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Notes, if any, and any
attorney, accountant or other agent retained by any such selling Holder or
each such Participating Broker-Dealer, as the case may be, or underwriter
(collectively, the "Inspectors"), at the offices where normally kept,
during reasonable business hours, all financial and other records,
pertinent corporate documents and instruments of the 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 by any such
Inspector in connection with such Registration Statement and Prospectus.
Each Inspector shall execute a confidentiality agreement in a form
reasonably acceptable to the Company pursuant to which such Inspector shall
agree to keep the Records confidential and not disclose, or use in
connection with any market transactions in violation of any applicable
securities laws, any Records that the Company determines, in good faith, to
be confidential and that it notifies the Inspectors in writing are
confidential unless (i) the disclosure of such Records is necessary to
avoid or correct a misstatement or omission in such Registration Statement
or Prospectus, (ii) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction, (iii)
disclosure of such information is re-
-16-
quired, in the opinion of counsel, for an Inspector in connection with any
action, claim, suit or proceeding, directly or indirectly, involving or
potentially involving such Inspector and arising out of, based upon,
relating to, or involving this Agreement or the Purchase Agreement, or any
transactions contemplated hereby or thereby or arising hereunder or
thereunder, or (iv) the information in such Records has been made generally
available to the public other than through an act of such Inspector in
violation of this Section 5(n); provided, however, that (i) each Inspector
shall agree to provide notice to the Company, in writing, of the potential
disclosure of any information by such Inspector pursuant to clause (i),
(ii) or (iii) of this sentence to permit the Issuers to obtain a protective
order (or waive the provisions of this paragraph (n)) and (ii) each such
Inspector shall take such actions as are reasonably necessary to protect
the confidentiality of such information (if practicable) to the extent such
action is otherwise not inconsistent with, an impairment of or in
derogation of the rights and interests of the Holder or any Inspector.
(o) Provide an indenture trustee for the Registrable Notes or the
Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a) hereof to be qualified under the TIA
not later than the effective date of the Exchange Offer or the first
Registration Statement relating to the Registrable Notes; and in connection
therewith, cooperate with the trustee under any such indenture and the
Holders of the Registrable Notes or Exchange Notes, as applicable, to
effect such changes to such indenture as may be required for such indenture
to be so qualified in accordance with the terms of the TIA; and execute,
and use their reasonable best efforts to cause such trustee to execute, all
documents as may be required to effect such changes, and all other forms
and documents required to be filed with the Commission to enable such
indenture to be so qualified in a timely manner.
(p) Comply with all applicable rules and regulations of the Commission
and make generally available to the Company's securityholders earnings
statements satisfying the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month period
(or 90 days after the end of any 12-month period if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which Registrable
Notes or Exchange Notes are sold to underwriters in a firm commitment or
best efforts underwritten offering and (ii) if not sold to underwriters in
such an offering, commencing on the first day of the first fiscal quarter
of the Company after the effective date of a Registration Statement, which
statements shall cover said 12-month periods consistent with the
requirements of Rule 158.
(q) Upon the request of a Holder, upon consummation of the Exchange
Offer or a Private Exchange, use their reasonable best efforts to obtain an
opinion of counsel to the Issuers, in a form reasonable and customary for
underwritten transactions, addressed to the Trustee for the benefit of all
Holders of Registrable Notes participating in the Exchange Offer or the
Private Exchange, as the case may be, that the Exchange Notes or Private
Exchange Notes, as the case may be, and the related indenture constitute
legal, valid and binding obligations of the Issuers, enforceable against
the Issuers in accordance with its respective terms, subject to customary
exceptions and qualifications.
-17-
(r) If the Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable Notes by Holders to the Company (or to
such other Person as directed by the Company) in exchange for the Exchange
Notes or the Private Exchange Notes, as the case may be, ▇▇▇▇, or cause to
be marked, on such Registrable Notes that such Registrable Notes are being
cancelled in exchange for the Exchange Notes or the Private Exchange Notes,
as the case may be; provided that in no event shall such Registrable Notes
be marked as paid or otherwise satisfied.
(s) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in
connection with any filings required to be made with the NASD.
(t) Use their reasonable best efforts to take all other steps
reasonably necessary or advisable to effect the registration of the
Exchange Notes and/or Registrable Notes covered by a Registration Statement
contemplated hereby.
