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EXHIBIT 4.3
A/B EXCHANGE
REGISTRATION RIGHTS AGREEMENT
Dated as of May 17, 2001
by and among
El Paso Energy Partners, L.P.
El Paso Energy Partners Finance Corporation
The Subsidiary Guarantors listed on Schedule A
and
Credit Suisse First Boston Corporation
Xxxxxxx, Xxxxx & Co.
X.X. Xxxxxx Securities Inc.
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This Registration Rights Agreement (this "Agreement") is made and
entered into as of May 17, 2001 by and among El Paso Energy Partners, L.P., a
Delaware limited partnership (the "Partnership"), El Paso Energy Partners
Finance Corporation, a Delaware corporation ("El Paso Finance" and, together
with the Partnership, the "Issuers"), each of the entities listed on Schedule A
attached hereto (each, a "Subsidiary Guarantor" and collectively, the
"Subsidiary Guarantors"), and Credit Suisse First Boston Corporation, Xxxxxxx,
Xxxxx & Co. and X.X. Xxxxxx Securities Inc. (each an "Initial Purchaser" and,
collectively, the "Initial Purchasers"), each of whom has agreed to purchase the
Issuers' 8 1/2% Series A Senior Subordinated Notes due 2011 (the "Series A
Notes") pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated May
11, 2001 (the "Purchase Agreement"), by and among the Issuers, the Subsidiary
Guarantors and the Initial Purchasers. In order to induce the Initial Purchasers
to purchase the Series A Notes, the Issuers have agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the obligations of the Initial Purchasers set
forth in Section 2 of the Purchase Agreement. Capitalized terms used herein and
not otherwise defined shall have the meaning assigned to them in the Indenture,
dated May 17, 2001 (the "Indenture"), among the Issuers, the Subsidiary
Guarantors and The Chase Manhattan Bank, as Trustee, relating to the Series A
Notes and the Series B Notes.
The parties hereby agree as follows:
Section 1. Definitions. As used in this Agreement, the following
capitalized terms shall have the following meanings:
Act: The Securities Act of 1933, as amended.
Affiliate: As defined in Rule 144 of the Act.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Certificated Securities: Definitive Notes, as defined in the Indenture.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Series B Notes to be issued in the Exchange Offer, (b) the
maintenance of such Exchange Offer Registration Statement continuously effective
and the keeping of the Exchange Offer open for a period not less than the period
required pursuant to Section 3(b) hereof and (c) the delivery by the Issuers to
the Registrar under the Indenture of Series B Notes in the same aggregate
principal amount as the aggregate principal amount of Series A Notes tendered by
Holders thereof pursuant to the Exchange Offer.
Consummation Deadline: As defined in Section 3(b) hereof.
Effectiveness Deadline: As defined in Sections 3(a) and 4(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The exchange and issuance by the Issuers of a principal
amount of Series B Notes (which shall be registered pursuant to the Exchange
Offer Registration Statement) equal to the outstanding
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principal amount of Series A Notes that are tendered by such Holders in
connection with such exchange and issuance.
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers
propose to sell the Series A Notes to certain "qualified institutional
buyers,"as such term is defined in Rule 144A under the Act and pursuant to
Regulation S under the Act.
Filing Deadline: As defined in Sections 3(a) and 4(a) hereof.
Holders: As defined in Section 2 hereof.
Partnership Agreement: The Second Amended and Restated Agreement of
Limited Partnership of El Paso Energy Partners, L.P., dated as of February 13,
1993, amended and restated effective as of August 31, 2000, as such may be
amended, modified or supplemented from time to time.
Prospectus: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
Recommencement Date: As defined in Section 6(d) hereof.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Issuers and
the Subsidiary Guarantors relating to (a) an offering of Series B Notes pursuant
to an Exchange Offer or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement, in each case, (i) that
is filed pursuant to the provisions of this Agreement and (ii) including the
Prospectus included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.
Regulation S: Regulation S promulgated under the Act.
Rule 144: Rule 144 promulgated under the Act.
Series B Notes: The Issuers' 8 1/2% Series B Senior Subordinated Notes
due 2011 to be issued pursuant to the Indenture: (i) in the Exchange Offer or
(ii) as contemplated by Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
Suspension Notice: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb)
as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Series A Note, until the earliest
to occur of (a) the date on which such Series A Note is exchanged in the
Exchange Offer for a Series B Note which is entitled to be resold to the public
by the Holder thereof without complying with the prospectus delivery
requirements of the Act, (b) the date on which such Series A Note has been
disposed of in accordance with a Shelf Registration
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Statement (and the purchasers thereof have been issued Series B Notes), or (c)
the date on which such Series A Note is distributed to the public pursuant to
Rule 144 under the Act (and purchasers thereof have been issued Series B Notes)
and each Series B Note until the date on which such Series B Note is disposed of
by a Broker-Dealer pursuant to the "Plan of Distribution" contemplated by the
Exchange Offer Registration Statement (including the delivery of the Prospectus
contained therein).
Section 2. Holders. A Person is deemed to be a holder of Transfer
Restricted Securities (each, a "Holder") whenever such Person owns Transfer
Restricted Securities.
Section 3. Registered Exchange Offer.
(a) Unless the Exchange Offer shall not be permitted by
applicable federal law (after the procedures set forth in Section
6(a)(i) below have been complied with), the Issuers and the Subsidiary
Guarantors shall (i) cause the Exchange Offer Registration Statement to
be filed with the Commission as soon as practicable after the Closing
Date, but in no event later than 60 days after the Closing Date (such
60th day being the "Filing Deadline"), (ii) use its best efforts to
cause such Exchange Offer Registration Statement to become effective at
the earliest possible time, but in no event later than 150 days after
the Closing Date (such 150th day being the "Effectiveness Deadline"),
(iii) in connection with the foregoing, (A) file all pre-effective
amendments to such Exchange Offer Registration Statement as may be
necessary in order to cause it to become effective, (B) file, if
applicable, a post-effective amendment to such Exchange Offer
Registration Statement pursuant to Rule 430A under the Act and (C)
cause all necessary filings, if any, in connection with the
registration and qualification of the Series B Notes to be made under
the Blue Sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer, and (iv) upon the effectiveness of
such Exchange Offer Registration Statement, commence and Consummate the
Exchange Offer. The Exchange Offer shall be on the appropriate form
permitting (i) registration of the Series B Notes to be offered in
exchange for the Series A Notes that are Transfer Restricted Securities
and (ii) resales of Series B Notes by Broker-Dealers that tendered into
the Exchange Offer Series A Notes that such Broker-Dealer acquired for
its own account as a result of market making activities or other
trading activities (other than Series A Notes acquired directly from
the Issuers or any of their Affiliates) as contemplated by Section 3(c)
below.
