REGISTRATION RIGHTS AGREEMENT by and among Copano Energy, L.L.C. Copano Energy Finance Corporation The Guarantors Listed on Schedule A and Banc of America Securities LLC Credit Suisse Securities (USA) LLC Goldman, Sachs & Co. Lehman Brothers Inc....
by and among
and
Banc of America Securities LLC
Credit Suisse Securities (USA) LLC
Xxxxxxx, Xxxxx & Co.
Xxxxxx Brothers Inc.
Comerica Securities, Inc.
Fortis Securities LLC
KeyBanc Capital Markets, a Division of McDonald Investments Inc.
Xxxxx Xxxxxxx & Co.
RBC Capital Markets Corporation
Xxxxxxx Xxxxxx Xxxxxx Inc.
Credit Suisse Securities (USA) LLC
Xxxxxxx, Xxxxx & Co.
Xxxxxx Brothers Inc.
Comerica Securities, Inc.
Fortis Securities LLC
KeyBanc Capital Markets, a Division of McDonald Investments Inc.
Xxxxx Xxxxxxx & Co.
RBC Capital Markets Corporation
Xxxxxxx Xxxxxx Xxxxxx Inc.
Dated as of February 7, 2006
TABLE OF CONTENTS
Section | Page | |||
1. |
Definitions | 1 | ||
2. |
Securities Subject to this Agreement | 4 | ||
3. |
Registered Exchange Offer | 4 | ||
4. |
Shelf Registration | 5 | ||
5. |
Additional Interest | 6 | ||
6. |
Registration Procedures | 7 | ||
7. |
Registration Expenses | 14 | ||
8. |
Indemnification | 15 | ||
9. |
Rule 144 and 144A Information | 17 | ||
10. |
Participation in Underwritten Registrations | 17 | ||
11. |
Selection of Underwriters | 17 | ||
12. |
Miscellaneous | 18 |
i
This Registration Rights Agreement (this “Agreement”) is made and entered into as of
February 7, 2006, by and among Copano Energy, L.L.C., a Delaware limited liability company (the
“Company”), Copano Energy Finance Corporation, a Delaware corporation (“XxxXx”)
(the Company and XxxXx are referred to collectively as the “Issuers”), the guarantors
listed on Schedule A hereto (collectively, the “Guarantors”), and Banc of America
Securities LLC, Credit Suisse Securities (USA) LLC, Xxxxxxx, Sachs & Co., Xxxxxx Brothers Inc.,
Comerica Securities, Inc., Fortis Securities LLC, KeyBanc Capital Markets, a Division of McDonald
Investments Inc., Xxxxx Xxxxxxx & Co., RBC Capital Markets Corporation and Xxxxxxx Xxxxxx Xxxxxx
Inc. (collectively, the “Initial Purchasers”), who
have agreed to purchase the Issuers’ 81/8%
Senior Notes due 2016 (the “Initial Notes”) fully and unconditionally guaranteed by the
Guarantors (the “Guarantees”) pursuant to the Purchase Agreement (as defined below). The
Initial Notes and the Guarantees are herein collectively referred to as the “Initial
Securities.”
This Agreement is made pursuant to the Purchase Agreement, dated January 31, 2006 (the
“Purchase Agreement”), among the Issuers, the Guarantors and the Initial Purchasers (i) for
the benefit of the Initial Purchasers and (ii) for the benefit of the Holders from time to time of
the Initial Securities, including the Initial Purchasers. In order to induce the Initial
Purchasers to purchase the Initial Securities, 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 6(j) of the Purchase Agreement.
The parties hereby agree as follows:
Section 1. Definitions. As used in this Agreement, the following capitalized terms
shall have the following meanings:
Additional Interest: As defined in Section 5 hereof.
Advice: As defined in the last paragraph of Section 6(c) hereof.
Agreement: As defined in the preamble hereto.
Blackout Period: As defined in the last paragraph of Section 4(a) hereof.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: As defined in the Indenture.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Company: As defined in the preamble hereto.
Consummate: A registered Exchange Offer shall be deemed “Consummated” for purposes of this
Agreement upon the occurrence of (i) the filing and effectiveness under the
Securities Act of the Exchange Offer Registration Statement relating to the Exchange
Securities to be issued in the Exchange Offer, (ii) the maintenance of such Registration Statement
continuously effective and the keeping of the Exchange Offer open for a period not less than the
minimum period required pursuant to Section 3(b) hereof, and (iii) the delivery by the Issuers to
the Registrar under the Indenture of Exchange Securities in the same aggregate principal amount as
the aggregate principal amount of Initial Securities that were tendered by Holders thereof pursuant
to the Exchange Offer.
Effectiveness Target Date: As defined in Section 5 hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The Issuers’ offer to the Holders of all outstanding Transfer Restricted
Securities of the opportunity to exchange all such outstanding Transfer Restricted Securities held
by such Holders for Exchange Securities in an aggregate principal amount equal to the aggregate
principal amount of the Transfer Restricted Securities tendered in such exchange offer by such
Holders.
Exchange Offer Registration Statement: The Registration Statement relating to the Exchange
Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers propose to sell the Initial
Securities to certain “qualified institutional buyers,” as such term is defined in Rule 144A under
the Securities Act and to certain non-U.S. persons pursuant to Regulation S under the Securities
Act.
Exchange
Securities: The
81/8% Senior Notes due 2016, of the same series under the Indenture as
the Initial Notes, and the Guarantees related thereto, to be issued to Holders in exchange for
Transfer Restricted Securities pursuant to this Agreement.
XxxXx: As defined in the preamble hereto.
Guarantees: As defined in the preamble hereto.
Holder: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of February 7, 2006 by and among the Issuers, the
Guarantors and the Trustee, pursuant to which the Securities are to be issued, as such Indenture is
amended or supplemented from time-to-time in accordance with the terms thereof.
Initial Purchasers: As defined in the preamble hereto.
Initial Notes: As defined in the preamble hereto.
Initial Placement: The issuance and sale by the Issuers of the Initial Securities to the
Initial Purchasers pursuant to the Purchase Agreement.
2
Initial Securities: As defined in the preamble hereto.
Issuers: As defined in the preamble hereto.
NASD: NASD Inc.
Person: An individual, partnership, limited liability company, corporation, trust or
unincorporated organization, or a government or agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement, as amended or supplemented
by any prospectus supplement and by all other amendments thereto, including post-effective
amendments, and all material incorporated by reference into such Prospectus.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company relating to (a) an offering
of Exchange Securities pursuant to an Exchange Offer or (b) the registration for resale of Transfer
Restricted Securities pursuant to the Shelf Registration Statement, which is filed pursuant to the
provisions of this Agreement, in each case, including the Prospectus.
