Exhibit 4.5
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SERIES C NOTES/SERIES D NOTES EXCHANGE
REGISTRATION RIGHTS AGREEMENT
APRIL 4, 2001
BY AND AMONG
AMERIGAS PARTNERS, L.P.
AMERIGAS EAGLE FINANCE CORP.
AMERIGAS PROPANE, L.P.
AMERIGAS PROPANE, INC.
AND
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC OF AMERICA SECURITIES LLC
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The Registration Rights Agreement (this "AGREEMENT") is made and entered
into on April 4, 2001 by and among AmeriGas Partners, L.P., a Delaware limited
partnership (the "PARTNERSHIP"), AmeriGas Eagle Finance Corp., a Delaware
corporation ("FINANCE CORP." and, together with the Partnership, the "ISSUERS"),
AmeriGas Propane, L.P., a Delaware limited partnership (the "OPERATING
PARTNERSHIP") and AmeriGas Propane, Inc., a Pennsylvania corporation (the
"GENERAL PARTNER"), and Credit Suisse First Boston Corporation and Banc of
America Securities LLC (each, an "INITIAL PURCHASER" and, collectively, the
"INITIAL PURCHASERS"), each of whom has agreed to purchase the Issuers' 10%
Senior Notes Due 2006 (the "SERIES C NOTES") pursuant to the Purchase Agreement
(as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated March 28,
2001 (the "PURCHASE AGREEMENT"), by and among the Issuers, the Operating
Partnership, the General Partner and the Initial Purchasers. In order to induce
the Initial Purchasers to purchase the Series C Notes, the Issuers have agreed
to provide the registration rights set forth in this Agreement. The execution
and delivery of this Agreement is a condition to the obligations of the Initial
Purchasers set forth in Section 7 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:
Act: The Securities Act of 1933, as amended.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: As defined in Rule 14d-l under the Exchange Act.
Closing Date: The date of this Agreement.
Columbia Propane Acquisition: The acquisition of the business of Columbia
Propane, L.P. by the Partnership, as set forth in that certain purchase
agreement by and among Columbia Energy Group, Columbia Propane Corporation,
Columbia Propane, L.P., the Operating Partnership, the Partnership and the
General Partner dated January 30, 2001.
Commission: The Securities and Exchange Commission.
Complete: A Registered Exchange Offer shall be deemed "COMPLETED" for
purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Series D Notes 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
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Indenture of Series D Notes in the same aggregate principal amount as the
aggregate principal amount of Series C Notes that were tendered by Holders
thereof pursuant to the Exchange Offer, if any.
Damages Payment Date: With respect to the Series C Notes, each Interest
Payment Date following a Registration Default, and prior to the cure of such
Registration Default.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: An offer by the Issuers made pursuant to a Registration
Statement under the Act to the Holders of all outstanding Transfer Restricted
Securities to exchange all such outstanding Transfer Restricted Securities held
by such Holders for Series D Notes 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 Series C Notes to certain "qualified institutional buyers," as such
term is defined in Rule 144A under the Act and to persons permitted to purchase
the Series C Notes in offshore transactions in reliance upon Regulation S under
the Securities Act (each, a "REGULATION S PURCHASER").
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated April 4, 2001, between the Partnership,
Finance Corp. and First Union National Bank, as trustee (the "TRUSTEE"),
pursuant to which the Series C Notes and the Series D Notes are to be issued, as
such Indenture is amended or supplemented from time to time in accordance with
the terms thereof.
Initial Purchaser: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture and the Series C Notes.
NASD: National Association of Securities Dealers, Inc.
Notes: The Series C Notes and the Series D Notes.
Person: An individual, partnership, corporation, limited liability
company, joint venture, association, joint stock company, charitable foundation,
trust, unincorporated organization, or a government or any agency or political
subdivision thereof or any other entity.
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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.
Purchase Agreement: As defined in the preamble hereto.
Record Holder: With respect to any Damages Payment Date relating to Notes,
each Person who is a Holder of Notes on the record date with respect to the
Interest Payment Date on which such Damages Payment Date shall occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Issuers relating
to (a) an offering of Series C Notes 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 included therein, all
amendments and supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
Series C Notes: As defined in the preamble hereto.