The Company may require each seller of Registrable Notes or Exchange
Notes as to which any registration is being effected to furnish to the Company
such information regarding such seller and the distribution of such Registrable
Notes or Exchange Notes as the Company may, from time to time, reasonably
request. The Company may exclude from such registration the Registrable Notes of
any seller so long as such seller fails to furnish such information within a
reasonable time after receiving such request and in the event of such an
exclusion, the Issuers shall have no further obligation under this Agreement
(including, without limitation, the obligations under Section 4) with respect to
such seller or any subsequent Holder of such Registrable Notes. Each seller as
to which any Shelf Registration is being effected agrees to furnish promptly to
the Company all information required to be disclosed in order to make any
information previously furnished to the Company by such seller not materially
misleading.
If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Company or the Guarantors, then
such Holder shall have the right to require (i) the insertion therein of
language, in form and substance reasonably satisfactory to such Holder, to the
effect that the holding by such Holder of such securities is not to be construed
as a recommendation by such Holder of the investment quality of the securities
covered thereby and that such holding does not imply that such Holder will
assist in meeting any future financial requirements of the Company or the
Guarantors, or (ii) in the event that such reference to such Holder by name or
otherwise is not required by the Securities Act or any similar federal statute
then in force, the deletion of the reference to such Holder in any amendment or
supplement to the applicable Registration Statement filed or prepared subsequent
to the time that such reference ceases to be required.
Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by acquisition of such Registrable Notes or Exchange Notes that, upon
actual receipt of any notice from the Company (x) of the happening of any event
of the kind described in Section 5(c)(ii), 5(c)(iii), 5(c)(iv), or 5(c)(v)
hereof, or (y) that the Board of Directors of the Company (the "Board of
Directors") has resolved that the Company has a bona fide business purpose for
doing so, then the Issuers may delay the filing or the effectiveness of the
Exchange Offer Registration Statement or the Shelf Registration
-18-
Statement (if not then filed or effective, as applicable) and shall not be
required to maintain the effectiveness thereof or amend or supplement the
Exchange Offer Registration Statement or the Shelf Registration, in all cases,
for a period (a "Delay Period") expiring upon the earlier to occur of (i) in the
case of the immediately preceding clause (x), such Holder's or Participating
Broker-Dealer's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(k) hereof or until it is advised in writing (the
"Advice") by the Company that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or supplements thereto or
(ii) in the case of the immediately preceding clause (y), the date which is the
earlier of (A) the date on which such business purpose ceases to interfere with
the Issuer's obligations to file or maintain the effectiveness of any such
Registration Statement pursuant to this Agreement or (B) 60 days after the
Company notifies the Holders of such good faith determination. There shall not
be more than 90 days of Delay Periods during any 12-month period. Each of the
Effectiveness Period and the Applicable Period, if applicable, shall be extended
by the number of days during any Delay Period. Any Delay Period will not alter
the obligations of the Issuers to pay Additional Interest under the
circumstances set forth in Section 4 hereof.
In the event of any Delay Period pursuant to clause (y) of the
preceding paragraph, notice shall be given as soon as practicable after the
Board of Directors makes such a determination of the need for a Delay Period and
shall state, to the extent practicable, an estimate of the duration of such
Delay Period and shall advise the recipient thereof of the agreement of such
Holder provided in the next succeeding sentence. Each Holder, by his acceptance
of any Registrable Note, agrees that during any Delay Period, each Holder will
discontinue disposition of such Notes or Exchange Notes covered by such
Registration Statement or Prospectus or Exchange Notes to be sold by such Holder
or Participating Broker-Dealer, as the case may be.
