Exhibit 4.2
$250,000,000
FERRELLGAS ESCROW LLC
FERRELLGAS FINANCE ESCROW CORPORATION
6 3/4% SENIOR NOTES DUE 2014
REGISTRATION RIGHTS AGREEMENT
-----------------------------
April 20, 2004
CREDIT SUISSE FIRST BOSTON LLC
BANC OF AMERICA SECURITIES LLC
ABN AMRO INCORPORATED
BANC ONE CAPITAL MARKETS, INC.
BNP PARIBAS SECURITIES CORP.
PIPER JAFFRAY & CO.
SG COWEN SECURITIES CORPORATION
WELLS FARGO SECURITIES, LLC
c/o Credit Suisse First Boston LLC
Eleven Madison Avenue
New York, New York 10010-3629
Dear Ladies and Gentlemen:
Ferrellgas Escrow LLC, a Delaware limited liability company ("Escrow LLC"),
and Ferrellgas Finance Escrow Corporation, a Delaware corporation ("Escrow
Finance Corp. "), propose to issue and sell to Credit Suisse First Boston LLC,
Banc of America Securities LLC, ABN AMRO Incorporated, Banc One Capital Markets,
Inc., BNP Paribas Securities Corp., Piper Jaffray & Co., SG Cowen Securities
Corporation and Wells Fargo Securities, LLC (collectively, the "Initial
Purchasers"), upon the terms set forth in a purchase agreement dated April 14,
2004 (the "Purchase Agreement"), $250,000,000 in aggregate principal amount of
their 63/4% Senior Notes due 2014 (the "Initial Securities"). The Initial
Securities will be issued pursuant to an indenture dated as of the date hereof
(the "Indenture"), among Escrow LLC, Escrow Finance Corp., U.S. Bank National
Association, as trustee (the "Trustee"), and, on and after the Merger Date (as
defined below), Ferrellgas, L.P. a Delaware limited partnership (the "Company"),
and Ferrellgas Finance Corp., a Delaware corporation ("Finance Co."). "Issuers"
shall mean, prior to the Merger Date (as defined below), Escrow LLC and Escrow
Finance Corp., and on and after the Merger Date, the Company and Finance Co.
Capitalized terms not herein defined have meanings assigned to them in the
Purchase Agreement.
Pursuant to the Agreement and Plan of Merger (the "Acquisition Merger
Agreement") dated as of February 8, 2004, by and among FCI Trading Corp., a
Delaware corporation ("FCI"), Diesel Acquisition LLC, a Delaware limited
liability company and a wholly-owned subsidiary of FCI ("Diesel"), Ferrell
Companies, Inc., a Kansas corporation, and Blue Rhino Corporation, a Delaware
corporation ("Blue Rhino Corp."), Diesel will merge with and into Blue Rhino
Corp. with Blue Rhino Corp. being the surviving entity (the "Acquisition
Merger"). Pursuant to the Acquisition Merger Agreement, FCI has agreed to pay to
the then-former common stockholders of Blue Rhino Corp. $17.00 per share in
connection with the Acquisition Merger (the "Merger Consideration"). In order to
pay the Merger Consideration and the fees and expenses relating to the
Acquisition Merger, (a) Ferrellgas Partners, L.P. ("Ferrellgas Partners") (i)
issued, on April 14, 2004, approximately $163 million of its common units in a
public equity offering and (ii) will issue approximately $32.8 million of its
common units to certain members of Ferrellgas Partners' and Blue Rhino Corp.'s
management in several private equity offerings and (b) the Issuers will issue
the Offered Securities. The net proceeds of the offering of the Offered
Securities, together with additional funds such that the total initial deposit
described below shall equal 100% of the aggregate principal amount of the
Offered Securities, plus accrued and unpaid interest on the Offered Securities
to, but not including, August 5, 2004, will be deposited in an escrow account in
accordance with the terms and conditions contained in that certain escrow and
security agreement (the "Escrow and Security Agreement") dated as of the Closing
Date (as defined below), by and among Escrow LLC, Escrow Finance Corp., the
Trustee and LaSalle Bank, National Association ("LaSalle"), as escrow agent and
securities intermediary, pending the consummation of the Acquisition Merger.
Upon the consummation of the Acquisition Merger and the occurrence of
certain other conditions, it is expected that the funds deposited into the
escrow account pursuant to the Escrow and Security Agreement will be released to
the Issuers pursuant thereto. In accordance with the terms of the Acquisition
Merger Agreement, such funds, together with other funds sufficient to pay the
Merger Consideration, will be deposited into another escrow account pursuant to
the terms of an escrow agreement (the "Acquisition Escrow Agreement"), to be
dated as of or prior to the date of the consummation of the Acquisition Merger,
by and among FCI, Blue Rhino Corp. and LaSalle, as escrow agent. Pursuant to the
Acquisition Escrow Agreement, it is expected that all such funds will be
released to a paying agent for payment of the Merger Consideration
simultaneously with the effectiveness of the merger of Blue Rhino LLC with and
into the Company and the Escrow Mergers (as defined below) (such date, the
"Merger Date").
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Pursuant to the Contribution Agreement dated as of February 8, 2004, by and
among FCI, Ferrellgas, Inc., a Delaware corporation, Ferrellgas Partners and the
Company, FCI has agreed to convert (such conversion, the "Blue Rhino
Conversion") Blue Rhino Corp. into a limited liability company ("Blue Rhino
LLC"). Upon the Blue Rhino Conversion, FCI will contribute to Ferrellgas
Partners a portion of the membership interests in Blue Rhino LLC and Ferrellgas
Partners will assume FCI's obligations under the Acquisition Merger Agreement to
pay the Merger Consideration, together with specific other obligations. After
that contribution, Ferrellgas Partners will contribute to the Company its
membership interests in Blue Rhino LLC and the Company will assume Ferrellgas
Partners' obligations to pay the Merger Consideration, together with specific
other obligations. Blue Rhino LLC will then be merged with and into the Company
with the Company being the surviving entity. As consideration for FCI's net
contribution to Ferrellgas Partners, Ferrellgas Partners will issue to FCI
common units representing limited partner interests in Ferrellgas Partners.
