REGISTRATION RIGHTS AGREEMENT
EXHIBIT 99.3
This REGISTRATION RIGHTS AGREEMENT is dated as of April 18, 2007 (this “Agreement”),
by and among ATLAS PIPELINE PARTNERS, L.P., a Delaware limited partnership (the “Company”),
and ATLAS PIPELINE PARTNERS FINANCE CORP., a Delaware corporation (the “Finance Co” and,
together with the Company, the “Issuers”), and Sunlight Capital Partners, LLC (the
“Purchaser”).
The Issuers and the Purchaser are parties to the Purchase Agreement of even date herewith (the
“Purchase Agreement”) which provides for the issuance to the Purchaser of $8,524,000
aggregate principal amount of the Issuers’ 81/8% Senior Notes due 2015 (including the unconditional
guarantees thereof on an unsecured senior basis as to principal, premium, if any, and interest by
the Guarantors, the “Securities”). As an inducement to the Purchaser to enter into the
Purchase Agreement, the Issuers have agreed to provide to the Purchaser and its direct and indirect
transferees the registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the Purchaser’s obligations under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have the
following meanings:
“Business Day” shall mean any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed.
“Closing Date” shall mean the Closing Date as defined in the Purchase Agreement.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time.
“Exchange Dates” shall have the meaning set forth in Section 2(a)(ii) hereof.
“Exchange Offer” shall mean the exchange offer by the Issuers and the Guarantors of Exchange
Securities for Registrable Securities pursuant to Section 2(a) hereof.
“Exchange Offer Registration” shall mean a registration under the Securities Act effected
pursuant to Section 2(a) hereof.
“Exchange Offer Registration Statement” shall mean an exchange offer registration statement on
Form S-4 (or, if applicable, on another appropriate form) and all amendments and supplements to
such registration statement, in each case including the Prospectus contained therein, all exhibits
thereto and any document incorporated by reference therein.
“Exchange Securities” shall mean senior notes issued by the Issuers and guaranteed by the
Guarantors under the Indenture containing terms identical to the Securities (except that the
Exchange Securities will not be subject to restrictions on transfer or to any increase in annual
interest rate for failure to comply with this Agreement) and to be offered to Holders of Securities
in exchange for Securities pursuant to the Exchange Offer.
“Guarantors” shall mean the guarantors of the Securities.
“Holders” shall mean the Purchaser, for so long as it owns any Registrable Securities, and
each of its successors, assigns and direct and indirect transferees who become owners of
Registrable Securities under the Indenture; provided that for purposes of Sections 4 and 5 of this
Agreement, the term “Holders” shall include Participating Broker-Dealers.
“Indenture” shall mean the Indenture relating to the Securities dated as of December 20, 2005
among the Issuers, the Guarantors and Wachovia Bank, National Association, as trustee, and as the
same may be amended from time to time in accordance with the terms thereof.
“Majority Holders” shall mean the Holders of a majority of the aggregate principal amount of
outstanding Registrable Securities; provided that whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required hereunder, Registrable Securities owned
directly or indirectly by the Company or any of its affiliates shall not be counted in determining
whether such consent or approval was given by the Holders of such required percentage or amount.
“Participating Broker-Dealers” shall have the meaning set forth in Section 4(a) hereof.
“Person” shall mean an individual, partnership, limited liability company, corporation, trust
or unincorporated organization, or a government or agency or political subdivision thereof.
“Prospectus” shall mean the prospectus included in a Registration Statement, including any
preliminary prospectus, and any such prospectus as amended or supplemented by any prospectus
supplement or “free-writing prospectus” (as defined in Rule 405 under the Securities Act),
including a prospectus supplement or free-writing prospectus with respect to the terms of the
offering of any portion of the Registrable Securities covered by a Shelf Registration Statement,
and by all other amendments and supplements to such prospectus, and in each case including any
document incorporated by reference therein.
“Purchase Agreement” shall have the meaning set forth in the preamble.
“Purchaser” shall have the meaning set forth in the preamble.
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“Registrable Securities” shall mean the Securities; provided that the Securities shall cease
to be Registrable Securities (i) when a Registration Statement with respect to such Securities has
been declared effective under the Securities Act and such Securities have been exchanged or
disposed of pursuant to such Registration Statement, (ii) when such Securities are eligible to be
sold pursuant to Rule 144(k) (or any similar provision then in force, but not Rule 144A) under the
Securities Act or (iii) when such Securities cease to be outstanding.