(b) The Issuers and the Subsidiary Guarantors shall use their
respective best efforts to cause the Exchange Offer Registration
Statement to be effective continuously, and shall keep the Exchange
Offer open for a period of not less than the minimum period required
under applicable federal and state securities laws to Consummate the
Exchange Offer; provided, however, that in no event shall such period
be less than 20 Business Days. The Issuers and the Subsidiary
Guarantors shall cause the Exchange Offer to comply with all applicable
federal and state securities laws. No securities other than the Series
B Notes shall be included in the Exchange Offer Registration Statement.
The Issuers and the Subsidiary Guarantors shall use their respective
best efforts to cause the Exchange Offer to be Consummated on the
earliest practicable date after the Exchange Offer Registration
Statement has become effective, but in no event later than 30 Business
Days thereafter (such 30th day being the "Consummation Deadline").
(c) The Issuers shall include a "Plan of Distribution" section
in the Prospectus contained in the Exchange Offer Registration
Statement and indicate therein that any Broker-Dealer who holds
Transfer Restricted Securities that were acquired for the account of
such Broker-Dealer as a result of market-making activities or other
trading activities (other than Series A Notes acquired directly from
the Issuers or any Affiliate of the Issuers) may exchange such Transfer
Restricted Securities pursuant to the Exchange Offer. Such "Plan of
Distribution" section shall also contain all other information with
respect to such sales by such Broker-Dealers that the Commission may
require in order to permit such sales pursuant thereto, but such "Plan
of Distribution" shall not name any such
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Broker-Dealer or disclose the amount of Transfer Restricted Securities
held by any such Broker-Dealer, except to the extent required by the
Commission as a result of a change in policy, rules or regulations
after the date of this Agreement.
Because such Broker-Dealer may be deemed to be an
"underwriter" within the meaning of the Act and must, therefore,
deliver a prospectus meeting the requirements of the Act in connection
with its initial sale of any Series B Notes received by such
Broker-Dealer in the Exchange Offer, the Issuers and Subsidiary
Guarantors shall permit the use of the Prospectus contained in the
Exchange Offer Registration Statement by such Broker-Dealer to satisfy
such prospectus delivery requirement. To the extent necessary to ensure
that the prospectus contained in the Exchange Offer Registration
Statement is available for sales of Series B Notes by Broker-Dealers,
the Issuers and the Subsidiary Guarantors agree to use their respective
best efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented, amended and current as required
by and subject to the provisions of Sections 6(a) and (c) hereof and in
conformity with the requirements of this Agreement, the Act and the
policies, rules and regulations of the Commission as announced from
time to time, for a period of one year from the Consummation Deadline
or such shorter period as will terminate when all Transfer Restricted
Securities covered by such Registration Statement have been sold
pursuant thereto. The Issuers and the Subsidiary Guarantors shall
provide sufficient copies of the latest version of such Prospectus to
such Broker-Dealers, promptly upon request, and in no event later than
one day after such request, at any time during such period.
Section 4. Shelf Registration.
(a) Shelf Registration. If (i) the Exchange Offer is not
permitted by applicable law (after the Issuers and the Subsidiary
Guarantors have complied with the procedures set forth in Section
6(a)(i) below) or (ii) if any Holder of Transfer Restricted Securities
shall notify the Issuers within 20 Business Days following the
Consummation Deadline that (A) such Holder was prohibited by law or
Commission policy from participating in the Exchange Offer or (B) such
Holder may not resell the Series B Notes acquired by it in the Exchange
Offer to the public without delivering a prospectus and if the
Prospectus contained in the Exchange Offer Registration Statement is
not appropriate or available for such resales by such Holder or (C)
such Holder is a Broker-Dealer and holds Series A Notes acquired
directly from the Issuers or any of their Affiliates, then the Issuers
and the Subsidiary Guarantors shall:
(x) cause to be filed, on or prior to 30 days after
the earlier of (i) the date on which the Issuers determine
that the Exchange Offer Registration Statement cannot be filed
as a result of clause (a)(i) above and (ii) the date on which
the Issuers receive the notice specified in clause (a)(ii)
above, (such earlier date, the "Filing Deadline"), a shelf
registration statement pursuant to Rule 415 under the Act
(which may be an amendment to the Exchange Offer Registration
Statement (the "Shelf Registration Statement")), relating to
all Transfer Restricted Securities, and
(y) shall use their respective best efforts to cause
such Shelf Registration Statement to become effective on or
prior to 60 days after the Filing Deadline for the Shelf
Registration Statement (such 60th day the "Effectiveness
Deadline").
If, after the Issuers have filed an Exchange Offer
Registration Statement that satisfies the requirements of Section 3(a)
above, the Issuers are required to file and make effective a Shelf
Registration Statement solely because the Exchange Offer is not
permitted under applicable federal law (i.e., clause (a)(i) above),
then the filing of the Exchange Offer Registration Statement shall be
deemed to satisfy the requirements of clause (x) above; provided that,
in such event, the Issuers shall remain obligated to meet the
Effectiveness Deadline set forth in clause (y).
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To the extent necessary to ensure that the Shelf Registration
Statement is available for sales of Transfer Restricted Securities by
the Holders thereof entitled to the benefit of this Section 4(a) and
the other securities required to be registered therein pursuant to
Section 6(b)(ii) hereof, the Issuers and the Subsidiary Guarantors
shall use their respective best efforts to keep any Shelf Registration
Statement required by this Section 4(a) continuously effective,
supplemented, amended and current as required by and subject to the
provisions of Sections 6(b) and (c) hereof and in conformity with the
requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for a
period of at least two years (as extended pursuant to Section 6(d))
following the Closing Date, or such shorter period as will terminate
when all Transfer Restricted Securities covered by such Shelf
Registration Statement have been sold pursuant thereto.
