UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 OR 15(d) of The Securities Exchange Act of
1934
Date
of Report (Date of earliest event reported): June 19, 2007
DCP
MIDSTREAM PARTNERS, LP
(Exact
name of registrant as specified in its charter)
|
DELAWARE
|
001-32678
|
03-0567133
|
|
(State
or other jurisdiction of
|
(Commission
File Number)
|
(IRS
Employer
|
|
incorporation)
|
Identification
No.)
|
370
17th Street, Suite 2775
Denver,
Colorado 80202
(Address
of principal executive offices) (Zip Code)
Registrant’s
telephone number, including area code (303)
633-2900
(Former
name or former address, if changed since last report.)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
£ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
£ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
£ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
£ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
1.01 Entry into a Material Agreement.
Unit
Purchase Agreement
On
June
19, 2007, the Partnership entered into a Common Unit Purchase Agreement (the
“Purchase Agreement”) with certain institutional investors (the “Purchasers”) to
sell 3,005,780 common units representing limited partner interests of the
Partnership (“Common Units”) in a private placement (the “Private Placement”).
The negotiated purchase price for the Common Units in the Purchase Agreement
was
$43.25 per unit, or approximately $130.0 million in the aggregate. The private
placement of Common Units pursuant to the Purchase Agreement was made in
reliance upon an exemption from the registration requirements of the Securities
Act of 1933 pursuant to Section 4(2) thereof as well as Regulation D thereunder.
The Partnership intends to use the net proceeds from the private placement
to
pay down debt associated with the Partnership’s acquisition from Anadarko
Petroleum Corporation of natural gas gathering and compression assets located
in
southern Oklahoma that closed May 9, 2007 and for other general Partnership
purposes. The Private Placement closed on June 22, 2007.
Pursuant
to the Purchase Agreement, the Partnership agreed to indemnify the Purchasers,
and their respective officers, directors and other representatives against
certain losses resulting from any breach of the Partnership’s representations,
warranties or covenants contained therein.
The
foregoing description of the Purchase Agreement is not complete and is qualified
in its entirety by reference to the full and complete terms of the Purchase
Agreement, which is attached to this Current Report on Form 8-K as
Exhibit 10.1.
Registration
Rights Agreement
In
connection with the Purchase Agreement, the Partnership entered into a
Registration Rights Agreement dated June 22, 2007 (the “Registration Rights
Agreement”) with the Purchasers. The Registration Rights Agreement requires the
Partnership to file a shelf registration statement with the Securities and
Exchange Commission (“SEC”) to register the units the earlier of within 120 days
of the close of the Private Placement or when a shelf registration statement
is
filed to register the units to be issued and sold by the Partnership under
that
certain Common Unit Purchase Agreement dated as of May 21, 2007 in connection
with the previously announced drop down of certain assets from its affiliates,
DCP Midstream, LLC and Gas Supply Resources Holdings, Inc. of assets they are
acquiring from Momentum Energy Group Inc. In, addition the Registration Rights
Agreement requires the Partnership to use its commercially reasonable efforts
to
cause the registration statement to become effective within 210 days of the
closing of the Private Placement. If the registration statement covering the
Common Units is not declared effective by the SEC within 210 days of the closing
of the Private Placement, then the Partnership will be liable to the Purchasers
for liquidated damages of 0.25% of the product of the purchase price times
the
number of registrable securities held by the Purchasers per 30-day period for
the first 60 days following the 210th
day,
increasing by an additional 0.25% of the product of the purchase price times
the
number of registrable securities held by the Purchasers per 30-day period for
each subsequent 60 days, up to a maximum of 1.00% of the product of the purchase
price times the number of registrable securities held by the Purchasers per
30-day period. In addition, the Registration Rights Agreement gives the
Purchasers piggyback registration rights with other shelf registration
statements under certain circumstances.
The
foregoing description of the Registration Rights Agreement is not complete
and
is qualified in its entirety by reference to the full and complete terms of
the
Registration Rights Agreement, which is attached to this Current Report on
Form
8-K as Exhibit 10.2.
Item
3.02 Unregistered Sales of Equity Securities.
The
information set forth under Item 1.01 above is incorporated in its entirety
herein by reference.
Item
9.01 Financial Statements and Exhibits.
(d) Exhibits.
|
Exhibit
Number
|
Description
|
|
Exhibit
10.1
Exhibit
10.2
|
Common
Unit Purchase Agreement dated June 19, 2007
Registration
Rights Agreement dated June 22, 2007
|
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
| DCP MIDSTREAM PARTNERS, LP | ||
| |
|
|
| By: | DCP
MIDSTREAM GP, LP
its
General Partner
|
|
| By: | DCP MIDSTREAM GP, LLC
its
General Partner
|
|
| By: | /s/ Michael S. Richards | |
|
Name: Michael S. Richards |
||
|
Title:
Vice
President, General Counsel and Secretary
|
||
June
25,
2007
EXHIBIT
INDEX
|
Exhibit
Number
|
Description
|
|
Exhibit
10.1
Exhibit
10.2
|
Common
Unit Purchase Agreement dated June 19, 2007
Registration
Rights Agreement dated June 22, 2007
|
COMMON
UNIT
PURCHASE
AGREEMENT
BY
AND AMONG
DCP
MIDSTREAM PARTNERS, LP
AND
THE
PURCHASERS
Schedules
and Exhibits
Schedule
2.01 — List
of
Purchasers and Commitment Amounts
Schedule
8.07 — Notice
and Contact Information
Exhibit
A — Form
of
Registration Rights Agreement
Exhibit
B — Form
of
Partnership Officer’s Certificate
Exhibit
C — Form
of
Purchaser’s Officer’s Certificate
Exhibit
D — Form
of
Vinson & Elkins’ Legal Opinion
1
COMMON
UNIT PURCHASE AGREEMENT
COMMON
UNIT PURCHASE AGREEMENT, dated as of June 19, 2007 (this “Agreement”),
by
and among DCP Midstream Partners, LP, a Delaware limited partnership (the
“Partnership”),
and
each of the Purchasers listed in Schedule
2.01
attached
hereto (each referred to herein as a “Purchaser”
and
collectively, the “Purchasers”).
WHEREAS,
the Partnership desires to raise up to $130.0 million through the sale of Common
Units to repay debt incurred in connection with recently announced acquisitions
and the Purchasers desire to purchase an aggregate of $130.0 million of Common
Units from the Partnership, each in accordance with the provisions of this
Agreement; and
WHEREAS,
the Partnership has agreed to provide Purchasers with certain registration
rights with respect to the Purchased Units acquired pursuant to this
Agreement.
NOW
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein and for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the Partnership and each of the Purchasers,
severally and not jointly, hereby agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions.
As used
in this Agreement, and unless the context requires a different meaning, the
following terms have the meanings indicated:
“Action”
against
a Person means any lawsuit, action, proceeding, investigation or complaint
before any Governmental Authority, mediator or arbitrator.
“Affiliate”
means,
with respect to a specified Person, any other Person, whether now in existence
or hereafter created, directly or indirectly controlling, controlled by or
under
direct or indirect common control with such specified Person. For purposes
of
this definition, “control” (including, with correlative meanings, “controlling,”
“controlled by,” and “under common control with”) means the power to direct or
cause the direction of the management and policies of such Person, directly
or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise.
“Agreement”
shall
have the meaning specified in the introductory paragraph.
“Allocated
Purchase Amount”
means
with respect to each Purchaser, the dollar amount set forth opposite such
Purchaser’s name under the heading Allocated Purchase Amount on Schedule
2.01
hereto.
“Basic
Documents”
means,
collectively, this Agreement and the Registration Rights Agreement and any
and
all other agreements or instruments executed and delivered by the Parties on
even date herewith or at Closing relating to the issuance and sale of the
Purchased Units, or any amendments, supplements, continuations or modifications
thereto.
2
“Board
of Directors”
means
the board of directors of the GP LLC.
“Business
Day”
means
any day other than a Saturday, Sunday, or a legal holiday for commercial banks
in Denver, Colorado.
“Closing”
shall
have the meaning specified in Section 2.02.
“Closing
Date”
shall
have the meaning specified in Section 2.02.
“Commission”
means
the United States Securities and Exchange Commission.
“Common
Units”
means
the Common Units of the Partnership representing limited partner interests
therein.
“Company”
shall
have the meaning specified in the recitals to this Agreement.
“Credit
Facilities”
means
the Revolving Credit Agreement, dated December 7, 2005, between DCP
Midstream Operating, LP and Wachovia Bank, National Association, as
administrative agent for the lenders named therein, as amended by the First
Amendment thereto, dated May 9, 2007, and the Bridge Loan Credit Agreement
dated
May 9, 2007, among DCP Midstream Operating, LP, DCP Midstream Partners, LP,
Wachovia Bank, National Association and Lehman Brothers, Commercial
Bank.
“DCP
Contribution Agreement”
means
the Contribution Agreement dated May 23, 2007 between the Partnership, DCP
Midstream, LLC, DCP LP Holdings, LP and DCP Midstream GP, LP.
“Delaware
LLC Act”
means
the Delaware Limited Liability Company Act.
“Delaware
LP Act”
means
the Delaware Revised Uniform Limited Partnership Act.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended from time to time, and the
rules
and regulations of the Commission promulgated thereunder.
“GAAP”
means
generally accepted accounting principles in the United States of America in
effect from time to time.
“General
Partner”
means
DCP Midstream GP, LP, a Delaware limited partnership.
“Governmental
Authority”
shall
include the country, state, county, city and political subdivisions in which
any
Person or such Person’s Property is located or which exercises valid
jurisdiction over any such Person or such Person’s Property, and any court,
agency, department, commission, board, bureau or instrumentality of any of
them
and any monetary authorities that exercise valid jurisdiction over any such
Person or such Person’s Property. Unless otherwise specified, all references to
Governmental Authority herein shall mean a Governmental Authority having
jurisdiction over, where applicable, the Partnership, its Subsidiaries or any
of
their Property or any of the Purchasers.
“GP
LLC”
means
DCP Midstream GP, LLC, a Delaware limited liability company.
3
“GSRH
Contribution Agreement”
means
the Contribution Agreement dated May 21, 2007 between the Partnership and Gas
Supply Resource Holdings, Inc.
“Incentive
Distribution Rights”
has
the
meaning specified for such term in the Partnership Agreement.
“Indemnified
Party”
shall
have the meaning specified in Section 7.03.
“Indemnifying
Party”
shall
have the meaning specified in Section 7.03.
“Law”
means
any federal, state, local or foreign order, writ, injunction, judgment,
settlement, award, decree, statute, law, rule or regulation.
“Lien”
means
any interest in Property securing an obligation owed to, or a claim by, a Person
other than the owner of the Property, whether such interest is based on the
common law, statute or contract, and whether such obligation or claim is fixed
or contingent, and including but not limited to the lien or security interest
arising from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes.
“Lock-Up
Date”
means
90 days from the Closing Date.
“LTIP”
shall
have the meaning specified in Section
3.02(c).
“MEG
Purchase Agreement”
means
that certain Common Unit Purchase Agreement dated May 21, 2007 pursuant to
which
the Partnership will issues and sell 2,380,952 Common Units to the purchasers
party thereto.
“NYSE”
shall mean The New York Stock Exchange.
“Participating
Unit”
shall
have the meaning specified in Section
4.03.
“Partnership”
shall
have the meaning specified in the introductory paragraph.
“Partnership
Agreement”
means
the Second Amended and Restated Agreement of Limited Partnership of the
Partnership, dated as of November 1, 2006 as it may be further amended from
time
to time.
“Partnership
Material Adverse Effect”
means
any material and adverse effect on (i) the assets, liabilities, financial
condition, business, operations, affairs or prospects of the Partnership and
its
Subsidiaries, taken as a whole, (ii) the ability of the Partnership and its
Subsidiaries, taken as a whole, to carry out their business as of the date
of
this Agreement or to meet their obligations under the Basic Documents on a
timely basis, or (iii) the ability of the Partnership to consummate the issuance
and sale of the Purchased Units. Notwithstanding the foregoing, a “Partnership
Material Adverse Effect” shall not include any effect resulting or arising from:
(a) any change in general economic conditions in the industries or markets
in
which the Partnership or its Subsidiaries operate that do not have a
disproportionate impact on the Partnership and its Subsidiaries, taken as a
whole; (b) any engagement in hostilities pursuant to a declaration of war,
or
the occurrence of any military or terrorist attack; (c) changes in GAAP or
other
accounting principles or (d) the consummation of the transactions contemplated
hereby.
4
“Partnership
Related Parties”
shall
have the meaning specified in Section 7.02.
“Party”
or
“Parties”
means
the Partnership and the Purchasers party to this Agreement, individually or
collectively, as the case may be.
“Person”
means
any individual, corporation, company, voluntary association, partnership, joint
venture, trust, limited liability company, unincorporated organization or
government or any agency, instrumentality or political subdivision thereof,
or
any other form of entity.
“Property”
means
any interest in any kind of property or asset, whether real, personal or mixed,
or tangible or intangible.
“Purchase
Agreement”
shall
have the meaning specified in the recitals to this Agreement.
“Purchased
Units”
means
the Common Units to be issued and sold to the Purchasers pursuant to this
Agreement.
“Purchaser”
and
“Purchasers”
shall
have the meaning specified in the introductory paragraph.
“Purchaser
Material Adverse Effect”
means
any material and adverse effect on (i) the ability of a Purchaser to meet its
obligations under the Purchase Agreement on a timely basis or (ii) the
ability of a Purchaser to consummate the transactions under the Purchase
Agreement.
“Purchaser
Related Parties”
shall
have the meaning specified in Section 7.01.
“Purchasers”
shall
have the meaning specified in the introductory paragraph.
“Registration
Rights Agreement”
means
the Registration Rights Agreement, substantially in the form attached to this
Agreement as Exhibit
A,
to be
entered into at the Closing, among the Partnership and the
Purchasers.
“Representatives”
of
any
Person means the Affiliates, control persons, officers, directors, employees,
agents, counsel, investment bankers and other representatives of such
Person.
“SEC
Documents”
shall
have the meaning specified in Section 3.03
“Securities
Act”
means
the Securities Act of 1933, as amended from time to time, and the rules and
regulations of the Commission promulgated thereunder.
“Seller
Parties”
shall
have the meaning specified in the recitals to this Agreement.
“Sellers”
shall
have the meaning specified in the recitals to this Agreement.
“Subordinated
Units”
has
the
meaning specified for such term in the Partnership Agreement.
5
“Subsidiary”
means,
as to any Person, any corporation or other entity of which at least a majority
of the outstanding equity interest having by the terms thereof ordinary voting
power to elect a majority of the board of directors of such corporation or
other
entity is at the time directly or indirectly owned or controlled by such Person
or one or more of its Subsidiaries.
