REGISTRATION RIGHTS AGREEMENT
among
DUNMORE ENERGY HOLDINGS LTD.
DUNMORE UPSTREAM FINANCE CORP.
THE GUARANTORS LISTED ON THE SIGNATURE PAGES HERETO
and
RIDGELINE CAPITAL MARKETS LLC
CLARION SECURITIES INC.
PINNACLE PARTNERS LLC
as Initial Purchasers
$850,000,000 Aggregate Principal Amount
9.375% Senior Secured Notes due 2032
CUSIP (144A): 265387 AA 5 CUSIP (Reg S): C2085R AA 2 ISIN (144A): US265387AA51 ISIN (Reg S): USC2085RAA24
Dated as of May 15, 2025
TABLE OF CONTENTS
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is dated as of May 15, 2025, among Dunmore Energy Holdings Ltd., an exempted company incorporated under the laws of the Cayman Islands (the "Company"), Dunmore upstream Finance Corp., a Delaware corporation (the "Co-Issuer" and, together with the Company, the "Issuers"), the Guarantors listed on the signature pages hereto (the "Guarantors"), and Ridgeline Capital Markets LLC, Clarion Securities Inc., and Pinnacle Partners LLC (together, the "Initial Purchasers").
RECITALS
WHEREAS, the Issuers and the Guarantors have entered into a Purchase Agreement dated May 12, 2025 (the "Purchase Agreement") with the Initial Purchasers, pursuant to which the Issuers have issued and sold to the Initial Purchasers $850,000,000 aggregate principal amount of their 9.375% Senior Secured Notes due 2032 (the "Initial Notes");
WHEREAS, the Initial Notes were issued pursuant to an Indenture dated as of May 15, 2025 (the "Indenture") among the Issuers, the Guarantors, and Northgate Trust Company, N.A., as Trustee and Collateral Agent;
WHEREAS, the Initial Notes were sold in a private placement pursuant to Rule 144A under the Securities Act of 1933, as amended (the "Securities Act"), to qualified institutional buyers ("QIBs") and pursuant to Regulation S under the Securities Act to non-U.S. persons in offshore transactions;
WHEREAS, the Initial Notes have not been registered under the Securities Act, and as a condition and inducement to the willingness of the Initial Purchasers to enter into the Purchase Agreement, the Issuers and the Guarantors have agreed to provide the registration rights set forth in this Agreement for the benefit of the Initial Purchasers and all subsequent Holders of Registrable Securities;
WHEREAS, the Initial Notes have received a preliminary rating of B2 / Stable from Lodestar Ratings International and B+ / Stable from Veridian Credit Assessments Inc.; and
WHEREAS, the parties desire to set forth their respective rights and obligations with respect to the registration of the Notes under the Securities Act.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1 — DEFINITIONS
Section 1.1 — Definitions
As used in this Agreement, the following terms shall have the meanings set forth below:
"Additional Interest" means additional interest payable on the Registrable Securities in accordance with Article 4 hereof upon the occurrence and during the continuance of a Registration Default. Additional Interest shall initially accrue at a rate of 0.25% per annum for the first 90-day period following a Registration Default, increasing by an additional 0.25% per annum for each subsequent 90-day period during which the Registration Default continues, up to a maximum aggregate rate of 1.00% per annum. Additional Interest shall be payable in addition to the stated interest rate of 9.375% per annum on the Notes and in addition to any other interest or amounts payable under the Indenture.
"Applicable Period" means, with respect to any Registration Default, each successive 90-day period commencing on the date of such Registration Default during which the Additional Interest accrues at the rate specified in Article 4 hereof.
"Broker-Dealer" means any broker or dealer registered as such under the Exchange Act.
"Business Day" means any day other than a Saturday, a Sunday, or any day on which banking institutions in New York, New York are authorized or required by law, regulation, or executive order to remain closed.
"Closing Date" means May 15, 2025, being the date of the initial issuance and delivery of the Initial Notes pursuant to the Purchase Agreement.
"Co-Issuer" means Dunmore upstream Finance Corp., a Delaware corporation (EIN: 93-4728106), with its registered agent at Ashgrove Services Inc., 28 Liberty Street, New York, NY 10005, or any successor thereto.
"Commission" or "SEC" means the U.S. Securities and Exchange Commission, or any successor agency thereto.
"Company" means Dunmore Energy Holdings Ltd., an exempted company incorporated under the laws of the Cayman Islands, Cayman Registry No. MC-384726, or any successor thereto.
"Consummate" or "Consummation" means, with respect to the Exchange Offer, the date on which Exchange Notes are issued and delivered to all Holders of Initial Notes that have validly tendered (and not validly withdrawn) their Initial Notes in the Exchange Offer.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder, as the same may be amended from time to time.
"Exchange Notes" means the 9.375% Senior Secured Notes due 2032 to be issued by the Issuers pursuant to the Indenture in exchange for the Initial Notes in the Exchange Offer, which Exchange Notes shall be identical in all material respects to the Initial Notes except that the Exchange Notes (i) will not bear transfer restriction legends, (ii) will not contain registration rights provisions or references thereto, and (iii) will not provide for the payment of Additional Interest.
"Exchange Offer" means the offer by the Issuers to exchange Exchange Notes for Initial Notes pursuant to Section 2.1 hereof.