Series D Notes: The Issuers' Series D Notes Due 2006 to be issued pursuant
to the Indenture in the Exchange Offer.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as
amended from time to time.
Transfer Restricted Securities: Each Note, until the earliest to occur of
(a) the date on which such Note has been exchanged by a Person other than a
Broker-Dealer for a Series D Note in the Exchange Offer, (b) following the
exchange by a Broker-Dealer in the Exchange Offer of a Series C Note for a
Series D Note, the date on which such Series D Note is sold to a purchaser who
receives from such Broker-Dealer on or prior to the date of such sale a copy of
the prospectus contained in the Exchange Offer Registration Statement, (c) the
date on which such security has been effectively registered under the Act and
disposed of in accordance with the Shelf Registration Statement, and (d) the
date on which such Note can be distributed pursuant to Rule 144 under the Act.
Underwritten Registration or Underwritten Offering: A registration of
securities under the Act pursuant to which securities of the Issuers are sold to
an underwriter for reoffering to the public.
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SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
(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 (after the procedures set forth in Section 6(a) below
have been complied with), the Issuers and the General Partner shall
(i) cause to be filed with the Commission as soon as practicable
after the Closing Date, but no later than the earlier to occur of (1) 90 days
after the Columbia Propane Acquisition or (2) 120 days after Closing Date, the
Exchange Offer Registration Statement,
(ii) use reasonable efforts to cause the Exchange Offer Registration
Statement to become effective at the earliest possible time, but no later than
the earlier to occur of (1) 150 days after the Columbia Propane Acquisition or
(2) 180 days after the Closing Date,
(iii) in connection with the foregoing, (A) cause to be filed all
pre-effective amendments to the Exchange Offer Registration Statement as may be
necessary in order to cause the Exchange Offer Registration Statement to become
effective, (B) if applicable, cause to be filed a post-effective amendment to
the Exchange Offer Registration Statement pursuant to Rule 430A under the Act
and (C) cause all necessary filings in connection with the registration and
qualification of the Series D Notes to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit Completion of the Exchange Offer, and
(iv) upon the effectiveness of the Exchange Offer Registration
Statement, commence the Exchange Offer. The Exchange Offer Registration
Statement shall be on the appropriate form permitting registration of the Series
D Notes to be offered in exchange for the Transfer Restricted Securities and to
permit resales of Notes held by Broker-Dealers as contemplated by Section 3(c)
below,
provided that if the Issuers and General Partner have not consummated the
Exchange Offer on or prior to the earlier to occur of (A) 180 days after the
Columbia Propane Acquisition or (B) 210 days after the Closing Date, then the
Issuers and General Partner will file the Shelf Registration Statement with the
Commission on or prior to (y) the 181st day after the Columbia Propane
Acquisition or (z) the 211th day after the Closing Date, whichever is earlier.
The Issuers and General Partner will use their reasonable efforts to keep such
Shelf Registration Statement continuously effective, supplemented and amended
until the third anniversary of the Closing
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Date or a shorter period that will terminate when all of the securities covered
by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or are eligible for resale without any volume
restrictions under Rule 144 of the Act.
(b) The Issuers and the General Partner 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 Complete the Exchange Offer;
provided, however, that in no event shall such period be less than 20 Business
Days. The Issuers and the General Partner shall use reasonable efforts to cause
the Exchange Offer to comply with all applicable federal and state securities
laws. The Issuers and the General Partner shall use reasonable efforts to cause
the Exchange Offer to be Completed on the earliest practicable date after the
Exchange Offer Registration Statement has become effective, but in no event
later than 10 Business Days following the expiration of the period during which
the Exchange Offer is open.
(c) The Issuers shall indicate in a "Plan of Distribution" section
contained in the Prospectus contained in the Exchange Offer Registration
Statement that any Broker-Dealer who holds Series C Notes 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
Series C Notes pursuant to the Exchange Offer; however, such Broker-Dealer may
be deemed to be an "underwriter" within the meaning of the Act and must,
therefore, deliver a prospectus meeting the requirements of the Act in
connection with any resales of the Series D Notes 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 Distribution" shall not name any such Broker-Dealer
or disclose the amount of Notes held by any such Broker-Dealer except to the
extent required by the Commission as a result of a change in policy after the
date of this Agreement.