(b) Provision by Holders of Certain Information in Connection
with the Shelf Registration Statement. No Holder of Transfer Restricted
Securities may include any of its Transfer Restricted Securities in any
Shelf Registration Statement pursuant to this Agreement unless and
until such Holder furnishes to the Issuers in writing, within 20 days
after receipt of a request therefor, the information specified in Item
507 or 508 of Regulation S-K, as applicable, of the Act for use in
connection with any Shelf Registration Statement or Prospectus or
preliminary Prospectus included therein. No Holder of Transfer
Restricted Securities shall be entitled to liquidated damages pursuant
to Section 5 hereof unless and until such Holder shall have provided
all such information. Each selling Holder agrees to promptly furnish
additional information required to be disclosed in order to make the
information previously furnished to the Issuers by such Holder not
materially misleading.
Section 5. Liquidated Damages. If (i) any Registration Statement
required by this Agreement is not filed with the Commission on or prior to the
applicable Filing Deadline, (ii) any such Registration Statement has not been
declared effective by the Commission on or prior to the applicable Effectiveness
Deadline, (iii) the Exchange Offer has not been Consummated on or prior to the
Consummation Deadline or (iv) any Registration Statement required by this
Agreement is filed and declared effective but shall thereafter cease to be
effective or fail to be usable for its intended purpose without being succeeded
within 2 days by a post-effective amendment to such Registration Statement that
cures such failure and that is itself declared effective within 2 days of filing
such post-effective amendment to such Registration Statement (each such event
referred to in clauses (i) through (iv), a "Registration Default"), then the
Issuers and the Subsidiary Guarantors hereby jointly and severally agree to pay
to each Holder of Transfer Restricted Securities affected thereby liquidated
damages in an amount equal to $.05 per week per $1,000 in principal amount of
Transfer Restricted Securities held by such Holder for each week or portion
thereof that the Registration Default continues for the first 90-day period
immediately following the occurrence of such Registration Default. The amount of
the liquidated damages shall increase by an additional $.05 per week per $1,000
in principal amount of Transfer Restricted Securities with respect to each
subsequent 90-day period until all Registration Defaults have been cured, up to
a maximum amount of liquidated damages of $.50 per week per $1,000 in principal
amount of Transfer Restricted Securities; provided that the Issuers and the
Subsidiary Guarantors shall in no event be required to pay liquidated damages
for more than one Registration Default at any given time. Notwithstanding
anything to the contrary set forth herein, (1) upon filing of the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (i) above, (2) upon the effectiveness of the Exchange
Offer Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (ii) above, (3) upon Consummation of the Exchange
Offer, in the case of (iii) above, or (4) upon the filing of a post-effective
amendment to the Registration Statement or an additional Registration Statement
that causes the Exchange Offer Registration Statement (and/or, if applicable,
the Shelf Registration Statement) to again be declared effective or made usable
in the case of (iv) above, the liquidated damages payable with respect to the
Transfer Restricted Securities as a result of such clause (i), (ii), (iii) or
(iv), as applicable, shall cease.
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All accrued liquidated damages shall be paid to the Holders entitled
thereto, in the manner providing for the payment of interest in the Indenture,
on each Interest Payment Date, as more fully set forth in the Indenture and the
Notes. Notwithstanding the fact that any securities for which liquidated damages
are due cease to be Transfer Restricted Securities, all obligations of the
Issuers and the Subsidiary Guarantors to pay liquidated damages with respect to
securities shall survive until such time as such obligations with respect to
such securities shall have been satisfied in full.
Section 6. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with
the Exchange Offer, the Issuers and the Subsidiary Guarantors shall (x)
comply with all applicable provisions of Section 6(c) below, (y) use
their respective best efforts to effect such exchange and to permit the
resale of Series B Notes by Broker-Dealers that tendered in the
Exchange Offer Series A Notes that such Broker-Dealer acquired for its
own account as a result of its market making activities or other
trading activities (other than Series A Notes acquired directly from
the Issuers or any of their Affiliates) being sold in accordance with
the intended method or methods of distribution thereof, and (z) comply
with all of the following provisions:
(i) If, following the date hereof there has been
announced a change in Commission policy with respect to
exchange offers such as the Exchange Offer, that in the
reasonable opinion of counsel to the Issuers raises a
substantial question as to whether the Exchange Offer is
permitted by applicable federal law, the Issuers and the
Subsidiary Guarantors hereby agree to seek a no-action letter
or other favorable decision from the Commission allowing the
Issuers and the Subsidiary Guarantors to Consummate an
Exchange Offer for such Transfer Restricted Securities. The
Issuers and the Subsidiary Guarantors hereby agree to pursue
the issuance of such a decision to the Commission staff level.
In connection with the foregoing, the Issuers and the
Subsidiary Guarantors hereby agree to take all such other
actions as may be requested by the Commission or otherwise
required in connection with the issuance of such decision,
including without limitation (A) participating in telephonic
conferences with the Commission, (B) delivering to the
Commission staff an analysis prepared by counsel to the
Issuers setting forth the legal bases, if any, upon which such
counsel has concluded that such an Exchange Offer should be
permitted and (C) diligently pursuing a resolution (which need
not be favorable) by the Commission staff.
