REGISTRATION RIGHTS AGREEMENT BY AND AMONG EV ENERGY PARTNERS, L.P. AND THE PURCHASERS NAMED HEREIN
BY
AND AMONG
EV
ENERGY PARTNERS, L.P.
AND
THE
PURCHASERS NAMED HEREIN
THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”)
is
made and entered into as of June 1, 2007 by and among EV Energy Partners, L.P.,
a Delaware limited partnership (the “Company”),
and
the Purchasers named in the signature pages hereto (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 Common Units pursuant to the Common Unit Purchase Agreement,
dated as of the date hereof, by and among the Company and the Purchasers (the
“Purchase
Agreement”);
WHEREAS,
the Company 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 Company 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 are hereby acknowledged by each party hereto, the parties hereby agree
as
follows:
ARTICLE
I
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:
“Agreement”
shall
have the meaning specified in the introductory paragraph.
“Company”
shall
have the meaning specified in the introductory paragraph.
“Determination
Date”
means
the date of determination of the Company described within the meaning of Rule
415 Unavailability Event.
“Effectiveness
Period”
shall
have the meaning specified in Section 2.01(a)(i).
“EnCap
Holders”
means
the EnCap Partnerships or any Affiliate (as defined in the Partnership Agreement
solely for this purpose) of, or owner of an equity interest in, any such Person,
or any transferee of the rights of any such Person set forth in Section 7.12
of
the Partnership Agreement.
“EnCap
Partnerships”
shall
have the meaning specified in the Partnership Agreement.
“EnerVest
Holders”
means
the General Partner, EnerVest Operating LLC, CGAS Exploration, Inc. and EV
Investors, L.P. or any Affiliate (as defined in the Partnership
Agreement
solely for this purpose) of, or owner of an equity interest in, any such Person,
or any transferee of the rights of any such Person set forth in Section 7.12
of
the Partnership Agreement.
“February
27 Registrable Securities”
means
“Registrable Securities” as defined in the February 27 Registration Rights
Agreement.
“February
27 Registration Rights Agreement”
means
the Registration Rights Agreement dated as of February 27, 2007 by and among
the
Company and the purchasers named therein, as filed by the Company with the
Commission as Exhibit 10.2 to Form 8-K on February 28, 2007.
“February
27 Registration Statement”
means
a
“Registration Statement” as defined in the February 27 Registration Rights
Agreement.
“February
27 Selling Holder”
means
a
“Selling Holder” as defined in the February 27 Registration Rights
Agreement.
“Holder”
means
the record holder of any Registrable Securities.
“Included
Registrable Securities”
shall
have the meaning specified in Section 2.02(a).
“Liquidated
Damages”
shall
have the meaning specified in Section 2.01(a)(ii).
“Liquidated
Damages Multiplier”
means,
as to any Purchaser with respect to a Registration Statement required to be
filed under Section 2.01, the number of Purchased Common Units that such
Purchaser would have been entitled to include in such Registration Statement
multiplied by $34.50.
“Losses”
shall
have the meaning specified in Section 2.08(a).
“Managing
Underwriter”
means,
with respect to any Underwritten Offering, the book-running lead manager of
such
Underwritten Offering.
“Opt
Out Notice”
shall
have the meaning specified in Section 2.02(a).
“Purchase
Agreement”
shall
have the meaning specified in the recitals.
“Purchaser”
and
“Purchasers”
shall
have the meanings specified in the introductory paragraph.
“Purchaser
Underwriter Registration Statement”
shall
have the meaning specified in Section 2.04(o).
“Registrable
Securities”
means:
(i) the Purchased Common Units and (ii) any Common Units issued as Liquidated
Damages pursuant to this Agreement, all of which Registrable Securities are
subject to the rights provided herein until such rights terminate pursuant
to
the provisions hereof.
“Registration
Expenses”
shall
have the meaning specified in Section 2.07(a).
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“Registration
Statement”
shall
have the meaning specified in Section 2.01(a)(i).
“Rule
415 Unavailability Event”
means
the reasonable determination by the Company, based
on
the opinion of recognized securities law counsel or written direction by
the
Commission,
following the filing of the Registration Statement within 75 days of the
Closing
Date to permit the resale of all of the Registrable Securities described
in
Section 2.01(a)(i), that it is ineligible to register for resale from time
to
time under Rule 415 (or any similar provision then in force) under the
Securities Act all of the Registrable Securities on such Registration Statement
at such time.
