Exhibit 4.6
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SERIES A NOTES/SERIES B NOTES EXCHANGE
REGISTRATION RIGHTS AGREEMENT
AUGUST 21, 2001
BY AND AMONG
AMERIGAS PARTNERS, L.P.
AP EAGLE FINANCE CORP.
AMERIGAS PROPANE, L.P.
AMERIGAS PROPANE, INC.
AND
CREDIT SUISSE FIRST BOSTON CORPORATION
SALOMON SMITH BARNEY INC.
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The Registration Rights Agreement (this "AGREEMENT") is made and entered
into on August 21, 2001 by and among AmeriGas Partners, L.P., a Delaware limited
partnership (the "PARTNERSHIP"), AP Eagle Finance Corp., a Delaware corporation
("FINANCE CORP." and, together with the Partnership, the "ISSUERS"), AmeriGas
Propane, L.P., a Delaware limited partnership (the "OPERATING PARTNERSHIP") and
AmeriGas Propane, Inc., a Pennsylvania corporation (the "GENERAL PARTNER"), and
Credit Suisse First Boston Corporation and Salomon Smith Barney Inc. (each, an
"INITIAL PURCHASER" and, collectively, the "INITIAL PURCHASERS"), each of whom
has agreed to purchase the Issuers' 200,000,000 8-7/8% Senior Notes Due 2011
(the "SERIES A NOTES") pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated August
16, 2001 (the "PURCHASE AGREEMENT"), by and among the Issuers, the Operating
Partnership, the General Partner 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 7 of the Purchase Agreement.
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.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: As defined in Rule 14d-l under the Exchange Act.
Closing Date: The date of this Agreement.
Columbia Propane Acquisition: The acquisition of the business of
Columbia Propane, L.P. by the Partnership, as set forth in that certain purchase
agreement by and among Columbia Energy Group, Columbia Propane Corporation,
Columbia Propane, L.P., the Operating Partnership, the Partnership and the
General Partner dated January 30, 2001.
Commission: The Securities and Exchange Commission.
Complete: A Registered Exchange Offer shall be deemed "COMPLETED" for
purposes of this Agreement upon the occurrence of (i) 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, (ii) the
maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum period
required pursuant to Section 3(b) hereof, and (iii) 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
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amount of Series A Notes that were tendered by Holders thereof pursuant to the
Exchange Offer, if any.
Damages Payment Date: With respect to the Series A Notes, each Interest
Payment Date following a Registration Default, and prior to the cure of such
Registration Default.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: An offer by the Issuers made pursuant to a Registration
Statement under the Act to the Holders of all outstanding Transfer Restricted
Securities to exchange all such outstanding Transfer Restricted Securities held
by such Holders for Series B Notes in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted Securities tendered in
such exchange offer by such Holders.
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 to persons permitted to purchase
the Series A Notes in offshore transactions in reliance upon Regulation S under
the Securities Act (each, a "REGULATION S PURCHASER").
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated August 21, 2001, between the
Partnership, Finance Corp. and First Union National Bank, as trustee (the
"TRUSTEE"), pursuant to which the Series A Notes and the Series B Notes are to
be issued, as such Indenture is amended or supplemented from time to time in
accordance with the terms thereof.
Initial Purchaser: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture and the Series A
Notes.
NASD: National Association of Securities Dealers, Inc.
Notes: The Series A Notes and the Series B Notes.
Person: An individual, partnership, corporation, limited liability
company, joint venture, association, joint stock company, charitable foundation,
trust, unincorporated organization, or a government or any agency or political
subdivision thereof or any other entity.
Prospectus: The prospectus included in a Registration Statement, 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.
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Purchase Agreement: As defined in the preamble hereto.
Record Holder: With respect to any Damages Payment Date relating to
Notes, each Person who is a Holder of Notes on the record date with respect to
the Interest Payment Date on which such Damages Payment Date shall occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Issuers
relating to (a) an offering of Series A Notes pursuant to an Exchange Offer or
(b) the registration for resale of Transfer Restricted Securities pursuant to
the Shelf Registration Statement, which is filed pursuant to the provisions of
this Agreement, in each case, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
Series A Notes: As defined in the preamble hereto.
Series B Notes: The Issuers' Series B Notes Due 2011 to be issued
pursuant to the Indenture in the Exchange Offer.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as
amended from time to time.
Transfer Restricted Securities: Each Note, until the earliest to occur
of (a) the date on which such Note has been exchanged by a Person other than a
Broker-Dealer for a Series B Note in the Exchange Offer, (b) following the
exchange by a Broker-Dealer in the Exchange Offer of a Series A Note for a
Series B Note, the date on which such Series B Note is sold to a purchaser who
receives from such Broker-Dealer on or prior to the date of such sale a copy of
the prospectus contained in the Exchange Offer Registration Statement, (c) the
date on which such security has been effectively registered under the Act and
disposed of in accordance with the Shelf Registration Statement, and (d) the
date on which such Note can be distributed pursuant to Rule 144 under the Act.