On the Merger Date, Escrow LLC will merge with and into the Company with
the Company being the surviving entity and Escrow Finance Corp. will merge with
and into Finance Corp. with Finance Corp. being the surviving entity, each
pursuant to Section 253(a) of the Delaware General Corporation Law; and the
Company and Finance Co. will succeed to the obligations of Escrow LLC and Escrow
Finance Corp. under the Indenture, the Initial Securities and this Agreement.
As an inducement to the Initial Purchasers, the Issuers jointly and
severally agree with the Initial Purchasers, for the benefit of the holders of
the Initial Securities (including, without limitation, the Initial Purchasers),
the Exchange Securities (as defined below) and the Private Exchange Securities
(as defined below) (collectively, the "Holders"), as follows:
1. Registered Exchange Offer. The Issuers shall, at their own cost, prepare
and, not later than 140 days after (or if the 140th day is not a business day,
the first business day thereafter) the date of original issue of the Initial
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 of 1933, as amended
(the "Securities Act"), with respect to a proposed offer (the "Registered
Exchange Offer") to the Holders of Transfer Restricted Securities (as defined in
Section 6 hereof), who are not prohibited by any law or policy of the Commission
from participating in the Registered Exchange Offer, to issue and deliver to
such Holders, in exchange for the Initial Securities, a like aggregate principal
amount of debt securities (the "Exchange Securities") of the Issuers issued
under the Indenture and identical in all material respects to the Initial
Securities (except for the transfer restrictions relating to the Initial
Securities and the provisions relating to the matters described in Section 6
hereof) that would be registered under the Securities Act. The Issuers shall use
their reasonable best efforts to cause such Exchange Offer Registration
Statement to become effective under the Securities Act within 230 days (or if
the 230th day is not a business day, the first business day thereafter) after
the Issue Date of the Initial Securities and shall keep the Exchange Offer
Registration Statement effective for not less than 30 days (or longer, if
required by applicable law) after the date notice of the Registered Exchange
Offer is first mailed to the Holders (such period being called the "Exchange
Offer Registration Period").
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If the Issuers effect the Registered Exchange Offer, the Issuers will be
entitled to close the Registered Exchange Offer 30 days after the commencement
thereof provided that the Issuers have accepted all the Initial Securities
theretofore validly tendered in accordance with the terms of the Registered
Exchange Offer.
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Issuers shall as promptly as reasonably practicable
commence the Registered Exchange Offer, it being the objective of such
Registered Exchange Offer to enable each Holder of Transfer Restricted
Securities (as defined in Section 6(d) hereof) electing to exchange the Initial
Securities for Exchange Securities (assuming that such Holder is not an
affiliate of the Issuers within the meaning of the Securities Act, acquires the
Exchange Securities in the ordinary course of such Holder's business and has no
arrangements with any person to participate in the distribution of the Exchange
Securities and is not prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer) to trade such Exchange
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.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Issuers in writing that at the time of the
consummation of the Registered Exchange Offer, (i) any Exchange Securities
received by such Holder will be acquired in the ordinary course of its business,
(ii) such Holder will have no arrangements or understanding with any person to
participate in the distribution of the Securities or the Exchange Securities
within the meaning of the Securities Act, (iii) such Holder is not an
"affiliate," as defined in Rule 405 of the Securities Act, of the Issuers or if
it is an affiliate, such Holder will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable, (iv) if
such Holder is not a broker-dealer, that it is not engaged in, and does not
intend to engage in, the distribution of the Exchange Securities and (v) if such
Holder is a broker-dealer, that it will receive Exchange Securities for its own
account in exchange for Initial Securities that were acquired as a result of
market-making activities or other trading activities and that it will be
required to acknowledge that it will deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of such
Exchange Securities.
The Issuers and the Initial Purchasers acknowledge that, pursuant to
current interpretations by the Commission's staff of Section 5 of the Securities
Act, in the absence of an applicable exemption therefrom, (i) each Holder which
is a broker-dealer electing to exchange Initial Securities acquired for its own
account as a result of market making activities or other trading activities, for
Exchange Securities (an "Exchanging Dealer"), may be deemed to be an
"underwriter" within the meaning of the Securities Act and therefore will be
required to deliver a prospectus containing the information set forth in (a)
Annex A hereto (on the cover of the prospectus), (b) Annex B hereto (in the
"Exchange Offer Procedures" and the "Purpose of the Exchange Offer" sections of
the prospectus), and (c) Annex C hereto (in the "Plan of Distribution" section
of the prospectus) in connection with a sale of any such Exchange Securities
received by such Exchanging Dealer pursuant to the Registered Exchange Offer and
(ii) an Initial Purchaser that elects to sell Exchange Securities acquired in
exchange for Securities constituting any portion of an unsold allotment is
required to deliver a prospectus containing the information required by Items
507 or 508 of Regulation S-K under the Securities Act, as applicable, in
connection with such sale.
4
The Issuers 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 lawfully
delivered 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 Securities; provided, however, that
(i) in the case where such prospectus and any amendment or supplement thereto
must be delivered by an Exchanging Dealer or an Initial Purchaser, such period
shall be the lesser of 180 days and the date on which all Exchanging Dealers and
the Initial Purchasers have sold all Exchange Securities held by them (unless
such period is extended pursuant to Section 3(j) below) and (ii) the Issuers
shall make such prospectus and any amendment or supplement thereto, available to
any broker-dealer for use in connection with any resale of any Exchange
Securities for a period of not less than 90 days after the consummation of the
Registered Exchange Offer.
