Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
Dated as of January 18, 2005
By and Among
ENERGY TRANSFER PARTNERS, L.P.,
the GUARANTORS
and
WACHOVIA CAPITAL MARKETS, LLC
BANC OF AMERICA SECURITIES LLC
BNP PARIBAS SECURITIES CORP.
GREENWICH CAPITAL MARKETS, INC.
$750,000,000
5.95% SENIOR NOTES DUE 2015
TABLE OF CONTENTS
Section Page
1. Definitions.................................................. 1
2. Exchange Offer............................................... 4
3. Shelf Registration Statement................................. 8
4. Additional Interest.......................................... 9
5. Registration Procedures...................................... 12
6. Registration Expenses........................................ 20
7. Indemnification.............................................. 21
8. Rule 144 and 144A............................................ 25
9. Miscellaneous................................................ 25
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated as of
January 18, 2005 by and among Energy Transfer Partners, L.P., a Delaware limited
partnership (the "Partnership"), the subsidiaries of the Partnership signing
this Agreement as Guarantors (the "Guarantors"), and Wachovia Capital Markets,
LLC, Banc of America Securities LLC, BNP Paribas Securities Corp., and Greenwich
Capital Markets, Inc. (collectively, the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase Agreement
(the "Purchase Agreement"), dated as of January 12, 2005, by and among the
Partnership, the Guarantors, and the Initial Purchasers that provides for the
sale by the Partnership to the Initial Purchasers of $750,000,000 aggregate
principal amount of the Partnership's 5.95% Senior Notes due 2015 (the "Notes").
The Notes will be fully and unconditionally guaranteed on an unsubordinated,
unsecured basis by the Guarantors as of their issue date (the "Guarantees"). The
Notes and the Guarantees together are referred to as the "Securities." To induce
the Initial Purchasers to enter into the Purchase Agreement, the Partnership and
the Guarantors have agreed to provide the registration rights set forth in this
Agreement for the benefit of the Initial Purchasers and their direct and
indirect transferees and assigns. The execution and delivery of this Agreement
is a condition to the Initial Purchasers' obligations to purchase the Securities
under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest shall have the meaning set forth in Section
4(a).
Agreement shall have the meaning set forth in the first introductory
paragraph.
Applicable Period shall have the meaning set forth in Section 2(b).
Closing Date shall have the meaning given to such term in the
Purchase Agreement.
Commission means the U.S. Securities and Exchange Commission.
DTC means The Depository Trust Company.
Effectiveness Date shall have the meaning set forth in Section
4(a)(ii).
Effectiveness Period shall have the meaning set forth in Section
3(a).
Exchange Act means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated
thereunder.
-1-
Exchange Notes shall have the meaning set forth in Section 2(a).
Exchange Offer shall have the meaning set forth in Section 2(a).
Exchange Registration Statement shall have the meaning set forth in
Section 2(a).
Filing Date shall have the meaning set forth in Section 4(a)(i).
Guarantee shall have the meaning set forth in the second
introductory paragraph.
Guarantors shall have the meaning set forth in the introductory
paragraph.
Holder means any holder of a Registrable Security.
Indemnified Person shall have the meaning set forth in Section 7(c).
Indemnifying Person shall have the meaning set forth in Section
7(c).
Indenture means the Indenture, dated as of January 18, 2005, by and
among the Partnership, as issuer, the Guarantors, and Wachovia Bank,
National Association, as trustee, as supplemented by the First
Supplemental Indenture dated as of January 18, 2005 and as further
amended or supplemented from time to time in accordance with the
terms thereof.
Initial Purchasers shall have the meaning set forth in the first
introductory paragraph.
Inspectors shall have the meaning set forth in Section 5(n).
NASD means the National Association of Securities Dealers, Inc.
Notes shall have the meaning set forth in the second introductory
paragraph.
Participant shall have the meaning set forth in Section 7(a).
Participating Broker-Dealer shall have the meaning set forth in
Section 2(b).
Partnership shall have the meaning set forth in the first
introductory paragraph.
Person means an individual, trustee, corporation, partnership,
limited liability company, joint stock company, trust,
unincorporated association, union, business association, firm or
other legal entity.
Private Exchange shall have the meaning set forth in Section 2(b).
Private Exchange Notes shall have the meaning set forth in Section
2(b).
Prospectus means the prospectus included in any Registration
Statement, including any preliminary prospectus and any prospectus
as amended or
-2-
supplemented by any prospectus supplement, and all other amendments
and supplements to such prospectus with respect to the terms of the
offering of any portion of the Registrable Securities, including
post-effective amendments, in each case including all documents
incorporated by reference therein.
Purchase Agreement shall have the meaning set forth in the second
introductory paragraph.
Records shall have the meaning set forth in Section 5(n).
Registrable Securities means each Note (and the related Guarantee),
each Exchange Note (and the related Guarantee) as to which Section
2(c)(ii)(D) hereof is applicable and each Private Exchange Note (and
the related Guarantee), until the earliest to occur of (a) a
Registration Statement (other than, with respect to any Exchange
Note as to which Section 2(c)(ii)(D) hereof is applicable, the
Exchange Registration Statement) covering such Note, Exchange Note
or Private Exchange Note (and, in each case, the related Guarantee),
as the case may be, has been declared effective by the Commission
and such Note, Exchange Note or Private Exchange Note (and, in each
case, the related Guarantee), as the case may be, has been disposed
of in accordance with such effective Registration Statement, (b)
such Note, Exchange Note or Private Exchange Note, as the case may
be, is sold in compliance with Rule 144, or is saleable pursuant to
Rule 144(k), (c) such Note has been exchanged for an Exchange Note
pursuant to an Exchange Offer and is entitled to be resold without
complying with the prospectus delivery requirements of the
Securities Act and (d) such Note, Exchange Note or Private Exchange
Note (and, in each case, the related Guarantee), as the case may be,
ceases to be outstanding for purposes of the Indenture.
Registration Statement means any registration statement of the
Partnership and the Guarantors filed with the Commission pursuant to
this Agreement, including, but not limited to, any Exchange
Registration Statement and any Shelf Registration Statement,
including the Prospectus and any amendment or supplement to such
registration statement, including all post-effective amendments and
exhibits thereto and documents incorporated by reference therein.
Rule 144 means Rule 144 promulgated under the Securities Act, as
such rule may be amended from time to time, or any similar rule
(other than Rule 144A) or regulation hereafter adopted by the
Commission.
Rule 144A means Rule 144A promulgated under the Securities Act, as
such rule may be amended from time to time, or any similar rule
(other than Rule 144) or regulation hereafter adopted by the
Commission.
Rule 415 means Rule 415 promulgated under the Securities Act, as
such rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission.
-3-
Securities shall have the meaning set forth in the second
introductory paragraph.
Securities Act means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
Shelf Notice shall have the meaning set forth in Section 2(c)(ii).
Shelf Registration Statement shall have the meaning set forth in
Section 3(a).
TIA means the Trust Indenture Act of 1939, as amended.
Trustee means the trustee under the Indenture.