Underwritten Registration or Underwritten Offering: A registration of
securities under the Act pursuant to which securities of the Issuers are sold to
an underwriter for reoffering to the public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
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(b) Holders of Transfer Restricted Securities. 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 permissible under applicable
law or Commission policy (after the procedures set forth in Section 6(a) below
have been complied with), the Issuers and the General Partner shall
(i) cause the Exchange Offer Registration Statement to be filed
with the Commission as soon as practicable after the Closing Date, but no later
than the earlier to occur of (1) 90 days after the Columbia Propane Acquisition
or (2) 120 days after Closing Date,
(ii) use their reasonable efforts to cause the Exchange Offer
Registration Statement to become effective at the earliest possible time, but no
later than the earlier to occur of (1) 150 days after the Columbia Propane
Acquisition or (2) 180 days after the Closing Date,
(iii) in connection with the foregoing, (A) cause to be filed all
pre-effective amendments to the Exchange Offer Registration Statement as may be
necessary in order to cause the Exchange Offer Registration Statement to become
effective, (B) if applicable, cause to be filed a post-effective amendment to
the Exchange Offer Registration Statement pursuant to Rule 430A under the Act
and (C) cause all necessary filings 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 Completion of the Exchange Offer, and
(iv) upon the effectiveness of the Exchange Offer Registration
Statement, commence the Exchange Offer. The Exchange Offer Registration
Statement shall be on the appropriate form permitting registration of the Series
B Notes to be offered in exchange for the Transfer Restricted Securities and to
permit resales of Notes held by Broker-Dealers as contemplated by Section 3(c)
below,
provided that if the Issuers and General Partner have not consummated the
Exchange Offer on or prior to the earlier to occur of (A) 180 days after the
Columbia Propane Acquisition or (B) 210 days after the Closing Date, then the
Issuers and General Partner will file the Shelf Registration Statement with the
Commission on or prior to (y) the 181st day after the Columbia Propane
Acquisition or (z) the 211th day after the Closing Date, whichever is earlier.
The Issuers and General Partner will use their reasonable efforts to keep such
Shelf Registration Statement continuously effective, supplemented and amended
until the third anniversary of the Closing Date or a shorter period that will
terminate when all of the securities covered by the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement or are eligible for
resale without any volume restrictions under Rule 144 of the Act.
(b) The Issuers and the General Partner shall 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 Complete the Exchange Offer;
provided, however, that in no event shall such period be less than
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20 Business Days. The Issuers and the General Partner shall use reasonable
efforts to cause the Exchange Offer to comply with all applicable federal and
state securities laws. The Issuers and the General Partner shall use reasonable
efforts to cause the Exchange Offer to be Completed on the earliest practicable
date after the Exchange Offer Registration Statement has become effective, but
in no event later than 10 Business Days following the expiration of the period
during which the Exchange Offer is open.
(c) The Issuers shall indicate in a "Plan of Distribution" section
contained in the Prospectus contained in the Exchange Offer Registration
Statement that any Broker-Dealer who holds Series A Notes that are Transfer
Restricted Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Issuers), may exchange such
Series A Notes pursuant to the Exchange Offer; however, 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 any resales of the Series B Notes received by such Broker-Dealer
in the Exchange Offer, which prospectus delivery requirement may be satisfied by
the delivery by such Broker-Dealer of the Prospectus contained in the Exchange
Offer Registration Statement. Such "Plan of Distribution" section shall also
contain all other information with respect to such resales by Broker-Dealers
that the Commission may require in order to permit such resales pursuant
thereto, but such "Plan of Distribution" shall not name any such Broker-Dealer
or disclose the amount of Notes held by any such Broker-Dealer except to the
extent required by the Commission as a result of a change in policy after the
date of this Agreement.
The Issuers and the General Partner shall use reasonable efforts to keep
the Exchange Offer Registration Statement continuously effective, supplemented
and amended as required by the provisions of Section 6(c) below to the extent
necessary to ensure that it is available for resales of Notes acquired by
Broker-Dealers for their own accounts as a result of market-making activities or
other trading activities, and to ensure that it conforms 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 180 days from the
date on which the Exchange Offer Registration Statement is declared effective.
