EXECUTION COPY
CONTINENTAL RESOURCES, INC.
$150,000,000
10 1/4% Senior Subordinated Notes due 2008
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
July 24, 1998
CHASE SECURITIES INC.
270 Park Avenue, 4th floor
New York, New York 10017
Ladies and Gentlemen:
Continental Resources, Inc., an Oklahoma corporation (the
"COMPANY"), proposes to issue and sell, Continental Gas, Inc., an Oklahoma
corporation and Continental Crude Co., an Oklahoma corporation (the
"SUBSIDIARY GUARANTORS"), propose to guarantee and Chase Securities Inc. (the
"INITIAL PURCHASER"), proposes to buy, upon the terms and subject to the
conditions set forth in a purchase agreement dated July 21, 1998 (the
"PURCHASE AGREEMENT"), $150,000,000 aggregate principal amount of the
Company's 10 1/4% Senior Subordinated Notes due 2008 (the "NOTES"), which
Notes shall be unconditionally guaranteed on a senior subordinated basis (the
"SUBSIDIARY GUARANTEES" and, together with the Notes, the "SECURITIES"), by
the Subsidiary Guarantors. Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Purchase Agreement.
As an inducement to the Initial Purchaser to enter into the
Purchase Agreement, and in satisfaction of a condition to the obligations of
the Initial Purchaser to purchase the Securities under the Purchase
Agreement, each of the Company and the Subsidiary Guarantors agrees with the
Initial Purchaser, for the benefit of the holders (including the Initial
Purchaser) of the Transfer Restricted Securities (as defined herein), the
Exchange Securities (as defined herein) and the Private Exchange Securities
(as defined herein) (collectively, the "HOLDERS"), as follows:
1. REGISTERED EXCHANGE OFFER. The Company and the Subsidiary
Guarantors shall (i) prepare and, not later than 60 days following the date
of original issuance of the Securities (the "ISSUE DATE"), file with the
Securities and Exchange Commission (the "COMMISSION") a registration
statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate
form under the Securities Act of 1933, as amended (the "SECURITIES ACT") with
respect to a proposed offer to the Holders of the
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Transfer Restricted Securities (the "REGISTERED EXCHANGE OFFER") to issue and
deliver to such Holders, in exchange for the Transfer Restricted Securities,
a like aggregate principal amount of debt securities of the Company (the
"EXCHANGE NOTES") unconditionally guaranteed on a senior subordinated basis
by the Subsidiary Guarantors (the "EXCHANGE GUARANTEE" and, together with the
Exchange Notes, the "EXCHANGE SECURITIES") that are identical in all material
respects to the Transfer Restricted Securities, except for the transfer
restrictions relating to the Securities, (ii) use their respective reasonable
best efforts to cause the Exchange Offer Registration Statement to become
effective under the Securities Act no later than 150 days after the Issue
Date and the Registered Exchange Offer to be consummated no later than 180
days after the Issue Date and (iii) keep the Exchange Offer Registration
Statement effective for not less than 30 days (or longer, if required by
applicable law) after the date on which notice of the Registered Exchange
Offer is first mailed to the Holders (such period being called the "EXCHANGE
OFFER REGISTRATION PERIOD"). The Exchange Securities and the Private
Exchange Securities (as defined below, if any) will be issued under the
Indenture or an indenture (the "EXCHANGE SECURITIES INDENTURE") among the
Company, the Subsidiary Guarantors and the Trustee or such other bank or
trust company that is reasonably satisfactory to the Initial Purchaser, as
trustee (the "EXCHANGE SECURITIES TRUSTEE"), such indenture to be identical
in all material respects to the Indenture, except for the transfer
restrictions relating to the Transfer Restricted Securities. References
herein to Securities, Exchange Securities, Transfer Restricted Securities and
Private Exchange Securities (as defined herein) will be deemed to include the
guarantees relating thereto.
Upon the effectiveness of the Exchange Offer Registration Statement,
the Company and the Subsidiary Guarantors shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder electing to exchange Transfer Restricted Securities for
Exchange Securities (assuming that such Holder (a) is not an affiliate of the
Company or the Subsidiary Guarantors or an Exchanging Dealer (as defined herein)
not complying with the requirements of the next sentence, (b) is not the Initial
Purchaser with Securities that have the status of an unsold allotment in an
initial distribution, (c) acquires the Exchange Securities in the ordinary
course of such Holder's business and (d) has no arrangements or understandings
with any person to participate in the distribution of the Exchange Securities)
and to trade such Exchange Securities from and after their receipt without any
limitations or restrictions under the Securities Act and without material
restrictions under the securities laws of the several states of the United
States. The Company, the Subsidiary Guarantors, the Initial Purchaser and each
Exchanging Dealer acknowledge that, pursuant to current interpretations by the
Commission's staff of Section 5 of the Securities Act, (i) each Holder that is a
broker-dealer electing to exchange Securities, acquired for its own account as a
result of market-
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making activities or other trading activities, for Exchange Securities (an
"EXCHANGING DEALER"), is required to deliver a prospectus containing
substantially the information set forth in Annex A hereto on the cover, in
Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of
the Exchange Offer" section and in Annex C hereto in the "Plan of
Distribution" section of such prospectus in connection with a sale of any
such Exchange Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer and (ii) if the Initial Purchaser elects to sell
Private Exchange Securities acquired in exchange for Securities constituting
any portion of an unsold allotment, it is required to deliver a prospectus
containing the information required by Items 507 or 508 of Regulation S-K
under the Securities Act and the Exchange Act ("REGULATION S-K").
