EXHIBIT 4.3
EXECUTION COPY
PETRO STOPPING CENTERS HOLDINGS, X.X.
XXXXX HOLDINGS FINANCIAL CORPORATION
15% Senior Discount Notes Due 2008
REGISTRATION RIGHTS AGREEMENT
New York, New York
July 23, 1999
First Union Capital Markets Corp.
CIBC World Markets Corp.
As Initial Purchasers under the Purchase Agreement
c/o First Union Capital Markets Corp.
000 Xxxxx Xxxxxxx Xxxxxx, XX-0
Xxxxxxxxx, XX 00000-0000
Petro Holdings LP Corp.
c/o Chartwell Investments Inc.
000 Xxxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
This Registration Rights Agreement (the "Agreement") is dated as of
July 23, 1999, by and among Petro Stopping Centers Holdings L.P., a Delaware
limited partnership (the "Partnership"), and Petro Holdings Financial
Corporation, a Delaware corporation ("Holdings Corp." and together with the
Partnership the "Issuers"), on the one hand, and First Union Capital Markets
Corp. and CIBC World Markets Corp. (the "Initial Purchasers") and Petro Holdings
LP Corp. ("Chartwell"), on the other hand.
This Agreement is being entered into in connection with (i) a certain
purchase agreement, dated July 19, 1999, among the Issuers, Petro Warrant
Holdings Corporation ("Warrant Holdings") and the Initial Purchasers (the
"Purchase Agreement"), which provides for the sale by the Issuers to the Initial
Purchasers of 82,707 units (the "Units"), consisting of $82,707,000 aggregate
principal amount at stated maturity of the Issuers' 15% Senior Discount Notes
Due 2008 (the "Investor Notes") and warrants to purchase 82,707 shares of common
stock of Warrant Holdings (the "Warrants") and (ii) a certain purchase
agreement, dated July 23, 1999 (the "Chartwell Purchase Agreement") among Petro,
Inc., a Texas corporation, Chartwell, Petro Holdings GP Corp., a Delaware
corporation, Petro Stopping Centers, L.P., a Delaware limited partnership, Mobil
Long Haul, Inc., a Delaware corporation, Xxxxx X. Xxxxxxxx, Xx., Xxxxx X.
Xxxxxxxx, Xx., JAJCO II, Inc., a Delaware corporation, Volvo Petro Holdings,
LLC, a Delaware limited liability company, and Petro Warrant Holdings
Corporation, a Delaware corporation, which provides for the sale by the Issuers
to Chartwell of $30,663,000 aggregate principal amount at stated maturity of the
Issuers' 15% Senior Discount Notes Due 2008 (the "Chartwell Notes" and together
with the Investor Notes, the "Notes"). In order to induce the Initial
Purchasers to enter into the Purchase Agreement and Chartwell to enter into the
Chartwell Purchase Agreement, the Issuers have agreed to provide the
registration rights set forth in this
Agreement for the benefit of the Initial Purchasers and Chartwell and their
direct and indirect transferees. The execution and delivery of this Agreement is
a condition to the obligation of the Initial Purchasers to purchase the Units
under the Purchase Agreement and of Chartwell to enter into the Chartwell
Purchase Agreement. The parties hereby agree as follows:
1. Definitions. Capitalized terms used herein without definition
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shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following capitalized defined terms shall have the
following meanings:
"Accreted Value" means, as of any date prior to August 1, 2004, an
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amount per $1,000 principal amount at Stated Maturity of Notes that is equal to
the sum of (a) $483.64 and (b) the portion of the excess of the principal amount
at Stated Maturity of each Note over $483.64 which shall have been amortized on
a daily basis and compounded semi-annually on each February 1 and August 1 at
the rate of 15% per annum from the Issue Date through the date of determination
computed on the basis of a 360-day year of twelve 30-day months; and, as of any
date on or after August 1, 2004, the Accreted Value of each Note shall mean the
aggregate principal amount at Stated Maturity of such Note.
"Act" means the Securities Act of 1933, as amended, and the rules and
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regulations of the Commission promulgated thereunder.
"Affiliate" means, with respect to any specified person, any other
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person that, directly or indirectly, is in control of, is controlled by, or is
under common control with, such specified person. For purposes of this
definition, control of a person means the power, direct or indirect, to direct
or cause the direction of the management and policies of such person whether by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agreement" has the meaning set forth in the preamble hereto.
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"Business Day" means any day excluding Saturday, Sunday or any other
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day which is a legal holiday under the laws of Charlotte, North Carolina or New
York, New York or is a day on which banking institutions therein located are
authorized or required by law or other governmental action to close.
"Commission" means the Securities and Exchange Commission.
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"Consummate" means, with respect to a Registered Exchange Offer, the
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occurrence of (a) the filing and effectiveness under the Act of the Exchange
Offer Registration Statement relating to the Exchange Notes to be issued in the
Registered Exchange Offer, (b) the maintenance of such Registration Statement
continuously effective and the keeping of the Registered Exchange Offer open for
a period not less than the minimum period required pursuant to Section 2(c)(ii)
hereof, (c) the Issuers' acceptance for exchange of all Transfer Restricted
Notes duly tendered and not validly withdrawn pursuant to the Registered
Exchange Offer and (d) the delivery of Exchange Notes by the Issuers to the
registrar under the Indenture in the same aggregate principal amount as the
aggregate principal amount of Transfer Restricted Notes duly tendered and not
validly withdrawn by Holders thereof pursuant to the Registered Exchange
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Offer and the delivery of such Exchange Notes to such Holders. The term
"Consummation" has a meaning correlative to the foregoing.
"Damage Amount" has the meaning set forth in Section 4 hereto.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended,
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and the rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" means debt securities of the Issuers substantially
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identical in all material respects to the Notes (except that the Damage Amount
provisions and the transfer restrictions pertaining to the Notes will be
modified or eliminated, as appropriate), to be issued under the Indenture.
"Exchange Offer Registration Period" means the one-year period (or
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longer, if required by applicable law) following the Consummation of the
Registered Exchange Offer, exclusive of any period during which any stop order
shall be in effect suspending the effectiveness of the Exchange Offer
Registration Statement; provided, however, that in the event that all resales of
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Exchange Notes (including, subject to the time periods set forth herein, any
resales by Participating Broker-Dealers) covered by such Exchange Offer
Registration Statement have been made, the Exchange Offer Registration Statement
need not thereafter remain continuously effective for such period.