Section 6. Registration Expenses
All fees and expenses incident to the performance of or compliance with
this Agreement by the Issuers (other than any underwriting discounts or
commissions) shall be borne by the Issuers, whether or not the Exchange Offer
Registration Statement or the Shelf Registration is filed or becomes effective
or the Exchange Offer is consummated, including, without limitation, (i) all
registration and filing fees (including, without limitation, reasonable fees and
expenses of compliance with state securities or Blue Sky laws (including,
without limitation, 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 of Registrable Notes
are located, in the case of an Exchange Offer, or (y) as provided in Section
5(h) hereof, in the case of a Shelf Registration or in the case of Exchange
Notes to be sold by a Participating Broker-Dealer during the Applicable
Period)), (ii) printing expenses, including, without limitation, expenses of
printing certificates for Registrable Notes or Exchange Notes in a form eligible
for deposit with The Depository Trust Company and of printing prospectuses if
the printing of prospectuses is requested by the managing underwriter or
underwriters, if any, or by the Holders of a majority in aggregate principal
amount of the Registrable Notes included in any Registration Statement or in
respect of Exchange Notes to be sold by any Participating Broker-Dealer during
the Applicable Period, as the case may be, (iii) messenger, telephone and
delivery expenses incurred by the Issuers, (iv) fees and disbursements of
counsel for the Issuers and reasonable fees and disbursements of one special
counsel for all of the sellers of Registrable Notes
-19-
(exclusive of any counsel retained pursuant to Section 7 hereof), (v) fees and
disbursements of all independent certified public accountants referred to in
Section 5(m)(iii) hereof (including, without limitation, the expenses of any
special audit and "cold comfort" letters required by or incident to such
performance), (vi) Securities Act liability insurance, if the Issuers desire
such insurance, (vii) fees and expenses of all other Persons retained by any of
the Issuers, (viii) internal expenses of the Issuers (including, without
limitation, all salaries and expenses of officers and employees of the Company
performing legal or accounting duties), (ix) the expense of any annual audit,
(x) the fees and expenses incurred in connection with the listing of the
securities to be registered on any securities exchange, and the obtaining of a
rating of the securities, in each case, if applicable, (xi) any required fees
and expenses incurred in connection with any filing required to be made with the
NASD, and (xii) the expenses incurred by the Issuers relating to printing, word
processing and distributing all Registration Statements, underwriting
agreements, indentures and any other documents necessary in order to comply with
this Agreement. Notwithstanding the foregoing or anything to the contrary, each
Holder shall pay all underwriting discounts and commissions of any underwriters
with respect to any Registrable Notes sold by or on behalf of it.
Section 7. Indemnification
(a) Each Issuer, jointly and severally, agrees to indemnify and hold
harmless each Holder of Registrable Notes and each Participating Broker-Dealer
selling Exchange Notes during the Applicable Period, each Person, if any, who
controls any such Person within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act, the agents, employees, officers and
directors of each Holder and each such Participating Broker-Dealer and the
agents, partners, members, employees, officers, managers and directors of any
such controlling Person (each, a "Participant") from and against any and all
losses, liabilities, claims, damages and expenses (including, but not limited
to, reasonable attorneys' fees and any and all reasonable out-of-pocket expenses
actually incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
reasonable amounts paid in settlement of any claim or litigation (in the manner
set forth in clause (c) below)) (collectively, "Losses") to which they or any of
them may become subject under the Securities Act, the Exchange Act or otherwise
insofar as such Losses (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment thereto) or Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto) or any preliminary prospectus, or caused by, arising out
of or based upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in the case of the Prospectus, in the light of the circumstances under which
they were made, not misleading, provided that (i) the foregoing indemnity shall
not be available to any Participant insofar as such Losses are caused by any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to such Participant
furnished to the Company in writing by or on behalf of such Participant
expressly for use therein, and (ii) that the foregoing indemnity with respect to
any preliminary prospectus shall not inure to the benefit of any Participant
from whom the Person asserting such Losses purchased Registrable Notes if (x) it
is established in the related proceeding that such Participant failed to send or
give a copy of the Prospectus (as amended or supplemented if such amendment or
supplement was furnished to such Participant prior to the written confirmation
of such sale) to such Person with or prior to the written confirmation of such
sale, if required by applicable law, and (y) the untrue statement or omission
-20-
or alleged untrue statement or omission was completely corrected in the
Prospectus (as amended or supplemented if amended or supplemented as aforesaid)
and such Prospectus does not contain any other untrue statement or omission or
alleged untrue statement or omission that was the subject matter of the related
proceeding. This indemnity agreement will be in addition to any liability that
the Issuers may otherwise have, including, but not limited to, liability under
this Agreement.
(b) Each Participant agrees, severally and not jointly, to indemnify
and hold harmless each Issuer, each Person, if any, who controls any Issuer
within the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act, and each of their respective agents, partners, members, employees,
officers and directors and the agents, employees, officers and directors of any
such controlling Person from and against any Losses to which they or any of them
may become subject under the Securities Act, the Exchange Act or otherwise
insofar as such Losses (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment thereto) or Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto) or any preliminary prospectus, or caused by, arising out
of or based upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in the case of the Prospectus, in the light of the circumstances under which
they were made, not misleading, in each case to the extent, but only to the
extent, that any such Loss arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in reliance
upon and in conformity with information relating to such Participant furnished
in writing to the Company by or on behalf of such Participant expressly for use
therein.
