EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of July 8, 2005, by and among ▇▇▇▇▇ Energy Partners, L.P., a
Delaware limited partnership ("HEP"), and FIDUCIARY/CLAYMORE MLP OPPORTUNITY
FUND, a Delaware closed-end management investment company, PERRY PARTNERS, L.P.,
a Delaware limited partnership, STRUCTURED FINANCE AMERICAS, LLC, a Delaware
limited liability company, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ MLP INVESTMENT COMPANY, a Maryland
closed-end management investment company, and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ENERGY TOTAL RETURN
FUND, INC., a Maryland closed-end management investment company (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 July 6, 2005, by and among HEP and the
Purchasers (the "Purchase Agreement");
WHEREAS, HEP 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
HEP 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:
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:
"Effectiveness Period" has the meaning specified therefor in Section
2.01 of this Agreement.
"Holder" means the record holder of any Registrable Securities.
"▇▇▇▇▇" means ▇▇▇▇▇ Corporation, a Delaware corporation.
"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(a) of this Agreement.
"Losses" has the meaning specified therefor in Section 2.08(a) of
this Agreement.
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"Managing Underwriter" means, with respect to any Underwritten
Offering, the book-running lead manager of such Underwritten Offering.
"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 the Purchased Units, all of which 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(a) of this Agreement.
"Selling Expenses" has the meaning specified therefor in Section
2.07(a) 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 of the Securities Act (or any
similar provision then in force under the Securities Act).
"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 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 is held by HEP or one
of its subsidiaries; or (d) 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. Shelf Registration.
(a) Shelf Registration. As soon as practicable following the
Closing, but in any event within 90 days of the Closing, HEP shall prepare and
file a Shelf Registration Statement under the Act with respect to all of the
Registrable Securities. HEP shall use its commercially reasonable efforts to
cause the Shelf Registration Statement to become effective no
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later than 180 days after the date of the Closing. A Shelf Registration
Statement filed pursuant to this Section 2.01 shall be on such appropriate
registration form of the Commission as shall be selected by HEP; provided,
however, that 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 HEP 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, HEP shall use its
commercially reasonable efforts to include such information in the prospectus.
HEP 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 earlier of (i) when all such Registrable Securities
are sold by the Purchasers or (ii) two years from the date the Shelf
Registration Statement is declared effective by the Commission (the
"Effectiveness Period"). The Shelf Registration Statement when declared
effective (including the documents incorporated therein by reference) will
comply as to form 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. If the Shelf Registration Statement is not
declared effective within 180 days after Closing, then each Purchaser shall be
entitled to a payment (with respect to each of such Purchaser's Purchased
Units), as liquidated damages and not as a penalty, of 1/30th of .25% of the
aggregate Purchase Price for such Purchaser's Purchased Units per day for the
first 60 days following the 180th day, increasing by an additional 1/30th of
..25% of the aggregate Purchase Price for such Purchaser's Purchased Units per
day for each subsequent 60 days, up to a maximum of 1/30th of 1.00% of the
aggregate Purchase Price for such Purchaser's Purchased Units per day (the
"Liquidated Damages"), which shall be payable in cash within 10 Business Days of
the end of each 30-day period during which Liquidated Damages are payable.
(b) Delay Rights. Notwithstanding anything to the contrary contained
herein, HEP 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) HEP
is pursuing an acquisition, merger, reorganization, disposition or other similar
transaction and HEP determines in good faith that HEP'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) HEP has experienced some other material non-public event the disclosure of
which at such time, in the good faith judgment of HEP, would materially
adversely affect HEP; provided, however, in no event shall the Purchasers be
suspended for a period exceeding an aggregate of 90 days (exclusive of days
covered by any lock-up agreement executed by a Purchaser in connection with any
Underwritten Offering by HEP or a Purchaser) in any 365-day period. Upon
disclosure of such information or the termination of the condition described
above, HEP 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.
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Section 2.02. Piggyback Rights.
(a) Participation. If at any time HEP proposes to file (i) a
prospectus supplement to an effective shelf registration statement, including
the Shelf 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 (3) Business Days prior to the filing of (x) any preliminary prospectus
supplement relating to such Underwritten Offering pursuant to Rule 424(b), (y)
the prospectus supplement relating to such Underwritten Offering pursuant to
Rule 424(b) (if no preliminary prospectus supplement is used) or (z) such
registration statement as the case may be, then, HEP 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 HEP has been advised
by the Managing Underwriter that the inclusion of Registrable Securities for
sale for the benefit of the Holders will have an adverse effect on the price,
timing or distribution of the Common Units, 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 and receipt of such notice shall be confirmed by Holder.
