REGISTRATION RIGHTS
AGREEMENT
Dated as of July 6, 2009
By and Among
TARGA RESOURCES PARTNERS
LP,
TARGA RESOURCES PARTNERS FINANCE
CORPORATION
and
THE GUARANTORS NAMED
HEREIN
as Issuers,
and
THE INITIAL PURCHASERS NAMED
HEREIN
$250,000,000
11¼% SENIOR NOTES DUE
2017
TABLE OF CONTENTS
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UNDERWRITTEN
REGISTRATIONS
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No
Inconsistent Agreements
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Adjustments
Affecting Registrable Securities
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Securities
Held by the Issuers or their Affiliates
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REGISTRATION RIGHTS
AGREEMENT
This Registration Rights Agreement (the “
Agreement ”) is dated as of July 6, 2009 by and among
Targa Resources Partners LP, a Delaware limited partnership (the
“ Partnership ”), Targa Resources Partners
Finance Corporation, a Delaware corporation (the “ Finance
Co. ” and, together with the Partnership, the “
Targa Companies ”), the Guarantors listed on the
signature pages hereto (the “ Guarantors ” and,
together with the Partnership and Finance Co., the “
Issuers ”) and the several Initial Purchasers listed
in Schedule 1 to the Purchase Agreement (defined below) (the
“ Initial Purchasers ”) for whom Barclays
Capital Inc. is acting as representative (the “
Representative ”).
This Agreement is entered into in connection
with the Purchase Agreement, dated as of June 30, 2009, by and
among the Targa Companies, the Guarantors and the Initial
Purchasers (the “ Purchase Agreement ”) that
provides for the sale by the Targa Companies to the Initial
Purchasers of $250,000,000 aggregate principal amount of the Targa
Companies’ 11¼% Senior Notes due 2017 (the “
Notes ”). The Notes will be guaranteed (the
“ Guarantees ”) on a senior basis by the
Guarantors. The Notes and the Guarantees together are
herein referred to as the “ Securities
.” In order to induce the Initial Purchasers to
enter into the Purchase Agreement, the Issuers have agreed to
provide the registration rights set forth in this Agreement for the
benefit of the Initial Purchasers and their direct and indirect
transferees and assigns. The execution and delivery of
this Agreement is a condition to the Initial Purchasers’
obligation to purchase the Securities under the Purchase
Agreement.
The parties hereby agree as follows:
As used in this Agreement, the following terms
shall have the following meanings:
Additional Interest : See Section 4(a) hereof.
Advice : See the last paragraph of Section 5
hereof.
Agreement : See the introductory paragraphs
hereto.
Applicable Period : See Section 2(b) hereof.
Business Day : Any day that is not a Saturday,
Sunday or a day on which banking institutions in New York are
authorized or required by law to be closed.
Effectiveness Date : The date that is the 369th day
after the delivery of a Shelf Notice as required pursuant to
Section 2(c) hereof; provided , however , that
if the Effectiveness Date would otherwise fall on a day that is not
a Business Day, then the Effectiveness Date shall be the next
succeeding Business Day.
Effectiveness Period : See Section 3(a) hereof.
Event Date : See Section 4(b) hereof.
Exchange Act : The Securities Exchange Act of
1934, as amended, and the rules and regulations of the SEC
promulgated thereunder.
Exchange Notes : See Section 2(a) hereof.
Exchange Offer : See Section 2(a)
hereof.
Exchange Offer Registration Statement
: See Section 2(a)
hereof.
Exchange Securities : See Section 2(a) hereof.
Filing Date : The 90th day after the delivery of
a Shelf Notice as required pursuant to Section 2(c) hereof;
provided , however , that if the Filing
Date would otherwise fall on a day that is not a Business Day, then
the Filing Date shall be the next succeeding Business
Day.
Finance Co. : See the introductory paragraphs
hereto.
FINRA : See Section 5(s) hereof.
Freely Tradable: With respect to a Security, a Security that at
any time of determination (i) is freely transferable without volume
restrictions by holders that are not affiliates of the Targa
Companies in accordance with Rule 144 (or any similar provision
then in force) under the Securities Act or otherwise, (ii) does not
bear a restrictive legend, or (iii) does not bear a restricted
CUSIP number.
Guarantees : See the introductory paragraphs
hereto.
Guarantors : See the introductory paragraphs
hereto.
