EXHIBIT 10.4
FORM OF REDEMPTION AND REGISTRATION RIGHTS AGREEMENT
REDEMPTION AND REGISTRATION RIGHTS AGREEMENT, dated as of
, 1996 by and among BASIS PETROLEUM, INC., a Texas corporation ("Basis"),
XXXXXX CORPORATION, a Delaware corporation ("Xxxxxx"), XXXXXX CRUDE OIL COMPANY,
a Delaware corporation ("Xxxxxx Crude"), XXXXXX PIPELINE TEXAS, INC., a Delaware
corporation ("Howell Texas"), HOWELL PIPELINE U.S.A., INC., a Delaware
corporation ("Howell Pipeline"), XXXXXX POWER SYSTEMS, INC., a Delaware
corporation ("Xxxxxx Power"), XXXXXX TRANSPORTATION SERVICES, INC., a Delaware
corporation ("Howell Transportation" and, collectively with Xxxxxx Crude, Xxxxxx
Texas, Xxxxxx Pipeline and Xxxxxx Power, the "Xxxxxx Subsidiaries"), GENESIS
ENERGY, L.P., a Delaware limited partnership ("Genesis MLP"), and GENESIS CRUDE
OIL, L.P., a Delaware limited partnership ("Genesis OLP").
W I T N E S S E T H:
WHEREAS, Basis and Xxxxxx have agreed pursuant to the Purchase & Sale
and Contribution & Conveyance Agreement (the "Conveyance Agreement") by and
among Basis, Xxxxxx, the Xxxxxx Subsidiaries, Genesis MLP, Genesis OLP and
Genesis Energy, L.L.C., a Delaware limited liability company, to transfer their
respective crude oil gathering, marketing, transportation and pipeline assets to
Genesis OLP in exchange for, among other things, the net proceeds of an offering
to the public of Common Units representing limited partner interests of Genesis
MLP and for the issuance to each of Basis and the Xxxxxx Subsidiaries of a
certain number of Subordinated OLP Units representing limited partner interests
in Genesis OLP; and
WHEREAS, pursuant to the Amended and Restated Agreement of Limited
Partnership of Genesis OLP (the "OLP Agreement"), upon the expiration of the
Subordination Period (as defined in the OLP Agreement), the Subordinated OLP
Units will convert on a one-for-one basis into Common OLP Units and, in
addition, up to one half of the Subordinated OLP Units may convert into Common
OLP Units prior to the end of the Subordination Period; and
WHEREAS, the parties desire that, upon the conversion of all or part
of Subordinated OLP Units into Common OLP Units, each of Basis and Xxxxxx (on
behalf of the Xxxxxx Subsidiaries) may, subject to the terms and conditions set
forth herein cause Genesis OLP to redeem the Common OLP Units held by either
Basis or the Xxxxxx Subsidiaries, in either case using the proceeds, net of
underwriting discounts and commissions or placement fees, if any, of a public
offering or private sale by Genesis MLP of a number of newly issued Common Units
equal to the number of Common OLP Units being redeemed.
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following terms, as used herein, have the following meanings (all
terms defined herein in the singular to have the correlative meanings when used
in the plural and vice versa):
"Affiliate" shall have the meaning ascribed to such term in the
OLP Agreement.
"Aggregate Redemption Number" has the meaning ascribed to it in
Section 2.1(a) of this Agreement.
"Agreement" means this Redemption and Registration Rights Agreement,
as the same shall be amended, modified or supplemented from time to time.
"Ancillary Agreement" means the Ancillary Agreement among Salomon Inc,
Xxxxxx, the Xxxxxx Entities and the Collateral Agent, as defined in the
Ancillary Agreement.
"API" has the meaning set forth in the OLP Agreement.
"Assignee" has the meaning ascribed to it in Section 10 of this
Agreement.
"Common OLP Unit" has the meaning assigned to the term "Common LP
Unit" in the OLP Agreement.
"Common Units" means the Common Units representing limited partner
interests of Genesis MLP.
"Demand Redemption" means any sale of Common Units effected in
accordance with Section 2.1 of this Agreement.
"Distribution Support Agreement" means the Distribution Support
Agreement between Genesis OLP and Salomon Inc.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor statute, and the rules and regulations
promulgated thereunder.
"General Partner" means Genesis Energy, L.L.C., a Delaware limited
liability company and the general partner of Genesis MLP and Genesis OLP.
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"Holders" means the holders of record of Common OLP Units or the agent
designated by such holders of record (in the case of the Xxxxxx Subsidiaries,
Xxxxxx).