(ii) As a condition to its participation in the
Exchange Offer, each Holder of Transfer Restricted Securities
(including, without limitation, any Holder who is a Broker
Dealer) shall furnish, upon the request of the Issuers, prior
to the Consummation of the Exchange Offer, a written
representation to the Issuers and the Subsidiary Guarantors
(which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to
the effect that (A) it is not an Affiliate of the Issuers, (B)
it is not engaged in, and does not intend to engage in, and
has no arrangement or understanding with any Person to
participate in, a distribution of the Series B Notes to be
issued in the Exchange Offer and (C) it is acquiring the
Series B Notes in its ordinary course of business. As a
condition to its participation in the Exchange Offer, each
Holder using the Exchange Offer to participate in a
distribution of the Series B Notes shall acknowledge and agree
that, if the resales are of Series B Notes obtained by such
Holder in exchange for Series A Notes acquired directly from
the Issuers or an Affiliate thereof, it (1) could not, under
Commission policy as in effect on the date of this Agreement,
rely on the position of the Commission enunciated in Xxxxxx
Xxxxxxx and Co., Inc. (available June 5, 1991) and Exxon
Capital Holdings Corporation (available May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling
dated July 2, 1993, and similar no-action letters (including,
if
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applicable, any no-action letter obtained pursuant to clause
(i) above), and (2) must comply with the registration and
prospectus delivery requirements of the Act in connection with
a secondary resale transaction and that such a secondary
resale transaction must be covered by an effective
registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of
Regulation S-K.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Issuers and the Subsidiary
Guarantors shall provide a supplemental letter to the
Commission (A) stating that the Issuers and the Subsidiary
Guarantors are registering the Exchange Offer in reliance on
the position of the Commission enunciated in Exxon Capital
Holdings Corporation (available May 13, 1988), Xxxxxx Xxxxxxx
and Co., Inc. (available June 5, 1991) as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993,
and, if applicable, any no-action letter obtained pursuant to
clause (i) above, (B) including a representation that neither
the Issuers nor any Subsidiary Guarantor has entered into any
arrangement or understanding with any Person to distribute the
Series B Notes to be received in the Exchange Offer and that,
to the best of the Issuers' and each Subsidiary Guarantor's
information and belief, each Holder participating in the
Exchange Offer is acquiring the Series B Notes in its ordinary
course of business and has no arrangement or understanding
with any Person to participate in the distribution of the
Series B Notes received in the Exchange Offer and (C) any
other undertaking or representation required by the Commission
as set forth in any no-action letter obtained pursuant to
clause (i) above, if applicable.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Issuers and the Subsidiary Guarantors
shall:
(i) comply with all the provisions of Section 6(c)
below and use their respective best efforts to effect such
registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended method
or methods of distribution thereof (as indicated in the
information furnished to the Issuers pursuant to Section 4(b)
hereof), and pursuant thereto the Issuers and the Subsidiary
Guarantors will prepare and file with the Commission a
Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available
for the sale of the Transfer Restricted Securities in
accordance with the intended method or methods of distribution
thereof within the time periods and otherwise in accordance
with the provisions hereof.
(ii) issue, upon the request of any Holder or
purchaser of Series A Notes covered by any Shelf Registration
Statement contemplated by this Agreement, Series B Notes
having an aggregate principal amount equal to the aggregate
principal amount of Series A Notes sold pursuant to the Shelf
Registration Statement and surrendered to the Issuers for
cancellation; the Issuers shall register Series B Notes on the
Shelf Registration Statement for this purpose and issue the
Series B Notes to the purchaser(s) of securities subject to
the Shelf Registration Statement in the names as such
purchaser(s) shall designate.
(c) General Provisions. In connection with any Registration
Statement and any related Prospectus required by this Agreement, the
Issuers and the Subsidiary Guarantors shall:
(i) use their respective best efforts to keep such
Registration Statement continuously effective and provide all
requisite financial statements for the period specified in
Section 3 or 4 of this Agreement, as applicable. Upon the
occurrence of any event that would cause any such Registration
Statement or the Prospectus contained therein (A) to
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contain an untrue statement of material fact or omit to state
any material fact necessary to make the statements therein not
misleading or (B) not to be effective and usable for resale of
Transfer Restricted Securities during the period required by
this Agreement, the Issuers and the Subsidiary Guarantors
shall file promptly an appropriate amendment to such
Registration Statement curing such defect, and, if Commission
review is required, use their respective best efforts to cause
such amendment to be declared effective as soon as
practicable;
(ii) prepare and file with the Commission such
amendments and post-effective amendments to the applicable
Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period set
forth in Section 3 or 4 hereof, as the case may be; cause the
Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Act, and to comply fully with Rules 424,
430A and 462, as applicable, under the Act in a timely manner;
and comply with the provisions of the Act with respect to the
disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers
thereof set forth in such Registration Statement or supplement
to the Prospectus;
(iii) advise each Holder promptly and, if requested
by such Holder, confirm such advice in writing, (A) when the
Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to any applicable
Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any
request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or
for additional information relating thereto, (C) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or
of the suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for
offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, and (D) of the
existence of any fact or the happening of any event that makes
any statement of a material fact made in the Registration
Statement, the Prospectus, any amendment or supplement thereto
or any document incorporated by reference therein untrue, or
that requires the making of any additions to or changes in the
Registration Statement in order to make the statements therein
not misleading, or that requires the making of any additions
to or changes in the Prospectus in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading. If at any time the
Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under
state securities or Blue Sky laws, the Issuers and the
Subsidiary Guarantors shall use their respective best efforts
to obtain the withdrawal or lifting of such order at the
earliest possible time;
(iv) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have
occurred, prepare a supplement or post-effective amendment to
the Registration Statement or related Prospectus or any
document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus
will not contain an untrue statement of a material fact or
omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
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(v) furnish to each Holder in connection with such
exchange or sale, if any, before filing with the Commission,
copies of any Registration Statement or any Prospectus
included therein or any amendments or supplements to any such
Registration Statement or Prospectus (including all documents
incorporated by reference after the initial filing of such
