EXHIBIT 4.5
Execution Copy
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated August 19, 2003 (the
"Agreement") is entered into by and among Buckeye Partners, L.P., a Delaware
limited partnership (the "Partnership"), and X.X. Xxxxxx Securities Inc., UBS
Securities LLC, Citigroup Global Markets Inc., SunTrust Capital Markets, Inc.,
McDonald Investments Inc., National Australia Capital Markets, LLC, BNP Paribas
Securities Corp. and Fleet Securities, Inc. (the "Initial Purchasers").
The Partnership and the Initial Purchasers are parties to the Purchase
Agreement dated August 14, 2003 (the "Purchase Agreement"), which provides for
the sale by the Partnership to the Initial Purchasers of $150,000,000 aggregate
principal amount of the Partnership's 6.75% Notes due 2033 (the "Securities").
As an inducement to the Initial Purchasers to enter into the Purchase Agreement,
the Partnership has agreed to provide to the Initial Purchasers and their direct
and indirect transferees the registration rights set forth in this Agreement.
The execution and delivery of this Agreement is a condition to the closing under
the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"Base Indenture" shall mean the Indenture dated July 10, 2003 between
the Partnership and the Trustee.
"Business Day" shall mean any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed.
"Closing Date" shall mean the Closing Date as defined in the Purchase
Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Exchange Dates" shall have the meaning set forth in Section 2(a)(ii)
hereof.
"Exchange Offer" shall mean the exchange offer by the Partnership of
Exchange Securities for Registrable Securities pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean a registration
statement on Form S-4 (or, if applicable, on another appropriate form) with
respect to the Exchange Offer and all amendments and supplements to such
registration statement, in each case including the Prospectus contained therein,
all exhibits thereto and any document incorporated by reference therein.
"Exchange Securities" shall mean notes issued by the Partnership under
the Indenture containing terms identical to the Securities (except that the
Exchange Securities will not be subject to restrictions on transfer or to any
increase in annual interest rate for failure to comply with this Agreement) and
to be offered to Holders of Securities in exchange for Securities pursuant to
the Exchange Offer.
"General Partner" shall mean Buckeye Pipe Line Company, a Delaware
corporation and the general partner of the Partnership.
"Holders" shall mean the Initial Purchasers, for so long as they own
any Registrable Securities, and each of their successors, assigns and direct and
indirect transferees who become owners of Registrable Securities under the
Indenture; provided that for purposes of Sections 4 and 5 of this Agreement, the
term "Holders" shall include Participating Broker-Dealers.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"Indenture" shall mean the Base Indenture as amended and supplemented
by the Supplemental Indenture.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities; provided that
whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities owned
directly or indirectly by the General Partner, the Partnership or any of their
respective affiliates (as such term is defined in Rule 405 under the Securities
Act) shall not be counted in determining whether such consent or approval was
given by the Holders of such required percentage or amount.
"Operating Partnerships" shall mean, collectively, Buckeye Pipe Line
Company, L.P., a Delaware limited partnership, Buckeye Pipe Line Holdings, L.P.,
a Delaware limited partnership, Everglades Pipe Line Company, L.P., a Delaware
limited partnership, and Laurel Pipe Line Company, L.P., a Delaware limited
partnership.
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"Participating Broker-Dealers" shall have the meaning set forth in
Section 4(a) hereof.
"Partnership" shall have the meaning set forth in the preamble and
shall also include the Partnership's successors.
"Person" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to such prospectus, and in each case including
any document incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Registrable Securities" shall mean the Securities; provided that the
Securities shall cease to be Registrable Securities (i) when a Registration
Statement with respect to such Securities has been declared effective by the SEC
under the Securities Act and such Securities have been exchanged or disposed of
pursuant to such Registration Statement, (ii) when such Securities are eligible
to be sold pursuant to Rule 144(k) (or any similar provision then in force, but
not Rule 144A) under the Securities Act or (iii) when such Securities cease to
be outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Partnership with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of counsel for any
Underwriters or Holders in connection with blue sky qualification of any
Exchange Securities or Registrable Securities), (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus and any amendments or
supplements thereto, any underwriting agreements, securities sales agreements or
other similar agreements and any other documents relating to the performance of
and compliance with this Agreement, (iv) all rating agency fees, (v) all fees
and disbursements relating to the qualification of the Indenture under
applicable securities laws, (vi) the fees and disbursements of the Trustee and
its counsel, (vii) the fees and disbursements of counsel for the Partnership
and, in the case of a Shelf Registration Statement, the reasonable fees and
disbursements of one
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counsel for the Holders (which counsel shall be selected by the Majority Holders
and which counsel may also be counsel for the Initial Purchasers) and (viii) the
fees and disbursements of the independent public accountants of the Partnership,
including the expenses of any special audits or "comfort" letters required by or
incident to the performance of and compliance with this Agreement, but excluding
fees and expenses of counsel to the Underwriters (other than fees and expenses
set forth in clause (ii) above) or the Holders and underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
Registrable Securities by a Holder. In the case of registrations pursuant to
Section 2(a) and Section 2(b) hereof, "Registration Expenses" shall not include
fees and disbursements of underwriters' counsel.