“Selling
Expenses”
shall
have the meaning specified in Section 2.07(a).
“Selling
Holder”
means
a
Holder who is selling Registrable Securities pursuant to a registration
statement.
“Underwritten
Offering”
means
an offering (including an offering pursuant to a Registration Statement)
in
which Common Units are sold to an underwriter on a firm commitment basis
for
reoffering to the public or an offering that is a “bought deal” with one or more
investment banks.
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; (d) such Registrable Security
is held by the Company or one of its Subsidiaries; or (e) 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.
ARTICLE
II
REGISTRATION
RIGHTS
Section
2.01 Registration.
(a) Registration.
(i) Deadline
To Go Effective.
As soon
as practicable following the Closing, but in any event within 75 days of
the
Closing Date (or, solely in respect of a Rule 415 Unavailability Event, within
30 days following the Determination Date), the Company shall prepare and
file a
registration statement (or, solely in respect of a Rule 415 Unavailability
Event, prepare and file such registration statement or amend the previously
filed registration statement) under the Securities Act to permit the resale
of
the Registrable Securities from time to time, including as permitted by Rule
415
(or any similar provision then in force) under the Securities Act with respect
to all of the Registrable Securities (or, solely in respect of a Rule 415
Unavailability Event, the maximum number of Registrable Securities that the
Company reasonably determines, based on the opinion of recognized securities
law
counsel or written direction by the Commission, may be so registered) (each,
a
“Registration
Statement”).
In
the
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event
that a Registration Statement is filed in respect of less than all of the
Registrable Securities, each Purchaser shall be entitled to include a pro
rata
number of Registrable Securities in such Registration Statement, based on
the
Common Unit Price. In the event of a Rule 415 Unavailability Event, the Company
shall file a Registration Statement or amended Registration Statement promptly
following October 1, 2007 (but in no event more than 30 days thereafter)
that
registers for resale all of the Purchased Common Units. The Company shall
use
its commercially reasonable efforts to cause any such Registration Statement
to
become effective no later than 120 days following the Closing Date (or, solely
in respect of a Rule 415 Unavailability Event, no later than 75 days following
the Determination Date). Any Registration Statement filed pursuant to this
Section 2.01 shall be on such appropriate registration form of the Commission
as
shall be selected by the Company. The Company will use its commercially
reasonable efforts to cause any Registration Statement filed pursuant to
this
Section 2.01 to be continuously effective under the Securities Act until
the
earlier of (i) the date as of which all such Registrable Securities are sold
by
the Purchasers and (ii) the date when such Registrable Securities become
eligible for resale under Rule 144(k) (or any similar provision then in force)
under the Securities Act (the “Effectiveness
Period”).
Any
such Registration Statement when declared effective (including the documents
incorporated therein by reference) shall comply as to form with all applicable
requirements of the Securities Act and the Exchange Act and shall 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.
Notwithstanding the foregoing, the Company shall not file any Registration
Statement with the Commission earlier than the initial filing of the
“Registration Statement” as defined in the February 27 Registration Rights
Agreement.
(ii) Failure
To Go Effective.