“Registration Expenses” shall mean any and all expenses incident to performance of or
compliance by the Issuers with this Agreement, including, without limitation, (i) all SEC, stock
exchange or National Association of Securities Dealers, Inc. registration and filing fees, (ii) all
fees and expenses incurred in connection with compliance with state securities or blue sky laws
(including reasonable fees and disbursements of counsel for any Underwriters or Holders in
connection with blue sky qualification of any Exchange Securities or Registrable Securities), (iii)
all expenses of any Persons in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus and any amendments or supplements thereto,
any underwriting agreements, securities sales agreements or other similar agreements and any other
documents relating to the performance of and compliance with this Agreement, (iv) all rating agency
fees, (v) all fees and disbursements relating to the qualification of the Indenture under
applicable securities laws, (vi) the fees and disbursements of the Trustee and its counsel, (vii)
the fees and disbursements of counsel for the Issuers and, in the case of a Shelf Registration
Statement, the reasonable fees and disbursements of one counsel for the Holders (which counsel
shall be selected by the Majority Holders and which counsel may also be counsel for the Purchaser)
and (viii) the fees and disbursements of the independent public accountants of the Issuers,
including the expenses of any special audits or “comfort” letters required by or incident to the
performance of and compliance with this Agreement, but excluding fees and expenses of counsel to
the Underwriters (other than fees and expenses set forth in clause (ii) above) or the Holders and
underwriting discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by a Holder.
“Registration Statement” shall mean any registration statement of the Issuers and the
Guarantors that covers any of the Exchange Securities or Registrable Securities pursuant to the
provisions of this Agreement and all amendments and supplements to any such registration statement,
including post-effective amendments, in each case including the Prospectus contained therein, all
exhibits thereto and any document incorporated by reference therein.
“SEC” shall mean the Securities and Exchange Commission.
“Securities Act” shall mean the Securities Act of 1933, as amended from time to time.
“Shelf Effectiveness Period” shall have the meaning set forth in Section 2(b) hereof.
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“Shelf Registration” shall mean a registration effected pursuant to Section 2(b) hereof.
“Shelf Registration Statement” shall mean a “shelf” registration statement of the Issuers and
the Guarantors that covers all the Registrable Securities (but no other securities unless approved
by the Holders whose Registrable Securities are to be covered by such Shelf Registration Statement)
on an appropriate form under Rule 415 under the Securities Act, or any similar rule that may be
adopted by the SEC, and all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained therein, all exhibits
thereto and any document incorporated by reference therein.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended from time to
time.
“Trustee” shall mean the trustee with respect to the Securities under the Indenture.
“Underwriter” shall have the meaning set forth in Section 3 hereof.
“Underwritten Offering” shall mean an offering in which Registrable Securities are sold to an
Underwriter for reoffering to the public.
2. Registration Under the Securities Act. (a) To the extent not prohibited by any
applicable law or applicable interpretations of the Staff of the SEC, the Issuers shall use their
reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement by the
30th day after the Closing Date covering an offer to the Holders to exchange all the
Registrable Securities for Exchange Securities and (ii) cause such Exchange Offer Registration
Statement to be declared effective under the Securities Act by the 90th day (or, if the
SEC elects to review the Registration Statement, the 120th day) after the Closing Date.
The Issuers shall commence the Exchange Offer promptly after the Exchange Offer Registration
Statement is declared effective by the SEC and use their reasonable best efforts to complete the
Exchange Offer not later than 120th day (or, if the SEC elects to review the
Registration Statement, the 150th day) after the Closing Date.
The Issuers shall commence the Exchange Offer by mailing or delivering electronically the
related Prospectus, appropriate letters of transmittal and other accompanying documents to each
Holder stating, in addition to such other disclosures as are required by applicable law,
| (i) | that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for exchange; |
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| (ii) | the dates of acceptance for exchange (which shall be a period of at least 5 Business Days from the date such notice is mailed) (the “Exchange Dates”); | ||
| (iii) | that any Registrable Security not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement; | ||
| (iv) | that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, prior to the close of business on the last Exchange Date; and | ||
| (v) | that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing its election to have such Securities exchanged. |
As a condition to participating in the Exchange Offer, a Holder will be required to represent
to the Issuers that (i) any Exchange Securities to be received by it will be acquired in the
ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has
no arrangement or understanding with any Person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the
Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under Securities
Act) of the Issuers or any Guarantor and (iv) if such Holder is a broker-dealer that will receive
Exchange Securities for its own account in exchange for Registrable Securities that were acquired
as a result of market-making or other trading activities, then such Holder will deliver a
Prospectus in connection with any resale of such Exchange Securities.