Holder shall then have twenty-four hours after such Holder confirms receipt of
the notice to request inclusion of Registrable Securities in the Underwritten
Offering. 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, HEP shall determine for any reason not to undertake or to
delay such Underwritten Offering, HEP 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 HEP of such withdrawal
up to and including the time of pricing of such offering. Each Holder's rights
under this Section 2.02(a) shall terminate when such Holder holds less than five
million dollars ($5,000,000) worth of Purchased Units.
(b) Priority of Piggyback 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 HEP
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 an 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 HEP can be sold without having such adverse effect, with
such number to
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be allocated (i) first, to HEP; and (ii) second, pro rata among the Selling
Holders and ▇▇▇▇▇ (solely with respect to the 70,000 Common Units issued to
▇▇▇▇▇ pursuant to the Pipeline Acquisition Agreement) who have requested
participation in such Underwritten Offering based, for each such Selling Holder
or ▇▇▇▇▇, as applicable, on the fraction derived by dividing (x) the number of
Common Units proposed to be sold by such Selling Holder or ▇▇▇▇▇ in such
Underwritten Offering by (y) the aggregate number of Common Units proposed to be
sold by all Selling Holders and ▇▇▇▇▇ in such Underwritten Offering.
Section 2.03. Underwritten Offering.
(a) S-3 Registration. If a Selling Holder elects to dispose of
Registrable Securities under the Shelf Registration Statement pursuant to an
Underwritten Offering and reasonably anticipates gross proceeds of greater than
$20 million from such Underwritten Offering, HEP shall, at the request of such
Selling Holder, enter 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 shall take all such other reasonable actions as are requested by the
Managing Underwriter to expedite or facilitate the disposition of the
Registrable Securities; provided however, HEP management will not be required to
participate in any roadshow or similar marketing effort on behalf of any Selling
Holder.
(b) General Procedures. In connection with any Underwritten Offering
under this Agreement, HEP shall be entitled to select the Managing Underwriter
or Underwriters. In connection with an Underwritten Offering under Section 2.01
or Section 2.03 hereof, each Selling Holder and HEP 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, HEP 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 HEP or the
underwriters other than representations, warranties or agreements regarding such
Selling Holder and its ownership of the securities being registered on its
behalf and 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
HEP and the Managing Underwriter; provided, however, that such withdrawal must
be made prior to the time in the penultimate sentence of Section 2.02(a) hereof
to be effective. No such withdrawal or abandonment shall affect HEP's obligation
to pay Registration Expenses.
Section 2.04. Sale Procedures. In connection with its obligations
contained in Section 2.01 and Section 2.03, HEP will, as expeditiously as
possible:
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(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) 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 other registration statement;
(c) 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 HEP 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;
(d) 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 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 or any prospectus or prospectus supplement
thereto;
(e) 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
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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 HEP 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, HEP 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;
(f) 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;
(g) in the case of an Underwritten Offering, furnish upon request,
(i) an opinion of counsel for HEP, 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 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, in each case, signed by the independent public
accountants who have certified HEP'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 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;
(i) make available to the appropriate representatives of the
Managing Underwriter and Selling Holders access to such information and HEP
personnel as is reasonable and customary to enable such parties to establish a
due diligence defense under the Securities Act; provided, however, that HEP need
not disclose any information to any such representative unless and until such
representative has entered into a confidentiality agreement with HEP;
(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 HEP are then listed;
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(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
HEP 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; and
(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.
Each Selling Holder, upon receipt of notice from HEP of the happening of any
event of the kind described in subsection (e) 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 (e) of this Section 2.04 or until it is advised in
writing by HEP 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 HEP, such Selling Holder will, or will
request the managing underwriter or underwriters, if any, to deliver to HEP (at
HEP'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. HEP shall have no obligation to
include in the Shelf Registration Statement units of a Holder or in a
Underwritten Offering pursuant to Section 2.02 units of a Selling Holder who has
failed to timely furnish such information that, in the opinion of counsel to
HEP, 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. 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 calendar day period following
completion of a public offering of equity securities by HEP, 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 HEP on whom a restriction
is imposed and provided further that such Selling Holder owns more than five
million dollars ($5,000,000) worth of the Purchased Units.
Section 2.07. Expenses.