"Xxxxxx Entities" means Xxxxxx and the Xxxxxx Subsidiaries.
"Indemnified Party" has the meaning ascribed to it in Section 2.4(a)
of this Agreement.
"Individual Redemption Number" has the meaning ascribed to it in
Section 2.1(a) of this Agreement.
"Loss" has the meaning ascribed to it in Section 2.4(a) of this
Agreement.
"Notice of Demand" has the meaning ascribed to it in Section 2.1(a) of
this Agreement.
"Offering Expenses" means all expenses incident to Genesis MLP's
performance of or compliance with this Agreement, including, without limitation,
(a) all registration, filing, securities exchange listing, rating agency and
National Association of Securities Dealers fees, (b) all registration, filing,
qualification and other fees and expenses of complying with securities or blue
sky laws of all jurisdictions in which the securities are to be registered and
any legal fees and expenses incurred in connection with the blue sky
qualifications of the Common Units and the determination of their eligibility
for investment under the laws of all such jurisdictions, (c) all word
processing, duplicating, printing, messenger and delivery expenses, (d) the fees
and disbursements of counsel for Genesis MLP and of its independent public
accountants, including, without limitation, the expenses of any special audits
or "cold comfort" letters required by or incident to such performance and
compliance, (e) premiums and other costs of policies of insurance against
liabilities arising out of the public offering of the Common Units being
registered to the extent Genesis MLP elects to obtain such insurance, (f) the
fees of preparing a private placement memorandum, (g) any expenses and
disbursements of underwriters or placement agents customarily paid by issuers or
sellers of securities (but excluding underwriting discounts and commissions,
placement fees and transfer taxes, if any, relating to the Common Units being
registered) and (h) fees and expenses of other Persons retained or employed by
Genesis MLP. Offering Expenses, to the extent payable by Genesis MLP pursuant
to this Agreement, shall not include fees and disbursements of counsel for any
Participating Holder.
"Participating Holder" means a Holder who has provided a Notice of
Demand or a Participation Notice to Genesis MLP requesting the redemption of all
or a part of its Common OLP Units.
"Participation Notice" has the meaning ascribed to it in Section
2.1(c) of this Agreement.
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"Person" means a natural person, a corporation, a partnership, a
limited liability company, a trust, a joint venture, any regulatory authority or
any other entity or organization.
"Pledge Agreement" means the Pledge Agreement among Basis, the Xxxxxx
Entities and Genesis OLP.
"Reasonable Efforts," when used with respect to any obligation to be
performed or term or provision to be observed hereunder, means such efforts as a
prudent Person seeking the benefits of such performance or action would make,
use, apply or exercise to preserve, protect or advance its rights or interests,
provided, that such efforts do not require such Person to incur a material
financial cost or a substantial risk of material liability unless such cost or
liability (i) would customarily be incurred in the course of performance or
observance of the relevant obligation, term or provision, (ii) is caused by or
results from the wrongful act or negligence of the Person whose performance or
observance is required hereunder or (iii) is not excessive or unreasonable in
view of the rights or interests to be preserved, protected or advanced. Such
efforts may include, without limitation, the expenditure of such funds and
retention by such Person of such accountants, attorneys or other experts or
advisors as may be necessary or appropriate to effect the relevant action; and
the commencement, termination or settlement of any action, suit or proceeding
involving such Person to the extent necessary or appropriate to effect the
relevant action.
"Redemption Notice" has the meaning ascribed to it in Section 2.1(e)
of this Agreement.
"Redemption Price" has the meaning ascribed to it in Section 2.1(a) of
this Agreement.
"SEC" means the United States Securities and Exchange Commission, or
any successor governmental agency or authority thereto.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, or any successor statute, and the rules and regulations
promulgated thereunder.
"Subordinated OLP Units" has the meaning assigned to the term
"Subordinated LP Units" in the OLP Agreement.
"Successor" means, with respect to any Person, a successor to such
Person by merger, consolidation, liquidation or other similar transaction.
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ARTICLE II
SALE OF COMMON UNITS TO EFFECT
REDEMPTION OF COMMON OLP UNITS
Section 2.1. Right to Demand the Redemption of Common OLP Units.