Registration Statement), which documents will be subject to
the review and comment of such Holders in connection with such
sale, if any, for a period of at least five Business Days, and
the Issuers will not file any such Registration Statement or
Prospectus or any amendment or supplement to any such
Registration Statement or Prospectus (including all such
documents incorporated by reference) to which such Holders
shall reasonably object within five Business Days after the
receipt thereof. A Holder shall be deemed to have reasonably
objected to such filing if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as
proposed to be filed, contains an untrue statement of a
material fact or omits to state any material fact necessary to
make the statements therein not misleading or fails to comply
with the applicable requirements of the Act;
(vi) promptly provide, prior to the filing of any
document that is to be incorporated by reference into a
Registration Statement or Prospectus, copies of such document
to each Holder in connection with such exchange or sale, if
any, make the Issuers' and the Subsidiary Guarantors'
representatives available for discussion of such document and
other customary due diligence matters, and include such
information in such document prior to the filing thereof as
such Holders may reasonably request;
(vii) make available, at reasonable times, for
inspection by each Holder and any attorney or accountant
retained by such Holders, all financial and other records, and
pertinent corporate documents of the Issuers and the
Subsidiary Guarantors and cause the Issuers' and the
Subsidiary Guarantors' officers, directors and employees to
supply all information reasonably requested by any such
Holder, attorney or accountant in connection with such
Registration Statement or any post-effective amendment thereto
subsequent to the filing thereof and prior to its
effectiveness;
(viii) if requested by any Holders in connection with
such exchange or sale, promptly include in any Registration
Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as
such Holders may reasonably request to have included therein,
including, without limitation, information relating to the
"Plan of Distribution" of the Transfer Restricted Securities;
and make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the
Issuers are notified of the matters to be included in such
Prospectus supplement or post-effective amendment;
(ix) furnish to each Holder in connection with such
exchange or sale, without charge, at least one copy of the
Registration Statement, as first filed with the Commission,
and of each amendment thereto, including all documents
incorporated by reference therein and all exhibits (including
exhibits incorporated therein by reference);
(x) deliver to each Holder without charge, as many
copies of the Prospectus (including each preliminary
prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; the Issuers and the Subsidiary
Guarantors hereby consent to the use (in accordance with law)
of the Prospectus and any amendment or supplement thereto by
each selling Holder in connection with the offering and the
sale of the Transfer Restricted Securities covered by the
Prospectus or any amendment or supplement thereto;
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(xi) upon the request of any Holder, enter into such
agreements (including underwriting agreements) and make such
representations and warranties and take all such other actions
in connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to
any applicable Registration Statement contemplated by this
Agreement as may be reasonably requested by any Holder in
connection with any sale or resale pursuant to any applicable
Registration Statement. In such connection, the Issuers and
the Subsidiary Guarantors shall:
(A) upon request of any Holder, furnish (or in the
case of paragraphs (2) and (3), use their best efforts to
cause to be furnished) to each Holder, upon Consummation of
the Exchange Offer or upon the effectiveness of the Shelf
Registration Statement, as the case may be:
(1) a certificate, dated such date,
signed on behalf of the Issuers and each Subsidiary
Guarantor by (x) the President or any Vice President
and (y) a principal financial or accounting officer
of each of the Issuers and each Subsidiary Guarantor,
confirming, as of the date thereof, the matters set
forth in Sections 6(cc), 9(a) and 9(b) of the
Purchase Agreement and such other similar matters as
such Holders may reasonably request;
(2) an opinion, dated the date of
Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as
the case may be, of counsel for the Issuers and the
Subsidiary Guarantors covering matters similar to
those set forth in paragraph (e) of Section 9 of the
Purchase Agreement and such other matters as such
Holder may reasonably request, and in any event
including a statement to the effect that such counsel
has participated in conferences with officers and
other representatives of the Issuers and the
Subsidiary Guarantors, and representatives of the
independent public accountants for the Issuers and
the Subsidiary Guarantors and have considered the
matters required to be stated therein and the
statements contained therein, although such counsel
has not independently verified the accuracy,
completeness or fairness of such statements; and that
such counsel advises that, on the basis of the
foregoing, no facts came to such counsel's attention
that caused such counsel to believe that the
applicable Registration Statement, at the time such
Registration Statement or any post-effective
amendment thereto became effective and, in the case
of the Exchange Offer Registration Statement, as of
the date of Consummation of the Exchange Offer,
contained an untrue statement of a material fact or
omitted to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading, or that the Prospectus
contained in such Registration Statement as of its
date and, in the case of the opinion dated the date
of Consummation of the Exchange Offer, as of the date
of Consummation, contained an untrue statement of a
material fact or omitted to state a material fact
necessary in order to make the statements therein, in
the light of the circumstances under which they were
made, not misleading. Without limiting the foregoing,
such counsel may state further that such counsel
assumes no responsibility for, and has not
independently verified, the accuracy, completeness or
fairness of the financial statements, notes and
schedules and other financial data included in any
Registration Statement contemplated by this Agreement
or the related Prospectus; and
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(3) a customary comfort letter, dated the
date of Consummation of the Exchange Offer, or as of
the date of effectiveness of the Shelf Registration
Statement, as the case may be, from the Issuers'
independent accountants, in the customary form and
covering matters of the type customarily covered in
comfort letters to underwriters in connection with
underwritten offerings, and affirming the matters set
forth in the comfort letters delivered pursuant to
Section 9(g) of the Purchase Agreement; and
(B) deliver such other documents and certificates as
may be reasonably requested by the selling Holders to evidence
compliance with the matters covered in clause (A) above and
with any customary conditions contained in any agreement
entered into by the Issuers and the Subsidiary Guarantors
pursuant to this clause (xi);
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel in
connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders may request and do any and all
other acts or things necessary or advisable to enable the disposition
in such jurisdictions of the Transfer Restricted Securities covered by
the applicable Registration Statement; provided, however, that neither
the Issuers nor any Subsidiary Guarantor shall be required to register
or qualify as a foreign corporation where it is not now so qualified or
to take any action that would subject it to the service of process in
suits or to taxation, other than as to matters and transactions
relating to the Registration Statement, in any jurisdiction where it is
not now so subject;
(xiii) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive
legends; and to register such Transfer Restricted Securities in such