"Exchange Offer Registration Statement" means a registration statement
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of the Issuers on an appropriate form under the Act with respect to the
Registered Exchange Offer, all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Filing Date" has the meaning set forth in Section 2 hereto.
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"Holder" means any holder from time to time of Transfer Restricted
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Notes or Exchange Notes (including either of the Initial Purchasers).
"Indenture" means the indenture relating to the Notes and the Exchange
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Notes, to be dated as of the Closing Date, among the Issuers and State Street
Bank and Trust Company, as trustee, as the same may be amended, supplemented,
waived or otherwise modified from time to time in accordance with the terms
thereof.
"Initial Purchasers" has the meaning set forth in the preamble hereto.
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"Issue Date" means July 23, 1999.
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"Issuers" has the meaning set forth in the preamble hereto.
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"Losses" has the meaning set forth in Section 8(d) hereto.
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"Majority Holders" means the Holders of a majority of the aggregate
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principal amount of Transfer Restricted Notes registered under a Registration
Statement.
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"Managing Underwriters" means the investment banker or investment
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bankers and manager or managers that shall administer an underwritten offering
under a Shelf Registration Statement.
"Notes" has the meaning set forth in the preamble hereto.
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"Participating Broker-Dealer" means any Holder (which may include any
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of the Initial Purchasers) that is a broker-dealer, electing to exchange Notes
acquired for its own account as a result of market-making activities or other
trading activities for Exchange Notes.
"Prospectus" means the prospectus included in any Registration
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Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Transfer Restricted Notes covered by such
Registration Statement, and all amendments and supplements to the Prospectus,
including post-effective amendments.
"Purchase Agreement" has the meaning set forth in the preamble hereto.
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"Registered Exchange Offer" means the proposed offer to the Holders to
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issue and deliver to such Holders, in exchange for the Notes, a like principal
amount of Exchange Notes.
"Registration Statement" means any Exchange Offer Registration
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Statement or Shelf Registration Statement that covers any of the Transfer
Restricted Notes (including any guarantees of each thereof) pursuant to the
provisions of this Agreement, amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto, and all material
incorporated by reference therein.
"Shelf Registration" means a registration effected pursuant to Section
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3 hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(c)
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hereof.
"Shelf Registration Statement" means a "shelf" registration statement
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of the Issuers pursuant to the provisions of Section 3 hereof, which covers some
or all of the Transfer Restricted Notes, as applicable, on an appropriate form
under Rule 415 under the Act, or any similar rule that may be adopted by the
Commission, all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Stated Maturity" means August 1, 2008.
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"Transfer Restricted Notes" means each Note upon original issuance
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thereof and at all times subsequent thereto, each Exchange Note as to which
Section 3(a)(iii) and Section 3(a)(iv) apply upon original issuance and at all
times subsequent thereto, until in the case of any
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such Note or Exchange Note, as the case may be, the earliest to occur of (i) the
date on which such Note has been exchanged by a person other than a
Participating Broker-Dealer for an Exchange Note (other than with respect to an
Exchange Note as to which Section 3(a)(iii) and Section 3(a)(iv) apply), (ii)
with respect to Exchange Notes received by Participating Broker-Dealers in the
Registered Exchange Offer, the date on which such Exchange Note has been sold by
such Participating Broker-Dealer by means of the Prospectus contained in the
Exchange Offer Registration Statement, (iii) a Shelf Registration Statement
covering such Note or Exchange Note, as the case may be, has been declared
effective by the Commission and such Note or Exchange Note, as the case may be,
has been disposed of in accordance with such effective Shelf Registration
Statement, (iv) the date on which such Note or Exchange Note, as the case may
be, is disposed of pursuant to Rule 144 under the Act or (v) such Note or
Exchange Note, as the case may be, ceases to be outstanding for purposes of the
Indenture.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
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amended.
"Trustee" means the trustee with respect to the Notes or Exchange
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Notes, as applicable, under the Indenture.
2. Registered Exchange Offer; Resales of Exchange Notes by
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Participating Broker-Dealers; Private Exchange. (a) The Issuers shall prepare
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and, not later than 75 days from the Issue Date (or, if such 75th day is not a
Business Day, by the first Business Day thereafter), shall file with the
Commission the Exchange Offer Registration Statement with respect to the
Registered Exchange Offer (the date of such filing hereinafter referred to as
the "Filing Date"). The Issuers shall use their best efforts (i) to cause the
Exchange Offer Registration Statement to be declared effective under the Act
within 150 days from the Issue Date (or, if such 150th day is not a Business
Day, by the first Business Day thereafter), and (ii) to Consummate the
Registered Exchange Offer within 30 Business Days from the date the Exchange
Offer Registration Statement becomes effective (or, if such 30th day is not a
Business Day, by the first Business Day thereafter).
(b) The objective of such Registered Exchange Offer is to enable each
Holder electing to exchange Transfer Restricted Notes for Exchange Notes
(assuming that such Holder (x) is not an "affiliate" of the Issuers within the
meaning of the Act, (y) is not a broker-dealer that acquired the Transfer
Restricted Notes in a transaction other than as a part of its market-making or
other trading activities and (z) if such Holder is not a broker-dealer, acquires
the Exchange Notes in the ordinary course of such Xxxxxx's business, is not
participating in the distribution of the Exchange Notes and has no arrangements
or understandings with any person to participate in the distribution of the
Exchange Notes) to resell such Exchange Notes from and after their receipt
without any limitations or restrictions under the Act and without material
restrictions under the securities laws of a substantial proportion of the
several states of the United States.
(c) In connection with the Registered Exchange Offer, the Issuers
shall:
(i) mail to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
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(ii) keep the Registered Exchange Offer open for acceptance for not
less than 20 Business Days after the date notice thereof is mailed to
Holders;
(iii) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of New
York; and
(iv) comply in all material respects with all applicable laws
relating to the Registered Exchange Offer.