“Unitholders”
means
the Unitholders of the Partnership (within the meaning of the Partnership
Agreement).
Section
1.02 Accounting
Procedures and Interpretation.
Unless
otherwise specified in this Agreement, all accounting terms used herein shall
be
interpreted, all determinations with respect to accounting matters under this
Agreement shall be made, and all financial statements and certificates and
reports as to financial matters required to be furnished to the Purchasers
under
this Agreement shall be prepared, in accordance with GAAP applied on a
consistent basis during the periods involved (except, in the case of unaudited
statements, as permitted by Form 10-Q promulgated by the Commission) and in
compliance as to form in all material respects with applicable accounting
requirements and with the published rules and regulations of the Commission
with
respect thereto.
ARTICLE
II
SALE
AND PURCHASE
Section
2.01 Sale
and Purchase.
(a) Sale
and Purchase.
Subject
to the terms and conditions of this Agreement, at the Closing, the Partnership
hereby agrees to issue and sell to each Purchaser, and each Purchaser hereby
agrees, severally and not jointly, to purchase from the Partnership, the number
of Purchased Units determined pursuant to paragraph (b) below of this
Section
2.01,
and
each Purchaser agrees to pay the Partnership the Purchase Price for each
Purchased Unit, in each case, as set forth in paragraph (c) below of this
Section
2.01.
The
obligation of each Purchaser under this Agreement is independent of the
obligation of each other Purchaser, and the failure or waiver of performance
with respect to any Purchaser does not excuse performance by any other
Purchaser.
(b) Common
Units.
The
number of Purchased Units to be issued and sold to each Purchaser shall be
equal
to the quotient determined by dividing (i) the Allocated Purchase Amount for
such Purchaser by (ii) the Purchase Price (as defined in Section
2.01(c)
below),
which quotient shall be rounded, if necessary, up or down to the nearest whole
number.
(c) Consideration.
The
amount per Common Unit each Purchaser will pay to the Partnership to purchase
the Purchased Units (the “Purchase
Price”)
shall
be $43.25.
Section
2.02 Closing.
The
execution and delivery of the Basic Documents (other than this Agreement),
the
delivery of certificates representing the Purchased Units and the execution
and
delivery of all other instruments, agreements, and other documents required
by
this Agreement (the “Closing”)
shall
take place three Business Days after the date hereof, subject to satisfaction
or
waiver of all of the conditions to each of the respective Parties’ obligations
to consummate the purchase and sale of the Purchased Units hereunder (such
date,
the “Closing
Date”).
The
Closing shall take place at the offices of Vinson & Elkins L.L.P., 1001
Fannin St., Suite 2500, Houston, Texas 77002.
6
Section
2.03 Independent
Nature of Purchasers’ Obligations and Rights. The respective obligations of
each Purchaser under the Basic Documents are several and not joint with the
obligations of any other Purchaser, and no Purchaser shall be responsible in
any
way for the performance of the obligations of any other Purchaser under any
Basic Document. The failure or waiver of performance under any Basic Documents
by any Purchaser, or on its behalf, does not excuse performance by any other
Purchaser. Nothing contained in any Basic Document, and no action taken by
any
Purchaser pursuant thereto, shall be deemed to constitute the Purchasers as
a
partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Purchasers are in any way acting in concert or
as
a group for purposes of Section 13(d) of the Exchange Act with respect to such
obligations or the transactions contemplated by the Basic Documents. Each
Purchaser shall be entitled to independently protect and enforce its rights,
including the rights arising out of the Basic Documents, and it shall not be
necessary for any other Purchaser to be joined as an additional party in any
proceeding for such purpose.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE
PARTNERSHIP
The
Partnership represents and warrants to the Purchasers as follows:
Section
3.01 Existence
of
Partnership and its Subsidiaries.
(a) The
Partnership: (i) is a limited partnership duly organized, validly existing
and in good standing under the Laws of the State of Delaware; (ii) has the
requisite limited partnership power and authority, and has all governmental
licenses, authorizations, consents and approvals, necessary to own, lease,
use
and operate its Properties and carry on its business as its business is now
being conducted as described in the SEC Documents, except where the failure
to
obtain such licenses, authorizations, consents and approvals would not
reasonably be expected to have a Partnership Material Adverse Effect; and
(iii) is qualified to do business in all jurisdictions in which the nature
of the business conducted by it makes such qualifications necessary, except
where failure so to qualify would not reasonably be expected to have a
Partnership Material Adverse Effect. The Partnership is not in
material violation of its certificate of limited partnership or the Partnership
Agreement.
(b) Each
of
the Partnership’s Subsidiaries has been duly formed and is validly existing and
in good standing under the laws of the State or other jurisdiction of its
organization and has the requisite power and authority, and has all governmental
licenses, authorizations, consents and approvals necessary, to own, lease,
use
or operate its respective Properties and carry on its business as now being
conducted, except where the failure to obtain such licenses, authorizations,
consents and approvals would not be reasonably likely to have a Partnership
Material Adverse Effect. Each of the Partnership’s Subsidiaries is duly
qualified or licensed and in good standing as a foreign limited partnership
or
limited liability company, as applicable, and is authorized to do business
in
each jurisdiction in which the ownership or leasing of its respective Properties
or the character of its respective operations makes such qualification
necessary, except where the failure to obtain such qualification, license,
authorization or good standing would not be reasonably likely to have a
Partnership Material Adverse Effect. None of such Subsidiaries is
in material violation of its certificate or agreement of limited partnership,
certificate of formation or limited liability company agreement or other
organizational documents.
7
Section
3.02 Purchased
Units, Capitalization and Valid Issuance.
(a) A
true
and correct copy of the Partnership Agreement, as amended through the date
hereof, has been filed by the Partnership with the Commission as Exhibit 3.1
to
the Partnership’s Current Report on Form 8-K (File No. 001-32678) filed on
November 7, 2006. The Purchased Units shall have those rights, preferences,
privileges and restrictions governing the Common Units as reflected in the
Partnership Agreement.
(b) As
of the
date of this Agreement and prior to the sale of the Purchased Units contemplated
by this Agreement, the issued and outstanding limited partner interests of
the
Partnership consist of 10,357,143 Common Units, 200,312 Class C
Units, 7,142,857 Subordinated Units and the Incentive Distribution Rights
and the only issued and outstanding general partner interests are the
361,231 general partner units, representing the General Partner’s 2%
general partner interest. Pursuant to the MEG Purchase Agreement, the
Partnership is obligated to issue 2,380,952 Common Units to the purchasers
party
thereto. All of the outstanding Common Units, Class C Units, Subordinated Units
and Incentive Distribution Rights have been duly authorized and validly issued
in accordance with applicable Law and the Partnership Agreement and are fully
paid (to the extent required under applicable Law and the Partnership Agreement)
and nonassessable (except as such nonassessability may be affected by Sections
17-303, 17-607 and 17-804 of the Delaware LP Act). The general partner interests
have been duly authorized and validly issued in accordance with the Partnership
Agreement.
(c) Other
than the General Partner’s Long-Term Incentive Plan (the “LTIP”),
the
Partnership has no equity compensation plans that contemplate the issuance
of
Common Units (or securities convertible into or exchangeable for Common Units).
No indebtedness having the right to vote (or convertible into or exchangeable
for securities having the right to vote) on any matters on which the Unitholders
may vote is issued or outstanding. There are no outstanding or authorized (i)
options, warrants, preemptive rights, subscriptions, calls, convertible or
exchangeable securities or other rights, agreements, claims or commitments
of
any character obligating the Partnership or any of its Subsidiaries to issue,
transfer or sell any limited partner interests or other equity interests in,
the
Partnership or any of its Subsidiaries or securities convertible into or
exchangeable for such limited partner interests or other equity interests,
except as have been granted pursuant to the LTIP, as contemplated by the MEG
Purchase Agreement, as contemplated by the DCP Contribution Agreement, as
contemplated by the GSRH Contribution Agreement, as contemplated by this
Agreement, or as are contained in or contemplated by the Partnership Agreement,
(ii) obligations of the Partnership or any of its Subsidiaries to repurchase,
redeem or otherwise acquire any limited partner interests or other equity
interests of the Partnership or any of its Subsidiaries or any such securities
or agreements listed in clause (i) of this sentence or (iii) voting trusts
or
similar agreements to which the Partnership or any of its Subsidiaries is a
party with respect to the voting of the equity interests of the Partnership
or
any of its Subsidiaries.
8
(d) (i)
All
of the issued and outstanding equity interests of each of the Partnership’s
Subsidiaries are owned, directly or indirectly, by the Partnership free and
clear of any Liens (except for such restrictions as may exist under applicable
Law and except for such Liens as may be imposed pursuant to the Credit
Facilities and any other credit agreements entered into after the date hereof
in
the ordinary course of business, to which the Partnership or any of the
Subsidiaries are party), and all such ownership interests have been duly
authorized, validly issued and are fully paid (to the extent required by
applicable Law and the organizational documents of such Subsidiaries) and
non-assessable (except as nonassessability may be affected by Sections 17-303,
17-607 and 17-804 of the Delaware LP Act and Sections 18-607 and 18-804 of
the
Delaware LLC Act, as applicable, or the organizational documents of such
Subsidiaries) and (ii) except as disclosed in the Partnership’s SEC Documents,
neither the Partnership nor any of its Subsidiaries owns any shares of capital
stock or other securities of, or interest in, any other Person, or is obligated
to make any capital contribution to or other investment in any other Person
other than such Subsidiaries.
(e) The
offer
and sale of the Purchased Units and the limited partner interests represented
thereby have been duly authorized by the Partnership pursuant to the Partnership
Agreement and, when issued and delivered to the Purchasers against payment
therefor in accordance with the terms of this Agreement, will be validly issued,
fully paid (to the extent required by applicable Law and the Partnership
Agreement) and nonassessable (except as such nonassessability may be affected
by
Sections 17-303, 17-607 and 17-804 of the Delaware LP Act) and will be free
of
any and all Liens and restrictions on transfer, other than restrictions on
transfer under the Partnership Agreement and under applicable state and federal
securities Laws and other than such Liens as are created by the Purchasers.
(f) The
Partnership’s currently outstanding Common Units are quoted on the NYSE, and the
Partnership has not received any notice of delisting.
(g) Except
(i) as set forth in the Partnership Agreement, (ii) as provided in the Basic
Documents or (iii) for existing awards under the LTIP, there are no preemptive
rights or other rights to subscribe for or to purchase, nor any restriction
upon
the voting or transfer of, any partnership or membership interests of the
Partnership or any of its Subsidiaries, in each case, pursuant to any agreement
or instrument to which any of such entities is a party or by which any one
of
them may be bound. None of the execution of this Agreement, the offering or
sale
of the Purchased Units or the registration of the Purchased Units pursuant
to
the Registration Rights Agreement gives rise to any rights for or relating
to
the registration of any Common Units or other securities of the Partnership
other than pursuant to the Registration Rights Agreement and those rights
granted to the General Partner or any of its Affiliates (as such term is defined
in the Partnership Agreement) under Section 7.12 of the Partnership
Agreement.
9
Section
3.03 SEC
Documents.
The
Partnership has filed with the Commission all reports, schedules and statements
required to be filed by it under the Exchange Act since December 31, 2006
(all such documents filed on or prior to the date of this Agreement,
collectively, the “SEC
Documents”).
The
SEC Documents, including any audited or unaudited financial statements and
any
notes thereto or schedules included therein, at the time filed, (except to
the
extent corrected by a subsequently filed SEC Document filed prior to the date
of
this Agreement) (i) complied as to form in all material respects with
applicable requirements of the Exchange Act and the applicable accounting
requirements and with the published rules and regulations of the Commission
with
respect thereto, (ii) were prepared in accordance with GAAP applied on a
consistent basis during the periods involved (except as may be indicated in
the
notes thereto or, in the case of unaudited statements, as permitted by
Form 10-Q of the Commission) and (iii) fairly present (subject in the case
of unaudited statements to normal, recurring and year-end audit adjustments)
in
all material respects the consolidated financial position of the Partnership
as
of the dates thereof and the consolidated results of its operations and cash
flows for the periods then ended. Deloitte & Touche LLP is an independent
registered public accounting firm with respect to the Partnership and has not
resigned or been dismissed.
Section
3.04 No
Material Adverse Change.
Except
as set forth in or contemplated by the SEC Documents, since December 31, 2006,
the Partnership and its Subsidiaries have conducted their business in the
ordinary course, consistent with past practice, and there has been no (i) change
that has had or would reasonably be expected to have a Partnership Material
Adverse Effect, (ii) acquisition or disposition of any material asset by the
Partnership or any of its Subsidiaries or any contract or arrangement therefor,
otherwise than for fair value in the ordinary course of business, (iii) material
change in the Partnership’s accounting principles, practices or methods or (iv)
incurrence of material indebtedness.
Section
3.05 No
Conflicts.
The
execution, delivery and performance by the Partnership of the Basic Documents
to
which it is a party and all other agreements and instruments to be executed
and
delivered by the Partnership pursuant thereto or in connection therewith, and
compliance by the Partnership with the terms and provisions thereof, do not
and
will not (a) violate any provision of any Law, governmental permit,
determination or award having applicability to the Partnership or any of its
Subsidiaries or any of their respective Properties, (b) conflict with or
result in a violation of any provision of the organizational documents of the
Partnership or any of its Subsidiaries, (c) require any consent, approval
or notice under or result in a violation or breach of or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation or acceleration) under any note, bond,
mortgage, license, loan or credit agreement or other instrument, obligation
or
agreement to which the Partnership or any of its Subsidiaries is a party or
by
which the Partnership or any of its Subsidiaries or any of their respective
Properties may be bound or (d) result in or require the creation or
imposition of any Lien upon or with respect to any of the Properties now owned
or hereafter acquired by the Partnership or any of its Subsidiaries, except
in
the cases of clauses
(a),
(c)
and
(d)
where
such violation, default, breach, termination, cancellation, failure to receive
consent or approval, or acceleration with respect to the foregoing provisions
of
this Section 3.05
would
not, individually or in the aggregate, reasonably be expected to have a
Partnership Material Adverse Effect.
10
Section
3.06 Authority.
The
Partnership has all necessary limited partnership power and authority to
execute, deliver and perform its obligations under the Basic Documents to which
it is a party and to consummate the transactions contemplated thereby; the
execution, delivery and performance by the Partnership of the Basic Documents
to
which it is a party, and the consummation of the transactions contemplated
thereby have been duly authorized by all necessary action on its part; and
the
Basic Documents will constitute the legal, valid and binding obligations of
Partnership, enforceable in accordance with their terms, except as such
enforceability may be limited by bankruptcy, insolvency, fraudulent transfer
and
similar Laws affecting creditors’ rights generally or by general principles of
equity, including principles of commercial reasonableness, fair dealing and
good
faith.