Securities: The Initial Securities and the Exchange Securities.
Securities Act: The Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 4(a)(x) hereof.
Shelf Registration Statement: As defined in Section 4(a)(x) hereof.
Trustee: U.S. Bank National Association.
Trust Indenture Act: The Trust Indenture Act of 1939, as amended.
Transfer Restricted Securities: Each Initial Security, until the earliest to occur of (a) the
date on which such Initial Security is exchanged in the Exchange Offer for an Exchange Security
entitled to be resold to the public by the Holder thereof without complying with the prospectus
delivery requirements of the Securities Act, (b) the date on which such Initial Security has been
effectively registered under the Securities Act and disposed of in accordance with a Shelf
Registration Statement, (c) the date on which such Initial Security is distributed to the public
pursuant to Rule 144(k) under the Securities Act or by a Broker-Dealer pursuant to the “Plan of
Distribution” contemplated by the Exchange Offer Registration Statement (including delivery of the
Prospectus contained therein) and (d) the date on which such Initial Securities cease to be
outstanding for purposes of the Indenture.
Underwritten Registration or Underwritten Offering: A registration in which securities of the
Company are sold to an underwriter for reoffering to the public.
3
Section 2. Securities Subject to this Agreement.
(a) Transfer Restricted Securities. The Transfer Restricted Securities are entitled to the
benefits of this Agreement.
(b) Holders of Transfer Restricted Securities. A Person is deemed to be a holder of Transfer
Restricted Securities (each, a “Holder”) whenever such Person owns Transfer Restricted
Securities.
Section 3. Registered Exchange Offer.
(a) Unless the Exchange Offer shall not be permissible under applicable law or Commission
policy, each of the Issuers and the Guarantors shall (i) cause to be filed with the Commission on
or prior to 120 days after the Closing Date, a Registration Statement under the Securities Act
relating to the Exchange Securities (other than Transfer Restricted Securities acquired by any
Broker-Dealer directly from the Issuers) and the Exchange Offer, (ii) use its reasonable best
efforts (which shall include the filing of all necessary amendments to such Registration Statement)
to cause such Registration Statement to be declared effective by the Commission on or prior to 180
days after the Closing Date, and (iii) upon the effectiveness of such Registration Statement,
promptly commence the Exchange Offer. The Exchange Offer shall be on the appropriate form
permitting registration of the Exchange Securities to be offered in exchange for the Transfer
Restricted Securities (other than Transfer Restricted Securities acquired by any Broker-Dealer
directly from the Issuers) and to permit resales of Initial Securities held by Broker-Dealers as
contemplated by Section 3(c) hereof.
(b) The Issuers and the Guarantors shall cause the Exchange Offer Registration Statement to
be effective continuously and shall keep the Exchange Offer open for a period of not less than the
minimum period required under applicable federal and state securities laws to Consummate the
Exchange Offer. The Issuers shall cause the Exchange Offer to comply with all applicable federal
and state securities laws. No securities other than the Exchange Securities shall be included in
the Exchange Offer Registration Statement. The Issuers shall use their reasonable best efforts to
cause the Exchange Offer to be Consummated no later than 30 Business Days after the Exchange Offer
Registration Statement has become effective.
(c) The Issuers shall indicate in a “Plan of Distribution” section contained in the
Prospectus forming a part of the Exchange Offer Registration Statement that any Broker-Dealer who
holds Initial Securities that are Transfer Restricted Securities and that were acquired for its own
account as a result of market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Issuers) may exchange such Initial Securities
pursuant to the Exchange Offer; however, such Broker-Dealer may be deemed to be an “underwriter”
within the meaning of the Securities Act and must, therefore, deliver a prospectus meeting the
requirements of the Securities Act in connection with any resales of the Exchange Securities
received by such Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may be
satisfied by the delivery by such Broker-Dealer of the Prospectus contained in the Exchange Offer
Registration Statement. Such “Plan of Distribution” section shall also contain all other
information with respect to such resales by Broker-Dealers that the Commission may require in order
to permit such resales pursuant thereto, but such “Plan of
4
Distribution” shall not name any such Broker-Dealer or disclose the amount of Initial
Securities held by any such Broker-Dealer except to the extent required by the Commission.
Each of the Issuers and the Guarantors shall use its reasonable best efforts to keep the
Exchange Offer Registration Statement continuously effective, supplemented and amended as required
by the provisions of Section 6(c) hereof to the extent necessary to ensure that it is available for
resales of Initial Securities acquired by Broker-Dealers for their own accounts as a result of
market-making activities or other trading activities, and to ensure that it conforms with the
requirements of this Agreement, the Securities Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period ending on the earlier of (i) 210 days after
the Consummation of the Exchange Offer and (ii) the date on which a Broker-Dealer is no longer
required to deliver a prospectus in connection with market-making or other trading activities.
The Issuers shall provide sufficient copies of the latest version of such Prospectus to
Broker-Dealers promptly upon request at any time during such 210-day (or shorter as provided in the
foregoing sentence) period in order to facilitate such resales.
Section 4. Shelf Registration.
(a) Shelf Registration. If (i) the Issuers are not required to file an Exchange Offer
Registration Statement or to consummate the Exchange Offer because the Exchange Offer is not
permitted by applicable law or Commission policy, (ii) for any reason the Exchange Offer is not
Consummated within 30 Business Days after the Exchange Offer Registration Statement has become
effective or (iii) with respect to any Holder of Transfer Restricted Securities, such Holder
notifies the Company following the Consummation of the Exchange Offer that (A) because of any
change in law or in currently prevailing interpretations of the staff of the Commission, such
Holder (other than an Initial Purchaser holding Notes acquired directly from the Issuers) is
prohibited by applicable law or Commission policy from participating in the Exchange Offer, or (B)
such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the
public without delivering a prospectus and that 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 Initial Securities acquired directly from an Issuer or one of
its affiliates, then, in each case upon such Holder’s request in writing within 20 Business Days
after the Consummation of the Exchange Offer, the Issuers and the Guarantors shall:
(x) cause to be filed a shelf registration statement pursuant to Rule 415 under the
Securities Act, which may be an amendment to the Exchange Offer Registration Statement (in
either event, the “Shelf Registration Statement”), on or prior to the earliest to
occur of (1) the 120th day after the date on which the Issuers determine that they are not
required to file the Exchange Offer Registration Statement as contemplated by clause (a)(i)
above, (2) the 120th day after the 30th Business Day if the Exchange Offer is not
Consummated within 30 Business Days after the Exchange Offer Registration Statement has
become effective as contemplated by clause (a)(ii) above and (3) the 120th day after the
date on which the Company receives notice from a Holder of Transfer Restricted Securities as
contemplated by clause (a)(iii) above (such earliest date being the “Shelf
5
Filing Deadline”), which Shelf Registration Statement shall provide for resales
of all Transfer Restricted Securities the Holders of which shall have provided the
information required pursuant to Section 4(b) hereof; and
(y) use their reasonable best efforts to cause such Shelf Registration Statement to be
declared effective by the Commission on or before the 180th day after the date on which the
filing obligation arises.
