EXHIBIT 4.1
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
Equistar Chemicals, LP
Equistar Funding Corporation
$300,000,000
8 1/2% Notes Due 2004
$600,000,000
8 3/4% Notes Due 2009
February 9, 1999
CHASE SECURITIES INC.
270 Park Avenue, 8th floor
New York, New York 10017
and
NATIONSBANC MONTGOMERY SECURITIES LLC
233 South Wacker Drive, Suite 2800
Chicago, IL 60606
each, as representatives for themselves and
ABN AMRO Incorporated
BNY Capital Markets, Inc.
First Chicago Capital Markets Inc. and
J.P. Morgan Securities Inc.
Ladies and Gentlemen:
Equistar Chemicals, LP, a Delaware limited partnership (the
"Partnership"), and Equistar Funding Corporation, a Delaware corporation (the
"Corporation"), propose to issue and sell to Chase Securities Inc., NationsBanc
Montgomery Securities LLC, ABN AMRO Incorporated, BNY Capital Markets, First
Chicago Capital Markets Inc. and J.P. Morgan Securities Inc. (together, the
"Initial Purchasers") for whom Chase Securities Inc. and NationsBanc Montgomery
Securities LLC are acting as representatives, upon the terms and subject to the
conditions set forth in a purchase agreement dated February 9, 1999 (the
"Purchase Agreement"), $300,000,000 aggregate principal amount of their 8 1/2%
Notes Due 2004 and $600,000,000 aggregate principal amount of their 8 3/4% Notes
Due 2009 (together, the "Debt Securities"). Capitalized terms used but not
defined herein shall have the meanings given to such terms in the Purchase
Agreement.
As an inducement to the Initial Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations of the Initial
Purchasers thereunder, the Partnership and the Corporation agree with the
Initial Purchasers, for the benefit of the holders (including the Initial
Purchasers) of the Debt Securities, the Exchange Debt Securities (as defined
herein) and the Private Exchange Debt Securities (as defined herein) (each set
of holders or collectively, as the context so requires, the "Holders"), as
follows:
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1. Registered Exchange Offer. The Partnership and the Corporation
shall (i) prepare and, not later than 60 days following the date of original
issuance of the Debt Securities (the "Issue Date"), file with the Securities and
Exchange Commission (the "Commission") a registration statement (the "Exchange
Offer Registration Statement") on an appropriate form under the Securities Act
with respect to a proposed offer to the Holders of the Debt Securities of each
series (the "Registered Exchange Offer") to issue and deliver to such Holders,
in exchange for the Debt Securities of each series, a like aggregate principal
amount of debt securities of each series (the "Exchange Debt Securities") that
are identical in all material respects to the Debt Securities, except for the
transfer restrictions relating to the Debt Securities, (ii) use their reasonable
best efforts to cause the Exchange Offer Registration Statement to become
effective under the Securities Act no later than 150 days after the Issue Date
and the Registered Exchange Offer to be consummated no later than 180 days after
the Issue Date and (iii) keep the Exchange Offer Registration Statement
effective for not less than 30 days (or longer, if required by applicable law)
after the date on which notice of the Registered Exchange Offer is mailed to the
Holders (such period being called the "Exchange Offer Registration Period").
The Exchange Debt Securities will be issued under the Indenture or an indenture
(the "Exchange Debt Securities Indenture") among the Partnership, the
Corporation and the Trustee or such other bank or trust company, the Partnership
and the Corporation that is reasonably satisfactory to the Initial Purchasers,
as trustee (the "Exchange Debt Securities Trustee"), such indenture to be
identical in all material respects to the Indenture, except for the transfer
restrictions relating to the Debt Securities (as described above).
Upon the effectiveness of the Exchange Offer Registration Statement,
the Partnership and the Corporation shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder electing to exchange Debt Securities of each series for
Exchange Debt Securities of such series (assuming that such Holder (a) is not an
affiliate of the Partnership or the Corporation or is not an Exchanging Dealer
(as defined herein) not complying with the requirements of the next sentence,
(b) is not an Initial Purchaser holding Debt Securities that have, or that are
reasonably likely to have, the status of an unsold allotment in an initial
distribution, (c) acquires the Exchange Debt Securities in the ordinary course
of such Holder's business and (d) has no arrangements or understandings with any
person to participate in the distribution of the Exchange Debt Securities) and
to trade such Exchange Debt Securities from and after their receipt without any
limitations or restrictions under the Securities Act and without material
restrictions under the securities laws of the several states of the United
States. The Partnership, the Corporation, the Initial Purchasers and each
Exchanging Dealer acknowledge that, pursuant to current interpretations by the
Commission's staff of Section 5 of the Securities Act, each Holder that is a
broker-dealer electing to exchange Debt Securities, acquired for its own account
as a result of market-making activities or other trading activities, for
Exchange Debt Securities (an "Exchanging Dealer"), is required to deliver a
prospectus containing substantially the information set forth in Annex A hereto
on the cover, in Annex B hereto in the "Exchange Offer Procedures" section and
the "Purpose of the Exchange Offer" section and in Annex C hereto in the "Plan
of Distribution" section of such prospectus in connection with a sale of any
such Exchange Debt Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer.
If, prior to the consummation of the Registered Exchange Offer, any
Holder holds any Debt Securities acquired by it that have, or that are
reasonably likely to be determined to have, the status of an unsold allotment in
an initial distribution, or any Holder is not entitled to participate in the
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Registered Exchange Offer, the Partnership and the Corporation shall, upon the
request of any such Holder, simultaneously with the delivery of the Exchange
Debt Securities in the Registered Exchange Offer, issue and deliver to any such
Holder, in exchange for the Debt Securities held by such Holder (the "Private
Exchange"), a like aggregate principal amount of Debt Securities (the "Private
Exchange Debt Securities") that are identical in all material respects to the
Exchange Debt Securities, except for the transfer restrictions relating to such
Private Exchange Debt Securities. The Private Exchange Debt Securities will be
issued under the same indenture as the Exchange Debt Securities, and the
Partnership and the Corporation shall use their reasonable best efforts to cause
the Private Exchange Debt Securities to bear the same CUSIP number as the
Exchange Debt Securities.