The Issuers and the General Partner shall use reasonable efforts to keep
the Exchange Offer Registration Statement continuously effective, supplemented
and amended as required by the provisions of Section 6(c) below to the extent
necessary to ensure that it is available for resales of Notes 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 Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period of 180 days from the
date on which the Exchange Offer Registration Statement is declared effective.
The Issuers shall provide a reasonable number of copies of the latest
version of such Prospectus to Broker-Dealers promptly upon request at any time
during such 180 day period in order to facilitate such resales.
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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 (after the procedures set forth in Section 6(a) below have been complied
with) or (ii) if any Holder of Transfer Restricted Securities shall notify the
Issuers, the Operating Partnership or the General Partner prior to the
Completion of the Exchange Offer (A) that such Holder is prohibited by
applicable law or Commission policy from participating in the Exchange Offer, or
(B) that such Holder may not resell the Series D Notes 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) that such
Holder is a Broker-Dealer and holds Series C Notes acquired directly from the
Issuers or one of their affiliates, then the Issuers and the General Partner
shall
(x) cause to be filed a shelf registration statement pursuant to
Rule 415 under the Act, which may be an amendment to the Exchange Offer
Registration Statement (in either event, the "SHELF REGISTRATION
STATEMENT") on or prior to the earlier to occur of (1) the 30th day after
the date on which the Issuers determine that they are not required to file
the Exchange Offer Registration Statement, and (2) the 30th day after the
date on which the Issuers receive notice from a Holder of Transfer
Restricted Securities as contemplated by clause (ii) above (such earlier
date being the "SHELF 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 reasonable efforts to cause such Shelf Registration
statement to be declared effective by the Commission on or before the 90th
day after the Shelf Filing Deadline.
The Issuers and the General Partner shall use reasonable 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 Notes 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 Act and
the policies, rules and regulations of the Commission as announced from time to
time, for a period of at least three years following the effective date thereof
or such shorter period that will terminate when all Notes covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement or are eligible for resale without any volume restrictions under Rule
144 under the Act.
(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
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unless and until such Holder furnishes to the Issuers in writing, within 10
Business Days after receipt of a request therefor, such information as the
Issuers may reasonably request for use in connection with any Shelf Registration
Statement or Prospectus or preliminary Prospectus included therein. No Holder of
Transfer Restricted Securities shall be entitled to Liquidated Damages pursuant
to Section 5 hereof unless and until such Holder shall have provided all such
reasonably requested information. Each Holder as to which any Shelf Registration
Statement is being effected agrees to furnish promptly to the Issuers all
information required to be disclosed in order to make the information previously
furnished to the Issuers by such Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any 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 Completed within 30 Business Days after the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement, (iv) the Exchange Offer Registration Statement required by this
Agreement is flied and declared effective but shall thereafter cease to be
effective or fail to be usable for its intended purpose for a period of 14
consecutive days without being succeeded by a post-effective amendment thereto
that is itself declared effective or (v) the Shelf Registration Statement, if
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 for a period
of 30 consecutive days without being succeeded by a post-effective amendment
thereto that is itself declared effective (each such event referred to in
clauses (i) through (v), a "REGISTRATION DEFAULT"), the Issuers, the Operating
Partnership and the General Partner hereby jointly and severally agree to pay
liquidated damages to each Holder of Transfer Restricted Securities with respect
to the first 90-day period immediately following the occurrence of such
Registration Default, in an amount equal to $0.05 per week per $1,000 principal
amount of Transfer Restricted Securities held by such Holder for each week or
portion thereof that the Registration Default continues. The amount of the
liquidated damages shall increase by an additional $0.05 per week per $1,000 in
principal amount of Transfer Restricted Securities with respect to each
subsequent 90-day period until such Registration Default has been cured, up to a
maximum amount of liquidated damages of $0.20 per week per $1,000 principal
amount of Transfer Restricted Securities. All accrued liquidated damages shall
be paid by the Issuers, in respect of the Global Note only, to the Record Holder
thereof by wire transfer of immediately available funds or by federal funds
check on each Damages Payment Date, and to other Record Holders as provided in
the Indenture. Following the cure of any Registration Defaults relating to any
particular Transfer Restricted Securities, the accrual of liquidated damages
with respect to such Transfer Restricted Securities will cease.