If, prior to the consummation of the Registered Exchange Offer, any
Holder holds any Securities acquired by it that have, or that are reasonably
likely to be determined to have, the status of an unsold allotment in the
initial distribution of the Securities, or any Holder is not entitled to
participate in the Registered Exchange Offer, the Company and the Subsidiary
Guarantors shall, upon the request of any such Holder, simultaneously with
the delivery of the Exchange Securities in the Registered Exchange Offer,
issue and deliver to any such Holder, in exchange for the Securities held by
such Holder (the "PRIVATE EXCHANGE"), a like aggregate principal amount of
debt securities of the Company (the "PRIVATE EXCHANGE NOTES") unconditionally
guaranteed on a senior subordinated basis by the Subsidiary Guarantors (the
"PRIVATE EXCHANGE GUARANTEES" and, together with the Private Exchange Notes,
the "PRIVATE EXCHANGE SECURITIES") that are identical in all material
respects to the Exchange Securities, except for the transfer restrictions
relating to such Private Exchange Securities. The Private Exchange
Securities will be issued under the same indenture as the Exchange
Securities, and the Company shall use its reasonable best efforts to cause
the Private Exchange Securities to bear the same CUSIP number as the Exchange
Securities.
In connection with the Registered Exchange Offer, the Company and
the Subsidiary Guarantors shall:
(a) mail to each Holder a copy of the prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days
(or longer, if required by applicable law) after the date on which notice
of the Registered Exchange Offer is first mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York;
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(d) permit Holders to withdraw tendered Securities at any time prior
to the close of business, New York City time, on the last business day on
which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are
applicable to the Registered Exchange Offer.
As soon as practicable after the close of the Registered Exchange
Offer and any Private Exchange, as the case may be, the Company and the
Subsidiary Guarantors shall:
(a) accept for exchange all Securities tendered and not validly
withdrawn pursuant to the Registered Exchange Offer and the Private
Exchange;
(b) deliver to the Trustee for cancellation all Securities so
accepted for exchange; and
(c) cause the Trustee or the Exchange Securities Trustee, as the case
may be, promptly to authenticate and deliver to each Holder, Exchange
Securities or Private Exchange Securities, as the case may be, equal in
principal amount to the Securities of such Holder so accepted for exchange.
The Company and the Subsidiary Guarantors shall use their
respective reasonable best efforts to keep the Exchange Offer Registration
Statement effective and to amend and supplement the prospectus contained
therein in order to permit such prospectus to be used by all persons subject
to the prospectus delivery requirements of the Securities Act for such period
of time as such persons must comply with such requirements in order to resell
the Exchange Securities; PROVIDED that the Company and the Subsidiary
Guarantors shall make such prospectus and any amendment or supplement thereto
available to any broker-dealer for use in connection with any resale of any
Exchange Securities for a period of not less than 90 days after the
consummation of the Registered Exchange Offer.
The Indenture or the Exchange Securities Indenture, as the case may
be, shall provide that the Transfer Restricted Securities, the Exchange
Securities and the Private Exchange Securities shall vote and consent
together on all matters as one class and that none of the Transfer Restricted
Securities or the Exchange Securities will have the right to vote or consent
as a separate class on any matter.
Interest on each Exchange Security and Private Exchange Security
issued pursuant to the Registered Exchange Offer and in the Private Exchange
will accrue from the last interest payment date on which interest was paid on
the Securities surrendered in exchange therefor or, if no interest has been
paid on the Securities, from the Issue Date.
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Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company and the Subsidiary Guarantors that at
the time of the consummation of the Registered Exchange Offer (i) any
Exchange Securities to be received pursuant to the Registered Exchange Offer
are being acquired in the ordinary course of the business of the person
receiving such Exchange Securities, whether or not such person is the Holder,
(ii) neither the Holder nor any such other person has any arrangement or
understanding with any person to participate in the distribution of the
Securities or the Exchange Securities within the meaning of the Securities
Act, (iii) neither the Holder nor any such other person is an affiliate of
the Company or of the Subsidiary Guarantors or, if it is such an affiliate,
such Holder or such other person will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent
applicable, (iv) if the Holder is not a broker-dealer, it is not engaged in,
and does not intend to engage in, the distribution of the Exchange Securities
and (v) if such person is an Exchanging Dealer, such person shall comply with
the prospectus delivery requirements of the Securities Act.
Notwithstanding any other provisions hereof, the Company and the
Subsidiary Guarantors will ensure that (i) any Exchange Offer Registration
Statement and any amendment thereto and any prospectus forming part thereof
and any supplement thereto complies in all material respects with the
Securities Act and the rules and regulations of the Commission thereunder,
(ii) any Exchange Offer Registration Statement and any amendment thereto does
not, when it becomes effective, 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 not misleading and (iii) any
prospectus forming part of any Exchange Offer Registration Statement, and any
supplement to such prospectus, does not, as of the consummation of the
Registered Exchange Offer, include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
2. SHELF REGISTRATION. If (i) because of any change in law or
applicable interpretations thereof by the Commission's staff the Company and
the Subsidiary Guarantors are not permitted to effect the Registered Exchange
Offer as contemplated by Section 1 hereof, or (ii) any Securities validly
tendered pursuant to the Registered Exchange Offer are not exchanged for
Exchange Securities within 150 days after the Issue Date, or (iii) the
Initial Purchaser so requests with respect to Securities or Private Exchange
Securities not eligible to be exchanged for Exchange Securities in the
Registered Exchange Offer and held by it following the consummation of the
Registered Exchange Offer, or (iv) any applicable law or interpretations do
not permit any Holder to participate in the Registered Exchange Offer, or (v)
any Holder that participates in the Registered Exchange Offer does not
receive freely transferable Exchange Securities in exchange for tendered
Securities (the obligation to
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comply with a prospectus delivery requirement being understood not to
constitute a restriction on transferability), then the following provisions
shall apply:
(a) The Company and the Subsidiary Guarantors shall use their
respective reasonable best efforts to file as promptly as practicable (but in
no event more than 45 days after so required or requested pursuant to this
Section 2) with the Commission, and thereafter shall use their respective
reasonable best efforts to cause to be declared effective, a shelf
registration statement on an appropriate form under the Securities Act
relating to the offer and sale of the Transfer Restricted Securities by the
Holders thereof from time to time in accordance with the methods of
distribution set forth in such registration statement (hereafter, a "SHELF
REGISTRATION STATEMENT" and, together with any Exchange Offer Registration
Statement, a "REGISTRATION STATEMENT"); PROVIDED, HOWEVER, that no Holder of
Transfer Restricted Securities (other than the Initial Purchaser) shall be
entitled to have Transfer Restricted Securities held by it covered by such
Shelf Registration Statement unless such Holder agrees in writing to be bound
by all the provisions of this Agreement applicable to such Holder.