The Issuers shall provide a reasonable number of copies of the latest
version of such Prospectus to Broker-Dealers promptly upon request at any time
during such 180 day period in order to facilitate such resales.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Issuers are not required to file an
Exchange Offer Registration Statement or to consummate the Exchange Offer
because the Exchange Offer is not permitted by applicable law or Commission
policy (after the procedures set forth in Section 6(a) below have been complied
with) or (ii) if any Holder of Transfer Restricted Securities shall notify the
Issuers, the Operating Partnership or the General Partner prior to the
Completion of the Exchange Offer (A) that such Holder is prohibited by
applicable law or Commission policy from participating in the Exchange Offer, or
(B) that such Holder may not resell the Series B Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus and that the
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Prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder, or (C) that such
Holder is a Broker-Dealer and holds Series A Notes acquired directly from the
Issuers or one of their affiliates, then the Issuers and the General Partner
shall
(x) cause to be filed a shelf registration statement pursuant to
Rule 415 under the Act, which may be an amendment to the Exchange Offer
Registration Statement (in either event, the "SHELF REGISTRATION
STATEMENT") on or prior to the earlier to occur of (1) the 30th day
after the date on which the Issuers determine that they are not required
to file the Exchange Offer Registration Statement, and (2) the 30th day
after the date on which the Issuers receive notice from a Holder of
Transfer Restricted Securities as contemplated by clause (ii) above
(such earlier date being the "SHELF FILING DEADLINE"), which Shelf
Registration Statement shall provide for resales of all Transfer
Restricted Securities the Holders of which shall have provided the
information required pursuant to Section 4(b) hereof; and
(y) use reasonable efforts to cause such Shelf Registration
statement to be declared effective by the Commission on or before the
90th day after the Shelf Filing Deadline.
The Issuers and the General Partner shall use reasonable efforts to keep such
Shelf Registration Statement continuously effective, supplemented and amended as
required by the provisions of Sections 6(b) and (c) hereof to the extent
necessary to ensure that it is available for resales of Notes by the Holders of
Transfer Restricted Securities entitled to the benefit of this Section 4(a), and
to ensure that it conforms 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 three years following the effective date thereof
or such shorter period that will terminate when all Notes covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement or are eligible for resale without any volume restrictions under Rule
144 under the Act.
(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 10 Business Days after receipt of a request
therefor, such information as the Issuers may reasonably request 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 reasonably requested information. Each
Holder as to which any Shelf Registration Statement is being effected agrees to
furnish promptly to the Issuers all 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
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If (i) any of the Registration Statements required by this Agreement is
not filed with the Commission on or prior to the date specified for such filing
in this Agreement, (ii) any of such Registration Statements has not been
declared effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement (the "EFFECTIVENESS TARGET DATE"), (iii) the
Exchange Offer has not been Completed within 30 Business Days after the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement, (iv) the Exchange Offer 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 for a period of 14
consecutive days without being succeeded by a post-effective amendment thereto
that is itself declared effective or (v) the Shelf Registration Statement, if
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 for a period
of 30 consecutive days without being succeeded by a post-effective amendment
thereto that is itself declared effective (each such event referred to in
clauses (i) through (v), a "REGISTRATION DEFAULT"), the Issuers, the Operating
Partnership and the General Partner hereby jointly and severally agree to pay
liquidated damages to each Holder of Transfer Restricted Securities with respect
to the first 90-day period immediately following the occurrence of such
Registration Default, in an amount equal to $0.05 per week per $1,000 principal
amount of Transfer Restricted Securities held by such Holder for each week or
portion thereof that the Registration Default continues. The amount of the
liquidated damages shall increase by an additional $0.05 per week per $1,000 in
principal amount of Transfer Restricted Securities with respect to each
subsequent 90-day period until such Registration Default has been cured, up to a
maximum amount of liquidated damages of $0.20 per week per $1,000 principal
amount of Transfer Restricted Securities. All accrued liquidated damages shall
be paid by the Issuers, in respect of the Global Note only, to the Record Holder
thereof by wire transfer of immediately available funds or by federal funds
check on each Damages Payment Date, and to other Record Holders as provided in
the Indenture. Following the cure of any Registration Defaults relating to any
particular Transfer Restricted Securities, the accrual of liquidated damages
with respect to such Transfer Restricted Securities will cease.
All obligations of the Issuers set forth in the preceding paragraph that
are outstanding with respect to any Transfer Restricted Security at the time
such security ceases to be a Transfer Restricted Security shall survive until
such time as all such obligations with respect to such Security shall have been
satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Issuers, the Operating Partnership and the General Partner
shall comply with all of the provisions of Section 6(c) below, shall use their
best efforts to effect such exchange to permit the sale of Transfer Restricted
Securities being sold in accordance with the intended method or methods of
distribution thereof, and shall comply with all of the following provisions:
(i) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, prior to the Completion thereof, a
written representation to the Issuers (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,
as defined in Rule 405
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under the Act, (B) it is not engaged in, and does not intend to engage
in, and has no arrangement or understanding with any person to
participate in, a distribution of the Series B Notes to be issued in the
Exchange Offer and (C) it is acquiring the Series B Notes in its
ordinary course of business. In addition, all such Holders of Transfer
Restricted Securities shall otherwise cooperate in the Issuers'
preparations for the Exchange Offer. Each Holder hereby acknowledges and
agrees that any Broker-Dealer and any such Holder using the Exchange
Offer to participate in a distribution of the securities to be acquired
in the Exchange Offer (1) could not under Commission policy as in effect
on the date of this Agreement rely on the position of the Commission
enunciated in Morgan Stanley 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 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 should 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 if the resales are of
Series B Notes obtained by such Holder in exchange for Notes acquired by
such Holder directly from the Issuers.