"Exchange Offer Registration Statement" means the registration statement filed with the Commission on Form F-4 (or, if Form F-4 is not available to the Issuers, on such other appropriate form under the Securities Act as may be available) with respect to the Exchange Offer, including all amendments and supplements thereto, all exhibits thereto, and all documents incorporated by reference therein.
"Guarantors" means, collectively: (a) Dunmore Nigeria E&P Ltd., a Nigerian limited company; (b) Dunmore Gulf Operations LLC, a Delaware limited liability company; (c) Dunmore Renewables LLC, a Delaware limited liability company; (d) Dunmore Senegal S.A., a Senegalese société anonyme; (e) Dunmore Midstream Holdings Inc., a Delaware corporation; and (f) Dunmore Trading Ltd., a private limited company organized under the laws of England and Wales; and, in each case, any successor thereto.
"Holder" means any holder of Registrable Securities, including any Initial Purchaser that holds Registrable Securities and any subsequent transferee that acquires Registrable Securities in accordance with the terms of the Indenture.
"Indenture" means the Indenture dated as of May 15, 2025, among the Issuers, the Guarantors, and Northgate Trust Company, N.A., as Trustee and Collateral Agent, as the same may be amended, supplemented, or otherwise modified from time to time.
"Initial Notes" means the $850,000,000 aggregate principal amount of 9.375% Senior Secured Notes due 2032 issued by the Issuers on the Closing Date pursuant to the Purchase Agreement and the Indenture.
"Initial Purchasers" means Ridgeline Capital Markets LLC, having its principal offices at 383 Madison Avenue, 22nd Floor, New York, NY 10179; Clarion Securities Inc., having its principal offices at One Financial Center, Boston, MA 02111; and Pinnacle Partners LLC, having its principal offices at 200 West Street, Suite 4400, New York, NY 10282.
"Issuers" means, collectively, the Company and the Co-Issuer, or any permitted successors thereto under the Indenture.
"Majority Holders" means Holders holding a majority in aggregate principal amount of the then-outstanding Registrable Securities, determined as of the date of the making of the relevant determination.
"Managing Underwriters" means the investment banking firm or firms that serve as managing underwriter or underwriters in connection with any underwritten offering pursuant to a Shelf Registration Statement.
"Notes" means, collectively, the Initial Notes and the Exchange Notes.
"Participating Broker-Dealer" means a Broker-Dealer that acquired Initial Notes as a result of market-making activities or other trading activities (and not directly from the Issuers or any affiliate of the Issuers) and that is entitled to use the Exchange Offer prospectus in connection with resales of Exchange Notes received in the Exchange Offer as provided in Section 2.3 hereof.
"Person" means an individual, partnership (whether general or limited), joint venture, corporation (including a business trust), limited liability company, trust, unincorporated organization, association, government or agency or political subdivision thereof, or any other entity.
"Prospectus" means the prospectus included in any Registration Statement (including, without limitation, a prospectus that includes any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A under the Securities Act), as amended or supplemented by any prospectus supplement, and by all other amendments and supplements to such prospectus, including all material incorporated by reference or deemed to be incorporated by reference therein.
"Registrable Securities" means the Initial Notes (and the related guarantees thereof by the Guarantors) until the earliest to occur of: (a) the date on which the Exchange Offer is consummated with respect to such Initial Notes and the Holder thereof has received Exchange Notes in exchange therefor; (b) the date on which a Shelf Registration Statement covering such Initial Notes has been declared effective and such Initial Notes have been sold or otherwise disposed of pursuant thereto; (c) the date on which such Initial Notes have been sold pursuant to Rule 144 under the Securities Act (or any similar provision then in force) in a transaction in which the transferee receives securities that are not "restricted securities" (as defined in Rule 144); or (d) the date on which such Initial Notes cease to be outstanding.
"Registration Default" means any failure by the Issuers to satisfy the obligations set forth in Section 2.1(a), Section 2.1(b), Section 2.1(c), Section 2.2(a), or Section 2.2(b) within the applicable time period specified therein.
"Registration Statement" means any Exchange Offer Registration Statement or Shelf Registration Statement, as the context requires, and all amendments and supplements thereto, including all exhibits thereto and all documents incorporated by reference therein.
"Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder, as the same may be amended from time to time.
"Shelf Registration Statement" means a registration statement filed pursuant to Section 2.2 hereof on Form F-1 (or, if Form F-1 is not available to the Issuers, on such other appropriate form under the Securities Act as may be available) providing for the registration of the offer and resale of Registrable Securities on a delayed or continuous basis pursuant to Rule 415 under the Securities Act.
"TIA" means the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission promulgated thereunder, as the same may be amended from time to time.
"Trustee" means Northgate Trust Company, N.A., having its principal corporate trust office at 100 Wall Street, Suite 1600, New York, NY 10005, or any successor trustee under the Indenture.
Section 1.2 — Rules of Construction
Unless the context otherwise requires:
(a) References herein to "herein," "hereof," "hereby," "hereto," "hereunder," and words of similar import refer to this Agreement as a whole and not to any particular section, article, or other subdivision hereof.
(b) The section and article headings contained in this Agreement are for convenience of reference only and shall not affect the meaning or interpretation of this Agreement.