(d) The Issuers may suspend the use of the Prospectus for a period
not to exceed 30 days in any six month period or an aggregate of 45 days in any
twelve-month period for valid business reasons, to be determined by the Issuers
in their sole reasonable judgment (not including avoidance of their obligations
hereunder), including, without limitation, the acquisition or divestiture of
assets, public filings with the Commission, pending corporate developments and
similar events; provided that the Issuers promptly thereafter comply with the
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requirements of Section 5(k) hereof, if applicable.
(e) As soon as practicable after the Consummation of the Registered
Exchange Offer, the Issuers shall cause the Trustee promptly to authenticate and
deliver to each Holder Exchange Notes equal in principal amount to the Transfer
Restricted Notes of such Holder so accepted for exchange.
(f) The Initial Purchasers and the Issuers acknowledge that, pursuant
to interpretations by the staff of the Commission of Section 5 of the Act, and
in the absence of an applicable exemption therefrom, each Participating Broker-
Dealer is required to deliver a Prospectus in connection with a sale of any
Exchange Notes received by such Participating Broker-Dealer pursuant to the
Registered Exchange Offer in exchange for Transfer Restricted Notes acquired for
its own account as a result of market-making activities or other trading
activities. Accordingly, the Issuers will allow Participating Broker-Dealers
and other persons, if any, with similar prospectus delivery requirements to use
the Prospectus contained in the Exchange Offer Registration Statement in
connection with the resale of Exchange Notes and shall:
(i) include the information set forth in Annex A hereto on the
cover of the Prospectus forming a part of the Exchange Offer Registration
Statement, in Annex B hereto in the forepart of the Exchange Offer
Registration Statement in a section setting forth details of the Registered
Exchange Offer, in Annex C hereto in the underwriting or plan of
distribution section of the Prospectus forming a part of the Exchange Offer
Registration Statement, and in Annex D hereto in the letter of transmittal
delivered pursuant to the Registered Exchange Offer; and
(ii) use their best efforts to keep the Exchange Offer Registration
Statement continuously effective (subject to Section 2(d)) under the Act
during the Exchange Offer Registration Period for delivery of the
Prospectus included therein by Participating Broker-Dealers in connection
with sales of Exchange Notes received pursuant to the Registered Exchange
Offer, as contemplated by Section 5(h) below.
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(g) In the event that (i) either Initial Purchaser determines that it
is not eligible to participate in the Registered Exchange Offer with respect to
the exchange of Transfer Restricted Notes constituting any portion of an unsold
allotment or (ii) any Holder delivers to the issuers the notice described in
clause (iv) of Section 3(a), upon the effectiveness of the Shelf Registration
Statement as contemplated by Section 3 hereof and at the request of such Initial
Purchaser or such Holder, as the case may be, the Issuers shall issue and
deliver to such Initial Purchaser or such Holder, as the case may be, or to the
party purchasing Transfer Restricted Notes registered under the Shelf
Registration Statement from such Initial Purchaser or such Holder, as the case
may be, in exchange for such Transfer Restricted Notes, a like principal amount
of Exchange Notes to the extent permitted by applicable law. The Issuers shall
use their reasonable best efforts to cause the CUSIP Service Bureau to issue the
same CUSIP number for such Exchange Notes as for Exchange Notes issued pursuant
to the Registered Exchange Offer.
3. Shelf Registration. (a) If (i) the Issuers are not permitted to
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file the Exchange Offer Registration Statement or to Consummate the Registered
Exchange Offer because the Registered Exchange Offer is not permitted by
applicable law or Commission policy, (ii) for any other reason the Registered
Exchange Offer is not Consummated within 30 Business Days of the date the
Exchange Offer Registration Statement has become effective, (iii) an Initial
Purchaser so requests with respect to Notes acquired by it directly from the
Issuers on or prior to the 20th Business Day following the Consummation of the
Registered Exchange Offer, (iv) any Holder notifies the Issuers on or prior to
the 20th Business Day following the Consummation of the registered Exchange
Offer that such Holder is not eligible to participate in the Registered Exchange
Offer or the Exchange Notes such Holder would receive would not be freely
tradable, or (v) in the case where an Initial Purchaser participates in the
Registered Exchange Offer or acquires Exchange Notes pursuant to Section 2(g)
hereof, the Initial Purchaser does not receive freely tradable Exchange Notes in
exchange for Notes constituting any portion of an unsold allotment and such
Initial Purchaser notifies the Issuers on or prior to the 20th Business day
following the Consummation of the Registered Exchange Offer (it being understood
that, for purposes of this Section 3, (x) the requirement that the Initial
Purchaser deliver a Prospectus containing the information required by Items 507
and/or 508 of Regulation S-K under the Act in connection with sales of Exchange
Notes acquired in exchange for such Transfer Restricted Notes shall result in
such Exchange Notes being not "freely tradable" and (y) the requirement that a
Participating Broker-Dealer deliver a Prospectus in connection with sales of
Exchange Notes acquired in the Registered Exchange Offer in exchange for
Transfer Restricted Notes acquired as a result of market-making activities or
other trading activities shall not result in such Exchange Notes being not
"freely tradable"), the following provisions shall apply:
(b) The Issuers shall file with the Commission a Shelf Registration
Statement prior to the 75th day following the earliest to occur of (i) the date
on which the Issuers determine that they are not permitted to file the Exchange
Offer Registration Statement or to Consummate the Exchange Offer; (ii) 30
Business Days after the Exchange Offer registration Statement has been declared
effective if the Registered Exchange Offer has not been Consummated by such date
and (iii) the date notice is given pursuant to Section (a)(iii), (iv) or (v)
above (or if such 75th day is not a Business Day, by the first Business Day
thereafter) and shall use their reasonable efforts to cause the Shelf
Registration Statement to be declared effective by the Commission within 135
days thereafter. With respect to Exchange Notes received by either Initial
Purchaser in exchange for Notes constituting any portion of an unsold allotment,
the Issuers may, if
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permitted by current interpretations by the Commission's staff, file a post-
effective amendment to the Exchange Offer Registration Statement containing the
information required by Regulation S-K Items 507 and/or 508, as applicable, in
satisfaction of its obligations under this paragraph (b) with respect thereto,
and any such Exchange Offer Registration Statement, as so amended, shall be
referred to herein as, and governed by the provisions herein applicable to, a
Shelf Registration Statement.