(ii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Issuers shall, if requested by the staff of the
Commission, provide a supplemental letter to the Commission (A) stating
that the Issuers are registering the Exchange Offer in reliance on the
position of the Commission enunciated in Exxon Capital Holdings
Corporation (available May 13, 1988), Morgan Stanley and Co., Inc.
(available June 5, 1991) and, if applicable, any no-action letter
obtained pursuant to clause (i) above and (B) including a representation
that the Issuers have not 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' 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.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Issuers and the General Partner shall comply with
all the provisions of Section 6(c) below and shall use reasonable 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, and pursuant thereto the Issuers will as expeditiously as
possible prepare and file with the Commission a Registration Statement relating
to the registration on any appropriate form under the Act, which form shall be
available for the sale of the Transfer Restricted Securities in accordance with
the intended method or methods of distribution thereof.
(c) General Provisions. In connection with any Registration Statement
and any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities (including, without limitation, any Registration
Statement and the related Prospectus
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required to permit resales of Notes by Broker-Dealers), the Issuers shall and
the General Partner shall cause the Issuers to:
(i) use reasonable efforts to keep such Registration Statement
continuously effective; upon the occurrence of any event that would
cause any such Registration Statement or the Prospectus contained
therein (A) to contain a material misstatement or omission or (B) not to
be effective and usable for resale of Transfer Restricted Securities
during the period required by this Agreement, the Issuers shall file as
soon as reasonably practicable an appropriate amendment to such
Registration Statement, in the case of clause (A), correcting any such
misstatement or omission, and, in the case of either clause (A) or (B),
use reasonable efforts to cause such amendment to be declared effective
and such Registration Statement and the related Prospectus to become
usable for their intended purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as applicable, or
such shorter period as will terminate when all Transfer Restricted
Securities covered by such Registration Statement have been sold; 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 the applicable provisions of Rules 424 and 430A
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) with respect to any Shelf Registration Statement, advise
the underwriter(s), if any, named in the applicable Prospectus, and
selling Holders named in the applicable Prospectus promptly and, if
requested by such Persons, to 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 Registration Statement or any
post-effective amendment thereto, when the same has become effective,
(B) of any request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for
additional information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement under the Act or of the suspension by any state
securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation
of any proceeding for any of the preceding purposes, (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 or the
Prospectus in order to make the statements therein 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
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order suspending the qualification or exemption from qualification of
the Transfer Restricted Securities under state securities or Blue Sky
laws, the Issuers, the Operating Partnership and the General Partner
shall use reasonable efforts to obtain the withdrawal or lifting of such
order as soon as practicable;
(iv) with respect to any Shelf Registration Statement, furnish
to each of the selling Holders and each of the underwriter(s), 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);
(v) in connection with any Shelf Registration Statement required
by this Agreement, make available at reasonable times for inspection by
the selling Holders, any underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney or accountant
retained by such selling Holders or any of the underwriter(s), all
financial and other records, pertinent corporate documents and
properties of the Issuers and cause the officers, directors and
employees of Finance Corp. and the General Partner to supply all
information reasonably requested by any such Holder, underwriter,
attorney or accountant in connection with such Registration Statement
subsequent to the filing thereof and prior to its effectiveness;
(vi) with respect to any Shelf Registration Statement, if
reasonably requested by any selling Holders or the underwriter(s), if
any, promptly incorporate in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as such selling Holders and underwriter(s), if any, may
reasonably request to have included therein, including, without
limitation, information relating to the "Plan of Distribution" of the
Transfer Restricted Securities, information with respect to the
principal amount of Transfer Restricted Securities being sold to such
underwriter(s), the purchase price being paid therefor and any other
terms of the offering of the Transfer Restricted Securities to be sold
in such offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after an
Issuer is notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment;
(vii) cause the Transfer Restricted Securities covered by the