(c) Words importing the singular number shall include the plural and vice versa, and words importing any gender shall include each of the masculine, feminine, and neuter genders, in each case unless the context otherwise requires.
(d) References to any agreement, instrument, or document shall be deemed to include references to such agreement, instrument, or document as amended, supplemented, restated, or otherwise modified from time to time, unless otherwise specified.
(e) References to "$" or "dollars" mean United States dollars.
(f) The Notes are issuable only in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
(g) This Agreement shall be governed by and construed in accordance with the laws of the State of New York, as more fully set forth in Section 6.1 hereof.
(h) Unless otherwise specified, all references herein to sections, articles, exhibits, and schedules shall be deemed references to sections and articles of, and exhibits and schedules to, this Agreement.
ARTICLE 2 — REGISTRATION UNDER THE SECURITIES ACT
Section 2.1 — Exchange Offer
Section 2.1(a) — Filing of Exchange Offer Registration Statement
The Issuers and the Guarantors shall prepare and file with the Commission an Exchange Offer Registration Statement on Form F-4 (or, if Form F-4 is not available to the Issuers, on another appropriate form under the Securities Act) covering the offer to exchange the Initial Notes for an equal aggregate principal amount of Exchange Notes. Such Exchange Offer Registration Statement shall be filed no later than 270 days after the Closing Date (i.e., on or before February 9, 2026).
The Exchange Notes shall be issued under the Indenture and shall be guaranteed by each Guarantor on the same basis as the guarantees of the Initial Notes. The Exchange Notes shall be identical in all material respects to the Initial Notes, except that the Exchange Notes shall not (i) bear restrictive legends relating to transfer restrictions under the Securities Act, (ii) contain provisions relating to the registration rights set forth in this Agreement, or (iii) provide for the payment of Additional Interest. The Exchange Notes and the Initial Notes, taken together, shall constitute a single series of securities under the Indenture. The Exchange Offer Registration Statement shall include all exhibits, financial statements, and other materials required by the Securities Act and the applicable rules and regulations of the Commission.
The Issuers shall use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective by the Commission as promptly as practicable after such filing.
Section 2.1(b) — Effectiveness Deadline
The Issuers shall use commercially reasonable efforts to cause the Exchange Offer Registration Statement to become effective under the Securities Act no later than 365 days after the Closing Date (i.e., on or before May 15, 2026). The Issuers shall promptly notify the Initial Purchasers and each Holder of Registrable Securities upon the Exchange Offer Registration Statement being declared effective.
Section 2.1(c) — Consummation of Exchange Offer
The Issuers shall consummate the Exchange Offer no later than 30 Business Days after the date on which the Exchange Offer Registration Statement is declared effective by the Commission. The Exchange Offer shall remain open for acceptance for not less than 20 Business Days (or such longer period as may be required by applicable law, including Rule 14e-1 under the Exchange Act, to the extent applicable) after the date on which notice of the Exchange Offer is mailed or otherwise delivered to Holders of Initial Notes.
Each Holder of Initial Notes that is eligible to participate in the Exchange Offer shall be entitled to exchange all or a portion of its Initial Notes for Exchange Notes in an equal aggregate principal amount, subject to the terms and conditions of the Exchange Offer as set forth in the Exchange Offer Registration Statement.
In connection with the Exchange Offer, the Issuers shall:
(i) mail or cause to be mailed, or otherwise deliver in accordance with the applicable procedures of The Depository Trust Company ("DTC"), a notice of the Exchange Offer, together with an appropriate form of letter of transmittal and other exchange documents, to each Holder of Initial Notes as of a record date to be fixed by the Issuers;
(ii) file with the Commission all pre-effective and post-effective amendments to the Exchange Offer Registration Statement as may be required by the Commission or as may be necessary to cause the Exchange Offer Registration Statement to remain effective and the Prospectus included therein to remain current and complete;
(iii) use commercially reasonable efforts to qualify the Indenture under the TIA in connection with the Exchange Offer, to the extent required by applicable law;
(iv) deliver to each Holder that has validly tendered (and not validly withdrawn) its Initial Notes, on the date of Consummation of the Exchange Offer, Exchange Notes in an aggregate principal amount equal to the aggregate principal amount of Initial Notes so tendered, through the book-entry transfer facilities of DTC or, if applicable, in certificated form;
(v) keep the Exchange Offer open for acceptance for a period not less than the minimum period required under applicable law; and
(vi) otherwise comply in all respects with all applicable laws and regulations in connection with the Exchange Offer.
The Issuers shall inform the Initial Purchasers, the Trustee, and DTC of each step in the Exchange Offer process, including the expected Consummation date, promptly as such information becomes available.