Section
3.07 Approvals.
Except
as required by the Commission in connection with the Partnership’s obligations
under the Registration Rights Agreement, no authorization, consent, approval,
waiver, license, qualification or written exemption from, nor any filing,
declaration, qualification or registration with, any Governmental Authority
or
any other Person is required in connection with the execution, delivery or
performance by the Partnership of any of the Basic Documents to which it is
a
party or the Partnership’s issuance and sale of the Purchased Units, except (i)
as may be required under the state securities or “Blue Sky” Laws, or (ii) where
the failure to receive such authorization, consent, approval, waiver, license,
qualification or written exemption or to make such filing, declaration,
qualification or registration would not, individually or in the aggregate,
reasonably be expected to have a Partnership Material Adverse Effect.
Section
3.08 Insurance.
The
Partnership is insured by insurers of recognized financial responsibility
covering its properties, operations, personnel and businesses against such
losses and risks and in such amounts as are reasonably adequate to protect
the
Partnership in the business in which the Partnership is engaged. The Partnership
does not have any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business.
Section
3.09 MLP
Status.
The
Partnership has, for each taxable year beginning after December 31, 2005
during which the Partnership was in existence, met the gross income requirements
of Section 7704(c)(2) of the Internal Revenue Code of 1986, as
amended.
Section
3.10 Investment
Company Status.
The
Partnership is not now, and after the sale of the Purchased Units and the
application of the net proceeds from such sale will not be an “investment
company” or a company “controlled by” an “investment company” within the meaning
of the Investment Company Act of 1940, as amended.
11
Section
3.11 Offering.
Assuming the accuracy of the representations and warranties of the Purchasers
contained in this Agreement, the sale and issuance of the Purchased Units
pursuant to this Agreement is exempt from the registration requirements of
the
Securities Act, and neither the Partnership nor, to the Partnership’s knowledge,
any authorized Representative acting on its behalf has taken or will take any
action hereafter that would cause the loss of such exemption.
Section
3.12 No
Integrated Offering.
Neither
the Partnership nor any of its Affiliates, nor, to the Partnership’s knowledge,
any Person acting on its or their behalf has, directly or indirectly, made
any
offers or sales of any security of the Partnership or solicited any offers
to
buy any security, under circumstances that would adversely affect reliance
by
the Partnership on Section 4(2) of the Securities Act for the exemption from
the
registration requirements imposed under Section 5 of the Securities Act for
the
transactions contemplated hereby or that would require such registration under
the Securities Act.
Section
3.13 Certain
Fees.
Other
than fees payable to Lehman Brothers Inc. for its service as placement agent,
no
fees or commissions are or will be payable by the Partnership to brokers,
finders or investment bankers with respect to the sale of any of the Purchased
Units or the consummation of the transactions contemplated by this Agreement.
The Purchasers shall not be liable for any such fees or commissions.
Section
3.14 No
Side Agreements.
Except
for the confidentiality agreements described in Section
8.06
and the
Basic Documents, there are no other agreements by, among or between the
Partnership or its Affiliates, on the one hand, and any of the Purchasers or
their Affiliates, on the other hand, with respect to the transactions
contemplated hereby nor promises or inducements for future transactions between
or among any of such parties.
Section
3.15 Form
S-3 Eligibility. The Partnership is eligible to register the Purchased Units
for resale by the Purchasers on a registration statement on Form S-3 under
the
Securities Act.
Section
3.16 Compliance
with Laws. Neither the Partnership nor any of its Subsidiaries is in
violation of any Law applicable to the Partnership or its Subsidiaries, except
as would not, individually or in the aggregate, have a Partnership Material
Adverse Effect. The Partnership and its Subsidiaries possess all certificates,
authorizations and permits issued by the appropriate regulatory authorities
necessary to conduct their respective businesses, except where the failure
to
possess such certificates, authorizations or permits would not have,
individually or in the aggregate, a Partnership Material Adverse Effect, and
neither the Partnership nor any such Subsidiary has received any notice of
proceedings relating to the revocation or modification of any such certificate,
authorization or permit, except where such potential revocation or modification
would not have, individually or in the aggregate, a Partnership Material Adverse
Effect.
12
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF EACH PURCHASER
Each
Purchaser, severally and not jointly, represents and warrants to the Partnership
with respect to itself as follows:
Section
4.01 Valid
Existence.
Such
Purchaser (i) is duly organized, validly existing and in good standing
under the Laws of its respective jurisdiction of organization and (ii) has
the requisite power, and has all material governmental licenses, authorizations,
consents and approvals necessary to own its Properties and carry on its business
as its business is now being conducted, except where the failure to obtain
such
licenses, authorizations, consents and approvals would not reasonably be
expected to have a Purchaser Material Adverse Effect.
Section
4.02 No
Conflicts.
The
execution, delivery and performance by such Purchaser of the Basic Documents
and
all other agreements and instruments to be executed and delivered by such
Purchaser pursuant hereto or thereto or in connection herewith or therewith,
compliance by such Purchaser with the terms and provisions hereof and thereof,
and the purchase of the Purchased Units by such Purchaser do not and will not
(a) violate any provision of any Law, governmental permit, determination or
award having applicability to such Purchaser or any of its Properties,
(b) conflict with or result in a violation of any provision of the
organizational documents of such Purchaser, or (c) require any consent
(other than standard internal consents), approval or notice under or result
in a
violation or breach of or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, cancellation
or acceleration) under any note, bond, mortgage, license, loan or credit
agreement or other instrument or agreement to which such Purchaser is a party
or
by which such Purchaser or any of its Properties may be bound, except in the
case of clauses (a) and (c), where such violation, default, breach, termination,
cancellation, failure to receive consent or approval, or acceleration with
respect to the foregoing provisions of this Section 4.02
would
not, individually or in the aggregate, reasonably be expected to have a
Purchaser Material Adverse Effect.
Section
4.03 Investment.
The
Purchased Units are being acquired for such Purchaser’s own account, or the
accounts of clients for whom such Purchaser exercises discretionary investment
authority, not as a nominee or agent, and with no present intention of
distributing the Purchased Units or any part thereof, and such Purchaser has
no
present intention of selling or granting any participation in or otherwise
distributing the same in any transaction in violation of the securities Laws
of
the United States of America or any state. If such Purchaser should in the
future decide to dispose of any of the Purchased Units, such Purchaser
understands and agrees (a) that it may do so only (i) in compliance
with the Securities Act and applicable state securities law, as then in effect,
or (ii) in the manner contemplated by any registration statement pursuant
to which such securities are being offered, and (b) that stop-transfer
instructions to that effect will be in effect with respect to such securities.
Notwithstanding the foregoing, each Purchaser may at any time enter into one
or
more total return swaps with respect to such Purchaser’s Purchased Units with a
third party provided that such transactions are exempt from registration under
the Securities Act.
13
Section
4.04 Nature
of Purchaser.
Such
Purchaser represents and warrants to, and covenants and agrees with, the
Partnership that, (a) it is an “accredited investor” (within the meaning of
Rule 501(a) under the Securities Act), (b) it is a “qualified institutional
buyer” (within the meaning of Rule 144A under the Securities Act),
(c) by reason of its business and financial experience it has such
knowledge, sophistication and experience in business and financial matters
so as
to be capable of evaluating the merits and risks of the prospective investment
in the Purchased Units, is able to bear the economic risk of such investment
and, at the present time, would be able to afford a complete loss of such
investment and (d) it is acquiring the Purchased Units purchased by it only
for its own account and not for the account of others, for investment purposes
and not on behalf of any other account or Person or with a view to, or for
offer
or sale in connection with, any distribution thereof. Purchaser is not an entity
formed for the specific purpose of acquiring the Purchased Units.
Section
4.05 Receipt
of Information.
Such
Purchaser acknowledges that it (a) has access to the SEC Documents and (b)
has
been provided a reasonable opportunity to ask questions of and receive answers
from Representatives of the Partnership regarding such matters.
Section
4.06 Restricted
Securities.
Such
Purchaser understands that the Purchased Units it is purchasing are
characterized as “restricted securities” under the federal securities Laws
inasmuch as they are being acquired from the Partnership in a transaction not
involving a public offering and that under such Laws and applicable regulations
such securities may be resold without registration under the Securities Act
only
in certain limited circumstances. In this connection, such Purchaser represents
that it is knowledgeable with respect to Rule 144 of the Commission
promulgated under the Securities Act;.
Section
4.07 Certain
Fees.
Except
as previously disclosed to the Partnership, no fees or commissions will be
payable by such Purchaser to brokers, finders, or investment bankers with
respect to the sale of any of the Purchased Units or the consummation of the
transactions contemplated by this Agreement.
Section
4.08 Legend.
It is
understood that the certificates evidencing the Purchased Units will bear the
following legend:
“These
securities have not been registered under the Securities Act of 1933, as amended
(the “Securities Act”), or the securities laws of any state or other
jurisdiction. These securities may not be sold or offered for sale, pledged
or
hypothecated except pursuant to an effective registration statement under the
Securities Act or pursuant to an exemption from registration thereunder, in
each
case in accordance with all applicable securities laws of the states or other
jurisdictions, and in the case of a transaction exempt from registration, such
securities may only be transferred if the transfer agent for such securities
has
received documentation satisfactory to it that such transaction does not require
registration under the Securities Act.
14
Section
4.09 Reliance
on Exemptions. Purchaser understands that the Purchased Units are being
offered and sold to Purchaser in reliance upon specific exemptions from the
registration requirements of United States federal and state securities laws
and
that the Partnership is relying upon the truth and accuracy of, and Purchaser’s
compliance with, the representations, warranties, agreements, acknowledgments
and understandings of Purchaser set forth herein in order to determine the
availability of such exemptions and the eligibility of Purchaser to acquire
the
Purchased Units.
Section
4.10 Reliance
on Purchaser Statements. Purchaser acknowledges that the Partnership and
others will rely on the acknowledgments, understandings, agreements,
representations and warranties contained in this Agreement.
ARTICLE
V
COVENANTS
Section
5.01 Purchaser
Lock-Up.
Without
the prior written consent of the Partnership, each Purchaser agrees that from
and after the Closing until the Lock-Up Date, neither such Purchaser nor any
of
its Affiliates will offer, sell, pledge or otherwise transfer or dispose of
any
of its Purchased Units or enter into any transaction or device designed to
do
the same;
provided,
however,
that
each Purchaser may: (i) enter into one or more total return swaps or similar
transactions at any time with respect to the Purchased Units purchased by such
Purchaser; or (ii) transfer its Purchased Units to an Affiliate of such
Purchaser or to any other Purchaser or an Affiliate of such other Purchaser
provided that such Affiliate agrees to the restrictions in this Section 5.01.
Section
5.02 Subsequent
Offerings.
Without
the written consent of the holders of a majority of the Purchased Units, taken
as a whole, from and after the date of this Agreement until the Lock-Up Date,
the Partnership shall not grant, issue or sell any Common Units, or take any
other action that may result in the issuance of any of the foregoing, at a
price
less than [to
be
equal to 115% of the volume-weighted average price of
the Partnership’s Common Units for the 10 trading days ending one day prior to
the date hereof];
provided,
however,
that no
such consent shall be required in respect of (i) the issuance of awards pursuant
to the LTIP, the issuance of Common Units upon the exercise of options to
purchase Common Units granted pursuant to the LTIP or the issuance of Common
Units upon the vesting of “phantom units” granted pursuant to the LTIP, (ii)
the
issuance of 620,404 Common Units to the General Partner or its Affiliates to
partially finance recently announced Partnership acquisitions from an Affiliate
of the General Partner, (iii) the issuance or sale of up to $150,000,000 of
Common Units to finance recently announced Partnership acquisitions, (iv) the
issuance and sale of Common Units pursuant to the MEG Purchase
Agreement
or (v)
the issuance of Partnership Securities to the General Partner in order for
the
General Partner to maintain its 2% general partner interest in the
Partnership.
15
Section
5.03 Taking
of Necessary Action.
Each of
the Parties hereto shall use its commercially reasonable efforts promptly to
take or cause to be taken all action and promptly to do or cause to be done
all
things necessary, proper or advisable under applicable Law and regulations
to
consummate and make effective the transactions contemplated by this Agreement.
Without
limiting the foregoing, the Partnership and each Purchaser shall use its
commercially reasonable efforts to make all filings and obtain all consents
of
Governmental Authorities that may be necessary or, in the reasonable opinion
of
the Purchasers or the Partnership, as the case may be, advisable for the
consummation of the transactions contemplated by the Basic
Documents.
Section
5.04 Disclosure;
Public Filings.
The
Partnership may, without prior written consent or notice, (i) file the Basic
Documents as exhibits to Exchange Act reports and (ii) disclose such information
with respect to any Purchaser as required by applicable Law or the rules or
regulations of the NYSE or other exchange on which securities of the Partnership
are listed or traded.
Section
5.05 Other
Actions. The Partnership shall, as soon as reasonably practicable after the
date hereof, and not later than immediately prior to the Closing, file a
supplemental listing application with the NYSE to list the Purchased
Units.
Section
5.06 Certain
Special Allocations of Book and Taxable Income.
To the
extent that the Purchase Price is less than the trading price of the Common
Units on the NYSE as of the Closing Date, the General Partner intends to
specially allocate items of book and taxable income to the Purchasers so that
their capital accounts in their Common Units are consistent, on a per-unit
basis, with the capital accounts of the other holders of Common Units (and
thus
to assure fungibility of all Common Units). Such special allocation will occur
upon the earlier to occur of any taxable period of the Partnership ending upon,
or after, (i) a book-up event or book-down event in accordance with Treasury
Regulation Section 1.704-1(b)(2)(iv)(f) or a sale of all or substantially all
of
the assets of the Partnership occurring after the date of the issuance of the
Purchased Units or (ii) a transfer by a Purchaser of Common Units to a Person
that is not an Affiliate of the holder. A Purchaser holding a Common Unit shall
be required to provide notice to the General Partner of the transfer of a Common
Unit to a Person that is not an Affiliate of the Purchaser no later than the
last Business Day of the calendar year during which such transfer occurred,
unless by virtue of the application of clause (i) above, the General Partner
has
determined that the Common Units transferred are consistent, on a per-unit
basis, with the capital accounts of the other holders of Common
Units.
ARTICLE
VI
CLOSING
CONDITIONS
Section
6.01 Conditions
to the Closing.
(a) Mutual
Conditions.