(b) The Company and the Subsidiary Guarantors shall use their
respective reasonable best efforts to keep the Shelf Registration Statement
continuously effective in order to permit the prospectus forming part thereof
to be used by Holders of Transfer Restricted Securities for a period ending
on the earlier of (i) two years from the Issue Date or such shorter period
that will terminate when all the Transfer Restricted Securities covered by
the Shelf Registration Statement have been sold pursuant thereto and (ii) the
date all of the Transfer Restricted Securities become eligible for resale
without volume restrictions pursuant to Rule 144 under the Securities Act (in
any such case, such period being called the "SHELF REGISTRATION PERIOD").
The Company and the Subsidiary Guarantors shall be deemed not to have used
their respective reasonable best efforts to keep the Shelf Registration
Statement effective during the requisite period if they voluntarily take any
action that would result in Holders of Transfer Restricted Securities covered
thereby not being able to offer and sell such Transfer Restricted Securities
during that period, unless such action is required by applicable law;
PROVIDED HOWEVER, that the foregoing shall not apply to actions taken by the
Company and the Subsidiary Guarantors in good faith and for valid business
reasons (not including avoidance of their obligations hereunder), including,
without limitation, the acquisition or divestiture of assets, so long as the
Company and the Subsidiary Guarantors within 30 days thereafter comply with
the requirements of Section 4(j) hereof. Any such period during which the
Company and the Subsidiary Guarantors fail to keep the Shelf Registration
Statement effective and usable for offers and sales of Transfer Restricted
Securities is referred to as a "Suspension Period." A Suspension Period
shall commence on and include the date that the Company and the Subsidiary
Guarantors give notice that the Shelf Registration Statement is no longer
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effective or the prospectus included therein is no longer usable for offers
and sales of Transfer Restricted Securities and shall end on the date when
each Holder of Transfer Restricted Securities covered by such registration
statement either receives the copies of the supplemented or amended
prospectus contemplated by Section 4(j) hereof or is advised in writing by
the Company and the Subsidiary Guarantors that use of the prospectus may be
resumed. If one or more Suspension Periods occur, the two-year time period
referenced above shall be extended by the aggregate of the number of days
included in each such Suspension Period.
(c) Notwithstanding any other provisions hereof, the Company and
the Subsidiary Guarantors will ensure that (i) any Shelf Registration
Statement and any amendment thereto and any prospectus forming part thereof
and any supplement thereto complies in all material respects with the
Securities Act and the rules and regulations of the Commission thereunder,
(ii) any Shelf Registration Statement and any amendment thereto (in either
case, other than with respect to information included therein in reliance
upon or in conformity with written information furnished to the Company and
the Subsidiary Guarantors by or on behalf of any Holder specifically for use
therein (the "HOLDERS' INFORMATION")) does 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 not misleading and (iii)
any prospectus forming part of any Shelf Registration Statement, and any
supplement to such prospectus (in either case, other than with respect to
Holders' Information), does not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
3. LIQUIDATED DAMAGES. (a) The parties hereto agree that the
Holders of Transfer Restricted Securities will suffer damages if the Company
or the Subsidiary Guarantors fail to fulfill their obligations under Section
1 or Section 2, as applicable, and that it would not be feasible to ascertain
the extent of such damages. Accordingly, if (i) the applicable Registration
Statement is not filed with the Commission on or prior to 60 days after the
Issue Date, (ii) the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the case may be, is not declared effective within
150 days after the Issue Date, (iii) the Registered Exchange Offer is not
consummated on or prior to 180 days after the Issue Date, or (iv) the Shelf
Registration Statement is filed and declared effective within 150 days after
the Issue Date but shall thereafter cease to be effective (at any time that
the Company and the Subsidiary Guarantors are obligated to maintain the
effectiveness thereof) without being succeeded within 45 days by an
additional Registration Statement filed and declared effective (each such
event referred to in clauses (i) through (iv), a "REGISTRATION DEFAULT"), the
Company will be obligated to pay liquidated damages to each Holder of
Transfer Restricted Securities, during the period of one or more such
Registration Defaults, in an
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amount equal to $0.192 per week per $1,000 principal amount of Transfer
Restricted Securities held by such Holder until (i) the applicable
Registration Statement is filed, (ii) the Exchange Offer Registration
Statement is declared effective and the Registered Exchange Offer is
consummated, (iii) the Shelf Registration Statement is declared effective or
(iv) the Shelf Registration Statement again becomes effective, as the case
may be. Following the cure of all Registration Defaults, the accrual of
liquidated damages will cease. As used herein, the term "TRANSFER RESTRICTED
SECURITIES" means (i) each Security until the date on which such Security has
been exchanged for a freely transferable Exchange Security (the obligation to
comply with a prospectus delivery requirement being understood not to
constitute a restriction on transferability) in the Registered Exchange
Offer, (ii) each Security or Private Exchange Security until the date on
which it has been effectively registered under the Securities Act and
disposed of in accordance with the Shelf Registration Statement or (iii) each
Security or Private Exchange Security until the date on which it is
distributed to the public pursuant to Rule 144 under the Securities Act or is
saleable pursuant to Rule 144(k) under the Securities Act. Notwithstanding
anything to the contrary in this Section 3(a), the Company shall not be
required to pay liquidated damages to a Holder of Transfer Restricted
Securities if such Holder failed to comply with its obligations to make the
representations set forth in the penultimate paragraph of Section 1 or failed
to provide the information required to be provided by it, if any, pursuant to
Section 4(n).