If, upon consummation of the Registered Exchange Offer, any Initial
Purchaser holds Initial Securities acquired by it as part of its initial
distribution, the Issuers, simultaneously with the delivery of the Exchange
Securities pursuant to the Registered Exchange Offer, shall issue and deliver to
such Initial Purchaser upon the written request of such Initial Purchaser, in
exchange (the "Private Exchange") for the Initial Securities held by such
Initial Purchaser, a like principal amount of debt securities of the Issuers
issued under the Indenture and identical in all material respects (including the
existence of restrictions on transfer under the Securities Act and the
securities laws of the several states of the United States, but excluding
provisions relating to the matters described in Section 6 hereof) to the Initial
Securities (the "Private Exchange Securities"). The Initial Securities, the
Exchange Securities and the Private Exchange Securities are herein collectively
called the "Securities." The Private Exchange Securities shall bear the same
CUSIP as the Exchange Securities.
In connection with the Registered Exchange Offer, the Issuers shall:
(a) mail, or cause to be mailed, to each Holder entitled to
participate in the Registered Exchange Offer 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 notice thereof is
first mailed to such Holders;
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(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,
which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior
to the close of business, New York time, on the last business day on which
the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all material respects with all applicable
laws.
As soon as practicable after the close of the Registered Exchange Offer or
the Private Exchange, as the case may be, the Issuers shall:
(x) accept for exchange all the Securities validly tendered and not
validly withdrawn pursuant to the Registered Exchange Offer and the Private
Exchange;
(y) deliver, or caused to be delivered, to the Trustee for
cancellation all the Initial Securities so accepted for exchange; and
(z) use reasonable best efforts to cause the Trustee to authenticate
and deliver promptly to each Holder of the Initial Securities, Exchange
Securities or Private Exchange Securities, as the case may be, equal in
principal amount to the Initial Securities of such Holder so accepted for
exchange.
The Indenture will provide that the Exchange Securities will not be subject
to the transfer restrictions set forth in the Indenture and that all the
Securities will vote and consent together on all matters as one class and that
none of the Securities will have the right to vote or consent as a class
separate from one another 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
Initial Securities surrendered in exchange therefor or, if no interest has been
paid on the Initial Securities, from the date of original issue of the Initial
Securities.
Notwithstanding any other provisions hereof, the Issuers 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
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 include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
6
2. Shelf Registration. If, (i) because of any change in law or in
applicable interpretations thereof by the staff of the Commission, the Issuers
are not permitted to effect a Registered Exchange Offer, as contemplated by
Section 1 hereof, (ii) the Registered Exchange Offer is not consummated within
260 days of the Issue Date, (iii) any Initial Purchaser notifies the Issuers
with respect to the Initial Securities (or the Private Exchange Securities) not
eligible to be exchanged for Exchange Securities in the Registered Exchange
Offer and held by it within 30 days following consummation of the Registered
Exchange Offer or (iv) any Holder notifies the Issuers within 30 days following
consummation of the Registered Exchange Offer that it is prohibited by law or
the Commission's policy from participating in the Registered Exchange Offer or
may not resell the Exchange Securities acquired by it in the Registered Exchange
Offer to the public without delivering a prospectus, and the prospectus
contained in the Exchange Offer Registration Statement is not appropriate or not
available for such resales, the Issuers shall take the following actions:
(a) The Issuers shall, at their cost, as promptly as reasonably
practicable after so required or requested pursuant to this Section 2 file
with the Commission and thereafter shall use their reasonable best efforts
to cause to be declared effective (i) in the case of Section 2(i) above, on
or prior to the 260th day after the date of the Indenture and (ii) in the
case of Section 2(ii), 2(iii) or 2(iv) above, on or prior to the 90th day
after the Shelf Filing Date (as defined in Section 6(iv)) (the "Shelf
Registration Statement" and, together with the Exchange Offer Registration
Statement, a "Registration Statement") on an appropriate form under the
Securities Act relating to the offer and sale of the Transfer Restricted
Securities (as defined in Section 6 hereof) by the Holders thereof from
time to time in accordance with the methods of distribution set forth in
the Shelf Registration Statement and Rule 415 under the Securities Act
(hereinafter, the "Shelf Registration"); provided, however, that no Holder
(other than an Initial Purchaser) shall be entitled to have the Securities
held by it covered by such Shelf Registration Statement unless such Holder
agrees in writing to be bound by all the provisions of this Agreement
applicable to such Holder.
(b) The Issuers shall use their reasonable best efforts to keep the
Shelf Registration Statement continuously effective in order to permit the
prospectus included therein to be lawfully delivered by the Holders of the
relevant Securities, until the earliest of (a) the time when the Securities
covered by the Shelf Registration Statement can be sold pursuant to Rule
144 under the Securities Act, or any successor rule thereof without any
limitations under clauses (c),(e),(f) and (h) of Rule 144, (b) two years
from the date of the Indenture and (or for a longer period if extended
pursuant to Section 3(j) below) and (c) the date on which all Securities
registered thereunder are disposed of in accordance therewith. Either or
both of the Issuers shall be deemed not to have used its or their
reasonable best efforts to keep the Shelf Registration Statement effective
during the requisite period if it or they voluntarily take(s) any action
that would result in Holders of Securities covered thereby not being able
to offer and sell such Securities during that period, unless such action is
required by applicable law.