Section 2.2 — Shelf Registration
Section 2.2(a) — Obligation to File Shelf Registration Statement
If any of the following conditions exists, the Issuers and the Guarantors shall file a Shelf Registration Statement with the Commission on Form F-1 (or, if Form F-1 is not available, on another appropriate form under the Securities Act) covering the offer and resale of the Registrable Securities on a continuous or delayed basis pursuant to Rule 415 under the Securities Act:
(i) the Issuers are not permitted to effect the Exchange Offer because of any change in applicable law, Commission rules, or applicable interpretations thereof by the Commission or the staff thereof;
(ii) any Initial Purchaser so requests within 20 Business Days following the Consummation of the Exchange Offer because such Initial Purchaser is not eligible to participate in the Exchange Offer due to the nature of its business (including because such Initial Purchaser is a Broker-Dealer and is unable to use the Exchange Offer Prospectus for resales of Exchange Notes pursuant to Section 2.3 hereof);
(iii) any Holder of Initial Notes that is not eligible to participate in the Exchange Offer notifies the Issuers within 20 Business Days following the Consummation of the Exchange Offer (or, if earlier, within 20 Business Days after such Holder becomes aware that it is not eligible to participate) that it is not so eligible; or
(iv) any Holder that participates in the Exchange Offer does not receive freely tradeable Exchange Notes in exchange for its Initial Notes on the date of the Consummation of the Exchange Offer, other than by reason of such Holder being an affiliate of the Issuers within the meaning of Rule 405 under the Securities Act.
The Issuers shall file such Shelf Registration Statement no later than 30 days after the date on which the obligation to file such Shelf Registration Statement arises under this Section 2.2(a) (the "Shelf Filing Deadline").
Section 2.2(b) — Effectiveness Deadline for Shelf Registration Statement
The Issuers shall use commercially reasonable efforts to cause the Shelf Registration Statement to be declared effective by the Commission no later than 90 days after the Shelf Filing Deadline. The Issuers shall promptly notify each Holder of Registrable Securities covered by the Shelf Registration Statement upon such Shelf Registration Statement being declared effective.
Section 2.2(c) — Shelf Registration Statement to Remain Effective
The Issuers shall use commercially reasonable efforts to keep the Shelf Registration Statement continuously effective, supplemented, and amended to the extent necessary to ensure that it is available for resales of Registrable Securities, and to ensure that the Prospectus contained therein is current and complies with the requirements of the Securities Act, until the earliest to occur of:
(i) the date that is two years after the effective date of the Shelf Registration Statement (or such shorter period as may be permitted under Rule 144 of the Securities Act (as then in effect) for non-affiliates of the Issuers to sell all Registrable Securities then held by them without regard to volume limitations or manner-of-sale restrictions);
(ii) the date on which all Registrable Securities covered by the Shelf Registration Statement have been sold or otherwise disposed of pursuant to such Shelf Registration Statement; and
(iii) the date on which all Registrable Securities held by Persons who are not affiliates of the Issuers are eligible for resale under Rule 144 under the Securities Act without volume limitations or manner-of-sale restrictions and without the requirement for the Issuers to be in compliance with the current public information requirements of Rule 144(c)(1) (or any successor provision).
Section 2.2(d) — Supplements and Amendments
The Issuers shall promptly supplement or amend the Shelf Registration Statement if required by the rules, regulations, or instructions applicable to the registration form used by the Issuers for such Shelf Registration Statement or if required by the Securities Act, or if reasonably requested by a Holder of Registrable Securities covered thereby, so as to maintain the accuracy and completeness of the Prospectus contained therein, to respond to any comments from the Commission, and to comply with the requirements of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period.
Section 2.3 — Participating Broker-Dealer Obligations
Each Participating Broker-Dealer that receives Exchange Notes for Initial Notes, where such Initial Notes were acquired by such Participating Broker-Dealer as a result of market-making activities or other trading activities (and not directly from the Issuers or any affiliate of the Issuers), acknowledges that it will deliver a Prospectus in connection with any resale of such Exchange Notes. The Commission has taken the position that Participating Broker-Dealers may fulfill their prospectus delivery requirements with respect to Exchange Notes (other than a resale of an unsold allotment from the original sale of the Initial Notes) by delivery of the Prospectus contained in the Exchange Offer Registration Statement.
The Issuers shall, for a period of 180 days after the Consummation of the Exchange Offer (or such shorter period during which Participating Broker-Dealers are required by law to deliver such a Prospectus in connection with sales of Exchange Notes), use commercially reasonable efforts to:
(a) keep the Exchange Offer Registration Statement effective and the Exchange Offer Prospectus current and usable for resales by Participating Broker-Dealers; and
(b) amend or supplement the Exchange Offer Prospectus, as and to the extent necessary, to maintain its accuracy and completeness and to comply with applicable requirements of the Securities Act.
A Participating Broker-Dealer shall not be deemed to be an "underwriter" within the meaning of the Securities Act solely by reason of its use of the Exchange Offer Prospectus in connection with resales of Exchange Notes received in the Exchange Offer.
Each Participating Broker-Dealer wishing to use the Exchange Offer Prospectus for resales shall, by its acceptance of Exchange Notes in the Exchange Offer, be deemed to have acknowledged and agreed that: (i) the Initial Notes exchanged by such Participating Broker-Dealer for Exchange Notes were acquired in market-making or other trading activities, and (ii) such Participating Broker-Dealer will deliver a Prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes. The Issuers shall not be required to pay any underwriting discounts, commissions, or concessions payable to any Participating Broker-Dealer in connection with any resale of Exchange Notes.