(b) The Company shall notify the Trustee and the Paying Agent
under the Indenture immediately upon the happening of each and every
Registration Default. The Company shall pay the liquidated damages due on
the Transfer Restricted Securities by depositing with the Paying Agent (which
may not be the Company for these purposes), in trust, for the benefit of the
Holders thereof, prior to 10:00 a.m., New York City time, on the next
interest payment date specified by the Indenture and the Securities, sums
sufficient to pay the liquidated damages then due. The liquidated damages
due shall be payable on each interest payment date specified by the Indenture
and the Securities to the record holder of the Transfer Restricted Securities
entitled to receive the interest payment to be made on such date. Each
obligation to pay liquidated damages shall be deemed to accrue from and
including the date of the applicable Registration Default.
(c) The parties hereto agree that the liquidated damages provided
for in this Section 3 constitute a reasonable estimate of and are intended to
constitute the sole damages that will be suffered by Holders of Transfer
Restricted Securities by reason of the failure of (i) the Shelf Registration
Statement or the Exchange Offer Registration Statement to be filed, (ii) the
Shelf Registration Statement to remain effective or (iii) the Exchange Offer
Registration Statement to be declared effective and the Registered Exchange
Offer to be consummated, in each
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case, to the extent required by this Agreement.
4. REGISTRATION PROCEDURES. In connection with any Registration
Statement, the following provisions shall apply:
(a) The Company and the Subsidiary Guarantors shall (i) furnish to
the Initial Purchaser, prior to the filing thereof with the Commission, a
copy of the Registration Statement and each amendment thereof and each
supplement, if any, to the prospectus included therein and shall use its
reasonable best efforts to reflect in each such document, when so filed with
the Commission, such comments as the Initial Purchaser may reasonably
propose; (ii) include the information set forth in Annex A hereto on the
cover, in Annex B hereto in the "Exchange Offer Procedures" section and the
"Purpose of the Exchange Offer" section and in Annex C hereto in the "Plan of
Distribution" section of the prospectus forming a part of the Exchange Offer
Registration Statement, and include the information set forth in Annex D
hereto in the Letter of Transmittal delivered pursuant to the Registered
Exchange Offer; and (iii) if requested by the Initial Purchaser, include the
information required by Items 507 or 508 of Regulation S-K, as applicable, in
the prospectus forming a part of the Exchange Offer Registration Statement.
(b) Each of the Company and the Subsidiary Guarantors shall advise
the Initial Purchaser, each Exchanging Dealer and the Holders (if applicable)
and, if requested by any such person, confirm such advice in writing (which
advice pursuant to clauses (ii)-(v) hereof shall be accompanied by an
instruction to suspend the use of the prospectus until the requisite changes
have been made):
(i) when any Registration Statement and any amendment thereto has
been filed with the Commission and when such Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements
to any Registration Statement or the prospectus included therein or for
additional information;
(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of any Registration Statement or the initiation of any
proceedings for that purpose;
(iv) of the receipt by the Company or the Subsidiary Guarantors of any
notification with respect to the suspension of the qualification of the
Securities or the Exchange Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the making of any
changes in any Registration Statement or the
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prospectus included therein in order that the statements therein (in
light of the circumstances in which made, in the case of the prospectus)
are not misleading and do not omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading.
(c) The Company and the Subsidiary Guarantors will make every
reasonable effort to obtain the withdrawal at the earliest possible time of
any order suspending the effectiveness of any Registration Statement.
(d) The Company and the Subsidiary Guarantors will furnish to each
Holder of Transfer Restricted Securities included within the coverage of any
Shelf Registration Statement, upon request by such Holder, without charge, at
least one conformed copy of such Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules and, if any such Holder so requests in writing, all exhibits
thereto (including those, if any, incorporated by reference).
(e) The Company and the Subsidiary Guarantors will, during the
Shelf Registration Period, promptly deliver to each Holder of Transfer
Restricted Securities included within the coverage of any Shelf Registration
Statement, upon request by such Holder, without charge, as many copies of the
prospectus (including each preliminary prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder
may reasonably request; and the Company and the Subsidiary Guarantors consent
to the use of such prospectus or any amendment or supplement thereto by each
of the selling Holders of Transfer Restricted Securities in connection with
the offer and sale of the Transfer Restricted Securities covered by such
prospectus or any amendment or supplement thereto.
(f) The Company and the Subsidiary Guarantors will furnish to the
Initial Purchaser and each Exchanging Dealer, and to any other Holder who so
requests, without charge, at least one conformed copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules and, if the Initial Purchaser or
Exchanging Dealer or any such Holder so requests in writing, all exhibits
thereto (including those, if any, incorporated by reference).
(g) The Company and the Subsidiary Guarantors will, during the
Exchange Offer Registration Period or the Shelf Registration Period, as
applicable, promptly deliver to the Initial Purchaser, each Exchanging Dealer
and any such other persons that are required to deliver a prospectus
following the Registered Exchange Offer, without charge, as many copies of
the final prospectus included in the Exchange Offer Registration Statement or
the Shelf Registration Statement and any amendment or supplement thereto as
the Initial Purchaser, Exchanging Dealer or other persons may reasonably
request; and the Company and the Subsidiary Guarantors consent to the use of
such prospectus or
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any amendment or supplement thereto by the Initial Purchaser, Exchanging Dealer
or other persons, as applicable, as aforesaid.
(h) Prior to the effective date of any Registration Statement, the
Company and the Subsidiary Guarantors will use their respective reasonable best
efforts to register or qualify, or cooperate with the Holders of Securities,
Exchange Securities or Private Exchange Securities included therein and their
respective counsel in connection with the registration or qualification of, such
Securities, Exchange Securities or Private Exchange Securities for offer and
sale under the securities or blue sky laws of such jurisdictions as any such
Holder reasonably requests in writing and do any and all other acts or things
necessary or advisable to enable the offer and sale in such jurisdictions of the
Securities, Exchange Securities or Private Exchange Securities covered by such
Registration Statement; PROVIDED that the Company and the Subsidiary Guarantors
will not be required to qualify generally to do business in any jurisdiction
where they are not then so qualified or to take any action which would subject
them to general service of process or to taxation in any such jurisdiction where
it is not then so subject.