2. Exchange Offer
(a) Exchange Offer Registration Statement. The Partnership and
the Guarantors shall file with the Commission, to the
extent not prohibited by any applicable law or applicable
interpretation of the staff of the Commission, a
Registration Statement on the appropriate form (the
"Exchange Registration Statement") no later than the 120th
day after the Closing Date for offers to exchange
(collectively, the "Exchange Offer") any and all of the
Registrable Securities (other than the Private Exchange
Notes, if any) for a like aggregate principal amount of
debt securities of the Partnership (guaranteed by the
Guarantors) that are identical in all material respects to
such Notes and the related Guarantees (collectively, the
"Exchange Notes"). The Exchange Notes shall be entitled to
the benefits of the Indenture or a trust indenture that is
identical in all material respects to the Indenture (other
than such changes as are necessary to comply with any
requirements of the Commission to effect or maintain the
qualification thereof under the TIA), except that the
Exchange Notes (other than Private Exchange Notes, if any)
shall have been registered pursuant to an effective
Registration Statement under the Securities Act and shall
contain no restrictive legend thereon. The Exchange Offer
shall comply with all applicable tender offer rules and
regulations under the Exchange Act. The Partnership and the
Guarantors agree to use their respective reasonable efforts
to (i) cause the Exchange Registration Statement to be
declared effective under the Securities Act on or before
the 210th day after the Closing Date; (ii) keep the
Exchange Offer open for at least 20 business days (or
longer if required by applicable law) after the date that
notice of the Exchange Offer is first mailed to Holders;
provided, that the Exchange Offer must be consummated no
later than 45 days following the date the Exchange
Registration Statement is first declared effective by the
Commission; and (iii) consummate the Exchange Offer on or
prior to the date that is 210 days plus 45 days following
the Closing Date. If after such Exchange Registration
Statement is declared effective by the Commission, the
Exchange Offer or the issuance of the Exchange Notes
thereunder is delayed or suspended by any stop order,
-4-
injunction or other order or requirement of the Commission
or any other governmental agency or court, such Exchange
Registration Statement shall be deemed not to have become
effective for purposes of this Agreement during the period
of such delay or suspension until the Exchange Offer may
legally resume.
Each Holder who participates in the Exchange Offer will be
required to make representations in writing to the Partnership
and the Guarantors, including representations that any
Exchange Notes received by it will be acquired in the ordinary
course of its business, that at the time of the consummation
of the Exchange Offer such Holder will have no arrangement or
understanding with any Person to participate in the
distribution of the Exchange Notes in violation of the
provisions of the Securities Act and that such Holder is not
an affiliate of the Partnership or the Guarantors within the
meaning of the Securities Act and is not acting on behalf of
any Persons who could not truthfully make the foregoing
representations. Upon consummation of the Exchange Offer in
accordance with this Section 2, the provisions of this
Agreement shall continue to apply, mutatis mutandis, solely
with respect to Registrable Securities that are Private
Exchange Notes and Exchange Notes held by Participating
Broker-Dealers, and the Partnership and the Guarantors shall
have no further obligation to register Registrable Securities
(other than Private Exchange Notes and other than in respect
of any Exchange Notes as to which clause 2(c)(ii)(D) hereof
applies) pursuant to Section 3 hereof. No securities other
than the Exchange Notes shall be included in the Exchange
Registration Statement.
(b) Plan of Distribution. The Partnership and the Guarantors
shall include within the Prospectus contained in the
Exchange Registration Statement a section entitled "Plan of
Distribution" that 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 Exchange Act) of
Exchange Notes received by such broker-dealer in the
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 represent the prevailing views of the staff of the
Commission. Such "Plan of Distribution" section shall also
expressly permit the use of the Prospectus by all Persons
subject to the prospectus delivery requirements of the
Securities Act, including all Participating Broker-Dealers,
and include a statement describing the means by which
Participating Broker-Dealers may resell the Exchange Notes.
The Partnership and the Guarantors shall use their respective
reasonable efforts to keep the Exchange Registration Statement
effective and to amend and supplement the Prospectus contained
therein in order to permit
-5-
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 is necessary to
comply with applicable law in connection with any resale of
the Exchange Notes; provided, however, that such period shall
not exceed 180 days after the consummation of the Exchange
Offer (or such longer period if extended pursuant to the last
paragraph of Section 5 hereof) (the "Applicable Period").
If, prior to consummation of the Exchange Offer, any of the
Initial Purchasers holds any Notes acquired by it and having,
or that are reasonably likely to be determined to have, the
status of an unsold allotment in the initial distribution of
the Notes, the Partnership and the Guarantors, upon the
request of any such Initial Purchaser simultaneously with the
delivery of the Exchange Notes in the Exchange Offer, shall
issue and deliver to such Initial Purchaser in exchange (the
"Private Exchange") for such Notes held by the Initial
Purchaser a like principal amount of debt securities of the
Partnership guaranteed by the Guarantors that are identical in
all material respects to the Exchange Notes (the "Private
Exchange Notes") (and that are issued pursuant to the same
indenture as the Exchange Notes), except for the placement of
a restrictive legend on such Private Exchange Notes. If
permissible, the Private Exchange Notes shall bear the same
CUSIP number as the Exchange Notes.
Interest on the Exchange Notes and the Private Exchange Notes
will accrue from the later of (i) (A) the last interest
payment date on which interest was paid on the Notes
surrendered in exchange therefor or (B) if the Notes are
surrendered for exchange on a date in a period which includes
the record date for an interest payment date to occur on or
after the date of such exchange and as to which interest will
be paid, the date of such interest payment date or (ii) if no
interest has been paid on the Notes, from the Closing Date.
In connection with the Exchange Offer, the Partnership and the
Guarantors shall:
(1) mail to each Holder a copy of the Prospectus forming
part of the Exchange Registration Statement, together
with an appropriate letter of transmittal and related
documents;
(2) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York time, on the
last business day on which the Exchange Offer shall
remain open; and
(3) otherwise comply in all material respects with all
applicable laws, rules and regulations.
-6-
As soon as practicable after the close of the Exchange Offer
or the Private Exchange, as the case may be, the Partnership
and the Guarantors shall:
(1) accept for exchange all Notes properly tendered and
not validly withdrawn pursuant to the Exchange Offer
or the Private Exchange; and
(2) cause the Trustee to authenticate and deliver promptly
to each Holder of Notes, Exchange Notes or Private
Exchange Notes, as the case may be, equal in principal
amount to the Notes of such Holder accepted for
exchange.
The Exchange Notes and the Private Exchange Notes may be
issued under the Indenture or an indenture identical in
all material respects to the Indenture, which in either
event shall provide that the Exchange Notes shall not be
subject to any transfer restrictions and the Private
Exchange Notes shall be subject to the transfer
restrictions set forth or referred to in the restrictive
legend placed on such Private Exchange Notes. The
Indenture or such indenture shall provide that the
Exchange Notes, the Private Exchange Notes and the Notes
shall vote and consent together on all matters as one
class and that neither the Exchange Notes, the Private
Exchange Notes nor the Notes will have the right to vote
or consent as a separate class on any matter.
(c) Delivery of Shelf Notice.
(i) If, following the date hereof there is announced a
change in Commission policy that in the reasonable
opinion of counsel to the Partnership and the
Guarantors raises a substantial question as to
whether the Exchange Offer is permitted by applicable
federal law, the Partnership and the Guarantors
hereby agree to seek a no-action letter or other
favorable decision from the Commission allowing the
Partnership and the Guarantors to consummate an
Exchange Offer for the Notes. The Partnership and the
Guarantors agree to pursue the issuance of such a
decision to the level of the senior staff of the
Commission. In connection with the foregoing, the
Partnership and the Guarantors hereby agree to take
all such other actions as may be requested by the
Commission or its staff 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 or its staff an analysis
prepared by counsel to the Partnership and the
Guarantors setting forth the legal bases, if any,
upon which such counsel has concluded that the
Exchange Offer should be permitted and (C) diligently
pursuing a resolution (which need not be favorable)
by the Commission or its staff.
