EXECUTION COPY
EXHIBIT 4.M
A/B EXCHANGE
REGISTRATION RIGHTS AGREEMENT
Dated as of July 3, 2003
by and among
GulfTerra Energy Partners, L.P.
GulfTerra Energy Finance Corporation
The Subsidiary Guarantors listed on Schedule A
and
X.X. Xxxxxx Securities Inc.
Banc One Capital Markets, Inc.
BNP Paribas Securities Corp.
Credit Lyonnais Securities (USA) Inc.
Credit Suisse First Boston LLC
Fortis Investment Services LLC
The Royal Bank of Scotland plc
Scotia Capital (USA) Inc.
Suntrust Capital Markets, Inc.
Wachovia Securities, LLC
This Registration Rights Agreement (this "Agreement") is made and
entered into as of July [11], 2003 by and among GulfTerra Partners, L.P., a
Delaware limited partnership (the "Partnership"), GulfTerra Energy Finance
Corporation, a Delaware corporation ("GulfTerra 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"), X.X. Xxxxxx Securities Inc., Banc One Capital Markets, Inc., BNP
Paribas Securities Corp., Credit Lyonnais Securities (USA) Inc., Credit Suisse
First Boston LLC, Fortis Investment Services LLC, The Royal Bank of Scotland
plc, Scotia Capital (USA) Inc., SunTrust Capital Markets, Inc., Wachovia
Securities, LLC, (each an "Initial Purchaser" and, collectively, the "Initial
Purchasers"), each of whom has agreed to purchase the Issuers' 6 1/4 % Series A
Senior Notes due 2010 (such notes being purchased on the date hereof being
referred to as the "Series A Notes") pursuant to the Purchase Agreement (as
defined below).
This Agreement is made pursuant to the Purchase Agreement, dated June
26, 2003 (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 July 3, 2003, (the "Indenture"), among the Issuers, the Subsidiary
Guarantors and Xxxxx Fargo Bank, as trustee (the "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 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.
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Series B Notes: The Issuers' 6 1/4% Series B Senior Notes due 2010 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 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 issued to a Broker-Dealer in the Exchange Offer until the date on which
such Series B Note is disposed of by such 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 95 days after the Closing Date (such
95th 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
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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 180 days
after the Closing Date (such 180th 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 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 such 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
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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 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 and the Subsidiary Guarantors 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 and the Subsidiary
Guarantors shall remain obligated to meet the Effectiveness Deadline
set forth in clause (y).
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,
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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
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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
accrual of 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.
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; provided however, that any accrued liquidated damages that are unpaid at
the time any Notes cease to be Transfer Restricted Securities upon consummation
of the Exchange Offer shall be paid on or promptly after the date of such
consummation to the Holders of record of such Transfer Restricted Securities on
such date. 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.
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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, (C) it is acquiring the Series B
Notes in its ordinary course of business and (D) if the
undersigned is a Broker-Dealer, the Series A Notes being
tendered constitute Series A Notes acquired as the 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 a condition to its participation in
the Exchange Offer, each Holder shall acknowledge and agree
that (x) any person participating in Exchange Offer with the
intention or for the purpose of
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distributing the Series B Notes, (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 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 and (y) any Broker-Dealer that pursuant to the
Exchange Offer receives Series B Notes for its own account in
exchange for Series A Notes which it acquired for its own
account as a result of market-making activities or other
trading activities must deliver a prospectus meeting the
requirements of the Securities Act in connection with any
resale of such Series B Notes.
(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
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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 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
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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;
(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;
11
(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;
(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
12
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(aa), 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 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.
Without limiting the foregoing, such counsel
may state further that
13
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
(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
14
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
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);
(xvii) 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
15
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.
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
16
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 Xxxxxxx & Xxxxxxxx LLP, 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 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
17
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.
18
(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
19
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.
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) of GulfTerra Energy
Partners Company and its affiliates in 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 which was executed in connection with the acquisition
by the Partnership of an additional interest in Viosca Xxxxx Gathering
Company, (iii) of Crystal Gas Storage, Inc. ("Crystal") and its
successors pursuant to the registration rights agreement dated as of
August 28, 2000 between Crystal and the Partnership which was executed
in connection with the acquisition by the Partnership of the Crystal
storage facilities, (iv) granted under the Partnership Credit Facility
(as amended, restated and otherwise supplemented through the date
hereof) and related agreements, (v) of the General Partner and its
affiliates in Section 6.14 of the Partnership Agreement (vi) in the
registration rights agreement executed in connection with the November
2002 acquisition by the Partnership of the San Xxxx assets and (vii)
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
20
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.
(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:
GulfTerra 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
21
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.
(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.