(i) The Company and the Subsidiary Guarantors will cooperate with the
Holders of Securities, Exchange Securities or Private Exchange Securities to
facilitate the timely preparation and delivery of appropriate certificates
representing Securities, Exchange Securities or Private Exchange Securities to
be sold pursuant to any Registration Statement free of any restrictive legends
and in such authorized denominations and registered in such names as the Holders
thereof may request in writing prior to sales of Securities, Exchange Securities
or Private Exchange Securities pursuant to such Registration Statement.
(j) If (i) any event contemplated by Section 4(b)(ii) through (v)
occurs during the period for which the Company and the Subsidiary Guarantors are
required to maintain an effective Registration Statement or (ii) any Suspension
Period remains in effect more than 30 days after the occurrence thereof, the
Company and the Subsidiary Guarantors will promptly prepare and file with the
Commission a post-effective amendment to the Registration Statement or a
supplement to the related prospectus or file any other required document so
that, as thereafter delivered to purchasers of the Securities, Exchange
Securities or Private Exchange Securities from a Holder, the prospectus will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(k) Not later than the effective date of the applicable Registration
Statement, the Company and the Subsidiary Guarantors will provide a CUSIP number
for the Securities, Exchange Securities and Private Exchange Securities, as the
case may be, and provide the applicable trustee with certificates for
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the Securities, Exchange Securities or Private Exchange Securities, as the
case may be, in a form eligible for deposit with The Depository Trust Company.
(l) The Company and the Subsidiary Guarantors will comply with all
applicable rules and regulations of the Commission and will make generally
available to their security holders as soon as practicable after the effective
date of the applicable Registration Statement an earning statement satisfying
the provisions of Section 11(a) of the Securities Act; PROVIDED that in no event
shall such earning statement be made generally available to their security
holders later than 45 days after the end of a 12-month period (or 90 days, if
such period is a fiscal year) beginning with the first month of the Company's or
the Subsidiary Guarantors' first fiscal quarter commencing after the effective
date of the applicable Registration Statement, which statement shall cover such
12-month period.
(m) The Company and the Subsidiary Guarantors will cause the
Indenture or the Exchange Securities Indenture, as the case may be, to be
qualified under the Trust Indenture Act as required by applicable law in a
timely manner.
(n) The Company and the Subsidiary Guarantors may require each Holder
of Transfer Restricted Securities to be registered pursuant to any Shelf
Registration Statement to furnish to the Company and the Subsidiary Guarantors
such information concerning the Holder and the distribution of such Transfer
Restricted Securities as the Company and the Subsidiary Guarantors may from time
to time reasonably require for inclusion in such Shelf Registration Statement,
and the Company and the Subsidiary Guarantors may exclude from such registration
the Transfer Restricted Securities of any Holder that fails to furnish such
information within a reasonable time after receiving such request.
(o) In the case of a Shelf Registration Statement, each Holder of
Transfer Restricted Securities to be registered pursuant thereto agrees by
acquisition of such Transfer Restricted Securities that, upon receipt of any
notice from the Company and the Subsidiary Guarantors pursuant to Section
4(b)(ii) through (v), such Holder will discontinue disposition of such Transfer
Restricted Securities until such Holder's receipt of copies of the supplemental
or amended prospectus contemplated by Section 4(j) or until advised in writing
(the "ADVICE") by the Company and the Subsidiary Guarantors that the use of the
applicable prospectus may be resumed. If the Company and the Subsidiary
Guarantors shall give any notice under Section 4(b)(ii) through (v) during the
period that the Company and the Subsidiary Guarantors are required to maintain
an effective Registration Statement (the "EFFECTIVENESS PERIOD"), such
Effectiveness Period shall be extended by the number of days during such period
from and including the date of the giving of such notice to and including the
date when each seller of Transfer Restricted Securities covered by such
Registration
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Statement shall have received (x) the copies of the supplemental or amended
prospectus contemplated by Section 4(j) (if an amended or supplemental
prospectus is required) or (y) the Advice (if no amended or supplemental
prospectus is required).
(p) In the case of a Shelf Registration Statement, the Company and
the Subsidiary Guarantors shall enter into such customary agreements (including,
if requested, an underwriting agreement in customary form) and take all such
other action, if any, as Holders of a majority in aggregate principal amount of
the Securities, Exchange Securities and Private Exchange Securities being sold
or the managing underwriters (if any) shall reasonably request in order to
facilitate any disposition of such Securities, Exchange Securities or Private
Exchange Securities pursuant to such Shelf Registration Statement.
(q) In the case of a Shelf Registration Statement, the Company and
the Subsidiary Guarantors shall (i) make reasonably available for inspection by
a representative of, and Special Counsel (as defined herein) acting for, Holders
of a majority in aggregate principal amount of the Securities, Exchange
Securities and Private Exchange Securities being sold and any underwriter
participating in any disposition of Securities, Exchange Securities or Private
Exchange Securities pursuant to such Shelf Registration Statement, at the
offices where normally kept, during reasonable business hours, all relevant
financial and other records, pertinent corporate documents and properties of the
Company and its subsidiaries and the Subsidiary Guarantors and (ii) use their
respective reasonable best efforts to have their officers, directors, employees,
accountants and counsel supply all relevant information reasonably requested by
such representative, Special Counsel or any such underwriter in connection with
such Shelf Registration Statement; PROVIDED, HOWEVER, that such persons shall
first agree in writing with the Company and the Subsidiary Guarantors that any
information that is in good faith designated by the Company and the Subsidiary
Guarantors in writing as confidential at the time of delivery of such
information shall be kept confidential by such persons, unless (i) disclosure of
such information is required by court or administrative order or is necessary to
respond to inquiries of regulatory authorities, (ii) disclosure of such
information is required by law (including any disclosure requirements pursuant
to federal securities laws in connection with the filing of such Shelf
Registration Statement or the use of any Prospectus), (iii) such information
becomes generally available to the public other than as a result of a disclosure
or failure to safeguard such information by such person or (iv) such information
becomes available to such person from a source other than the Company and its
subsidiaries and the Subsidiary Guarantors and such source is not bound by a
confidentiality agreement; and PROVIDED FURTHER each such person will also be
required to further agree in writing that (i) it will, upon learning that
disclosure of such information is sought in a court of competent jurisdiction,
if legally permitted, give notice to the Company and the Subsidiary Guarantors
and allow the Company and the Subsidiary Guarantors at
14
their expense to undertake appropriate action to prevent disclosure of such
information deemed confidential and (ii) it will not use such information in
violation of any securities laws.