All obligations of the Issuers 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
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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, the Operating Partnership and the General Partner
shall comply with all of the provisions of Section 6(c) below, shall use their
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, and shall comply with all of the following provisions:
(i) 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, prior to the Completion 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 of the Issuers,
as defined in Rule 405 under the Act, (B) it is not engaged in, and does
not intend to engage in, and has no arrangement or understanding with any
person to participate in, a distribution of the Series D Notes to be
issued in the Exchange Offer and (C) it is acquiring the Series D Notes 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 (including any no-action letter obtained pursuant to
clause (i) above), and (2) must comply with the registration and
prospectus delivery requirements of the Act in connection with a secondary
resale transaction and that such a secondary resale transaction 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 Series D Notes obtained by such
Holder in exchange for Notes acquired by such Holder directly from the
Issuers.
(ii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Issuers shall, if requested by the staff of the Commission,
provide a supplemental letter to the Commission (A) stating that the
Issuers are registering the Exchange Offer in reliance on the position of
the Commission enunciated in Exxon Capital Holdings Corporation (available
May 13, 1988), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991) and,
if applicable, any no-action letter obtained pursuant to clause (i) above
and (B) including a representation that the Issuers have not entered into
any arrangement or understanding with any Person to distribute the Series
D Notes to be received in the Exchange Offer and
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that, to the best of the Issuers' information and belief, each Holder
participating in the Exchange Offer is acquiring the Series D Notes in its
ordinary course of business and has no arrangement or understanding with
any Person to participate in the distribution of the Series D Notes
received in the Exchange Offer.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Issuers and the General Partner shall comply with
all the provisions of Section 6(c) below and shall use reasonable 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 the Issuers will as expeditiously as
possible prepare and file with the Commission a Registration Statement relating
to the registration on any appropriate form under the Act, which form shall be
available for the sale of the Transfer Restricted Securities in accordance with
the intended method or methods of distribution thereof.
(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 Notes by
Broker-Dealers), the Issuers shall and the General Partner shall cause the
Issuers to:
(i) use reasonable efforts to keep such Registration Statement
continuously effective; 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 shall file as soon as reasonably
practicable 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 reasonable 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 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 will terminate when all Transfer Restricted Securities covered
by such Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 under the Act, and to comply fully with
the applicable provisions of Rules 424 and 430A under the Act in a timely
manner; and comply with the provisions of the Act with respect to the
disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
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(iii) with respect to any Shelf Registration Statement, advise the
underwriter(s), if any, named in the applicable Prospectus, and selling
Holders named in the applicable Prospectus 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 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 not
misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws,
the Issuers, the Operating Partnership and the General Partner shall use
reasonable efforts to obtain the withdrawal or lifting of such order as
soon as practicable;
(iv) with respect to any Shelf Registration Statement, furnish to
each of the selling Holders 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);
(v) in connection with any Shelf Registration Statement required
by this Agreement, make available at reasonable times for inspection by
the selling Holders, any underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney or accountant
retained by such selling Holders or any of the underwriter(s), all
financial and other records, pertinent corporate documents and properties
of the Issuers and cause the officers, directors and employees of Finance
Corp. and the General Partner to supply all information reasonably
requested by any such Holder, underwriter, attorney or accountant in
connection with such Registration Statement subsequent to the filing
thereof and prior to its effectiveness;
(vi) with respect to any Shelf Registration Statement, if
reasonably requested by any selling Holders or the underwriter(s), if any,
promptly incorporate in any Registration Statement or Prospectus, pursuant