If any
Registration Statement required by Section 2.01 is not declared effective
within
165 days after the Closing Date (or, solely in respect of a Rule 415
Unavailability Event, by January 1, 2008), then each Purchaser shall be entitled
to a payment with respect to the Purchased Common 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 90 days following the 165th day
after
the Closing Date (or, solely in respect of a Rule 415 Unavailability Event,
per
30-day period for the first 90 days following January 1, 2008), increasing
by an
additional 0.25% of the Liquidated Damages Multiplier per 30-day period for
each
subsequent 30 days, up to a maximum of 1.00% of the Liquidated Damages
Multiplier per 30-day period (the “Liquidated
Damages”);
provided,
however,
that,
with respect to liquidated damages accruing following the 165th day after
the
Closing Date but prior to January 1, 2008, if the Company has made a
determination prior to such time of accrual in accordance with the terms
hereof
that a Rule 415 Unavailability Event has occurred, then such liquidated damages
accruing prior to January 1, 2008 shall accrue and be payable only with respect
to the first one-third of the Purchased Common Units and only to the extent
that
such first one-third of Purchased Common Units are not otherwise covered
by an
effective Registration Statement. The Liquidated Damages payable pursuant
to the
immediately preceding sentence shall accrue daily and be payable within ten
Business Days of the end of each such 30-day period. Any Liquidated Damages
shall be paid to each Purchaser in cash or immediately available funds;
provided,
however,
if the
Company certifies that it is unable to pay Liquidated Damages in cash or
immediately available funds because such payment would result in a breach
under
any of the Company’s or its Subsidiaries’ credit facilities or other
indebtedness filed as exhibits to the Company SEC Documents, then the Company
may pay the Liquidated Damages
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in
kind
in the form of the issuance of additional Common Units. Upon any issuance
of
Common Units as Liquidated Damages, the Company shall promptly prepare and
file
an amendment to the Registration Statement prior to its effectiveness adding
such Common Units to such 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 volume
weighted average closing price of the Common Units on the Stock Exchange
for the
ten trading days immediately preceding the date on which the Liquidated Damages
payment is due, less a discount of 2%. The
payment of Liquidated Damages to a Purchaser shall cease at such time as
the
Purchased Common Units of such Purchaser become eligible for resale under
Rule
144(k) under the Securities Act. As soon as practicable following the date
that
the Registration Statement becomes effective, but in any event within two
Business Days of such date, the Company shall provide the Purchasers with
written notice of the effectiveness of the Registration Statement.
(iii) Waiver
of Liquidated Damages.
If the
Company is unable to cause a Registration Statement to go effective within
the
time periods provided in this Section 2.01 as a result of an acquisition,
merger, reorganization, disposition or other similar transaction, then the
Company may request a waiver of the Liquidated Damages, which may be granted
or
withheld by the consent of the Holders of a majority of the Purchased Common
Units, in their sole discretion. A Purchaser’s rights (and any transferee’s
rights pursuant to Section 2.10) under this Section 2.01 shall terminate
upon
the earlier of (i) when all such Registrable Securities are sold by such
Purchaser or transferee, as applicable, and (ii) when such Registrable
Securities become eligible for resale under Rule 144(k) (or any similar
provision then in force) under the Securities Act.
(b) Delay
Rights.
Notwithstanding anything to the contrary contained herein, the Company may,
upon
written notice to any Selling Holder whose Registrable Securities are included
in the Registration Statement, suspend such Selling Holder’s use of any
prospectus that is a part of the Registration Statement (in which event the
Selling Holder shall discontinue sales of the Registrable Securities pursuant
to
the Registration Statement, but such Selling Holder may settle any such sales
of
Registrable Securities) if (i) the Company is pursuing an acquisition, merger,
reorganization, disposition or other similar transaction and the Company
determines in good faith that the Company’s ability to pursue or consummate such
a transaction would be materially adversely affected by any required disclosure
of such transaction in the Registration Statement or (ii) the Company has
experienced some other material non-public event the disclosure of which
at such
time, in the good faith judgment of the Company, would materially adversely
affect the Company; 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. Upon
disclosure of such information or the termination of the condition described
above, the Company shall provide prompt notice to the Selling Holders whose
Registrable Securities are included in the Registration Statement, 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.
(c) Additional
Rights to Liquidated Damages.
If (i)
the Holders shall be prohibited from selling their Registrable Securities
under
the Registration Statement as a result of a suspension pursuant to Section
2.01(b) in excess of the periods permitted therein or (ii) the
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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
Registration Statement, a supplement to the prospectus or a report filed
with
the Commission pursuant to Section 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 Company 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(b) or
(y) the
day after the 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(c), 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.
(d) Maximum
Liquidated Damages.
Notwithstanding anything to the contrary in this Agreement, (i) the aggregate
amount of the Liquidated Damages payable by the Company under this Agreement
to
each Purchaser shall not exceed 10% of the Liquidated Damages Multiplier
with
respect to such Purchaser and (ii) if there is a change in the Law or accounting
principles generally accepted in the United States that would result in the
Purchased Common Units being treated as debt securities instead of equity
securities for purposes of the Company’s financial statements, then the
aggregate amount of the Liquidated Damages payable by the Company under this
Agreement to each Purchaser shall not exceed the maximum amount of the
Liquidated Damages Multiplier with respect to such Purchaser allowed for
the
Purchased Common Units not to be treated as debt securities for purposes
of the
Company’s financial statements.