As soon as practicable after the last Exchange Date, the Issuers shall
| (i) | accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and | ||
| (ii) | deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuers and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. |
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The Issuers shall use their reasonable best efforts to complete the Exchange Offer as provided
above and shall comply with the applicable requirements of the Securities Act, the Exchange Act and
other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer
shall not be subject to any conditions, other than that the Exchange Offer does not violate any
applicable law or applicable interpretations of the Staff of the SEC.
(b) In the event that (i) the Issuers determine that the Exchange Offer Registration provided
for in Section 2(a) above is not available or may not be completed as soon as practicable after the
last Exchange Date because of a change in law or SEC policy after the issue date of the Registrable
Securities, (ii) for any reason the Exchange Offer is not consummated by the 150th day
after the Closing Date, or if such day is not a Business Day, on or prior to the first Business Day
thereafter, or (iii) any Holder notifies the Issuers following the consummation of the Exchange
Offer that (A) it is not permitted under law or SEC policy to participate in the Exchange Offer;
(B) it cannot publicly resell exchange Registrable Securities without delivering a Prospectus, and
the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or
available for resales by that Holder or (C) it is a broker-dealer and holds Registrable Securities
that it has not exchanged and that it acquired directly from the Issuers or one of their
affiliates, then in addition to or in lieu of conducting the Exchange Offer, the Issuers shall file
a Shelf Registration Statement providing for the sale of all the Registrable Securities by the
Holders thereof and to have such Shelf Registration Statement declared effective by the SEC.
In the event that the Issuers are required to file a Shelf Registration Statement pursuant to
clause (iii) of the preceding sentence, the Issuers shall to file and have declared effective by
the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all
Registrable Securities and a Shelf Registration Statement (which may be a combined Registration
Statement with the Exchange Offer Registration Statement) with respect to offers and sales of
Registrable Securities held by the Purchaser after completion of the Exchange Offer.
The Issuers agree to use their reasonable best efforts (i) to file the Shelf Registration
Statement by the 30th day after they become obligated to make the filing, (ii) to cause the
registration statement to become effective within 60 days after such filing and (iii) to keep the
Shelf Registration Statement continuously effective until the expiration of the period referred to
in Rule 144(k) under the Securities Act with respect to the Registrable Securities or such shorter
period that will terminate when all the Registrable Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness
Period”). The Issuers further agree to supplement or amend the Shelf Registration Statement and
the related Prospectus if required by the rules, regulations or instructions applicable to the
registration form used by the Issuers for such Shelf Registration Statement or by the Securities
Act or by any other rules and regulations thereunder for shelf registration or if reasonably
requested by a Holder of Registrable Securities with respect to
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information relating to such Holder, and to use their reasonable best efforts to cause any
such amendment to become effective and such Shelf Registration Statement and Prospectus to become
usable as soon as thereafter practicable. The Issuers agree to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment promptly after its being used or
filed with the SEC.
(c) The Issuers shall pay all Registration Expenses in connection with the registration
pursuant to Section 2(a) and Section 2(b) hereof. Each Holder shall pay all underwriting discounts
and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s
Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf
Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective
unless it has been declared effective by the SEC.
In the event that (i) the Exchange Offer is not completed, (ii) the Shelf Registration Statement,
if required hereby, is not declared effective, (iii) the Exchange Offer Registration Statement is
not filed, (iv) the Exchange Offer Registration Statement is not effective, (v) the Shelf
Registration Statement is not filed or (vi) the Exchange Offer Registration Statement or the Shelf
Registration Statement is declared effective, but thereafter, subject to certain exceptions, ceases
to be effective or usable in connection with the Exchange Offer or resales of any Registrable
Securities registered under the Shelf Registration Statement (each such event referred to in
clauses (i) through (vi) a “Registration Default”), by within the time limits set forth in
Sections 2(a) and 2(b) above, as applicable, additional interest in the form of additional cash
interest (“Additional Interest”) will accrue on the Registrable Notes required to be
registered on a Shelf Registration. The rate of Additional Interest will be 1.00% per annum for
the first 90-day period immediately following the occurrence of a Registration Default, increasing
by an additional 1.00% per annum with respect to each subsequent 90-day period up to a maximum
amount of Additional Interest of 3.00% per annum, from and including the date on which any such
Registration Default shall occur to, but excluding, the earlier of (1) the date on which all
Registration Defaults have been cured or (2) the date on which such Registrable Note ceases to be a
Registrable Note or otherwise become freely transferable by Holders other than affiliates of the
Issuers without further registration under the Securities Act.
Without limiting the remedies available to the Purchaser and the Holders, the Issuers
acknowledge that any failure by the Issuers to comply with their obligations under Section 2(a) and
Section 2(b) hereof may result in material irreparable injury to the Purchaser 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 Purchaser or any Holder may
obtain such relief as may be required to specifically enforce the Issuers’ obligations under
Section 2(a) and Section 2(b) hereof.