(a) Request to Effect Redemption. At any time and from time to
time after any conversion of any of the Subordinated OLP Units held by Basis or
any Xxxxxx Subsidiary into Common OLP Units pursuant to Section 5.8 of the OLP
Agreement, either Basis or Xxxxxx (on behalf of the Xxxxxx Subsidiaries) may
provide Genesis MLP with a request ("Notice of Demand") (with a copy to the non-
requesting Holder of Common OLP Units) that Genesis MLP cause Genesis OLP to
redeem Common OLP Units held by such requesting Holder at a per unit redemption
price (the "Redemption Price") equal to the per unit proceeds, net of
underwriting discounts and commissions or placement fees, if any, of a sale by
Genesis MLP of a number of Common Units equal to the number (the "Aggregate
Redemption Number") of Common OLP Units the Participating Holders request at any
one time in the applicable Notice of Demand and, as the case may be, a
Participation Notice to have redeemed, as such requested number may be reduced
pursuant to Section 2.1(d) of this Agreement. Upon receipt of a Notice of Demand
and, as the case may be, a Participation Notice, Genesis MLP shall, subject to
Sections 2.1(b) and 2.1(d) of this Agreement, use Reasonable Efforts (i) to sell
a number of Common Units at least equal to the Aggregate Redemption Number, (ii)
if the sale of Common Units is to be effected pursuant to a registered public
offering, to effect at the earliest practicable date the registration under the
Securities Act of a number of Common Units at least equal to the Aggregate
Redemption Number, (iii) to complete the sale in accordance with terms and
conditions satisfactory to the Participating Holders (provided that if such
terms are not satisfactory to any Participating Holder, then such Participating
Holder may withdraw its participation at any time prior to Genesis MLP's
undertaking of any contractual obligations to any underwriter or other purchaser
in connection with such sale) and (iv) to apply, pursuant to Section 2.1(e) of
this Agreement, the proceeds of such sale, net of underwriting discounts and
commissions or placement fees, if any, to the redemption by Genesis OLP of the
Common OLP Units with respect to which the Notice of Demand or Participation
Notice applies, as adjusted pursuant to Section 2.1(d) of this Agreement. Upon
completion of a sale with respect to a Notice of Demand or Participation Notice,
pursuant to Section 2.1(e) of this Agreement, each Participating Holder that has
not withdrawn in accordance with clause (ii) of the foregoing sentence shall be
obligated to transfer to Genesis OLP the number of Common OLP Units (the
"Individual Redemption Number") such Participating Holder requested be redeemed
in such Notice of Demand or Participation Notice, as such number of Common OLP
Units to be redeemed may have been reduced pursuant to Section 2.1(d) of this
Agreement. Genesis MLP shall not be obligated pursuant to this Agreement to
cause Genesis OLP to redeem Common OLP Units of Holders other than from the
proceeds of a sale of Common Units equal to the Aggregate Redemption Number
pursuant to this Agreement (net of underwriting discounts and commissions or
placement fees, if any, and excluding proceeds from the simultaneous sale of
Common Units in excess of the Aggregate Redemption Number, including pursuant to
any over-allotment option granted in connection with a sale pursuant to this
Agreement).
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(b) Limitations on Demand Redemption. (i) In case of an
underwritten public offering and notwithstanding any of the foregoing, (A)
Genesis MLP shall not be obligated to file a registration statement at any time
during the six-month period immediately following the effective date of another
registration statement subject to this Agreement and (B) Genesis MLP may delay
for a period not to exceed 60 days after receipt of a Notice of Demand the
filing of a registration statement pursuant to this Section 2.1, and may for a
period not to exceed 60 days after receipt of a Notice of Demand withhold
efforts to cause the registration statement to become effective, if the General
Partner determines in good faith that such registration might (x) interfere with
or affect the negotiation or completion of any transaction that is being
contemplated by Genesis MLP (whether or not a final decision has been made to
undertake such transaction) at the time the right to delay is exercised, or (y)
involve disclosure obligations the timing of which is not in the best interests
of Genesis MLP, including, but not limited to, the obligation to conduct a
special audit prior to the regular audit conducted by Genesis MLP.
(ii) The right of a Holder to request Genesis MLP to cause
redemption of Common OLP Units shall be limited to one Notice of Demand and one
Participation Notice during any period of six (6) consecutive months.
(c) Notice to the Non-Requesting Holder. Upon receipt of any
Notice of Demand, Genesis MLP will give prompt (but in any event within ten (10)
days after such receipt) notice to the non-requesting Holder of the receipt of
the Notice of Demand. Upon the request of any such Holder to participate
("Participation Notice") made within fifteen (15) days after the receipt by such
Holder of any such notice (which request shall specify the number of Common OLP
Units to be redeemed Genesis MLP will (subject to any priorities in redemption
rights) use Reasonable Efforts to effect the sale of a number of Common Units
equal to at least the number of Common OLP Units to be redeemed from the
Participating Holders.