(r) In the case of a Shelf Registration Statement, the Company and
the Subsidiary Guarantors shall, if requested by Holders of a majority in
aggregate principal amount of the Securities, Exchange Securities and Private
Exchange Securities being sold, their Special Counsel or the managing
underwriters (if any) in connection with such Shelf Registration Statement, use
their respective reasonable best efforts to cause (i) their counsel to deliver
an opinion relating to the Shelf Registration Statement and the Securities,
Exchange Securities or Private Exchange Securities, as applicable, in customary
form, (ii) their officers to execute and deliver all customary documents and
certificates requested by such Holders of a majority in aggregate principal
amount of the Securities, Exchange Securities and Private Exchange Securities
being sold, their Special Counsel or the managing underwriters (if any) and
(iii) their respective independent public accountants to provide a comfort
letter or letters in customary form, subject to receipt of appropriate
documentation as contemplated, and only if permitted, by Statement of Auditing
Standards No. 72.
5. REGISTRATION EXPENSES. The Company and the Subsidiary Guarantors
will bear all expenses incurred in connection with the performance of their
respective obligations under Sections 1, 2, 3 and 4 and the Company and the
Subsidiary Guarantors will reimburse the Initial Purchaser and the Holders for
the reasonable fees and disbursements of one firm of attorneys or counsel,
reasonably satisfactory to the Company and the Subsidiary Guarantors (in
addition to not more than one local counsel) chosen by the Holders of a majority
in aggregate principal amount of the Securities and the Exchange Securities to
be sold pursuant to each Registration Statement (the "SPECIAL COUNSEL") acting
for the Initial Purchaser or Holders in connection therewith.
6. INDEMNIFICATION. (a) In the event of a Shelf Registration
Statement or in connection with any prospectus delivery pursuant to an Exchange
Offer Registration Statement by the Initial Purchaser or an Exchanging Dealer,
as applicable, the Company and the Subsidiary Guarantors shall, jointly and
severally, indemnify and hold harmless each Holder (including, without
limitation, the Initial Purchaser or any such Exchanging Dealer), its
affiliates, their respective officers, directors, employees, representatives and
agents, and each person, if any, who controls such Holder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively
referred to for purposes of this Section 6 and Section 7 as a Holder) from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, without limitation, any loss, claim, damage,
liability or action relating to purchases and sales of Securities, Exchange
15
Securities or Private Exchange Securities), to which that Holder may become
subject, whether commenced or threatened, under the Securities Act, the Exchange
Act, any other federal or state statutory law or regulation, at common law or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in any such Registration Statement or any prospectus
forming part thereof or in any amendment or supplement thereto or (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, and shall
reimburse each Holder promptly upon demand for any legal or other expenses
reasonably incurred by that Holder in connection with investigating or defending
or preparing to defend against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action as such
expenses are incurred; PROVIDED, HOWEVER, that the Company and the Subsidiary
Guarantors shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon, an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with any Holders'
Information; and PROVIDED, FURTHER, that with respect to any such untrue
statement in or omission from any related preliminary prospectus, the indemnity
agreement contained in this Section 6(a) shall not inure to the benefit of any
Holder from whom the person asserting any such loss, claim, damage, liability or
action received Securities, Exchange Securities or Private Exchange Securities
to the extent that such loss, claim, damage, liability or action of or with
respect to such Holder results from the fact that both (A) a copy of the final
prospectus was not sent or given to such person at or prior to the written
confirmation of the sale of such Securities, Exchange Securities or Private
Exchange Securities to such person and (B) the untrue statement in or omission
from the related preliminary prospectus was corrected in the final prospectus
unless, in either case, such failure to deliver the final prospectus was a
result of non-compliance by the Company or the Subsidiary Guarantors with
Section 4(d), 4(e), 4(f) or 4(g).
(b) In the event of a Shelf Registration Statement, each Holder,
severally and not jointly, shall indemnify and hold harmless the Company, the
Subsidiary Guarantors, their affiliates, their respective officers, directors,
employees, representatives and agents, and each person, if any, who controls the
Company and the Subsidiary Guarantors within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act (collectively referred to for
purposes of this Section 6(b) and Section 7 as the Company and the Subsidiary
Guarantors), from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company and the
Subsidiary Guarantors may become subject, whether commenced or threatened, under
the Securities Act, the Exchange Act, any other federal or state statutory law
or regulation, at
16
common law or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any such Registration
Statement or any prospectus forming part thereof or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state therein
a material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, but in each case, only to the extent that the
untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with any Holders' Information,
and shall reimburse the Company and the Subsidiary Guarantors for any legal
or other expenses reasonably incurred by the Company and the Subsidiary
Guarantors in connection with investigating or defending or preparing to
defend against or appearing as a third party witness in connection with any
such loss, claim, damage, liability or action as such expenses are incurred;
PROVIDED, HOWEVER, that no such Holder shall be liable for any indemnity
claims hereunder in excess of the amount of net proceeds received by such
Holder from the sale of Securities, Exchange Securities or Private Exchange
Securities pursuant to such Shelf Registration Statement.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 6(a) or 6(b), notify the indemnifying
party in writing of the claim or the commencement of that action; PROVIDED,
HOWEVER, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 6 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and PROVIDED, FURTHER, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 6. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than the reasonable costs of investigation; PROVIDED, HOWEVER,
that an indemnified party shall have the right to employ its own counsel in any
such action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the
17
indemnified party has reasonably concluded (based upon advice of counsel to
the indemnified party) that there may be legal defenses to it or to other
indemnified parties that are different from or in addition to those available
to the indemnifying party, (3) a conflict or potential conflict exists (based
upon advice of counsel to the indemnified party) between the indemnified
party and the indemnifying party (in which case the indemnifying party will
not have the right to direct the defense of such action on behalf of the
indemnified party) or (4) the indemnifying party has not in fact employed
counsel reasonably satisfactory to the indemnified party to assume the
defense of such action within a reasonable time after receiving notice of the
commencement of the action, in each of which cases the reasonable fees,
disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying party