Registration Statement to be rated with the appropriate rating agencies
within 30 days of issuance or as soon thereafter as practicable;
(viii) with respect to any Shelf Registration Statement, furnish
to each selling Holder and each of the underwriter(s), if any, 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);
(ix) with respect to any Shelf Registration Statement, deliver
to each selling Holder and each of the underwriter(s), if any, without
charge, as many copies of the
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Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; the Issuers
hereby consent to the use of the Prospectus and any amendment or
supplement thereto by each of the selling Holders and each of the
underwriter(s), if any, in connection with the offering and the sale of
the Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto;
(x) in connection with any underwritten public offering effected
pursuant to a Shelf Registration Statement, and together with the
General Partner, enter into such agreements (including an underwriting
agreement) in form and substance satisfactory to each of them, and make
such representations and warranties in form and substance satisfactory
to each of them, 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 Registration Statement
contemplated by this Agreement, all to such extent as may be reasonably
requested by any Initial Purchaser or by any Holder of Transfer
Restricted Securities or underwriter in connection with any sale or
resale pursuant to any Registration Statement contemplated by this
Agreement; the Issuers and the General Partner shall:
(a) furnish to each Initial Purchaser, each selling
Holder and each underwriter, if any, in such substance and scope
as they may request and as are customarily made by issuers to
underwriters in primary underwritten offerings, upon the date of
the Completion of the Exchange Offer and, if applicable, the
effectiveness of the Shelf Registration Statement:
(1) a certificate, dated the date of Completion
of the Exchange Offer or the date of effectiveness of
the Shelf Registration Statement, as the case may be,
signed by (y) the President or any Vice President of the
General Partner and Finance Corp. and (z) a principal
financial or accounting officer of the General Partner
confirming, as of the date thereof, the matters set
forth in paragraphs (a), (b), (c) and (d) of Section 7
of the Purchase Agreement;
(2) an opinion dated the date of Completion of
the Exchange Offer or the date of effectiveness of the
Shelf Registration Statement, as the case may be, of
counsel for the Issuers covering the matters customarily
covered in opinions requested in similar underwritten
offerings and such other matters as such parties may
reasonably request, and in any event including a
statement to the effect that such counsel has
participated in conferences with directors, officers and
other representatives of the Issuers and the General
Partner, representatives of the independent public
accountants for the Issuers, the Operating Partnership
and the General Partner, the Initial Purchasers'
representatives and the Initial Purchasers' counsel's
representatives in connection with the preparation of
such Registration Statement and the related Prospectus
at which conferences the contents of and related matters
were discussed, and that although such counsel has not
independently verified and need not
12
pass upon, or assume responsibility for, the accuracy,
completeness or fairness of statements contained in the
Registration Statement and Prospectus (except to the
extent specified in the foregoing opinion), no facts
have come to such counsel's attention which lead such
counsel to believe that the applicable Registration
Statement, on the effective date thereof or the date any
post-effective amendment thereto became effective and,
in the case of the Exchange Offer Registration
Statement, as of the date of Completion, 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 contained therein not
misleading or that the Prospectus contained in such
Registration Statement, on the date thereof, and in the
case of the opinion dated the date of Completion of the
Exchange Offer, as of the date of Completion, contained
or contains an untrue statement of a material fact or
omitted or omits to state a material fact required to be
stated therein or necessary to make the statements
contained therein, in light of the circumstances under
which they were made, not misleading (it being
understood that such counsel need not express any view
with respect to the financial statements and related
notes, the financial statement schedules and the other
financial, statistical and accounting data included in
the Registration Statement contemplated by this
Agreement or the related Prospectus); and
(3) a customary comfort letter, dated as of the
date of Completion of the Exchange Offer or 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 by
underwriters in connection with primary underwritten
offerings, and affirming the matters set forth in the
comfort letters delivered pursuant to Section 7(h) of
the Purchase Agreement, without exception;
(b) set forth in full or incorporate by reference in the
purchase agreement, if any, the indemnification provisions and
procedures of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(c) deliver such other documents and certificates as may
be reasonably requested by such parties to evidence compliance
with clause (a) above and with any customary conditions
contained in the underwriting agreement or other agreement
entered into by the Issuers, the Operating Partnership and the
General Partner pursuant to this clause (x), if any.