(d) Priority in Demand Redemption. Notwithstanding Section 2.1(a)
of this Agreement, in the case of an underwritten offering, if the managing
underwriter of an underwritten offering of the Common Units being distributed
pursuant to this Agreement, or the placement agent in the case of a private
sale, shall inform Genesis MLP by letter of its belief that the amount of
securities requested to be included in such distribution or private placement
exceeds the amount which can be sold in such distribution or placement within a
price range acceptable to the Participating Holders, then Genesis MLP will
include in such distribution or placement such amount of Common Units which
Genesis MLP is so advised can be sold in such sale pro rata on the basis of the
Participating Holders' respective aggregate ownership of Subordinated OLP Units
and Common OLP Units or otherwise as the Participating Holders may agree.
(e) Redemption Mechanics. Prior to the undertaking by Genesis MLP
of any contractual obligations to any underwriter or other purchaser to complete
any sale of Common Units by Genesis MLP pursuant to this Agreement, the
Participating Holders shall transfer to a custodian, pursuant to custodial
arrangements satisfactory to Genesis MLP and the Participating Holders,
certificates representing Common OLP Units equal to the Aggregate Redemption
Number. After
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the completion of a sale of Common Units by Genesis MLP pursuant to this
Agreement, Genesis MLP shall transfer to Genesis OLP the proceeds of the sale of
a number of Common Units equal to the Aggregate Redemption Number, net of
underwriting discounts and commissions or placement fees, if any, with respect
to such sale. Genesis OLP shall thereafter send a notice (a "Redemption
Notice") to each Participating Holder that has not withdrawn in accordance with
clause (ii) of Section 2.1(a) of this Agreement specifying (i) that the sale is
complete and (ii) that Genesis OLP will redeem the Individual Redemption Number
of Common OLP Units of such Participating Holder. Within ten (10) days after
the date of the Redemption Notice, Genesis OLP shall submit payment of the
Redemption Price to the Participating Holders.
Section 2.2. Redemption Terms and Procedures.
(a) Underwritten Public Offering. If the sale of Common Units
pursuant to this Agreement is conducted through a registered underwritten public
offering:
(i) Registration Statement Form. Registrations pursuant to this
Agreement shall be on such appropriate registration forms of the SEC as shall
permit the issuance and sale of Common Units. Genesis MLP agrees to include in
any such registration statement all information that any Participating Holder
shall reasonably request (to the extent such information relates to such
Participating Holder), and each Participating Holder shall be obligated to
provide to Genesis MLP information concerning such Participating Holder as
Genesis MLP shall reasonably request for inclusion in the registration
statement.
(ii) Registration Procedures. In connection with Genesis MLP's
obligations to register Common Units pursuant to this Agreement, Genesis MLP
will use Reasonable Efforts to effect such registration so as to permit the sale
of any Common Units included in such registration, and pursuant thereto Genesis
MLP will as expeditiously as possible:
(A) as soon as reasonably practicable after receipt of a
Notice of Demand and a Participation Notice (or the expiration of the period for
receipt thereof), prepare and file with the SEC the requisite registration
statement and thereafter use Reasonable Efforts to cause such registration
statement to be declared effective by the SEC, provided that before filing such
registration statement or any amendment or supplement thereto, Genesis MLP will
furnish to the Participating Holders copies of drafts of all such documents
proposed to be filed (excluding exhibits, which shall be made available upon
request by any Participating Holder), and any Participating Holder shall have
the opportunity to timely object to any information relating to such
Participating Holders contained therein and Genesis MLP will make the
corrections reasonably requested with respect to information relating to such
Participating Holder prior to filing any such registration statement, amendment
or supplement;
(B) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may
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be necessary to complete the distribution of the securities covered thereby and
as may be required to comply with Section 4(3) of the Securities Act and Rule
174 thereunder;
(C) furnish to each underwriter participating in the
distribution of securities under such registration statement, such number of
conformed copies of such registration statement and of each amendment thereto
(in each case excluding all exhibits and documents incorporated by reference,
which exhibits and documents shall be furnished upon request), such number of
copies of the prospectus contained in such registration statement (including
each preliminary prospectus) and any other prospectus filed under Rule 424 under
the Securities Act, as such underwriter may reasonably request to facilitate the
distribution of such Common Units;
(D) use Reasonable Efforts to register or qualify all Common
Units and other securities covered by such registration statement under all
applicable blue sky and other securities laws, and to keep such registration or
qualification in effect for so long as such registration statement remains in
effect, except that Genesis MLP shall not for any such purpose be required to
(a) qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this clause (D) be
obligated to be so qualified, (b) subject itself to taxation in any such
jurisdiction or (c) consent to general service of process in any jurisdiction;
(E) use Reasonable Efforts to cause all Common Units covered
by such registration statement to be registered with or approved by such other
governmental agencies or authorities applicable to Genesis MLP as may be
reasonably necessary to enable Genesis MLP (or underwriter or agent, if any) to
consummate the offering and sale of such Common Units pursuant to such
registration statement;
(F) use Reasonable Efforts to prevent the issuance by the SEC
or any other governmental agency or court of a stop order, injunction or other
order suspending the effectiveness of such registration statement and, if such
an order is issued, use Reasonable Efforts to cause such order to be lifted as
promptly as practicable;
(G) take such other actions as are reasonably necessary to
expedite or facilitate the disposition of such Common Units; and
(H) participate, to the extent reasonably requested by the
managing underwriter for the offering, in customary efforts to sell the
securities under the offering.