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3. Registration Procedures. In connection with their obligations pursuant to Section
2(a) and Section 2(b) hereof, the Issuers shall as expeditiously as possible
(a) prepare and file with the SEC a Registration Statement on the appropriate form
under the Securities Act, which form (x) shall be selected by the Issuers, (y) shall, in the
case of a Shelf Registration, be available for the sale of the Registrable Securities by the
selling Holders thereof and (z) shall comply as to form in all material respects with the
requirements of the applicable form and include all financial statements required by the SEC
to be filed therewith; provided that the Issuers shall avail themselves of all the
applicable provisions of the SEC’s Securities Offering Reforms which would reduce the amount
of time between the filing and effectiveness of the Registration Statement; and use their
reasonable best efforts to cause such Registration Statement to become effective and remain
effective for the applicable period in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective amendments to each
Registration Statement as may be necessary to keep such Registration Statement effective for
the applicable period in accordance with Section 2 hereof and cause each Prospectus to be
supplemented by any required prospectus supplement and, as so supplemented, to be filed
pursuant to Rule 424 under the Securities Act; and keep each Prospectus current during the
period described in Section 4(3) of and Rule 174 under the Securities Act that is applicable
to transactions by brokers or dealers with respect to the Registrable Securities or Exchange
Securities;
(c) in the case of a Shelf Registration, furnish to each Holder of Registrable
Securities, to counsel for the Purchaser, to counsel for such Holders and to each
Underwriter of an Underwritten Offering of Registrable Securities, if any, without charge,
as many copies of each Prospectus, including each preliminary Prospectus, and any amendment
or supplement thereto, in order to facilitate the sale or other disposition of the
Registrable Securities thereunder; and the Issuers consent to the use of such Prospectus and
any amendment or supplement thereto in accordance with applicable law by each of the selling
Holders of Registrable Securities and any such Underwriters in connection with the offering
and sale of the Registrable Securities covered by and in the manner described in such
Prospectus or any amendment or supplement thereto in accordance with applicable law;
(d) use their reasonable best efforts to register or qualify the Registrable Securities
under all applicable state securities or blue sky laws of such jurisdictions as any Holder
of Registrable Securities covered by a Registration Statement shall reasonably request in
writing by the time the applicable Registration Statement is declared effective by the SEC;
cooperate with the Holders in connection with any filings required to be made with the
National Association of Securities Dealers, Inc.; and do any and all other acts and things
that may be reasonably necessary or advisable to enable each Holder to complete the
disposition in each such jurisdiction of the Registrable
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Securities owned by such Holder; provided that neither Issuer shall be required to
(i) qualify as a foreign corporation or other entity or as a dealer in securities in any
such jurisdiction where it would not otherwise be required to so qualify, (ii) file any
general consent to service of process in any such jurisdiction or (iii) subject itself to
taxation in any such jurisdiction if it is not so subject;
(e) in the case of a Shelf Registration, notify each Holder of Registrable Securities,
counsel for such Holders and counsel for the Purchaser promptly and, if requested by any
such Holder or counsel, confirm such advice in writing (i) when a Registration Statement has
become effective and when any post-effective amendment thereto has been filed and becomes
effective, (ii) of any request by the SEC or any state securities authority for amendments
and supplements to a Registration Statement and Prospectus or for additional information
after the Registration Statement has become effective, (iii) of the issuance by the SEC or
any state securities authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that purpose, (iv) if,
between the effective date of a Registration Statement and the closing of any sale of
Registrable Securities covered thereby, the representations and warranties of any Issuer or
Guarantor contained in any underwriting agreement, securities sales agreement or other
similar agreement, if any, relating to an offering of such Registrable Securities cease to
be true and correct in all material respects or if any Issuer or any Guarantor receives any
notification with respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation of any proceeding for such
purpose, (v) of the happening of any event during the period a Shelf Registration Statement
is effective that makes any statement made in such Registration Statement or the related
Prospectus untrue in any material respect or that requires the making of any changes in such
Registration Statement or Prospectus in order to make the statements therein not misleading
and (vi) of any determination by any Issuer that a post-effective amendment to a
Registration Statement would be appropriate;
(f) use their reasonable best efforts to obtain the withdrawal of any order suspending
the effectiveness of a Registration Statement at the earliest possible moment and provide
immediate notice to each Holder of the withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of Registrable
Securities, without charge, at least one conformed copy of each Registration Statement and
any post-effective amendment thereto (without any documents incorporated therein by
reference or exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the selling Holders of
Registrable Securities to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive legends and
enable such Registrable Securities to be issued in such denominations and registered