(c) The Issuers shall keep such Shelf Registration Statement
continuously effective (subject to Section 3(d)) in order to permit the
Prospectus forming a part thereof to be usable by Holders until the earliest of
(i) such time as the Notes or Exchange Notes covered by the Shelf Registration
Statement can be sold without any limitations under clauses (c), (e), (f) and
(h) of Rule 144, (ii) two years from the date on which the Shelf Registration
Statement was filed and (iii) such date as of which all the Transfer Restricted
Notes have been sold pursuant to the Shelf Registration Statement (in any such
case, such period being called the "Shelf Registration Period"). The Issuers
shall be deemed not to have used their best efforts to keep the Shelf
Registration Statement effective during the requisite period if they voluntarily
take any action that would result in Holders of Transfer Restricted Notes
covered thereby not being able to offer and sell such notes during that period,
unless such action is required (x) by applicable law or (y) pursuant to Section
3(d) hereof, and, in either case, so long as the Issuers promptly thereafter
comply with the requirements of Section 5(k) hereof, if applicable.
(d) The Issuers may suspend the use of the Prospectus for a period
not to exceed 30 days in any six month period or an aggregate of 45 days in any
twelve-month period for valid business reasons, to be determined by the Issuers
in their sole reasonable judgment (not including avoidance of its obligations
hereunder), including, without limitation, the acquisition or divestiture of
assets, public filings with the Commission, pending corporate developments and
similar events; provided that the Issuers promptly thereafter comply with the
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requirements of Section 5(k) hereof, if applicable.
(e) No Holder of Transfer Restricted Notes may include any of its
Transfer Restricted Notes in any Shelf Registration Statement pursuant to this
Agreement unless and until such Holder furnishes to the Issuers in writing,
within 20 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 Notes shall be entitled to a Damage Amount
pursuant to Section 4 hereof unless and until such Holder shall have used its
best efforts to provide all such reasonably requested information. Each Holder
of Transfer Restricted Notes 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 misleading.
4. Damage Amount.
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(a) The parties hereto agree that Holders will suffer damages if the
Issuers fail to perform their obligations under Section 2 or Section 3 hereof
and that it would not be feasible to ascertain the extent of such damages.
Accordingly, in the event that (i) the applicable Registration Statement is not
filed with the Commission on or prior to the date specified herein
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for such filing, (ii) the applicable Registration Statement has not been
declared effective by the Commission on or prior to the date specified herein
for such effectiveness after such obligation arises, (iii) if the Registered
Exchange Offer is required to be Consummated hereunder, the Registered Exchange
Offer has not been Consummated by the Issuers within the time period set forth
in Section 2(a), or (iv) prior to the end of the Exchange Offer Registration
Period or the Shelf Registration Period, the Commission shall have issued a stop
order suspending the effectiveness of the Exchange Offer Registration Statement
or the Shelf Registration Statement, as the case may be, or proceedings have
been initiated with respect to the Registration Statement under Section 8(d) or
8(e) of the Act, (v) the aggregate number of days in any one such suspension
period exceeds the period permitted pursuant to Section 2(d) or 3(d) hereof, as
each may be applicable, or (vi) the number of suspension periods exceeds the
number permitted pursuant to Section 2(d) or 3(d) hereof, as each may be
applicable (each such event referred to in clauses (i) through (vi), a
"Registration Default"), then liquidated damages (the "Damage Amount") will
accrue 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 of Accreted Value of such Transfer Restricted Notes and will increase by
an additional $0.05 per week per $1,000 of Accreted Value of such Transfer
Restricted Notes for each subsequent 90-day period until such Registration
Default has been cured, up to an aggregate maximum Damage Amount of $0.30 per
week per $1,000 of Accreted Value of Notes for all Registration Defaults.
Following the cure of a Registration Default, the accrual of Damage Amounts with
respect to such Registration Default will cease and upon the cure of all
Registration Defaults the accrual of all Damage Amounts will cease.
(b) The Issuers shall notify the Trustee and paying agent under the
Indenture (or the trustee and paying agent under such other indenture under
which any Transfer Restricted Notes are issued) immediately upon the happening
of each and every Registration Default. The Issuers shall pay the Damage Amount
due on the Transfer Restricted Notes by depositing with the paying agent (which
shall not be either of the Issuers for these purposes) for the Transfer
Restricted Notes, in trust, for the benefit of the Holders thereof, prior to
11:00 A.M. on each February 1 and August 1, sums sufficient to pay the Damage
Amount then due. The Damage Amount due shall be payable semi-annually on each
February 1 and August 1, to the record holders of Notes at the close of business
on the January 15 and July 15 immediately preceding such dates, commencing with
the first such date occurring after any Damage Amounts commence to accrue and
until such Registration Default is cured. Each obligation to pay Damage Amounts
shall be deemed to accrue from and include the date of the applicable
Registration Default.
(c) The parties hereto agree that the Damage Amount provided for in
this Section 4 constitutes a reasonable estimate of the damages that will be
suffered by holders of Transfer Restricted Notes by reason of the happening of
any Registration Default.
(d) All of the Issuers' obligations set forth in this Section 4 which
are outstanding with respect to any Transfer Restricted Note at the time such
Note ceases to be covered by an effective Registration Statement shall survive
until such time as all such obligations with respect to such security have been
satisfied in full (notwithstanding termination of the Agreement).
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5. Registration Procedures. In connection with any Shelf
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Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Issuers shall furnish to each of the Initial Purchasers,
prior to the filing thereof with the Commission, a copy of any Registration
Statement, and each amendment thereof and each amendment or supplement, if any,
to the Prospectus included therein and shall use their best efforts to reflect
in each such document, when so filed with the Commission, such comments as each
of the Initial Purchasers reasonably may propose.
(b) The Issuers shall ensure that:
(i) any Registration Statement and any amendment thereto and any
Prospectus contained therein and any amendment or supplement thereto
complies in all material respects with the Act;
(ii) any Registration Statement and any amendment thereto does not,
when it becomes effective, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and
(iii) any Prospectus forming part of any Registration Statement,
including any amendment or supplement to such Prospectus, does not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading;
provided that no representation or agreement is made hereby with respect to
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information with respect to either of the Initial Purchasers, any Underwriter or
any Holder required to be included in any Registration Statement or Prospectus
pursuant to the Act or provided by either of the Initial Purchasers, any Holder
or any Underwriter specifically for inclusion in any Registration Statement or
Prospectus.
