FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
Exhibit
10.4
EXECUTION
VERSION
FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
This First Amendment to Registration Rights Agreement (this “Amendment”) is made and entered
into as of November 1, 2007, by and among Quest Midstream Partners, L.P., a Delaware limited
partnership (“Partnership”), Alerian Opportunity Partners IV, L.P., a Delaware limited partnership
(“Alerian”), Swank MLP Convergence Fund, LP, a Texas limited partnership (“Swank MLP Fund”), Swank
Investment Partners, LP, a Texas limited partnership (“SIP”), The Xxxxxxx MLP Opportunity Fund I,
LP, a Delaware limited partnership (“Xxxxxxx MLP Fund”), The Xxxxxxx XX Strategies Fund, LP, a
Delaware limited partnership (“Xxxxxxx XX Fund”, together with Swank MLP Fund, SIP and Xxxxxxx MLP
Fund, “Swank”), Tortoise Capital Resources Corporation, a Maryland corporation (“Tortoise”),
Alerian Opportunity Partners IX, L.P., a Delaware limited partnership (“New Investor A”), Bel Air
MLP Energy Infrastructure Fund, LP, a Delaware limited partnership (“New Investor B”), Tortoise Gas
and Oil Corporation, a Maryland corporation (“New Investor C”), Dalea Partners, LP, an Oklahoma
limited partnership (“New Investor D”), Xxxxx Capital MLP, LLC, a New Jersey limited liability
company (“New Investor E”), ZLP Fund, L.P., a Delaware limited partnership (“New Investor F”),
KED MME Investment Partners, LP, a Delaware limited partnership (“New Investor G”), Eagle Income
Appreciation Partners, L.P., a Texas limited partnership (“New Investor H”), Eagle Income
Appreciation II, L.P., a Texas limited partnership (“New Investor I”), Citigroup Financial
Products, Inc., a Delaware corporation (“New Investor J”), and The Northwestern Mutual Life
Insurance Company, a Wisconsin corporation (“New Investor K”, together with New Investor A, New
Investor B, New Investor C, New Investor D, New Investor E, New Investor F, New Investor G, New
Investor H, New Investor I and New Investor J, the “New Investors”). Alerian, Swank, Tortoise,
Xxxxxxxx Opportunity Partners, LP, a Delaware limited partnership (“HOP”), and HCM Energy Holdings,
LLC, an Illinois limited liability company (together with HOP, “Xxxxxxxx”), are sometimes referred
to herein individually as an “Original Investor” and collectively as the “Original Investors.” The
New Investors and Tortoise are sometimes referred to herein individually as a “Second Round
Investor” and collectively as the “Second Round Investors.” The Original Investors and the New
Investors are sometimes referred to herein individually as an “Investor” and collectively as the
“Investors.”
RECITALS
WHEREAS, the Partnership and the Original Investors are parties to a Purchase Agreement dated
December 22, 2006 (the “Original Purchase Agreement”) pursuant to which the Original Investors
acquired certain of the Partnership’s Common Units.
WHEREAS, the Partnership and the Second Round Investors are parties to a Purchase Agreement,
dated October 16, 2007 (the “Second Round Purchase Agreement”) pursuant to which the Second Round
Investors acquired certain of the Partnership’s Common Units.
WHEREAS, the Partnership and the Original Investors are parties to a Registration Rights
Agreement dated December 22, 2006 (the “Agreement”) pursuant to which the Original Investors were
granted certain rights with respect to their investment in the Partnership (any capitalized terms
not otherwise defined in this Amendment shall have the meanings ascribed thereto in the Agreement).
WHEREAS, the Agreement may not be amended, modified or supplemented without the written
consent of the Partnership and Holders beneficially owning not less than two-thirds (2/3) of the
then outstanding Registrable Securities.
WHEREAS, the undersigned parties to the Agreement, constituting not less than two-thirds (2/3)
of the currently outstanding Registrable Securities, and the New Investors desire to amend the
Agreement to extend certain rights provided for therein to the New Investors.
NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and
agreements contained herein, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties
hereto hereby as follows:
1. DEFINITIONS.
(a) The following definitions set forth in Section 1 of the Agreement shall be amended to read
in their entirety as follows:
Agreement: As defined in the preamble and as amended by the First Amendment to Registration
Rights Agreement, dated as of November 1, 2007.
Investor: An Original Investor or Second Round Investor.
Partnership Agreement: The Second Amended and Restated Agreement of Limited Partnership of
the Partnership dated as of November 1, 2007.