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in such names (consistent with the provisions of the Indenture) as the selling
Holders may reasonably request at least one Business Day prior to the closing of any sale of
Registrable Securities;
(i) in the case of a Shelf Registration, upon the occurrence of any event contemplated
by Section 3(e)(v) hereof, use their reasonable best efforts to prepare and file with the
SEC a supplement or post-effective amendment to a Registration Statement or the related
Prospectus or any document incorporated therein by reference or file any other required
document so that, as thereafter delivered to purchasers of the Registrable Securities, such
Prospectus will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and the Issuers shall notify the Holders of
Registrable Securities to suspend use of the Prospectus as promptly as practicable after the
occurrence of such an event, and such Holders hereby agree to suspend use of the Prospectus
until the Issuers have amended or supplemented the Prospectus to correct such misstatement
or omission;
(j) a reasonable time prior to the filing of any Registration Statement, any
Prospectus, any amendment to a Registration Statement or amendment or supplement to a
Prospectus or of any document that is to be incorporated by reference into a Registration
Statement or a Prospectus after initial filing of a Registration Statement, provide copies
of such document to the Purchaser and its counsel (and, in the case of a Shelf Registration
Statement, to the Holders of Registrable Securities and their counsel) and make such of the
representatives of the Issuers as shall be reasonably requested by the Purchaser and its
counsel (and, in the case of a Shelf Registration Statement, the Holders of Registrable
Securities or their counsel) available for discussion of such document; and the Issuers
shall not, at any time after initial filing of a Registration Statement, file any
Prospectus, any amendment of or supplement to a Registration Statement or a Prospectus, or
any document that is to be incorporated by reference into a Registration Statement or a
Prospectus, of which the Purchaser and its counsel (and, in the case of a Shelf Registration
Statement, the Holders of Registrable Securities and their counsel) shall not have
previously been advised and furnished a copy or to which the Purchaser or its counsel (and,
in the case of a Shelf Registration Statement, the Holders or their counsel) shall object;
(k) obtain a CUSIP number for all Exchange Securities or Registrable Securities, as the
case may be, not later than the effective date of a Registration Statement;
(l) if necessary, cause the Indenture to be qualified under the Trust Indenture Act in
connection with the registration of the Exchange Securities or Registrable Securities, as
the case may be; cooperate with the Trustee and the Holders to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in accordance with the
terms of the Trust Indenture Act; and execute, and use their
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reasonable best efforts to cause the Trustee to execute, all documents as may be
required to effect such changes and all other forms and documents required to be filed with
the SEC to enable the Indenture to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, make available for inspection by a
representative of the Holders of the Registrable Securities (an “Inspector”), any
Underwriter participating in any disposition pursuant to such Shelf Registration Statement,
and attorneys and accountants designated by the Holders, at reasonable times and in a
reasonable manner, all pertinent financial and other records, documents and properties of
the Issuers and the Guarantors, and cause the respective officers, directors and employees
of the Issuers and the Guarantors to supply all information reasonably requested by any such
Inspector, Underwriter, attorney or accountant in connection with a Shelf Registration
Statement; provided that if any such information is identified by the Issuers as being
confidential or proprietary, each Person receiving such information shall take such actions
as are reasonably necessary to protect the confidentiality of such information to the extent
such action is otherwise not inconsistent with, an impairment of or in derogation of the
rights and interests of any Inspector, Holder or Underwriter);
(n) in the case of a Shelf Registration, use their reasonable best efforts to cause all
Registrable Securities to be listed on any securities exchange or any automated quotation
system on which similar securities issued or guaranteed by any Issuer or any Guarantor are
then listed if requested by the Majority Holders, to the extent such Registrable Securities
satisfy applicable listing requirements;
(o) if reasonably requested by any Holder of Registrable Securities covered by a
Registration Statement, promptly incorporate in a Prospectus supplement or post-effective
amendment such information with respect to such Holder as such Holder reasonably requests to
be included therein and make all required filings of such Prospectus supplement or such
post-effective amendment as soon as the Issuers have received notification of the matters to
be incorporated in such filing; and
(p) in the case of a Shelf Registration, enter into such customary agreements and take
all such other actions in connection therewith (including those requested by the Holders of
a majority in principal amount of the Registrable Securities being sold) in order to
expedite or facilitate the disposition of such Registrable Securities including, but not
limited to, an Underwritten Offering and in such connection, (i) to the extent possible,
make such representations and warranties to the Holders and any Underwriters of such
Registrable Securities with respect to the business of the Company and its subsidiaries, the
Registration Statement, Prospectus and documents incorporated by reference or deemed
incorporated by reference, if any, in each case, in form, substance and scope as are
customarily made by issuers to underwriters in underwritten offerings and confirm the same