(c) (1) The Issuers shall advise the Initial Purchasers and, in the
case of a Shelf Registration Statement, the Holders of Transfer Restricted Notes
covered thereby, and, if requested by either of the Initial Purchasers or any
such Holder, confirm such advice in writing:
(i) when a Registration Statement and any amendment thereto has
been filed with the Commission and when the Registration Statement or any
post-effective amendment thereto has become effective; and
(ii) of any request by the Commission for amendments or supplements
to the Registration Statement or the Prospectus included therein or for
additional information.
(2) The Issuers shall advise the Initial Purchasers and, in the case
of a Shelf Registration Statement, the Holders of Transfer Restricted Notes
covered thereby, and, in the case of an Exchange Offer Registration Statement,
any Participating Broker-Dealer that has provided in writing to the Issuers a
telephone or facsimile number and address for notices, and, if
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requested by either of the Initial Purchasers or any such Holder or
Participating Broker-Dealer, confirm such advice in writing:
(i) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose;
(ii) of the receipt by the Issuers of any notification with respect
to the suspension of the qualification of the Transfer Restricted Notes
included in any Registration Statement for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and
(iii) of the suspension of the use of the Prospectus or of the
happening of any event that requires the making of any changes in the
Registration Statement or the Prospectus so that, as of such date, the
statements therein are not misleading and do not omit to state a material
fact required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances under
which they were made) not misleading (which advice shall be accompanied by
an instruction to suspend the use of the Prospectus until the requisite
changes have been made).
(d) The Issuers shall use their best efforts to obtain the withdrawal
of any order suspending the effectiveness of any Registration Statement at the
earliest possible time and in any event shall within 30 days of any such order
(or, if such 30th day is not a Business Day, by the first Business Day
thereafter) amend the Registration Statement covering all of the Transfer
Restricted Notes (whereupon references herein to the Registration Statement
shall be deemed to include references to such additional filing).
(e) The Issuers shall furnish to each Holder of Transfer Restricted
Notes included within the coverage of any Shelf Registration Statement, without
charge, at least one copy of such Shelf Registration Statement and any post-
effective amendment thereto, including financial statements and schedules, and,
if the Holder so requests in writing, all exhibits thereto (including those
incorporated by reference).
(f) The Issuers shall, during the Shelf Registration Period, deliver
to each Holder of Transfer Restricted Notes included within the coverage of any
Shelf Registration Statement, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may reasonably
request; and the Issuers consent to the use of the Prospectus or any amendment
or supplement thereto by each of the selling Holders of Transfer Restricted
Notes in connection with the offering and sale of the Transfer Restricted Notes
covered by the Prospectus or any amendment or supplement thereto.
(g) The Issuers shall furnish to each Participating Broker-Dealer
that so requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, any documents
11
incorporated by reference therein and, if the Participating Broker-Dealer so
requests in writing, all exhibits thereto (including those incorporated by
reference).
(h) The Issuers shall, during the Exchange Offer Registration Period,
deliver to each Participating Broker-Dealer, without charge, as many copies of
the Prospectus (including each preliminary Prospectus) included in such Exchange
Offer Registration Statement and any amendment or supplement thereto as such
Participating Broker-Dealer may reasonably request; and the Issuers consent to
the use of the Prospectus or any amendment or supplement thereto by any such
Participating Broker-Dealer in connection with the offering and sale of the
Exchange Notes, as provided in Section 2(f) above.
(i) Prior to the Registered Exchange Offer or any other offering of
Transfer Restricted Notes pursuant to any Registration Statement, the Issuers
shall register, qualify or cooperate with the Holders of Transfer Restricted
Notes included therein and their respective counsel in connection with the
registration or qualification of such Transfer Restricted Notes for offer and
sale under the securities or blue sky laws of such states as any such Holders
reasonably request in writing and do any and all other acts or things necessary
or advisable to enable the offer and sale in such jurisdictions of the Transfer
Restricted Notes covered by such Registration Statement; provided, however, that
-------- -------
the neither of the Issuers will be required to qualify generally to do business
in any jurisdiction in which it is not then so qualified, to file any general
consent to service of process or to take any action which would subject it to
general service of process or to taxation in any such jurisdiction where it is
not then so subject.
(j) The Issuers shall cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Transfer Restricted
Notes to be sold pursuant to any Registration Statement free of any restrictive
legends and in denominations and registered in such names as Holders may request
prior to sales of Transfer Restricted Notes pursuant to such Registration
Statement.
(k) Upon the occurrence of any event contemplated by paragraph
(c)(2)(iii) of this Section 5, the Issuers shall promptly prepare and file a
post-effective amendment to any Registration Statement or an amendment or
supplement to the related Prospectus or any other required document so that, as
thereafter delivered to purchasers of the Transfer Restricted Notes included
therein, the Prospectus will not include an untrue statement of a material fact
or omit to state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(l) The Issuers shall use their reasonable best efforts to cause The
Depository Trust Company ("DTC") on the first Business Day following the
effective date of any Registration Statement hereunder or as soon as possible
thereafter to remove (i) from any existing CUSIP number assigned to the Transfer
Restricted Notes or Exchange Notes, as the case may be, any designation
indicating that such notes are "restricted securities," which efforts shall
include delivery to DTC of a letter executed by the Issuers substantially in the
form of Annex E hereto and (ii) any other stop or restriction on DTC's system
with respect to the Transfer Restricted Notes or Exchange Notes, as the case may
be. In the event the Issuers are unable to cause DTC to take actions described
in the immediately preceding sentence, the Issuers shall take such actions as
the Initial Purchasers may reasonably request to provide, as soon as
12
practicable, a CUSIP number for the Transfer Restricted Notes or Exchange Notes
registered under such Registration Statement and to cause such CUSIP number to
be assigned to the Transfer Restricted Notes or Exchange Notes (or to the
maximum aggregate principal amount of the securities to which such number may be
assigned).