In connection with the Registered Exchange Offer, the Partnership and the
Corporation shall:
(a) mail to each Holder a copy of the prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter of
transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or
longer, if required by applicable law) after the date on which notice of the
Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer
with an address in the Borough of Manhattan, The City of New York;
(d) permit Holders to withdraw tendered Debt Securities at any time prior
to the close of business, New York City time, on the last business day on which
the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable to
the Registered Exchange Offer.
As soon as practicable after the close of the Registered Exchange Offer and
any Private Exchange, as the case may be, the Partnership and the Corporation
shall:
(a) accept for exchange all Debt Securities, of any series, tendered and
not validly withdrawn pursuant to the Registered Exchange Offer and the Private
Exchange;
(b) deliver to the Trustee for cancellation all Debt Securities so accepted
for exchange; and
(c) cause the Trustee or the Exchange Debt Securities Trustee, as the case
may be, promptly to authenticate and deliver to each Holder, Exchange Debt
Securities or Private
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Exchange Debt Securities, as the case may be, equal in principal amount to and
of the same series of the Debt Securities of such Holder so accepted for
exchange.
The Partnership and the Corporation shall use their reasonable best
efforts to keep the Exchange Offer Registration Statement effective and to amend
and supplement the prospectus contained therein in order to permit such
prospectus to be used by all persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such persons must
comply with such requirements in order to resell the Exchange Debt Securities;
provided that (i) in the case where such prospectus and any amendment or
supplement thereto must be delivered by an Exchanging Dealer, such period shall
be the lesser of 180 days and the date on which all Exchanging Dealers have sold
all Exchange Debt Securities held by them and (ii) the Partnership and the
Corporation shall make such prospectus and any amendment or supplement thereto
available to all dealers for use in connection with any resale of any Exchange
Debt Securities for a period of not less than 180 days after the consummation of
the Registered Exchange Offer.
The Indenture or the Exchange Debt Securities Indenture, as the case
may be, shall provide that the Debt Securities, the Exchange Debt Securities and
the Private Exchange Debt Securities of all series (except where the interests
of fewer than all series are affected) shall vote and consent together on all
matters as one class and that none of the Debt Securities, the Exchange Debt
Securities or the Private Exchange Debt Securities will have the right to vote
or consent as a separate class on any matter.
Interest on each Exchange Security and Private Exchange Security
issued pursuant to the Registered Exchange Offer and in the Private Exchange
will accrue from the last interest payment date on which interest was paid on
the Debt Securities surrendered in exchange therefor or, if no interest has been
paid on the Debt Securities, from the Issue Date.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Partnership and the Corporation that at the time of
the consummation of the Registered Exchange Offer (i) any Exchange Debt
Securities received by such Holder will be acquired in the ordinary course of
business, (ii) such Holder will have no arrangements or understanding with any
person to participate in the distribution of the Debt Securities or the Exchange
Debt Securities within the meaning of the Securities Act and (iii) such Holder
is not an affiliate of the Partnership or the Corporation or, if it is such an
affiliate, such Holder will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable.
Notwithstanding any other provisions hereof, the Partnership and the
Corporation will ensure that (i) any Exchange Offer Registration Statement and
any amendment thereto and any prospectus forming part thereof and any supplement
thereto complies in all material respects with the Securities Act and the rules
and regulations of the Commission thereunder, (ii) any Exchange Offer
Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) any prospectus forming part of any Exchange
Offer Registration Statement, and any supplement to such prospectus, does not,
as of the consummation of the Registered Exchange Offer, include an untrue
statement of a material fact or omit
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to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
2. Shelf Registration. If (i) because of any change in law or
applicable interpretations thereof by the Commission's staff the Partnership and
the Corporation are not permitted to effect the Registered Exchange Offer as
contemplated by Section 1 hereof, (ii) any Debt Securities validly tendered
pursuant to the Registered Exchange Offer are not exchanged for Exchange Debt
Securities within 180 days after the Issue Date, (iii) any Initial Purchaser so
requests with respect to Debt Securities or Private Exchange Debt Securities not
eligible to be exchanged for Exchange Debt Securities in the Registered Exchange
Offer and held by it following the consummation of the Registered Exchange
Offer, (iv) any applicable law or interpretations do not permit any Holder to
participate in the Registered Exchange Offer, (v) any Holder that participates
in the Registered Exchange Offer does not receive freely transferable Exchange
Debt Securities in exchange for tendered Debt Securities, or (vi) the
Partnership and the Corporation so elect, then the following provisions shall
apply:
(a) The Partnership and the Corporation shall use their reasonable best
efforts to file as promptly as practicable (but in no event more than 30 days
after so required or requested pursuant to this Section 2) with the Commission,
and thereafter shall use their reasonable best efforts to cause to be declared
effective, a shelf registration statement on an appropriate form under the
Securities Act relating to the offer and sale of the Transfer Restricted Debt
Securities (as defined below) by the Holders thereof from time to time in
accordance with the methods of distribution set forth in such registration
statement (hereafter, a "Shelf Registration Statement" and, together with any
Exchange Offer Registration Statement, a "Registration Statement"); provided
that with respect to Exchange Debt Securities or Private Exchange Debt
Securities received by an Initial Purchaser in exchange for Debt Securities
constituting any portion of an unsold allotment, the Partnership and the
Corporation may, if permitted by current interpretations of the Commission's
staff, file a post-effective amendment to the Exchange Offer Registration
Statement containing the information required by Regulation S-K Items 507 and/or
508, as applicable, in satisfaction of its obligations under this Section 2(a)
with respect thereto, and any such Exchange Offer Registration Statement, as so
amended, shall be referred to herein as, and governed by the provisions herein
applicable to, a Shelf Registration Statement.