If at any time the representations and warranties of the Issuers
or the General Partner contemplated in clause (a)(1) above cease to be
true and correct, the Issuers shall so advise the Initial Purchasers and
the underwriter(s), if any, and each selling Holder promptly and, if
requested by such Persons, shall confirm such advice in writing;
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(xi) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s), if
any, and their respective 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
or underwriter(s) 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 Shelf Registration
Statement; provided, however, that the Issuers shall not be required to
register or qualify as a foreign corporation where they are not now so
qualified or to take any action that would subject them 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 they are not now so subject;
(xii) shall issue, upon the request of any Holder of Series A
Notes covered by the Shelf Registration Statement, Series B Notes,
having an aggregate principal amount equal to the aggregate principal
amount of Series A Notes surrendered to the Issuers by such Holder in
exchange therefor or being sold by such Holder; such Series B Notes to
be registered in the name of such Holder or in the name of the
purchaser(s) of such Notes, as the case may be; in return, the Series A
Notes held by such Holder shall be surrendered to the Issuers for
cancellation;
(xiii) cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities to
be sold and not bearing any restrictive legends; and enable such
Transfer Restricted Securities to be in such denominations and
registered in such names as the Holders or the underwriter(s), if any,
may request at least two Business Days prior to any sale of Transfer
Restricted Securities made by such underwriter(s);
(xiv) if any fact or event contemplated by clause (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 not misleading;
(xv) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the Registration
Statement 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 Depositary Trust Company;
(xvi) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation
by any underwriter (including any "qualified independent underwriter")
that is required to be retained in accordance with the rules and
regulations of the NASD, and use their reasonable best efforts to cause
such Registration Statement to become effective and approved by such
governmental agencies or authorities as may be necessary to enable the
Holders selling Transfer Restricted Securities to consummate the
disposition of such Transfer Restricted Securities;
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(xvii) otherwise use their best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to their security holders, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) for the twelve-month period (A) commencing
at the end of any fiscal quarter in which Transfer Restricted Securities
are sold to underwriters in a firm or best efforts Underwritten Offering
or (B) if not sold to underwriters in such an offering, beginning with
the first month of the Issuers' first fiscal quarter commencing after
the effective date of the Registration Statement;
(xviii) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement, and, in connection therewith, cooperate with
the Trustee and the Holders of Notes 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
(xix) provide promptly to each Holder upon request each document
previously filed by the Issuers with the Commission pursuant to the
requirements of Section 13 and Section 15 of the Act.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Issuers of the existence of any fact
of the kind described in Section 6(c)(iii)(D) hereof, such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the
applicable Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 6(c)(ii) hereof,
or until it is advised in writing (the "ADVICE") 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. If so
directed by the Issuers, each Holder will 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 such notice. In the event
the Issuers shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof,
as applicable, shall be extended by the number of days during the period from
and including the date of the giving of such notice pursuant to Section
6(c)(iii)(D) hereof to and including the date when each selling Holder covered
by such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof or
shall have received the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the performance of or compliance with this
Agreement by the Issuers and the General Partner will be borne by the Issuers
and the General Partner, jointly and severally, regardless of whether a
Registration Statement becomes effective, including without limitation: (i) all
registration and filing fees and expenses (including filings made by any Initial
Purchaser or Holder with the NASD (and, if applicable, the fees and
15
expenses of any "qualified independent underwriter" and its counsel that may be
required by the rules and regulations of the NASD)); (ii) all fees and expenses
of compliance with federal securities and state Blue Sky or securities laws
(including the reasonable fees, expenses and disbursements of counsel relating
to the preparation, printing or reproduction, and delivery of the preliminary
and supplemental Blue Sky Memorandum and such registration and qualification);
(iii) all expenses of printing (including printing certificate 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 and, subject to Section 7(b) below, the Holders of
Transfer Restricted Securities; and (v) all fees and disbursements of
independent certified public accountants of the Issuers (including the expenses
of any special audit and comfort letters required by or incident to such
performance); provided, however, that in an underwritten offering, neither the
Issuers nor the General Partner shall be responsible for any fees and expenses
of any underwriter including any underwriting discounts and commissions or any
legal fees and expenses of counsel to the underwriters.
The Issuers, the Operating Partnership and the General Partner will, in
any event, bear their internal expenses (including, without limitation, all
salaries and expenses of the officers and employees of Finance Corp. and the
General Partner 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, the Operating Partnership and the General Partner.
It is understood that, except as otherwise provided in this Agreement,
the Initial Purchasers will pay all their own costs and expenses, including the
fees of their counsel, transfer taxes on any resale of the Series A Notes by
either Initial Purchaser and any advertising expenses connected with any offer
they may make and the transportation and other expenses incurred by the Initial
Purchasers in connection with presentations to prospective purchasers of the
Series A Notes.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Issuers, the Operating
Partnership and the General Partner, jointly and severally, will reimburse the
Initial Purchasers and the Holders of Transfer Restricted Securities being
tendered in the Exchange Offer and/or resold pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, to 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, the Operating Partnership and the General Partner,
jointly and severally, agree to indemnify and hold harmless (i) each Holder and
(ii) each person. if any, who controls (within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act) any Holder (any of the persons referred
to in this clause (ii) being hereinafter referred to as a "CONTROLLING PERSON")
and (iii) the respective officers, directors, partners, employees
representatives and agents of any Holder or any controlling person (any person
referred to in clause (i), (ii) or (iii) may hereinafter be referred to as an
"INDEMNIFIED HOLDER"), to the fullest
16
extent lawful, from and against any and all losses, claims, damages,
liabilities, judgments, actions and reasonable expenses (including without
limitation and as incurred, reimbursement of all reasonable costs of
investigating, preparing, pursuing or defending any claim or action, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, including the reasonable fees and expenses of counsel to any
Indemnified Holder) directly or indirectly caused by, related to, based upon,
arising out of or in connection with any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or
Prospectus (or any amendment or supplement thereto), or 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 expenses are caused by an untrue
statement or omission or alleged untrue statement or omission that is made in
reliance upon and in conformity with information furnished in writing to the
Issuers or the General Partner by any of the Holders expressly for use therein;
provided, however, that the indemnification contained in this paragraph (a) with
respect to the preliminary prospectus shall not inure to the benefit of any
Holder (or to the benefit of any person controlling such Holder) on account of
any such loss, claim, damage, liability or expense arising from the sale of the
Notes by such Holder to any person if a copy of a final prospectus shall not
have been delivered or sent to such person within the time required by the Act
and the regulations thereunder for delivery of a prospectus, and the untrue
statement or alleged untrue statement or omission or alleged omission of a
material fact contained in such preliminary prospectus was corrected in the
final prospectus, provided that the Issuers have delivered the final prospectus
to the Holders in reasonably requested quantities and on a timely basis to
permit such delivery or sending. The Issuers, the Operating Partnership and the
General Partner shall notify you promptly of the institution, threat or
assertion of any claim, proceeding (including any governmental investigation) or
litigation in connection with the matters addressed by this Agreement which
involves the Issuers, the Operating Partnership, the General Partner or an
Indemnified Holder.