ARTICLE 3 — REGISTRATION PROCEDURES
Section 3.1 — General Obligations of the Issuers
In connection with any Registration Statement contemplated by this Agreement (whether an Exchange Offer Registration Statement or a Shelf Registration Statement), the Issuers shall comply with the following obligations:
(a) Preparation and Filing
The Issuers shall prepare and file with the Commission the applicable Registration Statement, including all exhibits, financial statements, and other materials required by the Securities Act, the rules and regulations of the Commission, and any applicable accounting standards, as well as such other information as may be reasonably requested by the Majority Holders or the Initial Purchasers. Without limiting the generality of the foregoing, each Registration Statement shall include:
(i) audited consolidated financial statements of Dunmore Energy Holdings Ltd. and its consolidated subsidiaries, prepared in accordance with International Financial Reporting Standards as issued by the International Accounting Standards Board ("IFRS") or generally accepted accounting principles in the United States ("U.S. GAAP"), as applicable, audited by Alverton & Co. LLP (lead engagement partner: Graham Stillwell), together with any required interim unaudited financial statements;
(ii) a report of reserves data from Duval Howard & Partners, independent reserves consultants (lead consultant: Dr. Evelyn Marchetti), prepared in accordance with the standards of the Society of Petroleum Engineers, covering the proved, probable, and possible reserves attributable to the properties of the Company and its subsidiaries; and
(iii) all other information, documents, certificates, and opinions required to be included in or filed as part of such Registration Statement under the Securities Act and the rules and regulations of the Commission.
(b) SEC Comments and Amendments
The Issuers shall respond to any written or oral comments received from the Commission or the staff thereof with respect to any Registration Statement within 10 Business Days of receipt of such comments (or such shorter period as may be required by applicable law or the Commission's rules). The Issuers shall prepare and file with the Commission such pre-effective and post-effective amendments to any Registration Statement as may be required to respond to comments from the Commission, to correct any material misstatements or omissions, or to maintain the effectiveness of such Registration Statement and the currency and completeness of the Prospectus contained therein. The Issuers shall furnish copies of all correspondence with the Commission to the Initial Purchasers and their counsel, and to any Holder that has made a written request therefor.
(c) Notification to Holders and Initial Purchasers
The Issuers shall notify each Holder of Registrable Securities and each Initial Purchaser (and, if requested, their respective counsel) promptly, and in any event within two Business Days, of the occurrence of any of the following:
(i) the filing of a Registration Statement or any amendment or supplement thereto with the Commission;
(ii) the Registration Statement or any post-effective amendment thereto becoming effective under the Securities Act;
(iii) the receipt by the Issuers of any comments from the Commission or the staff thereof with respect to any Registration Statement or any request by the Commission for amendments or supplements thereto or for additional information;
(iv) the issuance by the Commission of any stop order suspending the effectiveness of any Registration Statement or the initiation or threat of any proceeding for that purpose, or the receipt of any notification with respect to the suspension of the qualification of the Notes for offering or sale in any jurisdiction;
(v) the suspension of the qualification of the Notes for offering or sale in any jurisdiction, or the initiation or threat of any proceeding for that purpose by any state securities commission or similar regulatory authority; and
(vi) the happening of any event or the existence of any condition that requires the making of any changes in the Registration Statement or the Prospectus, or any document incorporated by reference therein, so that, in the case of the Registration Statement, it will not contain any 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 in the case of the Prospectus, it will not contain any 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 (a "Suspension Event").
(d) Furnishing Copies
The Issuers shall furnish to each Holder of Registrable Securities, each Initial Purchaser, and their respective counsel, without charge, a reasonable number of copies of the Registration Statement and any amendment or supplement thereto (including all exhibits thereto and all documents incorporated by reference therein), the Prospectus (including any preliminary prospectus), and such other documents as such Holder or Initial Purchaser may reasonably request in connection with the offering and sale of the Registrable Securities. The Issuers shall also make available to each Holder and each Initial Purchaser, for inspection during normal business hours at the Issuers' offices, such financial and other information regarding the Issuers and the Guarantors as is customarily made available in connection with a registered offering of debt securities.
(e) State Securities Law Compliance
The Issuers shall use commercially reasonable efforts to register or qualify the Notes for offer and sale under the securities or blue sky laws of such states and other jurisdictions of the United States as any Holder or the Majority Holders may reasonably request and to do any and all other acts and things that may be reasonably necessary or advisable to enable such Holder to consummate the disposition of Registrable Securities owned by such Holder in such jurisdictions; provided, however, that the Issuers shall not be required to (i) qualify generally to do business in any jurisdiction where the Issuers are not then so qualified, (ii) take any action that would subject the Issuers to general service of process or to general taxation in any jurisdiction where the Issuers are not then so subject, or (iii) file a general consent to service of process in any jurisdiction.
(f) TIA Compliance
The Issuers shall comply with all applicable provisions of the TIA in connection with the Exchange Offer and the Shelf Registration Statement, as applicable, and shall use commercially reasonable efforts to cause any indenture or supplemental indenture relating to the Exchange Notes or to the Registrable Securities to be qualified under the TIA in a timely manner, to the extent required by applicable law.
(g) Listing. The Issuers shall use commercially reasonable efforts to cause the Exchange Notes or the Registrable Securities to be designated for trading on a recognized securities exchange or quotation system if so requested by the Majority Holders, subject to applicable listing standards and requirements; provided, however, that no listing is currently contemplated by the Issuers as of the date hereof. If any such listing is obtained, the Issuers shall use commercially reasonable efforts to maintain such listing for so long as any Notes remain outstanding.