(b) The Partnership and the Corporation shall use their reasonable best
efforts to keep the Shelf Registration Statement continuously effective in order
to permit the prospectus forming part thereof to be used by Holders of Transfer
Restricted Debt Securities for a period ending on the earlier of (i) two years
from the Issue Date or such shorter period that will terminate when all the
Transfer Restricted Debt Securities covered by the Shelf Registration Statement
have been sold pursuant thereto and (ii) the date on which the Debt Securities
become eligible for resale without volume restrictions pursuant to Rule 144
under the Securities Act (in any such case, such period being called the "Shelf
Registration Period"). The Partnership and the Corporation shall be deemed not
to have used their reasonable best efforts to keep the Shelf Registration
Statement effective during the requisite period if they voluntarily take any
action that would result in Holders
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of Transfer Restricted Debt Securities covered thereby not being able to offer
and sell such Transfer Restricted Debt Securities during that period, unless
such action is required by applicable law.
(c) Notwithstanding any other provisions hereof, the Partnership and the
Corporation will ensure that (i) any Shelf Registration Statement and any
amendment thereto and any prospectus forming part thereof and any supplement
thereto complies in all material respects with the Securities Act and the rules
and regulations of the Commission thereunder, (ii) any Shelf Registration
Statement and any amendment thereto (in either case, other than with respect to
information included therein in reliance upon or in conformity with written
information furnished to the Partnership and the Corporation by or on behalf of
any Holder specifically for use therein (the "Holders' Information")) does not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading and (iii) any prospectus forming part of any Shelf Registration
Statement, and any supplement to such prospectus (in either case, other than
with respect to Holders' Information), does not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(d) The Partnership and the Corporation will have the ability to suspend
the Shelf Registration Statement for no more than (a) 45 days during the first
12 month period after the date of original issuance of the Debt Securities and
(b) 90 days during any subsequent 12 month period (a "Suspension Period"), if
the Partnership and the Corporation determine, in their reasonable best
judgment, upon written advice of counsel, that the continued effectiveness and
use of the Shelf Registration Statement would require the disclosure of
confidential information or interfere with any financing, acquisition,
reorganization or other material transaction involving the Partnership. A
Suspension Period shall commence on and include the date that the Partnership
and the Corporation give notice that the Shelf Registration Statement is no
longer effective or the prospectus included therein is no longer usable for
offers and sales of Debt Securities, Private Exchange Debt Securities and
Exchange Debt Securities covered by such registration statement and continue
until holders of such Debt Securities, Private Exchange Debt Securities and
Exchange Debt Securities either receive the copies of the supplemented or
amended prospectus contemplated by Section 4(j) hereof or are advised in writing
by the Partnership and the Corporation that use of the prospectus may be
resumed.
3. Additional Interest. (a) The parties hereto agree that the Holders of
Transfer Restricted Debt Securities will suffer damages if the Partnership and
the Corporation fail to fulfill their obligations under Section 1 or Section 2,
as applicable, and that it would not be feasible to ascertain the extent of such
damages. Accordingly, if (i) the applicable Registration Statement is not filed
with the Commission on or prior to 60 days after the Issue Date, (ii) the
Exchange Offer Registration Statement or the Shelf Registration Statement, as
the case may be, is not declared effective within 150 days after the Issue Date
(or in the case of a Shelf Registration Statement required to be filed in
response to a change in law or the applicable interpretations of the
Commission's staff, if later, within 30 days after publication of the change in
law or interpretation), (iii) the Registered Exchange Offer is not consummated
on or prior to 180 days after the Issue Date, or (iv) the Shelf Registration
Statement is filed and declared effective within 180 days after the Issue Date
(or in the case of a Shelf Registration
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Statement required to be filed in response to a change in law or the applicable
interpretations of the Commission's staff, if later, within 30 days after
publication of the change in law or interpretation) but shall thereafter cease
to be effective (at any time that the Partnership and the Corporation are
obligated to maintain the effectiveness thereof) (each such event referred to in
clauses (i) through (iv), a "Registration Default"), the Partnership and the
Corporation, jointly and severally, will be obligated to pay additional interest
("Additional Interest") on each Transfer Restricted Debt Security during the
period of one or more such Registration Defaults, at a rate of 0.25% per annum
over and above the interest rate set forth in such Transfer Restricted Debt
Security, increasing to 0.50% if the Registration Default is not cured within 90
days, until (i) the applicable Registration Statement is filed, (ii) the
Exchange Offer Registration Statement is declared effective and the Registered
Exchange Offer is consummated, (iii) the Shelf Registration Statement is
declared effective or (iv) the Shelf Registration Statement again becomes
effective, as the case may be. Following the cure of all Registration Defaults,
the accrual of Additional Interest will cease. As used herein, the term
"Transfer Restricted Debt Securities" means (i) each Debt Security until the
date on which such Debt Security has been exchanged for a freely transferable
Exchange Debt Security in the Registered Exchange Offer, (ii) each Debt Security
or Private Exchange Debt Security until the date on which it has been
effectively registered under the Securities Act and disposed of in accordance
with the Shelf Registration Statement or (iii) each Debt Security or Private
Exchange Debt Security until the date on which it is distributed to the public
pursuant to Rule 144 under the Securities Act or is saleable pursuant to Rule
144(k) under the Securities Act. Notwithstanding anything to the contrary in
this Section 3(a), the Partnership and the Corporation shall not be required to
pay Additional Interest to a Holder of Transfer Restricted Debt Securities if
such Holder failed to comply with its obligations to make the representations
set forth in the second to last paragraph of Section 1 or failed to provide the
information required to be provided by it, if any, pursuant to Section 4(n).