Each of the Issuers and the Guarantors shall use its reasonable best efforts to keep such
Shelf Registration Statement continuously effective, supplemented and amended as required by the
provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure that it is available
for resales of Initial Securities by the Holders of Transfer Restricted Securities entitled to the
benefit of this Section 4(a) and to ensure that it conforms with the requirements of this
Agreement, the Securities Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of at least two years following the Closing Date (or
shorter period (i) that will terminate when all the Initial Securities covered by such Shelf
Registration Statement have been sold pursuant to such Shelf Registration Statement or (ii) as may
be required pursuant to Rule 144(k) under the Securities Act). Each of the Issuers and the
Guarantors shall be deemed not to have used its reasonable best efforts to keep the Shelf
Registration Statement effective during the requisite period if any of the Issuers or the
Guarantors voluntarily takes any action that would result in Holders of Transfer Restricted
Securities covered thereby not being able to offer and sell such Transfer Restricted Securities
during that period, unless (A) such action is required by applicable law; or (B) such action is
taken by any of the Issuers or Guarantors in good faith and for valid business reasons (not
including avoidance of the Issuers or the Guarantors obligations hereunder) including, but not
limited to, the acquisition or divestiture of assets, so long as the Issuers and the Guarantors
promptly thereafter comply with the requirements of the last paragraph of Section 6(c) hereof (the
period during which the Shelf Registration Statement is not available under clauses (A) or (B)
above, the “Blackout Period”). The Blackout Period shall not exceed 45 days in any
three-month period or 90 days in any twelve-month period.
(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 Company in writing, within 20 Business Days after receipt of a request
therefor, such information as the Company may reasonably request for use in connection with any
Shelf Registration Statement or Prospectus or preliminary Prospectus included therein. Each Holder
as to which any Shelf Registration Statement is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
Section 5. Additional Interest. If (i) any of the Registration Statements required
by this Agreement is not filed with the Commission on or prior to the date specified for such
filing in this Agreement, (ii) any of such Registration Statements has not been declared effective
by the Commission on or prior to the date specified for such effectiveness in this Agreement (the
“Effectiveness Target Date”), (iii) the Exchange Offer has not been Consummated within 30
6
Business Days after the Effectiveness Target Date with respect to the Exchange Offer
Registration Statement 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, except during any Blackout Period, without being succeeded immediately by a post-effective
amendment to such Registration Statement that cures such failure and that is itself immediately
declared effective (each such event referred to in clauses (i) through (iv), a “Registration
Default”), the Issuers hereby agree that the interest rate borne by the Transfer Restricted
Securities shall be increased by 0.25% per annum during the 90-day period immediately following the
occurrence of any Registration Default and shall increase by 0.25% per annum at the end of each
subsequent 90-day period, but in no event shall such increase exceed 1.00% per annum. Such
additional interest to be paid pursuant to a Registration Default as set forth in this Section 5 is
herein referred to as “Additional Interest.” Following the cure of all Registration
Defaults relating to any particular Transfer Restricted Securities, the interest rate borne by the
relevant Transfer Restricted Securities will be reduced to the original interest rate borne by such
Transfer Restricted Securities; provided, however, that, if after any such reduction in interest
rate, a different Registration Default occurs, the interest rate borne by the relevant Transfer
Restricted Securities shall again be increased pursuant to the foregoing provisions.
All Additional Interest accrued pursuant to this Section 5 shall be paid in the manner
provided for in the Indenture. All obligations of the Issuers and the Guarantors set forth in the
preceding paragraph that are outstanding with respect to any Transfer Restricted Security at the
time such security ceases to be a Transfer Restricted Security shall survive until such time as all
such obligations with respect to such security shall have been satisfied in full.
Section 6. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with the Exchange Offer, the
Issuers and the Guarantors shall comply with all of the provisions of Section 6(c) hereof, shall
use their reasonable best efforts to effect such exchange to permit the sale of Transfer Restricted
Securities being sold in accordance with the intended method or methods of distribution thereof.
As a condition to its participation in the Exchange Offer pursuant to the terms of this Agreement,
each Holder of Transfer Restricted Securities shall furnish, upon the request of the Issuers, prior
to the Consummation thereof, a written representation to the Issuers (which may be contained in the
letter of transmittal contemplated by the Exchange Offer Registration Statement) to the effect that
(A) it is not an affiliate (within the meaning of Rule 405 under the Securities Act) of any of the
Issuers or the Guarantors, (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 Exchange
Securities to be issued in the Exchange Offer and (C) it is acquiring the Exchange Securities in
its ordinary course of business. In addition, all such Holders of Transfer Restricted Securities
shall otherwise cooperate in the Issuers’ preparations for the Exchange Offer. Each Holder hereby
acknowledges and agrees that any Broker-Dealer and any such Holder using the Exchange Offer to
participate in a distribution of the securities to be acquired in the Exchange Offer (1) could not
under Commission policy as in effect on the date of this Agreement rely on the position of the
Commission enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and
Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the
Commission’s letter to Shearman & Sterling dated July 2, 1993, and similar no-action letters, and
(2) must comply with the registration and prospectus delivery requirements of the Securities
7
Act in connection with a secondary resale transaction and that such a secondary resale
transaction should be covered by an effective registration statement containing the selling
security holder information required by Item 507 or 508, as applicable, of Regulation S-K if the
resales are of Exchange Securities obtained by such Holder in exchange for Initial Securities
acquired by such Holder directly from the Issuers.
(b) Shelf Registration Statement. In connection with the Shelf Registration Statement, each
of the Issuers and the Guarantors shall comply with all the provisions of Section 6(c) hereof and
shall use its reasonable 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, and pursuant thereto each of the Issuers and the Guarantors will as
expeditiously as possible prepare and file with the Commission a Registration Statement relating to
the registration on any appropriate form under the Securities Act, which form shall be available
for the sale of the Transfer Restricted Securities in accordance with the intended method or
methods of distribution thereof.
