EXHIBIT 4.3
A/B EXCHANGE
REGISTRATION RIGHTS AGREEMENT
Dated as of May 17, 2002
by and among
El Paso Energy Partners, L.P.
El Paso Energy Partners Finance Corporation
The Subsidiary Guarantors listed on Schedule A
and
Credit Suisse First Boston Corporation
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Banc One Capital Markets, Inc.
Fleet Securities, Inc.
Fortis Investment Services LLC
The Royal Bank of Scotland plc
BNP Paribas Securities Corp.
First Union Securities, Inc.
This Registration Rights Agreement (this "Agreement") is made and
entered into as of May 17, 2002 by and among El Paso Energy Partners, L.P., a
Delaware limited partnership (the "Partnership"), El Paso Energy Partners
Finance Corporation, a Delaware corporation ("El Paso Finance" and, together
with the Partnership, the "Issuers"), each of the entities listed on Schedule A
attached hereto (each, a "Subsidiary Guarantor" and collectively, the
"Subsidiary Guarantors"), and Credit Suisse First Boston Corporation, Goldman,
Sachs & Co., J.P. Morgan Securities Inc., Banc One Capital Markets, Inc., Fleet
Securities, Inc., Fortis Investment Services LLC, The Royal Bank of Scotland
plc, BNP Paribas Securities Corp. and First Union Securities, Inc. (each an
"Initial Purchaser" and, collectively, the "Initial Purchasers"), each of whom
has agreed to purchase the Issuers' 8 1/2% Series A Senior Subordinated Notes
due 2011 (such notes being purchased on the date hereof being referred to as the
"Series A Notes") pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated May
14, 2002 (the "Purchase Agreement"), by and among the Issuers, the Subsidiary
Guarantors and the Initial Purchasers. In order to induce the Initial Purchasers
to purchase the Series A Notes, the Issuers have agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the obligations of the Initial Purchasers set
forth in Section 2 of the Purchase Agreement. Capitalized terms used herein and
not otherwise defined shall have the meaning assigned to them in the Indenture,
dated May 17, 2001, as supplemented by the First Supplemental Indenture and the
Second Supplemental Indenture each dated as of April 18, 2002 (collectively, the
"Indenture"), among the Issuers, the Subsidiary Guarantors and JPMorgan Chase
Bank, as successor trustee (the "Trustee") to The Chase Manhattan Bank, relating
to the Series A Notes and the Series B Notes.
The parties hereby agree as follows:
Section 1. Definitions. As used in this Agreement, the following
capitalized terms shall have the following meanings:
Act: The Securities Act of 1933, as amended.
Affiliate: As defined in Rule 144 of the Act.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Certificated Securities: Definitive Notes, as defined in the Indenture.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Series B Notes to be issued in the Exchange Offer, (b) the
maintenance of such Exchange Offer Registration Statement continuously effective
and the keeping of the Exchange Offer open for a period not less than the period
required pursuant to Section 3(b) hereof and (c) the delivery by the Issuers to
the Registrar under the Indenture of Series B Notes in the same aggregate
principal amount as the aggregate principal amount of Series A Notes tendered by
Holders thereof pursuant to the Exchange Offer.
Consummation Deadline: As defined in Section 3(b) hereof.
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Effectiveness Deadline: As defined in Sections 3(a) and 4(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The exchange and issuance by the Issuers of a principal
amount of Series B Notes (which shall be registered pursuant to the Exchange
Offer Registration Statement) equal to the outstanding principal amount of
Series A Notes that are tendered by such Holders in connection with such
exchange and issuance.
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers
propose to sell the Series A Notes to certain "qualified institutional
buyers,"as such term is defined in Rule 144A under the Act and pursuant to
Regulation S under the Act.
Filing Deadline: As defined in Sections 3(a) and 4(a) hereof.
Holders: As defined in Section 2 hereof.
Partnership Agreement: The Second Amended and Restated Agreement of
Limited Partnership of El Paso Energy Partners, L.P., dated as of February 13,
1993, amended and restated effective as of August 31, 2000, as such may be
amended, modified or supplemented from time to time.
Prospectus: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
Recommencement Date: As defined in Section 6(d) hereof.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Issuers and
the Subsidiary Guarantors relating to (a) an offering of Series B Notes pursuant
to an Exchange Offer or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement, in each case, (i) that
is filed pursuant to the provisions of this Agreement and (ii) including the
Prospectus included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.
Regulation S: Regulation S promulgated under the Act.
Rule 144: Rule 144 promulgated under the Act.
Series B Notes: The Issuers' 8 1/2% Series B Senior Subordinated Notes
due 2011 to be issued pursuant to the Indenture: (i) in the Exchange Offer or
(ii) as contemplated by Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
Suspension Notice: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb)
as in effect on the date of the Indenture.
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Transfer Restricted Securities: Each Series A Note, until the earliest
to occur of (a) the date on which such Series A Note is exchanged in the
Exchange Offer for a Series B Note which is entitled to be resold to the public
by the Holder thereof without complying with the prospectus delivery
requirements of the Act, (b) the date on which such Series A Note has been
disposed of in accordance with a Shelf Registration Statement (and the
purchasers thereof have been issued Series B Notes), or (c) the date on which
such Series A Note is distributed to the public pursuant to Rule 144 under the
Act (and purchasers thereof have been issued Series B Notes) and each Series B
Note until the date on which such Series B Note is disposed of by a
Broker-Dealer pursuant to the "Plan of Distribution" contemplated by the
Exchange Offer Registration Statement (including the delivery of the Prospectus
contained therein).
Section 2. Holders. A Person is deemed to be a holder of Transfer
Restricted Securities (each, a "Holder") whenever such Person owns Transfer
Restricted Securities.
Section 3. Registered Exchange Offer.
(a) Unless the Exchange Offer shall not be permitted by
applicable federal law (after the procedures set forth in Section
6(a)(i) below have been complied with), the Issuers and the Subsidiary
Guarantors shall (i) cause the Exchange Offer Registration Statement to
be filed with the Commission as soon as practicable after the Closing
Date, but in no event later than 95 days after the Closing Date (such
95th day being the "Filing Deadline"), (ii) use its best efforts to
cause such Exchange Offer Registration Statement to become effective at
the earliest possible time, but in no event later than 150 days after
the Closing Date (such 150th day being the "Effectiveness Deadline"),
(iii) in connection with the foregoing, (A) file all pre-effective
amendments to such Exchange Offer Registration Statement as may be
necessary in order to cause it to become effective, (B) file, if
applicable, a post-effective amendment to such Exchange Offer
Registration Statement pursuant to Rule 430A under the Act and (C)
cause all necessary filings, if any, in connection with the
registration and qualification of the Series B Notes to be made under
the Blue Sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer, and (iv) upon the effectiveness of
such Exchange Offer Registration Statement, commence and Consummate the
Exchange Offer. The Exchange Offer shall be on the appropriate form
permitting (i) registration of the Series B Notes to be offered in
exchange for the Series A Notes that are Transfer Restricted Securities
and (ii) resales of Series B Notes by Broker-Dealers that tendered into
the Exchange Offer Series A Notes that such Broker-Dealer acquired for
its own account as a result of market making activities or other
trading activities (other than Series A Notes acquired directly from
the Issuers or any of their Affiliates) as contemplated by Section 3(c)
below.