The
respective obligation of each Party to consummate the purchase and issuance
and
sale of the Purchased Units shall be subject to the satisfaction on or prior
to
the Closing Date of each of the following conditions (any or all of which may
be
waived by a particular Party on behalf of itself in writing, in whole or in
part, to the extent permitted by applicable Law):
16
(i) no
Law
shall have been enacted or promulgated, and no action shall have been taken,
by
any Governmental Authority of competent jurisdiction which temporarily,
preliminarily or permanently restrains, precludes, enjoins or otherwise
prohibits the consummation of the transactions contemplated by this Agreement
or
makes the transactions contemplated by this Agreement illegal;
(ii) there
shall not be pending any Action by any Governmental Authority seeking to
restrain, preclude, enjoin or prohibit the transactions contemplated by this
Agreement; and
(iii) the
Purchased Units shall have been approved for listing on the NYSE, subject to
notice of issuance.
(b) Each
Purchaser’s Conditions.
The
respective obligation of each Purchaser to consummate the purchase of its
Purchased Units shall be subject to the satisfaction on or prior to the Closing
Date of each of the following conditions (any or all of which may be waived
by a
particular Purchaser on behalf of itself in writing, in whole or in part, to
the
extent permitted by applicable Law):
(i) the
Partnership shall have performed and complied with the covenants and agreements
contained in this Agreement that are required to be performed and complied
with
by the Partnership on or prior to the Closing Date;
(ii) the
representations and warranties of the Partnership contained in this Agreement
that are qualified by materiality or Partnership Material Adverse Effect shall
be true and correct when made and as of the Closing Date and all other
representations and warranties shall be true and correct in all material
respects when made and as of the Closing Date, in each case as though made
at
and as of the Closing Date (except that representations made as of a specific
date shall be required to be true and correct as of such date
only);
(iii) no
notice
of delisting from the NYSE shall have been received by the Partnership with
respect to the Common Units; and
(iv) the
Partnership shall have delivered, or caused to be delivered, to the Purchasers
at the Closing, the Partnership’s closing deliveries described in Section
6.02.
(c) The
Partnership’s Conditions.
The
obligation of the Partnership to consummate the sale of the Purchased Units
to
each of the Purchasers shall be subject to the satisfaction on or prior to
the
Closing Date of each of the following conditions with respect to each Purchaser
individually and not the Purchasers jointly (any or all of which may be waived
by the Partnership in writing, in whole or in part, to the extent permitted
by
applicable Law):
(i) each
Purchaser shall have performed and complied with the covenants and agreements
contained in this Agreement that are required to be performed and complied
with
by that Purchaser on or prior to the Closing Date;
17
(ii) the
representations and warranties of each Purchaser contained in this Agreement
that are qualified by materiality or Purchaser Material Adverse Effect shall
be
true and correct when made and as of the Closing Date and all other
representations and warranties shall be true and correct in all material
respects when made and as of the Closing Date, in each case as though made
at
and as of the Closing Date (except that representations made as of a specific
date shall be required to be true and correct as of such date
only);
(iii) since
the
date of this Agreement, no Purchaser Material Adverse Effect shall have occurred
and be continuing; and
(iv) each
Purchaser shall have delivered, or caused to be delivered, to the Partnership
at
the Closing, such Purchaser’s closing deliveries described in Section
6.03.
Section
6.02 Partnership
Deliveries.
At
the
Closing, subject to the terms and conditions of this Agreement, the Partnership
will deliver, or cause to be delivered, to each Purchaser:
(a) The
Purchased Units by delivering certificates (bearing the legend set forth in
Section
4.08)
evidencing such Purchased Units at the Closing, all free and clear of any Liens,
encumbrances or interests of any other party other than restrictions on transfer
imposed by federal and state securities Laws and those imposed by such
Purchaser;
(b) Copies
of
(i) the Certificate of Limited Partnership of the Partnership, (ii) the
Certificate of Limited Partnership of the General Partner and (iii) the
Certificate of Formation of the GP LLC, each certified by the Secretary of
State
of the State of Delaware, dated as of a recent date;
(c) A
certificate of the Secretary of State of the State of Delaware, dated as of
a
recent date, that the Partnership is in good standing;
(d) An
Officer’s Certificate substantially in the form attached to this Agreement as
Exhibit B;
(e) An
opinion addressed to the Purchasers from outside legal counsel to the
Partnership dated the Closing Date, substantially similar in substance to the
form of opinions attached to this Agreement as Exhibit
D;
(f) The
Registration Rights Agreement in substantially the form attached to this
Agreement as Exhibit
A,
which
shall have been duly executed by the Partnership; and
(g) A
certificate of the Secretary or Assistant Secretary of the General Partner,
on
behalf of the Partnership, certifying as to (i) the Partnership Agreement,
as
amended, (ii) board resolutions authorizing the execution and delivery of the
Basic Documents and the consummation of the transactions contemplated thereby
and (iii) the incumbent officers authorized to execute the Basic Documents,
setting forth the name and title and bearing the signatures of such officers.
18
Section
6.03 Purchaser
Deliveries.
At
the
Closing, subject to the terms and conditions of this Agreement, each Purchaser
will deliver, or cause to be delivered:
(a) Payment
to the Partnership of such Purchaser’s Allocated Purchase Amount by wire
transfer(s) of immediately available funds to an account designated by
Partnership in writing at least two (2) Business Days prior to the
Closing;
(b) The
Registration Rights Agreement in substantially the form attached to this
Agreement as Exhibit
A,
which
shall have been duly executed by such Purchaser; and
(c) An
Officer’s Certificate substantially in the form attached to this Agreement as
Exhibit
C.
ARTICLE
VII
INDEMNIFICATION,
COSTS AND EXPENSES
Section
7.01 Indemnification
by the
Partnership. The
Partnership agrees to indemnify each Purchaser and its Representatives
(collectively, “Purchaser
Related Parties”)
from,
and hold each of them harmless against any and all actions, suits, proceedings
(including any investigations, litigation or inquiries), demands and causes of
action, and, in connection therewith, and promptly on demand, pay and reimburse
each of them costs, losses, liabilities, damages, or expenses of any kind or
nature whatsoever, including the reasonable fees and disbursements of counsel
and all other reasonable expenses incurred in connection with investigating,
defending or preparing to defend any such matter that may be incurred by them
or
asserted against or involve any of them as a result of, arising out of, or
in
any way related to the breach of any of the representations, warranties or
covenants of the Partnership contained herein, provided,
that
such claim for indemnification relating to a breach of a representation or
warranty is made prior to the expiration of such representation or warranty;
and
provided
further, that
no
Purchaser Related Party shall be entitled to recover special, consequential
(including lost profits) or punitive damages. Notwithstanding anything to the
contrary, consequential damages shall not be deemed to include diminution in
value of the Purchased Units, which shall be specifically indemnifiable under
this provision.
Section
7.02 Indemnification
by Purchasers.
Each
Purchaser agrees, severally and not jointly, to indemnify the Partnership and
its Representatives (collectively, “Partnership
Related Parties”)
from,
and hold each of them harmless against, any and all actions, suits, proceedings
(including any investigations, litigation, or inquiries), demands and causes
of
action and, in connection therewith, and promptly upon demand, pay and reimburse
each of them costs, losses, liabilities, damages, or expenses of any kind or
nature whatsoever, including, without limitation, the reasonable fees and
disbursements of counsel and all other reasonable expenses incurred in
connection with investigating, defending or preparing to defend any such matter
that may be incurred by them or asserted against or involve any of them as
a
result of, arising out of, or in any way related to the breach of any of the
representations, warranties or covenants of such Purchaser contained herein;
provided,
that
such claim for indemnification relating to a breach of a representation or
warranty is made prior to the expiration of such representation or warranty;
and
provided
further, that no
Partnership Related Party shall be entitled to recover special, consequential
(including lost profits) or punitive damages. Notwithstanding anything to the
contrary, consequential damages shall not be deemed to include diminution in
value of the Purchased Units, which shall be specifically indemnifiable under
this provision.
19
Section
7.03 Indemnification
Procedure.Promptly
after any Partnership Related Party or Purchaser Related Party (hereinafter,
the
“Indemnified
Party”)
has
received notice of any indemnifiable claim hereunder, or the commencement of
any
action or proceeding by a third party, which the Indemnified Party believes
in
good faith is an indemnifiable claim under this Agreement, the Indemnified
Party
shall give the indemnitor hereunder (the “Indemnifying
Party”)
written notice of such claim or the commencement of such action or proceeding,
but failure to so notify the Indemnifying Party will not relieve the
Indemnifying Party from any liability it may have to such Indemnified Party
hereunder except to the extent that the Indemnifying Party is materially
prejudiced by such failure. Such notice shall state the nature and the basis
of
such claim to the extent then known. The Indemnifying Party shall have the
right
to defend and settle, at its own expense and by its own counsel who shall be
reasonably acceptable to the Indemnified Party, any such matter as long as
the
Indemnifying Party pursues the same diligently and in good faith. If the
Indemnifying Party undertakes to defend or settle, it shall promptly notify
the
Indemnified Party of its intention to do so, and the Indemnified Party shall
cooperate with the Indemnifying Party and its counsel in all commercially
reasonable respects in the defense thereof and the settlement thereof. Such
cooperation shall include furnishing the Indemnifying Party with any books,
records and other information reasonably requested by the Indemnifying Party
and
in the Indemnified Party’s possession or control. Such cooperation of the
Indemnified Party shall be at the cost of the Indemnifying Party. After the
Indemnifying Party has notified the Indemnified Party of its intention to
undertake to defend or settle any such asserted liability, and for so long
as
the Indemnifying Party diligently pursues such defense, the Indemnifying Party
shall not be liable for any additional legal expenses incurred by the
Indemnified Party in connection with any defense or settlement of such asserted
liability; provided,
however,
that
the Indemnified Party shall be entitled (i) at its expense, to participate
in
the defense of such asserted liability and the negotiations of the settlement
thereof and (ii) if (A) the Indemnifying Party has failed to assume the defense
or employ counsel reasonably acceptable to the Indemnified Party or (B) if
the
defendants in any such action include both the Indemnified Party and the
Indemnifying Party and counsel to the Indemnified Party shall have concluded
that there may be reasonable defenses available to the Indemnified Party that
are different from or in addition to those available to the Indemnifying Party
or if the interests of the Indemnified Party reasonably may be deemed to
conflict with the interests of the Indemnifying Party, then the Indemnified
Party shall have the right to select a separate counsel and to assume such
legal
defense and otherwise to participate in the defense of such action, with the
expenses and fees of such separate counsel and other expenses related to such
participation to be reimbursed by the Indemnifying Party as incurred.
Notwithstanding any other provision of this Agreement, the Indemnifying Party
shall not settle any indemnified claim without the consent of the Indemnified
Party, unless the settlement thereof imposes no liability or obligation on,
involves no admission of wrongdoing or malfeasance by, and includes a complete
release from liability of, the Indemnified Party.
20
ARTICLE
VIII
MISCELLANEOUS
Section
8.01 Interpretation.Article,
Section, Schedule, and Exhibit references are to this Agreement, unless
otherwise specified. All references to instruments, documents, contracts, and
agreements are references to such instruments, documents, contracts, and
agreements as the same may be amended, supplemented, and otherwise modified
from
time to time, unless otherwise specified. The word “including” shall mean
“including but not limited to.” Whenever the Partnership has an obligation under
the Basic Documents, the expense of complying with such obligation shall be
an
expense of the Partnership unless otherwise specified therein. Whenever any
determination, consent or approval is to be made or given by a Purchaser under
the Basic Documents, such action shall be in such Purchaser’s sole discretion
unless otherwise specified therein. If any provision in the Basic Documents
is
held to be illegal, invalid, not binding, or unenforceable, such provision
shall
be fully severable and the Basic Documents shall be construed and enforced
as if
such illegal, invalid, not binding or unenforceable provision had never
comprised a part of the Basic Documents, and the remaining provisions shall
remain in full force and effect. The Basic Documents have been reviewed and
negotiated by sophisticated parties with access to legal counsel and shall
not
be construed against the drafter.
Section
8.02 Survival
of Provisions.
The
representations and warranties set forth in Sections 3.01, 3.02, 3.06, 3.09,
3.10, 3.11, 4.01, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09 and 4.10 of this
Agreement shall survive the execution and delivery of this Agreement
indefinitely, and the other representations and warranties set forth in this
Agreement shall survive for a period of twelve (12) months following the Closing
Date regardless of any investigation made by or on behalf of the Partnership
or
any Purchaser. The covenants made in this Agreement or any other Basic Document
shall survive the closing of the transactions described herein and remain
operative and in full force and effect regardless of acceptance of any of the
Purchased Units and payment therefor and repayment, conversion or repurchase
thereof. All indemnification obligations of the Partnership and the Purchasers
pursuant to this Agreement shall remain operative and in full force and effect
unless such obligations are expressly terminated in a writing by the Parties,
regardless of any purported general termination of this Agreement.
Section
8.03 No
Waiver; Modifications in Writing.
(a) Delay.
No
failure or delay on the part of any Party in exercising any right, power, or
remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power, or remedy preclude any other or
further exercise thereof or the exercise of any right, power, or remedy. The
remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to a Party at Law or in equity or otherwise.
(b) Specific
Waiver; Amendment.
Except
as otherwise provided herein, no amendment, waiver, consent, modification or
termination of any provision of this Agreement or any other Basic Document
shall
be effective unless signed by each of Parties or each of the original
signatories thereto affected by such amendment, waiver, consent, modification
or
termination. Any amendment, supplement or modification of or to any provision
of
any Basic Document, any waiver of any provision of any Basic Document and any
consent to any departure by the Partnership from the terms of any provision
of
any Basic Document shall be effective only in the specific instance and for
the
specific purpose for which made or given. Except where notice is specifically
required by this Agreement, no notice to or demand on the Partnership in any
case shall entitle the Partnership to any other or further notice or demand
in
similar or other circumstances.
21
Section
8.04 Binding
Effect; Assignment.
(a) Binding
Effect.
This
Agreement shall be binding upon the Partnership, each Purchaser and their
respective successors and permitted assigns. Except as expressly provided in
this Agreement, this Agreement shall not be construed so as to confer any right
or benefit upon any Person other than the Parties to this Agreement and as
provided in Article VII, and their respective successors and permitted assigns.
(b) Assignment
of Purchased Units.
All or
any portion of a Purchaser’s Purchased Units purchased pursuant to this
Agreement may be sold, assigned or pledged by such Purchaser, subject to
compliance with applicable federal and state securities Laws, Section
5.04(b)
and the
Registration Rights Agreement.
(c) Assignment
of Rights.
Each
Purchaser may assign all or any portion of its rights without the consent of
the
Partnership (i) to any Affiliate of such Purchaser or (ii) in connection with
a
total return swap or similar transaction with respect to the Purchased Units
purchased by such Purchaser, and in each case the assignee shall be deemed
to be
a Purchaser hereunder with respect to such assigned rights or obligations and
shall agree to be bound by the provisions of this Agreement. Except as expressly
permitted by this Section
8.04(c),
such
rights may not otherwise be transferred except with the prior written consent
of
the Partnership (which consent shall not be unreasonably withheld), in which
case the assignee shall be deemed to be a Purchaser hereunder with respect
to
such assigned rights or obligations and shall agree to be bound by the
provisions of this Agreement.