(c) Promptly after receipt by an indemnified party under subsection
7(a) or 7(b) above of notice of the commencement of any action, suit or
proceeding (collectively, an "action"), such indemnified party shall, if a claim
in respect thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to be sought in
writing of the commencement of such action (but the failure so to notify an
indemnifying party shall not relieve such indemnifying party from any liability
that it may have under this Section 7 except to the extent that it has been
prejudiced in any material respect by such failure). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement of such action, the indemnifying party will be entitled to
participate in such action, and to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense of such action with counsel
reasonably satisfactory to such indemnified party. Notwithstanding the
foregoing, the indemnified party or parties shall have the right to employ its
or their own counsel in any such action, but the reasonable fees and expenses of
such counsel shall be at the expense of such indemnified party or parties unless
(i) the employment of such counsel shall have been authorized in writing by the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take charge of the
defense of such action within a reasonable time after notice of commencement of
the action, or (iii) the named parties to such action (including any impleaded
parties) include such indemnified party and the indemnifying party or parties
(or such indemnifying parties have assumed the defense of such action), and such
indemnified party or parties shall have reasonably concluded, after consultation
with counsel, that there may be defenses available to it or them that are
different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party
-21-
or parties), in any of which events such reasonable fees and expenses of counsel
shall be borne by the indemnifying parties. Notwithstanding the foregoing, in no
event shall the indemnifying party be liable for the reasonable fees and
expenses of more than one counsel (together with appropriate local counsel) at
any time for all indemnified parties in connection with any one action or
separate but substantially similar or related actions arising in the same
jurisdiction out of the same general allegations or circumstances. Any such
separate firm for the Participants shall be designated in writing by
Participants who sold a majority in interest of Registrable Notes sold by all
such Participants and shall be reasonably acceptable to the Company and any such
separate firm for the Issuers, their affiliates, officers, directors,
representatives, employees and agents and such control Person of such Issuers
shall be designated in writing by such Issuers and shall be reasonably
acceptable to the Holders. An indemnifying party shall not be liable for any
settlement of any claim or action effected without its written consent, which
consent may not be unreasonably withheld. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) In order to provide for contribution in circumstances in which the
indemnification provided for in this Section 7 is for any reason held to be
unavailable from the indemnifying party, or is insufficient to hold harmless a
party indemnified under this Section 7, each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of such
aggregate Losses (i) in such proportion as is appropriate to reflect the
relative benefits received by each indemnifying party, on the one hand, and each
indemnified party, on the other hand, from the sale of the Notes to the Initial
Purchasers or the resale of the Registrable Notes by such Holder, as applicable,
or (ii) if such allocation is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of each indemnified party, on
the one hand, and each indemnifying party, on the other hand, in connection with
the statements or omissions that resulted in such Losses, as well as any other
relevant equitable considerations. The relative benefits received by the
Issuers, on the one hand, and each Participant, on the other hand, shall be
deemed to be in the same proportion as (x) the total proceeds from the sale of
the Notes to the Initial Purchasers (net of discounts and commissions but before
deducting expenses) received by the Issuers are to (y) the total net profit
received by such Participant in connection with the sale of the Registrable
Notes (net profit, in the case of an Initial Purchaser, shall be deemed to be
equal to the total purchase discounts and commissions received in connection
with the initial placement of Notes under the Purchase Agreement, in the case of
any other Holders shall be deemed to be equal to the value of receiving Notes
registered under the Act, and in the case of any underwriter, shall be deemed to
be equal to the total underwriting discounts and commissions as set forth on the
cover page of the prospectus forming part of the Shelf Registration Statement
which resulted in such Losses). The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Issuers or such
Participant and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission or alleged
statement or omission.
-22-
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
or by any other method of allocation that does not take into account the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 7, (i) in no case shall any Participant be required to contribute
any amount in excess of the amount by which the net profit (as defined in (d)
above) received by such Participant in connection with the sale of the
Registrable Notes exceeds the amount of any damages that such Participant has
otherwise been required to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission and (ii) no Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action against
such party in respect of which a claim for contribution may be made against
another party or parties under this Section 7, notify such party or parties from
whom contribution may be sought, but the omission to so notify such party or
parties shall not relieve the party or parties from whom contribution may be
sought from any obligation it or they may have under this Section 7 or
otherwise, except to the extent that it has been prejudiced in any material
respect by such failure; provided, however, that no additional notice shall be
required with respect to any action for which notice has been given under this
Section 7 for purposes of indemnification. Anything in this section to the
contrary notwithstanding, no party shall be liable for contribution with respect
to any action or claim settled without its written consent, provided, however,
that such written consent was not unreasonably withheld.