Additional interest will not accrue during a Suspension Period.
(b) The Partnership and the Corporation shall notify the Trustee and the
Paying Agent under the Indenture immediately upon the happening of each and
every Registration Default. The Partnership and the Corporation shall pay the
Additional Interest due on the Transfer Restricted Debt Securities by depositing
with the Paying Agent (which may not be the Partnership or the Corporation for
these purposes), in trust, for the benefit of the Holders thereof, prior to
10:00 a.m., New York City time, on the next interest payment date specified by
the Indenture and the Debt Securities, sums sufficient to pay the Additional
Interest then due. The Additional Interest due shall be payable on each
interest payment date specified by the Indenture and the Debt Securities to the
record holder entitled to receive the interest payment to be made on such date.
Each obligation to pay Additional Interest shall be deemed to accrue from and
including the date of the applicable Registration Default.
(c) The parties hereto agree that the Additional Interest provided for in
this Section 3 constitutes a reasonable estimate of and is intended to
constitute the sole damages that will be suffered by Holders of Transfer
Restricted Debt Securities by reason of the failure of (i) the Shelf
Registration Statement or the Exchange Offer Registration Statement to be filed,
(ii) the Shelf Registration Statement to remain effective or (iii) the Exchange
Offer Registration Statement to be
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declared effective and the Registered Exchange Offer to be consummated, in each
case to the extent required by this Agreement.
4. Registration Procedures. In connection with any Registration
Statement, the following provisions shall apply:
(a) The Partnership and the Corporation shall (i) furnish to each Initial
Purchaser, prior to the filing thereof with the Commission, a copy of the
Registration Statement and each amendment thereof and each supplement, if any,
to the prospectus included therein and shall use their reasonable best efforts
to reflect in each such document, when so filed with the Commission, such
comments as any Initial Purchaser may reasonably propose; (ii) include the
information set forth in Annex A hereto on the cover, in Annex B hereto in the
"Exchange Offer Procedures" section and the "Purpose of the Exchange Offer"
section and in Annex C hereto in the "Plan of Distribution" section of the
prospectus forming a part of the Exchange Offer Registration Statement, and
include the information set forth in Annex D hereto in the Letter of Transmittal
delivered pursuant to the Registered Exchange Offer; and (iii) if requested by
any Initial Purchaser, include the information required by Items 507 or 508 of
Regulation S-K, as applicable, in the prospectus forming a part of the Exchange
Offer Registration Statement.
(b) The Partnership and the Corporation shall advise each Initial
Purchaser, each Exchanging Dealer and the Holders (if applicable) and, if
requested by any such person, confirm such advice in writing (which advice
pursuant to clauses (ii)-(v) hereof shall be accompanied by an instruction to
suspend the use of the prospectus until the requisite changes have been made):
(i) when any Registration Statement and any amendment thereto
has been filed with the Commission and when such Registration Statement
or any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or
supplements to any Registration Statement or the prospectus included
therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of any Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Partnership and the Corporation of
any notification with respect to the suspension of the qualification of
the Debt Securities, the Exchange Debt Securities or the Private
Exchange Debt Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the making of
any changes in any Registration Statement or the prospectus included
therein in order that the statements therein are not misleading and do
not omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
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(c) The Partnership and the Corporation will make every reasonable effort
to obtain the withdrawal at the earliest possible time of any order suspending
the effectiveness of any Registration Statement.
(d) The Partnership and the Corporation will furnish to each Holder of
Transfer Restricted Debt Securities included within the coverage of any Shelf
Registration Statement, without charge, at least one conformed copy of such
Shelf Registration Statement and any post-effective amendment thereto, including
financial statements and schedules and, if any such Holder so requests in
writing, all exhibits thereto (including those, if any, incorporated by
reference).
(e) The Partnership and the Corporation will, during the Shelf
Registration Period, promptly deliver to each Holder of Transfer Restricted Debt
Securities included within the coverage of any Shelf Registration Statement,
without charge, as many copies of the prospectus (including each preliminary
prospectus) included in such Shelf Registration Statement and any amendment or
supplement thereto as such Holder may reasonably request; and the Partnership
and the Corporation consent to the use of such prospectus or any amendment or
supplement thereto by each of the selling Holders of Transfer Restricted Debt
Securities in connection with the offer and sale of the Transfer Restricted Debt
Securities covered by such prospectus or any amendment or supplement thereto.
(f) The Partnership and the Corporation will furnish to each Initial
Purchaser and each Exchanging Dealer, and to any other Holder who so requests,
without charge, at least one conformed copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules and, if any Initial Purchaser or Exchanging Dealer or
any such Holder so requests in writing, all exhibits thereto (including those,
if any, incorporated by reference).
(g) The Partnership and the Corporation will, during the Exchange Offer
Registration Period or the Shelf Registration Period, as applicable, promptly
deliver to each Initial Purchaser, each Exchanging Dealer and such other persons
that are required to deliver a prospectus following the Registered Exchange
Offer, without charge, as many copies of the final prospectus included in the
Exchange Offer Registration Statement or the Shelf Registration Statement and
any amendment or supplement thereto as such Initial Purchaser, Exchanging Dealer
or other persons may reasonably request; and the Partnership and the Corporation
consent to the use of such prospectus or any amendment or supplement thereto by
any such Initial Purchaser, Exchanging Dealer or other persons, as applicable,
as aforesaid.