(e) No
Obligation for Primary Offering by Purchasers.
If (i)
the Commission deems the registration of any Registrable Securities to be
a
primary offering by the Company or the Purchasers and (ii) the Commission
prohibits the use of Rule 415 under the Securities Act (or any similar provision
then in force) to sell Registrable Securities on a delayed or continuous
basis,
then no Purchaser shall be obligated to commit to any such primary offering
to
allow the Registration Statement to be declared effective by the Commission.
For
the avoidance of doubt, the Company shall be required to pay Liquidated Damages
to the Purchasers in accordance with the terms of this Agreement regardless
of
any Purchaser’s failure to commit to any such primary offering to allow the
Registration Statement to be declared effective by the Commission.
Section
2.02 Piggyback
Rights.
(a) Participation.
If at
any time the Company proposes to file (i) a prospectus supplement to an
effective shelf registration statement, other than the Registration Statement
contemplated by Section 2.01, 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 Business Days prior to the filing of
(x) any
preliminary prospectus supplement relating to such Underwritten Offering
pursuant to Rule 424(b) under the Securities Act, (y) the prospectus supplement
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,
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then
the
Company 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,
however,
that if
the Company 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 and
receipt of such notice shall be confirmed by such Holder. Each
such
Holder shall then have three 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,
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 Company shall determine for any reason not to undertake or to delay such
Underwritten Offering, the Company 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. Any Selling Holder shall have the right to withdraw
such
Selling Holder’s request for inclusion of such Selling Holder’s Registrable
Securities in such offering by giving written notice to the Company of such
withdrawal up to and including the time of pricing of such offering. No Holder’s
rights under this Section 2.02(a) shall apply at any time when such Holder
(together with any Affiliates of such Holder) holds less than $5,000,000
of
Purchased Common Units, based on the Common Unit Price. Notwithstanding
the foregoing, any Holder may deliver written notice (an “Opt
Out Notice”)
to the
Company requesting that such Holder not receive notice from the Company of
any
proposed Underwritten Offering; provided,
that
such Holder may later revoke any such notice.
(b) Priority
of Rights.
If the
Managing Underwriter or Underwriters of any proposed Underwritten Offering
of
Common Units included in an Underwritten Offering involving Included Registrable
Securities advises the Company, or the Company reasonably determines, 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 the Company, or the Company reasonably determines, can
be
sold without having such adverse effect, with such number to be allocated
(i)
first, to the Company, (ii) second, if the EnCap Holders have exercised their
demand registration rights provided for in the Partnership Agreement, to
the
EnCap Holders, and (iii) third, pro rata
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among
the
Selling Holders, the EnCap Holders (to the extent that they have not exercised
their demand registration rights provided for in the Partnership Agreement),
the
EnerVest Holders and the February 27 Selling Holders who have requested
participation in such Underwritten Offering. The pro rata allocations for
each
such Selling Holder, EnCap Holder, EnerVest Holder and February 27 Selling
Holder shall be the product of (a) the aggregate number of Common Units proposed
to be sold by all of the Selling Holders, EnCap Holders, EnerVest Holders
and
February 27 Selling Holders in such Underwritten Offering multiplied by (b)
the
fraction derived by dividing (x) the number of Registrable Securities (in
the
case of a Selling Holder), Common Units (in the case of an EnCap Holder or
EnerVest Holder) or February 27 Registrable Securities (in the case of a
February 27 Selling Holder) owned on the date of the notice of the proposed
Underwritten Offering required by Section 2.02(a) by such Person by (y) the
aggregate of the number of Registrable Securities owned by the Selling Holders
on such date, the number of Common Units owned by the EnCap Holders and the
EnerVest Holders on such date and the number of February 27 Registrable
Securities owned by the February 27 Selling Holders on such date, in each
case
to the extent that such Selling Holders, EnCap Holders, EnerVest Holders
and
February 27 Selling Holders are participating in the Underwritten Offering.
As
of the date of execution of this Agreement, there are no other Persons with
Registration Rights relating to Common Units other than as described in this
Section 2.02(b).
Section
2.03 Underwritten
Offering.
(a) Request
for Underwritten Offering.