"Registration Statement" shall mean any registration statement of the
Partnership that covers any of the Exchange Securities or Registrable Securities
pursuant to the provisions of this Agreement and all amendments and supplements
to any such registration statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and any
document incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shelf Effectiveness Period" shall have the meaning set forth in
Section 2(b) hereof.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Partnership that covers all the Registrable Securities (but no
other securities unless approved by the Holders whose Registrable Securities are
to be covered by such Shelf Registration Statement) on an appropriate form under
Rule 415 under the Securities Act, or any similar rule that may be adopted by
the SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and any document incorporated by
reference therein.
"Supplemental Indenture" shall mean the Second Supplemental Indenture
to the Base Indenture to be dated August 19, 2003.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended from time to time.
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"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
"Underwriter" shall have the meaning set forth in Section 3 hereof.
"Underwritten Offering" shall mean an offering in which Registrable
Securities are sold to an Underwriter for reoffering to the public.
2. Registration Under the Securities Act. (a) To the extent not
prohibited by any applicable law or applicable interpretations of the Staff of
the SEC, the Partnership shall use its reasonable best efforts to (i) cause to
be filed with the SEC, as soon as practicable but in no event later than 90 days
after the Closing Date, an Exchange Offer Registration Statement covering an
offer to the Holders to exchange all the Registrable Securities for Exchange
Securities, (ii) cause the Exchange Offer Registration Statement to be declared
effective as soon as practicable after the date it is filed and (iii) cause the
Exchange Offer to be completed not later than 180 days after the Closing Date.
The Partnership shall commence the Exchange Offer promptly after the Exchange
Offer Registration Statement is declared effective by the SEC and use its
reasonable best efforts to complete the Exchange Offer not later than 60 days
after such effective date.
The Partnership shall commence the Exchange Offer by mailing the
related Prospectus, appropriate letters of transmittal and other accompanying
documents to each Holder stating, in addition to such other disclosures as are
required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Agreement and
that all Registrable Securities validly tendered and not properly
withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at
least 20 Business Days from the date such notice is mailed) (the
"Exchange Dates");
(iii) that any Registrable Security not tendered will remain outstanding and
continue to accrue interest but will not retain any rights under this
Agreement;
(iv) that any Holder electing to have a Registrable Security exchanged
pursuant to the Exchange Offer will be required to surrender such
Registrable Security, together with the appropriate letters of
transmittal, to the institution and at the address (located in the
Borough of Manhattan, The City of New York) and in the manner specified
in the notice, prior to the close of business on the last Exchange
Date; and
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(v) that any Holder will be entitled to withdraw its election, not later
than the close of business on the last Exchange Date, by sending to the
institution and at the address (located in the Borough of Manhattan,
The City of New York) specified in the notice, a telegram, telex,
facsimile transmission or letter setting forth the name of such Holder,
the principal amount of Registrable Securities delivered for exchange
and a statement that such Holder is withdrawing its election to have
such Securities exchanged.
As a condition to participating in the Exchange Offer, a Holder will be
required to represent to the Partnership that (i) any Exchange Securities to be
received by it will be acquired in the ordinary course of its business, (ii) at
the time of the commencement of the Exchange Offer it has no arrangement or
understanding with any Person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Securities in violation of the
provisions of the Securities Act, (iii) it is not an "affiliate" (within the
meaning of Rule 405 under Securities Act) of the Partnership and (iv) if such
Holder is a broker-dealer that will receive Exchange Securities for its own
account in exchange for Registrable Securities that were acquired as a result of
market-making or other trading activities, then such Holder will deliver a
Prospectus in connection with any resale of such Exchange Securities.
As soon as practicable after the last Exchange Date, the Partnership
shall:
(i) accept for exchange Registrable Securities or portions thereof validly
tendered and not properly withdrawn pursuant to the Exchange Offer in
accordance with the terms of the Exchange Offer Registration Statement
and the letter of transmittal which is an exhibit thereto; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all
Registrable Securities or portions thereof so accepted for exchange by
the Partnership and issue, and cause the Trustee to promptly
authenticate and deliver to each Holder, Exchange Securities equal in
principal amount to the principal amount of the Registrable Securities
so accepted for exchange.