(h) Prior to the effective date of any Registration Statement, the
Partnership and the Corporation will use their reasonable best efforts to
register or qualify, or cooperate with the Holders of Debt Securities, Exchange
Debt Securities or Private Exchange Debt Securities included therein and their
respective counsel in connection with the registration or qualification of, such
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Debt Securities, Exchange Debt Securities or Private Exchange Debt Securities
for offer and sale under the securities or blue sky laws of such jurisdictions
as any such Holder reasonably requests in writing and do any and all other acts
or things necessary or advisable to enable the offer and sale in such
jurisdictions of the Debt Securities, Exchange Debt Securities or Private
Exchange Debt Securities covered by such Registration Statement; provided that
the Partnership and the Corporation will not be required to qualify generally to
do business in any jurisdiction where they are not then so qualified or to take
any action which would subject them to general service of process or to taxation
in any such jurisdiction where they are not then so subject.
(i) The Partnership and the Corporation will cooperate with the Holders
of Debt Securities, Exchange Debt Securities or Private Exchange Debt Securities
to facilitate the timely preparation and delivery of certificates representing
Debt Securities, Exchange Debt Securities or Private Exchange Debt Securities to
be sold pursuant to any Registration Statement free of any restrictive legends
and in such denominations and registered in such names as the Holders thereof
may request in writing prior to sales of Debt Securities, Exchange Debt
Securities or Private Exchange Debt Securities pursuant to such Registration
Statement.
(j) If any event contemplated by Section 4(b)(ii) through (v) occurs
during the period for which the Partnership and the Corporation are required to
maintain an effective Registration Statement, the Partnership and the
Corporation will promptly prepare and file with the Commission a post-effective
amendment to the Registration Statement or a supplement to the related
prospectus or file any other required document so that, as thereafter delivered
to purchasers of the Debt Securities, Exchange Debt Securities or Private
Exchange Debt Securities from a Holder, the prospectus will not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(k) Not later than the effective date of the applicable Registration
Statement, the Partnership and the Corporation will provide a CUSIP number for
the Exchange Debt Securities and the Private Exchange Debt Securities and
provide the trustee with printed certificates for the Exchange Debt Securities
or the Private Exchange Debt Securities in a form eligible for deposit with The
Depository Trust Company and the Corporation.
(l) The Partnership and the Corporation will comply with all applicable
rules and regulations of the Commission and will make generally available to the
Partnership's and the Corporation's security holders as soon as practicable
after the effective date of the applicable Registration Statement an earning
statement satisfying the provisions of Section 11(a) of the Securities Act;
provided that in no event shall such earning statement be delivered later than
45 days after the end of a 12-month period (or 90 days, if such period is a
fiscal year) beginning with the first month of the Partnership's first fiscal
quarter commencing after the effective date of the applicable Registration
Statement, which statement shall cover such 12-month period.
(m) The Partnership and the Corporation will cause the Indenture or the
Exchange Debt Securities Indenture, as the case may be, to be qualified under
the Trust Indenture Act as required by applicable law in a timely manner.
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(n) The Partnership and the Corporation may require each Holder of
Transfer Restricted Debt Securities to be registered pursuant to any Shelf
Registration Statement to furnish to the Partnership and the Corporation such
information concerning the Holder and the distribution of such Transfer
Restricted Debt Securities as the Partnership and the Corporation may from time
to time reasonably require for inclusion in such Shelf Registration Statement,
and the Partnership and the Corporation may exclude from such registration the
Transfer Restricted Debt Securities of any Holder that fails to furnish such
information within a reasonable time after receiving such request.
(o) In the case of a Shelf Registration Statement, each Holder of
Transfer Restricted Debt Securities to be registered pursuant thereto agrees by
acquisition of such Transfer Restricted Debt Securities that, upon receipt of
any notice from the Partnership and the Corporation pursuant to Section 4(b)(ii)
through (v), such Holder will discontinue disposition of such Transfer
Restricted Debt Securities until such Holder's receipt of copies of the
supplemental or amended prospectus contemplated by Section 4(j) or until advised
in writing (the "Advice") by the Partnership or the Corporation that the use of
the applicable prospectus may be resumed. If the Partnership or the Corporation
shall give any notice under Section 4(b)(ii) through (v) during the period that
the Partnership and the Corporation are required to maintain an effective
Registration Statement (the "Effectiveness Period"), such Effectiveness Period
shall be extended by the number of days during such period from and including
the date of the giving of such notice to and including the date when each seller
of Transfer Restricted Debt Securities covered by such Registration Statement
shall have received (x) the copies of the supplemental or amended prospectus
contemplated by Section 4(j) (if an amended or supplemental prospectus is
required) or (y) the Advice (if no amended or supplemental prospectus is
required).
(p) In the case of a Shelf Registration Statement, the Partnership and
the Corporation shall enter into such customary agreements (including, if
requested, an underwriting agreement in customary form) and take all such other
action, if any, as Holders of a majority in aggregate principal amount of the
outstanding Debt Securities, Exchange Debt Securities and Private Exchange Debt
Securities being sold or the managing underwriters (if any) shall reasonably
request in order to facilitate any disposition of Debt Securities, Exchange Debt
Securities or Private Exchange Debt Securities pursuant to such Shelf
Registration Statement.
(q) In the case of a Shelf Registration Statement, the Partnership and
the Corporation shall (i) make reasonably available for inspection by a
representative of, and Special Counsel (as defined below) acting for, Holders of
a majority in aggregate principal amount of the outstanding Debt Securities,
Exchange Debt Securities and Private Exchange Debt Securities being sold and any
underwriter participating in any disposition of Debt Securities, Exchange Debt
Securities or Private Exchange Debt Securities pursuant to such Shelf
Registration Statement, all relevant financial and other records, pertinent
corporate documents and properties of the Partnership and the Corporation and
their subsidiaries and (ii) use their reasonable best efforts to have their
representatives, officers,
11
directors, employees, accountants and counsel supply all relevant information
reasonably requested by such representative, Special Counsel or any such
underwriter (an "Inspector") in connection with such Shelf Registration
Statement; provided, however, that any information that is designated by the
Partnership and the Corporation as confidential shall be kept confidential by
the Holders or any such Inspector, unless such disclosure is made in connection
with a court proceeding or required law or is disclosed upon request or demand
of any regulatory authority having jurisdiction over such Holder or Inspector,
or such information becomes available to the public generally or through a third
party without an accompanying obligation of confidentiality.