(c) General Provisions. In connection with any Registration Statement and any Prospectus
required by this Agreement to permit the sale or resale of Transfer Restricted Securities
(including, without limitation, any Registration Statement and the related Prospectus required to
permit resales of Initial Securities by Broker-Dealers), each of the Issuers and the Guarantors
shall:
(i) use its reasonable best efforts to keep such Registration Statement continuously
effective and provide all requisite financial statements (including, if required by the
Securities Act or any regulation thereunder, financial statements of the Guarantors) for the
period specified in Section 3 or 4 hereof, as applicable; upon the occurrence of any event
that would cause any such Registration Statement or the Prospectus contained therein (A) to
contain a material misstatement or omission or (B) not to be effective and usable for resale
of Transfer Restricted Securities during the period required by this Agreement, the Issuers
and the Guarantors shall file promptly an appropriate amendment to such Registration
Statement, in the case of clause (A), correcting any such misstatement or omission, and, in
the case of either clause (A) or (B), use its reasonable best efforts to cause such
amendment to be declared effective and such Registration Statement and the related
Prospectus to become usable for their intended purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and post-effective
amendments to the applicable Registration Statement as may be necessary to keep the
Registration Statement effective for the applicable period set forth in Section 3 or 4
hereof, as applicable, or such shorter period as set forth in this Agreement; cause the
Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 under the Securities Act, and to comply fully with the
applicable provisions of Rules 424 and 430A under the Securities Act in a timely manner; and
comply with the provisions of the Securities 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;
8
(iii) advise the underwriter(s), if any, and selling Holders promptly and, if
requested by such Persons, to confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments to the Registration Statement
or amendments or supplements to the Prospectus or for additional information relating
thereto, (C) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Securities Act or of the suspension by
any state securities commission of the qualification of the Transfer Restricted Securities
for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, (D) of the existence of any fact or the happening of any event that
makes any statement of a material fact made in the Registration Statement, the Prospectus,
any amendment or supplement thereto, or any document incorporated by reference therein
untrue, or that requires the making of any additions to or changes in the Registration
Statement or the Prospectus in order to make the statements therein (with respect to the
Prospectus, 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, each of the Issuers
and the Guarantors shall use its reasonable best efforts to obtain the withdrawal or lifting
of such order at the earliest possible time;
(iv) furnish without charge to the Initial Purchasers, each selling Holder named in
any Registration Statement, and each of the underwriter(s), if any, before filing with the
Commission, copies of any Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Registration Statement or Prospectus (including all
documents incorporated by reference after the initial filing of such Registration
Statement), which documents will be subject to the review and comment of such Holders and
underwriter(s) in connection with such sale, if any, for a period of at least two Business
Days; make the Issuers’ and the 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 selling Holders or underwriter(s), if any,
reasonably request; and 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 an Initial Purchaser of Transfer Restricted
Securities covered by such Registration Statement or the underwriter(s), if any, shall
reasonably object in writing within two Business Days after the receipt thereof (such
objection to be deemed timely made upon confirmation of telecopy transmission within such
period); provided, that this clause (iv) shall not apply to any filing by the Company of any
annual report on Form 10-K, quarterly report on Form 10-Q or Current Report on Form 8-K with
respect to matters unrelated to the Securities and the offering or exchange therefor.
(v) in the case of a Shelf Registration Statement, make available during normal
business hours for inspection by the Initial Purchasers, the managing underwriter(s), if
9
any, participating in any disposition pursuant to such Shelf Registration Statement and
any attorney or accountant retained by the Initial Purchasers or any of the underwriter(s),
all financial and other records, pertinent corporate documents and properties of each of the
Issuers and the Guarantors and cause the Issuers’ and the Guarantors’ officers, directors
and employees to supply all information reasonably requested by any such Holder,
underwriter, attorney or accountant in connection with such Shelf Registration Statement or
any post-effective amendment thereto subsequent to the filing thereof and prior to its
effectiveness and to participate in meetings with investors to the extent requested by the
managing underwriter(s), if any;
(vi) in the case of a Shelf Registration Statement, if requested by any Holder,
promptly incorporate in such Prospectus, pursuant to a supplement, such information as such
selling Holders and underwriter(s), if any, may reasonably request to have included therein,
including, without limitation, information relating to the “Plan of Distribution” of
the Transfer Restricted Securities, information with respect to the principal amount of
Transfer Restricted Securities being sold to such underwriter(s), the purchase price being
paid therefor and any other terms of the offering of the Transfer Restricted Securities to
be sold in such offering; and make all required filings of such Prospectus supplement as
soon as practicable after the Company is notified of the matters to be incorporated in such
Prospectus supplement;
(vii) in the case of a Shelf Registration Statement, furnish to each Initial
Purchaser, each selling Holder and each of the underwriter(s), if any, without charge, at
least one copy of such Shelf Registration Statement, as first filed with the Commission, and
of each amendment thereto, including, if they so request, financial statements and
schedules, all documents incorporated by reference therein and all exhibits (including
exhibits incorporated therein by reference);
(viii) deliver to each selling Holder and each of the underwriter(s), if any, without
charge, as many copies of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may request; each of the Issuers
and the Guarantors hereby consents to the use of the Prospectus and any amendment or
supplement thereto by each of the selling Holders and each of the underwriter(s), if any, in
connection with the offering and the sale of the Transfer Restricted Securities covered by
the Prospectus or any amendment or supplement thereto;
(ix) enter into such agreements (including an underwriting agreement), 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 Shelf Registration Statement contemplated by this Agreement, all to such
extent as may be requested by any Initial Purchaser or by any Holder of Transfer Restricted
Securities or underwriter in connection with any sale or resale pursuant to any Shelf
Registration Statement contemplated by this Agreement; and whether or not an underwriting
agreement is entered into and whether or not the registration is an Underwritten
Registration, each of the Issuers and the Guarantors shall:
10
(A) furnish to each Initial Purchaser, each selling Holder and each
underwriter, if any, in such substance and scope as they may request and as are
customarily made by issuers to underwriters in primary underwritten offerings, upon
the effectiveness of the Shelf Registration Statement:
(1) a certificate, dated the date of effectiveness of the Shelf
Registration Statement signed by (y) any two authorized officers of the
Issuers and (z) a principal financial or accounting officer of each of the
Issuers and the Guarantors, confirming, as of the date thereof, the matters
set forth in paragraphs (i), (ii) and (iii) of Section 6(g) of the Purchase
Agreement and such other matters as such parties may reasonably request;
(2) an opinion, dated the date of effectiveness of the Shelf
Registration Statement of counsel for the Issuers and the Guarantors,
covering the relevant matters set forth in Section 6(d) and (e) of the
Purchase Agreement and such other matter as such parties 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 Guarantors, representatives of the
independent public accountants for the Issuers and the Guarantors,
representatives of the underwriter(s), if any, and counsel to the
underwriter(s), if any, in connection with the preparation of such
Registration Statement and the related Prospectus at which the content of
the Registration Statement and Prospectus were discussed and, although such
counsel has not independently verified the accuracy, completeness or
fairness of such statements contained in the Registration Statement and
Prospectus; 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 Shelf Registration Statement, at the time such
Registration Statement or any post-effective amendment thereto became
effective 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 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 or statistical
data included in any Shelf Registration Statement contemplated by this
Agreement or the related Prospectus; and
(3) a customary comfort letter, dated the date of effectiveness of the
Shelf Registration Statement, from the Company’s independent accountants, in
the customary form and covering matters of the type customarily requested to
be covered in comfort letters by underwriters in
11
connection with primary underwritten offerings, and covering or
affirming the matters set forth in the comfort letters delivered pursuant to
Section 6(a) of the Purchase Agreement, without exception;
(B) set forth in full or incorporate by reference in the underwriting
agreement, if any, the indemnification provisions and procedures of Section 8 hereof
with respect to all parties to be indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be reasonably
requested by such parties to evidence compliance with Section 6(c)(ix)(A) hereof and
with any customary conditions contained in the underwriting agreement or other
agreement entered into by the Issuers or any of the Guarantors pursuant to this
Section 6(c)(ix), if any.