* * * *
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Issuers:
GULFTERRA ENERGY PARTNERS, L.P.
By:/s/ Xxxxx Xxxxxx
--------------------------------------------------------
Xxxxx Xxxxxx, Vice President and Chief Financial Officer
GULFTERRA ENERGY FINANCE CORPORATION
By:/s/ Xxxxx Xxxxxx
--------------------------------------------------------
Xxxxx Xxxxxx, Vice President and Chief Financial Officer
Subsidiary Guarantors:
CAMERON HIGHWAY PIPELINE GP, L.L.C.*
CAMERON HIGHWAY PIPELINE I, L.P.*
CRYSTAL HOLDING, L.L.C.*
FIRST RESERVE GAS, L.L.C.*
FLEXTREND DEVELOPMENT COMPANY, L.L.C.*
GULFTERRA ALABAMA INTRASTATE, L.L.C.*
GULFTERRA FIELD SERVICES, L.L.C.*
GULFTERRA GC, L.P.*
GULFTERRA HOLDING I, L.L.C.*
GULFTERRA HOLDING II, L.L.C.*
GULFTERRA HOLDING III, L.L.C.*
GULFTERRA HOLDING IV, L.P.*
GULFTERRA HOLDING V, L.P.*
GULFTERRA INTRASTATE, L.P*.
GULFTERRA NGL STORAGE, L.L.C.*
GULFTERRA OIL TRANSPORT, L.L.C.
GULFTERRA OPERATING COMPANY, L.L.C.*
GULFTERRA SOUTH TEXAS, L.P.*
GULFTERRA TEXAS PIPELINE, L.P.*
HATTIESBURG GAS STORAGE COMPANY*
By: FIRST RESERVE GAS, L.L.C., in its
capacity as 50% general partner of
Hattiesburg Gas Storage Company*
By: HATTIESBURG INDUSTRIAL GAS SALES, L.L.C.,
in its capacity as 50% general partner of
Hattiesburg Gas Storage Company*
HATTIESBURG INDUSTRIAL GAS SALES, L.L.C.*
HIGH ISLAND OFFSHORE SYSTEM, L.L.C.
By: GULFTERRA ENERGY PARTNERS, L.P.,
its sole member*
MANTA RAY GATHERING COMPANY, L.L.C.*
PETAL GAS STORAGE, L.L.C.*
POSEIDON PIPELINE COMPANY, L.L.C.*
*By:/s/ Xxxxx Xxxxxx
----------------------------------------
Xxxxx Xxxxxx, Vice President and
Chief Financial Officer:
Initial Purchasers:
X.X. XXXXXX SECURITIES INC.
BANC ONE CAPITAL MARKETS, INC.
BNP PARIBAS SECURITIES CORP.
CREDIT LYONNAIS SECURITIES (USA) INC.
CREDIT SUISSE FIRST BOSTON LLC
FORTIS INVESTMENT SERVICES LLC
THE ROYAL BANK OF SCOTLAND PLC
SCOTIA CAPITAL (USA) INC.
SUNTRUST CAPITAL MARKETS, INC.
WACHOVIA SECURITIES, LLC
By: X.X. XXXXXX SECURITIES INC.
By: /s/Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
SCHEDULE A
NAME OF SUBSIDIARY GUARANTOR STATE OF ORGANIZATION
---------------------------- ---------------------
Cameron Highway Pipeline GP, L.L.C. Delaware
Cameron Highway Pipeline I, L.P. Delaware
Crystal Holding, L.L.C. Delaware
First Reserve Gas, L.L.C. Delaware
Flextrend Development Company, L.L.C. Delaware
GulfTerra Alabama Intrastate, L.L.C. Delaware
GulfTerra Field Services, L.L.C. Delaware
GulfTerra GC, L.P. Delaware
GulfTerra Holding I, L.L.C. Delaware
GulfTerra Holding II, L.L.C. Delaware
GulfTerra Holding III, L.L.C. Delaware
GulfTerra Holding IV, L.P. Delaware
GulfTerra Holding V, L.P. Delaware
GulfTerra Intrastate, L.P. Delaware
GulfTerra NGL Storage, L.L.C. Delaware
GulfTerra Oil Transport, L.L.C. Delaware
GulfTerra Operating Company, L.L.C. Delaware
GulfTerra South Texas, L.P. Delaware
GulfTerra Texas Pipeline, L.P. Delaware
Hattiesburg Gas Storage Company Delaware
Hattiesburg Industrial Gas Sales, L.L.C. Delaware
High Island Offshore System, L.L.C. Delaware
Manta Ray Gathering Company, L.L.C. Delaware
Petal Gas Storage, L.L.C. Delaware
Poseidon Pipeline Company, L.L.C. Delaware