to a supplement or post-effective
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amendment if necessary, 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 or post-effective amendment as soon as practicable after an
Issuer is notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment;
(vii) cause the Transfer Restricted Securities covered by the
Registration Statement to be rated with the appropriate rating agencies
within 30 days of issuance or as soon thereafter as practicable;
(viii) with respect to any Shelf Registration Statement, furnish to
each selling Holder and each of the underwriter(s), if any, without
charge, at least one copy of the Registration Statement, as first filed
with the Commission, and of each amendment thereto, including all
documents incorporated by reference therein and all exhibits (including
exhibits incorporated therein by reference);
(ix) with respect to any Shelf Registration Statement, 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; the Issuers hereby consent 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;
(x) in connection with any underwritten public offering effected
pursuant to a Shelf Registration Statement, and together with the General
Partner, enter into such agreements (including an underwriting agreement)
in form and substance satisfactory to each of them, and make such
representations and warranties in form and substance satisfactory to each
of them, 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 Registration Statement contemplated by this
Agreement, all to such extent as may be reasonably 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
Registration Statement contemplated by this Agreement; the Issuers and the
General Partner shall:
(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,
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upon the date of the Completion of the Exchange Offer and, if
applicable, the effectiveness of the Shelf Registration Statement:
(1) a certificate, dated the date of Completion of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, signed by (y) the
President or any Vice President of the General Partner and
Finance Corp. and (z) a principal financial or accounting
officer of the General Partner confirming, as of the date
thereof, the matters set forth in paragraphs (a), (b), (c) and
(d) of Section 7 of the Purchase Agreement;
(2) an opinion dated the date of Completion of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, of counsel for the
Issuers covering the matters customarily covered in opinions
requested in similar underwritten offerings and such other
matters as such parties may reasonably request, and in any
event including a statement to the effect that such counsel
has participated in conferences with directors, officers and
other representatives of the Issuers and the General Partner,
representatives of the independent public accountants for the
Issuers, the Operating Partnership and the General Partner,
the Initial Purchasers' representatives and the Initial
Purchasers' counsel's representatives in connection with the
preparation of such Registration Statement and the related
Prospectus at which conferences the contents of and related
matters were discussed, and that although such counsel has not
independently verified and need not pass upon, or assume
responsibility for, the accuracy, completeness or fairness of
statements contained in the Registration Statement and
Prospectus (except to the extent specified in the foregoing
opinion), no facts have come to such counsel's attention which
lead such counsel to believe that the applicable Registration
Statement, on the effective date thereof or the date any
post-effective amendment thereto became effective and, in the
case of the Exchange Offer Registration Statement, as of the
date of Completion, 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
contained therein not misleading or that the Prospectus
contained in such Registration Statement, on the date thereof,
and in the case of the opinion dated the date of Completion of
the Exchange Offer, as of the date of Completion, contained or
contains an untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein
or necessary to make the statements contained therein, in
light of the circumstances under which they were made, not
misleading (it being understood that such counsel need not
express any view with respect to the financial statements and
related notes,
13
the financial statement schedules and the other financial,
statistical and accounting data included in the Registration
Statement contemplated by this Agreement or the related
Prospectus); and
(3) a customary comfort letter, dated as of the date
of Completion of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as the case
may be, from the Issuers' independent accountants, in the
customary form and covering matters of the type customarily
covered in comfort letters by underwriters in connection with
primary underwritten offerings, and affirming the matters set
forth in the comfort letters delivered pursuant to Section
7(h) of the Purchase Agreement, without exception;
(b) set forth in full or incorporate by reference in the
purchase 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
clause (A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the
Issuers, the Operating Partnership and the General Partner pursuant
to this clause (x), if any.