(m) The Issuers shall use their best efforts to comply with all
applicable rules and regulations of the Commission and shall make generally
available to its security holders as soon as practicable after the effective
date of the applicable Registration Statement an earnings statement satisfying
the provisions of Section 11(a) of the Act and Rule 158 promulgated thereunder.
(n) The Issuers shall cause the Indenture to be qualified under the
Trust Indenture Act in a timely manner.
(o) The Issuers may require each Holder of Transfer Restricted Notes
to be sold pursuant to any Shelf Registration Statement to furnish to the
Issuers such information regarding the Holder and the distribution of such
Transfer Restricted Notes as may, from time to time, be reasonably required by
the Act, and the obligations of the Issuers to any Holder hereunder shall be
expressly conditioned on the compliance of such Holder with such request.
(p) The Issuers shall, if requested, promptly incorporate in a
Prospectus supplement or post-effective amendment to a Shelf Registration
Statement (i) such information as the Majority Holders provide or, if the
Transfer Restricted Notes are being sold in an underwritten offering, as the
Managing Underwriters and the Majority Holders reasonably agree should be
included therein and provided to the Issuers in writing for inclusion in the
Shelf Registration Statement or Prospectus, and (ii) such information as a
Holder may provide from time to time to the Issuers in writing for inclusion in
a Prospectus or any Shelf Registration Statement concerning such Holder and the
distribution of such Holder's Transfer Restricted Notes and, in either case,
shall make all required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after being notified in writing of the matters
to be incorporated in such Prospectus supplement or post-effective amendment.
(q) In the case of any Shelf Registration Statement, the Issuers
shall enter into such agreements (including underwriting agreements) and take
all other customary and appropriate actions as may be reasonably requested in
order to expedite or facilitate the registration or the disposition of any
Transfer Restricted Notes, and in connection therewith, if an underwriting
agreement is entered into, cause the same to contain indemnification provisions
and procedures no less favorable than those set forth in Section 8 (or such
other provisions and procedures acceptable to the Majority Holders and the
Managing Underwriters, if any, with respect to all parties to be indemnified
pursuant to Section 8).
(r) In the case of any Shelf Registration Statement, the Issuers
shall:
(i) make reasonably available for inspection by the Holders of
Transfer Restricted Notes to be registered thereunder, any Underwriter
participating in any disposition pursuant to such Shelf Registration
Statement, and any attorney, accountant or other agent retained by the
Holders or any such Underwriter, all relevant financial and
13
other records, pertinent corporate documents and properties of the Issuers
and any of their subsidiaries;
(ii) cause the Issuers' officers, directors and employees to supply
all relevant information reasonably requested by the Holders or any such
Underwriter, attorney, accountant or agent in connection with any such
Registration Statement as is customary for similar due diligence
examinations; provided, however, that any information so provided will be
-------- -------
deemed confidential at the time of delivery of such information and shall
be kept confidential by the Holders or any such Underwriter, attorney,
accountant or agent, unless (x) disclosure thereof is made in connection
with a court proceeding or required by law; provided that each Holder and
--------
any such Managing Underwriter, attorney, accountant or agent will, upon
learning that disclosure of such information is sought in a court
proceeding or required by law, give reasonable notice to the Issuers with
enough time to allow the Issuers to undertake appropriate action to prevent
disclosure at the Issuers' sole expense, or (y) such information has
previously been made or becomes available to the public generally through
the Issuers or through a third party without an accompanying obligation of
confidentiality;
(iii) make such representations and warranties to the Holders of
Transfer Restricted Notes registered thereunder and the Managing
Underwriters, if any, in form, substance and scope as are customarily made
by issuers to Managing Underwriters and covering matters including, but not
limited to, those set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Issuers and updates thereof
(which counsel and opinions, in form, scope and substance, shall be
reasonably satisfactory to the Managing Underwriters, if any) addressed to
each selling Holder and the Managing Underwriters, if any, covering such
matters as are customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by such
Holders and Managing Underwriters;
(v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Issuers (and, if necessary,
any other independent certified public accountants of any subsidiary of the
Issuers or of any business acquired by the Issuers for which financial
statements and financial data are, or are required to be, included in the
Registration Statement), addressed to each selling Holder of the Transfer
Restricted Notes covered by such Shelf Registration Statement (provided
such Holder furnishes the accountants with such representations as the
accountants customarily require in similar situations) and the Managing
Underwriters, if any, in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with primary
underwritten offerings;
(vi) deliver such documents and certificates as may be reasonably
requested by the Majority Holders and the Managing Underwriters, if any,
including those to evidence compliance with Section 5(i) and with any
customary conditions contained in the underwriting agreement or other
agreement entered into by the Issuers; and
14
(vii) The foregoing actions set forth in this Section 5(r) shall be
performed at (x) the effectiveness of such Shelf Registration Statement and
each post-effective amendment thereto and (y) each closing under any
underwriting or similar agreement as and to the extent required thereunder.
(s) The Issuers shall, if and to the extent required under the Act
and/or the Trust Indenture Act and the rules and regulations thereunder in order
to register the Transfer Restricted Notes under the Act and qualify the
Indenture under the Trust Indenture Act.
6. Registration Expenses. The Issuers shall bear all fees and
---------------------
expenses (including the fees and expenses, if any, of Cleary, Xxxxxxxx, Xxxxx &
Xxxxxxxx, counsel for the Initial Purchasers, incurred in connection with the
Registered Exchange Offer) incurred in connection with the performance of its
obligations under Sections 2, 3, 4 and 5 hereof (other than brokers', dealers'
and underwriters' discounts and commissions and brokers', dealers' and
underwriters' counsel fees).
7. Rules 144 and 144A. The Issuers shall use their best efforts to
------------------
file any reports required to be filed by them under the Act and the Exchange Act
in a timely manner and, if at any time the Partnership is not required to file
such reports, it will, upon the request of any Holder of Transfer Restricted
Notes, make publicly available other information so long as necessary to permit
sales of the Notes pursuant to Rules 144 and 144A. The Partnership covenants
that it will take such further action as any Holder of Transfer Restricted Notes
may reasonably request, all to the extent required from time to time to enable
such Holder to sell Transfer Restricted Notes without registration under the
Securities Act within the limitation of the exemptions provided by Rules 144 and
144A (including the requirements of Rule 144A(d)(4)). The Partnership will
provide a copy of this Agreement to prospective purchasers of Transfer
Restricted Notes identified to the Partnership by the Initial Purchasers upon
request. Upon the request of any Holder of Transfer Restricted Notes, the
Partnership shall deliver to such Holder a written statement as to whether it
has complied with such requirements. Notwithstanding the foregoing, nothing in
this Section 7 shall be deemed to require the Partnership to register any of its
securities pursuant to the Exchange Act.