The Partnership shall use its reasonable best efforts to complete the
Exchange Offer as provided above and shall comply with the applicable
requirements of the Securities Act, the Exchange Act and other applicable laws
and regulations in connection with the Exchange Offer. The Exchange Offer shall
not be subject to any conditions, other than that the Exchange Offer does not
violate any applicable law or applicable interpretations of the Staff of the
SEC.
(b) In the event that (i) the Partnership determines that it is
not permitted to effect the Exchange Offer Registration or that the Exchange
Offer Registration may not be completed as soon as practicable after the last
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Exchange Date because it would violate any applicable law or applicable
interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any
other reason completed on or prior to the 180th day after the Closing Date or
(iii) upon completion of the Exchange Offer any Initial Purchaser shall so
request in connection with any offering or sale of Registrable Securities
(provided that such Initial Purchaser holds Registrable Securities from an
initial allotment that it acquired directly from the Partnership), the
Partnership shall use its reasonable best efforts to cause to be filed as soon
as practicable after such determination, date or request, as the case may be, a
Shelf Registration Statement providing for the sale of all the Registrable
Securities by the Holders thereof and to have such Shelf Registration Statement
declared effective by the SEC.
In the event that the Partnership is required to file a Shelf
Registration Statement pursuant to clause (iii) of the preceding sentence, the
Partnership shall use its reasonable best efforts to file and have declared
effective by the SEC both an Exchange Offer Registration Statement pursuant to
Section 2(a) with respect to all Registrable Securities and a Shelf Registration
Statement (which may be a combined Registration Statement with the Exchange
Offer Registration Statement) with respect to offers and sales of Registrable
Securities held by the Initial Purchasers after completion of the Exchange
Offer.
The Partnership agrees to use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective until the expiration of the
period referred to in Rule 144(k) under the Securities Act with respect to the
Registrable Securities or such shorter period that will terminate when all the
Registrable Securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement (the "Shelf Effectiveness
Period") or cease to be Registrable Securities. The Partnership further agrees
to supplement or amend the Shelf Registration Statement and the related
Prospectus if required by the rules, regulations or instructions applicable to
the registration form used by the Partnership for such Shelf Registration
Statement or by the Securities Act or by any other rules and regulations
thereunder for shelf registration or if reasonably requested by the Majority
Holders or Holders collectively holding $15.0 million in aggregate principal
amount of outstanding Securities ("Significant Holders") with respect to
information relating to such Majority Holders or Significant Holders, and to use
its reasonable best efforts to cause any such amendment to become effective and
such Shelf Registration Statement and Prospectus to become usable as soon as
thereafter practicable. The Partnership agrees to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment promptly after
its being used or filed with the SEC.
(c) The Partnership shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a) and Section 2(b)
hereof. Each Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to the Shelf Registration Statement.
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(d) An Exchange Offer Registration Statement pursuant to Section
2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC.
In the event that (i) the Partnership has not filed the Exchange Offer
Registration Statement with the SEC on or before the date by which such
Registration Statement is required to be filed pursuant to Section 2(a), or (ii)
the Exchange Offer is not completed on prior to the 180th day after the Closing
Date (each such event referred to in clause (i) or (ii), a "Registration
Default"), then the interest rate on the Registrable Securities will be
increased by (x) 0.25% per annum for the first 90-day period immediately
following the Registration Default and (y) an additional 0.25% per annum
immediately following such initial 90-day period, in each case until the
Exchange Offer Registration Statement is filed with the SEC, the Exchange Offer
is completed, or the Securities become freely tradable under the Securities Act
(which shall include, without limitation, a Shelf Registration Statement under
which the Securities may be sold being declared effective), up to a maximum of
0.50% per annum of additional interest.
If the Shelf Registration Statement has been declared effective and
thereafter either ceases to be effective or the Prospectus contained therein
ceases to be usable at any time during the Shelf Effectiveness Period, and such
failure to remain effective or usable continues for 30 consecutive days or
exists for more than an aggregate of 60 days in any 12-month period (such 31st
consecutive day or such 61st day in any 12-month period, the "Shelf Registration
Default Date"), then the interest rate on the Registrable Securities will be
increased by (i) 0.25% per annum for the first 90-day period immediately
following the Shelf Registration Default Date and (ii) an additional 0.25% per
annum immediately following such initial 90-day period, in each case ending on
such date that the Shelf Registration Statement has again been declared
effective or the Prospectus again becomes usable.