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(b) Private Sale. In the case of a private placement, Genesis MLP
will use Reasonable Efforts to effect such private placement as to permit the
sale of any Common Units included in such private placement, and pursuant
thereto, Genesis MLP will as expeditiously as possible and as soon as reasonably
practicable after receipt of a Notice of Demand and a Participation Notice (or
the expiration of the period for receipt thereof), prepare and distribute the
requisite private placement memorandum, provided that before distributing such
private placement memorandum or any amendment or supplement thereto, Genesis MLP
will furnish to the Participating Holders copies of drafts of all such documents
proposed to be distributed (excluding exhibits, which shall be made available
upon request by any Participating Holder), and any Participating Holder shall
have the opportunity to timely object to any information relating to such
Participating Holders contained therein and Genesis MLP will make the
corrections reasonably requested with respect to information relating to such
Participating Holder prior to distribution of any such private placement
memorandum, amendment or supplement. Each Participating Holder shall be
obligated to provide to Genesis MLP information concerning such Participating
Holder as Genesis MLP shall reasonably request for inclusion in any such private
placement memorandum.
(c) General Redemption Terms.
(i) Offering Expenses. Genesis MLP will pay all Offering Expenses
incurred in connection with one Demand Redemption effected pursuant to a Notice
of Demand by Basis and one Demand Redemption effected pursuant to a Notice of
Demand by Xxxxxx on behalf of the Xxxxxx Subsidiaries (including any incremental
expenses resulting from the inclusion of additional Common Units by reason of a
Participation Notice being given); Offering Expenses associated with subsequent
sales effected pursuant to Section 2.1 shall be borne by the Participating
Holders.
(ii) Effectiveness of Demand Redemption. A Demand Redemption will
not be deemed to have been effected under Section 2.1 unless a sale of Common
Units has been effected pursuant thereto.
(iii) Selection of Underwriter or Placement Agent. The
Participating Holders shall select one or more nationally recognized firms of
investment bankers to act as the book-running managing underwriter or
underwriters in the case of an underwritten public offering, and, in the case of
a private placement, as placement agents, in connection with a distribution or
private placement effected pursuant to Section 2.1, provided that such selection
shall be subject to the consent of Genesis MLP, which consent shall not be
unreasonably withheld.
Section 2.3. Underwriting Agreement.
If the sale of Common Units pursuant to this Agreement is conducted
through an underwritten public offering, Genesis MLP hereby agrees to enter into
an underwriting agreement with the underwriters for such offering selected
pursuant to Section 2.2 (c)(iii), such agreement (a) to be reasonably
satisfactory in substance and form to the Participating Holders and (b) to
contain such
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representations and warranties by Genesis MLP and by each of the Participating
Holders and such other terms as are generally prevailing in agreements of such
type.
Section 2.4. Indemnification.