8. Indemnification and Contribution.
--------------------------------
(a) (i) In connection with any Registration Statement, the Issuers
agree to indemnify and hold harmless each Holder of Transfer Restricted
Notes covered thereby, the directors, officers, employees and agents of
each such Holder and each person who controls any such Holder within the
meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of
them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof, in any preliminary Prospectus
or Prospectus or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not
15
misleading, and agree to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Issuers will not be liable
-------- -------
in any case to the extent that any such loss, claim, damage or liability
arises out of or is based upon (A) any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance
upon and in conformity with written information relating to the Holder
furnished to the Issuers by or on behalf of any such Holder specifically
for inclusion therein, (B) use of a Registration Statement or the related
Prospectus during a period when a stop order has been issued in respect of
such Registration Statement or any proceedings for that purpose have been
initiated or use of a Prospectus when use of such Prospectus has been
suspended pursuant to Section 5(c); provided, further, in each case, that
-------- -------
Holders received prior notice of such stop order, initiation of proceedings
or suspension or (C) if the Holder is required to but does not deliver a
Prospectus or the then current Prospectus. This indemnity agreement will be
in addition to any liability which the Issuers may otherwise have.
(ii) The Issuers also agree to indemnify or contribute to Losses, as
provided in Section 8(d), of any Managing Underwriters of Transfer
Restricted Notes registered under a Registration Statement, their officers
and directors and each person who controls such Managing Underwriters on
substantially the same basis as that of the indemnification of the selling
Holders provided in this Section 8(a) and shall, if requested by any
Holder, enter into an underwriting agreement reflecting such agreement, as
provided in Section 5(q) hereof.
(b) Each Holder of Transfer Restricted Notes covered by a
Registration Statement severally agrees to indemnify and hold harmless the
Issuers, their directors, officers, employees and agents and each person who
controls either of the Issuers within the meaning of either the Act or the
Exchange Act to the same extent as the foregoing indemnity from the Issuers to
each such Holder, but only with reference to written information relating to
such Holder furnished to the Issuers by or on behalf of such Holder specifically
for inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any such Holder
may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
-------- -------
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election
16
to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel (and local counsel) if (i) the use of
counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall have authorized the indemnified
party to employ separate counsel at the expense of the indemnifying party;
provided further, that the indemnifying party shall not be responsible for the
-------- -------
fees and expenses of more than one separate counsel (together with appropriate
local counsel) representing all the indemnified parties under paragraph (a) or
paragraph (b) above. An indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the Registration Statement which
resulted in such Losses; provided, however, that in no case shall any
-------- -------
Underwriter be responsible for any amount in excess of the underwriting discount
or commission applicable to the Transfer Restricted Notes purchased by such
Underwriter under the Registration Statement which resulted in such Losses. If
the allocation provided by the immediately preceding sentence is unavailable for
any reason, the indemnifying party and the indemnified party shall contribute in
such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Issuers shall be deemed to be equal to
the sum of (x) the aggregate principal amount of the Notes and (y) the total
Damage Amount which the Issuers were not required to pay as a result of
registering the Transfer Restricted Notes covered by the Registration Statement
which resulted in such Losses. Benefits received by any Holder shall be deemed
to be equal to the value of receiving Transfer Restricted Notes registered under
the Act. Benefits received by any Underwriter shall be deemed to be equal to
the total underwriting discounts and commissions, as set forth on the cover page
of the Prospectus forming a part of the Registration Statement which resulted in
such Losses. Relative fault shall be determined by reference to, among other
things, whether any alleged untrue
17
statement or omission relates to information provided by the indemnifying party,
on the one hand, or by the indemnified party, on the other hand. The parties
agree that it would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls a
Holder within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of such Holder shall have the same rights
to contribution as such Holder, and each person who controls the Issuers within
the meaning of either the Act or the Exchange Act and each director, officer ,
employee and agent of the Issuers shall have the same rights to contribution as
the Issuers, subject in each case to the applicable terms and conditions of this
paragraph (d).
(e) The provisions of this Section 8 will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder, the
Issuers or any of the officers, directors or controlling persons referred to in
Section 8 hereof, and will survive the sale by a Holder of Transfer Restricted
Notes covered by a Registration Statement.
9. Miscellaneous.
-------------
(a) No Inconsistent Agreements. The Issuers have not, as of the date
--------------------------
hereof, entered into nor shall they, on or after the date hereof, enter into any
agreement that is inconsistent with the rights granted to the Holders herein or
otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Issuers have obtained the written
consent of the Majority Holders. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose Transfer Restricted Notes are
being sold pursuant to a Shelf Registration Statement or whose Notes are being
exchanged pursuant to an Exchange Offer Registration Statement, as the case may
be, and which does not directly or indirectly affect the rights of other Holders
may be given by such Holders, determined on the basis of Notes being sold rather
than registered. Notwithstanding any of the foregoing, no amendment,
modification, supplement, waiver or consents to any departure from the
provisions of Section 8 hereof shall be effective as against any Holder of
Transfer Restricted Notes unless consented to in writing by such Xxxxxx.
(c) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
18
(i) if to the Initial Purchasers, as follows:
First Union Capital Markets Corp.
CIBC World Markets Corp.
c/o First Union Capital Markets Corp.
000 Xxxxx Xxxxxxx Xxxxxx, XX-0
Xxxxxxxxx, XX 00000-0604
Attention: Corporate Finance Department
(ii) if to any other Holder, at the most current address given by
such Holder to the Issuers in accordance with the provisions of this
Section 9(c), which address initially is, with respect to each Holder, the
address of such Holder maintained by the registrar under the Indenture,
with a copy in like manner to the Initial Purchasers; and
(iii) if to the Issuers, as follows:
Petro Stopping Centers Holdings, L.P.