Anything herein to the contrary notwithstanding, no Holder who (x) was
eligible to exchange such Holder's outstanding Securities at the time that the
Exchange Offer was pending and consummated and (y) failed to validly tender such
Securities for exchange pursuant to the Exchange Offer shall be entitled to
receive any additional interest pursuant to the two preceding paragraphs.
(e) Without limiting the remedies available to the Initial
Purchasers and the Holders, the Partnership acknowledges that any failure by the
Partnership to comply with its obligations under Section 2(a) and Section 2(b)
hereof may result in material irreparable injury to the Initial Purchasers or
the Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the
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Initial Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Partnership's obligations under Section 2(a) and
Section 2(b) hereof.
3. Registration Procedures. In connection with their obligations
pursuant to Section 2(a) and Section 2(b) hereof, the Partnership shall as soon
as reasonably practicable:
(a) prepare and file with the SEC a Registration Statement, in the
time periods specified in Section 2 hereof, on the appropriate form under the
Securities Act, which form (x) shall be selected by the Partnership, (y) shall,
in the case of a Shelf Registration, be available for the sale of the
Registrable Securities by the selling Holders thereof and (z) shall comply as to
form in all material respects with the requirements of the applicable form and
include or incorporate by reference all financial statements required by the SEC
to be filed therewith; and use its reasonable best efforts to cause such
Registration Statement to become effective and remain effective for the
applicable period in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement effective for the applicable period in
accordance with Section 2 hereof and cause each Prospectus to be supplemented by
any required prospectus supplement and, as so supplemented, to be filed pursuant
to Rule 424 under the Securities Act; and keep each Prospectus current during
the period described in Section 4(3) of and Rule 174 under the Securities Act
that is applicable to transactions by brokers or dealers with respect to the
Registrable Securities or Exchange Securities;
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, to counsel for the Initial Purchasers, to counsel for
such Holders, if any has been identified by notice to the Partnership, and to
each Underwriter of an Underwritten Offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto, in order to facilitate the
sale or other disposition of the Registrable Securities thereunder; and the
Partnership consents to the use of such Prospectus and any amendment or
supplement thereto in accordance with applicable law by each of the selling
Holders of Registrable Securities and any such Underwriters in connection with
the offering and sale of the Registrable Securities covered by and in the manner
described in such Prospectus or any amendment or supplement thereto in
accordance with applicable law;
(d) use its reasonable best efforts to register or qualify the
Registrable Securities under all applicable state securities or blue sky laws of
such jurisdictions as any Holder of Registrable Securities covered by a
Registration
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Statement shall reasonably request in writing by the time the applicable
Registration Statement is declared effective by the SEC; cooperate with the
Holders in connection with any filings required to be made with the National
Association of Securities Dealers, Inc.; and do any and all other acts and
things that may be reasonably necessary or advisable to enable each Holder to
complete the disposition in each such jurisdiction of the Registrable Securities
owned by such Holder; provided that the Partnership shall not be required to (i)
qualify as a foreign corporation or other entity or as a dealer in securities in
any such jurisdiction where it would not otherwise be required to so qualify,
(ii) file any general consent to service of process in any such jurisdiction or
(iii) subject itself to taxation in any such jurisdiction if it is not so
subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities, counsel for such Holders and counsel for the Initial
Purchasers promptly and, if requested by any such Holder or counsel, confirm
such advice in writing (i) when a Registration Statement has become effective
and when any post-effective amendment thereto has been filed and becomes
effective, (ii) of any request by the SEC or any state securities authority for
amendments and supplements to a Registration Statement and Prospectus or for
additional information after the Registration Statement has become effective,
(iii) of the issuance by the SEC or any state securities authority of any stop
order suspending the effectiveness of a Registration Statement or the initiation
of any proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable Securities
covered thereby, the representations and warranties of the Partnership contained
in any underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to an offering of such Registrable Securities cease
to be true and correct in all material respects or if the Partnership receives
any notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose, (v) of the happening of any event during the period
a Shelf Registration Statement is effective that makes any statement made in
such Registration Statement or the related Prospectus untrue in any material
respect or that requires the making of any changes in such Registration
Statement or Prospectus in order to make the statements therein not misleading
and (vi) of any determination by the Partnership that a post-effective amendment
to a Registration Statement would be appropriate;
(f) use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement at the
earliest possible moment and provide immediate notice to each Holder of the
withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (without any
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documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends and enable such Registrable Securities to be
issued in such denominations and registered in such names (consistent with the
provisions of the Indenture) as the selling Holders may reasonably request at
least one Business Day prior to the closing of any sale of Registrable
Securities;
(i) in the case of a Shelf Registration, upon the occurrence of
any event contemplated by Section 3(e)(v) hereof, use its reasonable best
efforts to prepare and file with the SEC a supplement or post-effective
amendment to a Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to purchasers of the Registrable Securities, such
Prospectus will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and the
Partnership shall notify the Holders of Registrable Securities to suspend use of
the Prospectus as promptly as practicable after the occurrence of such an event,