If at any time the representations and warranties of the Issuers and the Guarantors
contemplated in Section 6(c)(ix)(A)(1) hereof cease to be true and correct, the Issuers or
the Guarantors shall so advise the Initial Purchasers and the underwriter(s), if any, and
each selling Holder promptly and, if requested by such Persons, shall confirm such advice in
writing;
(x) prior to any public offering of Transfer Restricted Securities pursuant to a Shelf
Registration Statement, cooperate with the selling Holders, the underwriter(s), if any, and
their respective counsel in connection with the registration and qualification of the
Transfer Restricted Securities under the state securities or blue sky laws of such
jurisdictions as the selling Holders or underwriter(s), if any, may request and do any and
all other acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the Shelf Registration
Statement; provided, however, that none of the Issuers or the Guarantors shall be required
to register or qualify as a foreign corporation where it is not then so qualified or to take
any action that would subject it to the service of process in suits or to taxation in any
jurisdiction where it is not then so subject;
(xi) issue, upon the request of any Holder of Initial Securities covered by the Shelf
Registration Statement, Exchange Securities having an aggregate principal amount equal to
the aggregate principal amount of Initial Securities surrendered to the Issuers by such
Holder in exchange therefor or being sold by such Holder; such Exchange Securities, if in
certificated form, to be registered in the name of such Holder or in the name of the
purchaser(s) of such Securities, as the case may be; in return, the Initial Securities held
by such Holder, if in certificated form, shall be surrendered to the Issuers for
cancellation;
(xii) cooperate with the selling Holders and the underwriter(s), if any, to facilitate
the timely preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends; and enable such Transfer
Restricted Securities to be in such denominations and registered in such names as the
Holders or the underwriter(s), if any, may request at least two Business Days prior to any
sale of Transfer Restricted Securities made by such Holders or underwriter(s);
12
(xiii) use its reasonable best efforts to cause the Transfer Restricted Securities covered by the Registration Statement to be registered with or approved by such domestic other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter(s), if any, to consummate the disposition of such Transfer Restricted Securities, subject to the proviso contained in Section 6(c)(x) hereof;
(xiv) if any fact or event contemplated by Section 6(c)(ii)(D) hereof 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 in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(xv) provide a CUSIP number for all Securities not later than the effective date of the Registration Statement covering such Securities and provide the Trustee under the Indenture with certificates for such Securities which are in a form eligible for deposit with The Depository Trust Company and take all other action necessary to ensure that all such Securities are eligible for deposit with The Depository Trust Company;
(xvi) cooperate and assist in any filings required to be made with the NASD and in the performance of any due diligence investigation by any underwriter (including any “qualified independent underwriter”) that is required to be retained in accordance with the rules and regulations of the NASD;
(xvii) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make generally available to its security holders, as soon as practicable, a consolidated earnings statement meeting the requirements of Rule 158 (which need not be audited) for the twelve-month period (A) commencing at the end of any fiscal quarter in which Transfer Restricted Securities are sold to underwriters in a firm commitment or best efforts Underwritten Offering or (B) if not sold to underwriters in such an offering, beginning with the first month of the Company’s first fiscal quarter commencing after the effective date of the Registration Statement;
(xviii) cause the Indenture to be qualified under the Trust Indenture Act not later than the effective date of the first Registration Statement required by this Agreement, and, in connection therewith, cooperate with the Trustee and the Holders of Securities 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 Trust Indenture Act; and to execute and use its reasonable best efforts to cause the Trustee to execute, all documents that may be required to effect such changes and all other forms and documents required to be filed with the Commission to enable such Indenture to be so qualified in a timely manner; and
(xix) cause all Securities covered by the Registration Statement to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed if requested by the Holders of a majority in aggregate principal amount of Initial Securities or the managing underwriter(s), if any.
13
Each Holder agrees by acquisition of a Transfer Restricted Security that, upon receipt of any
notice from the Company of the existence of any fact of the kind described in Section 6(c)(iii)(D)
hereof or any Blackout Period described in Section 4(a) hereof, such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the applicable Registration
Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(xiv) hereof, or until it is advised in writing (the “Advice”)
by the Company that the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference in the Prospectus. If so
directed by the Company, each Holder will deliver to the Issuers (at the Company’s expense) all
copies, other than permanent file copies then in such Holder’s possession, of the Prospectus
covering such Transfer Restricted Securities that was current at the time of receipt of such
notice. In the event the Company shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof, as applicable,
shall be extended by the number of days during the period from and including the date of the giving
of such notice pursuant to Section 6(c)(iii)(D) hereof or notice of any Blackout Period to and
including the date when each selling Holder covered by such Registration Statement shall have
received the copies of the supplemented or amended Prospectus contemplated by Section 6(c)(xiv)
hereof or shall have received the Advice.
Section 7. Registration Expenses.
(a) All expenses incident to the Issuers’ and the Guarantors’ performance of or compliance
with this Agreement will be borne by the Issuers and the Guarantors, jointly and severally,
regardless of whether a Registration Statement becomes effective, including, without limitation:
(i) all registration and filing fees and expenses (including filings made by any Initial Purchaser
or Holder with the NASD (and, if applicable, the fees and expenses of any “qualified independent
underwriter” and its counsel that may be required by the rules and regulations of the NASD)); (ii)
all fees and expenses of compliance with federal securities and state securities or blue sky laws;
(iii) all expenses of printing (including printing certificates for the Exchange Securities 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 Guarantors and, subject
to Section 7(b) hereof, the Holders of Transfer Restricted Securities; (v) all application and
filing fees in connection with listing the Exchange Securities on a securities exchange or
automated quotation system pursuant to the requirements thereof; (vi) all fees and disbursements of
independent certified public accountants of the Issuers and the Guarantors (including the expenses
of any special audit and comfort letters required by or incident to such performance) and (vii) all
fees and disbursements of the Trustee and its counsel.