Holder : Any holder of a Registrable
Security or Registrable Securities.
Indemnified Person : See Section 7(c) hereof.
Indemnifying Person : See Section 7(c) hereof.
Indenture : The Indenture, dated as of July 6,
2009, by and among the Issuers and U.S. Bank National Association,
as Trustee, pursuant to which the Securities are being issued, as
amended or supplemented from time to time in accordance with the
terms thereof.
Initial Purchasers : See the introductory paragraphs
hereto.
Inspectors : See Section 5(o) hereof.
Issue Date : The date on which the Securities
were sold to the Initial Purchasers pursuant to the Purchase
Agreement.
Issuers : See the introductory paragraphs
hereto.
Notes : See the introductory paragraphs
hereto.
Offering Memorandum : The final offering memorandum of
the Issuers dated June 30, 2009, in respect of the offering of the
Securities.
Participant : See Section 7(a) hereof.
Participating Broker-Dealer
: See Section 2(a)
hereof.
Partnership : See the introductory paragraphs
hereto.
Person : An individual, trustee,
corporation, partnership, limited liability company, joint stock
company, trust, unincorporated association, union, business
association, firm or other legal entity.
Private Exchange : See Section 2(b) hereof.
Private Exchange Notes : See Section 2(b) hereof.
Private Exchange Securities
: See Section 2(b)
hereof.
Prospectus : The prospectus included in any
Registration Statement (including, without limitation, any
prospectus subject to completion and a prospectus that includes any
information previously omitted from a prospectus filed as part of
an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented
by any prospectus supplement, and all other amendments and
supplements to the Prospectus, with respect to the terms of the
offering of any portion of the Registrable Securities covered by
such Registration Statement including post-effective amendments,
and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
Purchase Agreement : See the introductory paragraphs
hereto.
Records : See Section 5(o) hereof.
Registrable Securities : Each Security upon original
issuance of the Securities and at all times subsequent thereto,
each Exchange Security as to which Section 2(c)(v) hereof is
applicable upon original issuance and at all times subsequent
thereto and each Private Exchange Security upon original issuance
thereof and at all times subsequent thereto, until in the case of
any such Security, Exchange Security or Private Exchange Security,
as the case may be, the earliest to occur of (i) a
Registration Statement (other than, with respect to any Exchange
Security as to which Section 2(c)(v) hereof is applicable, the
Exchange Offer Registration Statement) covering such Security,
Exchange Security or Private Exchange Security, as the case may be,
has been declared effective by the SEC and such Security, Exchange
Security or Private Exchange Security, as the case may be, has been
disposed of in accordance with such effective Registration
Statement, (ii) such Security, Exchange Security or Private
Exchange Security, as the case may be, is Freely Tradable and
(iii) such Security, Exchange Security or Private Exchange
Security, as the case may be, ceases to be outstanding for purposes
of the Indenture.
Registration Statement : Any registration statement of the
Targa Companies, including, but not limited to, the Exchange Offer
Registration Statement and any registration statement filed in
connection with a Shelf Registration Statement, filed with the SEC
pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits and
all material incorporated by reference or deemed to be incorporated
by reference in such registration statement.
Registration Trigger Date
: the 370th day from the date
hereof.
Representative : See the introductory paragraphs
hereto.
Rule 144 : Rule 144 promulgated under the
Securities Act, as such Rule may be amended from time to time, or
any similar rule (other than Rule 144A) or regulation
hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and
sales by subsequent holders that are not affiliates of an issuer of
such securities being free of the registration and prospectus
delivery requirements of the Securities Act.
Rule 144A : Rule 144A promulgated under the
Securities Act, as such Rule may be amended from time to time, or
any similar rule (other than Rule 144) or regulation hereafter
adopted by the SEC.
Rule 415 : Rule 415 promulgated under the
Securities Act, as such Rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the
SEC.
SEC : The Securities and Exchange
Commission.
Securities : See the introductory paragraphs
hereto.
Securities Act : The Securities Act of 1933, as
amended, and the rules and regulations of the SEC promulgated
thereunder.
Shelf Notice : See Section 2(c) hereof.
Shelf Registration Statement
: See Section 3(a)
hereof.
Targa Companies : See the introductory paragraphs
hereto.
TIA : The Trust Indenture Act of 1939, as
amended.