(b) The Issuers and the Subsidiary Guarantors shall use their
respective best efforts to cause the Exchange Offer Registration
Statement to be effective continuously, and shall keep the Exchange
Offer open for a period of not less than the minimum period required
under applicable federal and state securities laws to Consummate the
Exchange Offer; provided, however, that in no event shall such period
be less than 20 Business Days. The Issuers and the Subsidiary
Guarantors shall cause the Exchange Offer to comply with all applicable
federal and state securities laws. No securities other than the
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Series B Notes shall be included in the Exchange Offer Registration
Statement. The Issuers and the Subsidiary Guarantors shall use their
respective best efforts to cause the Exchange Offer to be Consummated
on the earliest practicable date after the Exchange Offer Registration
Statement has become effective, but in no event later than 180 days
after the Closing Date (such 180th day being the "Consummation
Deadline").
(c) The Issuers shall include a "Plan of Distribution" section
in the Prospectus contained in the Exchange Offer Registration
Statement and indicate therein that any Broker-Dealer who holds
Transfer Restricted Securities that were acquired for the account of
such Broker-Dealer as a result of market-making activities or other
trading activities (other than Series A Notes acquired directly from
the Issuers or any Affiliate of the Issuers) may exchange such Transfer
Restricted Securities pursuant to the Exchange Offer. Such "Plan of
Distribution" section shall also contain all other information with
respect to such sales by such Broker-Dealers that the Commission may
require in order to permit such sales pursuant thereto, but such "Plan
of Distribution" shall not name any such Broker-Dealer or disclose the
amount of Transfer Restricted Securities held by any such
Broker-Dealer, except to the extent required by the Commission as a
result of a change in policy, rules or regulations after the date of
this Agreement.
Because such Broker-Dealer may be deemed to be an
"underwriter" within the meaning of the Act and must, therefore,
deliver a prospectus meeting the requirements of the Act in connection
with its initial sale of any Series B Notes received by such
Broker-Dealer in the Exchange Offer, the Issuers and Subsidiary
Guarantors shall permit the use of the Prospectus contained in the
Exchange Offer Registration Statement by such Broker-Dealer to satisfy
such prospectus delivery requirement. To the extent necessary to ensure
that the prospectus contained in the Exchange Offer Registration
Statement is available for sales of Series B Notes by Broker-Dealers,
the Issuers and the Subsidiary Guarantors agree to use their respective
best efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented, amended and current as required
by and subject to the provisions of Sections 6(a) and (c) hereof and in
conformity with the requirements of this Agreement, the Act and the
policies, rules and regulations of the Commission as announced from
time to time, for a period of one year from the Consummation Deadline
or such shorter period as will terminate when all Transfer Restricted
Securities covered by such Registration Statement have been sold
pursuant thereto. The Issuers and the Subsidiary Guarantors shall
provide sufficient copies of the latest version of such Prospectus to
such Broker-Dealers, promptly upon request, and in no event later than
one day after such request, at any time during such period.
Section 4. Shelf Registration.
(a) Shelf Registration. If (i) the Exchange Offer is not
permitted by applicable law (after the Issuers and the Subsidiary
Guarantors have complied with the procedures set forth in Section
6(a)(i) below) or (ii) if any Holder of Transfer Restricted Securities
shall notify the Issuers within 20 Business Days following the
Consummation Deadline that (A) such Holder was prohibited by law or
Commission policy from participating in the Exchange Offer or (B) such
Holder may not resell the Series B Notes
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acquired by it in the Exchange Offer to the public without delivering a
prospectus and if the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales
by such Holder or (C) such Holder is a Broker-Dealer and holds Series A
Notes acquired directly from the Issuers or any of their Affiliates,
then the Issuers and the Subsidiary Guarantors shall:
(x) cause to be filed, on or prior to 30 days after
the earlier of (i) the date on which the Issuers determine
that the Exchange Offer Registration Statement cannot be filed
as a result of clause (a)(i) above and (ii) the date on which
the Issuers receive the notice specified in clause (a)(ii)
above, (such earlier date, the "Filing Deadline"), a shelf
registration statement pursuant to Rule 415 under the Act
(which may be an amendment to the Exchange Offer Registration
Statement (the "Shelf Registration Statement")), relating to
all Transfer Restricted Securities, and
(y) shall use their respective best efforts to cause
such Shelf Registration Statement to become effective on or
prior to 60 days after the Filing Deadline for the Shelf
Registration Statement (such 60th day the "Effectiveness
Deadline").
If, after the Issuers have filed an Exchange Offer
Registration Statement that satisfies the requirements of Section 3(a)
above, the Issuers are required to file and make effective a Shelf
Registration Statement solely because the Exchange Offer is not
permitted under applicable federal law (i.e., clause (a)(i) above),
then the filing of the Exchange Offer Registration Statement shall be
deemed to satisfy the requirements of clause (x) above; provided that,
in such event, the Issuers shall remain obligated to meet the
Effectiveness Deadline set forth in clause (y).
To the extent necessary to ensure that the Shelf Registration
Statement is available for sales of Transfer Restricted Securities by
the Holders thereof entitled to the benefit of this Section 4(a) and
the other securities required to be registered therein pursuant to
Section 6(b)(ii) hereof, the Issuers and the Subsidiary Guarantors
shall use their respective best efforts to keep any Shelf Registration
Statement required by this Section 4(a) continuously effective,
supplemented, amended and current as required by and subject to the
provisions of Sections 6(b) and (c) hereof and in conformity with the
requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for a
period of at least two years (as extended pursuant to Section 6(d))
following the Closing Date, or such shorter period as will terminate
when all Transfer Restricted Securities covered by such Shelf
Registration Statement have been sold pursuant thereto.