(h) Cooperation with Underwriters (Shelf Only)
In the event that any Holder of Registrable Securities requests that an underwritten offering be conducted pursuant to the Shelf Registration Statement, the Issuers shall:
(i) enter into one or more underwriting agreements in customary form with the Managing Underwriters selected by the Majority Holders and approved by the Issuers (such approval not to be unreasonably withheld, conditioned, or delayed), including customary representations, warranties, covenants, indemnification, and contribution obligations on the part of the Issuers and the Guarantors;
(ii) use commercially reasonable efforts to cause to be delivered to the Managing Underwriters customary legal opinions from Calderwood & Harkness LLP (Jennifer Kwon, responsible partner), or such other counsel as may be retained by the Issuers for such purpose, addressed to the Managing Underwriters and in form and substance customary for an underwritten offering of high-yield debt securities;
(iii) use commercially reasonable efforts to cause to be delivered to the Managing Underwriters customary comfort letters from Alverton & Co. LLP, addressed to the Managing Underwriters, covering such financial and accounting matters as are customarily covered in comfort letters delivered in connection with underwritten offerings of debt securities; and
(iv) cooperate with the Managing Underwriters and the Holders in connection with the marketing and sale of the Registrable Securities, including participation by senior management of the Issuers in roadshows, investor calls, and other marketing activities, as reasonably requested by the Managing Underwriters.
(i) Earnings Statement
The Issuers shall make generally available to Holders of Registrable Securities and the Initial Purchasers an earnings statement satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder no later than 45 days after the end of each twelve-month period commencing on the first day of the first fiscal quarter of the Issuers that begins after the effective date of the applicable Registration Statement, which earnings statement shall cover such twelve-month period.
(j) Provision of CUSIP/ISIN
The Issuers shall take all actions necessary to ensure that the Exchange Notes or other securities issued pursuant to a Shelf Registration Statement bear the applicable CUSIP and ISIN numbers, and shall provide notice of such CUSIP and ISIN numbers to the Trustee, DTC, and each Holder promptly upon issuance.
Section 3.2 — Suspension Periods
Notwithstanding any other provision of this Agreement, the Issuers may, by written notice (a "Blackout Notice") to each Holder of Registrable Securities and the Initial Purchasers, suspend the use of a Prospectus forming part of any Registration Statement for a period not to exceed 30 consecutive days in any single instance or 60 days in the aggregate during any 365-day period (each such period, a "Blackout Period"), if the Board of Directors of the Company (or a duly authorized committee thereof) determines in good faith that there exist material non-public developments with respect to the Issuers, the Guarantors, or their respective businesses, operations, financial condition, or prospects, the disclosure of which at such time would be materially detrimental to the Issuers or the Guarantors.
The Blackout Notice shall be given to Holders promptly upon the commencement of the Blackout Period and need not specify the nature of the event giving rise to the Blackout Period; provided, however, that the Issuers shall promptly notify each Holder upon the termination of the Blackout Period. The Blackout Notice shall state that the Holders are required to suspend the use of the Prospectus and the reasons therefor (to the extent the Issuers determine may be disclosed without disclosing the underlying material non-public information).
Upon receipt of a Blackout Notice, each Holder shall immediately discontinue any offer or sale of Registrable Securities pursuant to the Registration Statement and shall not resume such offers or sales until such Holder receives written notice from the Issuers that the Prospectus may again be used (because the Issuers have filed a supplement or amendment thereto or the Blackout Period has expired and the Prospectus remains current), or until the Holder is advised by counsel that offers and sales may otherwise be resumed.
If any Blackout Period exceeds the maximum duration permitted by the first paragraph of this Section 3.2, the excess period shall constitute a Registration Default for all purposes of this Agreement, including the accrual of Additional Interest pursuant to Article 4 hereof.
Section 3.3 — Holder Obligations
Each Holder of Registrable Securities shall, as a condition to the inclusion of such Holder's Registrable Securities in any Shelf Registration Statement, furnish to the Issuers in writing such information regarding such Holder and the proposed distribution of such Holder's Registrable Securities as the Issuers may from time to time reasonably request for inclusion in the Shelf Registration Statement, including, without limitation, such Holder's name, address, the number of Registrable Securities held, and the intended method of distribution. Each Holder shall promptly notify the Issuers of any changes in such information.
Each Holder of Registrable Securities shall comply with all provisions of the Securities Act, the Exchange Act, and all applicable rules and regulations promulgated thereunder, and with any applicable state securities laws, in connection with any offer, sale, or other disposition of Registrable Securities pursuant to any Registration Statement. Each Holder shall also cooperate with the Issuers and provide such information and take such actions as the Issuers may reasonably request in connection with obtaining any required qualification or registration of the Registrable Securities under applicable state securities laws.
ARTICLE 4 — ADDITIONAL INTEREST
Section 4.1 — Accrual of Additional Interest
If a Registration Default occurs, the Issuers shall pay Additional Interest on the Registrable Securities to the Holders thereof. Such Additional Interest shall be in addition to any other interest payable on the Notes under the Indenture (including the base interest rate of 9.375% per annum, payable semi-annually in arrears in installments of $39,843,750 on each of May 1 and November 1, commencing November 1, 2025). Additional Interest shall accrue and be payable as follows:
(a) Additional Interest shall accrue at a rate of 0.25% per annum on the aggregate principal amount of Registrable Securities outstanding during the first 90-day period immediately following the date on which the Registration Default occurs.