If at any time the representations and warranties of the Issuers or
the General Partner contemplated in clause (A)(1) above cease to be true
and correct, the Issuers 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;
(xi) prior to any public offering of Transfer Restricted
Securities, 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 securities
or Blue Sky laws of such jurisdictions as the selling Holders or
underwriter(s) 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 the Issuers shall not be required to
register or qualify as a foreign corporation where they are not now so
qualified or to take any action that would subject them to the service of
process in suits or to taxation, other than as to matters and transactions
relating to the Registration Statement, in any jurisdiction where they are
not now so subject;
(xii) shall issue, upon the request of any Holder of Series C Notes
covered by the Shelf Registration Statement, Series D Notes, having an
aggregate principal amount equal to the aggregate principal amount of
Series C Notes surrendered to the Issuers by such Holder in exchange
therefor or being sold by such Holder; such Series D Notes to be
14
registered in the name of such Holder or in the name of the purchaser(s)
of such Notes, as the case may be; in return, the Series C Notes held by
such Holder shall be surrendered to the Issuers for cancellation;
(xiii) 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 underwriter(s);
(xiv) if any fact or event contemplated by clause (c)(iii)(D) above
shall exist or have occurred, prepare a supplement or post-effective
amendment to the Registration Statement or related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact necessary to make
the statements therein not misleading;
(xv) provide a CUSIP number for all Transfer Restricted Securities
not later than the effective date of the Registration Statement and
provide the Trustee under the Indenture with printed certificates for the
Transfer Restricted Securities which are in a form eligible for deposit
with the Depositary 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, and use their reasonable best efforts to cause such Registration
Statement to become effective and approved by such governmental agencies
or authorities as may be necessary to enable the Holders selling Transfer
Restricted Securities to consummate the disposition of such Transfer
Restricted Securities;
(xvii) otherwise use their best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to their 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 or best efforts Underwritten Offering or
(B) if not sold to underwriters in such an offering, beginning with the
first month of the Issuers' first fiscal quarter commencing after the
effective date of the Registration Statement;
(xviii) cause the Indenture to be qualified under the TIA not later
than the effective date of the first Registration Statement required by
this Agreement, and, in connection therewith, cooperate with the Trustee
and the Holders of Notes to effect such
15
changes to the Indenture as may be required for such Indenture to be so
qualified in accordance with the terms of the TIA; and execute and use its
best efforts to cause the Trustee to execute, all documents that may be
required to effect such changes and all other forms and documents required
to be filed with the Commission to enable such Indenture to be so
qualified in a timely manner; and
(xix) provide promptly to each Holder upon request each document
previously filed by the Issuers with the Commission pursuant to the
requirements of Section 13 and Section 15 of the Act.
Each Holder agrees by acquisition of a Transfer Restricted Security that,
upon receipt of any notice from the Issuers of the existence of any fact of the
kind described in Section 6(c)(iii)(D) 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)(ii) hereof,
or until it is advised in writing (the "ADVICE") by the Issuers that the use of
the Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus. If so
directed by the Issuers, each Holder will deliver to the Issuers (at the
Issuers' expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice. In the event
the Issuers 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 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)(xvi) hereof or
shall have received the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the performance of or compliance with this
Agreement by the Issuers and the General Partner will be borne by the Issuers
and the General Partner, 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 Blue Sky or securities laws
(including the reasonable fees, expenses and disbursements of counsel relating
to the preparation, printing or reproduction, and delivery of the preliminary
and supplemental Blue Sky Memorandum and such registration and qualification);
(iii) all expenses of printing (including printing certificate for the Series D
Notes to be issued in the Exchange Offer and printing of Prospectuses),
messenger and delivery services and telephone; (iv) all fees and disbursements
of counsel for the Issuers and, subject to Section 7(b) below, the Holders of
Transfer Restricted Securities; and (v) all fees and disbursements of
16
independent certified public accountants of the Issuers (including the expenses
of any special audit and comfort letters required by or incident to such
performance); provided, however, that in an underwritten offering, neither the
Issuers nor the General Partner shall be responsible for any fees and expenses
of any underwriter including any underwriting discounts and commissions or any
legal fees and expenses of counsel to the underwriters.
The Issuers, the Operating Partnership and the General Partner will, in
any event, bear their internal expenses (including, without limitation, all
salaries and expenses of the officers and employees of Finance Corp. and the
General Partner 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, the Operating Partnership and the General Partner.
It is understood that, except as otherwise provided in this Agreement, the
Initial Purchasers will pay all their own costs and expenses, including the fees
of their counsel, transfer taxes on any resale of the Series C Notes by either
Initial Purchaser and any advertising expenses connected with any offer they may
make and the transportation and other expenses incurred by the Initial
Purchasers in connection with presentations to prospective purchasers of the
Series C Notes.