denominations and such names as the selling Holders may request at
least two Business Days prior to such sale of Transfer Restricted
Securities;
(xiv) use their respective best efforts to cause the
disposition of the Transfer Restricted Securities covered by the
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof to consummate the disposition of such
Transfer Restricted Securities, subject to the proviso contained in
clause (xii) above;
(xv) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Registration
Statement covering such Transfer Restricted Securities and provide the
Trustee under the Indenture with printed certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with the
Depository Trust Company;
(xvi) otherwise use their respective best efforts to comply
with all applicable rules and regulations of the Commission, and make
generally available to their security holders with regard to any
applicable Registration Statement, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be
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audited) covering a twelve-month period beginning after the effective
date of the Registration Statement (as such term is defined in
paragraph (c) of Rule 158 under the Act);
(xviii) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement and, in connection therewith, cooperate with
the Trustee and the Holders to effect such changes to the Indenture as
may be required for such Indenture to be so qualified in accordance
with the terms of the TIA; and execute and use its best efforts to
cause the Trustee to execute, all documents that may be required to
effect such changes and all other forms and documents required to be
filed with the Commission to enable such Indenture to be so qualified
in a timely manner; and
(xviii) provide promptly to each Holder, upon request, each
document filed with the Commission pursuant to the requirements of
Section 13 or Section 15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Security that, upon receipt of the notice referred to in
Section 6(c)(iii)(C) or any notice from the Issuers of the existence of any fact
of the kind described in Section 6(c)(iii)(D) hereof (in each case, a
"Suspension Notice"), such Holder will forthwith discontinue disposition of
Transfer Restricted Securities pursuant to the applicable Registration Statement
until (i) such Holder has received copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(iv) hereof, or (ii) such Holder is
advised in writing by the Issuers that the use of the Prospectus may be resumed,
and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus (in each case, the "Recommencement
Date"). Each Holder receiving a Suspension Notice hereby agrees that it will
either (i) destroy any Prospectuses, other than permanent file copies, then in
such Holder's possession which have been replaced by the Issuers with more
recently dated Prospectuses or (ii) deliver to the Issuers (at the Issuers'
expense) all copies, other than permanent file copies, then in such Holder's
possession of the Prospectus covering such Transfer Restricted Securities that
was current at the time of receipt of the Suspension Notice. The time period
regarding the effectiveness of such Registration Statement set forth in Section
3 or 4 hereof, as applicable, shall be extended by a number of days equal to the
number of days in the period from and including the date of delivery of the
Suspension Notice to the date of delivery of the Recommencement Date.
(e) Effectiveness of Registration Statement. Notwithstanding anything
to the contrary contained in this Agreement, the obligation of the Issuers and
the Subsidiary Guarantors hereunder to maintain the effectiveness of any
Registration Statement and any related Prospectus may be suspended, without
default or penalty to the Issuers or the Subsidiary Guarantors, for one or more
periods of time as may be required with respect to such Registration Statement
if (A) the Board of Directors of the General Partner shall have determined that
the offering and sales under the Registration Statement, the filing of such
Registration Statement or the maintenance of its effectiveness would require
disclosure of or would interfere in any material respect with any material
financing, acquisition, merger, offering or other transaction involving the
Issuers or the Subsidiary Guarantors or would otherwise require disclosure of
nonpublic information that could materially and adversely affect the Issuers or
the Subsidiary Guarantors or (B) the Issuers are required by any state or
federal securities laws to file an amendment or supplement to such Registration
Statement for the purpose of incorporating quarterly or annual information,
which is not automatically effective. Further, the Issuers and the Subsidiary
Guarantors shall be deemed to have used their respective best efforts to keep
any Registration Statement continuously effective if either (A) or (B) above has
occurred.
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Section 7. Registration Expenses.
(a) All expenses incident to the Issuers' and the Subsidiary
Guarantors' performance of or compliance with this Agreement will be borne by
the Issuers, regardless of whether a Registration Statement becomes effective,
including without limitation: (i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal securities and state Blue
Sky or securities laws; (iii) all expenses of printing (including printing
certificates for the Series B Notes to be issued in the Exchange Offer and
printing of Prospectuses), messenger and delivery services and telephone; (iv)
all fees and disbursements of counsel for the Issuers, the Subsidiary Guarantors
and the Holders of Transfer Restricted Securities; (v) all application and
filing fees in connection with listing the Series B Notes on a national
securities exchange or automated quotation system pursuant to the requirements
hereof; and (vi) all fees and disbursements of independent certified public
accountants of the Issuers and the Subsidiary Guarantors (including the expenses
of any special audit and comfort letters required by or incident to such
performance).
The Issuers will, in any event, bear their and the Subsidiary
Guarantors' internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the expenses of any annual audit and the fees and expenses of any Person,
including special experts, retained by the Issuers or the Subsidiary Guarantors.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Issuers and the Subsidiary
Guarantors will reimburse the Initial Purchasers and the Holders of Transfer
Restricted Securities who are tendering Series A Notes in the Exchange Offer
and/or selling or reselling Series A Notes or Series B Notes pursuant to the
"Plan of Distribution" contained in the Exchange Offer Registration Statement or
the Shelf Registration Statement, as applicable, for the reasonable fees and
disbursements of not more than one counsel, who shall be Xxxxxxx & Xxxxx L.L.P.,
unless another firm shall be chosen by the Holders of a majority in principal
amount of the Transfer Restricted Securities for whose benefit such Registration
Statement is being prepared.
Section 8. Indemnification.
(a) The Issuers and the Subsidiary Guarantors agree, jointly and
severally, to indemnify and hold harmless each Holder, its directors, officers
and each Person, if any, who controls such Holder (within the meaning of Section
15 of the Act or Section 20 of the Exchange Act), from and against any and all
losses, claims, damages, liabilities or judgments (including without limitation,
any legal or other expenses incurred in connection with investigating or
defending any matter, including any action that could give rise to any such
losses, claims, damages, liabilities or judgments) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement, preliminary prospectus or Prospectus (or any amendment
or supplement thereto) provided by the Issuers to any Holder or any prospective
purchaser of Series B Notes or registered Series A Notes, or caused by 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,
except insofar as such losses, claims, damages, liabilities or judgments are
caused by an untrue statement or omission or alleged untrue statement or
omission that is based upon information relating to any of the Holders furnished
in writing to the Issuers by any of the Holders.