(b) Provision by Holders of Certain Information in Connection
with the Shelf Registration Statement. No Holder of Transfer Restricted
Securities may include any of its Transfer Restricted Securities in any
Shelf Registration Statement pursuant to this Agreement unless and
until such Holder furnishes to the Issuers in writing, within 20 days
after receipt of a request therefor, the information specified in Item
507 or 508 of Regulation S-K, as applicable, of the Act for use in
connection with any Shelf
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Registration Statement or Prospectus or preliminary Prospectus included
therein. No Holder of Transfer Restricted Securities shall be entitled
to liquidated damages pursuant to Section 5 hereof unless and until
such Holder shall have provided all such information. Each selling
Holder agrees to promptly furnish additional information required to be
disclosed in order to make the information previously furnished to the
Issuers by such Holder not materially misleading.
Section 5. Liquidated Damages. If (i) any Registration Statement
required by this Agreement is not filed with the Commission on or prior to the
applicable Filing Deadline, (ii) any such Registration Statement has not been
declared effective by the Commission on or prior to the applicable Effectiveness
Deadline, (iii) the Exchange Offer has not been Consummated on or prior to the
Consummation Deadline or (iv) any Registration Statement required by this
Agreement is filed and declared effective but shall thereafter cease to be
effective or fail to be usable for its intended purpose without being succeeded
within 2 days by a post-effective amendment to such Registration Statement that
cures such failure and that is itself declared effective within 2 days of filing
such post-effective amendment to such Registration Statement (each such event
referred to in clauses (i) through (iv), a "Registration Default"), then the
Issuers and the Subsidiary Guarantors hereby jointly and severally agree to pay
to each Holder of Transfer Restricted Securities affected thereby liquidated
damages in an amount equal to $.05 per week per $1,000 in principal amount of
Transfer Restricted Securities held by such Holder for each week or portion
thereof that the Registration Default continues for the first 90-day period
immediately following the occurrence of such Registration Default. The amount of
the liquidated damages shall increase by an additional $.05 per week per $1,000
in principal amount of Transfer Restricted Securities with respect to each
subsequent 90-day period until all Registration Defaults have been cured, up to
a maximum amount of liquidated damages of $.50 per week per $1,000 in principal
amount of Transfer Restricted Securities; provided that the Issuers and the
Subsidiary Guarantors shall in no event be required to pay liquidated damages
for more than one Registration Default at any given time. Notwithstanding
anything to the contrary set forth herein, (1) upon filing of the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (i) above, (2) upon the effectiveness of the Exchange
Offer Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (ii) above, (3) upon Consummation of the Exchange
Offer, in the case of (iii) above, or (4) upon the filing of a post-effective
amendment to the Registration Statement or an additional Registration Statement
that causes the Exchange Offer Registration Statement (and/or, if applicable,
the Shelf Registration Statement) to again be declared effective or made usable
in the case of (iv) above, the liquidated damages payable with respect to the
Transfer Restricted Securities as a result of such clause (i), (ii), (iii) or
(iv), as applicable, shall cease.
All accrued liquidated damages shall be paid to the Holders entitled
thereto, in the manner providing for the payment of interest in the Indenture,
on each Interest Payment Date, as more fully set forth in the Indenture and the
Notes. Notwithstanding the fact that any securities for which liquidated damages
are due cease to be Transfer Restricted Securities, all obligations of the
Issuers and the Subsidiary Guarantors to pay liquidated damages with respect to
securities shall survive until such time as such obligations with respect to
such securities shall have been satisfied in full.
Section 6. Registration Procedures.
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(a) Exchange Offer Registration Statement. In connection with
the Exchange Offer, the Issuers and the Subsidiary Guarantors shall (x)
comply with all applicable provisions of Section 6(c) below, (y) use
their respective best efforts to effect such exchange and to permit the
resale of Series B Notes by Broker-Dealers that tendered in the
Exchange Offer Series A Notes that such Broker-Dealer acquired for its
own account as a result of its market making activities or other
trading activities (other than Series A Notes acquired directly from
the Issuers or any of their Affiliates) being sold in accordance with
the intended method or methods of distribution thereof, and (z) comply
with all of the following provisions:
(i) If, following the date hereof there has been
announced a change in Commission policy with respect to
exchange offers such as the Exchange Offer, that in the
reasonable opinion of counsel to the Issuers raises a
substantial question as to whether the Exchange Offer is
permitted by applicable federal law, the Issuers and the
Subsidiary Guarantors hereby agree to seek a no-action letter
or other favorable decision from the Commission allowing the
Issuers and the Subsidiary Guarantors to Consummate an
Exchange Offer for such Transfer Restricted Securities. The
Issuers and the Subsidiary Guarantors hereby agree to pursue
the issuance of such a decision to the Commission staff level.
In connection with the foregoing, the Issuers and the
Subsidiary Guarantors hereby agree to take all such other
actions as may be requested by the Commission or otherwise
required in connection with the issuance of such decision,
including without limitation (A) participating in telephonic
conferences with the Commission, (B) delivering to the
Commission staff an analysis prepared by counsel to the
Issuers setting forth the legal bases, if any, upon which such
counsel has concluded that such an Exchange Offer should be
permitted and (C) diligently pursuing a resolution (which need
not be favorable) by the Commission staff.