if and when requested, (ii) obtain opinions of counsel to the Issuers (which counsel and
opinions, in form, scope and substance,
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shall be reasonably satisfactory to the Holders and such Underwriters and their
respective counsel) addressed to each selling Holder and Underwriter of Registrable
Securities, covering the matters customarily covered in opinions requested in underwritten
offerings, (iii) obtain “comfort” letters from the independent certified public accountants
of the Issuers (and, if necessary, any other certified public accountant of any subsidiary
of the Issuers or any Guarantor, or of any business acquired by the Issuers or any Guarantor
for which financial statements and financial data are or are required to be included in the
Registration Statement) addressed to each selling Holder and Underwriter of Registrable
Securities, such letters to be in customary form and covering matters of the type
customarily covered in “comfort” letters in connection with underwritten offerings and (iv)
deliver such documents and certificates as may be reasonably requested by the Holders of a
majority in principal amount of the Registrable Securities being sold or the Underwriters,
and which are customarily delivered in underwritten offerings, to evidence the continued
validity of the representations and warranties of the Issuers made pursuant to clause (i)
above and to evidence compliance with any customary conditions contained in an underwriting
agreement. In the event that the SEC Staff requires any Holder to be identified as an
underwriter in the Registration Statement, the Issuers shall provide to such Holder such
documents (such as opinions and comfort letters), and such access to information as shall be
necessary for such Holder to establish a due diligence defense.
In the case of a Shelf Registration Statement, the Issuers may require each Holder of
Registrable Securities to furnish to the Issuers such information regarding such Holder and the
proposed disposition by such Holder of such Registrable Securities as the Issuers may from time to
time reasonably request in writing.
In the case of a Shelf Registration Statement, each Holder of Registrable Securities agrees
that, upon receipt of any notice from the Issuers of the happening of any event of the kind
described in Section 3(e)(iii) or 3(e)(v) hereof, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to a Registration Statement until such Holder’s
receipt of the copies of the supplemented or amended Prospectus contemplated by Section 3(i) hereof
and, if so directed by the Issuers, such Holder will deliver to the Issuers all copies in its
possession, other than permanent file copies then in such Holder’s possession, of the Prospectus
covering such Registrable Securities that is current at the time of receipt of such notice.
If the Issuers shall give any such notice to suspend the disposition of Registrable Securities
pursuant to a Registration Statement, the Issuers shall extend the period during which the
Registration Statement shall be maintained effective pursuant to this Agreement by the number of
days during the period from and including the date of the giving of such notice to and including
the date when the Holders shall have received copies of the supplemented or amended Prospectus
necessary to resume such dispositions. The Issuers may give any such notice only twice during any
365-day period and any such suspensions shall not exceed 30
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days for each suspension and there shall not be more than two suspensions in effect during any
365-day period.
The Holders of Registrable Securities covered by a Shelf Registration Statement who desire to
do so may sell such Registrable Securities in an Underwritten Offering. In any such Underwritten
Offering, the investment banker or investment bankers and manager or managers (the
“Underwriters”) that will administer the offering will be selected by the Majority Holders
of the Registrable Securities included in such offering.
4. Participation of Broker-Dealers in Exchange Offer. (a) (a) The Staff of the SEC
has taken the position that any broker-dealer that receives Exchange Securities for its own account
in the Exchange Offer in exchange for Securities that were acquired by such broker-dealer as a
result of market-making or other trading activities (a “Participating Broker-Dealer”) may
be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in connection with any resale of such
Exchange Securities.
The Issuers understand that it is the Staff’s position that if the Prospectus contained in the
Exchange Offer Registration Statement includes a plan of distribution containing a statement to the
above effect and the means by which Participating Broker-Dealers may resell the Exchange
Securities, without naming the Participating Broker-Dealers or specifying the amount of Exchange
Securities owned by them, such Prospectus may be delivered by Participating Broker-Dealers to
satisfy their prospectus delivery obligation under the Securities Act in connection with resales of
Exchange Securities for their own accounts, so long as the Prospectus otherwise meets the
requirements of the Securities Act.
(b) In light of the above, and notwithstanding the other provisions of this Agreement, the
Issuers agree to amend or supplement the Prospectus contained in the Exchange Offer Registration
Statement, as would otherwise be contemplated by Section 3(i), for a period of up to 180 days after
the last Exchange Date (as such period may be extended pursuant to the penultimate paragraph of
Section 3 of this Agreement), if requested by the Purchaser or by one or more Participating
Broker-Dealers, in order to expedite or facilitate the disposition of any Exchange Securities by
Participating Broker-Dealers consistent with the positions of the Staff recited in Section 4(a)
above. The Issuers further agree that Participating Broker-Dealers shall be authorized to deliver
such Prospectus during such period in connection with the resales contemplated by this Section 4.