-7-
(ii) If, (A) notwithstanding the efforts contemplated above,
the Partnership and the Guarantors are not permitted to
effect an Exchange Offer, (B) a Holder of Private
Exchange Notes so requests within 20 business days after
the consummation of the Private Exchange, (C) because of
any changes in law or in currently prevailing
interpretations of the staff of the Commission, a Holder
(other than an Initial Purchaser holding Notes acquired
directly from the Partnership and the Guarantors) is not
permitted to participate in the Exchange Offer and
requests the Partnership and the Guarantors in writing
within 20 business days after the consummation of the
Exchange Offer to have such Holder's Notes included in a
Registration Statement, (D) in the case of any Holder
that participates in the Exchange Offer, such Holder
does not receive Exchange Notes on the date of the
exchange that may be sold without restriction under
state and federal securities laws (other than due solely
to the status of such Holder as an affiliate of the
Partnership or the Guarantors within the meaning of the
Securities Act) and such Holder requests the Partnership
in writing within 20 business days after the
consummation of the Exchange Offer to have such Holder's
Notes included in a Registration Statement, or (E) for
any other reason the Partnership and the Guarantors do
not consummate the Exchange offer by the date
contemplated by Section 2(a)(iii), then the Partnership
and the Guarantors shall promptly deliver written notice
thereof (the "Shelf Notice") to the Trustee and the
affected Holder(s) of the Notes, and shall file a Shelf
Registration Statement with respect to the Notes
pursuant to Section 3 hereof.
3. Shelf Registration Statement
If a Shelf Notice is delivered as contemplated by Section 2(c)(ii)
hereof, then:
(a) Shelf Registration Statement. The Partnership and the
Guarantors shall file with the Commission a Registration
Statement for an offering to be made on a continuous basis
pursuant to Rule 415 covering (i) all of the Registrable
Securities not exchanged in the Exchange Offer, (ii) all of
the Private Exchange Notes and (iii) all of the Exchange
Notes of the Notes for which Section 2(c)(ii)(D) applies
(the "Shelf Registration Statement"). The Partnership and
the Guarantors shall use their respective reasonable
efforts to file with the Commission the Shelf Registration
Statement as soon as practicable and in any event on or
prior to the 90th day after the delivery of the Shelf
Notice. The Shelf Registration Statement shall be on Form
S-3 or another appropriate form permitting registration of
such Registrable Securities for resale by Holders in the
manner or manners designated by them (but not including any
underwritten offerings). The Partnership and the Guarantors
shall not permit any securities other than
-8-
the Registrable Securities to be included in the Shelf
Registration Statement.
The Partnership and the Guarantors shall use their respective
reasonable efforts to cause the Shelf Registration Statement
to be declared effective under the Securities Act on or prior
to the date that is 180 days after delivery of the Shelf
Notice and to keep the Shelf Registration Statement
continuously effective under the Securities Act until the date
that is two years from the Closing Date (or such shorter
restrictive period as may be required pursuant to Rule 144(k))
or such shorter period ending when all Registrable Securities
covered by the Shelf Registration Statement have been sold in
the manner set forth and as contemplated in the Shelf
Registration Statement or cease to be outstanding (the
"Effectiveness Period"); provided, however, that the
Effectiveness Period in respect of the Shelf Registration
Statement shall be extended to the extent required to permit
dealers to comply with the applicable prospectus delivery
requirements of Rule 174 under the Securities Act and as
otherwise provided herein.
(b) Withdrawal of Stop Orders. If the Shelf Registration Statement
ceases to be effective at any time during the Effectiveness
Period due to the receipt of a stop order from the Commission,
the Partnership and the Guarantors shall use their respective
reasonable efforts to obtain the prompt withdrawal of such
stop order.
(c) Supplements and Amendments. The Partnership and the Guarantors
shall promptly supplement and amend the Shelf Registration
Statement if required by the Securities Act or if reasonably
requested by the Holders of a majority in aggregate principal
amount of the Registrable Securities covered by such Shelf
Registration Statement.
4. Additional Interest
(a) The Partnership, the Guarantors and the Initial Purchasers
agree that the Holders of Registrable Securities will
suffer damages if the Partnership and the Guarantors fail
to fulfill their respective obligations under Section 2 or
Section 3 hereof and that it would not be feasible to
ascertain the extent of such damages with precision.
Accordingly, the Partnership and the Guarantors, jointly
and severally, agree to pay, as liquidated damages,
additional interest on the Notes so affected ("Additional
Interest"), over and above the stated interest for the
Notes, under the circumstances and to the extent set forth
below (without duplication):
(i) if (A) neither the Exchange Registration Statement
nor the Shelf Registration Statement has been filed
with the Commission on or prior to the date that is
120 days after the Closing Date or (B)
notwithstanding that the Partnership and the
Guarantors have
-9-
consummated or will consummate the Exchange Offer, the
Partnership and the Guarantors are required to file a
Shelf Registration Statement and such Shelf Registration
Statement is not filed on or prior to the 90th day after
the delivery of the Shelf Notice applicable thereto,
then, commencing on the 121st date after the Closing
Date (in the case of foregoing clause (A)) or on the
91st day after the delivery of the Shelf Notice (in the
case of foregoing clause (B)) (each such respective
date, a "Filing Date"), Additional Interest shall accrue
on the Notes over and above the stated interest for the
Notes at a rate of 0.25% per year during the first
90-day period, and such rate will increase by an
additional 0.25% per year with respect to each
subsequent 90-day period, up to a maximum additional
interest rate of 1.0%;
(ii) if (A) the Exchange Registration Statement is not
declared effective on or prior to the date that is 210
days after the Closing Date, or (B) notwithstanding that
the Partnership and the Guarantors have consummated or
will consummate the Exchange Offer, the Partnership and
the Guarantors are required to file a Shelf Registration
Statement and such Shelf Registration Statement is not
declared effective by the Commission on or prior to the
date that is 180 days after the delivery of the Shelf
Notice in respect of such Shelf Registration Statement,
then commencing on the 211th day after the Closing Date
(in the case of foregoing clause (A)) or on the 181st
day after delivery of the Shelf Notice (in the case of
foregoing clause (B)) (each such respective date, an
"Effectiveness Date"), Additional Interest shall accrue
on the Notes included or that should have been included
in such Registration Statement over and above the stated
interest for the Notes at a rate of 0.25% per year
during the first 90-day period, and such rate will
increase by an additional 0.25% per year with respect to
each subsequent 90-day period, up to a maximum
additional interest rate of 1.0%; and
(iii) if either (A) the Partnership and the Guarantors have
not exchanged Exchange Notes for all Notes validly
tendered in accordance with the terms of the Exchange
Offer on or prior to the 45th day after the date on
which the Exchange Registration Statement is first
declared effective or (B) if applicable, a Shelf
Registration Statement has been declared effective and
such Shelf Registration Statement ceases to be effective
at any time prior to the second anniversary of the
Closing Date (or such corresponding shorter restrictive
period, if Rule 144(k) is amended to provide a shorter
restrictive period) while any Registrable Securities are
outstanding, then Additional Interest shall accrue on
the Notes over and above the stated interest on the
Notes at a rate of 0.25% per year during the first
90-day period, and such rate will increase by
-10-
an additional 0.25% per year with respect to each
subsequent 90-day period, up to a maximum additional
interest rate of 1.0% commencing on (x) the 46th day
after such effective date of the Exchange Registration
Statement (in the case of foregoing clause (A) above) or
(y) the day such Shelf Registration Statement ceases to
be effective (in the case of foregoing clause (B)
above);
provided, however, that (1) the Additional Interest rate on
the Notes may not accrue under more than one of the foregoing
clauses (i) through (iii) of this Section 4(a) at any one
time, (2) at no time shall the aggregate amount of Additional
Interest accruing on the Notes exceed 1.0% per annum, (3) no
Additional Interest shall accrue on the Notes if the
Partnership and the Guarantors have timely filed an Exchange
Offer Registration Statement but are unable to complete the
Exchange Offer pursuant to Section 2(c) and have timely
delivered a Shelf Notice, unless the Partnership and the
Guarantors shall thereafter fail to satisfy one or more of the
time requirements specified above in clauses (i) through (iii)
of this Section 4(a) for filing and effectiveness of the Shelf
Registration Statement, in which event Additional Interest as
specified above shall accrue, and (4) all Additional Interest
payable on the Notes shall cease to accrue upon the earliest
to occur of (x) the expiration of the second anniversary of
the Closing Date or (y) the expiration of such shorter
restrictive period applicable to the Registrable Securities
that may be required pursuant to Rule 144(k);
and provided, further, that (1) upon the filing of the
Exchange Registration Statement or a Shelf Registration
Statement with respect to the Notes (in the case of clause (i)
of this Section 4(a)), (2) upon the effectiveness of the
Exchange Registration Statement or the Shelf Registration
Statement (in the case of clause (ii) of this Section 4(a)),
(3) upon the exchange of Exchange Notes for all Notes tendered
(in the case of clause (iii)(A) of this Section 4(a)), (4)
upon the effectiveness of the applicable Shelf Registration
Statement that had ceased to remain effective (in the case of
(iii)(B) of this Section 4(a)) and (5) upon such time as there
are no Registrable Securities outstanding, Additional Interest
on the Notes shall cease to accrue.