(ii) As a condition to its participation in the
Exchange Offer, each Holder of Transfer Restricted Securities
(including, without limitation, any Holder who is a Broker
Dealer) shall furnish, upon the request of the Issuers, prior
to the Consummation of the Exchange Offer, a written
representation to the Issuers and the Subsidiary Guarantors
(which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to
the effect that (A) it is not an Affiliate of the Issuers, (B)
it is not engaged in, and does not intend to engage in, and
has no arrangement or understanding with any Person to
participate in, a distribution of the Series B Notes to be
issued in the Exchange Offer and (C) it is acquiring the
Series B Notes in its ordinary course of business. As a
condition to its participation in the Exchange Offer, each
Holder using the Exchange Offer to participate in a
distribution of the Series B Notes shall acknowledge and agree
that, if the resales are of Series B Notes obtained by such
Holder in exchange for Series A Notes acquired directly from
the Issuers or an Affiliate thereof, it (1) could not, under
Commission policy as in effect on the date of this Agreement,
rely on the position of the Commission enunciated in Morgan
Stanley and Co., Inc. (available June 5, 1991) and Exxon
Capital Holdings Corporation (available May 13, 1988), as
interpreted in the
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Commission's letter to Shearman & Sterling dated July 2, 1993,
and similar no-action letters (including, if applicable, any
no-action letter obtained pursuant to clause (i) above), and
(2) must comply with the registration and prospectus delivery
requirements of the Act in connection with a secondary resale
transaction and that such a secondary resale transaction must
be covered by an effective registration statement containing
the selling security holder information required by Item 507
or 508, as applicable, of Regulation S-K.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Issuers and the Subsidiary
Guarantors shall provide a supplemental letter to the
Commission (A) stating that the Issuers and the Subsidiary
Guarantors are registering the Exchange Offer in reliance on
the position of the Commission enunciated in Exxon Capital
Holdings Corporation (available May 13, 1988), Morgan Stanley
and Co., Inc. (available June 5, 1991) as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993,
and, if applicable, any no-action letter obtained pursuant to
clause (i) above, (B) including a representation that neither
the Issuers nor any Subsidiary Guarantor has entered into any
arrangement or understanding with any Person to distribute the
Series B Notes to be received in the Exchange Offer and that,
to the best of the Issuers' and each Subsidiary Guarantor's
information and belief, each Holder participating in the
Exchange Offer is acquiring the Series B Notes in its ordinary
course of business and has no arrangement or understanding
with any Person to participate in the distribution of the
Series B Notes received in the Exchange Offer and (C) any
other undertaking or representation required by the Commission
as set forth in any no-action letter obtained pursuant to
clause (i) above, if applicable.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Issuers and the Subsidiary Guarantors
shall:
(i) comply with all the provisions of Section 6(c)
below and use their respective best efforts to effect such
registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended method
or methods of distribution thereof (as indicated in the
information furnished to the Issuers pursuant to Section 4(b)
hereof), and pursuant thereto the Issuers and the Subsidiary
Guarantors will prepare and file with the Commission a
Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available
for the sale of the Transfer Restricted Securities in
accordance with the intended method or methods of distribution
thereof within the time periods and otherwise in accordance
with the provisions hereof.
(ii) issue, upon the request of any Holder or
purchaser of Series A Notes covered by any Shelf Registration
Statement contemplated by this Agreement, Series B Notes
having an aggregate principal amount equal to the aggregate
principal amount of Series A Notes sold pursuant to the Shelf
Registration Statement and surrendered to the Issuers for
cancellation; the Issuers shall register Series B Notes on the
Shelf Registration Statement for this purpose
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and issue the Series B Notes to the purchaser(s) of securities
subject to the Shelf Registration Statement in the names as
such purchaser(s) shall designate.
(c) General Provisions. In connection with any Registration
Statement and any related Prospectus required by this Agreement, the
Issuers and the Subsidiary Guarantors shall:
(i) use their respective best efforts to keep such
Registration Statement continuously effective and provide all
requisite financial statements for the period specified in
Section 3 or 4 of this Agreement, as applicable. Upon the
occurrence of any event that would cause any such Registration
Statement or the Prospectus contained therein (A) to contain
an untrue statement of material fact or omit to state any
material fact necessary to make the statements therein not
misleading or (B) not to be effective and usable for resale of
Transfer Restricted Securities during the period required by
this Agreement, the Issuers and the Subsidiary Guarantors
shall file promptly an appropriate amendment to such
Registration Statement curing such defect, and, if Commission
review is required, use their respective best efforts to cause
such amendment to be declared effective as soon as
practicable;
(ii) prepare and file with the Commission such
amendments and post-effective amendments to the applicable
Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period set
forth in Section 3 or 4 hereof, as the case may be; cause the
Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Act, and to comply fully with Rules 424,
430A and 462, as applicable, under the Act in a timely manner;
and comply with the provisions of the Act with respect to the
disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers
thereof set forth in such Registration Statement or supplement
to the Prospectus;
(iii) advise each Holder promptly and, if requested
by such Holder, confirm such advice in writing, (A) when the
Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to any applicable
Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any
request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or
for additional information relating thereto, (C) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or
of the suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for
offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, and (D) of the
existence of any fact or the happening of any event that makes
any statement of a material fact made in the Registration
Statement, the Prospectus, any amendment or supplement thereto
or any document incorporated by reference therein untrue, or
that requires the making of any additions to or changes in the
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Registration Statement in order to make the statements therein
not misleading, or that requires the making of any additions
to or changes in the Prospectus in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading. If at any time the
Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under
state securities or Blue Sky laws, the Issuers and the
Subsidiary Guarantors shall use their respective best efforts
to obtain the withdrawal or lifting of such order at the
earliest possible time;
(iv) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have
occurred, prepare a supplement or post-effective amendment to
the Registration Statement or related Prospectus or any
document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus
will not contain an untrue statement of a material fact or
omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(v) furnish to each Holder in connection with such
exchange or sale, if any, before filing with the Commission,
copies of any Registration Statement or any Prospectus
included therein or any amendments or supplements to any such
Registration Statement or Prospectus (including all documents
incorporated by reference after the initial filing of such
Registration Statement), which documents will be subject to
the review and comment of such Holders in connection with such
sale, if any, for a period of at least five Business Days, and
the Issuers will not file any such Registration Statement or
Prospectus or any amendment or supplement to any such
Registration Statement or Prospectus (including all such
documents incorporated by reference) to which such Holders
shall reasonably object within five Business Days after the
receipt thereof. A Holder shall be deemed to have reasonably
objected to such filing if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as
proposed to be filed, contains an untrue statement of a
material fact or omits to state any material fact necessary to
make the statements therein not misleading or fails to comply
with the applicable requirements of the Act;
(vi) promptly provide, prior to the filing of any
document that is to be incorporated by reference into a
Registration Statement or Prospectus, copies of such document
to each Holder in connection with such exchange or sale, if
any, make the Issuers' and the Subsidiary Guarantors'
representatives available for discussion of such document and
other customary due diligence matters, and include such
information in such document prior to the filing thereof as
such Holders may reasonably request;
(vii) make available, at reasonable times, for
inspection by each Holder and any attorney or accountant
retained by such Holders, all financial and other
10
records, and pertinent corporate documents of the Issuers and
the Subsidiary Guarantors and cause the Issuers' and the
Subsidiary Guarantors' officers, directors and employees to
supply all information reasonably requested by any such
Holder, attorney or accountant in connection with such
Registration Statement or any post-effective amendment thereto
subsequent to the filing thereof and prior to its
effectiveness;
(viii) if requested by any Holders in connection with