or parties shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of attorneys
(in addition to any local counsel) at any one time for all such indemnified
party or parties. Each indemnified party, as a condition of the indemnity
agreements contained in Sections 6(a) and 6(b), shall use all reasonable
efforts to cooperate with the indemnifying party in the defense of any such
action or claim. No indemnifying party shall be liable for any settlement of
any such action effected without its written consent (which consent shall not
be unreasonably withheld), but if settled with its written consent or if there
be a final judgment for the plaintiff in any such action, the indemnifying
party agrees to indemnify and hold harmless any indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld), 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 (i)
does not contain an admission of fault or wrongdoing and (ii) includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
7. CONTRIBUTION. If the indemnification provided for in Section 6
is unavailable or insufficient to hold harmless an indemnified party under
Section 6(a) or 6(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company and the Subsidiary
Guarantors from the offering and sale of the Securities, on the one hand, and a
Holder with respect to the sale by such Holder of Securities, Exchange
Securities or Private Exchange Securities, on the other, or (ii) if the
allocation provided by clause (i) above is not
18
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 the Company and the Subsidiary Guarantors on the one hand
and such Holder on the other with respect to the statements or omissions that
resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Subsidiary Guarantors on
the one hand and a Holder on the other with respect to such offering and such
sale shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Securities (before deducting expenses) received by
or on behalf of the Company and the Subsidiary Guarantors as set forth in the
table on the cover of the Offering Memorandum, on the one hand, bear to the
total proceeds received by such Holder with respect to its sale of
Securities, Exchange Securities or Private Exchange Securities, on the other.
The relative fault 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 the Company
and the Subsidiary Guarantors or information supplied by the Company and the
Subsidiary Guarantors on the one hand or to any Holders' Information on the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The parties hereto agree that it would not be just and equitable
if contributions pursuant to this Section 7 were to be determined by PRO RATA
allocation (even if the Holders were treated as one entity for such purpose)
or by any other method of allocation that does not take into account the
equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 7 shall be
deemed to include, for purposes of this Section 7, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, an indemnifying party that is a Holder of
Securities, Exchange Securities or Private Exchange Securities shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Securities, Exchange Securities or Private Exchange
Securities sold by such indemnifying party to any purchaser exceeds the
amount of any damages which such indemnifying party has otherwise paid or
become liable to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Holders' obligations to contribute as
provided in this Section 7 are several in proportion to their respective
obligations and not joint.
8. RULES 144 AND 144A. The Company and the Subsidiary Guarantors
shall use their respective reasonable best
19
efforts to file the reports required to be filed by them under the Securities
Act and the Exchange Act in a timely manner and, if at any time the Company
and the Subsidiary Guarantors are not required to file such reports, they
will, upon the written request of any Holder of Transfer Restricted
Securities, make publicly available other information so long as necessary to
permit sales of such Holder's securities pursuant to Rules 144 and 144A. The
Company and the Subsidiary Guarantors covenant that they will take such
further action as any Holder of Transfer Restricted Securities may reasonably
request, all to the extent required from time to time to enable such Holder
to sell Transfer Restricted Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rules 144
and 144A (including, without limitation, the requirements of Rule
144A(d)(4)). Upon the written request of any Holder of Transfer Restricted
Securities, the Company and the Subsidiary Guarantors shall deliver to such
Holder a written statement as to whether it has complied with such
requirements. Notwithstanding the foregoing, nothing in this Section 8 shall
be deemed to require the Company and the Subsidiary Guarantors to register
any of their securities pursuant to the Exchange Act.
9. UNDERWRITTEN REGISTRATIONS. If any of the Transfer Restricted
Securities 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 administer the offering will be selected by the Holders of
a majority in aggregate principal amount of such Transfer Restricted Securities
included in such offering, subject to the consent of the Company (which shall
not be unreasonably withheld or delayed), and such Holders shall be responsible
for all underwriting commissions and discounts in connection therewith.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
10. MISCELLANEOUS. (a) 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, unless the
Company has obtained the written consent of Holders of a majority in aggregate
principal amount of the Securities, Exchange Securities and Private Exchange
Securities, taken as a single class. 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 whose Securities, Exchange
Securities or Private Exchange Securities are being sold pursuant to a
Registration Statement and that does not directly or
20
indirectly affect the rights of other Holders may be given by Holders of a
majority in aggregate principal amount of the Securities, Exchange Securities
and the Private Exchange Securities being sold by such Holders pursuant to
such Registration Statement.
(b) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telecopier or air courier guaranteeing next-day delivery:
(1) if to a Holder, at the most current address given by such Holder
to the Company in accordance with the provisions of this Section 10(b),
which address initially is, with respect to each Holder, the address of
such Holder maintained by the Registrar under the Indenture, with a copy in
like manner to Chase Securities Inc.;
(2) if to the Initial Purchaser, initially at its address set forth
in the Purchase Agreement; and
(3) if to the Company or the Subsidiary Guarantors, initially at the
address of the Company and the Subsidiary Guarantors set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one business day after
being delivered to a next-day air courier; five business days after being
deposited in the mail; and when receipt is acknowledged by the recipient's
telecopier machine, if sent by telecopier.
The Initial Purchaser, the Company and the Subsidiary Guarantors, by
notice to the other, may designate additional or different addresses or telecopy
numbers for subsequent notices or communications.
(c) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent by
the Company or the Subsidiary Guarantors thereto, subsequent Holders of
Securities, Exchange Securities or Private Exchange Securities.
(d) COUNTERPARTS. This Agreement may be executed in any number of
counterparts (which may be delivered in original form or by telecopier) 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.
(e) DEFINITION OF TERMS. For purposes of this Agreement, (a) the
term "business day" means any day on which the New York Stock Exchange, Inc. is
open for trading, (b) the term "subsidiary" has the meaning set forth in
Rule 405 under the
21
Securities Act and (c) except where otherwise expressly provided, the term
"affiliate" has the meaning set forth in Rule 405 under the Securities Act.