Any one
or more Holders that collectively hold greater than $15,000,000 of Registrable
Securities, based on the Common Unit Price, may deliver written notice to
the
Company that such Holders wish to dispose of an aggregate of at least
$15,000,000 of Registrable Securities, based on the Common Unit Price, in
an
Underwritten Offering. Upon receipt of any such written request, the Company
shall retain underwriters, effect such sale though an Underwritten Offering,
including entering into an underwriting agreement in customary form with
the
Managing Underwriter or Underwriters, which shall include, among other
provisions, indemnities to the effect and to the extent provided in Section
2.08, and take all reasonable actions as are requested by the Managing
Underwriter or Underwriters to expedite or facilitate the disposition of
such
Registrable Securities; provided,
however,
that
management of the Company will not be required to participate in any roadshow
or
similar marketing effort on behalf of any such Holder.
(b) General
Procedures.
In
connection with any Underwritten Offering under this Agreement, the Company
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 Company 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 Company to
and
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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 Company or the
underwriters other than representations, warranties or agreements regarding
such
Selling Holder and its ownership of the securities being registered on its
behalf, its intended method of distribution and any other representation
required by Law. If any Selling Holder disapproves of the terms of an
underwriting, such Selling Holder may elect to withdraw therefrom by notice
to
the Company and the Managing Underwriter; provided,
however,
that
such withdrawal must be made up to and including the time of pricing of such
Underwritten Offering. No such withdrawal or abandonment shall affect the
Company’s obligation to pay Registration Expenses.
Section
2.04 Sale
Procedures.
In
connection with its obligations under this Article II, the Company will,
as
expeditiously as possible:
(a) prepare
and file with the Commission such amendments and supplements to the Registration
Statement and the prospectus used in connection therewith as may be necessary
to
keep the 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 Registration
Statement;
(b) if
a
prospectus supplement will be used in connection with the marketing of an
Underwritten Offering from the Registration Statement and the Managing
Underwriter at any time shall notify the Company 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, 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 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 Registration Statement
or
such other registration statement or supplement or amendment thereto, and
(ii)
such number of copies of the 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
Registration Statement or other registration statement;
(d) if
applicable, use its commercially reasonable efforts to register or qualify
the
Registrable Securities covered by the Registration Statement or any other
registration
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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 Company 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 that would subject it to general service of process in any such
jurisdiction where it is not then so subject;
(e) promptly
notify each Selling Holder and each underwriter of Registrable Securities,
at
any time when a prospectus relating thereto is required to be delivered by
any
of them under the Securities Act, of (i) the filing of the 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 Registration
Statement or any other registration statement 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
Registration Statement or any other registration statement or any prospectus
or
prospectus supplement thereto;
(f) immediately
notify each Selling Holder and each underwriter of Registrable Securities,
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 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 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 Company 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 Company 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) upon
request and subject to appropriate confidentiality obligations, furnish to
each
Selling Holder copies of any and all transmittal letters or other correspondence
with the Commission or any other governmental agency or self-regulatory body
or
other body having jurisdiction (including any domestic or foreign securities
exchange) relating to such offering of Registrable Securities;
(h) in
the
case of an Underwritten Offering, furnish upon request, (i) an opinion of
counsel for the Company 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
-10-
date
of
the closing under the underwriting agreement, and (ii) a “cold comfort” letter,
dated the 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, in each case, signed by the
independent public accountants who have certified the Company’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 are customarily covered in opinions of issuer’s
counsel and in accountants’ letters delivered to the underwriters in
Underwritten Offerings of securities and such other matters as such underwriters
or Selling Holders may reasonably request;
(i) 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;
(j) make
available to the appropriate representatives of the Managing Underwriter
and
Selling Holders access to such information and Company personnel as is
reasonable and customary to enable such parties to establish a due diligence
defense under the Securities Act; provided,
however,
that
the Company need not disclose any such information to any such representative
unless and until such representative has entered into or is otherwise subject
to
a confidentiality agreement with the Company satisfactory to the Company
(including any confidentiality agreement referenced in Section 8.06 of the
Purchase Agreement);