(b) The rate of Additional Interest shall increase by an additional 0.25% per annum for each subsequent 90-day period during which the Registration Default continues, so that the rate of Additional Interest shall be 0.50% per annum during the second such 90-day period, 0.75% per annum during the third such 90-day period, and 1.00% per annum during the fourth and each subsequent such 90-day period.
(c) In no event shall the aggregate rate of Additional Interest exceed 1.00% per annum, regardless of the number of Registration Defaults that may exist concurrently. For the avoidance of doubt, the maximum total interest rate payable on the Registrable Securities shall not exceed 10.375% per annum (being the sum of the stated interest rate of 9.375% per annum and the maximum Additional Interest rate of 1.00% per annum).
Section 4.2 — Cessation of Additional Interest
Additional Interest on any Registrable Securities shall cease to accrue upon the earliest to occur of the following:
(a) the filing with the Commission of the applicable Registration Statement (in the case of a Registration Default arising from a failure to file within the applicable time period specified in Section 2.1(a), Section 2.2(a), or Section 2.2(b));
(b) the effectiveness of the applicable Registration Statement under the Securities Act (in the case of a Registration Default arising from a failure to cause the applicable Registration Statement to become effective within the applicable time period specified in Section 2.1(b) or Section 2.2(b));
(c) the Consummation of the Exchange Offer (in the case of a Registration Default arising from a failure to consummate the Exchange Offer within the applicable time period specified in Section 2.1(c));
(d) the date on which all Registrable Securities covered by the Shelf Registration Statement have been sold or otherwise disposed of pursuant thereto; and
(e) the date on which all Registrable Securities otherwise cease to be Registrable Securities as defined herein.
Upon the cessation of Additional Interest, the interest rate on the Notes shall revert to the stated rate of 9.375% per annum. The term "interest" as used in the Indenture shall be deemed to include any Additional Interest payable under this Agreement, and all references therein to "interest" shall be construed accordingly.
Section 4.3 — Payment Mechanics
Additional Interest shall be payable in cash, in United States dollars, semi-annually in arrears on each interest payment date under the Indenture (i.e., May 1 and November 1 of each year), to Holders of Registrable Securities of record on the immediately preceding record date established in accordance with the Indenture. Payments of Additional Interest shall be made through Beacon Fiduciary Services LLC, as Paying Agent under the Indenture (Sandra Mitchum, relationship manager; 240 Greenwich Street, 7th Floor, New York, NY 10007), in the same manner and to the same accounts as regular interest payments on the Notes.
The Issuers shall promptly notify the Trustee (Northgate Trust Company, N.A., Attention: William Kerrigan, Vice President, Corporate Trust) and the Paying Agent of (i) the occurrence of any Registration Default and the resulting obligation to pay Additional Interest, (ii) the applicable rate of Additional Interest, (iii) the aggregate amount of Additional Interest payable on each interest payment date, and (iv) the cessation of Additional Interest. The Issuers shall also deliver to the Trustee and the Paying Agent an officers' certificate setting forth the foregoing information not less than 15 Business Days prior to each interest payment date on which Additional Interest is payable.
Section 4.4 — Exclusive Remedy
The Additional Interest as set forth in this Article 4 shall be the exclusive monetary remedy of the Holders of Registrable Securities for any Registration Default. The payment of Additional Interest is intended to compensate Holders for the reduction in liquidity of the Registrable Securities resulting from the failure of the Issuers to satisfy their registration obligations hereunder. Notwithstanding the foregoing, nothing in this Section 4.4 shall limit or affect the right of any Holder to seek specific performance of the obligations of the Issuers under this Agreement, or to obtain injunctive or other equitable relief, in addition to the payment of Additional Interest, in any court of competent jurisdiction.
ARTICLE 5 — INDEMNIFICATION AND CONTRIBUTION
Section 5.1 — Indemnification by the Issuers and the Guarantors
The Issuers and the Guarantors shall, jointly and severally, indemnify and hold harmless each Holder of Registrable Securities that sells or offers to sell Registrable Securities pursuant to any Registration Statement, each Participating Broker-Dealer, each Person who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any Holder or any Participating Broker-Dealer, and the respective officers, directors, employees, agents, and counsel of each of the foregoing Persons (each, an "Issuer Indemnified Party"), from and against any and all losses, claims, damages, liabilities, and expenses (including, without limitation, any and all reasonable and documented attorneys' fees, court costs, and expenses of investigation incurred in connection with any action, suit, proceeding, or investigation, whether commenced or threatened) (collectively, "Losses") to which any such Issuer Indemnified Party may become subject under the Securities Act, the Exchange Act, any state securities laws, or otherwise, insofar as such Losses arise out of or are based upon:
(a) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus, or any amendment or supplement thereto (including any documents incorporated by reference therein), or in any materials used in connection with the offer or sale of Registrable Securities or Exchange Notes; or
(b) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that the Issuers and the Guarantors shall not be liable to any Issuer Indemnified Party with respect to any Loss to the extent that such Loss arises out of or is based upon an untrue statement or alleged untrue statement or an omission or alleged omission made in reliance upon and in conformity with written information furnished to the Issuers by such Issuer Indemnified Party (or by any Person controlling, controlled by, or under common control with such Issuer Indemnified Party) specifically for use in such Registration Statement, Prospectus, or amendment or supplement thereto.