Trustee : The trustee under the Indenture and
the trustee (if any) under any indenture governing the Exchange
Securities and Private Exchange Securities.
Underwritten registration or underwritten
offering : A
registration in which securities of the Targa Companies are sold to
an underwriter for reoffering to the public.
Except as otherwise specifically provided, all
references in this Agreement to acts, laws, statutes, rules,
regulations, releases, forms, no-action letters and other
regulatory requirements (collectively, “ Regulatory
Requirements ”) shall be deemed to refer also to any
amendments thereto and all subsequent Regulatory Requirements
adopted as a replacement thereto having substantially the same
effect therewith; provided that Rule 144 shall not be deemed to
amend or replace Rule 144A.
(a) With respect to
any Securities that on the Registration Trigger Date are
Registrable Securities, no later than the Registration Trigger
Date, the Issuers shall file with the SEC, to the extent not
prohibited by any applicable law or applicable interpretation of
the staff of the SEC, a Registration Statement on an appropriate
registration form (the “ Exchange Offer Registration
Statement ”) with respect to a registered offer (the
“ Exchange Offer ”) to exchange any and all of
the Registrable Securities (other than the Private Exchange
Securities, if any) for a like aggregate principal amount of debt
securities of the Targa Companies that are identical in all
material respects to the Securities ( the “ Exchange
Notes ” and, together with the guarantees thereon, the
“ Exchange Securities ”) (and that are entitled
to the benefits of the Indenture or a trust indenture that is
identical in all material respects to the Indenture (other than
such changes to the Indenture or any such identical trust indenture
as are necessary
(b) to comply with any
requirements of the SEC to effect or maintain the qualification
thereof under the TIA) and that, in either case, has been qualified
under the TIA), except that the Exchange Securities (other than
Private Exchange Securities, if any) shall have been registered
pursuant to an effective Registration Statement under the
Securities Act and shall contain no restrictive legend
thereon. The Exchange Offer shall comply with all
applicable tender offer rules and regulations under the Exchange
Act. The Issuers agree to use their commercially
reasonable efforts to (x) cause the Exchange Offer Registration
Statement to be declared (or to become automatically) effective
under the Securities Act on or before the Registration Trigger
Date; (y) keep the Exchange Offer open for not less than 30 days
(or longer if required by applicable law) after the date that
notice of the Exchange Offer is mailed to Holders; and
(z) consummate the Exchange Offer on or prior to the 30th day
following the effectiveness of the Exchange Offer Registration
Statement; provided , however , that if such 30th day
would otherwise fall on a day that is not a Business Day, then such
Exchange Offer must be consummated not later than the next
succeeding Business Day. If after such Exchange Offer
Registration Statement is declared effective by the SEC, the
Exchange Offer or the issuance of the Exchange Securities
thereunder is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental
agency or court, such Exchange Offer Registration Statement shall
be deemed not to have become effective for purposes of this
Agreement during the period of such interference until the Exchange
Offer may legally resume.
Each Holder (including, without limitation, each
Participating Broker-Dealer) who participates in the Exchange Offer
will be required to represent to the Targa Companies in writing
(i) that any Exchange Securities received by it will be
acquired in the ordinary course of its business, (ii) that at
the time of the commencement of the Exchange Offer such Holder has
no arrangement or understanding with any Person to participate in
the distribution (within the meaning of the Securities Act) of the
Exchange Securities in violation of the provisions of the
Securities Act, (iii) that such Holder is not an
“affiliate” (as defined in Rule 405 promulgated under
the Securities Act) of the Targa Companies or the Guarantors within
the meaning of the Securities Act and is not acting on behalf of
any Persons who could not truthfully make the foregoing
representations, (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 Exchange Securities, and (v) if such Holder is
a broker-dealer (a “ Participating Broker-Dealer
”), that it will receive Exchange Securities for its own
account in exchange for Securities that were acquired as a result
of market-making or other trading activities and that it will
deliver a prospectus in connection with any resale of such Exchange
Securities.
Upon consummation of the Exchange
Offer in accordance with this Section 2, the provisions of
this Agreement shall continue to apply, mutatis mutandis ,
solely with respect to Registrable Securities that are Private
Exchange Securities and Exchange Securities held by Participating
Broker-Dealers, and the Issuers shall have no further obligation to
register Registrable Securities (other than Private Exchange
Securities and other than in respect of
any Exchange Securities as to which clause
2(c)(v) hereof applies) pursuant to Section 3
hereof. No securities other than the Exchange Securities
shall be included in the Exchange Offer Registration
Statement.