(c) The Purchaser shall have no liability to any Issuer, any Guarantor or any Holder with
respect to any request that they may make pursuant to Section 4(b) above.
5. Indemnification and Contribution. (a) (a) Each Issuer, jointly and severally,
agrees to indemnify and hold harmless the Purchaser and each Holder, their respective affiliates,
directors, agents and officers and each Person, if any, who controls the Purchaser or any Holder
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities
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(including, without limitation, legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that
arise out of, or are based upon, any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement or any Prospectus or any omission or alleged omission
to state therein a material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading,
except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any
untrue statement or omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to the Purchaser or any Holder furnished to the Issuers in
writing by the Purchaser or any selling Holder expressly for use therein; provided, that with
respect to any such untrue statement in or omission from any preliminary prospectus, the indemnity
agreement contained in this paragraph (a) shall not inure to the benefit of the Purchaser or Holder
(or any of their affiliates, directors and officers and each person, if any, who controls the
Purchaser or such Holder within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act) in connection with the sale of Securities by the Purchaser or a Holder, to the
extent that such untrue statement or omission was corrected in a prospectus supplement or a
free-writing prospectus delivered to the Person asserting such loss, claim, damage or liability
prior to the time of sale of such Securities. In connection with any Underwritten Offering
permitted by Section 3, the Issuers, jointly and severally, will also indemnify the Underwriters,
if any, selling brokers, dealers and similar securities industry professionals participating in the
distribution, their respective affiliates and each Person who controls such Persons (within the
meaning of the Securities Act and the Exchange Act) to the same extent as provided above with
respect to the indemnification of the Holders, if requested in connection with any Registration
Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Issuers,
the Purchaser and the other selling Holders, their respective affiliates, the directors of the
Issuers, each officer of the Issuers who signed the Registration Statement and each Person, if any,
who controls the Issuers, the Purchaser and any other selling Holder within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set
forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities
that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with any information relating to such Holder
furnished to the Issuers in writing by such Holder expressly for use in any Registration Statement
and any Prospectus. The amount of Holder’s Indemnity is capped at the amount of proceeds such
Holder receives from the sale of the securities covered by the Registration Statement.
(c) If any suit, action, proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against any Person in respect of which indemnification
may be sought pursuant to either paragraph (a) or (b) above, such Person (the “Indemnified
Person”) shall promptly notify the Person against whom such
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indemnification may be sought (the “Indemnifying Person”) in writing; provided that the
failure to notify the Indemnifying Person shall not relieve it from any liability that it may have
under this Section 5 except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided, further, that the
failure to notify the Indemnifying Person shall not relieve it from any liability that it may have
to an Indemnified Person otherwise than under this Section 5. If any such proceeding shall be
brought or asserted against an Indemnified Person and it shall have notified the Indemnifying
Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others entitled to indemnification
pursuant to this Section 5 that the Indemnifying Person may designate in such proceeding and shall
pay the fees and expenses of such counsel related to such proceeding, as incurred. In any such
proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory
to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there
may be legal defenses available to it that are different from or in addition to those available to
the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded
parties) include both the Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall not, in connection
with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm (x) for the Purchaser, its affiliates, directors and officers and any control Persons
of the Purchaser shall be designated in writing by the Purchaser, (y) for any Holder, its
affiliates, directors and officers and any control Persons of such Holder shall be designated in
writing by the Majority Holders and (z) in all other cases shall be designated in writing by the
Issuers. The Indemnifying Person shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person
reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30 days after receipt
by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person,
effect any settlement of any pending or threatened proceeding in respect of which any Indemnified
Person is or could have been a party and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (A) includes an unconditional release of
15
such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified
Person, from all liability on claims that are the subject matter of such proceeding and (B) does
not include any statement as to or any admission of fault, culpability or a failure to act by or on
behalf of any Indemnified Person.
(d) If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an
Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying
such Indemnified Person thereunder, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Issuers from the
offering of the Securities and the Exchange Securities, on the one hand, and by the Holders from
receiving Securities or Exchange Securities registered under the Securities Act, on the other hand,
or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause (i)
but also the relative fault of the Issuers on the one hand and the Holders on the other in
connection with the statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The relative fault of the
Issuers on the one hand and the Holders on the other 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 by the
Holders and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Issuers and the Holders agree that it would not be just and equitable if contribution
pursuant to this Section 5 were determined by pro rata allocation (even if the
Holders were treated as one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph (d) above. The amount
paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in connection with any such
action or claim. Notwithstanding the provisions of this Section 5, in no event shall a Holder be
required to contribute any amount in excess of the amount by which the total price at which the
Securities or Exchange Securities sold by such Holder exceeds the amount of any damages that such
Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
(f) The remedies provided for in this Section 5 are not exclusive and shall not limit any
rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.