(b) Notification and Payment of Additional Interest. The
Partnership and the Guarantors shall notify the Trustee
within three business days after each date on which an
event occurs for which Additional Interest is required to
be paid pursuant to Section 4(a). Any amounts of Additional
Interest due pursuant to this Section 4 will be payable in
cash semi-annually in arrears on February 1 and August 1 of
each year (to the holders of record on the January 15 and
July 15 immediately preceding such interest payment dates),
commencing with the first such date occurring after any
such Additional Interest commences to accrue. The amount of
Additional Interest will be determined by multiplying the
applicable Additional
-11-
Interest rate by the principal amount of the Notes
outstanding, 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 consisting of twelve 30-day months and the
denominator of which is 360).
5. Registration Procedures
In connection with the filing of any Registration Statement pursuant to
Section 2 or 3 hereof, the Partnership and the Guarantors shall effect
such registrations to permit the sale of the securities covered thereby in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto and in connection with any Registration Statement filed
by the Partnership and the Guarantors hereunder, the Partnership and the
Guarantors shall:
(a) Prepare and file with the Commission on or prior to the 120th day
after the Closing Date (in the case of the Exchange Registration
Statement) or the 90th day after delivery of the Shelf Notice (in
the case of the Shelf Registration Statement), any Registration
Statement required by Section 2 or 3 hereof, and use their
reasonable efforts to cause each such Registration Statement to
become effective and remain effective as provided herein; provided,
however, that if such filing is pursuant to Section
3 hereof, before filing any Registration Statement or Prospectus or
any amendments or supplements thereto, the Partnership and the
Guarantors shall furnish to and afford the Holders of the
Registrable Securities covered by such Registration Statement and
their counsel a reasonable opportunity to review copies of all such
documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed, in
each case at least three business days prior to such filing. The
Partnership and the Guarantors shall not file any Registration
Statement or Prospectus or any amendments or supplements thereto if
the Holders of a majority in aggregate principal amount of
Registrable Securities covered by such Registration Statement or
their counsel shall reasonably object on or prior to the third
business day following receipt of a copy of any Registration
Statement or Prospectus or any amendment or supplement thereto
proposed to be filed.
(b) Prepare and file with the Commission such amendments and
post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement continuously effective
for the Effectiveness Period or the Applicable Period, as the case
may be; cause the related Prospectus to be supplemented by any
prospectus supplement required by applicable law, and as so
supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) promulgated under the Securities Act; and
comply with the provisions of the Securities Act and the Exchange
Act applicable to it with respect to the disposition of all
securities covered by such Registration Statement as so amended or
in
-12-
such Prospectus as so supplemented and with respect to the
subsequent resale of any securities being sold by a Participating
Broker-Dealer covered by any such Prospectus; the Partnership and
the Guarantors shall be deemed not to have used their respective
reasonable efforts to keep a Registration Statement effective during
the Applicable Period if either of the Partnership or the Guarantors
voluntarily takes any action that would result in selling Holders of
the Registrable Securities covered thereby or Participating
Broker-Dealers seeking to sell Exchange Notes not being able to sell
such Registrable Securities or such Exchange Notes during that
period, unless such action is required by applicable law or unless
the Partnership and the Guarantors comply with this Agreement,
including without limitation, the provisions of Section 5(k) hereof
and the last paragraph of this Section 5.
(c) If a Shelf Registration Statement is filed pursuant to Section 3
hereof or a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, notify the selling Holders of Registrable Securities, or
each such Participating Broker-Dealer, as the case may be, and their
counsel, promptly (but in any event within two business days) and
confirm such notice in writing:
(i) when a Prospectus or post-effective amendment has been filed,
and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective
under the Securities Act (including in such notice a written
statement that any Holder may, upon request, obtain, at the
sole expense of the Partnership or the Guarantors, one
conformed copy of such Registration Statement or
post-effective amendment including financial statements and
schedules, documents incorporated or deemed to be incorporated
by reference and all exhibits);
(ii) of the issuance by the Commission of any stop order suspending
the effectiveness of a Registration Statement or of any order
preventing or suspending the use of any Prospectus or the
initiation of any proceedings for that purpose;
(iii) if, at any time when a Prospectus is required by the
Securities Act to be delivered in connection with sales of the
Registrable Securities or resales of Exchange Notes by
Participating Broker-Dealers, the representations and
warranties of the Partnership or the Guarantors contained in
any agreement cease to be true and correct;
(iv) of the receipt by the Partnership or the Guarantors of any
notification with respect to the suspension of the
qualification or
-13-
exemption from qualification of a Registration Statement or
any of the Registrable Securities or the Exchange Notes to be
sold by any Participating Broker-Dealer for offer or sale in
any jurisdiction, or the initiation or written threat of any
proceeding for such purpose;
(v) of the happening of any event, the existence of any condition
or any information becoming known that makes any statement
made in such Registration Statement or related Prospectus or
any document incorporated or deemed to be incorporated therein
by reference untrue in any material respect or that requires
the making of any changes in or amendments or supplements to
such Registration Statement or Prospectus so that, in the case
of the Registration Statement, it will not contain any untrue
statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading,
and that in the case of the Prospectus, it will not contain
any 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 the light of the circumstances
under which they were made, not misleading;
(vi) of the Partnership's and Guarantors' determination that a
post-effective amendment to a Registration Statement would be
appropriate; and
(vii) if at any time when a Prospectus is required by the Securities
Act to be delivered in connection with sales of the
Registrable Securities or resales of Exchange Notes by
Participating Broker-Dealers, the Partnership and the
Guarantors determine, in their reasonable judgment, after
consultation with counsel, that the continued use of the
Prospectus would require the disclosure of confidential
information or interfere with any financing, acquisition,
reorganization or other material transaction involving the
Partnership or the Guarantors.
(d) Use their respective reasonable efforts to prevent the issuance of
any order suspending the effectiveness of a Registration Statement
or of any order preventing or suspending the use of a Prospectus or
suspending the qualification (or exemption from qualification) of
any of the Registrable Securities or the Exchange Notes for sale in
any jurisdiction in the United States and, if any such order is
issued, to use their reasonable efforts to obtain the withdrawal of
any such order.