(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, the Operating
Partnership and the General Partner, jointly and severally, will reimburse the
Initial Purchasers and the Holders of Transfer Restricted Securities being
tendered in the 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, to 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, the Operating Partnership and the General Partner,
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
Act or Section 20 of the Exchange Act) any 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, liabilities, judgments, actions and reasonable
expenses (including without limitation and as incurred, reimbursement of all
reasonable costs of investigating, preparing, pursuing or defending any claim or
action, or any investigation or proceeding by any governmental agency or body,
commenced or threatened, including the reasonable fees and expenses of counsel
to any Indemnified Holder) directly or indirectly caused by, related to, based
upon, arising out of or in connection with any untrue
17
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 not misleading,
except insofar as such losses, claims, damages, liabilities or expenses 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
furnished in writing to the Issuers or the General Partner by any of the Holders
expressly for use therein; provided, however, that the indemnification contained
in this paragraph (a) with respect to the preliminary prospectus shall not inure
to the benefit of any Holder (or to the benefit of any person controlling such
Holder) on account of any such loss, claim, damage, liability or expense arising
from the sale of the Notes by such Holder to any person if a copy of a final
prospectus shall not have been delivered or sent to such person within the time
required by the Act and the regulations thereunder for delivery of a prospectus,
and the untrue statement or alleged untrue statement or omission or alleged
omission of a material fact contained in such preliminary prospectus was
corrected in the final prospectus, provided that the Issuers have delivered the
final prospectus to the Holders in reasonably requested quantities and on a
timely basis to permit such delivery or sending. The Issuers, the Operating
Partnership and the General Partner shall notify you promptly of the
institution, threat or assertion of any claim, proceeding (including any
governmental investigation) or litigation in connection with the matters
addressed by this Agreement which involves the Issuers, the Operating
Partnership, the General Partner or an Indemnified Holder.
In case any action or proceeding (including any governmental investigation
or proceeding) shall be brought or asserted against any of the Indemnified
Holders with respect to which indemnity may be sought against the Issuers, the
Operating Partnership or the General Partner, such Indemnified Holder (or the
Indemnified Holder controlled by such controlling person), shall promptly notify
the Issuers, the Operating Partnership or the General Partner in writing
(provided, that the failure to give such notice shall not relieve the
indemnifying party of its obligations pursuant to this Agreement unless the
indemnifying party is foreclosed by reason of such failure from asserting a
defense otherwise available to it). Such Indemnified Holder shall have the right
to employ separate counsel in any such action, suit or proceeding and to
participate in (but not control) the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Holder, rather than
the Issuers or the General Partner, as the case may be, unless (i) the Issuers
have agreed in writing to pay such fees and expenses, (ii) the Issuers, the
Operating Partnership, and the General Partner have failed to assume the defense
and employ counsel or (iii) the named parties to any such action, suit or
proceeding (including any impleaded parties) include both such Indemnified
Holder and the Issuers, the Operating Partnership, or the General Partner, and
such Indemnified Holder shall have been advised by its counsel that
representation of such Indemnified Holder and the Issuers, the Operating
Partnership, or the General Partner, as the case may be, by the same counsel
would be inappropriate under applicable standards of professional conduct
(whether or not such representation by the same counsel has been proposed) due
to actual or potential differing interests between them (in which case the
Issuers, the Operating Partnership, or the General Partner shall not have the
right to assume the defense of such action, suit or proceeding on behalf
18
of such Indemnified Holder). Neither the Issuers, the Operating Partnership nor
the General Partner shall, 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, the
Operating Partnership and the General Partner shall be liable for any settlement
of any such action or proceeding effected with the indemnifying party's prior
written consent and the Issuers, the Operating Partnership and the General
Partner agree to indemnify and hold harmless any Indemnified Holder from and
against any loss, claim, damage, liability or expense by reason of any
settlement of any action effected with the written consent of the indemnifying
party. Notwithstanding the immediately preceding sentence, if at any time an
Indemnified Holder shall have requested an indemnifying party to reimburse the
Indemnified Holder for fees and expenses of counsel as contemplated by the
second sentence of this paragraph, the indemnifying party agrees that it shall
be liable for any settlement of any proceeding effected without its written
consent (unless such consent has been reasonably withheld) if (i) such
settlement is entered into more than twenty business days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the Indemnified Holder in accordance with such request
prior to the date of such settlement (unless the right to such reimbursement
shall have been previously disputed in good faith). Neither the Issuers, the
Operating Partnership nor the General Partner shall, 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 a release of each Indemnified Holder from all liability arising out of
such action, claim, litigation or proceeding to at least the same extent as any
release of the Issuers, the Operating Partnership or the General Partner
obtained in connection with such settlement.