Section
8.05 Aggregation
of Purchased Units.
All
Purchased Units held or acquired by Persons who are Affiliates of one another
shall be aggregated together for the purpose of determining the availability
of
any rights under this Agreement.
Section
8.06 Confidentiality
and Non-Disclosure.
Notwithstanding anything herein to the contrary, each Purchaser that has entered
into a confidentiality agreement in favor of the Partnership shall continue
to
be bound by such confidentiality agreement in accordance with the terms thereof.
Section
8.07 Communications.
All
notices and demands provided for hereunder shall be in writing and shall be
given by regular mail, registered or certified mail, return receipt requested,
facsimile, air courier guaranteeing overnight delivery, electronic mail or
personal delivery to the addresses listed in Schedule
8.07
of this
Agreement or to such other address as the Partnership or a Purchaser may
designate in writing. All notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; when
notice that the recipient has read the message, if sent via electronic mail;
upon actual receipt, if sent by registered or certified mail, return receipt
requested, or regular mail, if mailed; when receipt acknowledged, if sent via
facsimile; and upon actual receipt when delivered to an air courier guaranteeing
overnight delivery.
22
Section
8.08 Removal
of Legend.
The
Partnership shall remove the legend described in Section
4.08
from the
certificates evidencing the Purchased Units at the request of a Purchaser
submitting to the Partnership such certificates, together with an opinion of
counsel, if required by the Partnership’s transfer agent, to the effect that
such legend is no longer required under the Securities Act or applicable state
securities Laws, as the case may be, unless the Partnership, with the advice
of
counsel, determines that such removal is inappropriate.
The Partnership shall pay all costs incurred in removing such legend from the
certificates evidencing the Purchased Units.
Section
8.09 Entire
Agreement.
This
Agreement and the other Basic Documents are intended by the Parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the Parties hereto and thereto
in respect of the subject matter contained herein and therein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein and therein, with respect to the rights granted by the
Partnership or a Purchaser set forth herein and therein. This Agreement and
the
other Basic Documents supersede all prior agreements and understandings between
the Parties with respect to such subject matter. The Schedules and Exhibits
referred to herein and attached hereto are incorporated herein by this
reference, and unless the context expressly requires otherwise, are incorporated
in the definition of “Agreement.”
Section
8.10 Governing
Law.
This
Agreement will be construed in accordance with and governed by the Laws of
the
State of New York without regard to principles of conflicts of Laws.
Section
8.11 Execution
in Counterparts.
This
Agreement may be executed in any number of counterparts and by different Parties
hereto in separate counterparts, including facsimile counterparts, each of
which
counterparts, when so executed and delivered, shall be deemed to be an original
and all of which counterparts, taken together, shall constitute but one and
the
same Agreement.
Section
8.12 Termination.
(a) Notwithstanding
anything herein to the contrary, this Agreement may be terminated at any time
at
or prior to the Closing by the mutual written consent of the Purchasers entitled
to purchase a majority of the Purchased Units and the Partnership.
(b) Notwithstanding
anything herein to the contrary, this Agreement shall automatically terminate
at
any time at or prior to the Closing:
(i)
if a
statute, rule, order, decree or regulation shall have been enacted or
promulgated, or if any action shall have been taken by any Governmental
Authority of competent jurisdiction which permanently restrains, precludes,
enjoins or otherwise prohibits the consummation of the transactions contemplated
by this Agreement or makes the transactions contemplated by this Agreement
illegal; or
23
(ii) if
the
Closing shall not have occurred on or before July 2, 2007.
(c) In
the
event of the termination of this Agreement as provided in Sections 8.12(a)
or
8.12(b),
this
Agreement shall forthwith become null and void. In the event of such
termination, there shall be no liability on the part of any party hereto, except
(i) as set forth in Article
VII
of this
Agreement and (ii) with respect to the requirement to comply with any
confidentiality agreement in favor of the Partnership; provided,
that
nothing herein shall relieve any party from any liability or obligation with
respect to any willful breach of this Agreement.
Section
8.13 Recapitalization,
Exchanges, Etc. The provisions of this Agreement shall apply to the full
extent set forth herein with respect to any and all equity interests of the
Partnership or any successor or assign of the Partnership (whether by merger,
consolidation, sale of assets or otherwise) that may be issued in respect of,
in
exchange for or in substitution of, the Purchased Units, and shall be
appropriately adjusted for combinations, unit splits, recapitalizations and
the
like occurring after the date of this Agreement.
Section
8.14 Expenses.
The Partnership hereby covenants and agrees to reimburse Baker Botts L.L.P.
for
reasonable legal fees and related expenses incurred in connection with the
negotiation, execution, delivery and performance of the Basic Documents and
the
transactions contemplated hereby and thereby, provided
that
such costs and expenses do not exceed $50,000 and provided further that any
request for such payment is accompanied by satisfactory written invoice for
such
fees and expenses. If any action at law or equity is necessary to enforce or
interpret the terms of the Basic Documents, the prevailing party shall be
entitled to reasonable attorney’s fees, out-of-pocket costs and necessary
disbursements in addition to any other relief to which such party may be
entitled.
Section
8.15 Obligations
Limited to Parties to Agreement. Each of the parties hereto covenants,
agrees and acknowledges that no Person other than the Purchasers shall have
any
obligation hereunder and that, notwithstanding that one or more of the
Purchasers may be a corporation, partnership or limited liability company,
no
recourse under this Agreement or the other Basic Documents or under any
documents or instruments delivered in connection herewith or therewith shall
be
had against any former, current or future director, officer, employee, agent,
general or limited partner, manager, member, stockholder or Affiliate of any
of
the Purchasers or any former, current or future director, officer, employee,
agent, general or limited partner, manager, member, stockholder or Affiliate
of
any of the foregoing, whether by the enforcement of any assessment or by any
legal or equitable proceeding, or by virtue of any applicable Law, it being
expressly agreed and acknowledged that no personal liability whatsoever shall
attach to, be imposed on or otherwise by incurred by any former, current or
future director, officer, employee, agent, general or limited partner, manager,
member, stockholder or Affiliate of any of the Purchasers or any former, current
or future director, officer, employee, agent, general or limited partner,
manager, member, stockholder or Affiliate of any of the foregoing, as such,
for
any obligations of the Purchasers under this Agreement or the other Basic
Documents or any documents or instruments delivered in connection herewith
or
therewith or for any claim based on, in respect of or by reason of such
obligation or its creation, except in each case for any assignee of a Purchaser
hereunder.
24
IN
WITNESS WHEREOF, the Parties hereto execute this Agreement, effective as of
the
date first above written.
| DCP MIDSTREAM PARTNERS, LP | ||
| By: |
DCP Midstream Partners GP, LP,
its
General Partner
|
|
| By: |
DCP Midstream Partners GP, LLC,
its
General Partner
|
|
| By: | /s/ Thomas E. Long | |
| Name: | Thomas E. Long | |
| Title: | Vice President and Chief Financial Officer | |
| GPS INCOME FUND LP | ||
| By: GPS Partners, LLC, its General Partner | ||
| |
|
|
| By: | /s/ Jeff Farron | |
|
Name:
Jeff Farron
Title:
CFO
|
||
| KIDRON PARTNERS III LP | ||
| By:
Kidron
Capital LLC,
Its
general partner
|
||
| |
|
|
| By: | /s/ Chuck Webster | |
|
Chuck
Webster
Managing
Member
|
||
|
ROYAL
BAK OF CANADA
by
its agent
|
||
| RBC CAPITAL MARKETS CORPORATION | ||
| |
|
|
| By: | /s/ Josef Muskafel | |
|
Josef Muskafel Director
and Senior Counsel
|
||
| By: | /s/ David Weiner | |
|
David
Weiner
Managing
Director
|
||
|
TORTOISE
ENERGY INFRASTRUCTURE CORPORATION
|
||
| |
|
|
| By: | /s/ Zachary A. Hamel | |
|
Zachary
A. Hamel
Senior
Vice President
|
||
|
ING
LIVE INSURANCE AND ANNUITY COMPANY
RELIASTAR
LIFE INSURANCE COMPANY
ING
USA ANNUITY AND LIFE INSURANCE
COMPANY
SECURITY
LIFE OF DENVER INSURANCE
COMPANY
RELIASTAR
LIFE INSURACNE COMPANY OF
NEW
YORK
|
||
| By: ING Investment Management LLC as Agent | ||
| |
|
|
| By: | /s/ Steve Newby | |
|
Steve
Newby
Vice
President
|
||
| ENERGY INCOME AND GROWTH FUND | ||
| |
|
|
| By: | /s/ David Lindquist | |
|
Name: David Lindquist |
||
| Title: Vice President | ||
|
FIDUCIARY/CLAYMORE
MLP OPPORTUNITY FUND
|
||
| |
|
|
| By: | /s/ Steven M. Hill | |
|
Name: Steven
M. Hill
Title: Chief
Financial Officer
|
||
| EAGLE INCOME APPRECIATION PARTNERS, L.P. | ||
|
By: Eagle
Income Appreciation GP, LLC
By: Eagle
Global Advisors, LLC
|
||
| |
|
|
| By: | /s/ Malcolm Day | |
|
Name: Malcolm
Day
Title: Partner
|
||
| EAGLE INCOME APPRECIATION II, L.P. | ||
|
By: Eagle
Income Appreciation GP, LLC
By: Eagle
Global Advisors, LLC
|
||
| |
|
|
| By: | /s/ Malcolm Day | |
|
Name: Malcolm Day |
||
| Title: Partner | ||
| HARTZ CAPITAL MLP, LLC | ||
|
By: Hartz
Capital, Inc.,
Its Manager
|
||
| |
|
|
| By: | /s/ Ronald J. Bangs | |
|
Ronald J. Bangs |
||
| Chief Operating Officer | ||
|
THE
NORTHWESTERN MUTUAL LIFE INSURANCE
COMPANY
|
||
| |
|
|
| By: | /s/ Jerome R. Baier | |
|
Jerome
R. Baier
its
authorized representative
|
||
| MSDW STRATEGIC INVESTMENTS, INC. | ||
| |
|
|
| By: | /s/ Alan Thomas | |
|
Name:
Alan Thomas
Title:
Vice President
|
||
REGISTRATION
RIGHTS AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”)
is made and entered into as of June 22, 2007, by and among DCP Midstream
Partners, LP, a Delaware limited partnership (the “Partnership”),
and the Purchasers listed on the signature pages to this Agreement (each, a
“Purchaser”
and collectively, the “Purchasers”).
WHEREAS,
this Agreement is made in connection with the Closing of the issuance and sale
of the Purchased Units pursuant to the Common Unit Purchase Agreement, dated
as
of June 19, 2007, by and among the Partnership and the Purchasers (the
“Purchase
Agreement”);
WHEREAS,
the Partnership has agreed to provide the registration and other rights set
forth in this Agreement for the benefit of the Purchasers pursuant to the
Purchase Agreement; and
WHEREAS,
it is a condition to the obligations of each Purchaser and the Partnership
under
the Purchase Agreement that this Agreement be executed and
delivered.
NOW
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein and for good and valuable consideration, the receipt and sufficiency
of
which is hereby acknowledged by each party hereto, the parties hereby agree
as
follows:
DEFINITIONS
Section
1.01. Definitions.
Capitalized terms used herein without definition shall have the meanings given
to them in the Purchase Agreement. The terms set forth below are used herein
as
so defined:
“Affiliate”
means,
with respect to a specified Person, any other Person, whether now in existence
or hereafter created, directly or indirectly controlling, controlled by or
under
direct or indirect common control with such specified Person. For purposes
of
this definition, “control” (including, with correlative meanings, “controlling,”
“controlled by,” and “under common control with”) means the power to direct or
cause the direction of the management and policies of such Person, directly
or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise.
“Agreement”
has the meaning specified therefor in the introductory paragraph.
“Commission”
means
the United States Securities and Exchange Commission.
“Common
Units”
means
the Common Units of the Partnership representing limited partner interests
therein.
“Effectiveness
Period”
has the meaning specified therefor in Section
2.01(a)
of this Agreement.
“Holder”
means the record holder of any Registrable Securities.
“Included
Registrable Securities”
has the meaning specified therefor in Section
2.02(a)
of this Agreement.
“Liquidated
Damages”
has the meaning specified therefor in Section
2.01(b)
of this Agreement.
“Liquidated
Damages Multiplier”
means the product of [the
purchase price for the Common Units]
times the number of Common Units purchased by such Purchaser.
“Losses”
has the meaning specified therefor in Section
2.08(a)
of this Agreement.
“Managing
Underwriter”
means, with respect to any Underwritten Offering, the book-running lead manager
of such Underwritten Offering.
“NYSE”
means The New York Stock Exchange, Inc.
“Opt
Out Notice”
has the meaning specified therefor in Section
2.02(a)
of this Agreement.
“Other
Holders”
has the meaning specified therefor in Section
2.02(b)
of this Agreement.
“Person”
means any
individual, corporation, company, voluntary association, partnership, joint
venture, trust, limited liability company, unincorporated organization or
government or any agency, instrumentality or political subdivision thereof,
or
any other form of entity.
“Purchase
Agreement”
has the meaning specified therefor in the Recitals of this
Agreement.
“Purchaser”
and “Purchasers”
have the meanings specified therefor in the introductory paragraph of this
Agreement.
“Registrable
Securities”
means: (i) the Common Units comprising the Purchased Units and (ii) any Common
Units issued as Liquidated Damages pursuant to Section
2.01
of this Agreement, if any, all of which Registrable Securities are subject
to
the rights provided herein until such rights terminate pursuant to the
provisions hereof.
“Registration
Expenses”
has the meaning specified therefor in Section
2.07(b)
of this Agreement.
“Selling
Expenses”
has the meaning specified therefor in Section
2.07(b)
of this Agreement.
“Selling
Holder”
means a Holder who is selling Registrable Securities pursuant to a registration
statement.
“Shelf
Registration Statement”
means a registration statement under the Securities Act to permit the resale
of
the Registrable Securities from time to time, including as permitted by Rule
415
under the Securities Act (or any similar provision then in force under the
Securities Act).
2
“Underwritten
Offering”
means an offering (including an offering pursuant to a Shelf Registration
Statement) in which Common Units are sold to an underwriter on a firm commitment
basis for reoffering to the public.