(r) In the case of a Shelf Registration Statement, the Partnership and
the Corporation shall, if requested by Holders of a majority in aggregate
principal amount of the Debt Securities, Exchange Debt Securities and Private
Exchange Debt Securities being sold, their Special Counsel or the managing
underwriters (if any) in connection with such Shelf Registration Statement, use
their reasonable best efforts to cause (i) their counsel to deliver an opinion
relating to the Shelf Registration Statement and the Debt Securities, Exchange
Debt Securities or Private Exchange Debt Securities, as applicable, in customary
form consistent with opinions rendered in the initial offering of the Debt
Securities, (ii) their representatives and officers to execute and deliver all
customary documents and certificates requested by Holders of a majority in
aggregate principal amount of the Debt Securities, Exchange Debt Securities and
Private Exchange Debt Securities being sold, their Special Counsel or the
managing underwriters (if any) and (iii) their independent public accountants to
provide a comfort letter or letters in customary form, subject to receipt of
appropriate documentation as contemplated, and only if permitted, by Statement
of Auditing Standards No. 72.
5. Registration Expenses. The Partnership and the Corporation will bear all
expenses incurred in connection with the performance of their obligations under
Sections 1, 2, 3 and 4 and the Partnership and the Corporation will reimburse
the Initial Purchasers and the Holders for the reasonable fees and disbursements
of one firm of attorneys (in addition to any local counsel) chosen by the
Holders of a majority in aggregate principal amount of the Debt Securities,
Exchange Debt Securities and Private Exchange Debt Securities to be sold
pursuant to each Registration Statement (the "Special Counsel") acting for the
Initial Purchasers or Holders in connection therewith.
6. Indemnification. (a) In the event of a Shelf Registration Statement or
in connection with any prospectus delivery pursuant to an Exchange Offer
Registration Statement by an Initial Purchaser or Exchanging Dealer, as
applicable, the Partnership and the Corporation shall, jointly and severally,
indemnify and hold harmless each Holder (including, without limitation, any such
Initial Purchaser or Exchanging Dealer), its affiliates, their respective
officers, directors, employees, representatives and agents, and each person, if
any, who controls such Holder within the meaning of the Securities Act or the
Exchange Act (collectively referred to for purposes of this Section 6 and
Section 7 as a Holder) from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, without
limitation, any loss, claim, damage, liability or action relating to purchases
and sales of Debt Securities, Exchange Debt Securities or Private Exchange Debt
Securities), to which that Holder may become subject, whether commenced or
threatened, under the Securities Act, the Exchange Act, any other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material fact contained in
any such Registration Statement or
12
any prospectus forming part thereof or in any amendment or supplement thereto or
(ii) the 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, and
shall reimburse each Holder promptly upon demand for any legal or other expenses
reasonably incurred by that Holder in connection with investigating or defending
or preparing to defend against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Partnership and the
Corporation shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon, an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with any Holders'
Information; and provided, further, that with respect to any such untrue
statement in or omission from any related preliminary prospectus, the indemnity
agreement contained in this Section 6(a) shall not inure to the benefit of any
Holder from whom the person asserting any such loss, claim, damage, liability or
action received Debt Securities, Exchange Debt Securities or Private Exchange
Debt Securities to the extent that such loss, claim, damage, liability or action
of or with respect to such Holder results from the fact that both (A) a copy of
the final prospectus was not sent or given to such person at or prior to the
written confirmation of the sale of such Debt Securities, Exchange Debt
Securities or Private Exchange Debt Securities to such person and (B) the untrue
statement in or omission from the related preliminary prospectus was corrected
in the final prospectus unless, in either case, such failure to deliver the
final prospectus was a result of non-compliance by the Partnership or the
Corporation with Section 4(d), 4(e), 4(f) or 4(g).
(b) In the event of a Shelf Registration Statement, each Holder shall
indemnify and hold harmless the Partnership and the Corporation, their
affiliates, their respective officers, directors, employees, representatives and
agents, and each person, if any, who controls the Partnership and the
Corporation within the meaning of the Securities Act or the Exchange Act
(collectively referred to for purposes of this Section 6(b) and Section 7 as the
Partnership and the Corporation, respectively), from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Partnership and the Corporation may become subject, whether
commenced or threatened, under the Securities Act, the Exchange Act, any other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in any such Registration Statement or any prospectus forming part
thereof or in any amendment or supplement thereto or (ii) the 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, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with any
Holders' Information furnished to the Partnership and the Corporation by such
Holder, and shall reimburse the Partnership and the Corporation for any legal or
other expenses reasonably incurred by the Partnership and the Corporation in
connection with investigating or defending or preparing to defend against or
appearing as a third party witness in connection with any such loss, claim,
13
damage, liability or action as such expenses are incurred; provided, however,
that no such Holder shall be liable for any indemnity claims hereunder in excess
of the amount of net proceeds received by such Holder from the sale of Debt
Securities, Exchange Debt Securities or Private Exchange Debt Securities
pursuant to such Shelf Registration Statement.