(f) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(h) REMEDIES. In the event of a breach by the Company, and/or the
Subsidiary Guarantors, on the one hand, or by any Holder of Transfer Restricted
Securities, on the other hand, of any of their obligations under this Agreement,
each Holder of Transfer Restricted Securities or the Company or the Subsidiary
Guarantors, as the case may be, in addition to being entitled to exercise all
rights granted by law, including recovery of damages (other than the recovery of
damages for a breach by the Company and/or the Subsidiary Guarantors of their
obligations under Sections 1 or 2 hereof for which liquidated damages have been
paid pursuant to Section 3 hereof), will be entitled to specific performance of
its rights under this Agreement. The Company, the Subsidiary Guarantors and
each Holder agree that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agree that, in the event of any action for specific
performance in respect of such breach, it shall waive the defense that a remedy
at law would be adequate.
(i) NO INCONSISTENT AGREEMENTS. The Company and each of the
Subsidiary Guarantors represents, warrants and agrees that (i) it has not
entered into, shall not, on or after the date of this Agreement, enter into any
agreement that is inconsistent with the rights granted to the Holders of
Transfer Restricted Securities in this Agreement or otherwise conflicts with the
provisions hereof, (ii) it has not previously entered into any agreement which
remains in effect granting any registration rights with respect to any of its
debt securities to any person and (iii) without limiting the generality of the
foregoing, without the written consent of the Holders of a majority in aggregate
principal amount of the then outstanding Transfer Restricted Securities, it
shall not grant to any person the right to request it to register any of its
securities under the Securities Act unless the rights so granted are not in
conflict or inconsistent with the provisions of this Agreement.
(j) NO PIGGYBACK ON REGISTRATIONS. Neither the Company, the
Subsidiary Guarantors nor any of their security holders (other than the Holders
of Transfer Restricted Securities in such capacity) shall have the right to
include any securities of the Company and the Subsidiary Guarantors in any Shelf
Registration or Registered Exchange Offer other than Transfer Restricted
Securities.
22
(k) SEVERABILITY. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law. 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.
(l) JOINT AND SEVERAL LIABILITY. Each Subsidiary Guarantor, by its
execution and delivery of a counterpart to this Agreement, agrees that it shall
be jointly and severally liable for all obligations and liabilities of the
Company hereunder.
23
Please confirm that the foregoing correctly sets forth the agreement
among the Company, each Subsidiary Guarantor and the Initial Purchaser.
Very truly yours,
CONTINENTAL RESOURCES, INC.
By /s/ RANDY MOEDER
Name: Randy Moeder
Title: Senior Vice President,
General Counsel and Secretary
CONTINENTAL GAS, INC.
By /s/ RANDY MOEDER
Name: Randy Moeder
Title: President
CONTINENTAL CRUDE CO.
By /s/ JEFF WHITE
Name: Jeff White
Title: President
Accepted:
CHASE SECURITIES INC.
By /s/ L.S. Landry
--------------------------
Authorized Signatory
ANNEX A
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Securities pursuant to the Registered Exchange Offer,
where such Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities, must acknowledge that
it will deliver a prospectus in connection with any resale of such Exchange
Securities. The Letter of Transmittal states that by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act. This
prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Securities
received in exchange for Securities where such Securities were acquired by
such broker-dealer as a result of market-making activities or other trading
activities. The Company and the Subsidiary Guarantors have agreed that, for
a period of 90 days after the Expiration Date (as defined herein), it will
make this prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Securities, where such Securities were acquired by
such broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Securities pursuant to the Registered Exchange Offer,
where such Securities were acquired by such broker-dealer as a result of market
making activities other trading activities, must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Securities.
This prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Securities
received in exchange for Securities where such Securities were acquired as a
result of market-making activities or other trading activities. The Company and
the Subsidiary Guarantors have agreed that, for a period of 90 days after the
Expiration Date, they will make this prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In
addition, until _______________, 1998, all dealers effecting transactions in the
Exchange Securities may be required to deliver a prospectus. //
Neither the Company nor the Subsidiary Guarantors will receive any
proceeds from any sale of Exchange Securities by broker-dealers. Exchange
Securities received by broker-dealers for their own account pursuant to the
Registered Exchange Offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions, through
the writing of options on the Exchange Securities or a combination of such
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or at negotiated prices. Any such
resale may be made directly to purchasers or to or through brokers or dealers
who may receive compensation in the form of commissions or concessions from any
such broker-dealer or the purchasers of any such Exchange Securities. Any
broker-dealer that resells Exchange Securities that were received by it for its
own account pursuant to the Registered Exchange Offer and any broker or dealer
that participates in a distribution of such Exchange Securities may be deemed to
be an "underwriter" within the meaning of the Securities Act and any profit on
any such resale of Exchange Securities and any commission or concessions
received by any such persons may be deemed to be underwriting compensation under
the Securities Act. The Letter of Transmittal states that, by acknowledging
that it will deliver and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the Securities
Act.
For a period of 90 days after the Expiration Date the Company and the
Subsidiary Guarantors will promptly send additional copies of this prospectus
and any amendment or supplement to this prospectus to any broker-dealer that
requests
- --------------------------
//In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Registered Exchange Offer
prospectus.
27
such documents in the Letter of Transmittal. The Company and the Subsidiary
Guarantors have agreed to pay all expenses incident to the Registered
Exchange Offer (including the expenses of one counsel for the Holders of the
Securities) other than commissions or concessions of any broker-dealers and
will indemnify the Holders of the Securities (including any broker-dealers)
against certain liabilities, including liabilities under the Securities Act.
ANNEX D
/ / CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:
Address:
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account, in exchange for Securities that it represents
and warrants were acquired as a result of market-making activities or other
trading activities, it acknowledges that it will deliver a prospectus in
connection with any resale of such Exchange Securities; however, by so
acknowledging and by delivering a prospectus, the undersigned will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.