Purchase Agreement: The Original Purchase Agreement and the Second Round Purchase
Agreement, collectively.
Registrable Securities: (a) The Common Units issued pursuant to the Original Purchase
Agreement, (b) The Common Units issued pursuant to the Second Round Purchase Agreement, and
(c) any securities issued in respect of such Registrable Securities by reason of or in
connection with any dividend, distribution, split, purchase in any rights offering or in
connection with any exchange for or replacement of such Registrable Securities or any
combination of securities, recapitalization, merger or consolidation, or any other equity
securities issued pursuant to any other pro rata distribution with respect to the Common
Units of the Partnership, until, with respect to such Registrable Security the earliest to
occur of (i) the date on which it has been first registered effectively pursuant to the
Securities Act and disposed of in accordance with the Registration Statement relating to it,
(ii) the date on which either it is distributed to the public pursuant to Rule 144 (or any
similar provision then in effect) or is eligible for sale without registration, pursuant to
Rule 144(k) promulgated by the Commission pursuant to the Securities Act, in the opinion of
counsel to the Partnership, or (iii) the date on which it is sold to the Partnership, any
member of the QRC Group or any subsidiary of the Partnership.
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(b) The following definitions shall be added to Section 1 of the Agreement as follows:
Amendment: The First Amendment of Registration Rights Agreement, dated as of November 1,
2007, by and among the Partnership, the Original Investors and the New Investors.
Original Investors: As defined in the preamble of the Amendment.
Original Purchase Agreement: As defined in the recitals of the Amendment.
Second Round Investors: As defined in the preamble of the Amendment.
Second Round Purchase Agreement: As defined in the recitals of the Amendment.
2. SUCCESSORS AND ASSIGNS.
Section 8(d) of the Agreement is hereby deleted and replaced in its entirety with the
following new Section 8(d):
(d) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and permitted assigns of each of the parties
hereto. The rights to cause the Partnership to register Registrable Securities
pursuant to this Agreement may be assigned by a Holder to a transferee or assignee
of Registrable Securities that (a) is a subsidiary, parent, general partner, limited
partner, retired partner, member or retired member, or shareholder of a Holder, (b)
is a Holder’s family member or trust for the benefit of an individual Holder, (c)
acquires at least 175,000 Registrable Securities (as adjusted for splits and
combinations); (d) is an Affiliate of such Holder or (e) is a party to a total
return swap with the Holder, provided, however, that such transfer shall not be
effective for purposes of this Agreement until (i) the transferor shall furnish to
the Partnership written notice of the name and address of such transferee or
assignee and the securities with respect to which such registration rights are being
assigned and (ii) such transferee shall agree to be subject to all restrictions set
forth in this Agreement. Each Holder agrees that any transferee of any Registrable
Securities shall be bound by Section 4(b) and Section 7, whether or not such
transferee expressly agrees to be bound.
3. REFERENCE TO AND EFFECT ON THE AGREEMENT.
(a) Upon the effectiveness of this Amendment, each reference in the Agreement to “this
Agreement,” “hereunder,” “hereof,” and “herein” shall mean and be a reference to the Agreement as
amended hereby.
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(b) Except as specifically amended above, all of the terms, conditions and covenants of the
Agreement shall remain unaltered and in full force and effect and shall be binding upon the parties
thereto in all respects and are hereby ratified and confirmed.
4. MISCELLANEOUS.
(a) This Amendment 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.
(b) The headings in this Amendment are for convenience of reference only and shall not limit
or otherwise affect the meaning hereof.
(c) THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF DELAWARE, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
(d) If any term, provision, covenant or restriction of this Amendment is held by a court of
competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full force and effect and
shall in no way be affected, impaired or invalidated, and the parties hereto shall use their
commercially reasonable efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the parties hereto that
they would have executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
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IN WITNESS WHEREOF, Partnership and the Investors have caused this Amendment to be signed by
their respective duly authorized officers as of the date first above written.