(e) [RESERVED]
(f) If (i) a Shelf Registration Statement is filed pursuant to Section 3
hereof or (ii) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the
-14-
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, furnish to each selling
Holder of Registrable Securities and to each such Participating
Broker-Dealer who so requests and to their respective counsel at the
sole expense of the Partnership and the Guarantors, one conformed
copy of such Registration Statement and each post-effective
amendment thereto, including financial statements and schedules and,
if requested, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits.
(g) If (i) a Shelf Registration Statement is filed pursuant to Section 3
hereof or (ii) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, deliver to each selling Holder of Registrable Securities, or
each such Participating Broker-Dealer, as the case may be, and their
respective counsel, at the sole expense of the Partnership and the
Guarantors, as many copies of such Prospectus and each amendment or
supplement thereto and any documents incorporated by reference
therein as such Persons may reasonably request; and, subject to the
last paragraph of this Section 5, the Partnership and the Guarantors
hereby consent to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Holders of Registrable
Securities or each such Participating Broker-Dealer, as the case may
be, and the agents, if any, and dealers, if any, in connection with
the offering and sale of the Registrable Securities covered by, or
the sale by Participating Broker-Dealers of the Exchange Notes
pursuant to, such Prospectus and any amendment or supplement
thereto.
(h) Prior to any delivery of a Prospectus contained in the Exchange
Registration Statement by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, to use their
reasonable efforts to register or qualify and to cooperate with the
selling Holders of Registrable Securities or each such Participating
Broker-Dealer, as the case may be, and their respective counsel in
connection with the registration or qualification (or exemption from
such registration or qualification) of such Registrable Securities
for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any selling Holder or
Participating Broker-Dealer reasonably requests in writing;
provided, however, that where Exchange Notes held by Participating
Broker-Dealers or Registrable Securities are offered other than
through an underwritten offering, the Partnership and the Guarantors
agree to cause their counsel to perform Blue Sky investigations and
file registrations and qualifications required to be filed pursuant
to this Section 5(h); use their reasonable efforts to keep each such
registration or qualification (or exemption therefrom) effective
during the period such Registration Statement is required to be kept
effective and do any and all
-15-
other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Exchange Notes held by
Participating Broker-Dealers or the Registrable Securities covered
by the applicable Registration Statement; provided, however, that
neither the Partnership nor the Guarantors shall be required to file
any general consent to service of process or to qualify as a foreign
corporation or as a securities dealer in any jurisdiction or to
subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject.
(i) If a Shelf Registration Statement is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Registrable Securities
to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold, which certificates
shall not bear any restrictive legends and shall be in a form
eligible for deposit with DTC; and, if such Registrable Securities
are to be in certificated form, to enable such Registrable
Securities to be in such denominations and registered in such names
as the Holders may reasonably request.
(j) Use their respective reasonable efforts to cause the Registrable
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 Holders thereof or the
Participating Broker-Dealers, if any, to consummate the disposition
of such Registrable Securities, except as may be required solely as
a consequence of the nature of such selling Holder's business, in
which case the Partnership and the Guarantors will cooperate in all
reasonable respects with the filing of such Registration Statement
and the granting of such approvals.
(k) If (1) a Shelf Registration Statement is filed pursuant to Section 3
hereof or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, upon the occurrence of any event contemplated by Section
5(c)(v), 5(c)(vi) or 5(c)(vii) hereof, as promptly as practicable
(in the case of 5(c)(vii) after cessation of the transaction
referred to therein), prepare and (subject to Section 5(a) hereof)
file with the Commission, at the Partnership's and Guarantors' sole
expense, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or
any document incorporated or deemed to be incorporated therein by
reference, or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Securities
being sold thereunder or to the purchasers of the Exchange Notes to
whom such Prospectus will be delivered by a Participating
Broker-Dealer, any such Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact
-16-
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(l) Use respective reasonable efforts to cause the Registrable
Securities covered by a Registration Statement or the Exchange
Notes, as the case may be, to be rated with the appropriate rating
agencies.
(m) Prior to the effective date of the first Registration Statement
relating to the Registrable Securities, (i) provide the Trustee with
certificates for, or the form of global note with respect to, the
Registrable Securities or Exchange Notes, as the case may be, in a
form eligible for deposit with DTC and (ii) provide a CUSIP number
for the Registrable Securities or Exchange Notes, as the case may
be.
(n) If (i) a Shelf Registration Statement is filed pursuant to Section 3
hereof or (ii) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, upon reasonable advance notice make available for inspection
by any selling Holder of such Registrable Securities being sold, or
each such Participating Broker-Dealer, as the case may be, and any
attorney, accountant or other agent retained by any such selling
Holder or each such Participating Broker-Dealer, as the case may be
(collectively, the "Inspectors"), at the offices where normally
kept, during reasonable business hours without interfering in the
orderly business of the Partnership or the Guarantors, all financial
and other relevant records, pertinent corporate documents and
instruments of the Partnership and the Guarantors and their
subsidiaries (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the respective officers, directors and
employees of the Partnership and the Guarantors and their
subsidiaries to supply all information reasonably requested by any
such Inspector in connection with such Registration Statement.
Records that the Partnership and the Guarantors determine, in good
faith, to be confidential and any Records that they notify the
Inspectors are confidential shall not be disclosed by the Inspectors
unless (A) the disclosure of such Records is necessary to avoid or
correct a material misstatement or omission in such Registration
Statement, (B) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction, (C)
after giving reasonable prior notice to the Partnership and the
Guarantors, disclosure of such information is, in the opinion of
counsel for any Inspector, necessary or advisable in connection with
any action, claim, suit or proceeding, directly or indirectly,
involving or potentially involving such Inspector and arising out
of, based upon, relating to or involving this Agreement or any
transactions contemplated hereby or arising hereunder or (D) the
information in such Records has been made generally available to the
-17-
public. Each selling Holder of such Registrable Securities and each
such Participating Broker-Dealer will be required to agree that
information obtained by it as a result of such inspections shall be
deemed confidential and shall not be used by it as the basis for any
market transactions in the securities of the Partnership or the
Guarantors unless and until such information is generally available
to the public. Each selling Holder of such Registrable Securities
and each such Participating Broker-Dealer will be required to
further agree that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give notice
to the Partnership and the Guarantors and allow the Partnership and
the Guarantors to undertake appropriate action to prevent disclosure
of the Records deemed confidential at the sole expense of
Partnership and the Guarantors.
(o) Provide an indenture trustee for the Registrable Securities or the
Exchange Notes, as the case may be, and cause the Indenture or the
trust indenture provided for in Section 2(a) hereof, as the case may
be, to be qualified under the TIA not later than the effective date
of the Exchange Offer or the first Registration Statement relating
to the Registrable Securities; and in connection therewith,
cooperate with the Trustee and the Holders of the Registrable
Securities, to effect such changes to such 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 reasonable efforts to
cause such Trustee to execute, all documents as may be required to
effect such changes and all other forms and documents required to be
filed with the Commission to enable such indenture to be so
qualified in a timely manner.
(p) Comply with all applicable rules and regulations of the Commission
and make generally available to its securityholders earning
statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after
the end of any 12-month period (or 90 days after the end of any
12-month period if such period is a fiscal year) (i) commencing at
the end of any fiscal quarter in which Registrable Securities are
sold to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters in such
an offering, commencing on the first day of the first fiscal quarter
of the Partnership and the Guarantors after the effective date of a
Registration Statement, which statements shall cover said 12-month
periods.