(a) Certain Definitions. "Registration Expenses" means all expenses
incident to HEP's performance under or compliance with this Agreement to effect
the registration of Registrable Securities the Shelf Registration Statement
pursuant to Section 2.01, an Underwritten Offering pursuant to Section 2.02 or
Section 2.03, and the disposition of such securities, including, without
limitation, all registration, filing, securities exchange listing and The New
York 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
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Dealers, Inc., transfer taxes and fees of transfer agents and registrars, all
word processing, duplicating and printing expenses, the fees and disbursements
of counsel and independent public accountants for HEP, including the expenses of
any special audits or "cold comfort" letters required by or incident to such
performance and compliance. Except as otherwise provided in Section 2.08 hereof,
HEP shall not be responsible for legal fees incurred by Holders in connection
with the exercise of such Holders' rights hereunder. In addition, HEP shall not
be responsible for any "Selling Expenses," which means all underwriting fees,
discounts and selling commissions allocable to the sale of the Registrable
Securities.
(b) Expenses. HEP will pay all reasonable Registration Expenses,
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.
Section 2.08. Indemnification.
(a) By HEP. In the event of a registration of any Registrable
Securities under the Securities Act pursuant to this Agreement, HEP will
indemnify and hold harmless each Selling Holder thereunder, its directors and
officers, 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, against any losses, claims,
damages, expenses or liabilities (including reasonable attorneys' fees and
expenses) (collectively, "Losses"), joint or several, to which such Selling
Holder 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 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 and officers, 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 HEP 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, such underwriter
or such controlling Person in writing specifically for use in the Shelf
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 director, officer 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 HEP, its directors and officers, and
each Person, if any, who controls HEP within the meaning of the Securities Act
or of the Exchange Act to the same
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extent as the foregoing indemnity from HEP 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 prospectus supplement relating to the Registrable
Securities, 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 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 and employ counsel 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
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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.
(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, HEP
agrees to use its commercially reasonable efforts to:
(a) Make and keep public information regarding HEP available, as
those terms are understood and defined in Rule 144 of 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 HEP 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 HEP, 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 HEP to register Registrable Securities granted to the Purchasers by HEP
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 of such Purchaser, each
such transferee or assignee holds Registrable Securities representing at least
five million dollars ($5,000,000) worth of the Purchased Units sold pursuant to
the terms of the Purchase Agreement (except that a Purchaser who purchases less
than $5 million dollars ($5,000,000) worth of Purchased Units may assign or
transfer such registration rights if such Purchaser transfers its Purchased
Units as an entirety), (b) HEP is given written notice prior to
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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, HEP 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 HEP that would
allow such current or future holder to require HEP to include securities in any
registration statement filed by HEP on a basis that is superior in any way to
the piggyback rights granted to Purchaser 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,
courier service or personal delivery:
(a) if to Purchaser, to the address set forth under that Purchaser's
signature block in accordance with the provisions of this Section 3.01,
(b) if to a transferee of Purchaser, to such Holder at the address
provided pursuant to Section 2.10 above, and
(c) if to HEP, at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, notice of which is given in accordance with the provisions of this
Section 3.01.
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 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. 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 3.05. 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 HEP or any successor or assign of
HEP (whether by merger, consolidation, sale of assets or otherwise) which may be
issued in respect of, in exchange for or in substitution of, the
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Registrable Securities, and shall be appropriately adjusted for combinations,
recapitalizations and the like occurring after the date of this Agreement.
Section 3.06. 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.
Section 3.07. 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 3.08. Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
Section 3.09. Governing Law. The laws of the State of Delaware shall
govern this Agreement without regard to principles of conflict of laws.
Section 3.10. 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 3.11. 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 HEP set forth herein. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
Section 3.12. Amendment. This Agreement may be amended only by means of a
written amendment signed by HEP 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 3.13. 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
▇▇▇▇▇ ENERGY PARTNERS, L.P.
By: HEP LOGISTICS HOLDINGS, LP,
its general partner
By: ▇▇▇▇▇ LOGISTIC SERVICES, LLC
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President and
Chief Financial Officer
Signature Page to Registration Rights Agreement
FIDUCIARY/CLAYMORE MLP
OPPORTUNITY FUND
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Managing Director and Senior Portfolio
Manager
Signature Page to Registration Rights Agreement
PERRY PARTNERS, L.P.
By: PERRY CORP.
its Managing General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Managing Director and Chief
Financial Officer
Signature Page to Registration Rights Agreement
STRUCTURED FINANCE AMERICAS, LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
Officer
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Officer
Signature Page to Registration Rights Agreement
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ MLP INVESTMENT COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ENERGY TOTAL
RETURN FUND, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
Signature Page to Registration Rights Agreement