UNIT REGISTRATION RIGHTS AGREEMENT
THIS UNIT REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of
February 14, 1997, by and among ENRON LIQUIDS PIPELINE, L.P., a Delaware limited
partnership (the "Partnership") , ENRON LIQUIDS PIPELINE COMPANY, a Delaware
corporation and general partner of the Partnership ("Seller") and FIRST UNION
INVESTORS, INC., a North Carolina corporation (the "Purchaser").
WITNESSETH:
WHEREAS, Seller and Purchaser have entered into a Unit Purchase Agreement
of even date herewith (the "Unit Purchase Agreement") in connection with the
proposed purchase by Purchaser from Seller of 429,000 Common Units (the
"Purchased Units") of the Partnership;
WHEREAS, pursuant to the Unit Purchase Agreement, the Purchaser has
established as a condition precedent to its obligation to purchase the Purchased
Units, that the Purchased Units be registered under the Securities Act of 1933
prior to purchase or as soon thereafter as practicable;
WHEREAS, the Seller hereby requests that the Partnership register the sale
of the Purchased Units by Purchaser pursuant to the provisions of the Amended
and Restated Agreement of Limited Partnership of the Partnership, as amended
(the "Partnership Agreement");
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth herein, the parties do hereby agree as follows:
1. Request for Registration. Seller requests that the Partnership proceed
to cause the registration of the sale by Purchaser of the Purchased Units under
the Securities Act of 1933 as soon as practicable. In connection with this
request for registration, Seller hereby certifies to the Partnership that Rule
144 of the Securities Act of 1933 or another exemption from registration is not
available to enable Seller to dispose of the number of Units it desires to sell
under the Unit Purchase Agreement without registration under the Securities Act
so as to permit the Purchaser to resell such securities publicly without the
need for registration under the Securities Act of 1933. Seller further
represents that it has not previously made a prior request for registration
pursuant to Section 6.13 (a) and acknowledges that the registration of
securities pursuant hereto shall count as one of the three registrations that
Seller is entitled to pursuant to Section 6.13(a).
2. Approval by Conflicts and Audit Committee. Seller further represents
that pursuant to the terms of the Partnership Agreement, Seller has presented
its request to the Conflicts and Audit Committee of the Partnership asking that
said Committee
determine in its good faith judgment that (i) no deferral of the Seller's
registration request would be in the best interests of the Partnership and its
Partners due to any pending transaction, investigation or other event; (ii) the
Seller's request for filing of the registration statement contained herein
should not be deferred; and (iii) either (A) the Seller's request for
registration contained herein is consistent with the registration rights of the
general partner as set forth in Section 6.13, or (B) the registration rights
provided hereunder are fair and reasonable to the Partnership. Furthermore, the
Seller hereby represents and warrants that Seller has received prior to the date
of this Agreement, the affirmative approval of the Conflicts and Audit Committee
as to each of the three matters referred to in the prior sentence and as to the
undertakings of the Partnership set forth herein.
3. Partnership Covenants. The Partnership hereby acknowledges that it has
received the request of its general partner for registration of the Purchased
Units pursuant to Section 6.13 of the Partnership Agreement. The Partnership
further acknowledges that immediate registration of the Purchased Units cannot
be accomplished prior to the contemplated delivery of the Purchased Units to the
Purchaser at Closing pursuant to the Unit Purchase Agreement due to insufficient
time prior to such Closing for preparation and filing of a registration
statement with the Securities and Exchange Commission. The Partnership,
therefore, hereby undertakes and irrevocably commits to file, as soon as
practicable after the Closing, a registration statement under the Securities Act
of 1933 as to the Purchased Units and will also prepare and file such documents
as may be necessary to register or qualify the Purchased Units pursuant to the
registration rights set forth in Section 6.13 of the Partnership under the
securities laws of such states as the Purchaser shall reasonably request, and
take such other actions in connection with such registration and qualification,
consistent with said Section 6.13, as may be reasonably necessary or advisable
to enable the Purchaser to consummate a public sale of the Purchased Units in
such states. The Partnership will use its best efforts acting in good faith, to
cause such registration statement to become effective as soon as possible and,
subject to Subparagraph 5(b), will maintain the effectiveness of such
registration statements for at least one year, or, if sooner, until all of the
Purchased Units have been sold thereunder.