such exchange or sale, promptly include in any Registration
Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as
such Holders may reasonably request to have included therein,
including, without limitation, information relating to the
"Plan of Distribution" of the Transfer Restricted Securities;
and make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the
Issuers are notified of the matters to be included in such
Prospectus supplement or post-effective amendment;
(ix) furnish to each Holder in connection with such
exchange or sale, without charge, at least one copy of the
Registration Statement, as first filed with the Commission,
and of each amendment thereto, including all documents
incorporated by reference therein and all exhibits (including
exhibits incorporated therein by reference);
(x) deliver to each Holder without charge, as many
copies of the Prospectus (including each preliminary
prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; the Issuers and the Subsidiary
Guarantors hereby consent to the use (in accordance with law)
of the Prospectus and any amendment or supplement thereto by
each selling Holder in connection with the offering and the
sale of the Transfer Restricted Securities covered by the
Prospectus or any amendment or supplement thereto;
(xi) upon the request of any Holder, enter into such
agreements (including underwriting agreements) and make such
representations and warranties and take all such other actions
in connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to
any applicable Registration Statement contemplated by this
Agreement as may be reasonably requested by any Holder in
connection with any sale or resale pursuant to any applicable
Registration Statement. In such connection, the Issuers and
the Subsidiary Guarantors shall:
(A) upon request of any Holder, furnish (or
in the case of paragraphs (2) and (3), use their best
efforts to cause to be furnished) to each Holder,
upon Consummation of the Exchange Offer or upon the
effectiveness of the Shelf Registration Statement, as
the case may be:
(1) a certificate, dated such date,
signed on behalf of the Issuers and each
Subsidiary Guarantor by (x) the President or
11
any Vice President and (y) a principal
financial or accounting officer of each of
the Issuers and each Subsidiary Guarantor,
confirming, as of the date thereof, the
matters set forth in Sections 6(cc), 9(a)
and 9(b) of the Purchase Agreement and such
other similar matters as such Holders may
reasonably request;
(2) an opinion, dated the date of
Consummation of the Exchange Offer or the
date of effectiveness of the Shelf
Registration Statement, as the case may be,
of counsel for the Issuers and the
Subsidiary Guarantors covering matters
similar to those set forth in paragraph (e)
of Section 9 of the Purchase Agreement and
such other matters as such Holder may
reasonably request, and in any event
including a statement to the effect that
such counsel has participated in conferences
with officers and other representatives of
the Issuers and the Subsidiary Guarantors,
and representatives of the independent
public accountants for the Issuers and the
Subsidiary Guarantors and have considered
the matters required to be stated therein
and the statements contained therein,
although such counsel has not independently
verified the accuracy, completeness or
fairness of such statements; and that such
counsel advises that, on the basis of the
foregoing, no facts came to such counsel's
attention that caused such counsel to
believe that the applicable Registration
Statement, at the time such Registration
Statement or any post-effective amendment
thereto became effective and, in the case of
the Exchange Offer Registration Statement,
as of the date of Consummation of the
Exchange Offer, contained an untrue
statement of a material fact or omitted to
state a material fact required to be stated
therein or necessary to make the statements
therein not misleading, or that the
Prospectus contained in such Registration
Statement as of its date and, in the case of
the opinion dated the date of Consummation
of the Exchange Offer, as of the date of
Consummation, contained an untrue statement
of a material fact or omitted 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. Without limiting the
foregoing, such counsel may state further
that such counsel assumes no responsibility
for, and has not independently verified, the
accuracy, completeness or fairness of the
financial statements, notes and schedules
and other financial data included in any
Registration Statement contemplated by this
Agreement or the related Prospectus; and
(3) a customary comfort letter,
dated the date of Consummation of the
Exchange Offer, or as of the date of
effectiveness of the Shelf Registration
Statement, as the case may be, from the
Issuers' independent accountants, in the
customary
12
form and covering matters of the type
customarily covered in comfort letters to
underwriters in connection with underwritten
offerings, and affirming the matters set
forth in the comfort letters delivered
pursuant to Section 9(g) of the Purchase
Agreement; and
(B) deliver such other documents and
certificates as may be reasonably requested by the
selling Holders to evidence compliance with the
matters covered in clause (A) above and with any
customary conditions contained in any agreement
entered into by the Issuers and the Subsidiary
Guarantors pursuant to this clause (xi);
(xii) prior to any public offering of Transfer
Restricted Securities, cooperate with the selling Holders and
their counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as the
selling Holders may request and do any and all other acts or
things necessary or advisable to enable the disposition in
such jurisdictions of the Transfer Restricted Securities
covered by the applicable Registration Statement; provided,
however, that neither the Issuers nor any Subsidiary Guarantor
shall be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any
action that would subject it to the service of process in
suits or to taxation, other than as to matters and
transactions relating to the Registration Statement, in any
jurisdiction where it is not now so subject;
(xiii) in connection with any sale of Transfer
Restricted Securities that will result in such securities no
longer being Transfer Restricted Securities, cooperate with
the Holders to facilitate the timely preparation and delivery
of certificates representing Transfer Restricted Securities to
be sold and not bearing any restrictive legends; and to
register such Transfer Restricted Securities in such
denominations and such names as the selling Holders may
request at least two Business Days prior to such sale of
Transfer Restricted Securities;
(xiv) use their respective best efforts to cause the
disposition of the Transfer Restricted Securities covered by
the Registration Statement to be registered with or approved
by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof to
consummate the disposition of such Transfer Restricted
Securities, subject to the proviso contained in clause (xii)
above;
(xv) provide a CUSIP number for all Transfer
Restricted Securities not later than the effective date of a
Registration Statement covering such Transfer Restricted
Securities and provide the Trustee under the Indenture with
printed certificates for the Transfer Restricted Securities
which are in a form eligible for deposit with The Depository
Trust Company;
(xvi) otherwise use their respective best efforts to
comply with all applicable rules and regulations of the
Commission, and make generally available
13
to their security holders with regard to any applicable
Registration Statement, as soon as practicable, a consolidated
earnings statement meeting the requirements of Rule 158 (which
need not be audited) covering a twelve-month period beginning
after the effective date of the Registration Statement (as
such term is defined in paragraph (c) of Rule 158 under the
Act);
(xvii) cause the Indenture to be qualified under the
TIA not later than the effective date of the first
Registration Statement required by this Agreement and, in
connection therewith, cooperate with the Trustee and the
Holders to effect such changes to the Indenture as may be
required for such Indenture to be so qualified in accordance
with the terms of the TIA; and execute and use its best
efforts to cause the Trustee to execute, all documents that
may be required to effect such changes and all other forms and
documents required to be filed with the Commission to enable
such Indenture to be so qualified in a timely manner; and
(xviii) provide promptly to each Holder, upon
request, each document filed with the Commission pursuant to
the requirements of Section 13 or Section 15(d) of the
Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition
of a Transfer Restricted Security that, upon receipt of the notice
referred to in Section 6(c)(iii)(C) or any notice from the Issuers of
the existence of any fact of the kind described in Section 6(c)(iii)(D)
hereof (in each case, a "Suspension Notice"), such Holder will
forthwith discontinue disposition of Transfer Restricted Securities
pursuant to the applicable Registration Statement until (i) such Holder
has received copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(iv) hereof, or (ii) such Holder is advised
in writing by the Issuers that the use of the Prospectus may be
resumed, and has received copies of any additional or supplemental
filings that are incorporated by reference in the Prospectus (in each
case, the "Recommencement Date"). Each Holder receiving a Suspension
Notice hereby agrees that it will either (i) destroy any Prospectuses,
other than permanent file copies, then in such Holder's possession
which have been replaced by the Issuers with more recently dated
Prospectuses or (ii) deliver to the Issuers (at the Issuers' expense)
all copies, other than permanent file copies, then in such Holder's
possession of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of the Suspension
Notice. The time period regarding the effectiveness of such
Registration Statement set forth in Section 3 or 4 hereof, as
applicable, shall be extended by a number of days equal to the number
of days in the period from and including the date of delivery of the
Suspension Notice to the date of delivery of the Recommencement Date.