(a) Indemnification by Genesis MLP. Genesis MLP agrees to indemnify
and hold harmless, to the full extent permitted by law, the Participating
Holders, their directors, officers, shareholders, employees, investment
advisers, agents and Affiliates, either direct or indirect (and each such
Affiliate's directors, officers, shareholders, employees, investment advisers
and agents), and each other Person, if any, who controls such Persons within the
meaning of the Securities Act (each such Person, an "Indemnified Party"), from
and against any losses, claims, damages, liabilities or expenses, joint or
several (each a "Loss" and collectively, "Losses"), to which such Indemnified
Party may become subject under the Securities Act, to the extent that such
Losses (or actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any registration statement under
which such securities were registered under the Securities Act (including all
documents incorporated therein by reference), any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any amendment or
supplement thereto (or in any private placement memorandum distributed by
Genesis MLP to effect a private placement of Common Units pursuant to this
Agreement), or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and Genesis MLP will reimburse such Indemnified Party for any legal
or any other expenses reasonably incurred by it in connection with investigating
or defending against any such Loss, action or proceeding; provided that in any
such case Genesis MLP shall not be liable to any particular Indemnified Party to
the extent that such Loss (or action or proceeding in respect thereof) arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, amendment or supplement (or in any
private placement memorandum distributed by Genesis MLP to effect a private
placement of Common Units pursuant to this Agreement), in reliance upon and in
conformity with written information furnished to Genesis MLP by such Indemnified
Party specifically for inclusion therein. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of such
Indemnified Party and shall survive the transfer of such securities by such
Indemnified Party. Genesis MLP shall also indemnify each other Person who
participates (including as an underwriter) in the offering or sale of Common
Units hereunder, its officers and directors and each other Person, if any, who
controls any such participating Person within the meaning of the Securities Act
to the same extent as provided above with respect to Indemnified Parties.
(b) Indemnification by the Participating Holders. (i) Genesis MLP may
require, as a condition to filing any registration statement or distributing any
private placement memorandum for the issuance and sale of new Common Units
pursuant to this Agreement and as a condition to indemnifying the Participating
Holders pursuant to this Section 2.4, that Genesis MLP shall have received an
undertaking reasonably satisfactory to it from each Participating Holder in
which they agree to indemnify and hold harmless and reimburse (in the same
manner and to the same extent as
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set forth in paragraph (a) of this Section 2.4) Genesis MLP, Genesis OLP, each
director, officer, employee and agent of Genesis MLP and Genesis OLP, and each
other Person, if any, who controls Genesis MLP and Genesis OLP within the
meaning of the Securities Act or the Exchange Act, from and against any Losses
(or actions or proceedings, whether commenced or threatened, in respect thereof)
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in any registration statement under which such
securities were registered under the Securities Act (including all documents
incorporated therein by reference), any preliminary prospectus, final prospectus
or summary prospectus contained therein, or any amendment or supplement thereto
(or in any private placement memorandum distributed by Genesis MLP to effect a
private placement of the Common Units pursuant to this Agreement), or any
omission or alleged omission from such registration statement, preliminary
prospectus, final prospectus or summary prospectus, or any amendment or
supplement thereto required to be stated therein or necessary to make the
statements therein not misleading, if (but only if) such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to Genesis MLP by such
Participating Holder specifically for inclusion therein; provided, however, that
no Participating Holder shall be obligated to provide such indemnity to the
extent that such Losses result, directly or indirectly, from the failure of
Genesis MLP to promptly amend or take action to correct or supplement any such
registration statement, prospectus, amendment or supplement (or in any private
placement memorandum distributed by Genesis MLP to effect a private placement of
Common Units pursuant to this Agreement), based on corrected or supplemental
information provided in writing by such Participating Holder to Genesis MLP
expressly for such purpose; and provided further, that the obligation to provide
indemnification pursuant to this Section 2.4(b) shall be several, and not joint
and several, among such indemnifying parties. Notwithstanding anything in this
Section 2.4(b) to the contrary, in no event shall the liability of any
Participating Holder under such indemnity be greater in amount than the amount
of the proceeds received by such Participating Holder upon the redemption from
such Participating Holder of Common OLP Units using proceeds from the sale of
Common Units to which the Losses relate. Such indemnity shall remain in full
force and effect, regardless of any investigation made by or on behalf of
Genesis MLP or any such director, officer, employee, agent or participating or
controlling Person and shall survive the transfer of such securities by such
Participating Holder.