Section 8. Rules 144 and 144A
The Issuers covenant that they will file the reports required, if any,
to be filed by them under the Securities Act and the Exchange Act and the rules
and regulations adopted by the Commission thereunder in a timely manner (subject
to extensions permitted thereunder) in accordance with the requirements of the
Securities Act and the Exchange Act and, if at any time the Issuers are not
required to file such reports, they will, upon the reasonable request of any
Holder or beneficial owner of Registrable Notes, make available such information
necessary to permit sales pursuant to Rule 144A under the Securities Act. The
Issuers further covenant that for so long as any Registrable Notes remain
outstanding they will take such further action as any Holder of Registrable
Notes may reasonably request from time to time to enable such Holder to sell
Registrable Notes without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144(k) and Rule 144A under the
Securities Act, as such Rules may be amended from time to time, or (b) any
similar rule or regulation hereafter adopted by the Commission.
Section 9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf Registration
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
selected by the Holders of a majority in aggregate principal amount of such
Registrable Notes included in such offering and shall be subject to the prior
approval of the Company, such approval not to be unreasonably withheld.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder if such Holder does not (a) agree to sell such Holder's
Registrable Notes on the basis provided
-23-
in any underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements and (b) complete and execute all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements.
Section 10. Miscellaneous
(a) No Inconsistent Agreements. The Issuers have not, as of the date
hereof, and shall not, after the date of this Agreement, enter into any
agreement with respect to any of their securities that is inconsistent with the
rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not conflict with and are not inconsistent with, in any
material respect, the rights granted to the holders of any of the Issuers' other
issued and outstanding securities under any such agreements. The Issuers are not
parties to any agreement with respect to any of their securities which will
grant to any Person piggy-back registration rights with respect to any
Registration Statement.
(b) Adjustments Affecting Registrable Notes. The Issuers shall not,
directly or indirectly, take any action with respect to the Registrable Notes as
a class that would adversely affect the ability of the Holders of Registrable
Notes to include such Registrable Notes in a registration undertaken pursuant to
this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given except pursuant to a written agreement
duly signed and delivered by (I) the Company (on behalf of all Issuers) and
(II)(A) the Holders of not less than a majority in aggregate principal amount of
the then outstanding Registrable Notes and (B) in circumstances that would
adversely affect the Participating Broker-Dealers, the Participating
Broker-Dealers holding not less than a majority in aggregate principal amount of
the Exchange Notes held by all Participating Broker-Dealers; provided, however,
that Section 7 and this Section 10(c) may not be amended, modified or
supplemented except pursuant to a written agreement duly signed and delivered by
the Issuers and each Holder and each Participating Broker-Dealer (including any
Person who was a Holder or Participating Broker-Dealer of Registrable Notes or
Exchange Notes, as the case may be, disposed of pursuant to any Registration
Statement) affected by any such amendment, modification, waiver or supplement.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders of Registrable Notes whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect, impair,
limit or compromise the rights of other Holders of Registrable Notes may be
given by Holders of at least a majority in aggregate principal amount of the
Registrable Notes being sold pursuant to such Registration Statement.
(d) Notices. All notices and other communications (including, without
limitation, any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or telecopier:
(i) if to a Holder of the Registrable Notes or any Participating
Broker-Dealer, at the most current address of such Holder or Participating
Broker-Dealer, as the case may be, set forth on the records of the
registrar under the Indenture.
-24-
(ii) if to the Issuer, at the address as follows
▇▇▇▇▇▇ Energy Company
▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
(iii) if to the Initial Purchasers, at the address as follows:
UBS Securities LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: High Yield Syndicate Department
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; when receipt is
acknowledged by the recipient's telecopier machine, if telecopied; and on the
next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in such Indenture.
(e) Guarantors. So long as any Registrable Notes remain outstanding,
the Issuers shall cause each Person that becomes a guarantor of the Notes under
the Indenture to execute and deliver a counterpart to this Agreement which
subjects such Person to the provisions of this Agreement as a Guarantor. To the
extent a Person is no longer a guarantor of the Notes under the Indenture, such
Person shall be removed as a Guarantor on Schedule I hereto and shall no longer
be a party to, or in any way subject to the terms and conditions of, this
Agreement. Each of the Guarantors agrees to join the Issuers in all of their
undertakings hereunder to effect the Exchange Offer for the Exchange Notes and
the filing of any Shelf Registration Statement required hereunder.
(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,
the Holders and the Participating Broker-Dealers; provided, however, that this
Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or assign holds
Registrable Notes.
(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.
-25-
(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, including Section 5-1401 of
the New York General Obligations Law, AS APPLIED TO CONTRACTS MADE AND PERFORMED
WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS
OF LAW.