7
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Issuers shall cause the Shelf Registration Statement and the
related prospectus and any amendment or supplement thereto, as of the
effective date of the Shelf Registration Statement, amendment or supplement
(i) to comply in all material respects with the applicable requirements of
the Securities Act and the rules and regulations of the Commission and (ii)
not to contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
3. Registration Procedures. In connection with any Shelf Registration
contemplated by Section 2 hereof and, to the extent applicable, any Registered
Exchange Offer contemplated by Section 1 hereof, the following provisions shall
apply:
(a) The Issuers 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, in the event that an Initial Purchaser
(with respect to any portion of an unsold allotment from the original
offering) is participating in the Registered Exchange Offer or the Shelf
Registration Statement, the Issuers shall use their reasonable best efforts
to reflect in each such document, when so filed with the Commission, such
comments as such Initial Purchaser reasonably may propose upon advice of
counsel (it being understood that any final determination shall be made by
the Issuers in their reasonable discretion); (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; (iii) if
requested by an Initial Purchaser, include the information required by
Items 507 or 508 of Regulation S-K under the Securities Act, as applicable,
in the prospectus forming a part of the Exchange Offer Registration
Statement; (iv) include within the prospectus contained in the Exchange
Offer Registration Statement a section entitled "Plan of Distribution,"
reasonably acceptable to the Initial Purchasers, which shall contain a
summary statement of the positions taken or policies made by the staff of
the Commission with respect to the potential "underwriter" status of any
broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under
the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
Exchange Securities received by such broker-dealer in the Registered
Exchange Offer (a "Participating Broker-Dealer"), whether such positions or
policies have been publicly disseminated by the staff of the Commission or
such positions or policies, in the reasonable judgment of the Initial
Purchasers based upon advice of counsel (which may be in-house counsel),
represent the prevailing views of the staff of the Commission; and (v) in
the case of a Shelf Registration Statement, include the names of the
Holders, who propose to sell Securities pursuant to the Shelf Registration
Statement, as selling securityholders.
8
(b) The Issuers shall give written notice to the Initial Purchasers,
the Holders of the Securities and any Participating Broker-Dealer from whom
either of the Issuers has received prior written notice that it will be a
Participating Broker-Dealer in the Registered Exchange Offer (which notice
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 the Registration Statement or any amendment thereto has
been filed with the Commission and when the Registration Statement or
any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or
supplements to the 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 the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by either of the Issuers or their legal
counsel of any notification with respect to the suspension of the
qualification of the 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 Issuers to
make changes in the Registration Statement or the prospectus in order
that the Registration Statement or the prospectus do not contain an
untrue statement of a material fact nor omit to state a material fact
required to be stated therein or necessary to make the statements
therein (in the case of the prospectus, in light of the circumstances
under which they were made) not misleading.
(c) The Issuers shall use their reasonable best efforts to obtain the
withdrawal at the earliest possible time, of any order suspending the
effectiveness of the Registration Statement.
(d) The Issuers shall furnish to each Holder of Securities included
within the coverage of the Shelf Registration, without charge, at least one
copy of the Shelf Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the Holder
so requests in writing, all exhibits thereto (including those, if any,
incorporated by reference).
9
(e) The Issuers shall deliver to each Exchanging Dealer and each
Initial Purchaser, and to any other Holder who so requests, without charge,
at least one copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if any Initial Purchaser or any such Holder requests, all
exhibits thereto (including those incorporated by reference).
(f) The Issuers shall, during the Shelf Registration Period, deliver
to each Holder of Securities included within the coverage of the Shelf
Registration, without charge, as many copies of the prospectus (including
each preliminary prospectus) included in the Shelf Registration Statement
and any amendment or supplement thereto as such person may reasonably
request. The Issuers consent, subject to the provisions of this Agreement,
to the use of the prospectus or any amendment or supplement thereto by each
of the selling Holders of the Securities in connection with the offering
and sale of the Securities covered by the prospectus, or any amendment or
supplement thereto, included in the Shelf Registration Statement.
(g) The Issuers shall deliver to each Initial Purchaser, any
Exchanging Dealer, any Participating Broker-Dealer and such other persons
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 and any amendment or supplement
thereto as such persons may reasonably request. The Issuers consent,
subject to the provisions of this Agreement, to the use of the prospectus
or any amendment or supplement thereto by any Initial Purchaser, if
necessary, any Participating Broker-Dealer and such other persons required
to deliver a prospectus following the Registered Exchange Offer in
connection with the offering and sale of the Exchange Securities covered by
the prospectus, or any amendment or supplement thereto, included in such
Exchange Offer Registration Statement.
(h) Prior to any public offering of the Securities, pursuant to any
Registration Statement, the Issuers shall register or qualify or cooperate
with the Holders of the Securities included therein and their respective
counsel in connection with the registration or qualification of the
Securities for offer and sale under the securities or "blue sky" laws of
such states of the United States as any Holder of the Securities 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
Securities covered by such Registration Statement; provided, however, that
neither of the Issuers shall be required to (i) qualify generally to do
business in any jurisdiction where it is not then so qualified or (ii) take
any action which would subject it to general service of process or to
taxation in any jurisdiction where it is not then so subject.
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(i) The Issuers shall cooperate with the Holders of the Securities to
facilitate the timely preparation and delivery of certificates representing
the 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 may request a reasonable period of time prior to sales
of the Securities pursuant to such Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 3(b) above during the period for which the Issuers
are required to maintain an effective Registration Statement, the Issuers
shall use their reasonable best efforts to promptly prepare and file a
post-effective amendment to the Registration Statement or a supplement to
the related prospectus and any other required document so that, as
thereafter delivered to Holders of the Securities or purchasers of
Securities, the prospectus will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. If the Issuers
notify the Initial Purchasers, the Holders of the Securities and any known
Participating Broker-Dealer in accordance with paragraphs (ii) through (v)
of Section 3(b) above to suspend the use of the prospectus until the
requisite changes to the prospectus have been made, then the Initial
Purchasers, the Holders of the Securities and any such Participating
Broker-Dealers shall suspend use of such prospectus, and the period of
effectiveness of the Shelf Registration Statement provided for in Section
2(b) above and the Exchange Offer Registration Statement provided for in
Section 1 above shall each be extended by the number of days from and
including the date of the giving of such notice to and including the date
when the Initial Purchasers, the Holders of the Securities and any known
Participating Broker-Dealer shall have received such amended or
supplemented prospectus pursuant to this Section 3(j).
(k) Not later than the effective date of the applicable Registration
Statement, the Issuers will provide a CUSIP number for the Exchange
Securities or the Private Exchange Securities, as the case may be, and
provide the applicable trustee with printed certificates for the Exchange
Securities or the Private Exchange Securities, as the case may be, in a
form eligible for deposit with The Depository Trust Company.