QUEST MIDSTREAM PARTNERS, L.P. | ||||||||
By: | Quest Midstream GP, LLC, Its General Partner |
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By: | /s/ Xxxxx X. Xxxx | |||||||
Name: | Xxxxx X. Xxxx | |||||||
Title: | Chief Executive Officer | |||||||
ALERIAN OPPORTUNITY PARTNERS IV, LP | ||||||||
By: | ALERIAN OPPORTUNITY ADVISORS IV, LLC, its general partner |
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By: | /s/ Xxxxxxx Xxxxxxx | |||||||
Name: | Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Member | |||||||
Address for Notice: | ||||||||
Alerian Capital Management 00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 Attention: Xxxxxxx Xxxxxxx |
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ALERIAN OPPORTUNITY PARTNERS IX, LP | ||||||||
By: | ALERIAN OPPORTUNITY ADVISORS IX, LLC its general partner |
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By: | /s/ Xxxxxxx Xxxxxxx | |||||||
Name: | Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Member | |||||||
Address for Notice: | ||||||||
Alerian Capital Management 00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx |
Xxx Xxxx, XX 00000 Attention: Xxxxxxx Xxxxxxx Fax: (000) 000-0000 |
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SWANK MLP CONVERGENCE FUND, LP | ||||||||
By: | SWANK ENERGY INCOME ADVISORS, L.P. its general partner |
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By: | SWANK CAPITAL, LLC its general partner |
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By: | /s/ Xxxxx X. Xxxxx | |||||||
Name: | Xxxxx X. Xxxxx | |||||||
Title: | Manager | |||||||
Address for Notice: | ||||||||
Swank Capital, LLC Xxx Xxxx Xxxxxx, Xxxxx 000 Xxxxxx, XX 00000 |
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SWANK INVESTMENT PARTNERS, LP | ||||||||
By: | SWANK ENERGY INCOME ADVISORS, L.P. its general partner |
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By: | SWANK CAPITAL, LLC its general partner |
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By: | /s/ Xxxxx X. Xxxxx | |||||||
Name: | Xxxxx X. Xxxxx | |||||||
Title: | Manager | |||||||
Address for Notice: | ||||||||
Swank Capital, LLC Xxx Xxxx Xxxxxx, Xxxxx 000 Xxxxxx, XX 00000 |
THE XXXXXXX MLP OPPORTUNITY FUND I, LP | ||||||||
By: | CARBON COUNTY PARTNERS I, LP its general partner |
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By: | CARBON COUNTY GP I, LLC its general partner |
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By: | /s/ Xxxxx X. Xxxxx | |||||||
Name: | Xxxxx X. Xxxxx | |||||||
Title: | Manager | |||||||
Address for Notice: | ||||||||
Swank Capital, LLC Xxx Xxxx Xxxxxx, Xxxxx 000 Xxxxxx, XX 00000 |
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THE XXXXXXX XX STRATEGIES FUND, LP | ||||||||
By: | CARBON COUNTY PARTNERS I, LP its general partner |
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By: | CARBON COUNTY GP I, LLC its general partner |
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By: | /s/ Xxxxx X. Xxxxx | |||||||
Name: | Xxxxx X. Xxxxx | |||||||
Title: | Manager | |||||||
Address for Notice: | ||||||||
Swank Capital, LLC Xxx Xxxx Xxxxxx, Xxxxx 000 Xxxxxx, XX 00000 |
BEL AIR MLP ENERGY INFRASTRUCTURE FUND, LP | ||||||||
By: | SWANK ENERGY INCOME ADVISORS, L.P. its investment advisor |
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By: | SWANK CAPITAL, LLC its general partner |
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By: | /s/ Xxxxx X. Xxxxx | |||||||
Name: | Xxxxx X. Xxxxx | |||||||
Title: | Manager | |||||||
Address for Notice: | ||||||||
Swank Capital, LLC Xxx Xxxx Xxxxxx, Xxxxx 000 Xxxxxx, XX 00000 Fax: (000) 000-0000 |
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TORTOISE CAPITAL RESOURCES CORPORATION | ||||||||
By: | /s/ Xxxxxx Xxxxxxx | |||||||
Name: | Xxxxxx Xxxxxxx | |||||||
Title | : President | |||||||
Address for Notice: | ||||||||