(e) Effectiveness of Registration Statement. Notwithstanding
anything to the contrary contained in this Agreement, the obligation of
the Issuers and the Subsidiary Guarantors hereunder to maintain the
effectiveness of any Registration Statement and any related Prospectus
may be suspended, without default or penalty to the Issuers or the
Subsidiary Guarantors, for one or more periods of time as may be
required with respect to such Registration Statement if (A) the Board
of Directors of the General Partner shall have determined that the
offering and sales under the Registration Statement, the filing of
14
such Registration Statement or the maintenance of its effectiveness
would require disclosure of or would interfere in any material respect
with any material financing, acquisition, merger, offering or other
transaction involving the Issuers or the Subsidiary Guarantors or would
otherwise require disclosure of nonpublic information that could
materially and adversely affect the Issuers or the Subsidiary
Guarantors or (B) the Issuers are required by any state or federal
securities laws to file an amendment or supplement to such Registration
Statement for the purpose of incorporating quarterly or annual
information, which is not automatically effective. Further, the Issuers
and the Subsidiary Guarantors shall be deemed to have used their
respective best efforts to keep any Registration Statement continuously
effective if either (A) or (B) above has occurred.
Section 7. Registration Expenses.
(a) All expenses incident to the Issuers' and the Subsidiary
Guarantors' performance of or compliance with this Agreement will be
borne by the Issuers, regardless of whether a Registration Statement
becomes effective, including without limitation: (i) all registration
and filing fees and expenses; (ii) all fees and expenses of compliance
with federal securities and state Blue Sky or securities laws; (iii)
all expenses of printing (including printing certificates for the
Series B Notes to be issued in the Exchange Offer and printing of
Prospectuses), messenger and delivery services and telephone; (iv) all
fees and disbursements of counsel for the Issuers, the Subsidiary
Guarantors and the Holders of Transfer Restricted Securities; (v) all
application and filing fees in connection with listing the Series B
Notes on a national securities exchange or automated quotation system
pursuant to the requirements hereof; and (vi) all fees and
disbursements of independent certified public accountants of the
Issuers and the Subsidiary Guarantors (including the expenses of any
special audit and comfort letters required by or incident to such
performance).
The Issuers will, in any event, bear their and the Subsidiary
Guarantors' internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and
expenses of any Person, including special experts, retained by the
Issuers or the Subsidiary Guarantors.
(b) In connection with any Registration Statement required by
this Agreement (including, without limitation, the Exchange Offer
Registration Statement and the Shelf Registration Statement), the
Issuers and the Subsidiary Guarantors will reimburse the Initial
Purchasers and the Holders of Transfer Restricted Securities who are
tendering Series A Notes in the Exchange Offer and/or selling or
reselling Series A Notes or Series B Notes pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or
the Shelf Registration Statement, as applicable, for the reasonable
fees and disbursements of not more than one counsel, who shall be
Andrews & Kurth Mayor, Day, Caldwell & Keeton L.L.P., unless another
firm shall be chosen by the Holders of a majority in principal amount
of the Transfer Restricted Securities for whose benefit such
Registration Statement is being prepared.
Section 8. Indemnification.
15
(a) The Issuers and the Subsidiary Guarantors agree, jointly
and severally, to indemnify and hold harmless each Holder, its
directors, officers and each Person, if any, who controls such Holder
(within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act), from and against any and all losses, claims, damages,
liabilities or judgments (including without limitation, any legal or
other expenses incurred in connection with investigating or defending
any matter, including any action that could give rise to any such
losses, claims, damages, liabilities or judgments) caused by any untrue
statement or alleged untrue statement of a material fact contained in
any Registration Statement, preliminary prospectus or Prospectus (or
any amendment or supplement thereto) provided by the Issuers to any
Holder or any prospective purchaser of Series B Notes or registered
Series A Notes, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or judgments are caused by an
untrue statement or omission or alleged untrue statement or omission
that is based upon information relating to any of the Holders furnished
in writing to the Issuers by any of the Holders.
(b) Each Holder of Transfer Restricted Securities agrees,
severally and not jointly, to indemnify and hold harmless the Issuers
and the Subsidiary Guarantors, and their respective directors and
officers, and each Person, if any, who controls (within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act) the Issuers,
or the Subsidiary Guarantors to the same extent as the foregoing
indemnity from the Issuers and the Subsidiary Guarantors set forth in
Section 8(a) above, but only with reference to information relating to
such Holder furnished in writing to the Issuers by such Holder
expressly for use in any Registration Statement. In no event shall any
Holder, its directors, officers or any Person who controls such Holder
be liable or responsible for any amount in excess of the amount by
which the total amount received by such Holder with respect to its sale
of Transfer Restricted Securities pursuant to a Registration Statement
exceeds (i) the amount paid by such Holder for such Transfer Restricted
Securities and (ii) the amount of any damages that such Holder, its
directors, officers or any Person who controls such Holder has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission.