(l) The Issuers will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the
Registered Exchange Offer or the Shelf Registration and will make generally
available to their security holders (or otherwise provide in accordance
with Section 11(a) of the Securities Act) an earnings statement satisfying
the provisions of Section 11(a) of the Securities Act in accordance with
Rule 158 thereunder (or any similar rule promulgated under the Securities
Act) or otherwise.
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(m) The Issuers shall use their reasonable best efforts to cause the
Indenture to be qualified under the Trust Indenture Act of 1939, as
amended, in a timely manner and containing such changes, if any, as shall
be necessary for such qualification. In the event that such qualification
would require the appointment of a new trustee under the Indenture, the
Issuers shall use their reasonable best efforts to appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.
(n) The Issuers may require each Holder of Securities to be sold
pursuant to the Shelf Registration Statement to furnish to the Issuers such
information regarding the Holder and the distribution of the Securities as
the Issuers may from time to time reasonably require for inclusion in the
Shelf Registration Statement, and the Issuers may exclude from such
registration the Securities of any Holder that fails to furnish such
information within a reasonable time after receiving such request.
(o) The Issuers shall use their reasonable best efforts to enter into
such customary agreements (including, if reasonably requested, an
underwriting agreement in customary form) and take all such other
reasonable action, if any, as the Holders of a majority in aggregate
principal amount of the Securities covered thereby shall reasonably request
in order to facilitate the disposition of the Securities pursuant to any
Shelf Registration.
(p) In the case of any Shelf Registration, the Issuers shall (i) make
reasonably available for inspection by the Holders of the Securities, any
underwriter participating in any disposition pursuant to the Shelf
Registration Statement and any attorney, accountant or other agent retained
by the Holders of the Securities or any such underwriter all relevant
financial and other records, pertinent corporate documents and properties
of the Issuers and (ii) cause the Issuers' officers, directors, employees,
accountants and auditors to supply all relevant information reasonably
requested by the Holders of the Securities or any such underwriter,
attorney, accountant or agent in connection with the Shelf Registration
Statement, in each case, as shall be reasonably necessary to enable such
persons, to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act; provided, however, that the foregoing
inspection and information gathering shall be coordinated on behalf of the
Initial Purchasers by the Issuers and on behalf of the other parties, by
one counsel designated by and on behalf of such other parties as described
in Section 4 hereof.
(q) In the case of any Shelf Registration, the Issuers, if requested
by any the Holders of a majority in aggregate principal amount of the
Securities covered covered thereby, shall use their reasonable best efforts
to cause (i) their counsel to deliver an opinion and updates thereof
relating to the Securities in customary form addressed to such Holders and
the managing underwriters, if any, thereof and dated, in the case of the
initial opinion, the effective date of such Shelf Registration Statement
12
(it being agreed that the matters to be covered by such opinion shall
include the due incorporation and good standing of each of the Issuers; the
qualification of each of the Issuers to transact business as foreign
corporations; the due authorization, execution and delivery of the relevant
agreement of the type referred to in Section 3(o) hereof; the due
authorization, execution, authentication and issuance, and the validity and
enforceability, of the applicable Securities; to the knowledge of such
counsel, the absence of material legal or governmental proceedings
involving the Issuers; the absence of material governmental approvals
required to be obtained in connection with the Shelf Registration
Statement, the offering and sale of the applicable Securities, or any
agreement of the type referred to in Section 3(o) hereof; and the material
compliance as to form of such Shelf Registration Statement and any
documents incorporated by reference therein and of the Indenture with the
requirements of the Securities Act and the Trust Indenture Act,
respectively). Such counsel shall also advise that they have participated
in conferences with officers and other representatives of the Issuers and
representatives of the independent public accountants of the Company and
its consolidated subsidiaries and representatives and counsel of the
Initial Purchasers at which the contents of the Shelf Registration
Statement and the prospectus included therein were discussed and, based on
such participation and review, although such counsel is not passing upon
and does not assume responsibility for the accuracy, completeness or
fairness of the statements contained in the Shelf Registration Statement
and the prospectus included therein and such counsel has made no
independent check or verification thereof, on the basis of the foregoing,
no facts have come to such counsel's attention that have caused them to
believe that as of the date of the opinion and as of the effective date of
the Shelf Registration Statement or most recent post-effective amendment
thereto, as the case may be, such Shelf Registration Statement and the
prospectus included therein, as then amended or supplemented, and any
documents incorporated by reference therein, contained an untrue statement
of a material fact or the omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading (in the case of any such documents, in the light of the
circumstances existing at the time that such documents were filed with the
Commission under the Exchange Act); (ii) their officers to execute and
deliver all customary documents and certificates and updates thereof
requested by any underwriters of the applicable Securities; and (iii) their
independent public accountants and the independent public accountants with
respect to any other entity for which financial information is provided in
the Shelf Registration Statement to provide to the selling Holders of the
applicable Securities and any underwriter therefor a comfort letter in
customary form and covering matters of the type customarily covered in
comfort letters in connection with primary underwritten offerings, subject
to receipt of appropriate documentation as contemplated, and only if
permitted, by Statement of Auditing Standards No. 72.
13
(r) If a Registered Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Initial Securities by Holders to the
Issuers (or to such other Person as directed by the Issuers) in exchange
for the Exchange Securities or the Private Exchange Securities, as the case
may be, the Issuers shall mark, or caused to be marked, on the Initial
Securities so exchanged that such Initial Securities are being canceled in
exchange for the Exchange Securities or the Private Exchange Securities, as
the case may be; in no event shall the Initial Securities be marked as paid
or otherwise satisfied.
(t) The Issuers will use their reasonable best efforts to (a) if the
Initial Securities have been rated prior to the initial sale of such
Initial Securities, confirm such ratings will apply to the Securities
covered by a Registration Statement, or (b) if the Initial Securities were
not previously rated, cause the Securities covered by a Registration
Statement to be rated with the appropriate rating agencies, if so requested
by Holders of a majority in aggregate principal amount of Securities
covered by such Registration Statement, or by the managing underwriters, if
any.