(q) If an Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable Securities by Holders to the
Partnership or the Guarantors (or to such other Person as directed
by the Partnership) in exchange for the Exchange Notes or the
Private Exchange Notes, as the case may be, the Partnership or the
Guarantors, as the case may be, shall mark, or cause to be marked,
on such
-18-
Registrable Securities that such Registrable Securities are being
cancelled in exchange for the Exchange Notes or the Private Exchange
Notes, as the case may be; in no event shall such Registrable
Securities be marked as paid or otherwise satisfied.
(r) Cooperate with each seller of Registrable Securities covered by any
Registration Statement and each Participating Broker-Dealer, if any,
participating in the disposition of such Registrable Securities and
their respective counsel in connection with any filings required to
be made with the NASD.
(s) Use their respective reasonable efforts to take all other steps
necessary or advisable to effect the registration of the Registrable
Securities covered by a Registration Statement contemplated hereby.
The Partnership and the Guarantors may require each seller of
Registrable Securities as to which any registration is being
effected to furnish to the Partnership and the Guarantors such
information regarding such seller and the distribution of such
Registrable Securities as the Partnership and the Guarantors may,
from time to time, reasonably request. The Partnership and the
Guarantors may exclude from such registration the Registrable
Securities of any seller who unreasonably fails to furnish such
information within a reasonable time after receiving such request
and in such event shall have no further obligation under this
Agreement (including, without limitation, obligations under Section
4 hereof) with respect to such seller or any subsequent holder of
such Registrable Securities. Each seller as to which any Shelf
Registration Statement is being effected agrees to furnish promptly
to the Partnership and the Guarantors all information required to be
disclosed in order to make the information previously furnished to
the Partnership and the Guarantors by such seller not materially
misleading.
Each Holder of Registrable Securities and each Participating
Broker-Dealer agrees by acquisition of such Registrable Securities
or Exchange Notes to be sold by such Participating Broker-Dealer, as
the case may be, that, upon actual receipt of any notice from the
Partnership or the Guarantors of the happening of any event of the
kind described in Sections 5(c)(ii), 5(c)(iv), 5(c)(v), 5(c)(vi) or
5(c)(vii) hereof, such Holder will forthwith discontinue disposition
of such Registrable Securities covered by such Registration
Statement or Prospectus or Exchange Notes to be sold by such Holder
or Participating Broker-Dealer, as the case may be, until such
Holder's or Participating Broker-Dealer's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 5(k)
hereof, or until it is advised in writing by the Partnership and the
Guarantors that the use of the applicable Prospectus may be resumed,
and has received copies of any amendments or supplements thereto. If
the Partnership or the Guarantors shall give any such notice, each
of the Effectiveness Period and the Applicable Period shall be
extended by the number of days during such periods from and
including the date of the
-19-
giving of such notice to and including the date when each seller of
Registrable Securities covered by such Registration Statement or
Exchange Notes to be sold by such Participating Broker-Dealer, as
the case may be, shall have received (i) the copies of the
supplemented or amended Prospectus contemplated by Section 5(k)
hereof or (ii) written notice that use of the applicable Prospectus
may be resumed, provided that the Effectiveness Period and the
Applicable Period shall not be extended beyond two years after the
Closing Date.
6. Registration Expenses
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Partnership and the Guarantors shall be
borne by the Partnership and the Guarantors whether or not the
Exchange Registration Statement or a Shelf Registration Statement is
filed or becomes effective, including, without limitation, (i) all
registration and filing fees (including, without limitation, fees
and expenses of compliance with state securities or Blue Sky laws
(including, without limitation, reasonable fees and disbursements of
counsel in connection with Blue Sky qualifications of the
Registrable Securities or Exchange Notes and determination of the
eligibility of the Registrable Securities or Exchange Notes for
investment under the laws of such jurisdictions (x) where the
holders of Registrable Securities are located, in the case of the
Exchange Notes, or (y) as provided in Section 5(h) hereof, in the
case of Registrable Securities or Exchange Notes to be sold by a
Participating Broker-Dealer during the Applicable Period)), (ii)
printing and duplicating expenses, including, without limitation,
expenses of preparing certificates for Registrable Securities or
Exchange Notes in a form eligible for deposit with DTC and of
printing or duplicating Prospectuses if the printing of Prospectuses
is requested by the Holders of a majority in aggregate principal
amount of the Registrable Securities included in any Registration
Statement or sold by any Participating Broker-Dealer, as the case
may be, (iii) messenger, telephone and delivery expenses, (iv) fees
and disbursements of counsel for the Partnership and the Guarantors
and fees and disbursements of special counsel for the sellers of
Registrable Securities (subject to the provisions of Section 6(b)
hereof), (v) rating agency fees, if any, and any fees associated
with making the Registrable Securities or Exchange Notes eligible
for trading through DTC, (vi) Securities Act liability insurance, if
the Partnership and the Guarantors desire such insurance, (vii) fees
and expenses of all other Persons retained by the Partnership and
the Guarantors, (viii) internal expenses of the Partnership and the
Guarantors (including, without limitation, all salaries and expenses
of officers and employees of the Partnership and the Guarantors
performing legal or accounting duties), (ix) the expense of any
annual audit, (x) the fees and expenses incurred in connection with
the listing of the securities to be registered on any securities
exchange, if applicable, and (xi) the expenses relating to printing,
word processing and
-20-
distributing of all Registration Statements, underwriting
agreements, securities sales agreements, indentures and any other
documents necessary to comply with this Agreement.
(b) The Partnership and the Guarantors shall (i) reimburse the Holders
of the Registrable Securities being registered in a Shelf
Registration Statement for the reasonable fees and disbursements of
not more than one counsel chosen by the Holders of a majority in
aggregate principal amount of the Registrable Securities to be
included in such Registration Statement, and (ii) reimburse
reasonable out-of-pocket expenses (other than legal expenses) of
Holders of Registrable Securities incurred in connection with the
registration and sale of the Registrable Securities pursuant to a
Shelf Registration Statement.
7. Indemnification
(a) Each of the Partnership and the Guarantors agrees to indemnify and
hold harmless each Holder of Registrable Securities offered pursuant
to a Shelf Registration Statement and each Participating
Broker-Dealer selling Exchange Notes during the Applicable Period,
the officers and directors of each such Person or its affiliates,
and each other Person, if any, who controls any such Person or its
affiliates within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act (each, a "Participant"), from
and against any and all losses, claims, damages and liabilities
(including, without limitation, the reasonable legal fees and other
expenses actually incurred in connection with any suit, action or
proceeding or any claim asserted) caused by, arising out of or based
upon any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement pursuant to which the
offering of such Registrable Securities or Exchange Notes, as the
case may be, is registered (or any amendment thereto) or related
Prospectus (or any amendments or supplements thereto), or caused by,
arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that none of the Partnership or the Guarantors will be
required to indemnify a Participant if (i) such losses, claims,
damages or liabilities are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to any Participant
furnished to the Partnership and the Guarantors in writing by or on
behalf of such Participant expressly for use therein or (ii) if such
Participant sold to the Person asserting the claim the Registrable
Notes or Exchange Notes that are the subject of such claim after
receipt of a notice from the Partnership and the Guarantors pursuant
to Sections 5(c)(ii), 5(c)(iv), 5(c)(v), 5(c)(vi) or 5(c)(vii)
hereof and prior to receipt of copies of a supplemented or amended
Prospectus contemplated by Section 5(k) hereof, or written
-21-
notice from the Partnership and the Guarantors that the use of the
applicable Prospectus may be resumed.