0000 Xxxxxx Xxxxx
Xx Xxxx, Xxxxx 00000
Attention: General Counsel
(iv) if to Chartwell, as follows:
Petro Holdings LP Corp.
c/o Chartwell Investments Inc.
000 Xxxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
All such notices and communications shall be deemed to have been duly
given when received, if delivered by hand or air courier, and when sent, if sent
by first-class mail, telex or telecopier.
The Issuers by notice to the others may designate additional or
different addresses for subsequent notices or communications.
(d) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors and assigns of each of the parties,
including, without the need for an express assignment or any consent by the
Issuers thereto, subsequent Holders. The Issuers hereby agree to extend the
benefits of this Agreement to any Holder and any such Holder may specifically
enforce the provisions of this Agreement as if an original party hereto.
(e) Counterparts. This agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
19
(g) Governing Law. This agreement shall be governed by and construed
-------------
in accordance with the laws of the State of New York applicable to agreements
made and to be performed in said State, without regard to the conflicts of law
rules thereof.
(h) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
(i) Notes Held by the Issuers, etc. Whenever the consent or approval
-------------------------------
of Holders of a specified percentage of principal amount of Transfer Restricted
Notes or Exchange Notes is required hereunder, Transfer Restricted Notes or
Exchange Notes held by either of the Issuers or their respective Affiliates
(other than subsequent Holders of Transfer Restricted Notes or Exchange Notes if
such subsequent Holders are deemed to be Affiliates solely by reason of their
holdings of such notes) shall not be counted in determining whether such consent
or approval was given by the Holders of such required percentage.
20
Please confirm that the foregoing correctly sets forth the agreement
among the Issuers, the Initial Purchasers and Chartwell.
Very truly yours,
PETRO STOPPING CENTERS HOLDINGS, L.P.
By___________________________________________
Name:
Title:
PETRO HOLDINGS FINANCIAL CORPORATION
By___________________________________________
Name:
Title:
The foregoing Agreement is hereby
accepted as of the date first written above
FIRST UNION CAPITAL MARKETS CORP.
CIBC WORLD MARKETS CORP.
BY FIRST UNION CAPITAL MARKETS CORP.
By______________________________________
Name:
Title:
PETRO HOLDINGS LP CORP.
By______________________________________
Name:
Title:
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account in the
Registered Exchange Offer must acknowledge that it will deliver a prospectus
when it resells them. By doing so, a broker-dealer will not be deemed to admit
that it is an "underwriter" under the Act. We have agreed that we will make
this Prospectus available to broker-dealers for resales of Exchange Notes. See
"Plan of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in exchange
for Notes, where such Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities, must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange Notes.
See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account in
the Registered Exchange Offer must acknowledge that it will deliver a prospectus
when it resells them. This Prospectus may be used by a broker-dealer in
connection with resales of Exchange Notes received in exchange for Notes where
the Notes were acquired as a result of market-making activities or other trading
activities. The Issuers have agreed that, starting on the Expiration Date and
ending on the close of business one year after the Expiration Date, it will make
this Prospectus, as amended or supplemented, available to any broker-dealer for
use in any such resale. In addition, until ____________, all dealers effecting
transactions in the Exchange Notes may be required to deliver a prospectus.
The Issuers will not receive any proceeds from any sale of Exchange
Notes by broker-dealers. Exchange Notes received by broker-dealers for their
own account in the Registered Exchange Offer may be sold from time to time in
one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Notes or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to prevailing market prices or negotiated prices.
Any resale may be made directly to purchasers or to or through brokers or
dealers who may receive compensation in the form of commissions or concessions
from the broker-dealer and/or the purchasers of any such Exchange Notes. Any
broker-dealer that resells Exchange Notes received by it for its own account in
the Registered Exchange Offer, and any broker or dealer that participates in a
distribution of such Exchange Notes, may be deemed to be an "underwriter" under
the Act and any profit from any such resale of Exchange Notes and any
commissions or concessions received by any such persons may be deemed to be
underwriting compensation under the Act. The Letter of Transmittal states that
by acknowledging that it will deliver, and by delivering a prospectus, a broker-
dealer will not be deemed to admit that it is an "underwriter" under the Act.
For a period of one year after the Expiration Date, the Issuers will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that so requests in the
Letter of Transmittal. The Issuers have agreed to pay all expenses incident to
the Registered Exchange Offer (including the expenses of one counsel for the
holders of the Notes), other than dealers' and brokers' discounts, commissions
and counsel fees and will indemnify the holders of the Notes (including any
broker-dealers) against certain liabilities, including liabilities under the
Act.
[If applicable, add information required by Regulation S-K Items 507
and/or 508.]
ANNEX D
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
[_]
Name:____________________________________
Address:_________________________________
The undersigned represents that it is not an affiliate of either of
the Issuers, that any Exchange Notes to be received by it will be acquired in
the ordinary course of business and that at the time of the commencement of the
Registered Exchange Offer it had no arrangement with any person to participate
in a distribution of the Exchange Notes.
In addition, if the undersigned is not a broker-dealer, the
undersigned represents that it is not engaged in, and does not intend to engage
in, a distribution of Exchange Notes. If the undersigned is a broker-dealer
that will receive Exchange Notes for its own account in exchange for Notes, it
represents that the Notes to be exchanged for Exchange Notes were acquired by it
as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Notes; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Act.
ANNEX E
FORM OF LETTER TO BE PROVIDED BY THE ISSUERS TO
THE DEPOSITORY TRUST COMPANY
The Depository Trust Company
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Re: 15% Senior Discount Notes Due 2008 (the "Notes") of Petro
Stopping Centers Holdings, L.P. and Petro Holdings Financial
Corporation
Ladies and Gentlemen:
Please be advised that the Securities and Exchange Commission has
declared effective a Registration Statement on Form S-__ under the Securities
Act of 1933, as amended, with regard to all of the Notes referenced above.
Accordingly, there is no longer any restriction as to whom such Notes may be
sold and any restrictions on the CUSIP designation are no longer appropriate and
may be removed. I understand that upon receipt of this letter, DTC will remove
any stop or restriction on its system with respect to this issue.
As always, please do not hesitate to call if we can be of further
assistance.
Very truly yours,
Authorized Officer