In case any action or proceeding (including any governmental
investigation or proceeding) shall be brought or asserted against any of the
Indemnified Holders with respect to which indemnity may be sought against the
Issuers, the Operating Partnership or the General Partner, such Indemnified
Holder (or the Indemnified Holder controlled by such controlling person), shall
promptly notify the Issuers, the Operating Partnership or the General Partner in
writing (provided, that the failure to give such notice shall not relieve the
indemnifying party of its obligations pursuant to this Agreement unless the
indemnifying party is foreclosed by reason of such failure from asserting a
defense otherwise available to it). Such Indemnified Holder shall have the right
to employ separate counsel in any such action, suit or proceeding and to
participate in (but not control) the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Holder, rather than
the Issuers or the General Partner, as the case may be, unless (i) the Issuers
have agreed in writing to pay such fees and expenses, (ii) the Issuers, the
Operating Partnership, and the General Partner have failed to assume the defense
and employ counsel or (iii) the named parties to any such action, suit or
proceeding (including any impleaded parties) include both such Indemnified
Holder and the Issuers, the Operating Partnership, or the General Partner, and
such Indemnified Holder shall have been advised by its counsel that
representation of such Indemnified Holder and the Issuers, the Operating
Partnership, or the General Partner, as the case may be, by the same counsel
would be inappropriate under applicable standards of professional conduct
(whether or not such
17
representation by the same counsel has been proposed) due to actual or potential
differing interests between them (in which case the Issuers, the Operating
Partnership, or the General Partner shall not have the right to assume the
defense of such action, suit or proceeding on behalf of such Indemnified
Holder). Neither the Issuers, the Operating Partnership nor the General Partner
shall, in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) at any time for such Indemnified Holders, which
firm shall be designated by the Holders. The Issuers, the Operating Partnership
and the General Partner shall be liable for any settlement of any such action or
proceeding effected with the indemnifying party's prior written consent and the
Issuers, the Operating Partnership and the General Partner agree to indemnify
and hold harmless any Indemnified Holder from and against any loss, claim,
damage, liability or expense by reason of any settlement of any action effected
with the written consent of the indemnifying party. Notwithstanding the
immediately preceding sentence, if at any time an Indemnified Holder shall have
requested an indemnifying party to reimburse the Indemnified Holder for fees and
expenses of counsel as contemplated by the second sentence of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent (unless such consent has been
reasonably withheld) if (i) such settlement is entered into more than twenty
business days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the Indemnified
Holder in accordance with such request prior to the date of such settlement
(unless the right to such reimbursement shall have been previously disputed in
good faith). Neither the Issuers, the Operating Partnership nor the General
Partner shall, without the prior written consent of each Indemnified Holder,
settle or compromise or consent to the entry of judgment in or otherwise seek to
terminate any pending or threatened action, claim, litigation or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not any Indemnified Holder is a party thereto), unless such
settlement, compromise, consent or termination includes a release of each
Indemnified Holder from all liability arising out of such action, claim,
litigation or proceeding to at least the same extent as any release of the
Issuers, the Operating Partnership or the General Partner obtained in connection
with such settlement.
(b) Each Holder of Transfer Restricted Securities agrees, severally and
not jointly, to indemnify and hold harmless the Issuers, the Operating
Partnership and the General Partner and their respective directors, officers,
partners, employees or representatives, and any person controlling (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act) the Issuers,
the Operating Partnership and the General Partner, and the respective officers,
directors, partners, employees, representatives and agents of each such person,
to the same extent as the foregoing indemnity from the Issuers, the Operating
Partnership and the General Partner to each of the Indemnified Holders, but only
with respect to claims and actions based on information furnished in writing by
such Holder expressly for use in any Registration Statement. In case any action
or proceeding shall be brought against the Issuers, the Operating Partnership or
the General Partner or the directors or officers of Finance Corp. or the General
Partner or any such controlling person in respect of which indemnity may be
sought against a Holder of Transfer Restricted Securities, such Holder shall
have the rights and duties given the Issuers, the Operating Partnership and the
General Partner or the directors or officers of Finance Corp. or the
18
General Partner or such controlling person shall have the rights and duties
given to each Holder by the preceding paragraph. In no event shall the liability
of any selling Holder hereunder be greater in amount than the dollar amount of
the proceeds received by such Holder upon the sale of the Registrable Securities
giving rise to such indemnification obligation.