Section
1.02. Registrable
Securities. Any Registrable Security will cease to be a Registrable Security
when (a) a registration statement covering such Registrable Security has been
declared effective by the Commission and such Registrable Security has been
sold
or disposed of pursuant to such effective registration statement; (b) such
Registrable Security has been disposed of pursuant to any section of Rule 144
(or any similar provision then in force under the Securities Act); (c) such
Registrable Security can be disposed of pursuant to Rule 144(k) (or any similar
provision then in force under the Securities Act) by the Holder, (d) such
Registrable Security is held by the Partnership or one of its subsidiaries;
(e)
two years from the date on which the Shelf Registration Statement contemplated
by Section 2.01 is declared effective by the Commission or (f) such Registrable
Security has been sold in a private transaction in which the transferor’s rights
under this Agreement are not assigned to the transferee of such
securities.
REGISTRATION
RIGHTS
Section
2.01. Shelf
Registration.
(a). Deadline
To Go Effective.
As soon
as practicable following the Closing, but in any event by the date that is
the
first to occur of (i) the date on which the Partnership files a shelf
registration statement relating to the 2,380,952 Common Units to be issued
and
sold by the Partnership to Lehman Brothers MLP Opportunity Fund L.P. and Banc
of
America Capital Investors V, L.P. pursuant to that certain Purchase Agreement
dated as of May 21, 2007 or (ii) 120 days from the Closing, the Partnership
shall prepare and file a Shelf Registration Statement under the Securities
Act
with respect to all of the Registrable Securities. The Partnership shall use
its
commercially reasonable efforts to cause the Shelf Registration Statement to
become effective no later than 210 days after the date of the Closing. The
Partnership will use its commercially reasonable efforts to cause the Shelf
Registration Statement filed pursuant to this Section
2.01
to be
continuously effective under the Securities Act until the date on which all
such
Registrable Securities have ceased to be Registrable Securities (the
“Effectiveness
Period”).
The
Shelf Registration Statement when declared effective (including any documents
incorporated therein by reference) will comply as to form in all material
respects with all applicable requirements of the Securities Act and the Exchange
Act and will not 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.
3
(b). Failure
To Go Effective.
If the
Shelf Registration Statement required by Section
2.01
is not
declared effective within 210 days after Closing, then each Purchaser shall
be
entitled to a payment (with respect to the Purchased Units of each such
Purchaser), as liquidated damages and not as a penalty, of 0.25% of the
Liquidated Damages Multiplier per 30-day period for the first 60 days following
the 210th day, increasing by an additional 0.25% of the Liquidated Damages
Multiplier per 30-day period for each subsequent 60 days, up to a maximum of
1.00% of the Liquidated Damages Multiplier per 30-day period (the “Liquidated
Damages”).
The Liquidated Damages payable pursuant to the immediately preceding sentence
shall be
payable
within ten Business Days after the end of each such 30-day period. Any
Liquidated Damages shall be paid to each Purchaser in immediately available
funds; provided,
however,
if the
Partnership certifies that it is unable to pay Liquidated Damages in cash
because such payment would result in a breach under a credit facility or other
debt instrument filed as exhibits to the SEC Documents, then the Partnership
shall pay such Liquidated Damages using as much cash as permitted without
breaching any such credit facility or other debt instrument and shall pay the
balance of any such Liquidated Damages in kind in the form of the issuance
of
additional Common Units. Upon any issuance of Common Units as Liquidated
Damages, the Partnership shall promptly prepare and file an amendment to the
Shelf Registration Statement prior to its effectiveness adding such Common
Units
to such Shelf Registration Statement as additional Registrable Securities.
The
determination of the number of Common Units to be issued as Liquidated Damages
shall be equal to the amount of Liquidated Damages divided by the average
closing price of the Partnership’s Common Units on the NYSE for the ten trading
days immediately preceding the date on which the Liquidated Damages payment
is
due. The payment of the Liquidated Damages to a Purchaser shall cease at such
time as the Purchased Units of such Purchaser cease to be Registrable
Securities. As soon as practicable following the date that the Shelf
Registration Statement becomes effective, but in any event within three Business
Days of such date, the Partnership shall provide the Purchasers with written
notice of the effectiveness of the Shelf Registration Statement.
(c). Waiver
of Liquidated Damages.
If the
Partnership is unable to cause a Shelf Registration Statement to go effective
within the 210 days as a result of an acquisition, merger, reorganization,
disposition or other similar transaction, then the Partnership may request
a
waiver of the Liquidated Damages, and each Holder may individually
grant or
withhold its
consent to such request in its reasonable discretion.
(d). Termination
of Purchaser’s Rights.
A
Purchaser’s rights (and any transferee’s rights pursuant to Section
2.10)
under
this Section
2.01
shall
terminate upon the termination of the Effectiveness Period.
(e). Delay
Rights.
Notwithstanding anything to the contrary contained herein, the Partnership
may,
upon written notice to any Selling Holder whose Registrable Securities are
included in the Shelf Registration Statement, suspend such Selling Holder’s use
of any prospectus which is a part of the Shelf Registration Statement (in which
event the Selling Holder shall discontinue sales of the Registrable Securities
pursuant to the Shelf Registration Statement) if (i) the Partnership is pursuing
an acquisition, merger, reorganization, disposition or other similar transaction
and the Partnership determines in good faith that the Partnership’s ability to
pursue or consummate such a transaction would be materially adversely affected
by any required disclosure of such transaction in the Shelf Registration
Statement or (ii) the Partnership has experienced some other material non-public
event, the disclosure of which at such time, in the good faith judgment of
the
Partnership, would materially adversely affect the Partnership; provided,
however,
in no
event shall the Purchasers be suspended for a period that exceeds an aggregate
of 30 days in any 90-day period or 90 days in any 365-day period, in each case,
exclusive of days covered by any lock-up agreement executed by a Purchaser
in
connection with any Underwritten Offering. Upon disclosure of such information
or the termination of the condition described above, the Partnership shall
provide prompt notice to the Selling Holders whose Registrable Securities are
included in the Shelf Registration Statement, and shall promptly terminate
any
suspension of sales it has put into effect and shall take such other actions
to
permit registered sales of Registrable Securities as contemplated in this
Agreement.
4
(f). Additional
Rights
to Liquidated Damages.
If (i)
the Holders shall be prohibited from selling their Registrable Securities under
the Shelf Registration Statement as a result of a suspension pursuant to
Section
2.01(e)
of this
Agreement in excess of the periods permitted therein or (ii) the Shelf
Registration Statement is filed and declared effective but, during the
Effectiveness Period, shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded by a post-effective
amendment to the Shelf Registration Statement, a supplement to the prospectus
or
a report filed with the Commission pursuant to Sections 13(a), 13(c), 14 or
l5(d) of the Exchange Act, then, until the suspension is lifted or a
post-effective amendment, supplement or report is filed with the Commission,
but
not including any day on which a suspension is lifted or such amendment,
supplement or report is filed and declared effective, if applicable, the
Partnership shall owe the Holders an amount equal to the Liquidated Damages,
following (x) the date on which the suspension period exceeded the permitted
period under Section
2.01(e)
of this
Agreement or (y) the day after the Shelf Registration Statement ceased to be
effective or failed to be useable for its intended purposes, as liquidated
damages and not as a penalty. For purposes of this Section
2.01(f),
a
suspension shall be deemed lifted on the date that notice that the suspension
has been lifted is delivered to the Holders pursuant to Section 3.01 of this
Agreement.
Section
2.02. Piggyback
Rights.
(a). Participation.
If at
any time that is on or after 90 days after the date of the Closing the
Partnership proposes to file (i) a prospectus supplement to an effective shelf
registration statement, other than the Shelf Registration Statement contemplated
by Section
2.01,
at a
time at which the Shelf Registration Statement contemplated by Section 2.01
has
been declared effective by the Commission and remains so effective, or (ii)
a
registration statement, other than a shelf registration statement, in either
case, for the sale of Common Units in an Underwritten Offering for its own
account and/or another Person, then as soon as practicable but not less than
three (3) Business Days prior to the filing of (x) any preliminary prospectus
supplement to a prospectus relating to such Underwritten Offering pursuant
to
Rule 424(b) under the Securities Act, (y) the prospectus supplement to a
prospectus relating to such Underwritten Offering pursuant to Rule 424(b) under
the Securities Act (if no preliminary prospectus supplement is used) or (z)
such
registration statement, as the case may be, the Partnership shall give notice
of
such proposed Underwritten Offering to the Holders and such notice shall offer
the Holders the opportunity to include in such Underwritten Offering such number
of Registrable Securities (the “Included
Registrable Securities”)
as
each such Holder may request in writing; provided,
that
each such Holder shall keep all information relating to such Underwritten
Offering in confidence and shall not make use of, disseminate or in any way
disclose any such information; provided,
however,
that if
the Partnership has been advised by the Managing Underwriter that the inclusion
of Registrable Securities for sale for the benefit of the Holders will have
a
material adverse effect on the price, timing or distribution of the Common
Units
in the Underwritten Offering, then the amount of Registrable Securities to
be
offered for the accounts of Holders shall be determined based on the provisions
of Section
2.02(b).
The
notice required to be provided in this Section
2.02(a)
to
Holders shall be provided on a Business Day pursuant to Section
3.01
hereof.
Each such Holder shall then have two Business Days after receiving such notice
to request inclusion of Registrable Securities in the Underwritten Offering,
except that such Holder shall have one Business Day after such Holder confirms
receipt of the notice to request inclusion of Registrable Securities in the
Underwritten Offering in the case of a “bought deal” or “overnight transaction”
where no preliminary prospectus is used. If no request for inclusion from a
Holder is received within the specified time, each such Holder shall have no
further right to participate in such Underwritten Offering. If, at any time
after giving written notice of its intention to undertake an Underwritten
Offering and prior to the closing of such Underwritten Offering, the Partnership
shall determine for any reason not to undertake or to delay such Underwritten
Offering, the Partnership may, at its election, give written notice of such
determination to the Selling Holders and, (x) in the case of a determination
not
to undertake such Underwritten Offering, shall be relieved of its obligation
to
sell any Included Registrable Securities in connection with such terminated
Underwritten Offering, and (y) in the case of a determination to delay such
Underwritten Offering, shall be permitted to delay offering any Included
Registrable Securities for the same period as the delay in the Underwritten
Offering. Each Holder’s rights under this Section
2.02(a)
shall
terminate when such Holder (together with any Affiliates of such Holder) holds
less than $20 million of Purchased Units, based on the purchase price per unit
under the Purchase Agreement. Notwithstanding the foregoing, any Holder holding
greater than $20 million of Purchased Units, based on the purchase price per
unit under the Purchase Agreement, may deliver written notice (an “Opt
Out Notice”)
to the
Partnership requesting that such Holder not receive notice from the Partnership
of any proposed Underwritten Offering; provided,
that,
such Holder may later revoke any such Opt Out Notice. Following receipt of
an
Opt Out Notice from a Holder (unless subsequently revoked), the Partnership
shall not be required to deliver any notice to such Holder pursuant to this
Section
2.02(a)
and such
Holder shall no longer be entitled to participate in Underwritten Offerings
by
the Partnership pursuant to this Section
2.02(a).
5
(b). Priority.
If the
Managing Underwriter or Underwriters of any proposed Underwritten Offering
of
Common Units included in an Underwritten Offering involving Included Registrable
Securities advises that the total amount of Common Units that the Selling
Holders and any other Persons intend to include in such offering exceeds the
number that can be sold in such offering without being likely to have a material
adverse effect on the price, timing or distribution of the Common Units offered
or the market for the Common Units, then the Common Units to be included in
such
Underwritten Offering shall include the number of Registrable Securities that
such Managing Underwriter or Underwriters advises can be sold without having
such adverse effect, with such number to be allocated (i) first, to the
Partnership and (ii) second, pro rata among the Selling Holders party to
this Agreement and any other Persons who have been or are granted registration
rights prior to or after the date of this Agreement (including the General
Partner, “Other
Holders”),
in
each case, who have requested participation in such Underwritten Offering.
The
pro rata allocations for each such Selling Holder shall be the product of (a)
the aggregate number of Common Units proposed to be sold by all Selling Holders
and Other Holders in such Underwritten Offering multiplied by (b) the fraction
derived by dividing (x) the number of Common Units owned on the Registration
Deadline by such Selling Holder or Other Holder by (y) the aggregate number
of
Common Units owned by all Selling Holders and Other Holders participating in
the
Underwritten Offering.
Section
2.03. Underwritten
Offerings.
(a). Underwritten
Offering.
Any one
or more Holders may deliver written notice to the Partnership that such Holders
wish to dispose of Registrable Securities under the Shelf Registration Statement
in an Underwritten Offering if the Holders reasonably anticipate selling
collectively at least $35 million of Common Units (calculated based on the
per
unit purchase price of such Common Units). Upon receipt of such written request,
the Partnership shall use commercially reasonable efforts to retain underwriters
and effect such sale through an Underwritten Offering and take all commercially
reasonable actions as are reasonably requested by the Managing Underwriter
or
underwriters to expedite or facilitate the disposition of such Registrable
Securities,
including entering into an underwriting agreement;
provided,
however,
that
the Partnership shall not be required to cause its management to participate
in
a “road show” or similar marketing effort in connection with any such
Underwriting Offering.
The
Partnership may elect to include primary Common Units in any Underwritten
Offering undertaken pursuant to this Section
2.03(a).
In
addition, any Underwritten Offering undertaken pursuant to this Section
2.03
will be
subject to the provisions of Section
2.02(b).
6
(b). General
Procedures.
In connection with any Underwritten Offering under this Agreement, the
Partnership shall be entitled to select the Managing Underwriter or
Underwriters. In connection with an Underwritten Offering contemplated by this
Agreement in which a Selling Holder participates, each Selling Holder and the
Partnership shall be obligated to enter into an underwriting agreement that
contains such representations, covenants, indemnities and other rights and
obligations as are customary in underwriting agreements for firm commitment
offerings of securities. No Selling Holder may participate in such Underwritten
Offering unless such Selling Holder agrees to sell its Registrable Securities
on
the basis provided in such underwriting agreement and completes and executes
all
questionnaires, powers of attorney, indemnities and other documents reasonably
required under the terms of such underwriting agreement. Each Selling Holder
may, at its option, require that any or all of the representations and
warranties by, and the other agreements on the part of, the Partnership to
and
for the benefit of such underwriters also be made to and for such Selling
Holder’s benefit and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement also be
conditions precedent to its obligations. No Selling Holder shall be required
to
make any representations or warranties to or agreements with the Partnership
or
the underwriters other than representations, warranties or agreements regarding
such Selling Holder, its authority to enter into such underwriting agreement
and
to sell, and its ownership of, the securities being registered on its behalf,
its intended method of distribution and any other representation required by
Law.
(c). Withdrawal.