(c) In case any action shall be commenced involving any Person
in respect of which indemnity may be sought pursuant to Section 8(a) or
8(b) (the "indemnified party"), the indemnified party shall promptly
notify the Person against whom such indemnity may be sought (the
"indemnifying person") in writing and the indemnifying party shall
assume the defense of such action, including the employment of counsel
reasonably satisfactory to the indemnified party and the payment of all
fees and expenses of such counsel, as incurred (except that in the case
of any action in respect of which indemnity may be sought pursuant to
both Sections 8(a) and 8(b), a Holder shall not be required to assume
the defense of such action pursuant to this Section 8(c), but may
employ separate counsel and participate in the defense thereof, but the
fees and expenses of such counsel, except as provided below, shall be
at the expense of the Holder). Any indemnified party shall have the
right to employ separate counsel in any such action and participate in
the defense thereof, but the fees and expenses of such counsel shall be
at the expense of the indemnified party unless (i) the employment of
such counsel shall
16
have been specifically authorized in writing by the indemnifying party,
(ii) the indemnifying party shall have failed to assume the defense of
such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action
(including any impleaded parties) include both the indemnified party
and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses
available to it which are different from or additional to those
available to the indemnifying party (in which case the indemnifying
party shall not have the right to assume the defense of such action on
behalf of the indemnified party). In any such case, the indemnifying
party shall not, in connection with any one action or separate but
substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable
for the fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) for all indemnified parties and all
such fees and expenses shall be reimbursed as they are incurred. Such
firm shall be designated in writing by a majority of the Holders, in
the case of the parties indemnified pursuant to Section 8(a), and by
the Issuers and Subsidiary Guarantors, in the case of parties
indemnified pursuant to Section 8(b). The indemnifying party shall
indemnify and hold harmless the indemnified party from and against any
and all losses, claims, damages, liabilities and judgments by reason of
any settlement of any action (i) effected with its written consent or
(ii) effected without its written consent if the settlement is entered
into more than twenty Business Days after the indemnifying party shall
have received a request from the indemnified party for reimbursement
for the fees and expenses of counsel (in any case where such fees and
expenses are at the expense of the indemnifying party) and, prior to
the date of such settlement, the indemnifying party shall have failed
to comply with such reimbursement request. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement or compromise of, or consent to the entry of judgment with
respect to, any pending or threatened action in respect of which the
indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the
indemnified party, unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all
liability on claims that are or could have been 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 the
indemnified party.
(d) To the extent that the indemnification provided for in
this Section 8 is unavailable to an indemnified party in respect of any
losses, claims, damages, liabilities or judgments referred to therein,
then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages,
liabilities or judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Issuers and the
Subsidiary Guarantors, on the one hand, and the Holders, on the other
hand, from their sale of Transfer Restricted Securities or (ii) if the
allocation provided by clause 8(d)(i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 8(d)(i) above but also the
relative fault of the Issuers and the Subsidiary Guarantors, on the one
hand, and of the Holder, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
17
considerations. The relative fault of the Issuers and the Subsidiary
Guarantors, on the one hand, and of the Holder, on the other hand,
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
supplied by the Issuers or such Subsidiary Guarantor, on the one hand,
or by the Holder, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Issuers, the Subsidiary Guarantors and each Holder agree
that it would not be just and equitable if contribution pursuant to
this Section 8(d) were determined by pro rata allocation (even if the
Holders were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses incurred
by such indemnified party in connection with investigating or defending
any matter, including any action that could have given rise to such
losses, claims, damages, liabilities or judgments. Notwithstanding the
provisions of this Section 8, no Holder, its directors, its officers or
any Person, if any, who controls such Holder shall be required to
contribute, in the aggregate, any amount in excess of the amount by
which the total received by such Holder with respect to the sale of
Transfer Restricted Securities pursuant to a Registration Statement
exceeds (i) the amount paid by such Holder for such Transfer Restricted
Securities and (ii) the amount of any damages which such Holder has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. The Holders' obligations
to contribute pursuant to this Section 8(d) are several in proportion
to the respective principal amount of Transfer Restricted Securities
held by each Holder hereunder and not joint.
Section 9. Rule 144A and Rule 144. The Issuers and each Subsidiary
Guarantor agree with each Holder, for so long as any Transfer Restricted
Securities remain outstanding and during any period in which the Issuers or such
Subsidiary Guarantor (i) is not subject to Section 13 or 15(d) of the Exchange
Act, to make available, upon request of any Holder, to such Holder or beneficial
owner of Transfer Restricted Securities in connection with any sale thereof and
any prospective purchaser of such Transfer Restricted Securities designated by
such Holder or beneficial owner, the information required by Rule 144A(d)(4)
under the Act in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144A, and (ii) is subject to Section 13 or 15 (d) of the
Exchange Act, to make all filings required thereby in a timely manner in order
to permit resales of such Transfer Restricted Securities pursuant to Rule 144.
Section 10. Miscellaneous.
(a) Remedies. The Issuers and the Subsidiary Guarantors
acknowledge and agree that any failure by the Issuers and/or the
Subsidiary Guarantors to comply with their respective obligations under
Sections 3 and 4 hereof may result in material
18
irreparable injury to the Initial Purchasers or the Holders for which
there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of
any such failure, the Initial Purchasers or any Holder may obtain such
relief as may be required to specifically enforce the Issuers' and the
Subsidiary Guarantors' obligations under Sections 3 and 4 hereof. The
Issuers and the Subsidiary Guarantors further agree to waive the
defense in any action for specific performance that a remedy at law
would be adequate.
(b) No Inconsistent Agreements. Neither the Issuers nor any
Subsidiary Guarantor will, on or after the date of this Agreement,
enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this Agreement
or otherwise conflicts with the provisions hereof. Neither the Issuers
nor any Subsidiary Guarantor have previously entered into any agreement
granting any registration rights with respect to its securities to any
Person other than the registration rights (i) of El Paso Energy
Partners Company and its affiliates in Section 6.14 of the Partnership
Agreement, (ii) of EPEC Deepwater Gathering Company ("EPEC") and its
successors pursuant to a registration rights agreement between EPEC and
the Partnership which was executed in connection with the acquisition
by the Partnership of an additional interest in Viosca Knoll Gathering
Company, (iii) of Crystal Gas Storage, Inc. ("Crystal") pursuant to the
registration rights agreement dated as of August 28, 2000 between
Crystal and the Partnership which was executed in connection with the
acquisition by the Partnership of the Crystal storage facilities and
(iv) granted under the Partnership Credit Facility (as amended,
restated and otherwise supplemented through the date hereof) and
related agreements and (v) granted pursuant to this Agreement. The
rights granted to the Holders hereunder do not in any way conflict with
and are not inconsistent with the rights granted to the holders of the
Issuers' and the Subsidiary Guarantors' securities under any agreement
in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents
to or departures from the provisions hereof may not be given unless (i)
in the case of Section 5 hereof and this Section 10(c)(i), the Issuers
have obtained the written consent of Holders of all outstanding
Transfer Restricted Securities and (ii) in the case of all other
provisions hereof, the Issuers have obtained the written consent of
Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities (excluding Transfer Restricted Securities held by
the Issuers or their Affiliates). Notwithstanding the foregoing, a
waiver or consent to departure from the provisions hereof that relates
exclusively to the rights of Holders whose Transfer Restricted
Securities are being tendered pursuant to the Exchange Offer, and that
does not affect directly or indirectly the rights of other Holders
whose Transfer Restricted Securities are not being tendered pursuant to
such Exchange Offer, may be given by the Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities subject
to such Exchange Offer.