(b) Each Holder of Transfer Restricted Securities agrees, severally and
not jointly, to indemnify and hold harmless the Issuers and the Subsidiary
Guarantors, and their respective directors and officers, and each Person, if
any, who controls (within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act) the Issuers, or the Subsidiary Guarantors to the same
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extent as the foregoing indemnity from the Issuers and the Subsidiary Guarantors
set forth in Section 8(a) above, but only with reference to information relating
to such Holder furnished in writing to the Issuers by such Holder expressly for
use in any Registration Statement. In no event shall any Holder, its directors,
officers or any Person who controls such Holder be liable or responsible for any
amount in excess of the amount by which the total amount received by such Holder
with respect to its sale of Transfer Restricted Securities pursuant to a
Registration Statement exceeds (i) the amount paid by such Holder for such
Transfer Restricted Securities and (ii) the amount of any damages that such
Holder, its directors, officers or any Person who controls such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
(c) In case any action shall be commenced involving any Person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"indemnified party"), the indemnified party shall promptly notify the Person
against whom such indemnity may be sought (the "indemnifying person") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 8(a) and 8(b), a Holder shall not be required to assume the
defense of such action pursuant to this Section 8(c), but may employ separate
counsel and participate in the defense thereof, but the fees and expenses of
such counsel, except as provided below, shall be at the expense of the Holder).
Any indemnified party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the indemnified party unless (i) the
employment of such counsel shall have been specifically authorized in writing by
the indemnifying party, (ii) the indemnifying party shall have failed to assume
the defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the indemnified party). In any such case, the indemnifying party
shall not, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all indemnified parties and all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by a majority of the
Holders, in the case of the parties indemnified pursuant to Section 8(a), and by
the Issuers and Subsidiary Guarantors, in the case of parties indemnified
pursuant to Section 8(b). The indemnifying party shall indemnify and hold
harmless the indemnified party from and against any and all losses, claims,
damages, liabilities and judgments by reason of any settlement of any action (i)
effected with its written consent or (ii) effected without its written consent
if the settlement is entered into more than twenty Business Days after the
indemnifying party shall have received a request from the indemnified party for
reimbursement for the fees and expenses of counsel (in any case where such fees
and expenses are at the expense of the indemnifying party) and, prior to the
date of such settlement, the indemnifying party shall have failed to comply with
such reimbursement request. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement or compromise
of, or consent to the entry of judgment with respect to, any pending or
threatened action in respect of which the indemnified party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified party.
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(d) To the extent that the indemnification provided for in
this Section 8 is unavailable to an indemnified party in respect of any
losses, claims, damages, liabilities or judgments referred to therein,
then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages,
liabilities or judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Issuers and the
Subsidiary Guarantors, on the one hand, and the Holders, on the other
hand, from their sale of Transfer Restricted Securities or (ii) if the
allocation provided by clause 8(d)(i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 8(d)(i) above but also the
relative fault of the Issuers and the Subsidiary Guarantors, on the one
hand, and of the Holder, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative fault of the Issuers and the Subsidiary
Guarantors, on the one hand, and of the Holder, 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 Issuers or such Subsidiary Guarantor, on the one hand,
or by the Holder, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Issuers, the Subsidiary Guarantors and each Holder agree
that it would not be just and equitable if contribution pursuant to
this Section 8(d) 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 which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses incurred
by such indemnified party in connection with investigating or defending
any matter, including any action that could have given rise to such
losses, claims, damages, liabilities or judgments. Notwithstanding the
provisions of this Section 8, no Holder, its directors, its officers or
any Person, if any, who controls such Holder shall be required to
contribute, in the aggregate, any amount in excess of the amount by
which the total received by such Holder with respect to the sale of
Transfer Restricted Securities pursuant to a Registration Statement
exceeds (i) the amount paid by such Holder for such Transfer Restricted
Securities and (ii) the amount of any damages which 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 Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. The Holders' obligations
to contribute pursuant to this Section 8(d) are several in proportion
to the respective principal amount of Transfer Restricted Securities
held by each Holder hereunder and not joint.
Section 9. Rule 144A and Rule 144. The Issuers and each Subsidiary
Guarantor agree with each Holder, for so long as any Transfer Restricted
Securities remain outstanding and during any period in which the Issuers or such
Subsidiary Guarantor (i) is not subject to Section 13 or 15(d) of the Exchange
Act, to make available, upon request of any Holder, to such Holder or beneficial
owner of Transfer Restricted Securities in connection with any sale thereof and
any prospective purchaser of such Transfer Restricted Securities designated by
such Holder or beneficial owner, the information required by Rule 144A(d)(4)
under the Act in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144A, and (ii) is subject to Section 13 or 15 (d) of the
Exchange Act, to make all filings required thereby in a timely manner in order
to permit resales of such Transfer Restricted Securities pursuant to Rule 144.
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Section 10. Miscellaneous.
(a) Remedies. The Issuers and the Subsidiary Guarantors
acknowledge and agree that any failure by the Issuers and/or the
Subsidiary Guarantors to comply with their respective obligations under
Sections 3 and 4 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
Initial Purchasers or any Holder may obtain such relief as may be
required to specifically enforce the Issuers' and the Subsidiary
Guarantors' obligations under Sections 3 and 4 hereof. The Issuers and
the Subsidiary Guarantors further agree to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Neither the Issuers nor any
Subsidiary Guarantor will, on or after the date of this Agreement,
enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this Agreement
or otherwise conflicts with the provisions hereof. Neither the Issuers
nor any Subsidiary Guarantor have previously entered into any agreement
granting any registration rights with respect to its securities to any
Person other than the registration rights (i) granted by the
Partnership pursuant to Section 6.14 of the Partnership Agreement, (ii)
of EPEC Deepwater Gathering Company ("EPEC") and its successors
pursuant to a registration rights agreement between EPEC and the
Partnership executed in connection with the acquisition by the
Partnership of an additional interest in Viosca Xxxxx Gathering
Company, (iii) as contemplated by the registration rights agreement
dated as of August 28, 2000 between Crystal Gas Storage, Inc. and the
Partnership, (iv) granted under the Partnership Credit Facility and
related agreements, (v) as contemplated by the registration rights
agreement dated May 27, 1999 by and among the Partnership, El Paso
Energy Partners Finance Corporation (formerly Leviathan Finance
Corporation), the Subsidiary Guarantors listed on Schedule A thereto,
and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation and (vi)
granted pursuant to this Agreement. 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 the Issuers' and the Subsidiary
Guarantors' securities under any agreement in effect on the date
hereof.