If any
Holder disapproves of the terms of an Underwritten Offering, such Holder may
elect to withdraw therefrom by written notice to the Partnership and the
Managing Underwriter delivered (i) prior to the commencement of any marketing
efforts for the Underwritten Offering or (ii) at any time up to and including
the time of pricing of the Underwritten Offering if the price to the public
at
which the Registrable Securities are proposed to be sold is less than 95% of
the
volume-weighted average price of the Common Units during the ten trading days
preceding the fourth trading day prior to commencement of the marketing efforts
for the Underwritten Offering. The Partnership will provide notice to the
Holders on the second trading day prior to the date of commencement of marketing
efforts and the applicable price determined under the immediately preceding
sentence. The Holder may agree to waive this right to withdraw with the
Partnership, the underwriters or any custodial agent in any custody agreement
and/or power of attorney executed by such Holder in connection with the
underwriting. No such withdrawal shall affect the Partnership’s obligation to
pay all Registration Expenses. Any Registrable Securities excluded or withdrawn
from such underwriting shall be excluded and withdrawn from the preliminary
prospectus supplement, prospectus supplement or registration statement, in
each
case as determined pursuant to the applicable clause (x),
(y)
or
(z)
of
Section
2.02(a).
7
Section
2.04. Sale
Procedures. In connection with its obligations under this Article II, the
Partnership will, as expeditiously as possible:
(a). prepare
and file with the Commission such amendments and supplements to the Shelf
Registration Statement and the prospectus used in connection therewith as may
be
necessary to keep the Shelf Registration Statement effective for the
Effectiveness Period and as may be necessary to comply with the provisions
of
the Securities Act with respect to the disposition of all securities covered
by
the Shelf Registration Statement;
(b). if
a
prospectus supplement will be used in connection with the marketing of an
Underwritten Offering from the Shelf Registration Statement and the Managing
Underwriter at any time shall notify the Partnership in writing that, in the
sole judgment of such Managing Underwriter, inclusion of detailed information
to
be used in such prospectus supplement is of material importance to the success
of the Underwritten Offering of such Registrable Securities, the Partnership
shall use its commercially reasonable efforts to include such information in
such prospectus supplement;
(c). furnish
to each Selling Holder (i) as far in advance as reasonably practicable before
filing the Shelf Registration Statement or
any other registration statement contemplated by this Agreement
or any
supplement or amendment thereto, upon request, copies of reasonably complete
drafts of all such documents proposed to be filed (including exhibits and each
document incorporated by reference therein to the extent then required by the
rules and regulations of the Commission), and provide each such Selling Holder
the opportunity to object to any information pertaining to such Selling Holder
and its plan of distribution that is contained therein and make the corrections
reasonably requested by such Selling Holder with respect to such information
prior to filing the Shelf Registration Statement or such other registration
statement or supplement or amendment thereto, and (ii) such number of copies
of
the Shelf Registration Statement or such other registration statement and the
prospectus included therein and any supplements and amendments thereto as such
Persons may reasonably request in order to facilitate the public sale or other
disposition of the Registrable Securities covered by such Shelf Registration
Statement or such other registration statement;
(d). if
applicable, use its commercially reasonable efforts to register or qualify
the
Registrable Securities covered by the Shelf Registration Statement or any other
registration statement contemplated by this Agreement under the securities
or
blue sky laws of such jurisdictions as the Selling Holders or, in the case
of an
Underwritten Offering, the Managing Underwriter, shall reasonably request;
provided,
however,
that
the Partnership will not be required to qualify generally to transact business
in any jurisdiction where it is not then required to so qualify or to take
any
action which would subject it to general service of process in any such
jurisdiction where it is not then so subject;
8
(e). promptly
notify each Selling Holder and each underwriter, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of (i)
the filing of the Shelf Registration Statement or
any other registration statement contemplated by this Agreement
or any
prospectus or prospectus supplement to be used in connection therewith, or
any
amendment or supplement thereto, and, with respect to such Shelf Registration
Statement or any other registration statement contemplated by this Agreement
or
any post-effective amendment thereto, when the same has become effective; and
(ii) any written comments from the Commission with respect to any filing
referred to in clause (i) and any written request by the Commission for
amendments or supplements to the Shelf Registration Statement or any other
registration statement contemplated by this Agreement or any prospectus or
prospectus supplement thereto;
(f). immediately
notify each Selling Holder and each underwriter, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of (i)
the happening of any event as a result of which the prospectus or prospectus
supplement contained in the Shelf Registration Statement or
any other registration statement contemplated by this Agreement,
as then
in effect, includes an untrue statement of a material fact or omits to state
any
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing; (ii)
the
issuance or threat of issuance by the Commission of any stop order suspending
the effectiveness of the Shelf Registration Statement or
any other registration statement contemplated by this Agreement,
or the
initiation of any proceedings for that purpose; or (iii) the receipt by the
Partnership of any notification with respect to the suspension of the
qualification of any Registrable Securities for sale under the applicable
securities or blue sky laws of any jurisdiction. Following the provision of
such
notice, the Partnership agrees to as promptly as practicable amend or supplement
the prospectus or prospectus supplement or take other appropriate action so
that
the prospectus or prospectus supplement does not include 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 in the light of
the
circumstances then existing and to take such other action as is necessary to
remove a stop order, suspension, threat thereof or proceedings related
thereto;
(g). in
the
case of an Underwritten Offering, furnish upon request, (i) an opinion of
counsel for the Partnership, dated the effective date of the applicable
registration statement or the date of any amendment or supplement thereto,
and a
letter of like kind dated the date of the closing under the underwriting
agreement, and (ii) a “cold comfort” letter, dated the pricing date of such
Underwritten Offering and a letter of like kind dated the date of the closing
under the underwriting agreement, in each case, signed by the independent public
accountants who have certified the Partnership’s financial statements included
or incorporated by reference into the applicable registration statement, and
each of the opinion and the “cold comfort” letter shall be in customary form and
covering substantially the same matters with respect to such registration
statement (and the prospectus and any prospectus supplement included therein)
as
have been customarily covered in opinions of issuer’s counsel and in
accountants’ letters delivered to the underwriters in Underwritten Offerings of
securities by the Partnership and such other matters as such underwriters and
Selling Holders may reasonably request;
(h). otherwise
use its commercially reasonable efforts to comply with all applicable rules
and
regulations of the Commission, and make available to its security holders,
as
soon as reasonably practicable, an earnings statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act and Rule
158
promulgated thereunder;
9
(i). make
available to the appropriate representatives of the Managing Underwriter and
Selling Holders access to such information and Partnership personnel as is
reasonable and customary to enable such parties to establish a due diligence
defense under the Securities Act;
(j). cause
all
such Registrable Securities registered pursuant to this Agreement to be listed
on each securities exchange or nationally recognized quotation system on which
similar securities issued by the Partnership are then listed;
(k). use
its
commercially reasonable efforts to cause the Registrable Securities to be
registered with or approved by such other governmental agencies or authorities
as may be necessary by virtue of the business and operations of the Partnership
to enable the Selling Holders to consummate the disposition of such Registrable
Securities;
(l). provide
a
transfer agent and registrar for all Registrable Securities covered by such
registration statement not later than the effective date of such registration
statement;
(m). enter
into customary agreements and take such other actions as are reasonably
requested by the Selling Holders or the underwriters, if any, in order to
expedite or facilitate the disposition of such Registrable Securities;
and
(n). the
Partnership agrees that, if any Purchaser could reasonably be deemed to be
an
“underwriter”, as defined in Section 2(a)(11) of the Securities Act, in
connection with the Shelf Registration Statement, in addition to its obligations
set forth in paragraph (i) above, at any Purchaser’s request, (A) the
Partnership will furnish to such Purchaser, on the date of the effectiveness
of
the Shelf Registration Statement and thereafter from time to time on such dates
as such Purchaser may reasonably request, an opinion of counsel for the
Partnership and, to the extent practicable, a “cold comfort” letter signed by
the independent public accountants who have certified the Partnership’s
financial statements included or incorporated by reference into the Shelf
Registration Statement, and each of the opinion and “cold comfort” letter shall
be in customary form and covering substantially the same matters with respect
to
the Shelf Registration Statement as have been customarily covered in opinions
of
issuer’s counsel and accountants’ letters delivered to the underwriters in
Underwritten Offerings of securities of the Partnership and (B) the
Partnership will also permit legal counsel to such Purchaser to review and
comment upon the Shelf Registration Statement at least five Business Days prior
to its filing with the Commission and all amendments and supplements thereto
(excluding any filings made under the Securities Exchange Act of 1934 and
incorporated therein by reference) within a reasonable time period prior to
their filing with the Commission and not file any Shelf Registration Statement
or amendment or supplement thereto (excluding any filings made under the
Securities Exchange Act of 1934 and incorporated therein by reference) in a
form
to which such Purchaser’s legal counsel reasonably objects.
10
Each
Selling Holder, upon receipt of notice from the Partnership of the happening
of
any event of the kind described in subsection (f) of this Section
2.04,
shall forthwith discontinue disposition of the Registrable Securities until
such
Selling Holder’s receipt of the copies of the supplemented or amended prospectus
contemplated by subsection (f) of this Section
2.04
or until it is advised in writing by the Partnership that the use of the
prospectus may be resumed, and has received copies of any additional or
supplemental filings incorporated by reference in the prospectus, and, if so
directed by the Partnership, such Selling Holder will, or will request the
managing underwriter or underwriters, if any, to deliver to the Partnership
(at
the Partnership’s expense) all copies in their possession or control, other than
permanent file copies then in such Selling Holder’s possession, of the
prospectus covering such Registrable Securities current at the time of receipt
of such notice.
Section
2.05. Cooperation
by Holders. The Partnership shall have no obligation to include in the Shelf
Registration Statement, or in an Underwritten Offering pursuant to Section
2.02(a) or Section 2.03(a), Common Units of a Selling Holder who has failed
to
timely furnish such information that, in the opinion of counsel to the
Partnership, is reasonably required in order for the registration statement
or
prospectus supplement, as applicable, to comply with the Securities
Act.
Section
2.06. Restrictions
on Public Sale by Holders of Registrable Securities. For one year following
the Closing Date, each Holder of Registrable Securities who is included in
the
Shelf Registration Statement agrees not to effect any public sale or
distribution of the Registrable Securities during the 30-day period following
completion of an Underwritten Offering of equity securities by the Partnership
(except as provided in this Section 2.06); provided,
however,
that
the duration of the foregoing restrictions shall be no longer than the duration
of the shortest restriction generally imposed by the underwriters on the
officers or directors or any other unitholder of the Partnership on whom a
restriction is imposed. In addition, the lock-up provisions in this Section
2.06
shall not apply with respect to a Holder that (A) owns less than $20 million
of
Purchased Units, based on the purchase price per unit under the Purchase
Agreement, (B) has delivered an Opt Out Notice to the Partnership pursuant
to
Section 2.02(a) or (C) has submitted a notice requesting the inclusion of
Registrable Securities in an Underwritten Offering pursuant to Section 2.02(a)
but is unable to do so as a result of the priority provisions contained in
Section 2.02(b).
Section
2.07. Expenses.
(a). Expenses.
The
Partnership will pay all reasonable Registration Expenses as determined in
good
faith, including, in the case of an Underwritten Offering, whether or not any
sale is made pursuant to such Underwritten Offering. Each Selling Holder shall
pay all Selling Expenses in connection with any sale of its Registrable
Securities hereunder. In addition, except as otherwise provided in Section
2.08
hereof,
the Partnership shall not be responsible for legal fees incurred by Holders
in
connection with the exercise of such Holders’ rights hereunder.
(b). Certain
Definitions.
“Registration
Expenses”
means
all expenses incident to the Partnership’s performance under or compliance with
this Agreement to effect the registration of Registrable Securities on the
Shelf
Registration Statement pursuant to Section
2.01
or an
Underwritten Offering covered under this Agreement, and the disposition of
such
securities, including, without limitation, all registration, filing, securities
exchange listing and NYSE fees, all registration, filing, qualification and
other fees and expenses of complying with securities or blue sky laws (other
than fees and expenses of counsel to the Managing Underwriter in connection
with
an Underwritten Offering), fees of the National Association of Securities
Dealers, Inc., fees of transfer agents and registrars, all word processing,
duplicating and printing expenses, any transfer taxes and the fees and
disbursements of counsel and independent public accountants for the Partnership,
including the expenses of any special audits or “cold comfort” letters required
by or incident to such performance and compliance. “Selling
Expenses”
means
all underwriting fees, discounts and selling commissions allocable to the sale
of the Registrable Securities.
11
Section
2.08. Indemnification.
(a). By
the
Partnership.
In the
event of a registration of any Registrable Securities under the Securities
Act
pursuant to this Agreement, the Partnership will indemnify and hold harmless
each Selling Holder thereunder, its directors, officers, employees and agents,
and each underwriter, pursuant to the applicable underwriting agreement with
such underwriter, of Registrable Securities thereunder and each Person, if
any,
who controls such Selling Holder within the meaning of the Securities Act and
the Exchange Act, and its directors, officers, employees or agents, against
any
losses, claims, damages, expenses or liabilities (including reasonable
attorneys’ fees and expenses) (collectively, “Losses”),
joint
or several, to which such Selling Holder, director, officer, employee, agent
or
underwriter or controlling Person may become subject under the Securities Act,
the Exchange Act or otherwise, insofar as such Losses (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out
of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Shelf Registration Statement or any other
registration statement contemplated by this Agreement, any preliminary
prospectus, free writing prospectus or final prospectus contained therein,
or
any amendment 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 (in the case of
a
prospectus, in light of the circumstances under which they were made) not
misleading, and will reimburse each such Selling Holder, its directors,
officers, employee and agents, each such underwriter and each such controlling
Person for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such Loss or actions or proceedings;
provided,
however,
that
the Partnership will not be liable in any such case if and to the extent that
any such Loss arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission so made in conformity with
information furnished by such Selling Holder, its directors, officers, employees
and agents or any underwriter or such controlling Person in writing specifically
for use in the Shelf Registration Statement or such other registration statement
contemplated by this Agreement, or any preliminary prospectus, free writing
prospectus or final prospectus contained therein, or any amendment or supplement
thereto, as applicable. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such Selling Holder
or
any such directors, officers, employees agents or any underwriter or controlling
Person, and shall survive the transfer of such securities by such Selling
Holder.
(b). By
Each Selling Holder.
Each
Selling Holder agrees severally and not jointly to indemnify and hold harmless
the Partnership, its directors, officers, employees and agents and each Person,
if any, who controls the Partnership within the meaning of the Securities Act
or
of the Exchange Act, and its directors, officers, employees and agents, to
the
same extent as the foregoing indemnity from the Partnership to the Selling
Holders, but only with respect to information regarding such Selling Holder
furnished in writing by or on behalf of such Selling Holder expressly for
inclusion in the Shelf Registration Statement or any other registration
statement contemplated by this Agreements, or any preliminary prospectus, free
writing prospectus or final prospectus contained therein, or any amendment
or
supplement thereto.