(d) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Issuers and
the Subsidiary Guarantors, on the one hand, and the Initial Purchasers,
on the other hand, and shall have the right to
19
enforce such agreements directly to the extent they may deem such
enforcement necessary or advisable to protect its rights or the rights
of Holders hereunder.
(e) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt requested),
telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Registrar under the Indenture, with a copy to
the Registrar under the Indenture; and
(ii) if to the Issuers or the Subsidiary Guarantors:
El Paso Energy Partners, L.P.
4 Greenway Plaza
Houston, Texas 77046
Telecopier No.: (713) 420-5477
Attention: Chief Financial Officer
With a copy to:
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
711 Louisiana Street, Suite 1900
Houston, Texas 77002
Telecopier No.: (713) 236-0822
Attention: J. Vincent Kendrick
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if telecopied;
and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the
Trustee at the address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of
the parties, including without limitation and without the need for an
express assignment, subsequent Holders; provided, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition
of Transfer Restricted Securities in violation of the terms hereof or
of the Purchase Agreement or the Indenture. If any transferee of any
Holder shall acquire Transfer Restricted Securities in any manner,
whether by operation of law or otherwise, such Transfer Restricted
Securities shall be held subject to all of the terms of this Agreement,
and by taking and holding such Transfer Restricted Securities such
Person shall be conclusively deemed to have agreed to be bound by and
to perform all of the
20
terms and provisions of this Agreement, including the restrictions on
resale set forth in this Agreement and, if applicable, the Purchase
Agreement, and such Person shall be entitled to receive the benefits
hereof.
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same
agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be
affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of
the parties hereto in respect of the subject matter contained herein.
There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein with respect to the
registration rights granted with respect to the Transfer Restricted
Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
* * * *
21
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Issuers:
EL PASO ENERGY PARTNERS, L.P.
By: /s/ KEITH FORMAN
------------------------------------------
Name: Keith Forman
Title: Vice President and Chief Financial Officer
EL PASO ENERGY PARTNERS FINANCE
CORPORATION
By: /s/ KEITH FORMAN
-------------------------------------------
Name: Keith Forman
Title: Vice President and Chief Financial Officer
Subsidiary Guarantors:
ARGO, L.L.C.*
ARGO I, L.L.C.*
ARGO II, L.L.C.*
THE CHACO LIQUIDS PLANT TRUST,
By EL PASO ENERGY PARTNERS OPERATING
COMPANY, L.L.C., solely in its capacity as
trustee of the Chaco Liquids Plant Trust*
CRYSTAL HOLDING, L.L.C.*
DELOS OFFSHORE COMPANY, L.L.C.*
EAST BREAKS GATHERING COMPANY, L.L.C.*
By EL PASO ENERGY PARTNERS DEEPWATER,
L.L.C., as sole member*
EL PASO ENERGY PARTNERS DEEPWATER, L.L.C.*
EL PASO ENERGY PARTNERS OIL TRANSPORT, L.L.C.*
EL PASO ENERGY PARTNERS OPERATING COMPANY,
L.L.C.*
EPN NGL STORAGE, L.L.C.*
FIRST RESERVE GAS, L.L.C.*
FLEXTREND DEVELOPMENT COMPANY, L.L.C.*
GREEN CANYON PIPE LINE COMPANY, L.P.*
HATTIESBURG GAS STORAGE COMPANY*
HATTIESBURG INDUSTRIAL GAS SALES, L.L.C.*
HIGH ISLAND OFFSHORE SYSTEM, L.L.C.*
By EL PASO ENERGY PARTNERS DEEPWATER,
L.L.C., as sole member*
MANTA RAY GATHERING COMPANY, L.L.C.*
PETAL GAS STORAGE, L.L.C.*
POSEIDON PIPELINE COMPANY, L.L.C.*
VK DEEPWATER GATHERING COMPANY, L.L.C.*
VK-MAIN PASS GATHERING COMPANY, L.L.C.*
*By: /s/ KEITH FORMAN
-------------------------------------------
Name: Keith Forman
Title: Vice President and Chief Financial Officer
23
Initial Purchasers:
CREDIT SUISSE FIRST BOSTON CORPORATION
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
BANC ONE CAPITAL MARKETS, INC.
FLEET SECURITIES, INC.
FORTIS INVESTMENT SERVICES LLC
THE ROYAL BANK OF SCOTLAND PLC
BNP PARIBAS SECURITIES CORP.
FIRST UNION SECURITIES, INC.
By: CREDIT SUISSE FIRST BOSTON
By: /s/ TOWNES G. PRESSLER, JR.
-------------------------------------------
Name: Townes G. Pressler, Jr.
Title: Managing Director
24
SCHEDULE A
<Table>
<Caption>
NAME OF SUBSIDIARY GUARANTOR STATE OF ORGANIZATION
---------------------------- ---------------------
Argo, L.L.C. Delaware
Argo I, L.L.C. Delaware
Argo II, L.L.C. Delaware
The Chaco Liquids Plant Trust Massachusetts
Crystal Holding, L.L.C. Delaware
Delos Offshore Company, L.L.C. Delaware
East Breaks Gathering Company, L.L.C. Delaware
El Paso Energy Partners Deepwater, L.L.C. Delaware
El Paso Energy Partners Oil Transport, L.L.C. Delaware
El Paso Partners Operating Company, L.L.C. Delaware
EPN NGL Storage, L.L.C. Delaware
First Reserve Gas, L.L.C. Delaware
Flextrend Development Company, L.L.C. Delaware
Green Canyon Pipe Line Company, L.P. Delaware
Hattiesburg Gas Storage Company Delaware
Hattiesburg Industrial Gas Sales, L.L.C. Delaware
High Island Offshore System, L.L.C. Delaware
Manta Ray Gathering Company, L.L.C. Delaware
Petal Gas Storage, L.L.C. Delaware
Poseidon Pipeline Company, L.L.C. Delaware
VK Deepwater Gathering Company, L.L.C. Delaware
VK-Main Pass Gathering Company, L.L.C. Delaware
</Table>
25