Exhibit 4.4
EXECUTION COPY
$2,032,000,000
Sabine Pass LNG,
L.P.
7 1 / 4 % Senior Secured Notes due
2013
7 1 / 2 % Senior Secured Notes due
2016
REGISTRATION RIGHTS
AGREEMENT
November 9, 2006
Credit Suisse Securities (USA)
LLC
Lehman Brothers Inc.
c/o Credit
Suisse Securities (USA) LLC
Eleven
Madison Avenue
New
York, New York 10010-3629
Dear Sirs:
Sabine Pass LNG, L.P., a Delaware
limited partnership (the “ Issuer ”), proposes
to issue and sell to Credit Suisse Securities (USA) LLC and Lehman
Brothers Inc. (collectively, the “ Initial Purchasers
”), upon the terms set forth in a purchase agreement dated
November 1, 2006 (the “ Purchase Agreement
”), $550,000,000 aggregate principal amount of its 7
1
/ 4 % Senior Secured Notes due 2013 (the
“ 2013 Notes ”) and $1,482,000,000 aggregate
principal amount of its 7 1 / 2 % Senior Secured Notes due 2016 (the
“ 2016 Notes ” and, collectively with the 2013
Notes, the “ Initial Securities ”) to be
unconditionally guaranteed (the “ Guaranties ”)
by all of its future domestic subsidiaries (the “
Guarantors ” and together with the Issuer, the “
Company ”). The Initial Securities will be issued
pursuant to an indenture, dated as of November 9, 2006 (the
“ Indenture ”), among the Issuer, the Guarantors
named therein and The Bank of New York (the “ Trustee
”). As an inducement to the Initial Purchasers, the Company
agrees with the Initial Purchasers, for the benefit of the holders
of the Initial Securities (including, without limitation, the
Initial Purchasers), the Exchange Securities (as defined below) and
the Private Exchange Securities (as defined below) (collectively
the “ Holders ”), as follows:
1. Registered Exchange
Offer . The Company shall, at its own cost, prepare and
file with the Securities and Exchange Commission (the “
Commission ”) a registration statement (the “
Exchange Offer Registration Statement ”) on an
appropriate form under the Securities Act of 1933, as amended (the
“ Securities Act ”), with respect to a proposed
offer (the “ Registered Exchange Offer ”) to the
Holders of Transfer Restricted Securities (as defined in
Section 6 hereof), who are not prohibited by any law or policy
of the Commission from participating in the Registered Exchange
Offer, to issue and deliver to such Holders, in exchange for the
Initial Securities, a like aggregate principal amount of debt
securities (the “ Exchange Securities ”) of the
Company issued under the Indenture and identical in all material
respects to the Initial Securities (except for the transfer
restrictions relating to the Initial Securities and the provisions
relating to the matters described in Section 6 hereof) that
would be registered under the Securities Act. The Company shall use
all commercially reasonable efforts to cause such Exchange Offer
Registration Statement to become effective under the Securities Act
within 270 days (or if the 270th day is not a business day, the
first business day thereafter) after the date of original issuance
of the Initial Securities (the “ Issue Date ”)
of the Initial Securities and shall keep the Exchange Offer
Registration Statement effective for not less than 30 days (or
longer, if required by applicable law) after the date notice of the
Registered
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Exchange Offer is mailed to the
Holders (such period being called the “ Exchange Offer
Registration Period ”).
If the Company effects the
Registered Exchange Offer, the Company will be entitled to close
the Registered Exchange Offer 30 days after the commencement
thereof provided that the Company has accepted all the Initial
Securities theretofore validly tendered in accordance with the
terms of the Registered Exchange Offer.
Following the declaration of the
effectiveness of the Exchange Offer Registration Statement, the
Company shall promptly commence the Registered Exchange Offer, it
being the objective of such Registered Exchange Offer to enable
each Holder of Transfer Restricted Securities (as defined in
Section 6 hereof) electing to exchange the Initial Securities
for Exchange Securities (assuming that such Holder is not an
affiliate of the Company within the meaning of the Securities Act,
acquires the Exchange Securities in the ordinary course of such
Holder’s business and has no arrangements with any person to
participate in the distribution of the Exchange Securities and is
not prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer) to trade such
Exchange Securities from and after their receipt without any
limitations or restrictions under the Securities Act and without
material restrictions under the securities laws of the several
states of the United States.