(c) Promptly after receipt by an indemnified party under this Section 6
of notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party pursuant to Section 6(a) or 6(b), notify the indemnifying party in writing
of the claim or the commencement of that action; provided, however, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have under this Section 6 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 party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 6. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than the reasonable costs of investigation; provided, however,
that an indemnified party shall have the right to employ its own counsel in any
such action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based upon advice of counsel to the indemnified party) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party, (3)
a conflict or potential conflict exists (based upon advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all such indemnified party or
parties. Each indemnified party, as a condition of the indemnity agreements
contained in Sections 6(a) and 6(b), shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without
14
the prior written consent of the indemnified party (which consent shall not be
unreasonably withheld), effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
7. Contribution. If the indemnification provided for in Section 6 is
unavailable or insufficient to hold harmless an indemnified party under Section
6(a) or 6(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Partnership and the Corporation, which shall be treated
as a single entity for this purpose, from the offering and sale of the Debt
Securities, on the one hand, and a Holder with respect to the sale by such
Holder of Debt Securities, Exchange Debt Securities or Private Exchange Debt
Securities, on the other, or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Partnership and the Corporation on the one hand and
such Holder on the other with respect to the statements or omissions that
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative benefits
received by the Partnership and the Corporation on the one hand and a Holder on
the other with respect to such offering and such sale shall be deemed to be in
the same proportion as the total net proceeds from the offering of the Debt
Securities (before deducting expenses) received by or on behalf of the
Partnership and the Corporation as set forth in the table on the cover of the
Offering Memorandum, on the one hand, bear to the total proceeds received by
such Holder with respect to its sale of Debt Securities, Private Exchange Debt
Securities or Exchange Debt Securities, on the other. The relative fault 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 the Partnership and the Corporation or information
supplied by the Partnership and the Corporation on the one hand or to any
Holders' Information supplied by such Holder on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The parties hereto agree
that it would not be just and equitable if contributions pursuant to this
Section 7 were to be determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable considerations referred
to herein. The amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect thereof, referred to
above in this Section 7 shall be deemed to include, for purposes of this Section
7, any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim. Notwithstanding the provisions of this Section 7, an
indemnifying party that is a Holder shall not be required to contribute any
amount in excess of the amount by which the total price at which the Debt
Securities, Exchange Debt Securities or Private Exchange Debt Securities sold by
such indemnifying party to any purchaser exceeds the amount of any damages which
such indemnifying party has otherwise paid or become liable to pay by reason of
any untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent
15
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.
8. Rules 144 and 144A. The Partnership and the Corporation shall use their
reasonable best efforts to file the reports required to be filed by them under
the Securities Act and the Exchange Act in a timely manner and, if at any time
the Partnership and the Corporation are not required to file such reports, they
will, upon the written request of any Holder of Transfer Restricted Debt
Securities, make publicly available other information so long as necessary to
permit sales of such Holder's Debt Securities pursuant to Rules 144 and 144A.
The Partnership and the Corporation covenant that they will take such further
action as any Holder of Transfer Restricted Debt Securities may reasonably
request, all to the extent required from time to time to enable such Holder to
sell Transfer Restricted Debt Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rules 144 and
144A (including, without limitation, the requirements of Rule 144A(d)(4)). Upon
the written request of any Holder of Transfer Restricted Debt Securities, the
Partnership and the Corporation shall deliver to such Holder a written statement
as to whether they have complied with such requirements. Notwithstanding the
foregoing, nothing in this Section 8 shall be deemed to require the Partnership
and the Corporation to register any of the Partnership's and the Corporation's
Debt Securities pursuant to the Exchange Act.
9. Underwritten Registrations. If any of the Transfer Restricted Debt
Securities covered by any Shelf Registration Statement are to be sold in an
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 such Transfer Restricted Debt
Securities included in such offering, subject to the consent of the Partnership
and the Corporation (which shall not be unreasonably withheld or delayed), and
such Holders shall be responsible for all underwriting commissions and discounts
in connection therewith.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted Debt
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
10. Miscellaneous. (a) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, unless the
Partnership and the Corporation have obtained the written consent of Holders of
a majority in aggregate principal amount of outstanding Debt Securities,
Exchange Debt Securities and Private Exchange Debt Securities of all series,
taken as a single class. Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders whose Debt Securities, Exchange Debt
Securities or Private Exchange Debt Securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of a majority in aggregate
principal amount of the outstanding Debt Securities, Exchange Debt Securities
and Private Exchange Debt Securities whose rights are so affected.
16
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telecopier or air courier guaranteeing next-day delivery:
(1) if to a Holder, at the most current address given by such
Holder to the Partnership and the Corporation in accordance with the
provisions of this Section 10(b), which address initially is, with
respect to each Holder, the address of such Holder maintained by the
Registrar under the Indenture, with a copy in like manner to Chase
Securities Inc. and NationsBanc Montgomery Securities LLC.
(2) if to an Initial Purchaser, initially at its address set
forth in the Purchase Agreement; and
(3) if to the Partnership or the Corporation, initially at the
address of the Partnership set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; one business day
after being delivered to a next-day air courier; five business days after being
deposited in the mail; and when receipt is acknowledged by the recipient's
telecopier machine, if sent by telecopier.
(c) Successors And Assigns. This Agreement shall be binding upon the
Partnership and the Corporation and their respective successors and assigns.
(d) Counterparts. This Agreement may be executed in any number of
counterparts (which may be delivered in original form or by telecopier) 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.
(e) Definition of Terms. For purposes of this Agreement, (a) the term
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading, (b) the term "subsidiary" has the meaning set forth in Rule 405
under the Securities Act and (c) except where otherwise expressly provided, the
term "affiliate" has the meaning set forth in Rule 405 under the Securities Act.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
17
(h) Remedies. In the event of a breach by the Partnership or the
Corporation or by any Holder of any of their obligations under this Agreement,
each Holder or the Partnership and the Corporation, as the case may be, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages (other than the recovery of damages for a breach by the
Partnership and the Corporation of its or their obligations under Sections 1 or
2 hereof for which Additional Interest has been paid pursuant to Section 3
hereof), will be entitled to specific performance of its or their rights under
this Agreement. The Partnership and the Corporation and each Holder agree that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it or them of any of the provisions of this Agreement and
hereby further agree that, in the event of any action for specific performance
in respect of such breach, it shall waive the defense that a remedy at law would
be adequate.