(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 reasonable 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 Issuers or Their Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Issuers or any of their
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 beneficial owners of
Registrable Notes and Participating Broker-Dealers are intended third-party
beneficiaries of this Agreement, and this Agreement may be enforced by such
Persons. No other Person is intended to be, or shall be construed as, a
third-party beneficiary of this Agreement.
(m) Attorneys' Fees. As between the parties to this Agreement, in any
action or proceeding brought to enforce any provision of this Agreement, or
where any provision hereof is validly asserted as a defense, the successful
party shall be entitled to recover reasonable attorneys' fees actually incurred
in addition to its reasonable costs and expenses and any other available remedy.
(n) Entire Agreement. This Agreement 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 any and all prior
oral or written agreements, representations, or warranties, contracts,
understandings, correspondence, conversations and memoranda between the Holders
on the one hand and the Issuers 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 are merged
herein and replaced hereby.
IN WITNESS WHEREOF, each of the undersigned has caused this
Registration Rights Agreement to be duly executed and delivered as of the date
first above written.
▇▇▇▇▇▇ ENERGY COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President and Chief
Financial Officer
A.T. ▇▇▇▇▇▇ COAL COMPANY,INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President and Chief
Financial Officer
▇▇▇▇▇▇▇ CREEK COAL COMPANY
JOBONER COAL COMPANY
▇▇▇▇▇▇▇ FORK COAL COMPANY
T.C.H. COAL CO.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: President
▇▇▇▇▇▇ COAL SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
APPALACHIAN CAPITAL MANAGEMENT CORP.
BIG ▇▇▇▇▇ VENTURE CAPITAL CORP.
BLUE RIDGE VENTURE CAPITAL CORP.
CAPSTAN MINING COMPANY
CENTRAL PENN ENERGY COMPANY, INC.
CONTINUITY VENTURE CAPITAL CORP.
DRIH CORPORATION
FEATS VENTURE CAPITAL CORP.
▇▇▇▇▇ FARMS, INC.
▇▇▇▇▇▇ COAL SALES COMPANY, INC.
▇▇▇▇▇▇ NEW ERA CAPITAL CORP.
▇▇▇▇▇▇ TECHNOLOGY INVESTMENTS, INC.
▇▇▇▇▇▇▇ LAND COMPANY, INC.
NEW MARKET LAND COMPANY
NEW ▇▇▇▇▇▇ CAPITAL CORP.
PROGRESSIVE VENTURE CAPITAL CORP.
▇▇▇▇ SALES VENTURE CAPITAL CORP.
SCARLET DEVELOPMENT COMPANY
SHENANDOAH CAPITAL MANAGEMENT CORP.
SPM CAPITAL MANAGEMENT CORP.
ST. ALBANS CAPITAL MANAGEMENT CORP.
SUN COAL COMPANY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
LAUREN LAND COMPANY
SC COAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
GREYEAGLE COAL COMPANY
TENNESSEE CONSOLIDATED COAL COMPANY
TENNESSEE ENERGY CORP.
THUNDER MINING COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: President
ALEX ENERGY, INC.
GREEN VALLEY COAL COMPANY
MAJESTIC MINING, INC.
NICCO CORPORATION
PEERLESS EAGLE COAL CO.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
ARACOMA COAL COMPANY, INC.
HIGHLAND MINING COMPANY
▇▇▇▇▇ COUNTY MINE SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ Francisco
-----------------------------------------------
Name: ▇▇▇▇▇▇ Francisco
Title: President
BANDMILL COAL CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
BARNABUS LAND COMPANY
DEHUE COAL COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
BELFRY COAL CORPORATION
NEW RIDGE MINING COMPANY
▇▇▇▇▇▇ COAL COMPANY, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: President
BLACK KING MINE DEVELOPMENT CO.
▇▇▇▇▇ EAST DEVELOPMENT CO.
▇▇▇▇▇ WEST DEVELOPMENT CO.
CABINAWA MINING COMPANY
CENTRAL WEST VIRGINIA ENERGY COMPANY
CERES LAND COMPANY
DEMETER LAND COMPANY
LAXARE, INC.
RAVEN RESOURCES, INC.
By: /s/ R. ▇▇▇▇▇ ▇▇▇▇
-----------------------------------------------
Name: R. ▇▇▇▇▇ ▇▇▇▇
Title: President
▇▇▇▇▇▇ GAS & OIL COMPANY
NEW RIVER ENERGY CORPORATION
By: /s/ R. ▇▇▇▇▇ ▇▇▇▇
-----------------------------------------------
Name: R. ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
BEN CREEK COAL COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
▇▇▇▇▇ ENERGY COMPANY
MARFORK COAL COMPANY, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
CLEAR FORK COAL COMPANY
ELK RUN COAL COMPANY, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: President
CRYSTAL FUELS COMPANY
By: /s ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
SUPPORT MINING COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇ FORK COAL COMPANY
DUCHESS COAL COMPANY
HAZY RIDGE COAL COMPANY
JACKS BRANCH COAL COMPANY
LICK BRANCH COAL COMPANY
MINE MAINTENANCE, INC.