(c) Notices of Claims, etc. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
claim referred to in paragraph (a) or (b) of this Section 2.4, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party, give prompt written notice to the latter of the commencement of such
action, provided that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its obligations
under this Section 2.4, except to the extent that the indemnifying party is
actually and materially prejudiced by such failure to give notice. In case any
such action is brought against an indemnified party, the indemnifying party
shall be entitled to participate in and to assume the defense thereof (such
assumption to constitute its acknowledgment of its agreement to indemnify the
indemnified party with respect to such matters), jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such
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indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
fees or other expenses subsequently incurred by the latter in connection with
the defense thereof other than reasonable costs of investigation; provided,
however, that if, in such indemnified party's reasonable judgment, a conflict of
interest between such indemnified and indemnifying parties may exist in respect
of such claim, such indemnified party shall be entitled to separate counsel at
the expense of the indemnifying party; and provided further, that, unless there
exists a conflict of interest among indemnified parties, all indemnified parties
in respect of such claim shall be entitled to only one counsel or firm of
counsel for all such indemnified parties. In the event an indemnifying party
shall not be entitled, or elects not, to assume the defense of a claim, such
indemnifying party shall not be obligated to pay the fees and expenses of more
than one counsel or firm of counsel for all parties indemnified by such
indemnifying party in respect of such claim, unless in the reasonable judgment
of any such indemnified party a conflict of interest exists between such
indemnified party and any other of such indemnified parties in respect of such
claim, in which event the indemnifying party shall be obligated to pay the fees
and expenses of one additional counsel or firm of counsel for such indemnified
parties. No indemnifying party shall, without the consent of the indemnified
party, consent to entry of any judgment or enter into any settlement that (i)
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all Losses in respect of
such claim or litigation or (ii) would impose injunctive relief on such
indemnified party. No indemnifying party shall be subject to any Losses for any
settlement made without its consent, which consent shall not be unreasonably
withheld.
(d) Other Indemnification. The provisions of this Section 2.4 shall
be in addition to any other rights to indemnification or contribution which an
indemnified party may have pursuant to law, equity, contract or otherwise.
(e) Indemnification Payments. The indemnification required by this
Section shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, promptly after receipt by the
Indemnifying Party of invoices or other evidence of Losses incurred by the
Indemnified Party.
(f) Contribution. If for any reason the foregoing indemnity and
reimbursement is unavailable or is insufficient to hold harmless an indemnified
party under paragraph (a) or (b) of this Section 2.4, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of any Loss (or actions or proceedings, whether commenced or
threatened, in respect thereof), including, without limitation, any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such Loss, action or proceeding, in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and the indemnified party 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 information supplied by the indemnifying party or the
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. Notwithstanding anything in
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this Section 2.4(f) to the contrary, no indemnifying party (other than Genesis
MLP) shall be required pursuant to this Section 2.4(f) to contribute any amount
in excess of the amount by which the net proceeds received by such indemnifying
party from the sale of Common Units in the offering to which the Losses of the
indemnified parties relate exceeds the amount of any damages which such
indemnifying party has otherwise been required to pay by reason of such untrue
statement or 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.
Section 2.5. Term.
This Agreement shall be effective on the date hereof and shall
continue in full force and effect until all Subordinated OLP Units have
converted into Common OLP Units and all Common OLP Units have been purchased or
redeemed.
Section 2.6. Holdback Agreement.
If any sale hereunder shall be in connection with an underwritten
public offering, each Holder agrees not to sell or request any redemption of
Common OLP Units by Genesis OLP and thereby cause Genesis MLP to effect any
public sale or distribution, including any sale pursuant to Rule 144 under the
Securities Act, of Common Units other than as part of such underwritten public
offering within seven (7) days before or 90 days (or such lesser period as the
managing underwriter may permit) after the effective date of such registration.
Section 2.7. Amendments and Waivers.
This Agreement may be amended, supplemented or modified at any time,
provided that each of (i) Basis and Xxxxxx, on behalf of the Xxxxxx
Subsidiaries, and (ii) Genesis MLP has provided its written consent to such
amendment, supplement or modification. Any term or condition of this Agreement
may be waived at any time by the party that is entitled to the benefit thereof,
but no such waiver shall be effective unless set forth in a written instrument
duly executed by or on behalf of the party waiving such term or condition. No
waiver by any party of any term or condition of this Agreement, in any one or
more instances, shall be deemed to be or construed as a waiver of the same term
or condition of this Agreement on any future occasion.
Section 2.8. Entire Agreement.
This Agreement supersedes all prior discussions and agreements between
the parties with respect to the subject matter hereof and contains the sole and
entire agreement between the parties hereto with respect to the subject matter
hereof.
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Section 2.9. No Third-Party Beneficiary.
The terms and provisions of this Agreement are intended solely for the
benefit of each party and their respective Successors and it is not the
intention of the parties to confer third-party beneficiary rights upon any other
Person.
Section 2.10. Invalid Provisions.
If any provision of this Agreement is held to be illegal, invalid or
unenforceable under any present or future law, (i) such provision will be fully
severable, (ii) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof,
(iii) the remaining provisions of this Agreement will remain in full force and
effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom and (iv) in lieu of such illegal, invalid
or unenforceable provision, there will be added automatically as a part of this
Agreement a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible.
Section 2.11. Notices.