(i) No Inconsistent Agreements. Each of the Partnership and the
Corporation represents, warrants and agrees that (i) it has not entered into,
and shall not, on or after the date of this Agreement, enter into any agreement
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof, (ii) it has not previously
entered into any agreement which remains in effect granting any registration
rights with respect to any of its debt securities to any person and (iii)
without limiting the generality of the foregoing, without the written consent of
the Holders of a majority in aggregate principal amount of the then outstanding
Transfer Restricted Debt Securities, it shall not grant to any person the right
to request the Partnership or the Corporation to register any debt securities
under the Securities Act unless the rights so granted are not in conflict or
inconsistent with the provisions of this Agreement.
(j) No Piggyback on Registrations. Neither the Partnership, the
Corporation nor any of their security holders (other than the Holders of
Transfer Restricted Debt Securities in such capacity) shall have the right to
include any securities of the Partnership or the Corporation in any Shelf
Registration or Registered Exchange Offer other than Transfer Restricted Debt
Securities.
(k) Severability. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
18
Please confirm that the foregoing correctly sets forth the agreement
among the Partnership, the Corporation and the Initial Purchasers.
Very truly yours,
EQUISTAR CHEMICALS, LP
By /s/ Gerald A. O'Brien
-----------------------------
Name: Gerald A. O'Brien
Title: Vice President and General Counsel
EQUISTAR FUNDING CORPORATION
By /s/ Gerald A. O'Brien
-----------------------------
Name: Gerald A. O'Brien
Title: Vice President and General Counsel
Accepted:
CHASE SECURITIES INC., for themselves and the
other Initial Purchasers (except NationsBanc Montgomery Securities LLC)
By /s/ Paul L. Hatton
--------------------------------
Authorized Signatory
NATIONSBANC MONTGOMERY SECURITIES LLC, for themselves and the
other Initial Purchasers (except Chase Securities Inc.)
By /s/ Andrew McCarthy
--------------------------------
Authorized Signatory
19
ANNEX A
Each broker-dealer that receives Exchange Debt Securities for its own
account pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Debt
Securities. The Letter of Transmittal states that by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act. This Prospectus, as
it may be amended or supplemented from time to time, may be used by a broker-
dealer in connection with resales of Exchange Debt Securities received in
exchange for Debt Securities where such Debt Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The Partnership and the Corporation have agreed that, for a period
of 180 days after the Expiration Date (as defined herein), they will make this
Prospectus available to any broker-dealer for use in connection with any such
resale. See "Plan of Distribution"
A-1
ANNEX B
Each broker-dealer that receives Exchange Debt Securities for its own
account in exchange for Debt Securities, where such Debt Securities were
acquired by such broker-dealer as a result of market-making activities or other
trading activities, must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Debt Securities. See "Plan of
Distribution".
B-1
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Debt Securities for its own
account pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Debt
Securities. This Prospectus, as it may be amended or supplemented from time to
time, may be used by a broker-dealer in connection with resales of Exchange Debt
Securities received in exchange for Debt Securities where such Debt Securities
were acquired as a result of market-making activities or other trading
activities. The Partnership and the Corporation have agreed that, for a period
of 180 days after the Expiration Date, they will make this prospectus, as
amended or supplemented, available to any broker-dealer for use in connection
with any such resale. In addition, until _______________, 199__, all dealers
effecting transactions in the Exchange Debt Securities may be required to
deliver a prospectus.
The Partnership and the Corporation will not receive any proceeds from
any sale of Exchange Debt Securities by broker-dealers. Exchange Debt
Securities received by broker-dealers for their own account pursuant to the
Registered Exchange Offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions, through
the writing of options on the Exchange Debt Securities or a combination of such
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or at negotiated prices. Any such
resale may be made directly to purchasers or to or through brokers or dealers
who may receive compensation in the form of commissions or concessions from any
such broker-dealer or the purchasers of any such Exchange Debt Securities. Any
broker-dealer that resells Exchange Debt Securities that were received by it for
its own account pursuant to the Registered Exchange Offer and any broker or
dealer that participates in a distribution of such Exchange Debt Securities may
be deemed to be an "underwriter" within the meaning of the Securities Act and
any profit on any such resale of Exchange Debt Securities and any commission or
concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act. The Letter of Transmittal states that,
by acknowledging that it will deliver and by delivering a prospectus, a broker-
dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
For a period of 180 days after the Expiration Date the Partnership and
the Corporation will promptly send additional copies of this Prospectus and any
amendment or supplement to this Prospectus to any broker-dealer that requests
such documents in the Letter of Transmittal. The Partnership and the
Corporation have agreed to pay all expenses incident to the Registered Exchange
Offer (including the expenses of one counsel for the holders of the Debt
Securities) other than commissions or concessions of any broker-dealers and will
indemnify the holders of the Debt Securities (including any broker-dealers)
against certain liabilities, including liabilities under the Securities Act.
C-1
ANNEX D
o CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name:
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Address:
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If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Debt Securities. If the undersigned is a broker-dealer that will receive
Exchange Debt Securities for its own account in exchange for Debt Securities
that were acquired as a result of market-making activities or other trading
activities, it acknowledges that it will deliver a prospectus in connection with
any resale of such Exchange Debt Securities; however, by so acknowledging and by
delivering a prospectus, the undersigned will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act.
D-1