Each of the Issuers and the Guarantors will, in any event, bear its 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 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 Guarantors, jointly and severally, will reimburse the Initial
Purchasers and the Holders of Transfer Restricted Securities being tendered in the
14
Exchange Offer and/or resold pursuant to the “Plan of Distribution” contained in the Exchange
Offer Registration Statement or registered pursuant to the Shelf Registration Statement, as
applicable, for the reasonable fees and disbursements of not more than one counsel, who shall be
Xxxxx Xxxxx L.L.P. or such other counsel as may be chosen by the Holders of a majority in principal
amount of the Transfer Restricted Securities for whose benefit such Registration Statement is being
prepared.
Section 8. Indemnification.
(a) The Issuers and the Guarantors, jointly and severally, agree to indemnify and hold
harmless (i) each Holder and (ii) each Person, if any, who controls (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) any such Holder (any of the Persons
referred to in this clause (ii) being hereinafter referred to as a “controlling person”)
and (iii) the respective officers, directors, partners, employees, representatives and agents of
any Holder or any controlling person (any Person referred to in clause (i), (ii) or (iii) may
hereinafter be referred to as an “Indemnified Holder”), to the fullest extent lawful, from
and against any and all losses, claims, damages or liabilities (or actions in respect thereof)
(including, without limitation, and as incurred, reimbursement of each such Indemnified Holder for
any legal or other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action), joint or several, directly or
indirectly arising out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or Prospectus (or any amendment or supplement
thereto), or any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (with respect to the Prospectus, in the
light of the circumstances under which they were made) not misleading, except insofar as such
losses, claims, damages, liabilities or actions are caused by an untrue statement or omission or
alleged untrue statement or omission that is made in reliance upon and in conformity with
information relating to any of the Holders furnished in writing to the Company by any of the
Holders expressly for use therein. This indemnity agreement shall be in addition to any liability
that the Issuers or any of the Guarantors may otherwise have.
In case any action or proceeding (including any governmental or regulatory investigation or
proceeding) shall be brought or asserted against any of the Indemnified Holders with respect to
which indemnity may be sought against any Issuer or Guarantor, such Indemnified Holder (or the
Indemnified Holder controlled by such controlling person) shall promptly notify the Issuers and the
Guarantors in writing; provided, however, that the failure to give such notice shall not relieve
any of the Issuers or the Guarantors of its obligations pursuant to this Agreement. Such
Indemnified Holder shall have the right to employ its own counsel in any such action and the fees
and expenses of such counsel shall be paid, as incurred, by the Issuers and the Guarantors
(regardless of whether it is ultimately determined that an Indemnified Holder is not entitled to
indemnification hereunder). The Issuers and the Guarantors shall not, in connection with any one
such action or proceeding or separate but substantially similar or related actions or proceedings
in the same jurisdiction arising out of the same general allegations or circumstances, be liable
for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel) at any time for such Indemnified Holders, which firm shall be designated by the
Holders. The Issuers and the Guarantors shall be liable for any settlement of any such action or
proceeding effected with the Issuers’ and the Guarantors’ prior written
15
consent, which consent shall not be withheld unreasonably, and each of the Issuers and the
Guarantors agrees to indemnify and hold harmless any Indemnified Holder from and against any loss,
claim, damage, liability or action by reason of any settlement of any action effected with the
written consent of the Issuers and the Guarantors. The Issuers and the Guarantors shall not,
without the prior written consent of each Indemnified Holder, settle or compromise or consent to
the entry of judgment in or otherwise seek to terminate any pending or threatened action, claim,
litigation or proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not any Indemnified Holder is a party thereto), unless such settlement,
compromise, consent or termination includes an unconditional release of each Indemnified Holder
from all liability arising out of such action, claim, litigation or proceeding.
(b) Each Holder of Transfer Restricted Securities agrees, severally and not jointly, to
indemnify and hold harmless the Issuers, the Guarantors and their respective directors, officers of
the Issuers and the Guarantors who sign a Registration Statement, and any Person controlling
(within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any
Issuer or any Guarantor, and the respective officers, directors, partners, employees,
representatives and agents of each such Person, to the same extent as the foregoing indemnity from
the Issuers and the Guarantors to each of the Indemnified Holders, but only with respect to claims
and actions based on information relating to such Holder furnished in writing by such Holder
expressly for use in any Registration Statement or Prospectus. In case any action or proceeding
shall be brought against the Issuers, the Guarantors or their respective directors or officers or
any such controlling person in respect of which indemnity may be sought against a Holder of
Transfer Restricted Securities, such Holder shall have the rights and duties given the Issuers and
the Guarantors, and the Issuers, the Guarantors, their respective directors and officers and such
controlling person shall have the rights and duties given to each Holder by the preceding
paragraph. This indemnity agreement shall be in addition to any liability that the Holders of
Transfer Restricted Securities may otherwise have.
(c) If the indemnification provided for in this Section 8 is unavailable to an indemnified
party under Section 8(a) or (b) hereof (other than by reason of exceptions provided in those
Sections) in respect of any losses, claims, damages, liabilities or actions referred to therein,
then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) in such proportion as is appropriate to reflect the relative
benefits received by the Issuers and the Guarantors, on the one hand, and the Holders, on the other
hand, from the Initial Placement, the amount of Additional Interest which did not become payable as
a result of the filing of the Registration Statement resulting in such losses, claims, damages,
liabilities or actions, and such Registration Statement, or if such allocation is not permitted by
applicable law, the relative fault of the Issuers and the Guarantors, on the one hand, and the
Holders, on the other hand, in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or actions, as well as any other relevant equitable
considerations. The relative fault of the Issuers and the Guarantors on the one hand and of the
Indemnified Holder on the other shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Issuers or any of the Guarantors, on
the one hand, or the Indemnified Holders, on the other hand, and the parties’
16
relative intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities or actions referred to above shall be deemed to include, subject to the
limitations set forth in the second paragraph of Section 8(a) hereof, any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or defending any action
or claim.
The Issuers, the Guarantors and each Holder of Transfer Restricted Securities agree that it
would not be just and equitable if contribution pursuant to this Section 8(c) were determined by
pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable considerations referred to
in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or actions referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the provisions of this
Xxxxxxx 0, xxxx of the Holders (and its related Indemnified Holders) shall be required to
contribute, in the aggregate, any amount in excess of the amount by which the total discount
received by such Holder with respect to the Initial Securities exceeds the amount of any damages
which such Holder has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation. The Holders’ obligations to
contribute pursuant to this Section 8(c) are several in proportion to the respective principal
amount of Initial Securities held by each of the Holders hereunder and not joint.