(b) Each Participant shall be required to agree to indemnify and hold
harmless the Partnership and the Guarantors, the Partnership's
directors and officers, the Guarantors' directors and officers and
each Person who controls the Partnership and the Guarantors within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act and each other Participant to the same extent as the
foregoing indemnity from the Partnership and the Guarantors to each
Participant, but only (i) with reference to information relating to
such Participant furnished to the Partnership in writing by or on
behalf of such Participant expressly for use in any Registration
Statement or Prospectus or any amendment or supplement thereto or
(ii) with respect to any untrue statement or representation made by
such Participant in writing to the Partnership. The liability of any
Participant under this paragraph shall in no event exceed the
proceeds received by such Participant from sales of Registrable
Securities or Exchange Notes giving rise to such obligations.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or
asserted against any Person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such
Person (the "Indemnified Person") shall promptly notify the Person
against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of
the Indemnified Person, shall retain counsel reasonably satisfactory
to the Indemnified Person to represent the Indemnified Person and
any others the Indemnifying Person may reasonably designate in such
proceeding and shall pay the reasonable fees and expenses actually
incurred by such counsel related to such proceeding; provided,
however, that the failure to so notify the Indemnifying Person shall
not relieve it of any obligation or liability that it may have
hereunder or otherwise (unless and only to the extent that such
failure directly results in the loss or compromise of any material
rights or defenses by the Indemnifying Person and the Indemnifying
Person was not otherwise aware of such action or claim). In any such
proceeding, any Indemnified Person shall have the right to retain
its own counsel, but the fees and expenses of such counsel shall be
at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually
agreed in writing to the contrary, (ii) the Indemnifying Person
shall have failed within a reasonable period of time to retain
counsel reasonably satisfactory to the Indemnified Person or (iii)
the named parties in any such proceeding (including any impleaded
parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests
between them. It is understood that, unless there exists a conflict
-22-
among Indemnified Persons, the Indemnifying Person shall not,
in connection with any one such proceeding or separate but
substantially similar related proceedings in the same
jurisdiction arising out of the same general allegations, be
liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be
reimbursed promptly as they are incurred. Any such separate
firm for the Participants and such control Persons of
Participants shall be designated in writing by Participants
who sold a majority in interest of Registrable Securities and
Exchange Notes sold by all such Participants and any such
separate firm for the Partnership and the Guarantors, their
respective directors, officers and such control Persons of the
Partnership and the Guarantors shall be designated in writing
by the Partnership and the Guarantors. The Indemnifying Person
shall not be liable for any settlement of any proceeding
effected without its prior written consent, but if settled
with such consent or if there be a final non-appealable
judgment for the plaintiff for which the Indemnified Person is
entitled to indemnification pursuant to this Agreement, the
Indemnifying Person agrees to indemnify and hold harmless each
Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. No Indemnifying Person
shall, without the prior written consent of the Indemnified
Person (which consent shall not be unreasonably withheld or
delayed), effect any settlement or compromise of any pending
or threatened proceeding in respect of which any Indemnified
Person is or could have been a party, and indemnity could have
been sought hereunder by such Indemnified Person, unless such
settlement (A) includes an unconditional written release of
such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability on
claims that are the subject matter of such proceeding and (B)
does not include any statement as to an admission of fault,
culpability or failure to act by or on behalf of any
Indemnified Person.
(d) If the indemnification provided for in the first and second
paragraphs of this Section 7 is for any reason unavailable to,
or insufficient to hold harmless, an Indemnified Person in
respect of any losses, claims, damages or liabilities referred
to therein, then each Indemnifying Person under such
paragraphs, in lieu of indemnifying such Indemnified Person
thereunder and in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable
by such Indemnified Person as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Person or
Persons on the one hand and the Indemnified Person or Persons
on the other in connection with the statements or omissions or
alleged statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect
thereof). 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
-23-
omission to state a material fact relates to information
supplied by the Partnership and the Guarantors on the one hand
or such Participant or such other Indemnified Person, as the
case may be, on the other, the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission, and any other equitable
considerations appropriate in the circumstances.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Participants were treated as one
entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the
losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any reasonable
legal or other expenses actually incurred by such Indemnified
Person in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this
Section 7, in no event shall a Participant be required to
contribute any amount in excess of the amount by which
proceeds received by such Participant from sales of
Registrable Securities or Exchange Notes, as the case may be,
exceeds the amount of any damages that such Participant has
otherwise been required to pay or has paid by reason of such
untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
(f) Any losses, claims, damages, liabilities or expenses for which
an indemnified party is entitled to indemnification or
contribution under this Section 7 shall be paid by the
Indemnifying Person to the Indemnified Person as such losses,
claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the
Partnership and the Guarantors set forth in this Agreement
shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of
any Holder or any Person who controls a Holder, the
Partnership and the Guarantors, their respective directors,
officers, employees, agents or controlling persons, and (ii)
any termination of this Agreement.
(g) The indemnity and contribution agreements contained in this
Section 7 will be in addition to any liability that the
Indemnifying Persons may otherwise have to the Indemnified
Persons referred to above.
-24-
8. Rule 144 and 144A
-----------------
Each of the Partnership and the Guarantors covenants that it will
file the reports required to be filed by it under the Securities
Act and the Exchange Act and the rules and regulations adopted by
the Commission thereunder in a timely manner in accordance with the
requirements of the Securities Act and the Exchange Act and, if at
any time the Partnership and the Guarantors are not required to
file such reports, they will, upon the request of any Holder of
Registrable Securities, make available to any Holder or beneficial
owner of Registrable Securities in connection with any sale thereof
and any prospective purchaser of such Registrable Securities from
such Holder or beneficial owner the information required by Rule
144A(d)(4) under the Securities Act in order to permit resales of
such Registrable Securities pursuant to Rule 144A.
9. Miscellaneous
(a) No Inconsistent Agreements. The Partnership and the Guarantors
have not entered into, as of the date hereof, and shall not,
after the date of this Agreement, enter into any agreement
with respect to any of the Partnership's or the Guarantors'
securities that is inconsistent with the rights granted to the
Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof. Except for
registration obligations that heretofore have been fulfilled
in their entirety, the Partnership and the Guarantors have not
entered and will not enter into any agreement with respect to
any of the Partnership's or the Guarantors' securities that
will grant to any Person piggy-back registration rights with
respect to a Registration Statement.
(b) Adjustments Affecting Registrable Securities. The Partnership
and the Guarantors shall not, directly or indirectly, take any
action with respect to the Registrable Securities as a class
that would adversely affect the ability of the Holders of
Registrable Securities to include such Registrable Securities
in a registration undertaken pursuant to this Agreement.
(c) 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, otherwise than with the prior written consent of the
Partnership, the Guarantors, and the Holders of not less than
a majority in aggregate principal amount of the then
outstanding Registrable Securities.
Notwithstanding the foregoing, a waiver or consent to depart
from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders of Registrable
Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or
indirectly affect, impair, limit or compromise the rights of
other Holders of Registrable Securities may be given by
Holders of at least a majority in
-25-
aggregate principal amount of the Registrable Securities being
sold by such Holders pursuant to such Registration Statement;
provided, however, that the provisions of this sentence may
not be amended, modified or supplemented except in accordance
with the provisions of the immediately preceding sentence.
(d) Notices. All notices and other communications (including
without limitation any notices or other communications to the
Trustee) provided for or permitted hereunder shall be made in
writing by hand-delivery, registered first-class mail,
next-day air courier or facsimile:
(1) if to a Holder of the Registrable Securities or any
Participating Broker-Dealer, at the most current
address, if any, of such Holder or Participating
Broker-Dealer, as the case may be, set forth on the
records of the registrar under the Indenture, with a
copy in like manner to the Initial Purchasers as
follows:
Wachovia Capital Markets, L.L.C.