(k) 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 Company are then listed;
(l) 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 Company
to
enable the Selling Holders to consummate the disposition of such Registrable
Securities;
(m) 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;
(n) 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
(o) 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 registration
statement in respect of any registration of the Company’s securities of any
Purchaser pursuant to this Agreement, and any amendment or supplement thereof
(any such registration statement or amendment or supplement a “Purchaser
Underwriter Registration Statement”),
cooperate with such Purchaser in allowing such Purchaser to conduct customary
“underwriter’s due diligence”
-11-
with
respect to the Company and satisfy its obligations in respect thereof. In
addition, at any Purchaser’s request, the Company will furnish to such
Purchaser, on the date of the effectiveness of any Purchaser Underwriter
Registration Statement and thereafter from time to time on such dates as
such
Purchaser may reasonably request, (i) a letter, dated such date, from the
Company’s independent certified public accountants in form and substance as is
customarily given by independent certified public accountants to underwriters
in
an underwritten public offering, addressed to such Purchaser, and (ii) an
opinion, dated as of such date, of counsel representing the Company for purposes
of such Purchaser Underwriter Registration Statement, in form, scope and
substance as is customarily given in an underwritten public offering, including
a standard “10b-5” opinion for such offering, addressed to such Purchaser. The
Company will also permit legal counsel to such Purchaser to review and comment
upon any such Purchaser Underwriter Registration Statement at least five
Business Days prior to its filing with the Commission and all amendments
and
supplements to any such Purchaser Underwriter Registration Statement within
a
reasonable number of days prior to their filing with the Commission and not
file
any Purchaser Underwriter Registration Statement or amendment or supplement
thereto in a form to which such Purchaser's legal counsel reasonably
objects.
Each
Selling Holder, upon receipt of notice from the Company of the happening
of any
event of the kind described in Section 2.04(f), 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 Section
2.04(f) or until it is advised in writing by the Company 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 Company, such Selling Holder will, or will request the managing
underwriter or underwriters, if any, to deliver to the Company (at the Company’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.
If
requested by a Purchaser, the Company shall: (i) as soon as practicable
incorporate in a prospectus supplement or post-effective amendment such
information as such Purchaser reasonably requests to be included therein
relating to the sale and distribution of Registrable Securities, including
information with respect to the number of Registrable Securities being offered
or sold, the purchase price being paid therefor and any other terms of the
offering of the Registrable Securities to be sold in such offering; (ii)
as soon
as practicable make all required filings of such prospectus supplement or
post-effective amendment after being notified of the matters to be incorporated
in such prospectus supplement or post-effective amendment; and (iii) as soon
as
practicable, supplement or make amendments to any Registration
Statement.
Section
2.05 Cooperation
by Holders.
The
Company shall have no obligation to include in the Registration Statement
Common
Units of a Holder, or in an Underwritten Offering pursuant to Section 2.02
Common Units of a Selling Holder, who has failed to timely furnish such
information that, in the opinion of counsel to the Company, is reasonably
required in order for the registration statement or prospectus supplement,
as
applicable, to comply with the Securities Act.
-12-
Section
2.06 Restrictions
on Public Sale by Holders of Registrable Securities.
For a
period of 365 days from the Closing Date, each Holder of Registrable Securities
who is included in the 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
Company (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 Company on whom a
restriction is imposed in connection with such public offering. In
addition, the provisions of this Section 2.06 shall not apply with respect
to a
Holder that (A) owns less than $5,000,000 of Purchased
Common Units,
based
on the Common
Unit Price,
(B) has
delivered an Opt Out Notice to the
Company
pursuant
to Section 2.02 or (C) has submitted a notice requesting the inclusion of
Registrable Securities in an Underwritten Offering pursuant to Section 2.02
or
Section 2.03(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) Certain
Definitions.
“Registration
Expenses”
means
all expenses incident to the Company’s performance under or compliance with this
Agreement to effect the registration of Registrable Securities on the
Registration Statement pursuant to Section 2.01 or an Underwritten Offering
covered under this Agreement, and the disposition of such securities, including
all registration, filing, securities exchange listing and Stock Exchange
fees,
all registration, filing, qualification and other fees and expenses of complying
with securities or blue sky laws, fees of the National Association of Securities
Dealers, Inc., transfer taxes and fees of transfer agents and registrars,
all
word processing, duplicating and printing expenses and the fees and
disbursements of counsel and independent public accountants for the Company,
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.
(b) Expenses.
The
Company 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. In addition, except
as
otherwise provided in Section 2.08, the Company shall not be responsible
for
legal fees incurred by Holders in connection with the exercise of such Holders’
rights hereunder. Each Selling Holder shall pay all Selling Expenses in
connection with any sale of its Registrable Securities hereunder.