Section 9. Rule 144 and 144A Information. Each of the Issuers and the Guarantors
hereby agrees with each Holder, for so long as any Transfer Restricted Securities remain
outstanding, to make available to any Holder or beneficial owner of Transfer Restricted Securities
in connection with any sale thereof and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information required by Rule 144A(d)(4) under
the Securities Act in order to permit resales of such Transfer Restricted Securities pursuant to
Rule 144A under the Securities Act.
Section 10. Participation in Underwritten Registrations. No Holder may participate
in any Underwritten Registration hereunder unless such Holder (a) agrees to sell such Holder’s
Transfer Restricted Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting agreements, lock-up
letters and other documents required under the terms of such underwriting arrangements.
Section 11. Selection of Underwriters. The Holders of Transfer Restricted
Securities covered by the Shelf Registration Statement who desire to do so may sell such Transfer
Restricted Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker(s) and managing underwriter(s) that will administer such offering will be
selected by the Holders of a majority in aggregate principal amount of the Transfer Restricted
17
Securities included in such offering; provided, however, that such investment banker(s) and
managing underwriter(s) must be reasonably satisfactory to the Issuers.
Section 12. Miscellaneous.
(a) Remedies. Each of the Issuers and the Guarantors hereby agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Each of the Issuers and the Guarantors will not 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 either Issuer nor any of the Guarantors has previously entered into
any agreement granting any registration rights with respect to its securities to any Person. 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’ or any of the 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 the Issuers have (i) in the case of Section 5 hereof and this Section 12(c)(i), obtained the
written consent of Holders of all outstanding Transfer Restricted Securities and (ii) in the case
of all other provisions hereof, obtained the written consent of Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities (excluding any Transfer Restricted
Securities held by the Issuers or their respective affiliates). Notwithstanding the foregoing, a
waiver or consent to departure from the provisions hereof that relates exclusively to the rights of
Holders whose securities are being tendered pursuant to the Exchange Offer and that does not affect
directly or indirectly the rights of other Holders whose securities are not being tendered pursuant
to such Exchange Offer may be given by the Holders of a majority of the outstanding principal
amount of Transfer Restricted Securities being tendered or registered; provided, however, that,
with respect to any matter that directly or indirectly affects the rights of any Initial Purchaser
hereunder, the Issuers shall obtain the written consent of each such Initial Purchaser with respect
to which such amendment, qualification, supplement, waiver, consent or departure is to be
effective.
(d) Notices. All notices and other communications provided for or permitted hereunder shall
be made in writing by hand-delivery, first-class mail (registered or certified, return receipt
requested), 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;
(ii) if to the Issuers:
18
Facsimile: 713.621.9545
Attention: Xxxxxxx X. Xxxxxx
Attention: Xxxxxxx X. Xxxxxx
with a copy to:
Xxxxxx & Xxxxxx L.L.P.
2300 First City Tower
0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Facsimile: 713.615.5861
Attention: Xxxxx X. Xxxxxx
2300 First City Tower
0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Facsimile: 713.615.5861
Attention: Xxxxx X. Xxxxxx
and
(iii) if to the Initial Purchasers:
Banc of America Securities LLC
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Legal Department
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Legal Department
with a copy to:
Xxxxx Xxxxx L.L.P.
000 Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
Facsimile: 713.229.2727
Attention: Xxxxxx Xxxxxxxx
000 Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
Facsimile: 713.229.2727
Attention: Xxxxxx Xxxxxxxx
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 answered back, if telexed; when receipt acknowledged, if
telecopied; and on the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other communications shall be concurrently delivered by
the Person giving the same to the Trustee at the address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon
the successors and assigns of each of the parties, including, without limitation, and without the
need for an express assignment, subsequent Holders of Transfer Restricted Securities; provided,
however, that this Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or assign acquired Transfer Restricted
Securities from such Holder.
19
(f) Counterparts. This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW RULES THEREOF.
(i) Severability. In the event that any one or more of the provisions contained herein, or
the application thereof in any circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.
(j) Entire Agreement. This Agreement is intended by the parties as a final expression of
their agreement and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained herein. There are
no restrictions, promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Issuers with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and understandings among the
parties with respect to such subject matter.
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
COPANO ENERGY, L.L.C. |
||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Xxxxxxx X. Xxxxxx | ||||
Senior Vice President and Chief Financial Officer | ||||
COPANO ENERGY FINANCE CORPORATION |
||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Xxxxxxx X. Xxxxxx | ||||
Senior Vice President and Chief Financial Officer | ||||
SCISSORTAIL ENERGY, LLC | ||
COPANO ENERGY/ROCKY MOUNTAINS AND MID-CONTINENT, L.L.C. | ||
COPANO PROCESSING GP, L.L.C. | ||