One Wachovia Center, DC8
301 South College Street
Charlotte, NC 28288-0602
Facsimile No.: (704) 383-0353
Attention: Legal Division
(2) if to the Initial Purchasers, at the addresses
specified in Section 9(d)(1)
(3) if to the Partnership and the Guarantors, at the
address as follows:
Energy Transfer Partners, L.P.
8801 South Yale Ave., Suite 310
Tulsa, Oklahoma 74137
Facsimile No.: (918) 493-7290
Attention: General Counsel
with a copy to:
Winston & Strawn LLP
200 Park Avenue
New York, New York 10166
Facsimile No.: (212) 294-4700
Attention: Robert Ericson
All such notices and communications shall be deemed
to have been duly given: when delivered by hand, if
personally delivered; five business days after being
deposited in the mail, postage prepaid, if mailed;
one business day after being timely delivered to a
next-day
-26-
air courier; and when receipt is acknowledged by the
addressee, if sent by facsimile.
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
and in the manner specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of
each of the parties hereto; provided, however, that this
Agreement shall not inure to the benefit of or be binding upon
a successor or assign of a Holder unless and to the extent
such successor or assign holds Registrable Securities.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall
constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WHOLLY WITHIN
THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT
TO THE EXCLUSIVE JURISDICTION OF THE COMPETENT COURTS OF THE
STATE OF NEW YORK SITTING IN NEW YORK COUNTY IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction
to be invalid, illegal, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no
way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable efforts to find and employ
an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(j) Notes Held by the Partnership and the Guarantors or their
Affiliates. Whenever the consent or approval of Holders of a
specified percentage of
-27-
Registrable Securities is required hereunder, Registrable
Securities held by the Partnership and the Guarantors or their
affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether
such consent or approval was given by the Holders of such
required percentage.
(k) Third Party Beneficiaries; Limitations on Remedies. Holders of
Registrable Securities and Participating Broker-Dealers are
intended third party beneficiaries of this Agreement and this
Agreement may be enforced by such Persons. The receipt of
Additional Interest pursuant to Section 4(a) shall be the sole
monetary remedy available to Holders for the failure of the
Partnership or the Guarantors to meet the registration
obligations set forth herein for Registrable Securities.
(l) Entire Agreement. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a
final and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject
matter contained herein and therein and any and all prior oral
or written agreements, representations, or warranties,
contracts, understandings, correspondence, conversations and
memoranda between the Initial Purchasers on the one hand and
the Partnership and the Guarantors on the other, or between or
among any agents, representatives, parents, subsidiaries,
affiliates, predecessors in interest or successors in interest
with respect to the subject matter hereof and thereof are
merged herein and replaced hereby.
[Signature Pages Follow]
-28-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ENERGY TRANSFER PARTNERS, L.P.
By: U.S. Propane, L.P.
Its: General Partner
By:U.S. Propane, L.L.C.
Its: General Partner
By: /s/ Ray C. Davis
--------------------------------
Name: Ray C. Davis
Title: Co-Chief Executive Officer
LA GRANGE ACQUISITION, L.P.
By: LA GP, LLC, its general partner
By: /s/ Ray C. Davis
------------------------------------
Name: Ray C. Davis
Title: Co-Chief Executive Officer
LG PL, LLC
By: /s/ Ray C. Davis
------------------------------------
Name: Ray C. Davis
Title: Co-Chief Executive Officer
ETC TEXAS PIPELINE, LTD.
ETC GAS COMPANY, LTD.
ETC OKLAHOMA PIPELINE, LTD.
ETC KATY PIPELINE, LTD.
ETC TEXAS PROCESSING, LTD.
By: LG PL, LLC, its general partner
By: /s/ Ray C. Davis
------------------------------------
Name: Ray C. Davis
Title: Co-Chief Executive Officer
Signature Page of Registration Rights Agreement
LGM, LLC
By: /s/ Ray C. Davis
------------------------------------
Name: Ray C. Davis
Title: Co-Chief Executive Officer
ETC MARKETING, LTD.
By: LGM, LLC, its general partner
By: /s/ Ray C. Davis
------------------------------------
Name: Ray C. Davis
Title: Co-Chief Executive Officer
ETC OASIS GP, LLC
By: /s/ Ray C. Davis
------------------------------------
Name: Ray C. Davis
Title: Co-Chief Executive Officer
OASIS PIPELINE, LP
ETC OASIS, L.P.
By: ETC OASIS GP, LLC, its general
partner
By: /s/ Ray C. Davis
------------------------------------
Name: Ray C. Davis
Title: Co-Chief Executive Officer
FIVE DAWACO, LLC
By: /s/ Ray C. Davis
------------------------------------
Name: Ray C. Davis
Title: Co-Chief Executive Officer
Signature Page of Registration Rights Agreement
ET COMPANY I, LTD.
CHALKLEY TRANSMISSION COMPANY, LTD.
WHISKEY BAY GATHERING COMPANY, LTD.
WHISKEY BAY GAS COMPANY, LTD.
By: FIVE DAWACO, LLC, its general
partner
By: /s/ Ray C. Davis
----------------------------------
Name: Ray C. Davis
Title: Co-Chief Executive Officer
TETC, LLC
By: /s/ Ray C. Davis
----------------------------------
Name: Ray C. Davis
Title: Co-Chief Executive Officer
TEXAS ENERGY TRANSFER COMPANY, LTD.
By: TETC, LLC, its general partner
By: /s/ Ray C. Davis
----------------------------------
Name: Ray C. Davis
Title: Co-Chief Executive Officer
OASIS PIPE LINE COMPANY
By: /s/ Ray C. Davis
----------------------------------
Name: Ray C. Davis
Title: Co-Chief Executive Officer
OASIS PIPE LINE FINANCE COMPANY
By: /s/ Ray C. Davis
----------------------------------
Name: Ray C. Davis
Title: Co-Chief Executive Officer
Signature Page of Registration Rights Agreement
OASIS PARTNER COMPANY
By: /s/ Ray C. Davis
------------------------------------
Name: Ray C. Davis
Title: Co-Chief Executive Officer
OASIS PIPE LINE MANAGEMENT
COMPANY
By: /s/ Ray C. Davis
------------------------------------
Name: Ray C. Davis
Title: Co-Chief Executive Officer
OASIS PIPE LINE COMPANY TEXAS L.P.
By: OASIS PIPE LINE MANAGEMENT
COMPANY, its general partner
By: /s/ Ray C. Davis
------------------------------------
Name: Ray C. Davis
Title: Co-Chief Executive Officer
ENERGY TRANSFER FUEL GP, LLC
By: /s/ Ray C. Davis
------------------------------------
Name: Ray C. Davis
Title: Co-Chief Executive Officer
ENERGY TRANSFER FUEL, LP
By: ENERGY TRANSFER FUEL GP, LLC, its
general partner
By: /s/ Ray C. Davis
------------------------------------
Name: Ray C. Davis
Title: Co-Chief Executive Officer
Signature Page of Registration Rights Agreement
WACHOVIA CAPITAL MARKETS, LLC
BANC OF AMERICA SECURITIES LLC
BNP PARIBAS SECURITIES CORP.
GREENWICH CAPITAL MARKETS, INC.
BY:WACHOVIA CAPITAL MARKETS, LLC
By: /s/ Steven J. Taylor
------------------------------------
Name: Steven J. Taylor
Title: Managing Director
Signature Page of Registration Rights Agreement