and such Holders hereby agree to suspend use of the Prospectus until the
Partnership has amended or supplemented the Prospectus to correct such
misstatement or omission;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or of any document that is to be
incorporated by reference into a Registration Statement or a Prospectus after
initial filing of a Registration Statement, provide copies of such document to
the Initial Purchasers and their counsel (and, in the case of a Shelf
Registration Statement, to the Holders of Registrable Securities and their
counsel) and make such of the representatives of the Partnership as shall be
reasonably requested by the Initial Purchasers or their counsel (and, in the
case of a Shelf Registration Statement, the Holders of Registrable Securities or
their counsel) available for discussion of such document; and the Partnership
shall not, at any time after initial filing of a Registration Statement, file
any Prospectus, any amendment of or supplement to a Registration Statement or a
Prospectus, or any document that is to be incorporated by reference into a
Registration Statement or a Prospectus, of which the Initial Purchasers and
their counsel (and, in the case of a Shelf Registration Statement, the Holders
of Registrable Securities and their counsel) shall not have previously been
advised and furnished a copy or to which the Initial Purchasers or their counsel
(and, in the case of a Shelf Registration Statement, the Holders or their
counsel) shall object within a reasonable time period;
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(k) obtain a CUSIP number for all Exchange Securities or
Registrable Securities, as the case may be, not later than the effective date of
a Registration Statement;
(l) cause, if necessary, the Supplemental Indenture to be
qualified under the Trust Indenture Act in connection with the registration of
the Exchange Securities or Registrable Securities, as the case may be; cooperate
with the Trustee and the Holders to effect such changes to the Supplemental
Indenture as may be required for the Indenture to be so qualified in accordance
with the terms of the Trust Indenture Act; and execute, and use its reasonable
best efforts to cause the Trustee to execute, all documents as may be required
to effect such changes and all other forms and documents required to be filed
with the SEC to enable the Supplemental Indenture to be so qualified in a timely
manner;
(m) in the case of a Shelf Registration, make available for
inspection by a representative of the Holders of the Registrable Securities (an
"Inspector"), any Underwriter participating in any disposition pursuant to such
Shelf Registration Statement, and attorneys and accountants designated by the
Holders, at reasonable times and in a reasonable manner, all pertinent financial
and other records, documents and properties of the Operating Partnerships and
cause the respective officers, directors and employees of the Partnership to
supply all information reasonably requested by any such Inspector, Underwriter,
attorney or accountant in connection with a Shelf Registration Statement;
provided that if any such information is identified by the Partnership as being
confidential or proprietary, each Person receiving such information shall take
such actions as are reasonably necessary to protect the confidentiality of such
information to the extent such action is otherwise not inconsistent with, an
impairment of or in derogation of the rights and interests of any Inspector,
Holder or Underwriter);
(n) in the case of a Shelf Registration, use its reasonable best
efforts to cause all Registrable Securities to be listed on any securities
exchange or any automated quotation system on which similar securities issued by
the Partnership are then listed if requested by the Majority Holders, to the
extent such Registrable Securities satisfy applicable listing requirements;
(o) if reasonably requested by any Holder of Registrable
Securities covered by a Registration Statement, promptly incorporate in a
Prospectus supplement or post-effective amendment such information with respect
to such Holder as such Holder reasonably requests to be included therein and
make all required filings of such Prospectus supplement or such post-effective
amendment as soon as the Partnership has received notification of the matters to
be incorporated in such filing; and
(p) in the case of a Shelf Registration, enter into such customary
agreements and take all other customary actions in connection therewith
(including those requested by the Holders of a majority in principal amount of
the
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Registrable Securities being sold) in order to expedite or facilitate the
disposition of such Registrable Securities including, but not limited to, an
Underwritten Offering and in such connection, (i) to the extent possible, make
such representations and warranties to the Holders and any Underwriters of such
Registrable Securities with respect to the business of the Operating
Partnerships, the Registration Statement, Prospectus and documents incorporated
by reference or deemed incorporated by reference, if any, in each case, in form,
substance and scope as are customarily made by issuers to underwriters in
underwritten offerings and confirm the same if and when requested, (ii) obtain
opinions of counsel to the Partnership (which counsel and opinions, in form,
scope and substance, shall be reasonably satisfactory to the Holders and the
managing Underwriters and their respective counsel) addressed to each selling
Holder and Underwriter of Registrable Securities, covering the matters
customarily covered in opinions requested in underwritten offerings of the type
contemplated by this provision, (iii) obtain "comfort" letters from the
independent certified public accountants of the Partnership (and, if necessary,
any other certified public accountant of any Operating Partnership, or of any
business acquired by the Partnership for which financial statements and
financial data are or are required to be included in the Registration Statement)
addressed to each selling Holder and Underwriter of Registrable Securities
(subject, in each case, to the policies and procedures of the Partnership's
independent certified public accountants and such other certified public
accountants regarding the preparation and delivery of such letters), such
letters to be in customary form and covering matters of the type customarily
covered in "comfort" letters in connection with underwritten offerings of the
type contemplated by this provision and (iv) deliver such documents and
certificates as may be reasonably requested by the Holders of a majority in
principal amount of the Registrable Securities being sold or the Underwriters,
and which are customarily delivered in underwritten offerings of the type
contemplated by this provision, to evidence the continued validity of the
representations and warranties of the Partnership made pursuant to clause (i)
above and to evidence compliance with any customary conditions contained in an
underwriting agreement.