(b) Each Holder of Transfer Restricted Securities agrees, severally and
not jointly, to indemnify and hold harmless the Issuers, the Operating
Partnership and the General Partner and their respective directors, officers,
partners, employees or representatives, and any person controlling (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act) the Issuers,
the Operating Partnership and the General Partner, 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, the Operating
Partnership and the General Partner to each of the Indemnified Holders, but only
with respect to claims and actions based on information furnished in writing by
such Holder expressly for use in any Registration Statement. In case any action
or proceeding shall be brought against the Issuers, the Operating Partnership or
the General Partner or the directors or officers of Finance Corp. or the General
Partner 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, the Operating Partnership and the
General Partner or the directors or officers of Finance Corp. or the
19
General Partner or such controlling person shall have the rights and duties
given to each Holder by the preceding paragraph. In no event shall the liability
of any selling Holder hereunder be greater in amount than the dollar amount of
the proceeds received by such Holder upon the sale of the Registrable Securities
giving rise to such indemnification obligation.
(c) If the indemnification provided for in this Section 8 is unavailable
to an indemnified party under Section 8(a) or Section 8(b) hereof (other than by
reason of exceptions provided in those Sections) in respect of any losses,
claims, damages, liabilities or expenses 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 or expenses in such
proportion as is appropriate to reflect the relative benefits received by the
Issuers, the Operating Partnership and the General Partner on the one hand and
the Holders on the other hand from their sale of Transfer Restricted Securities
or if such allocation is not permitted by applicable law, the relative fault of
the Issuers, the Operating Partnership and the General Partner on the one hand
and of the Indemnified Holder on the other in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
fault of the Issuers, the Operating Partnership and the General Partner 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, the Operating Partnership and
the General Partner or by the Indemnified Holder and the parties' 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 and expenses referred to above shall be
deemed to include, subject to the limitations set forth in the second paragraph
of Section 8(a), 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 Operating Partnership and the General Partner 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 expenses 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 ▇▇▇▇▇▇▇ ▇, ▇▇▇▇ 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 proceeds received by such
Holder with respect to the Series C Notes 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
20
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Holders' obligations to contribute
pursuant to this Section 8(c) are several in proportion to the respective
principal amount of Series C Notes held by each of the Holders hereunder and not
joint.
SECTION 9. RULE 144A
The Issuers hereby agree 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 Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A.
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 under Section 11 hereof 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 or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided, that such investment bankers and managers must be
reasonably satisfactory to the Issuers, it being understood that the Issuers may
reasonably object to any underwriter if the selection of such underwriter would
require the engagement of a "qualified independent underwriter" under the rules
and regulations of the NASD.
SECTION 12. MISCELLANEOUS
(a) No Inconsistent Agreements. Neither the Issuers, the Operating
Partnership nor the General Partner will on or after the date of this Agreement
enter into any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders in this Agreement or otherwise conflicts
with the provisions hereof. 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' securities under any agreement in effect on the date
hereof.
21
(b) Adjustments Affecting the Notes. Neither the Issuers, the Operating
Partnership nor the General Partner will take any action, or permit any change
to occur, with respect to the Notes that would materially and adversely affect
the ability of the Holders to Complete any Exchange Offer.
(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 obtained the
written consent of Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities. 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.
(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), telecopier, electronic
communication or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to the Issuers, the Operating Partnership or the General
Partner:
If by mail:
AmeriGas Propane, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
If by overnight courier:
AmeriGas Propane, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
22
With a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if delivered by electronic communication; 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.
(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
CONFLICT 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 together with the other Operative
Documents (as defined in the Purchase 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
23
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
between the parties with respect to such subject matter.
24
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
AMERIGAS PARTNERS, L.P.
By: AmeriGas Propane, Inc.,
its General Partner
By:_______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Chief Financial
Officer
AMERIGAS EAGLE FINANCE CORP.
By:_______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Chief Financial
Officer
AMERIGAS PROPANE, INC.
By:_______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Chief Financial
Officer
AMERIGAS PROPANE, L.P.
By: AmeriGas Propane, Inc.,
its general partner
By:_______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Chief Financial
Officer
25
CREDIT SUISSE FIRST BOSTON CORPORATION
By:_______________________________
Name:
Title:
BANC OF AMERICA SECURITIES LLC
By:_______________________________
Name:
Title:
26