The Company acknowledges that,
pursuant to current interpretations by the Commission’s staff
of Section 5 of the Securities Act, in the absence of an
applicable exemption therefrom, (i) each Holder which is a
broker-dealer electing to exchange Securities, acquired for its own
account as a result of market making activities or other trading
activities, for Exchange Securities (an “ Exchanging
Dealer ”), is required to deliver a prospectus containing
the information set forth in (a) Annex A hereto on the
cover, (b) Annex B hereto in the “Exchange Offer
Procedures” section and the “Purpose of the Exchange
Offer” section, and (c) Annex C hereto in the
“Plan of Distribution” section of such prospectus in
connection with a sale of any such Exchange Securities received by
such Exchanging Dealer pursuant to the Registered Exchange Offer
and (ii) an Initial Purchaser that elects to sell Exchange
Securities acquired in exchange for Securities constituting any
portion of an unsold allotment is required to deliver a prospectus
containing the information required by Items 507 or 508 of
Regulation S-K under the Securities Act, as applicable, in
connection with such sale.
The Company shall use all
commercially reasonable efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the
prospectus contained therein, in order to permit such prospectus to
be lawfully delivered by all persons subject to the prospectus
delivery requirements of the Securities Act for such period of time
as such persons must comply with such requirements in order to
resell the Exchange Securities; provided, however, that (i) in
the case where such prospectus and any amendment or supplement
thereto must be delivered by an Exchanging Dealer or an Initial
Purchaser, such period shall be the lesser of 180 days and the date
on which all Exchanging Dealers and the Initial Purchasers have
sold all Exchange Securities held by them (unless such period is
extended pursuant to Section 3(j) below) and (ii) the
Company shall make such prospectus and any amendment or supplement
thereto, available to any broker-dealer for use in connection with
any resale of any Exchange Securities for a period of not less than
90 days after the consummation of the Registered Exchange
Offer.
If, upon consummation of the
Registered Exchange Offer, any Initial Purchaser holds Initial
Securities acquired by it as part of its initial distribution, the
Company, simultaneously with the delivery of the Exchange
Securities pursuant to the Registered Exchange Offer, shall issue
and deliver to such Initial Purchaser upon the written request of
such Initial Purchaser, in exchange (the “ Private
Exchange ”) for the Initial Securities held by such
Initial Purchaser, a like principal amount of debt securities of
the Company issued under the Indenture and identical in all
material respects (including the existence of restrictions
on
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transfer under the Securities Act and the
securities laws of the several states of the United States, but
excluding provisions relating to the matters described in
Section 6 hereof) to the Initial Securities (the “
Private Exchange Securities ”). The Initial
Securities, the Exchange Securities and the Private Exchange
Securities are herein collectively called the “
Securities ”.
In connection with the Registered
Exchange Offer, the Company shall:
(a) mail to each Holder a copy
of the prospectus forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of transmittal and
related documents;
(b) keep the Registered
Exchange Offer open for not less than 30 business days (or longer,
if required by applicable law) after the date notice thereof is
mailed to the Holders;
(c) utilize the services of a
depositary for the Registered Exchange Offer with an address in the
Borough of Manhattan, The City of New York, which may be the
Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw
tendered Securities at any time prior to the close of business, New
York time, on the last business day on which the Registered
Exchange Offer shall remain open; and
(e) otherwise comply with all
applicable laws.
As soon as practicable after the
close of the Registered Exchange Offer or the Private Exchange, as
the case may be, the Company shall:
(x) accept for exchange all the
Securities validly tendered and not withdrawn pursuant to the
Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for
cancellation all the Initial Securities so accepted for exchange;
and
(z) cause the Trustee to
authenticate and deliver promptly to each Holder of the Initial
Securities, Exchange Securities or Private Exchange Securities, as
the case may be, equal in principal amount to the Initial
Securities of such Holder so accepted for exchange.
The Indenture will provide that the
Exchange Securities will not be subject to the transfer
restrictions set forth in the Indenture and that all the Securities
will vote and consent together on all matters as one class and that
none of the Securities will have the right to vote or consent as a
class separate from one another on any matter.
Interest on each Exchange Security
and Private Exchange Security issued pursuant to the Registered
Exchange Offer and in the Private Exchange will accrue from the
last interest payment date on which interest was paid on the
Initial Securities surrendered in exchange therefor or, if no
interest has been paid on the Initial Securities, from the date of
original issue of the Initial Securities.