In the case of a Shelf Registration Statement, the Partnership may
require each Holder of Registrable Securities to furnish to the Partnership such
information regarding such Holder and the proposed disposition by such Holder of
such Registrable Securities as the Partnership may from time to time reasonably
request in writing. If any Holder fails to furnish such information in a timely
manner, the Partnership shall (i) have no further obligation under this
Agreement to provide for the disposition of such Holder's Registrable Securities
in the Shelf Registration Statement in respect to which such information was
requested, (ii) not be required to provide for the disposition of such Holder's
Registrable Securities in any post-effective amendment to such Shelf
Registration Statement or any future Shelf Registration Statement that is not
otherwise required to be filed and (iii) shall not be required to pay any
additional interest to such Holder as provided in Section 2(d) hereof.
13
In the case of a Shelf Registration Statement, each Holder of
Registrable Securities agrees that, upon receipt of any notice from the
Partnership of the happening of any event of the kind described in Section
3(e)(iii) or 3(e)(v) hereof, such Holder will forthwith discontinue disposition
of Registrable Securities pursuant to a Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(i) hereof and, if so directed by the Partnership, such
Holder will deliver to the Partnership all copies in its possession, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities that is current at the time of receipt of
such notice.
If the Partnership shall give any such notice to suspend the
disposition of Registrable Securities pursuant to a Registration Statement, the
Partnership shall extend the period during which the Registration Statement
shall be maintained effective pursuant to this Agreement by the number of days
during the period from and including the date of the giving of such notice to
and including the date when the Holders shall have received copies of the
supplemented or amended Prospectus necessary to resume such dispositions.
The General Partner and the Partnership shall enter into such customary
agreements (including, if requested by the Majority Holders or Significant
Holders, an underwriting agreement in customary form) and take all such other
actions, if any, as the Majority Holders or Significant Holders shall reasonably
request in order to facilitate the disposition of Registrable Securities covered
by a Shelf Registration Statement in an Underwritten Offering.
4. Participation of Broker-Dealers in Exchange Offer. (a) The
Staff of the SEC has taken the position that any broker-dealer that receives
Exchange Securities for its own account in the Exchange Offer in exchange for
Securities that were acquired by such broker-dealer as a result of market-making
or other trading activities (a "Participating Broker-Dealer") may be deemed to
be an "underwriter" within the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Securities.
The Partnership understands that it is the Staff's position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a
plan of distribution containing a statement to the above effect and the means by
which Participating Broker-Dealers may resell the Exchange Securities, without
naming the Participating Broker-Dealers or specifying the amount of Exchange
Securities owned by them, such Prospectus may be delivered by Participating
Broker-Dealers to satisfy their prospectus delivery obligation under the
Securities Act in connection with resales of Exchange Securities for their own
accounts, so long as the Prospectus otherwise meets the requirements of the
Securities Act.
14
(b) In light of the above, and notwithstanding the other
provisions of this Agreement, the Partnership agrees to amend or supplement the
Prospectus contained in the Exchange Offer Registration Statement, as would
otherwise be contemplated by Section 3(i), for a period of up to 180 days after
the last Exchange Date (as such period may be extended pursuant to the
penultimate paragraph of Section 3 of this Agreement), if requested by the
Initial Purchasers or by one or more Participating Broker-Dealers, in order to
expedite or facilitate the disposition of any Exchange Securities by
Participating Broker-Dealers consistent with the positions of the Staff recited
in Section 4(a) above. The Partnership further agrees that Participating
Broker-Dealers shall be authorized to deliver such Prospectus during such period
in connection with the resales contemplated by this Section 4.