Tortoise Capital Resources Corporation 00000 Xxxxxx Xxxx., Xxxxx 000 Xxxxxxxx Xxxx, XX 00000 Fax: (000) 000-0000 |
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TORTOISE GAS AND OIL CORPORATION | ||||||||
By: | /s/ Xxxxx X. Xxxxxxx | |||||||
Name: | Xxxxx X. Xxxxxxx | |||||||
Title: | President & CEO | |||||||
Address for Notice: | ||||||||
Tortoise Gas and Oil Corporation 00000 Xxxxxx Xxxx., Xxxxx 000 |
Xxxxxxxx Xxxx, XX 00000 Fax: (000) 000-0000 |
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DALEA PARTNERS, LP | ||||||
By: | DALEA MANAGEMENT, LLC Its general partner |
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By: | /s/ N. Xxxxxx Xxxxxxxx, 3rd | |||||
Name: | N. Xxxxxx Xxxxxxxx, 3rd | |||||
Title: | Manager | |||||
Address for Notice: | ||||||
c/o Riata Management LLC 0000 Xxxxxxxxxx Xxxxxxx, Xxxxx 000 Xxxxxxxx Xxxx, XX 00000 Fax: (000) 000-0000 |
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XXXXX CAPITAL MLP, LLC | ||||||
By: | Xxxxx Capital, Inc., Its manager |
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By: | /s/ Xxxxxx X. Xxxxx | |||||
Name: | Xxxxxx X. Xxxxx | |||||
Title: | Chief Operating Officer | |||||
Address for Notice: | ||||||
c/x Xxxxx Capital, Inc. 000 Xxxxx Xxxxx Xxxxxxxxx, Xxx Xxxxxx 00000 |
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Attention: Xxxx Xxxxxx and Xxx Xxxxx Fax: (000) 000-0000 |
ZLP FUND, L.P. | ||||||
By: | Xxxxxx Xxxxx Partners, LLC, | |||||
Its general partner | ||||||
By: | /s/ Xxxxx X. Xxxxx | |||||
Name: | Xxxxx X. Xxxxx | |||||
Title: | Managing Member | |||||
Address for Notice: | ||||||
c/o Xxxxxx Xxxxx Partners, LLC. Harborside Financial Xxxxxx Xxxxx 00, Xxxxx 000 Xxxxxx Xxxx, XX 00000 Fax: (000) 000-0000 |
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KED MME INVESTMENT PARTNERS, LP | ||||||
By: | KED MME Investment GP, LLC, | |||||
Its general partner | ||||||
By: | /s/ Xxxxx X. Xxxxx | |||||
Name: | Xxxxx X. Xxxxx | |||||
Title: | Vice President | |||||
Address for Notice: | ||||||
1800 Avenue of the Stars, Xxxxxx Xxxxx Xxx Xxxxxxx, Xxxxxxxxxx 00000 Attention: Xxxxx Xxxxxxxxxx, Esq. Facsimile: (000) 000-0000 |
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with a copy to: | ||||||
KED MME Investment Partners, LP 0000 Xxxxxxxxx, Xxxxx 0000 Xxxxxxx, Xxxxx 00000 Attention: Xxxxx XxXxxxxx Facsimile: (000) 000-0000 |
EAGLE INCOME APPRECIATION PARTNERS, L.P. | ||||||
By: | Eagle Income Appreciation GP, LLC | |||||
its general partner | ||||||
By: | Eagle Global Advisors, LLC | |||||
its managing member | ||||||
By: | /s/ Xxxxxx Day | |||||
Name: Xxxxxx Day | ||||||
Title: Partner | ||||||
Address for Notice: | ||||||
c/o Eagle Global Advisors 0000 Xxx Xxxxxx Xxxx, Xxxxx 000 Xxxxxxx, XX 00000 |
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EAGLE INCOME APPRECIATION II, L.P. | ||||||
By: | Eagle Income Appreciation GP, LLC | |||||
its general partner | ||||||
By: | Eagle Global Advisors, LLC | |||||
its managing member | ||||||
By: | /s/ Xxxxxx Day | |||||
Name: Xxxxxx Day | ||||||
Title: Partner | ||||||
Address for Notice: | ||||||
c/o Eagle Global Advisors 0000 Xxx Xxxxxx Xxxx, Xxxxx 000 Xxxxxxx, XX 00000 |
CITIGROUP FINANCIAL PRODUCTS, INC. | ||||||||
By: | /s/ Xxxx Xxxxxxxxxxx | |||||||
Name: | ||||||||
Title: | Managing Director | |||||||
Address for Notice: | ||||||||
Citigroup Financial Products, Inc. 000 Xxxxxxxxx Xx. Xxx Xxxx, XX 00000 Attn: Xxxxxxx X’Xxx Fax: (000) 000-0000 |
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THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY | ||||||||
By: | /s/ Xxxxxx X. Xxxxx | |||||||
Name: | Xxxxxx X. Xxxxx | |||||||
Title: | Its Authorized Representative | |||||||
Address for Notice: | ||||||||
The Northwestern Mutual Life Insurance Company 000 Xxxx Xxxxxxxxx Xxxxxx Xxxxxxxxx, XX 00000 Attention: Xxxxxx Xxxxx Fax: (000) 000-0000 |