(u) In the event that any broker-dealer registered under the Exchange
Act shall underwrite any Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the distribution"
(within the meaning of the Conduct Rules (the "Rules") of the National
Association of Securities Dealers, Inc. ("NASD")) thereof, whether as a
Holder of such Securities or as an underwriter, a placement or sales agent
or a broker or dealer in respect thereof, or otherwise, the Issuers will
assist such broker-dealer in complying with the requirements of such Rules,
including, without limitation, by (i) if such Rules, including Rule 2720,
shall so require, engaging a "qualified independent underwriter" (as
defined in Rule 2720) to participate in the preparation of the Registration
Statement relating to such Securities, to exercise usual standards of due
diligence in respect thereto and, if any portion of the offering
contemplated by such Registration Statement is an underwritten offering or
is made through a placement or sales agent, to recommend the yield of such
Securities, (ii) indemnifying any such qualified independent underwriter to
the extent of the indemnification of underwriters provided in Section 5
hereof and (iii) providing such information to such broker-dealer as may be
required in order for such broker-dealer to comply with the requirements of
the Rules.
(v) The Issuers shall use their reasonable best efforts to take all
other steps necessary to effect the registration of the Securities covered
by a Registration Statement contemplated hereby.
4. Registration Expenses. The Issuers, jointly and severally, shall bear
all fees and expenses incurred in connection with the performance of their
obligations under Sections 1 through 3 hereof (but excluding the fees and
expenses of counsel to the Initial Purchasers incurred in connection with the
Registered Exchange Offer), whether or not the Registered Exchange Offer or a
Shelf Registration is filed or becomes effective, and, in the event of a Shelf
Registration, shall reimburse the Holders of the Securities covered thereby for
up to $25,000,000 of the reasonable fees and disbursements of one firm of
counsel designated by the Holders of a majority in principal amount of the
Initial Securities covered thereby to act as counsel for the Holders of the
Initial Securities in connection therewith.
14
5. Indemnification. (a) Each of the Issuers, jointly and severally, agrees
to indemnify and hold harmless each Holder of the Securities, any Participating
Broker-Dealer and each person, if any, who controls such Holder or such
Participating Broker-Dealer within the meaning of the Securities Act or the
Exchange Act (each Holder, any Participating Broker-Dealer and such controlling
persons are referred to collectively as the "Indemnified Parties") from and
against any losses, claims, damages or liabilities, joint or several, or any
actions in respect thereof (including, but not limited to, any losses, claims,
damages, liabilities or actions relating to purchases and sales of the
Securities) to which each Indemnified Party may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration, or arise out
of, or are based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse, as incurred, the Indemnified
Parties for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action in respect thereof; provided, however, that (i) the Issuers
shall not be liable in any such case to the extent that such loss, claim, damage
or liability arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in a Registration
Statement or prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to a Shelf Registration in reliance upon and in
conformity with written information pertaining to such Holder and furnished to
the Issuers by or on behalf of such Holder specifically for inclusion therein
and (ii) with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus relating to a Shelf
Registration Statement, the indemnity agreement contained in this subsection (a)
shall not inure to the benefit of any Holder or Participating Broker-Dealer from
whom the person asserting any such losses, claims, damages or liabilities
purchased the Securities concerned, to the extent that a prospectus relating to
such Securities was required to be delivered by such Holder or Participating
Broker-Dealer under the Securities Act in connection with such purchase and any
such loss, claim, damage or liability of such Holder or Participating
Broker-Dealer results from the fact that there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Securities
to such person, a copy of the final prospectus if the Issuers had previously
furnished copies thereof to such Holder or Participating Broker-Dealer; provided
further, however, that this indemnity agreement will be in addition to any
liability which the Issuers may otherwise have to such Indemnified Party. Each
of the Issuers, jointly and severally, shall also indemnify underwriters, their
officers and directors and each person who controls such underwriters within the
meaning of the Securities Act or the Exchange Act to the same extent as provided
above with respect to the indemnification of the Holders of the Securities if
requested by such Holders.
15
(b) Each Indemnified Party, severally and not jointly, agrees to
indemnify and hold harmless each of the Issuers and each person, if any,
who controls either such Issuer within the meaning of the Securities Act or
the Exchange Act from and against any losses, claims, damages or
liabilities joint and several, or any actions in respect thereof,
including, but not limited to, any losses, claims, damages, liabilities or
actions relating to purchases and sales of Securities, to which such Issuer
or any such controlling person may become subject under the Securities Act,
the Exchange Act or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in a Registration
Statement or prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to a Shelf Registration, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact necessary to make the statements therein not misleading, but in each
case only to the extent that the untrue statement or omission or alleged
untrue statement or omission was made in reliance upon and in conformity
with written information pertaining to such Indemnified Party and furnished
to the Issuers by or on behalf of such Indemnified Party specifically for
inclusion therein; and, subject to the limitation set forth immediately
preceding this clause, shall reimburse, as incurred, such Issuer for any
legal or other expenses reasonably incurred by such Issuer or any such
controlling person in connection with investigating or defending any loss,
claim, damage, liability or action in respect thereof. This indemnity
agreement will be in addition to any liability which such Indemnified Party
may otherwise have to the Issuers or any of their controlling persons.