All notices, requests and other communications hereunder must be in
writing and will be deemed to have been duly given only (i) if delivered
personally, (ii) by facsimile transmission, (iii) by Federal Express or other
nationally recognized courier service or (iv) mailed (first class postage
prepaid) to the parties at the following addresses or facsimile numbers:
If to Genesis MLP to:
Genesis Energy, L.P.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: President
with a copy to:
General Counsel
Fax No.: (713) 646-____
If to Basis, to:
Basis Petroleum, Inc.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: President
with a copy to:
General Counsel
Fax No.: (000) 000-0000
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If to Xxxxxx or any of the Xxxxxx Subsidiaries, to:
Xxxxxx Corporation
0000 Xxxxxx, Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Fax No.: (000) 000-0000
Section 2.12. Assignment.
Basis and the Xxxxxx Subsidiaries may assign (by written instruments
in form reasonably acceptable to the parties) any of their rights hereunder (in
whole or in part) to one or more transferees of Subordinated OLP Units or Common
OLP Units ("Assignee"). Any such assignment may provide that each Assignee shall
be entitled (subject to priorities in registration rights) to participate in a
sale of Common Units pursuant to this Agreement and, with respect to any such
participation, to have all of the rights of its assignor provided in this
Agreement, provided that the assignment of rights by Basis or any Xxxxxx
Subsidiary shall not enlarge the rights of Basis or any Xxxxxx Subsidiary
hereunder, and any such assignment shall establish the procedures for the
exercise of the rights originally granted to Basis or such Xxxxxx Subsidiary
hereunder, as the case may be. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their successors and
assigns .
In case Basis transfers less than all of its Subordinated OLP Units
and Common OLP Units (collectively, the "OLP Units") to one or more transferees,
Basis shall retain the right to act on behalf of such transferees for purposes
of this Agreement. In case Basis transfers all of its OLP Units to one or more
transferees, Basis shall appoint an agent who shall act on behalf of such
transferees for purposes of this Agreement.
In case any Xxxxxx Subsidiary transfers its OLP Units, Xxxxxx shall
act on behalf of the transferee(s) for purposes of this Agreement. In case all
of the Xxxxxx Subsidiaries transfer their OLP Units to one or more transferees,
Xxxxxx shall appoint an agent who shall act on behalf of such transferee(s) for
purposes of this Agreement.
Section 2.13. Descriptive Headings.
The descriptive headings of the several sections and paragraphs of
this Agreement are inserted for convenience of reference only and do not define
or limit the provisions hereof or otherwise affect the meaning hereof.
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Section 2.14. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE CONFLICTS OF LAW
PRINCIPLES THEREOF.
Section 2.15. Attorneys' Fees.
In any action or proceeding brought to enforce any provision of this
Agreement or where any provision hereof is validly asserted as a defense, the
successful party shall, to the extent permitted by applicable law, be entitled
to recover reasonable attorneys' fees in addition to any other available remedy.
Section 2.16. No Inconsistent Agreements.
Genesis MLP will not hereafter enter into, modify, amend or waive any
agreement with respect to its securities if such agreement, modification or
waiver would conflict with the rights granted pursuant to this Agreement to
Basis, Xxxxxx and the Xxxxxx Subsidiaries.
Section 2.17. Pledge Agreement.
The rights of Basis and Xxxxxx or of their Assignees pursuant to this
Agreement shall be subject to their obligations under and to the terms of the
Pledge Agreement.
Section 2.18. Specific Performance.
The parties agree that, to the extent permitted by law, (i) the
obligations imposed on them in this Agreement are special, unique and of an
extraordinary character, and that in the event of a breach by any such party
damages would not be an adequate remedy and (ii) each of the other parties shall
be entitled to specific performance and injunctive and other equitable relief in
addition to any other remedy to which it may be entitled at law or in equity.
Section 2.19. Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed an original, but all of which shall
together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
GENESIS ENERGY, L.P.
By: GENESIS ENERGY, L.L.C., its general partner
By:____________________________________________
Name:_______________________________________
Title:______________________________________
GENESIS CRUDE OIL, L.P.
By: GENESIS ENERGY, L.L.C., its general partner
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
BASIS PETROLEUM, INC.
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
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XXXXXX XXXXXXXXXXX
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
XXXXXX CRUDE OIL COMPANY
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
XXXXXX PIPELINE TEXAS, INC.
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
HOWELL PIPELINE USA, INC.
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
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XXXXXX POWER SYSTEMS, INC.
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
XXXXXX TRANSPORTATION SERVICES, INC.
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
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