Each Holder participating in the
Registered Exchange Offer shall be required to represent to the
Company that at the time of the consummation of the Registered
Exchange Offer (i) any Exchange Securities received by such
Holder will be acquired in the ordinary course of business,
(ii) such Holder will have no arrangements or understanding
with any person to participate in the distribution of the
Securities or the Exchange Securities within the meaning of the
Securities Act, (iii) such Holder is not an
“affiliate,” as
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defined in Rule 405 of the Securities Act, of
the Company or if it is an affiliate, such Holder will comply with
the registration and prospectus delivery requirements of the
Securities Act to the extent applicable, (iv) if such Holder
is not a broker-dealer, that it is not engaged in, and does not
intend to engage in, the distribution of the Exchange Securities
and (v) if such Holder is a broker-dealer, that it will
receive Exchange Securities for its own account in exchange for
Initial Securities that were acquired as a result of market-making
activities or other trading activities and that it will be required
to acknowledge that it will deliver a prospectus in connection with
any resale of such Exchange Securities.
Notwithstanding any other provisions
hereof, the Company will ensure that (i) any Exchange Offer
Registration Statement and any amendment thereto and any prospectus
forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and
regulations thereunder, (ii) any Exchange Offer Registration
Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary
to make the statements therein not misleading and (iii) any
prospectus forming part of any Exchange Offer Registration
Statement, and any supplement to such prospectus, does not include
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
2. Shelf Registration .
If, (i) because of any change in law or in applicable
interpretations thereof by the staff of the Commission, the Company
is not permitted to effect a Registered Exchange Offer, as
contemplated by Section 1 hereof, (ii) the Registered
Exchange Offer is not consummated within 310 days of the Issue
Date, (iii) any Initial Purchaser so requests with respect to
the Initial Securities (or the Private Exchange Securities) not
eligible to be exchanged for Exchange Securities in the Registered
Exchange Offer and held by it following consummation of the
Registered Exchange Offer or (iv) any Holder (other than an
Exchanging Dealer) is not eligible to participate in the Registered
Exchange Offer or, in the case of any Holder (other than an
Exchanging Dealer) that participates in the Registered Exchange
Offer, such Holder does not receive freely tradeable Exchange
Securities on the date of the exchange, the Company shall take the
following actions:
(a) The Company shall, at its
cost, as promptly as practicable (but in no event more than 90 days
after so required or requested pursuant to this Section 2)
file with the Commission and thereafter shall use all commercially
reasonable efforts to cause to be declared effective (unless it
becomes effective automatically upon filing) a registration
statement (the “ Shelf Registration Statement ”
and, together with the Exchange Offer Registration Statement, a
“ Registration Statement ”) on an appropriate
form under the Securities Act relating to the offer and sale of the
Transfer Restricted Securities (as defined in Section 6
hereof) by the Holders thereof from time to time in accordance with
the methods of distribution set forth in the Shelf Registration
Statement and Rule 415 under the Securities Act (hereinafter, the
“ Shelf Registration ”); provided, however, that
no Holder (other than an Initial Purchaser) shall be entitled to
have the Securities held by it covered by such Shelf Registration
Statement unless such Holder agrees in writing to be bound by all
the provisions of this Agreement applicable to such
Holder.
(b) The Company shall use all
commercially reasonable efforts to keep the Shelf Registration
Statement continuously effective in order to permit the prospectus
included therein to be lawfully delivered by the Holders of the
relevant Securities, for a period of two years (or for such longer
period if extended pursuant to Section 3(j) below) from the
Issue Date or such shorter period that will terminate when all the
Securities covered by the Shelf Registration Statement
(i) have been sold pursuant thereto or (ii) may be sold
pursuant to Rule 144(k) under the Securities Act, or any successor
rule thereof, or otherwise transferred in a manner that results in
(A) the
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Securities not being subject to
transfer restrictions under the Securities Act and (B) the
absence of a need for a restrictive legend regarding registration
and the Securities Act (assuming for the purpose that the Holders
thereof are not affiliates of the Company). The Company shall be
deemed not to have used all commercially reasonable efforts to keep
the Shelf Registration Statement effective during the requisite
period if it voluntarily takes any action that would result in
Holders of Securities covered thereby not being able to offer and
sell such Securities during that period, unless such action is
(i) required by applicable law or (ii) taken by the
Company in good faith and contemplated by Section 3(b)(v) and
3(b)(vi) below, or the Company thereafter complies with the
requirements of Section 3(j).
(c) Notwithstanding any other
provisions of this Agreement to the contrary, the Company shall
cause the Shelf Registration Statement and the related prospectus
and any amendment or supplement thereto, as of its respective
effective date, (i) to comply in all material respects with
the applicable requirements of the Securities Act and the rules and
regulations of the Commission and (ii) not to contain any
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which
they were made, not misleading.