(c) Promptly after receipt by an indemnified party under this Section
5 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under this
Section 5, notify each indemnifying party of the commencement thereof; but
the failure to notify the indemnifying party shall not relieve the
indemnifying party from any liability that it may have under subsection (a)
or (b) above 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 that it may have to an indemnified
party otherwise than under subsection (a) or (b) above. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof the indemnifying party will not be liable to such indemnified party
under this Section 5 for any legal or other expenses, other than reasonable
costs of investigation, subsequently incurred by such indemnified party in
connection with the defense thereof. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement
of any pending or threatened action 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 (i) includes an
unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action, and (ii) does not
include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
16
(d) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof)
referred to in subsection (a) or (b) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party on the other
from the exchange of the Securities, pursuant to the Registered Exchange
Offer, or (ii) if the allocation provided by the foregoing clause (i) is
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the indemnifying party or parties on the one
hand and the indemnified party on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties 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 either
of the Issuers on the one hand or such Holder or such other indemnified
party, as the case may be, on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of
this subsection (d). Notwithstanding any other provision of this Section
5(d), the Holders of the Securities shall not be required to contribute any
amount in excess of the amount by which the net proceeds received by such
Holders from the sale of the Securities pursuant to a Registration
Statement exceeds the amount of damages which such Holders have otherwise
been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this paragraph (d),
each person, if any, who controls such indemnified party within the meaning
of the Securities Act or the Exchange Act shall have the same rights to
contribution as such indemnified party and each person, if any, who
controls either of the Issuers within the meaning of the Securities Act or
the Exchange Act shall have the same rights to contribution as such Issuer.
(e) The agreements contained in this Section 5 shall survive the sale
of the Securities pursuant to a Registration Statement and shall remain in
full force and effect, regardless of any termination or cancellation of
this Agreement or any investigation made by or on behalf of any indemnified
party.
17
6. Additional Interest Under Certain Circumstances. (a) Additional interest
(the "Additional Interest") with respect to the Initial Securities shall be
assessed as follows if any of the following events occur (each such event in
clauses (i) through (vi) below a "Registration Default"):
(i) if the Issuers fail to file an Exchange Offer Registration
Statement with the Commission on or prior to the 140th day after the
date of the Indenture;
(ii) if the Exchange Offer Registration Statement is not declared
effective the Commission on or prior to the 230th day after the date
of the Indenture or, if obligated to file a Shelf Registration
Statement pursuant to Section 2(i) above, a Shelf Registration
Statement is not declared effective by the Commission on or prior to
the 260th day after the date of the Indenture;
(iii) if the Exchange Offer is not consummated on or before the
30th day after the Exchange Offer Registration Statement is declared
effective;
(iv) if obligated to file the Shelf Registration Statement
pursuant to Section 2(ii), 2(iii) or 2(iv) above, the Issuers fail to
file the Shelf Registration Statement with the Commission on or prior
to the 30th day (the "Shelf Filing Date") after the date on which the
obligation to file a Shelf Registration Statement arises;
(v) if obligated to file a Shelf Registration Statement pursuant
to Section 2(ii), 2(iii) or 2(iv) above, the Shelf Registration
Statement is not declared effective on or prior to the 90th day after
the Shelf Filing Date; or
(vi) if after either the Exchange Offer Registration Statement or
the Shelf Registration Statement is declared effective (A) such
Registration Statement thereafter ceases to be effective; or (B) such
Registration Statement or the related prospectus ceases to be usable
(except as permitted in Section 6(b) below) in connection with resales
of Transfer Restricted Securities during the periods specified herein
because either (1) any event occurs as a result of which the related
prospectus forming part of such Registration Statement would include
any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or (2) it
shall be necessary to amend such Registration Statement or supplement
the related prospectus, to comply with the Securities Act or the
Exchange Act or the respective rules thereunder.
Additional Interest shall accrue on the Initial Securities over and above
the interest set forth in the title of the Securities from and including the
date on which any such Registration Default shall occur to but excluding the
date on which all such Registration Defaults have been cured, at a rate of 0.25%
per annum for the first 90-day period immediately following the occurrence of a
Registration Default, and such rate will increase by an additional 0.25% per
annum with respect to each subsequent 90-day period until all Registration
Defaults have been cured, up to a maximum additional interest rate of 1.0% per
annum.
18
(b) A Registration Default referred to in Section 6(a)(vi)(B) hereof
shall be deemed not to have occurred and be continuing in relation to a
Shelf Registration Statement or the related prospectus if (i) such
Registration Default has occurred solely as a result of (x) the filing of a
post-effective amendment to such Shelf Registration Statement to
incorporate annual audited financial information with respect to the
Issuers where such post-effective amendment is not yet effective and needs
to be declared effective to permit Holders to use the related prospectus or
(y) other material events, with respect to either of the Issuers that would
need to be described in such Shelf Registration Statement or the related
prospectus and (ii) in the case of clause (y), the Issuers are proceeding
promptly and in good faith to amend or supplement such Shelf Registration
Statement and related prospectus to describe such events; provided,
however, that in any case if such Registration Default occurs for a
continuous period in excess of 30 days, Additional Interest shall be
payable in accordance with the above paragraph from the day such
Registration Default occurs until such Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to clauses (i)
through (vi) of Section 6(a) above will be payable in cash on the regular
interest payment dates with respect to the Initial Securities. The amount
of Additional Interest will be determined by multiplying the applicable
Additional Interest rate by the principal amount of the Initial Securities,
multiplied by a fraction, the numerator of which is the number of days such
Additional Interest rate was applicable during such period (determined on
the basis of a 360-day year comprised of twelve 30-day months), and the
denominator of which is 360.
(d) "Transfer Restricted Securities" means each Security until (i) the
date on which such Transfer Restricted Security has been exchanged by a
person other than a broker-dealer for a freely transferable Exchange
Security in the Registered Exchange Offer, (ii) following the exchange by a
broker-dealer in the Registered Exchange Offer of an Initial Security for
an Exchange Note, the date on which such Exchange 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, (iii) the date on which such Initial Security has
been effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement or (iv) the date on which
such Initial Securities 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.
8. Underwritten Registrations. If any of the Transfer Restricted Securities
covered by any Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
administer the offering ("Managing Underwriters") will be selected by the
Holders of a majority in aggregate principal amount of such Transfer Restricted
Securities to be included in such offering.
19
No person may participate in any underwritten registration hereunder unless
such person (i) agrees to sell such person's Transfer Restricted 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.
9. 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, except by the Issuers and the
written consent of the Holders of a majority in principal amount of the
Securities affected by such amendment, modification, supplement, waiver or
consents.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class
mail, facsimile transmission, or air courier which guarantees overnight
delivery:
(1) if to a Holder of the Securities, at the most current address
given by such Holder to the Issuers.