(c) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents
to or departures from the provisions hereof may not be given unless (i)
in the case of Section 5 hereof and this Section 10(c)(i), the Issuers
have obtained the written consent of Holders of all outstanding
Transfer Restricted Securities and (ii) in the case of all other
provisions hereof, the Issuers have obtained the written consent of
Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities (excluding Transfer Restricted Securities held by
the Issuers or their Affiliates). Notwithstanding the foregoing, a
waiver or consent to departure from the provisions hereof that relates
exclusively to the rights of Holders whose Transfer Restricted
Securities are being tendered pursuant to the Exchange Offer, and that
does not affect directly or indirectly the rights of other Holders
whose Transfer Restricted Securities are not being tendered pursuant to
such Exchange Offer, may be given by the Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities subject
to such Exchange Offer.
(d) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Issuers and
the Subsidiary Guarantors, 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 they may deem such enforcement necessary or
advisable to protect its rights or the rights of Holders hereunder.
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(e) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt requested),
telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Registrar under the Indenture, with a copy to
the Registrar under the Indenture; and
(ii) if to the Issuers or the Subsidiary Guarantors:
El Paso Energy Partners, L.P.
0 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Chief Financial Officer
With a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Attention: J. Xxxxxxx Xxxxxxxx
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 receipt 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 by the Person giving the same to the
Trustee at the address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of
the parties, including without 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 Transfer Restricted Securities in violation of the terms hereof or
of the Purchase Agreement or the Indenture. If any transferee of any
Holder shall acquire Transfer Restricted Securities in any manner,
whether by operation of law or otherwise, such Transfer Restricted
Securities shall be held subject to all of the terms of this Agreement,
and by taking and holding such Transfer Restricted 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, including
the restrictions on resale set forth in this Agreement and, if
applicable, the Purchase Agreement, and such Person shall be entitled
to receive the benefits hereof.
(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 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, WITHOUT
REGARD TO THE CONFLICT OF LAW RULES THEREOF.
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(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be
affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of
the parties hereto in respect of the subject matter contained herein.
There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein with respect to the
registration rights granted with respect to the Transfer Restricted
Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
* * * *
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
Issuers:
EL PASO ENERGY PARTNERS, L.P.
By: EL PASO ENERGY PARTNERS COMPANY, as General Partner
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Title: Vice President and Chief Financial Officer
EL PASO ENERGY PARTNERS FINANCE CORPORATION
By: /s/ XXXXX XXXXXX
-----------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President and Chief Financial Officer
19
21
Subsidiary Guarantors:
ARGO II, L.L.C.*
CRYSTAL HOLDING, L.L.C.*
CRYSTAL PROPERTIES AND TRADING COMPANY, L.L.C.*
DELOS OFFSHORE COMPANY, L.L.C.*
EL PASO ENERGY PARTNERS DEEPWATER, L.L.C.*
EL PASO ENERGY PARTNERS OIL TRANSPORT, L.L.C.*
EL PASO ENERGY PARTNERS OPERATING COMPANY, L.L.C.*
XXXXX BANK GATHERING COMPANY, L.L.C.*
FIRST RESERVE GAS, L.L.C.*
FLEXTREND DEVELOPMENT COMPANY, L.L.C.*
GREEN CANYON PIPE LINE COMPANY, L.P.*
HATTIESBURG GAS STORAGE COMPANY*
HATTIESBURG INDUSTRIAL GAS SALES COMPANY, L.L.C.*
MANTA RAY GATHERING COMPANY, L.L.C.*
PETAL GAS STORAGE COMPANY, L.L.C.*
POSEIDON PIPELINE COMPANY, L.L.C.
VK DEEPWATER GATHERING COMPANY, L.L.C.*
VK-MAIN PASS GATHERING COMPANY, L.L.C.*
VIOSCA XXXXX GATHERING COMPANY*
*By: /s/ XXXXX XXXXXX
---------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President and Chief Financial Officer
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22
Initial Purchasers:
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ XXXX X. XXXXX
-------------------------------------------
Name: Xxxx X. Xxxxx
-----------------------------------------
Title: Director
----------------------------------------
XXXXXXX, SACHS & CO.
/s/ XXXXXXX, XXXXX & CO.
----------------------------------------------
X.X. XXXXXX SECURITIES INC.
By: /s/ X. X. XXXXXXX
-------------------------------------------
Name: X. X. Xxxxxxx
-----------------------------------------
Title: Vice President
----------------------------------------
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SCHEDULE A
NAME OF SUBSIDIARY GUARANTOR STATE OF ORGANIZATION
----------------------------- ---------------------
Argo II, L.L.C. Delaware
Crystal Holding, L.L.C. Delaware
Crystal Properties and Trading Company, L.L.C. Delaware
Delos Offshore Company, L.L.C. Delaware
El Paso Energy Partners Deepwater, L.L.C. Delaware
El Paso Energy Partners Oil Transport, L.L.C. Delaware
El Paso Partners Operating Company, L.L.C. Delaware
Xxxxx Bank Gathering Company, L.L.C. Delaware
First Reserve Gas, L.L.C. Delaware
Flextrend Development Company, L.L.C. Delaware
Green Canyon Pipe Line Company, L.P. Delaware
Hattiesburg Gas Storage Company Delaware
Hattiesburg Industrial Gas Sales Delaware
Company, L.L.C.
Manta Ray Gathering Company, L.L.C. Delaware
Petal Gas Storage Company, L.L.C. Delaware
Poseidon Pipeline Company, L.L.C. Delaware
VK Deepwater Gathering Company, L.L.C. Delaware
VK-Main Pass Gathering Company, L.L.C. Delaware
Viosca Xxxxx Gathering Company Delaware