12
(c). Notice.
Promptly after receipt by an indemnified party hereunder of notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party hereunder, notify the
indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have
to
any indemnified party other than under this Section
2.08.
In any
action brought against any indemnified party, it shall notify the indemnifying
party of the commencement thereof. The indemnifying party shall be entitled
to
participate in and, to the extent it shall wish, to assume and undertake the
defense thereof with counsel reasonably satisfactory to such indemnified party
and, after notice from the indemnifying party to such indemnified party of
its
election so to assume and undertake the defense thereof, the indemnifying party
shall not be liable to such indemnified party under this Section
2.08
for any
legal expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation and of
liaison with counsel so selected; provided,
however,
that,
(i) if the indemnifying party has failed to assume the defense or employ counsel
reasonably acceptable to the indemnified party or (ii) if the defendants in
any
such action include both the indemnified party and the indemnifying party and
counsel to the indemnified party shall have concluded that there may be
reasonable defenses available to the indemnified party that are different from
or additional to those available to the indemnifying party, or if the interests
of the indemnified party reasonably may be deemed to conflict with the interests
of the indemnifying party, then the indemnified party shall have the right
to
select a separate counsel and to assume such legal defense and otherwise to
participate in the defense of such action, with the reasonable expenses and
fees
of such separate counsel and other reasonable expenses related to such
participation to be reimbursed by the indemnifying party as incurred.
Notwithstanding any other provision of this Agreement, no indemnified party
shall settle any action brought against it with respect to which it is entitled
to indemnification hereunder without the consent of the indemnifying party,
unless the settlement thereof imposes no liability or obligation on, and
includes a complete and unconditional release from all liability of, the
indemnifying party.
(d). Contribution.
If the
indemnification provided for in this Section
2.08
is held
by a court or government agency of competent jurisdiction to be unavailable
to
any indemnified party or is insufficient to hold them harmless in respect of
any
Losses, then each such 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 Loss in such proportion as is appropriate
to reflect the relative fault of the indemnifying party on the one hand and
of
such indemnified party on the other in connection with the statements or
omissions which resulted in such Losses, as well as any other relevant equitable
considerations; provided,
however,
that in
no event shall such Selling Holder be required to contribute an aggregate amount
in excess of the dollar amount of proceeds (net of Selling Expenses) received
by
such Selling Holder from the sale of Registrable Securities giving rise to
such
indemnification. The relative fault of the indemnifying party on the one hand
and the indemnified party 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 has been
made
by, or relates to, information supplied by such party, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this paragraph were to be determined
by pro rata allocation or by any other method of allocation which does not
take
account of the equitable considerations referred to herein. The amount paid
by
an indemnified party as a result of the Losses referred to in the first sentence
of this paragraph shall be deemed to include any legal and other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any Loss which is the subject of this paragraph. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who is not
guilty of such fraudulent misrepresentation.
13
(e). Other
Indemnification.
The
provisions of this Section
2.08
shall be
in addition to any other rights to indemnification or contribution which an
indemnified party may have pursuant to law, equity, contract or
otherwise.
Section
2.09. Rule
144 Reporting. With a view to making available the benefits of certain rules
and regulations of the Commission that may permit the sale of the Registrable
Securities to the public without registration, the Partnership agrees to use
its
commercially reasonable efforts to:
(a). Make
and
keep public information regarding the Partnership available, as those terms
are
understood and defined in Rule 144 under the Securities Act, at all times from
and after the date hereof;
(b). File
with
the Commission in a timely manner all reports and other documents required
of
the Partnership under the Securities Act and the Exchange Act at all times
from
and after the date hereof; and
(c). So
long
as a Holder owns any Registrable Securities, furnish to such Holder forthwith
upon request a copy of the most recent annual or quarterly report of the
Partnership, and such other reports and documents so filed as such Holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing such Holder to sell any such securities without
registration.
Section
2.10. Transfer
or Assignment of Registration Rights. The rights to cause the Partnership to
register Registrable Securities granted to the Purchasers by the Partnership
under this Article II may be transferred or assigned by any Purchaser to one
or
more transferee(s) or assignee(s) of such Registrable Securities; provided,
however,
that
(a) unless such transferee is an Affiliate or a swap counterparty of such
Purchaser, each such transferee or assignee holds Registrable Securities
representing at least $20 million of the Purchased Units, based on the purchase
price per unit under the Purchase Agreement, (b) the Partnership is given
written notice prior to any said transfer or assignment, stating the name and
address of each such transferee and identifying the securities with respect
to
which such registration rights are being transferred or assigned, and (c) each
such transferee assumes in writing responsibility for its portion of the
obligations of such Purchaser under this Agreement.
14
Section
2.11. Limitation
on Subsequent Registration Rights. From and after the date hereof, the
Partnership shall not, without the prior written consent of the Holders of
a
majority of the outstanding Registrable Securities, enter into any agreement
with any current or future holder of any securities of the Partnership that
would allow such current or future holder to require the Partnership to include
securities in any registration statement filed by the Partnership on a basis
that is superior in any way to the piggyback rights granted to the Purchasers
hereunder.
MISCELLANEOUS
Section
3.01. Communications.
All notices and other communications provided for or permitted hereunder shall
be made in writing by facsimile, electronic mail, courier service or personal
delivery:
1. if
to
Purchaser, to the address set forth in Schedule 8.07 to the Purchase
Agreement;
2. if
to a
transferee of Purchaser, to such Holder at the address provided pursuant to
Section
2.10
above;
and
3. if
to the
Partnership at 370 17th
Street,
Suite 2775, Denver, Colorado 80202 (facsimile: 303-___-____).
All
such notices and communications shall be deemed to have been received at the
time delivered by hand, if personally delivered; when receipt acknowledged,
if
sent via facsimile or sent via Internet electronic mail; and when actually
received, if sent by courier service or any other means.
Section
3.02. Successor
and Assigns. This Agreement shall inure to the benefit of and be binding
upon the successors and assigns of each of the parties, including subsequent
Holders of Registrable Securities to the extent permitted herein.
Section
3.03. Assignment
of Rights. All or any portion of the rights and obligations of any Purchaser
under this Agreement may be transferred or assigned by such Purchaser in
accordance with Section 2.10 hereof.
Section
3.04. Recapitalization,
Exchanges, Etc. Affecting the Common Units. The provisions of this Agreement
shall apply to the full extent set forth herein with respect to any and all
units of the Partnership or any successor or assign of the Partnership (whether
by merger, consolidation, sale of assets or otherwise) which may be issued
in
respect of, in exchange for or in substitution of, the Registrable Securities,
and shall be appropriately adjusted for combinations, unit splits,
recapitalizations and the like occurring after the date of this
Agreement.
Section
3.05. Specific
Performance. Damages in the event of breach of this Agreement by a party
hereto may be difficult, if not impossible, to ascertain, and it is therefore
agreed that each such Person, in addition to and without limiting any other
remedy or right it may have, will have the right to an injunction or other
equitable relief in any court of competent jurisdiction, enjoining any such
breach, and enforcing specifically the terms and provisions hereof, and each
of
the parties hereto hereby waives any and all defenses it may have on the ground
of lack of jurisdiction or competence of the court to grant such an injunction
or other equitable relief. The existence of this right will not preclude any
such Person from pursuing any other rights and remedies at law or in equity
which such Person may have.
15
Section
3.06. Counterparts.
This Agreement may be executed in any number of counterparts and by different
parties hereto in separate counterparts, including facsimile counterparts,
each
of which counterparts, when so executed and delivered, shall be deemed to be
an
original and all of which counterparts, taken together, shall constitute but
one
and the same Agreement.
Section
3.07. Headings.
The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.
Section
3.08. Governing
Law. The Laws of the State of New York shall govern this Agreement without
regard to principles of conflict of Laws.
Section
3.09. Severability
of Provisions. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof or affecting or impairing the validity or
enforceability of such provision in any other jurisdiction.
Section
3.10. Entire
Agreement. This Agreement is intended by the parties as a final expression
of their agreement and intended to be a complete and exclusive statement of
the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein with respect
to
the rights granted by the Partnership set forth herein. This Agreement and
the
Purchase Agreement supersede all prior agreements and understandings between
the
parties with respect to such subject matter.
Section
3.11. Amendment.
This Agreement may be amended only by means of a written amendment signed by
the
Partnership and the Holders of a majority of the then outstanding Registrable
Securities; provided,
however,
that no
such amendment shall materially and adversely affect the rights of any Holder
hereunder without the consent of such Holder.
Section
3.12. No
Presumption. If any claim is made by a party relating to any conflict,
omission, or ambiguity in this Agreement, no presumption or burden of proof
or
persuasion shall be implied by virtue of the fact that this Agreement was
prepared by or at the request of a particular party or its counsel.
Section
3.13. Aggregation
of Purchased Units. All Purchased Units held or acquired by Persons who are
Affiliates of one another shall be aggregated together for the purpose of
determining the availability of any rights under this Agreement.
16
Section
3.14. Obligations
Limited to Parties to Agreement. Each of the Parties hereto covenants,
agrees and acknowledges that no Person other than the Purchasers shall have
any
obligation hereunder and that, notwithstanding that one or more of the
Purchasers may be a corporation, partnership or limited liability company,
no
recourse under this Agreement or under any documents or instruments delivered
in
connection herewith or therewith shall be had against any former, current or
future director, officer, employee, agent, general or limited partner, manager,
member, stockholder or Affiliate of any of the Purchaser or any former, current
or future director, officer, employee, agent, general or limited partner,
manager, member, stockholder or Affiliate of any of the foregoing, whether
by
the enforcement of any assessment or by any legal or equitable proceeding,
or by
virtue of any applicable Law, it being expressly agreed and acknowledged that
no
personal liability whatsoever shall attach to, be imposed on or otherwise by
incurred by any former, current or future director, officer, employee, agent,
general or limited partner, manager, member, stockholder or Affiliate of any
of
the Purchasers or any former, current or future director, officer, employee,
agent, general or limited partner, manager, member, stockholder or Affiliate
of
any of the foregoing, as such, for any obligations of the Purchasers under
this
Agreement or any documents or instruments delivered in connection herewith
or
therewith or for any claim based on, in respect of or by reason of such
obligation or its creation, except in each case for any assignee of a Purchaser
hereunder.
Section
3.15. Interpretation.
Article and Section references to this Agreement, unless otherwise specified.
All references to instruments, documents, contracts and agreements are
references to such instruments, documents, contracts and agreements as the
same
may be amended, supplemented and otherwise modified from time to time, unless
otherwise specified. The word “including” shall mean “including but not limited
to.” Whenever any determination, consent or approval is to be made or given by a
Purchaser under this Agreement, such action shall be in such Purchaser’s sole
discretion unless otherwise specified.
[Signature
pages to follow]
17
IN
WITNESS WHEREOF, the Parties hereto execute this Agreement, effective as of
the
date first above written.
| DCP MIDSTREAM PARTNERS, LP | ||
| By: |
DCP Midstream Partners GP, LP,
its
General Partner
|
|
| By: |
DCP Midstream Partners GP, LLC,
its
General Partner
|
|
| By: | /s/ Thomas E. Long | |
| Name: | Thomas E. Long | |
| Title: | Vice President and Chief Financial Officer | |
[PURCHASERS]
| GPS INCOME FUND LP | ||
| By: GPS Partners, LLC, its General Partner | ||
| |
|
|
| By: | /s/ Jeff Farron | |
|
Name:
Jeff Farron
Title:
CFO
|
||
| KIDRON PARTNERS III LP | ||
| By:
Kidron
Capital LLC,
Its
general partner
|
||
| |
|
|
| By: | /s/ Chuck Webster | |
|
Chuck
Webster
Managing
Member
|
||
|
ROYAL
BAK OF CANADA
by
its agent
|
||
| RBC CAPITAL MARKETS CORPORATION | ||
| |
|
|
| By: | /s/ Josef Muskafel | |
|
Josef Muskafel Director
and Senior Counsel
|
||
| By: | /s/ David Weiner | |
|
David
Weiner
Managing
Director
|
||
|
TORTOISE
ENERGY INFRASTRUCTURE CORPORATION
|
||
| |
|
|
| By: | /s/ Zachary A. Hamel | |
|
Zachary
A. Hamel
Senior
Vice President
|
||
|
ING
LIVE INSURANCE AND ANNUITY COMPANY
RELIASTAR
LIFE INSURANCE COMPANY
ING
USA ANNUITY AND LIFE INSURANCE
COMPANY
SECURITY
LIFE OF DENVER INSURANCE
COMPANY
RELIASTAR
LIFE INSURACNE COMPANY OF
NEW
YORK
|
||
| By: ING Investment Management LLC as Agent | ||
| |
|
|
| By: | /s/ Steve Newby | |
|
Steve
Newby
Vice
President
|
||
| ENERGY INCOME AND GROWTH FUND | ||
| |
|
|
| By: | /s/ David Lindquist | |
|
Name: David Lindquist |
||
| Title: Vice President | ||
|
FIDUCIARY/CLAYMORE
MLP OPPORTUNITY FUND
|
||
| |
|
|
| By: | /s/ Steven M. Hill | |
|
Name: Steven
M. Hill
Title: Chief
Financial Officer
|
||
| EAGLE INCOME APPRECIATION PARTNERS, L.P. | ||
|
By: Eagle
Income Appreciation GP, LLC
By: Eagle
Global Advisors, LLC
|
||
| |
|
|
| By: | /s/ Malcolm Day | |
|
Name: Malcolm
Day
Title: Partner
|
||
| EAGLE INCOME APPRECIATION II, L.P. | ||
|
By: Eagle
Income Appreciation GP, LLC
By: Eagle
Global Advisors, LLC
|
||
| |
|
|
| By: | /s/ Malcolm Day | |
|
Name: Malcolm Day |
||
| Title: Partner | ||
| HARTZ CAPITAL MLP, LLC | ||
|
By: Hartz
Capital, Inc.,
Its Manager
|
||
| |
|
|
| By: | /s/ Ronald J. Bangs | |
|
Ronald J. Bangs |
||
| Chief Operating Officer | ||
|
THE
NORTHWESTERN MUTUAL LIFE INSURANCE
COMPANY
|
||
| |
|
|
| By: | /s/ Jerome R. Baier | |
|
Jerome
R. Baier
its
authorized representative
|
||
| MSDW STRATEGIC INVESTMENTS, INC. | ||
| |
|
|
| By: | /s/ Alan Thomas | |
|
Name:
Alan Thomas
Title:
Vice President
|
||