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(g) The indemnity and contribution provisions contained in this Section 5 shall remain
operative and in full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of the Purchaser or any Holder, their respective affiliates
or any Person controlling any Purchaser or any Holder, or by or on behalf of the Issuers, their
respective affiliates or the officers or directors of or any Person controlling the Issuers, (iii)
acceptance of any of the Exchange Securities and (iv) any sale of Registrable Securities pursuant
to a Shelf Registration Statement.
6. General.
(a) No Inconsistent Agreements. The Issuers represent, warrant and agree that (i) the rights
granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of any other outstanding securities issued or guaranteed by any
Issuer or any Guarantor under any other agreement and (ii) neither any Issuer nor any Guarantor has
entered into, or on or after the date of this Agreement will enter into, any agreement that is
inconsistent with the rights granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement, including the provisions of
this sentence, may not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given unless the Issuers have obtained the written consent of
Holders of at least a majority in aggregate principal amount of the outstanding Registrable
Securities affected by such amendment, modification, supplement, waiver or consent; provided that
no amendment, modification, supplement, waiver or consent to any departure from the provisions of
Section 5 hereof shall be effective as against any Holder of Registrable Securities unless
consented to in writing by such Holder. Any amendments, modifications, supplements, waivers or
consents pursuant to this Section 6(b) shall be by a writing executed by each of the parties
hereto.
(c) Notices. All notices and other communications provided for or permitted hereunder shall
be made in writing by hand-delivery, registered first-class mail, telex, telecopier, or any courier
guaranteeing overnight delivery (i) if to a Holder, at the most current address given by such
Holder to the Issuers by means of a notice given in accordance with the provisions of this Section
6(c), which address initially is, with respect to the Purchaser, the address set forth in the
Purchase Agreement; (ii) if to the Issuers, initially at the Issuers’ address set forth in the
Purchase Agreement and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 6(c); and (iii) to such other persons at their respective
addresses as provided in the Purchase Agreement and thereafter at such other address, notice of
which is given in accordance with the provisions of this Section 6(c). All such notices and
communications shall be deemed to have been duly given at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on the next Business
Day if timely delivered to an air courier guaranteeing overnight delivery. Copies of all such
notices, demands or other
17
communications shall be concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon
the successors, assigns and transferees of each of the parties, including, without limitation and
without the need for an express assignment, subsequent Holders; provided that nothing herein shall
be deemed to permit any assignment, transfer or other disposition of Registrable Securities in
violation of the terms of the Purchase Agreement or the Indenture. If any transferee of any Holder
shall acquire Registrable Securities in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all the terms of this Agreement, and by taking and
holding such Registrable Securities such Person shall be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this Agreement and such Person shall be
entitled to receive the benefits hereof. The Purchaser (in its capacity as the Purchaser) shall
have no liability or obligation to the Issuers with respect to any failure by a Holder to comply
with, or any breach by any Holder of, any of the obligations of such Holder under this Agreement.
(e) Purchases and Sales of Securities. The Issuers shall not, and shall use their reasonable
best efforts to cause their affiliates (as defined in Rule 405 under the Securities Act) not to,
purchase and then resell or otherwise transfer any Registrable Securities.
(f) Third Party Beneficiaries. Each Holder shall be a third party beneficiary to the
agreements made hereunder between the Issuers, on the one hand, and the Purchaser, on the other
hand, and shall have the right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of other Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of reference only, are not a
part of this Agreement and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
(j) Miscellaneous. This Agreement contains the entire agreement between the parties relating
to the subject matter hereof and supersedes all oral statements and prior writings with respect
thereto. If any term, provision, covenant or restriction contained in this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable or against public policy, the
remainder of the terms, provisions, covenants and restrictions
18
contained herein shall remain in full force and effect and shall in no way be affected, impaired
or invalidated. The Issuers and the Purchaser shall endeavor in good faith negotiations to replace
the invalid, void or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, void or unenforceable provisions.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| ATLAS PIPELINE PARTNERS, L.P. |
||||
| By: | Atlas Pipeline Partners GP, LLC its General Partner |
|||
| By: | ||||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Chief Financial Officer | |||
| ATLAS PIPELINE FINANCE CORP. |
||||
| By: | ||||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Chief Financial Officer | |||
| SUNLIGHT CAPITAL PARTNERS, LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
20