Section
2.08 Indemnification.
(a) By
the
Company.
In the
event of an offering of any Registrable Securities under the Securities Act
pursuant to this Agreement, the Company 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 or underwriter within the meaning of the Securities
Act and the Exchange Act, and its directors, officers, employees and agents,
against any losses, claims, damages, expenses or liabilities (including
reasonable attorneys’ fees and expenses) (collectively, “Losses”),
joint
or several, to
-13-
which
such Selling Holder, director, officer, employee, agent, 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 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 thereof, 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, employees 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 Company 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 strict conformity with
information furnished by such Selling Holder, its directors, officers, employees
or agents or any underwriter or controlling Person in writing specifically
for
use in the Registration Statement or such other registration statement, or
prospectus supplement, 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 Selling Holder, its directors, officers, employees or
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 Company, its directors, officers, employees and agents, and each Person,
if
any, who controls the Company 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 Company 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
Registration Statement or any preliminary prospectus or final prospectus
included therein, or any amendment or supplement thereto; provided,
however,
that
the liability of each Selling Holder shall not be greater in amount than
the
dollar amount of the proceeds (net of any Selling Expenses) received by such
Selling Holder from the sale of the Registrable Securities giving rise to
such
indemnification.
(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 that 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
-14-
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 indemnifying party
shall settle any action brought against an indemnified party with respect
to
which it is entitled to indemnification hereunder without the consent of
the
indemnified party, unless the settlement thereof imposes no liability or
obligation on, and includes a complete and unconditional release from all
liability of, the indemnified 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 that 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 that 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 that 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.
(e) Other
Indemnification.
The
provisions of this Section 2.08 shall be in addition to any other rights
to
indemnification or contribution that an indemnified party may have pursuant
to
law, equity, contract or otherwise.
-15-
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 Company agrees to use its commercially reasonable
efforts to:
(a) make
and
keep public information regarding the Company 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 Company 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, unless otherwise not
available at no charge by access electronically to the Commission’s ▇▇▇▇▇ filing
system, to such Holder forthwith upon request a copy of the most recent annual
or quarterly report of the Company, 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 Company to register Registrable Securities granted to
the
Purchasers by the Company 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 or by total return swap; provided,
however,
that,
except with respect to a total return swap, (a) unless such transferee is
an
Affiliate of such Purchaser, each such transferee or assignee holds Registrable
Securities representing at least $10,000,000 of the Purchased Common Units,
based on the Common Unit Price, (b) the Company 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.
Section
2.11 Limitation
on Subsequent Registration Rights.
From
and after the date hereof, the Company shall not, without the prior written
consent of the Holders of a majority of the outstanding Registrable Securities,
(i) enter into any agreement with any current or future holder of any securities
of the Company that would allow such current or future holder to require
the
Company to include securities in any registration statement filed by the
Company
on a basis that is superior in any way to the piggyback rights granted to
the
Purchasers hereunder or (ii) grant registration rights to any other Person
that
would be superior to the Purchasers’ registration rights hereunder.
ARTICLE
III
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:
-16-
(a) if
to the
Company or a Purchaser, to the address set forth in Section 8.07 of the Purchase
Agreement in accordance with the provisions of this Section 3.01;
and
(b) if
to a
transferee of a Purchaser, to such Holder at the address provided pursuant
to
Section 2.10.
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 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 Aggregation
of Purchased Common Units.
All
Purchased Common 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. In addition, all Registrable
Securities held or acquired by Fiduciary/Claymore MLP Opportunity Fund and
its
Affiliates, on the one hand, and Energy Income and Growth Fund and its
Affiliates, on the other hand, shall be aggregated together for purposes
of
determining the availability of any rights under this Agreement.
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 Company or any successor or assign
of
the Company (whether by merger, consolidation, sale of assets or otherwise)
that
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 that such Person may
have.
Section
3.06 Counterparts.
This
Agreement may be executed in any number of counterparts and by different
parties
hereto in separate 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.
-17-
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 that 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 Company 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
Company 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 Obligations
Limited to Parties to Agreement.
Each of
the Parties hereto covenants, agrees and acknowledges that no Person other
than
the Purchasers (and their permitted assignees) 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 Purchase 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 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 be 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 Purchase 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.