COPANO NGL SERVICES GP, L.L.C. | ||
COPANO FIELD SERVICES GP, L.L.C. | ||
COPANO PIPELINES GP, L.L.C. | ||
COPANO PIPELINES (TEXAS) GP, L.L.C. | ||
COPANO ENERGY SERVICES GP, L.L.C. | ||
COPANO ENERGY SERVICES (TEXAS) GP, L.L.C. | ||
COPANO FIELD SERVICES/CENTRAL GULF COAST GP, L.L.C. | ||
COPANO/XXXX-XXXXX PIPELINE GP, L.L.C. | ||
CPNO SERVICES GP, L.L.C. | ||
NUECES GATHERING, L.L.C. | ||
XXXXX COVE FACILITIES, L.L.C. |
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Xxxxxxx X. Xxxxxx | ||||
Senior Vice President and Chief Financial Officer |
21
COPANO PROCESSING, L.P. | ||
By: COPANO PROCESSING GP, L.L.C., General Partner |
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Xxxxxxx X. Xxxxxx | ||||
Senior Vice President and Chief Financial Officer | ||||
COPANO NGL SERVICES, L.P. | ||
By: COPANO NGL SERVICES GP, L.L.C., General Partner |
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Xxxxxxx X. Xxxxxx | ||||
Senior Vice President and Chief Financial Officer | ||||
COPANO HOUSTON CENTRAL, L.L.C. | ||
CHC LP HOLDINGS, L.L.C. | ||
COPANO PIPELINES GROUP, L.L.C. | ||
COPANO GENERAL PARTNERS, INC. | ||
CPG LP HOLDINGS, L.L.C. | ||
CWDPL LP HOLDINGS, L.L.C. | ||
CPNO SERVICES LP HOLDINGS, L.L.C. |
By: | /s/ Xxxxx X. Xxxx | |||
Xxxxx X. Xxxx | ||||
Vice President and Assistant Secretary |
22
COPANO FIELD SERVICES/AQUA DULCE, L.P. | ||
COPANO FIELD SERVICES/COPANO BAY, L.P. | ||
COPANO FIELD SERVICES/XXXXXX, X.X. | ||
COPANO FIELD SERVICES/LIVE OAK, L.P. | ||
COPANO FIELD SERVICES/SOUTH TEXAS, L.P. | ||
COPANO FIELD SERVICES/UPPER GULF COAST, L.P. |
By: COPANO FIELD SERVICES GP, X.XX., General Partner |
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Xxxxxxx X. Xxxxxx | ||||
Senior Vice President and Chief Financial Officer | ||||
COPANO PIPELINES/HEBBRONVILLE, L.P. | ||
COPANO PIPELINES/SOUTH TEXAS, L.P. | ||
COPANO PIPELINES/UPPER GULF COAST, L.P. |
By: COPANO PIPELINES GP, L.L.C., General Partner |
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Xxxxxxx X. Xxxxxx | ||||
Senior Vice President and Chief Financial Officer | ||||
COPANO PIPELINES/TEXAS GULF COAST, L.P. | ||
By: COPANO PIPELINES (TEXAS) GP, L.L.C., General Partner |
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Xxxxxxx X. Xxxxxx | ||||
Senior Vice President and Chief Financial Officer |
23
COPANO FIELD SERVICES/CENTRAL GULF COAST, L.P. | ||
By: COPANO FIELD SERVICES/CENTRAL GULF COAST GP, L.L.C., General Partner |
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Xxxxxxx X. Xxxxxx | ||||
Senior Vice President and Chief Financial Officer | ||||
COPANO ENERGY SERVICES/UPPER GULF COAST, L.P. | ||
By: COPANO ENERGY SERVICES GP, L.L.C., General Partner |
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Xxxxxxx X. Xxxxxx | ||||
Senior Vice President and Chief Financial Officer | ||||
COPANO ENERGY SERVICES/TEXAS GULF COAST, L.P. | ||
By: COPANO ENERGY SERVICES (TEXAS) GP, L.L.C., General Partner |
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Xxxxxxx X. Xxxxxx | ||||
Senior Vice President and Chief Financial Officer |
24
COPANO/XXXX-XXXXX PIPELINE, L.P. | ||
By: COPANO/XXXX-XXXXX PIPELINE GP, L.L.C., General Partner |
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Xxxxxxx X. Xxxxxx | ||||
Senior Vice President and Chief Financial Officer | ||||
CPNO SERVICES, L.P. | ||
COPANO RISK MANAGEMENT, L.P. | ||
By: CPNO SERVICES GP, L.L.C., General Partner |
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Xxxxxxx X. Xxxxxx | ||||
Senior Vice President and Chief Financial Officer |
25
The foregoing Registration Rights Agreement is hereby confirmed and accepted as of the date
first above written:
BANC OF AMERICA SECURITIES LLC
CREDIT SUISSE SECURITIES (USA) LLC
XXXXXXX, XXXXX & CO.
XXXXXX BROTHERS INC.
COMERICA SECURITIES, INC.
FORTIS SECURITIES LLC
KEYBANC CAPITAL MARKETS, A DIVISION OF MCDONALD INVESTMENTS INC.
XXXXX XXXXXXX & CO.
RBC CAPITAL MARKETS CORPORATION
XXXXXXX XXXXXX XXXXXX INC.
CREDIT SUISSE SECURITIES (USA) LLC
XXXXXXX, XXXXX & CO.
XXXXXX BROTHERS INC.
COMERICA SECURITIES, INC.
FORTIS SECURITIES LLC
KEYBANC CAPITAL MARKETS, A DIVISION OF MCDONALD INVESTMENTS INC.
XXXXX XXXXXXX & CO.
RBC CAPITAL MARKETS CORPORATION
XXXXXXX XXXXXX XXXXXX INC.
By: Banc of America Securities LLC
By:
/s/ Xxx Xxxxxxxx
26
SCHEDULE A
GUARANTORS
Jurisdiction of | ||
Name | Formation | |
Copano Pipelines Group, L.L.C.
|
Delaware | |
Copano Houston Central, L.L.C.
|
Delaware | |
Copano Energy/Rocky Mountains and Mid-Continent, L.L.C.
|
Delaware | |
ScissorTail Energy, LLC
|
Delaware | |
Copano Field Services/Copano Bay, L.P.
|
Texas | |
Copano Field Services/South Texas, L.P.
|
Texas | |
Copano Field Services/Agua Dulce, L.P.
|
Texas | |
Copano Field Services/Central Gulf Coast, L.P.
|
Texas | |
Copano Field Services/Xxxxxx, X.X.
|
Texas | |
Copano Field Services/Upper Gulf Coast, L.P.
|
Texas | |
Copano Field Services/Live Oak, L.P.
|
Texas | |
Copano Pipelines/South Texas, L.P.
|
Texas | |
Copano Pipelines/Upper Gulf Coast, L.P.
|
Texas | |
Copano Pipelines/Hebbronville, L.P.
|
Texas | |
Copano Pipelines/Texas Gulf Coast, L.P.
|
Texas | |
Copano Energy Services/Upper Gulf Coast, L.P.
|
Texas | |
Copano Energy Services/Texas Gulf Coast, L.P.
|
Texas | |
Copano NGL Services, L.P.
|
Texas | |
Copano Processing, L.P.
|
Texas | |
Copano/Xxxx-Xxxxx Pipeline, L.P.
|
Delaware | |
CPNO Services, L.P.
|
Texas | |
Copano Risk Management, L.P.
|
Texas | |
Copano Processing GP, L.L.C.
|
Delaware | |
Copano NGL Services GP, L.L.C.
|
Delaware | |
Copano Field Services GP, L.L.C.
|
Delaware | |
Copano Pipelines GP, L.L.C.
|
Delaware | |
Copano Pipelines (Texas) GP, L.L.C.
|
Delaware | |
Copano Energy Services GP, L.L.C.
|
Delaware | |
Copano Energy Services (Texas) GP, L.L.C.
|
Delaware | |
Copano Field Services/Central Gulf Coast GP, L.L.C.
|
Delaware | |
Copano Xxxx-Xxxxx Pipeline GP, L.L.C.
|
Delaware | |
CHC LP Holdings, L.L.C.
|
Delaware | |
CPG LP Holdings, L.L.C.
|
Delaware | |
CWDPL LP Holdings, L.L.C.
|
Delaware | |
CPNO LP Holdings, L.L.C.
|
Delaware | |
CPNO Services LP Holdings, L.L.C.
|
Delaware | |
CPNO Services GP, L.L.C.
|
Delaware | |
Nueces Gathering, L.L.C.
|
Delaware | |
Xxxxx Cove Facilities, L.L.C.
|
Delaware | |
Copano General Partners, Inc.
|
Delaware |