(c) If the indemnification provided for in this Section 8 is unavailable
to an indemnified party under Section 8(a) or Section 8(b) hereof (other than by
reason of exceptions provided in those Sections) in respect of any losses,
claims, damages, liabilities or expenses referred to therein, then each
applicable 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 expenses in such
proportion as is appropriate to reflect the relative benefits received by the
Issuers, the Operating Partnership and the General Partner on the one hand and
the Holders on the other hand from their sale of Transfer Restricted Securities
or if such allocation is not permitted by applicable law, the relative fault of
the Issuers, the Operating Partnership and the General Partner on the one hand
and of the Indemnified Holder on the other in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
fault of the Issuers, the Operating Partnership and the General Partner on the
one hand and of the Indemnified Holder 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, the Operating Partnership and
the General Partner or by the Indemnified Holder and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a result of
the losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in the second paragraph
of Section 8(a), any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or claim.
The Issuers, the Operating Partnership and the General Partner and each
Holder of Transfer Restricted Securities agree that it would not be just and
equitable if contribution pursuant to this Section 8(c) 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 expenses referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, none of the Holders (and its
related Indemnified Holders) shall be required to contribute, in the aggregate,
any amount in excess of the amount by which the total proceeds received by such
Holder with respect to the Series A Notes exceeds 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(c) are several in proportion to
19
the respective principal amount of Series A Notes held by each of the Holders
hereunder and not joint.
SECTION 9. RULE 144A
The Issuers hereby agree with each Holder, for so long as any Transfer
Restricted Securities remain outstanding, to make available to any Holder or
beneficial owner of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted Securities
from 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.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled under Section 11 hereof to approve such arrangements and
(b) completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided, that such investment bankers and managers must be
reasonably satisfactory to the Issuers, it being understood that the Issuers may
reasonably object to any underwriter if the selection of such underwriter would
require the engagement of a "qualified independent underwriter" under the rules
and regulations of the NASD.
SECTION 12. MISCELLANEOUS
(a) No Inconsistent Agreements. Neither the Issuers, the Operating
Partnership nor the General Partner 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. 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' securities under any agreement in effect on the date
hereof.
(b) Adjustments Affecting the Notes. Neither the Issuers, the Operating
Partnership nor the General Partner will take any action, or permit any change
to occur, with respect to the Notes that would materially and adversely affect
the ability of the Holders to Complete any Exchange Offer.
20
(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 the Issuers have obtained the
written consent of Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the
rights of Holders whose securities are being tendered pursuant to the Exchange
Offer and that does not affect directly or indirectly the rights of other
Holders whose 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 being tendered or registered.
(d) 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), telecopier, electronic
communication 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, the Operating Partnership or the General
Partner:
If by mail:
AmeriGas Propane, Inc.
460 North Gulph Road Box 965
Valley Forge, Pennsylvania 19482
Telecopier No.: 610-992-3258
Attention: Brendan P. Bovaird, Esq.
If by overnight courier:
AmeriGas Propane, Inc.
460 North Gulph Road
King of Prussia, Pennsylvania 19406
Attention: Brendan P. Bovaird, Esq.
21
With a copy to:
Weil Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Telecopier No.: 212-310-8715
Attention: David G. Schwartz, Esq.
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 delivered by electronic communication; when receipt
acknowledged, if telecopied, and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(e) 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 of Transfer Restricted Securities; provided, however, that this
Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder.
(f) 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.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(i) 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.
(j) Entire Agreement. This Agreement together with the other Operative
Documents (as defined in the Purchase 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 by the Issuers with respect to
the Transfer
22
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
23
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
AMERIGAS PARTNERS, L.P.
By: AmeriGas Propane, Inc., its General Partner
By: _________________________
Name: Martha B. Lindsay
Title: Vice President and Chief Financial Officer
AP EAGLE FINANCE CORP.
By: _________________________
Name: Martha B. Lindsay
Title: Vice President and Chief Financial Officer
AMERIGAS PROPANE, INC.
By: _________________________
Name: Martha B. Lindsay
Title: Vice President and Chief Financial Officer
AMERIGAS PROPANE, L.P.
By: AmeriGas Propane, Inc., its general partner
By: _________________________
Name: Martha B. Lindsay
Title: Vice President and Chief Financial Officer
24
We have executed the Registration Rights Agreement as of the date first
written above.
CREDIT SUISSE FIRST BOSTON CORPORATION
By:_____________________________
Name:
Title:
SALOMON SMITH BARNEY INC.
By:_____________________________
Name:
Title:
25