The indemnification provided for in this Section 5.1 shall remain in full force and effect regardless of any investigation made by or on behalf of any Issuer Indemnified Party, and shall survive the transfer of Registrable Securities by any Holder.
Section 5.2 — Indemnification by Holders
Each Holder of Registrable Securities that sells or offers to sell Registrable Securities pursuant to a Registration Statement shall, severally and not jointly, indemnify and hold harmless the Issuers, the Guarantors, the Initial Purchasers, and their respective officers, directors, employees, agents, and counsel, and each Person who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any of the foregoing (each, a "Holder Indemnified Party"), from and against any and all Losses to which any such Holder Indemnified Party may become subject under the Securities Act, the Exchange Act, any state securities laws, or otherwise, insofar as such Losses arise out of or are based upon:
(a) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus, or any amendment or supplement thereto (including any documents incorporated by reference therein); or
(b) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
in each case, to the extent, and only to the extent, that such untrue statement or omission was made in reliance upon and in conformity with written information furnished to the Issuers by such Holder specifically for use in such Registration Statement, Prospectus, or amendment or supplement thereto.
Notwithstanding the foregoing, the liability of each selling Holder under this Section 5.2 shall in no event exceed the net proceeds (after deducting underwriting discounts and commissions, if any) actually received by such Holder from the sale of Registrable Securities pursuant to the Registration Statement that gave rise to such Losses.
Section 5.3 — Contribution
If the indemnification provided for in Section 5.1 or Section 5.2 is unavailable to an indemnified party or is insufficient to hold such indemnified party harmless for any Losses in respect of which the indemnification provisions of this Article 5 would otherwise apply by their terms, then each indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses, in such proportion as is appropriate to reflect:
(a) the relative benefits received by the Issuers and the Guarantors, on the one hand, and each selling Holder, on the other hand, from the offering and sale of the Registrable Securities; and
(b) the relative fault of the Issuers and the Guarantors, on the one hand, and each selling Holder, on the other hand, in connection with the statements or omissions which resulted in such Losses, as well as any other relevant equitable considerations.
The relative benefits received by the Issuers and the Guarantors, on the one hand, and each selling Holder, on the other hand, shall be deemed to be in the same proportion as the total net proceeds from the offering of the Initial Notes (before deducting expenses) received by the Issuers bear to the total net proceeds received by such selling Holder from its sale of Registrable Securities pursuant to the Registration Statement. The relative fault of the Issuers and the Guarantors, on the one hand, and each selling Holder, on the other hand, shall be determined by reference to, among other things, whether the untrue statement 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 and the Guarantors or by such selling Holder, and the parties' relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission.
The parties agree that it would not be just and equitable if contribution pursuant to this Section 5.3 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the preceding paragraph. No Person who has been found 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 found guilty of such fraudulent misrepresentation.
Notwithstanding any other provision of this Section 5.3, the contribution obligation of each selling Holder shall not exceed the net proceeds (after deducting underwriting discounts and commissions, if any) actually received by such selling Holder from the sale of Registrable Securities pursuant to the Registration Statement that gave rise to such Losses.
Section 5.4 — Notification Obligation
Each indemnified party shall give prompt written notice to the indemnifying party of the commencement of any action, suit, proceeding, claim, or investigation (or the threat thereof) with respect to which such indemnified party seeks indemnification or contribution pursuant to this Article 5; provided, however, that the failure to give such notice shall not relieve the indemnifying party of its obligations under this Article 5 except to the extent that the indemnifying party is materially and actually prejudiced by such failure.
The indemnifying party shall be entitled to participate in, and, to the extent that it may wish, to assume the defense of any such action, suit, or proceeding, including the employment of counsel reasonably satisfactory to the indemnified party (which counsel shall not, except with the prior written consent of the indemnified party, be counsel to the indemnifying party). If the indemnifying party assumes the defense, the indemnified party shall have the right to employ separate counsel and to participate in (but not control) the defense thereof, but the fees and expenses of such separate counsel shall be at the expense of such indemnified party unless (i) the indemnifying party has agreed in writing to pay such fees and expenses, (ii) the indemnifying party has failed to assume the defense of such action within a reasonable time after receipt of notice of commencement thereof, or (iii) the named parties to such action include both the indemnified party and the indemnifying party, and the indemnified party shall have been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party (in which case, the indemnifying party shall not have the right to assume the defense of such action on behalf of the indemnified party).
No indemnifying party shall, without the prior written consent of the indemnified party (which consent shall not be unreasonably withheld, conditioned, or delayed), consent to entry of any judgment or enter into any settlement of any action, suit, or proceeding that (a) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a full and unconditional release from all liability in respect of such action, suit, or proceeding, (b) includes the imposition of any non-monetary remedy or injunctive relief on the indemnified party, or (c) otherwise could reasonably be expected to have a material adverse effect on the business, operations, or reputation of the indemnified party.