(c) The Initial Purchasers shall have no liability to the General
Partner, the Partnership or any Holder with respect to any request that they may
make pursuant to Section 4(b) above.
5. Indemnification and Contribution. (a) The General Partner and the
Partnership, jointly and severally, agree to indemnify and hold harmless each
Initial Purchaser and each Holder, their respective affiliates, directors and
officers and each Person, if any, who controls any Initial Purchaser or any
Holder within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, reasonable legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim
asserted, as such fees and expenses are incurred), joint or several, that arise
out of, or are based upon, any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or any Prospectus or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except
insofar as such losses, claims, damages or liabilities arise out of, or are
based upon, any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with any information relating
to any Initial Purchaser or any Holder furnished to the Partnership in writing
through X.X. Xxxxxx Securities Inc. or any selling Holder expressly for use
therein. In connection with any Underwritten Offering permitted by Section 3,
the General Partner and the Partnership will also indemnify the Underwriters, if
any, selling brokers, dealers and similar securities industry professionals
participating in the distribution, their respective affiliates and each Person
who controls such Persons (within the meaning of the Securities Act and the
Exchange Act) to the same extent as provided above with respect to the
indemnification of the Holders, if requested in connection with any Registration
Statement; provided, however, that the indemnity agreement contained in this
paragraph (a) shall not inure to the benefit of any Holder (or to the benefit of
any person controlling such Holder) to the extent that the sale to the person
asserting any such loss, claim,
15
damage or liability was an initial resale by such Holder and any such loss,
claim, damage or liability of or with respect to such Holder results from the
fact that both (i) to the extent required by applicable law, a copy of the
Prospectus was not sent or given to such person at or prior to the written
confirmation of the sale of such Securities to such person (unless such failure
to deliver the Prospectus was a result of non-compliance by the Partnership with
its obligation to deliver copies of the Prospectus to such Holder), and (ii) the
untrue statement in or omission from such preliminary Prospectus was corrected
in the Prospectus.
(b) Each Holder agrees, severally and not jointly, to indemnify
and hold harmless the General Partnership, the Partnership, the Initial
Purchasers and the other selling Holders, their respective affiliates, the
directors of the General Partner, each officer of the General Partner and the
Partnership who signed the Registration Statement and each Person, if any, who
controls the General Partner, the Partnership, any Initial Purchaser and any
other selling Holder within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the indemnity set forth in
paragraph (a) above, but only with respect to any losses, claims, damages or
liabilities that arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to such Holder furnished to the
Partnership in writing by such Holder expressly for use in any Registration
Statement and any Prospectus.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnification may be sought pursuant to either
paragraph (a) or (b) above, such Person (the "Indemnified Person") shall
promptly notify the Person against whom such indemnification may be sought (the
"Indemnifying Person") in writing; provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have
under this Section 5 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person
otherwise than under this Section 5. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the Indemnified
Person and any others entitled to indemnification pursuant to this Section 5
that the Indemnifying Person may designate in such proceeding and shall pay the
reasonable fees and expenses of such counsel related to such proceeding, as
incurred. In any such proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless (i) the Indemnifying Person and
the Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified
16
Person; (iii) the Indemnified Person shall have reasonably concluded that there
may be legal defenses available to it that are different from or in addition to
those available to the Indemnifying Person; or (iv) the named parties in any
such proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm (x) for any Initial Purchaser, its affiliates, directors and
officers and any control Persons of such Initial Purchaser shall be designated
in writing by X.X. Xxxxxx Securities Inc., (y) for any Holder, its affiliates,
directors and officers and any control Persons of such Holder shall be
designated in writing by the Majority Holders and (z) in all other cases shall
be designated in writing by the Partnership. The Indemnifying Person shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested that an Indemnifying Person reimburse the
Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by the Indemnifying Person of such
request and (ii) the Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (A) includes an unconditional release of such
Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of
such proceeding and (B) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(d) If the indemnification provided for in paragraphs (a) and (b)
above is unavailable to an Indemnified Person or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the
17
Partnership from the offering of the Securities and the Exchange Securities, on
the one hand, and by the Holders from receiving Securities or Exchange
Securities registered under the Securities Act, on the other hand, or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the Partnership, on the
one hand, and the Holders, on the other hand, in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative fault of the
Partnership, on the one hand, and the Holders, on the other hand, 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 Partnership or by the
Holders and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Partnership and the Holders agree that it would not be
just and equitable if contribution pursuant to this Section 5 were determined by
pro rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses incurred
by such Indemnified Person in connection with any such action or claim.