3. Registration
Procedures . In connection with any Shelf Registration
contemplated by Section 2 hereof and, to the extent
applicable, any Registered Exchange Offer contemplated by
Section 1 hereof, the following provisions shall
apply:
(a) The Company shall
(i) furnish to each Initial Purchaser, prior to the filing
thereof with the Commission, a copy of the Registration Statement
and each amendment thereof and each supplement, if any, to the
prospectus included therein and, in the event that an Initial
Purchaser (with respect to any portion of an unsold allotment from
the original offering) is participating in the Registered Exchange
Offer or the Shelf Registration Statement, the Company shall use
all commercially reasonable efforts to reflect in each such
document, when so filed with the Commission, such comments as such
Initial Purchaser reasonably may propose; (ii) include the
information set forth in Annex A hereto on the cover, in
Annex B hereto in the “Exchange Offer
Procedures” section and the “Purpose of the Exchange
Offer” section and in Annex C hereto in the
“Plan of Distribution” section of the prospectus
forming a part of the Exchange Offer Registration Statement and
include the information set forth in Annex D hereto in the
Letter of Transmittal delivered pursuant to the Registered Exchange
Offer; (iii) if requested by an Initial Purchaser, include the
information required by Items 507 or 508 of Regulation S-K under
the Securities Act, as applicable, in the prospectus forming a part
of the Exchange Offer Registration Statement; (iv) include
within the prospectus contained in the Exchange Offer Registration
Statement a section entitled “Plan of Distribution,”
reasonably acceptable to the Initial Purchasers, which shall
contain a summary statement of the positions taken or policies made
by the staff of the Commission with respect to the potential
“underwriter” status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the “ Exchange Act
”)) of Exchange Securities received by such broker-dealer in
the Registered Exchange Offer (a “ Participating
Broker-Dealer ”), whether such positions or policies have
been publicly disseminated by the staff of the Commission or such
positions or policies, in the reasonable judgment of the Initial
Purchasers based upon advice of counsel (which may be in-house
counsel), represent the prevailing views of the staff of the
Commission; and (v) in the case of a Shelf Registration
Statement, include in the prospectus included in the Shelf
Registration Statement (or, if permitted by Commission
Rule 430B(b), in a prospectus supplement that becomes a part
thereof pursuant to Commission Rule 430B(f)) that is delivered
to any Holder
5
pursuant to Section 3(d)
and (f), the names of the Holders, who propose to sell
Securities pursuant to the Shelf Registration Statement, as selling
securityholders.
(b) The Company shall give
written notice to the Initial Purchasers, the Holders of the
Securities and any Participating Broker-Dealer from whom the
Company has received prior written notice that it will be a
Participating Broker-Dealer in the Registered Exchange Offer (which
notice pursuant to clauses (ii)-(vi) hereof shall be
accompanied by an instruction to suspend the use of the prospectus
until the requisite changes have been made):
(i) when the Registration
Statement or any amendment thereto has been filed with the
Commission and when the Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the
Commission for amendments or supplements to the Registration
Statement or the prospectus included therein or for additional
information;
(iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for
that purpose, of the issuance by the Commission of a notification
of objection to the use of the form on which the Registration
Statement has been filed, and of the happening of any event that
causes the Company to become an “ineligible issuer,” as
defined in Commission Rule 405;
(iv) of the receipt by the
Company or its legal counsel of any notification with respect to
the suspension of the qualification of the Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding
for such purpose;
(v) of the happening of any
event that requires the Company to make changes in the Registration
Statement or the prospectus in order that the Registration
Statement or the prospectus do not contain an untrue statement of a
material fact nor omit to state a material fact required to be
stated therein or necessary to make the statements therein (in the
case of the prospectus, in light of the circumstances under which
they were made) not misleading; and
(vi) of the occurrence or existence,
within 30 days thereof, of any pending corporate development or
other similar event with respect to the Company or a public filing
with the Commission that, in the reasonable discretion of the
Company, makes it appropriate to suspend the availability of a
Shelf Registration Statement and the related Prospectus.
(c) The Company shall make all
commercially reasonable efforts to obtain the withdrawal at the
earliest possible time, of any order suspending the effectiveness
of the Registration Statement.
(d) The Company shall furnish
to each Holder of Securities included within the coverage of the
Shelf Registration, without charge, at least one copy of the Shelf
Registration Statement and any post-effective amendment or
supplement thereto, including financial statements and schedules,
and, if the Holder so requests in writing, all exhibits thereto
(including those, if any, incorporated by reference); provided that
such exhibits shall be deemed to have been provided if such
information is available through EDGAR or on or through the
Company’s website. The
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Company shall not, without the prior
consent of the Initial Purchasers, make any offer relating to the
Securities that would constitute a “free writing
prospectus,” as defined in Commission
Rule 405.