(2) if to the Initial Purchasers;
Credit Suisse First Boston LLC
Eleven Madison Avenue
New York, NY 10010-3629
Fax No.: (212) 325-8278
Attention: Transactions Advisory Group
with a copy to:
Latham & Watkins LLP
885 Third Avenue, Suite 1000
New York, NY 10022
Fax No.: (212) 751-4864
Attention: Peter M. Labonski
(3) if to the Issuers, at the following address:
Ferrellgas, L.P.
One Liberty Plaza
Liberty, MO 64068
Fax No.: (816) 792-6979
Attention: Kevin T. Kelly
20
with a copy to:
Mayer, Brown, Rowe & Maw LLP
700 Louisiana Street, Suite 3600
Houston, TX 77002
Fax No.: (713) 632-1825
Attention: David L. Ronn
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
(c) No Inconsistent Agreements. None of Escrow LLC, Escrow Finance
Corp., the Company or Finance Co. has, as of the date hereof, entered into,
nor shall it, on or after the date hereof, enter into, any agreement with
respect to its securities that is inconsistent with the rights granted to
the Holders herein or otherwise conflicts with the provisions hereof.
(d) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties
hereto, the Holders and the Participating Broker-Dealers; provided,
however, that nothing herein shall be deemed to permit any transfer of
Securities in violation of this Agreement, the Indenture or applicable law
or regulation. In the event that any transferee of any Holder acquires
Securities in any manner, whether by gift, bequest, purchase, operation of
law or otherwise, such transferee shall, without any further writing or
action of any kind, be deemed a beneficiary hereof for all purposes and
such Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Securities such transferee shall
be entitled to receive the benefits of, and be conclusively deemed to have
agreed to be bound by all of the applicable terms and provisions of this
Agreement. If the Issuers shall so request, any such successor, assign or
transferee shall agree in writing to acquire and hold the Securities
subject to all of the applicable terms hereof.
(e) 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.
(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 WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
21
(h) Severability. If 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.
(i) Securities Held by the Issuers. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities is
required hereunder, Securities held by the Issuers or their affiliates
(other than subsequent Holders of Securities if such subsequent Holders are
deemed to be affiliates solely by reason of their holdings of such
Securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
[Signature pages follow]
22
If the foregoing is in accordance with the Purchasers' understanding
of our agreement, kindly sign and return to us one of the counterparts
hereof, whereupon it will become a binding agreement among Escrow LLC,
Escrow Corp., the Company, Finance Corp. and the several Purchasers, in
accordance with its terms.
Very truly yours,
FERRELLGAS ESCROW LLC
By: Ferrellgas, L.P., its sole member
By: Ferrellgas, Inc., its general partner
By: /s/ Kevin T. Kelly
-----------------------------------------
Name: Kevin T. Kelly
Title: Senior Vice President and
Chief Financial Officer
FERRELLGAS FINANCE ESCROW CORPORATION
By: /s/ Kevin T. Kelly
-----------------------------------------
Name: Kevin T. Kelly
Title: Senior Vice President and
Chief Financial Officer
On and after the Merger
Date, FERRELLGAS, L.P.
By: Ferrellgas, Inc., its general partner
By: /s/ Kevin T. Kelly
-----------------------------------------
Name: Kevin T. Kelly
Title: Senior Vice President and
Chief Financial Officer
23
On and after the Merger Date,
FERRELLGAS FINANCE CORP.
By: /s/ Kevin T. Kelly
-----------------------------------------
Name: Kevin T. Kelly
Title: Senior Vice President and
Chief Financial Officer
24
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON LLC
BANC OF AMERICA SECURITIES LLC
ABN AMRO INCORPORATED
BANC ONE CAPITAL MARKETS, INC.
BNP PARIBAS SECURITIES CORP.
PIPER JAFFRAY & CO.
SG COWEN SECURITIES CORPORATION
WELLS FARGO SECURITIES, LLC
By: CREDIT SUISSE FIRST BOSTON LLC
By:/s/ Marc Warm
____________________________
Name: Marc Warm
Title: Director
25
ANNEX A
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Securities. The Letter of Transmittal states that by so
acknowledging and by delivering such 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 Securities
received in exchange for Initial Securities where such Initial Securities were
acquired by such broker-dealer as a result of market-making activities or other
trading activities. The Issuers 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."
26
ANNEX B
Each broker-dealer that receives Exchange Securities for its own account in
exchange for Securities, where such Initial 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 meeting the
requirements of the Securities Act in connection with any resale of such
Exchange Securities. See "Plan of Distribution."
27
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange 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 Securities received in exchange for Initial Securities
where such Initial Securities were acquired as a result of market-making
activities or other trading activities. The Issuers 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 , 200 , all dealers effecting
transactions in the Exchange Securities may be required to deliver a
prospectus.(1)
The Issuers will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers for
their own account pursuant to the 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 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 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
Securities. Any broker-dealer that resells Exchange Securities that were
received by it for its own account pursuant to the Exchange Offer and any broker
or dealer that participates in a distribution of such Exchange Securities may be
deemed to be an "underwriter" within the meaning of the Securities Act and any
profit on any such resale of Exchange 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 Issuers will
promptly as reasonably practicable 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 Issuers have agreed to
pay all expenses incident to the Exchange Offer (including the expenses of one
counsel for the Holders of the Securities) other than commissions or concessions
of any brokers or dealers and will indemnify the Holders of the Securities
(including any broker-dealers) against certain liabilities, including
liabilities under the Securities Act.
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1 In addition, the legend required by Item 502(e) of Regulation S-K will appear
on the back cover page of the Exchange Offer prospectus.
28
ANNEX D
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: ___________________________________________
Address: ___________________________________________
___________________________________________
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
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Initial Securities that were
acquired as a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of such Exchange Securities;
however, by so acknowledging and by delivering such a prospectus, the
undersigned will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
2