-18-
Section
3.14 Interpretation.
Article
and Section 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 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.
-19-
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date
first
written above.
EV
ENERGY
PARTNERS, L.P.
By:
EV
ENERGY GP, L.P., its general partner
By:
EV
MANAGEMENT, L.L.C., its general partner
By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
Senior
Vice President and Chief Financial Officer
STRUCTURED
FINANCE AMERICAS LLC
By:
/s/
▇▇▇▇▇
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
VP
STRUCTURED
FINANCE AMERICAS LLC
By:
/s/
▇▇▇▇
▇ ▇▇▇▇▇▇▇ NJB
Name:
▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Title:
VP
Registration
Rights Agreement
Signature
Page
▇▇▇▇▇▇
BROTHERS MLP OPPORTUNITY
FUND L.P.
By:
/s/
▇▇▇▇
▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇
Title:
Vice President
Registration
Rights Agreement
Signature
Page
FIDUCIARY/CLAYMORE
MLP OPPORTUNITY
FUND
By:
/s/
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ ▇▇.
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇
Title:
Vice President
Registration
Rights Agreement
Signature
Page
ROYAL
BANK OF CANADA
By
its agent RBC Capital Markets Corporation
By:
/s/
▇▇▇▇▇
▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Director and Senior Counsel
By:
/s/
▇▇▇▇▇
▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Managing Director
Registration
Rights Agreement
Signature
Page
TORTOISE
CAPITAL RESOURCES CORPORATION
By:
/s/
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Chief Executive Officer
Registration
Rights Agreement
Signature
Page
ENERGY
INCOME AND GROWTH FUND
By:
/s/
▇▇▇▇
▇▇▇▇▇▇
Name:
Title:
Registration
Rights Agreement
Signature
Page
SWANK
MLP CONVERGENCE FUND, LP
By:
/s/
▇▇▇▇▇
▇. ▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Managing Partner
Registration
Rights Agreement
Signature
Page
THE
▇▇▇▇▇▇▇ MLP OPPORTUNITY FUND
I, LP
By:
/s/
▇▇▇▇▇
▇. ▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Managing Partner
Registration
Rights Agreement
Signature
Page
ZLP
FUND, L.P.
By:
/s/
▇▇▇▇▇
▇. ▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Managing Member
Registration
Rights Agreement
Signature
Page
▇▇▇▇▇
CAPITAL MLP, LLC
By:
▇▇▇▇▇
Capital, Inc.,
Its
Manager
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇
▇.
▇▇▇▇▇
Chief
Operating Officer
Registration
Rights Agreement
Signature
Page
ALERIAN
OPPORTUNITY PARTNERS VI,
LP
By:
its
General Partner, Alerian Opportunity
Advisors
VI LLC
By:
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Managing Member
Registration
Rights Agreement
Signature
Page
ALERIAN
FOCUS PARTNERS LP
By:
its
General Partner, Alerian Focus Advisors
LLC
By:
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Managing Member
Registration
Rights Agreement
Signature
Page
ALERIAN
CAPITAL PARTNERS LP
By:
its
General Partner, Alerian Capital Advisors
LLC
By:
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Managing Member
Registration
Rights Agreement
Signature
Page
CREDIT
SUISSE MANAGEMENT LLC
By:
/s/
▇▇▇▇▇
▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Managing Director
Registration
Rights Agreement
Signature
Page
ISLA
▇. ▇▇▇▇▇▇▇▇ T/U/W ▇.▇.
▇▇▇▇▇▇▇▇▇
SALIENT TRUST CO.
By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as
agent
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
President
Registration
Rights Agreement
Signature
Page
▇▇▇▇
▇▇▇▇▇▇▇, ▇▇. T/U/W ▇.▇.
▇▇▇▇▇▇▇▇▇
SALIENT TRUST CO.
By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as
agent
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
President
Registration
Rights Agreement
Signature
Page
SALIENT
TOTAL RETURN FUND QP, L.P.
By:
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
Managing Director
Registration
Rights Agreement
Signature
Page
SALIENT
TOTAL RETURN FUND, L.P.
By:
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
Managing Director
Registration
Rights Agreement
Signature
Page
GPS
NEW EQUITY FUND LP
By:
/s/
▇▇▇▇▇
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Managing Partner, GPS Partners LLC
Registration
Rights Agreement
Signature
Page