4. Indemnification and Costs.
(a) Purchaser and the Partnership agree that in connection with the
registration of the Purchased Units described herein, such parties will execute
and deliver such indemnity agreements as are required pursuant to Subsection (c)
of Section 6.13 of the Partnership Agreement and otherwise as may be
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reasonably required by the underwriter in connection with the registration of
the Purchased Units described herein.
(b) Except as otherwise required by the indemnity agreements described
in Subparagraph 4(a) hereof, all costs and expenses of the registration (other
than the underwriting discounts and commissions) shall be paid by the
Partnership without reimbursement by the general partner or the Purchaser;
provided that Seller shall be solely responsible for any costs incurred in the
period beginning six (6) months after the effective date of the registration
statement to the extent required to maintain the effectiveness of the
registration statement until the earlier to occur of (i) the sale by Purchaser
of all Purchased Units or (ii) the expiration of twelve (12) months during which
such registration statement is or has remained effective.
5. Purchaser's Obligations.
(a) The Purchaser hereby agrees that it will assist the Partnership in
preparing, filing and maintaining the registration statements described herein
by providing information concerning the Purchaser and other information to the
extent required in the registration statement.
(b) The Purchaser further agrees that, at any time after the
registration statement provided for herein has been effective for at least six
months, it will thereafter, if so requested by the Partnership, agree to suspend
sales of the Purchased Units pursuant to such registration statement for a
period of up to six months, provided that (i) the Partnership requests such
suspension in good faith in order to facilitate a registered primary offering by
the Partnership of its equity securities, (ii) the Partnership agrees to extend
the period during which it is required to maintain the effectiveness of the
registration statement filed pursuant to Section 3 hereof by the number of days
equal to the period of such suspension, and (iii) in connection with such
primary offering by the Partnership, the Partnership provides to the Purchaser
the same "piggyback" registration rights with respect to the Purchased Units as
are provided in the case of securities held by a "Holder" pursuant to Section
6.13(b) of the Partnership Agreement.
6. Miscellaneous.
(a) This Agreement constitutes the final, complete and exclusive
statement of the Agreement of the parties hereto as of the subject matter
hereof, and all other prior or contemporaneous oral or written agreements of the
parties hereto with respect to the subject matter hereof are merged herein and
superseded hereby.
(b) This Agreement may be modified or amended only by express written
agreement of the parties hereto.
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(c) No waiver by any party of any provision hereof or part thereof at
any time shall constitute or evidence a waiver by such party of any other
provision or any other part of such provision or the same provision or part at
any other time.
(d) No party may assign its rights or delegate its duties hereunder
without the prior written consent of the other parties, except that the
Purchaser may assign its rights hereunder to any Affiliate of the Purchaser with
respect to any Purchased Units transferred to such Affiliate prior to the public
sale thereof.
(e) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
(f) The parties have entered into this Agreement for the purposes
herein expressed, with the intention that this Agreement be given full effect to
carry out such purposes. Therefore, consistent with the effectuation of the
purposes hereof, the invalidity or unenforceablity of any provision hereof or
part thereof shall not affect the validity of or enforceability of any other
provision hereof or any other part of such provision.
(g) The validity and construction of this Agreement shall be governed
by the substantive laws of the State of Delaware without regard to the conflict
of law rules of such jurisdiction, except to the extent that the federal laws of
the United States are applicable.
(h) This Agreement may be executed by the parties in multiple
counterparts and shall be effective as of the date set forth above when such
parties hereto shall have executed and delivered a counterpart hereof, whether
or not the same counterpart is executed and delivered by each party hereto.
(i) Capitalized terms not otherwise defined herein shall have the same
meaning assigned to them in the Partnership Agreement.
IN WITNESS WHEREOF, the Purchaser, the Seller and the Partnership have
caused this Agreement to be executed by duly authorized persons, as of the day
and year first above written.
ENRON LIQUIDS PIPELINE, L.P.,
By: ENRON LIQUIDS PIPELINE COMPANY,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
Title: Vice President
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ENRON LIQUIDS PIPELINE COMPANY,
as Seller
By: /s/ Xxxxxxx X. Xxxxxx
Title: Vice President
FIRST UNION INVESTORS, INC.,
as Purchaser
By: /s/ Xxx X. Xxxxxxx
Title: Senior Vice President
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