▇▇▇▇▇ ▇▇▇▇ MINING COMPANY
RUM CREEK SYNFUEL COMPANY
TRACE CREEK COAL COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇
Title: President
FOOTHILLS COAL COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Treasurer
KANAWHA ENERGY COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇▇ COAL COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
GOALS COAL COMPANY
▇▇▇▇▇▇▇▇ MOUNTAIN COAL COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
INDEPENDENCE COAL COMPANY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
▇▇▇▇ CREEK COAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
LONG FORK COAL COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
BIG BEAR MINING COMPANY
DELBARTON MINING COMPANY
▇▇▇▇▇▇▇ POCAHONTAS COAL CORPORATION
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COAL COMPANY
ROCKRIDGE COAL COMPANY
▇▇▇▇▇▇▇-POCAHONTAS COAL CORPORATION
TOWN CREEK COAL COMPANY
WYOMAC COAL COMPANY, INC.
▇▇▇▇ SALES & PROCESSING CO.
▇▇▇▇ ▇▇▇▇▇▇ COAL COMPANY, INC.
ROAD FORK DEVELOPMENT COMPANY, INC.
SPARTAN MINING COMPANY
STONE MINING COMPANY
SYCAMORE FUELS, INC.
VANTAGE MINING COMPANY
By: /s/ Macs ▇. ▇▇▇▇
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Name: Macs ▇. ▇▇▇▇
Title: President
▇▇▇▇▇▇ COUNTY COAL CORPORATION
PILGRIM MINING COMPANY, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: President
▇▇▇▇▇▇▇▇ ENERGY COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
OMAR MINING COMPANY
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Kalos
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Kalos
Title: President
POWER MOUNTAIN COAL COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
RUM CREEK COAL SALES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
PERFORMANCE COAL COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
WHITE BUCK COAL COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
BANDYTOWN COAL COMPANY
EAGLE ENERGY, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
M & B COAL COMPANY
BY: WYOMAC COAL COMPANY, INC.
By: /s/ Macs Hall
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Name: Macs Hall
Title: President
M & B COAL COMPANY
BY: TOWN CREEK COAL COMPANY
By: /s/ Macs Hall
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Name: Macs Hall
Title: President
▇▇▇▇▇▇▇-POCAHONTAS MINING CO.
BY: ▇▇▇▇▇▇▇ POCAHONTAS COAL CORPORATION
By: /s/ Macs Hall
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Name: Macs Hall
Title: President
▇▇▇▇▇▇▇-POCAHONTAS MINING CO.
BY: OMAR MINING COMPANY
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Kalos
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Kalos
Title: President
▇▇▇▇▇ LAND COMPANY, LLC
BY: A. T. ▇▇▇▇▇▇ COAL COMPANY, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President and
Chief Financial Officer
▇▇▇▇▇ LAND COMPANY, LLC
BY: ALEX ENERGY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
UBS SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
PNC CAPITAL MARKETS, INC.
By: UBS Securities LLC, as representative
for the Initial Purchasers
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
Schedule I
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Guarantors:
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A. T. ▇▇▇▇▇▇ COAL COMPANY, INC.
ALEX ENERGY, INC.
APPALACHIAN CAPITAL MANAGEMENT CORP.
ARACOMA COAL COMPANY, INC.
BANDMILL COAL CORPORATION
BANDYTOWN COAL COMPANY
BARNABUS LAND COMPANY
BELFRY COAL CORPORATION
BEN CREEK COAL COMPANY
BIG BEAR MINING COMPANY
BIG ▇▇▇▇▇ VENTURE CAPITAL CORP.
BLACK KING MINE DEVELOPMENT CO.
BLUE RIDGE VENTURE CAPITAL CORP.
▇▇▇▇▇ EAST DEVELOPMENT CO.
▇▇▇▇▇ ENERGY COMPANY
▇▇▇▇▇ WEST DEVELOPMENT CO.
CABINAWA MINING COMPANY
CAPSTAN MINING COMPANY
CENTRAL PENN ENERGY COMPANY, INC.
CENTRAL WEST VIRGINIA ENERGY COMPANY
CERES LAND COMPANY
CLEAR FORK COAL COMPANY
CONTINUITY VENTURE CAPITAL CORP.