Notwithstanding the provisions of this Section 5, in no event shall a Holder be
required to contribute any amount in excess of the amount by which the total
price at which the Securities or Exchange Securities sold by such Holder exceeds
the amount of any damages that such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
(f) The remedies provided for in this Section 5 are not exclusive
and shall not limit any rights or remedies that may otherwise be available to
any Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained in this
Section 5 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of the Initial Purchasers or any Holder, their respective affiliates or any
Person controlling any Initial Purchaser or any Holder, or by or on behalf of
the General Partner, the Partnership, their respective affiliates or the
officers or directors of or any Person controlling the General Partner or the
Partnership, (iii) acceptance of
18
any of the Exchange Securities and (iv) any sale of Registrable Securities
pursuant to a Shelf Registration Statement.
6. General.
(a) No Inconsistent Agreements. The General Partner and the
Partnership, jointly and severally, represent, warrant and agree that (i) the
rights granted to the Holders hereunder do not in any way conflict with and are
not inconsistent with the rights granted to the holders of any other outstanding
securities issued or guaranteed by the Partnership under any other agreement and
(ii) neither the General Partner nor the Partnership has entered into, or on or
after the date of this Agreement will enter into, any agreement that is
inconsistent with the rights granted to the Holders of Registrable Securities in
this Agreement or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Partnership has obtained the written consent of
Holders of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or consent; provided that no amendment, modification, supplement, waiver
or consent to any departure from the provisions of Section 5 hereof shall be
effective as against any Holder of Registrable Securities unless consented to in
writing by such Holder. Any amendments, modifications, supplements, waivers or
consents pursuant to this Section 6(b) shall be by a writing executed by each of
the parties hereto.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Partnership by means of a notice given in accordance with the provisions of
this Section 6(c), which address initially is, with respect to the Initial
Purchasers, the address set forth in the Purchase Agreement; (ii) if to the
Partnership, initially at the Partnership's address set forth in the Purchase
Agreement and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 6(c); and (iii) to such other
persons at their respective addresses as provided in the Purchase Agreement and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 6(c). All such notices and communications shall
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt is
acknowledged, if telecopied; and on the next Business Day if timely delivered to
an air courier guaranteeing overnight delivery. Copies of all such notices,
demands or other communications shall be concurrently delivered
19
by the Person giving the same to the Trustee, at the address specified in the
Indenture.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement or the Indenture.
If any transferee of any Holder shall acquire Registrable Securities in any
manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all the terms of this Agreement, and by taking and
holding such Registrable Securities such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement and such Person shall be entitled to receive the benefits hereof.
The Initial Purchasers (in their capacity as Initial Purchasers) shall have no
liability or obligation to the Partnership with respect to any failure by a
Holder to comply with, or any breach by any Holder of, any of the obligations of
such Holder under this Agreement.
(e) Purchases and Sales of Securities. The Partnership shall not,
and shall use its reasonable best efforts to cause its affiliates (as defined in
Rule 405 under the Securities Act) not to, purchase and then resell or otherwise
transfer any Registrable Securities.
(f) Third Party Beneficiaries. Each Holder shall be a third party
beneficiary to the agreements made hereunder between the Partnership, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights or the rights of other Holders
hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience
of reference only, are not a part of this Agreement and shall not limit or
otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(j) Miscellaneous. This Agreement contains the entire agreement
between the parties relating to the subject matter hereof and supersedes all
oral
20
statements and prior writings with respect thereto. If any term, provision,
covenant or restriction contained in this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable or against public
policy, the remainder of the terms, provisions, covenants and restrictions
contained herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. The Partnership and the Initial Purchasers
shall endeavor in good faith negotiations to replace the invalid, void or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, void or unenforceable
provisions.
21
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
BUCKEYE PIPE LINE COMPANY,
in its individual capacity
By: XXXXXXX X. XXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior VP, Administration
General Counsel & Secretary
BUCKEYE PARTNERS, L.P.
By: Buckeye Pipe Line Company,
its general partner
By: XXXXXXX X. XXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior VP, Administration
General Counsel & Secretary
Confirmed and accepted as of the date first above written:
X.X. XXXXXX SECURITIES INC.
For itself and on behalf of the
several Initial Purchasers
By XXXX XXXXXXX, XX.
----------------------------
Authorized Signatory