(e) The Company shall deliver
to each Exchanging Dealer and each Initial Purchaser, and to any
other Holder who so requests, without charge, at least one copy of
the Exchange Offer Registration Statement and any post-effective
amendment thereto, including financial statements and schedules,
and, if any Initial Purchaser or any such Holder requests, all
exhibits thereto (including those incorporated by reference);
provided that such exhibits shall be deemed to have been provided
if such information is available through EDGAR or on or through the
Company’s website.
(f) The Company shall, during
the Shelf Registration Period, deliver to each Holder of Securities
included within the coverage of the Shelf Registration, without
charge, as many copies of the prospectus (including each
preliminary prospectus) included in the Shelf Registration
Statement and any amendment or supplement thereto as such person
may reasonably request. The Company consents, subject to the
provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by each of the selling Holders of
the Securities in connection with the offering and sale of the
Securities covered by the prospectus, or any amendment or
supplement thereto, included in the Shelf Registration
Statement.
(g) The Company shall deliver
to each Initial Purchaser, any Exchanging Dealer, any Participating
Broker-Dealer and such other persons required to deliver a
prospectus following the Registered Exchange Offer, without charge,
as many copies of the final prospectus included in the Exchange
Offer Registration Statement and any amendment or supplement
thereto as such persons may reasonably request. The Company
consents, subject to the provisions of this Agreement, to the use
of the prospectus or any amendment or supplement thereto by any
Initial Purchaser, if necessary, any Participating Broker-Dealer
and such other persons required to deliver a prospectus following
the Registered Exchange Offer in connection with the offering and
sale of the Exchange Securities covered by the prospectus, or any
amendment or supplement thereto, included in such Exchange Offer
Registration Statement.
(h) Prior to any public
offering of the Securities, pursuant to any Registration Statement,
the Company shall register or qualify or cooperate with the Holders
of the Securities included therein and their respective counsel in
connection with the registration or qualification of the Securities
for offer and sale under the securities or “blue sky”
laws of such states of the United States as any Holder of the
Securities reasonably requests in writing and do any and all other
acts or things necessary or advisable to enable the offer and sale
in such jurisdictions of the Securities covered by such
Registration Statement; provided, however, that the Company shall
not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified or (ii) take
any action which would subject it to general service of process or
to taxation in any jurisdiction where it is not then so
subject.
(i) The Company shall cooperate
with the Holders of the Securities to facilitate the timely
preparation and delivery of certificates representing the
Securities to be sold pursuant to any Registration Statement free
of any restrictive legends and in such denominations and registered
in such names as the Holders may request a reasonable period of
time prior to sales of the Securities pursuant to such Registration
Statement.
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(j) Upon the occurrence of any
event contemplated by paragraphs (ii) through (vi) of
Section 3(b) above during the period for which the Company is
required to maintain an effective Registration Statement, the
Company shall promptly prepare and file a post-effective amendment
to the Registration Statement or a supplement to the related
prospectus and any other required document so that, as thereafter
delivered to Holders of the Securities or purchasers of Securities,
the prospectus will not contain an untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. If
the Company notifies the Initial Purchasers, the Holders of the
Securities and any known Participating Broker-Dealer in accordance
with paragraphs (ii) through (vi) of Section 3(b)
above to suspend the use of the prospectus until the requisite
changes to the prospectus have been made, then the Initial
Purchasers, the Holders of the Securities and any such
Participating Broker-Dealers shall suspend use of such prospectus,
and the period of effectiveness of the Shelf Registration Statement
provided for in Section 2(b) above and the Exchange Offer
Registration Statement provided for in Section 1 above shall
each be extended by the number of days from and including the date
of the giving of such notice to and including the date when the
Initial Purchasers, the Holders of the Securities and any known
Participating Broker-Dealer shall have received such amended or
supplemented prospectus pursuant to this Section 3(j). During
the period during which the Company is required to maintain an
effective Shelf Registration Statement pursuant to this Agreement,
the Company will prior to the three-year expiration of that Shelf
Registration Statement file, and use all commercially reasonable
efforts to cause to be declared effective (unless it becomes
effective automatically upon filing) within a period that avoids
any interruption in the ability of Holders of Securities covered by
the expiring Shelf Registration Statement to make registered
dispositions, a new registration statement relating to the
Securities, which shall be deemed the “Shelf Registration
Statement” for purposes of this Agreement.
(k) Not later than the
effective date of the applicable Registration Statement, the
Company will provide a CUSIP number for the Initial Securities, the
Exchange Securities or the Private Exchange Securities, as the case
may be, and provide the applicable trustee with printed
certificate