CRYSTAL FUELS COMPANY
DEHUE COAL COMPANY
DELBARTON MINING COMPANY
DEMETER LAND COMPANY
▇▇▇▇▇▇▇ POCAHONTAS COAL CORPORATION
DRIH CORPORATION
DUCHESS COAL COMPANY
▇▇▇▇▇▇ FORK COAL COMPANY
EAGLE ENERGY, INC.
ELK RUN COAL COMPANY, INC.
FEATS VENTURE CAPITAL CORP.
FOOTHILLS COAL COMPANY
GOALS COAL COMPANY
GREEN VALLEY COAL COMPANY
GREYEAGLE COAL COMPANY
▇▇▇▇▇ FARMS, INC.
▇▇▇▇▇ LAND COMPANY, LLC
HAZY RIDGE COAL COMPANY
HIGHLAND MINING COMPANY
▇▇▇▇▇▇▇ CREEK COAL COMPANY
INDEPENDENCE COAL COMPANY, INC.
JACKS BRANCH COAL COMPANY
JOBONER COAL COMPANY
KANAWHA ENERGY COMPANY
▇▇▇▇ CREEK COAL CORPORATION
LAUREN LAND COMPANY
LAXARE, INC.
LICK BRANCH COAL COMPANY
▇▇▇▇▇ COUNTY MINE SERVICES, INC.
LONG FORK COAL COMPANY
▇▇▇▇ ▇▇▇▇▇▇ COAL COMPANY, INC.
M&B COAL COMPANY
MAJESTIC MINING, INC.
MARFORK COAL COMPANY, INC.
▇▇▇▇▇▇ COUNTY COAL CORPORATION
▇▇▇▇▇▇ COAL SALES COMPANY, INC.
▇▇▇▇▇▇ COAL SERVICES, INC.
▇▇▇▇▇▇ GAS & OIL COMPANY
▇▇▇▇▇▇ NEW ERA CAPITAL CORP.
▇▇▇▇▇▇ TECHNOLOGY INVESTMENTS, INC.
▇▇▇▇▇▇▇ LAND COMPANY, INC.
MINE MAINTENANCE, INC.
NEW MARKET LAND COMPANY
NEW ▇▇▇▇▇▇ CAPITAL CORP.
NEW RIDGE MINING COMPANY
NEW RIVER ENERGY CORPORATION
NICCO CORPORATION
▇▇▇▇▇▇▇▇ ENERGY COMPANY
OMAR MINING COMPANY
PEERLESS EAGLE COAL CO.
PERFORMANCE COAL COMPANY
▇▇▇▇▇ ▇▇▇▇ MINING COMPANY
PILGRIM MINING COMPANY, INC.
POWER MOUNTAIN COAL COMPANY
PROGRESSIVE VENTURE CAPITAL CORP.
RAVEN RESOURCES, INC.
▇▇▇▇ SALES & PROCESSING, CO.
▇▇▇▇ SALES VENTURE CAPITAL CORP.
ROAD FORK DEVELOPMENT COMPANY, INC.
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COAL COMPANY
ROCKRIDGE COAL COMPANY
RUM CREEK COAL SALES, INC.
RUM CREEK SYNFUEL COMPANY
▇▇▇▇▇▇▇ FORK COAL COMPANY
SC COAL CORPORATION
SCARLET DEVELOPMENT COMPANY
▇▇▇▇▇▇▇-POCAHONTAS COAL CORPORATION
▇▇▇▇▇▇▇-POCAHONTAS MINING COMPANY
SHENANDOAH CAPITAL MANAGEMENT CORP.
▇▇▇▇▇▇ COAL COMPANY, INC.
SPARTAN MINING COMPANY
SPM CAPITAL MANAGEMENT CORP.
ST. ALBAN'S CAPITAL MANAGEMENT CORP.
▇▇▇▇▇▇▇ COAL COMPANY
STONE MINING COMPANY
SUN COAL COMPANY, INC.
SUPPORT MINING COMPANY
SYCAMORE FUELS, INC.
T.C.H. COAL CO.
TENNESSEE CONSOLIDATED COAL COMPANY
TENNESSEE ENERGY CORP.
THUNDER MINING COMPANY
TOWN CREEK COAL COMPANY
TRACE CREEK COAL COMPANY
VANTAGE MINING COMPANY
WHITE BUCK COAL COMPANY
▇▇▇▇▇▇▇▇ MOUNTAIN COAL COMPANY
WYOMAC COAL COMPANY, INC.