(c) The Issuers shall
include within the Prospectus contained in the Exchange Offer
Registration Statement a section entitled “Plan of
Distribution,” reasonably acceptable to the Representative,
that shall contain a summary statement of the positions taken or
policies made by the staff of the SEC with respect to the potential
“underwriter” status of any Participating Broker-Dealer
that is the beneficial owner (as defined in Rule 13d-3 under the
Exchange Act) of Exchange Securities received by such Participating
Broker-Dealer in the Exchange Offer, whether such positions or
policies have been publicly disseminated by the staff of the SEC or
such positions or policies, in the judgment of the Representative,
represent the prevailing views of the staff of the
SEC. Such “Plan of Distribution” section
shall also expressly permit, to the extent permitted by applicable
policies and regulations of the SEC, the use of the Prospectus by
all Persons subject to the prospectus delivery requirements of the
Securities Act, including to the extent permitted by applicable
policies and regulations of the SEC, all Participating
Broker-Dealers, and include a statement describing the means by
which Participating Broker-Dealers may resell the Exchange
Securities in compliance with the Securities Act.
The Issuers shall use their respective
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 is necessary to comply with applicable law in connection with
any resale of the Exchange Securities covered thereby;
provided , however , that such period shall not be
required to exceed 90 days or such longer period if extended
pursuant to the last paragraph of Section 5 hereof (the “
Applicable Period ”).
If, prior to consummation of the Exchange Offer,
such Initial Purchaser holds any Securities acquired by it and
having, or that are reasonably likely to be determined to have, the
status of an unsold allotment in the initial distribution, the
Issuers, upon the request of such Initial Purchaser simultaneously
with the delivery of the Exchange Securities in the Exchange Offer,
shall issue and deliver to such Initial Purchaser in exchange (the
“ Private Exchange ”) for such Securities held
by such Initial Purchaser a like principal amount of debt
securities of the Issuers that are identical in all material
respects to the Exchange Securities (the “ Private
Exchange Notes ” and, together with the guarantees
thereon, the “ Private Exchange Securities ”),
except for the placement of a restrictive legend on such Private
Exchange Securities. The Private Exchange Securities
shall be issued pursuant to the same indenture as the Exchange
Securities and bear the same CUSIP number as the Exchange
Securities if permitted by the CUSIP Service Bureau.
Interest on each Exchange Note will accrue (A)
from the later of (i) the last interest payment date on which
interest was paid on the Note surrendered in exchange therefor, or
(ii) if the Note is surrendered for exchange on a date in a period
that includes the record date for an interest payment date to occur
on or after the date of such exchange and as to which interest will
be paid, the date of such interest payment date or (B) if no
interest has been paid on such Note, from the Issue
Date.
In connection with the Exchange Offer, the
Issuers shall:
(1) 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;
(2) use their
respective commercially reasonable efforts to keep the Exchange
Offer open for not less than 30 days after the date that notice of
the Exchange Offer is mailed to Holders (or longer if required by
applicable law);
(3) 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
Exchange Offer shall remain open; and
(4) otherwise comply
in all material respects with all applicable laws, rules and
regulations.
As soon as practicable after the close of the
Exchange Offer or the Private Exchange, as the case may be, the
Issuers shall:
(1) accept for
exchange all Registrable Securities properly tendered and not
validly withdrawn pursuant to the Exchange Offer or the Private
Exchange;
(2) deliver to the
Trustee for cancellation all Registrable Securities so accepted for
exchange; and
(3) cause the Trustee
to authenticate and deliver promptly to each Holder of Securities,
Exchange Securities or Private Exchange Securities, as the case may
be, equal in principal amount to the Securities of such Holder so
accepted for exchange; provided that, in the case of any
Notes held in global form by a depositary, authentication and
delivery to such depositary of one or more replacement Notes in
global form in an equivalent principal amount thereto for the
account of such Holders in accordance with the Indenture shall
satisfy such authentication and delivery requirement.
The Exchange Securities and the Private Exchange
Securities may be issued under (i) the Indenture or (ii) an
indenture identical in all material respects to the
Indenture,
which in either event has been qualified under
the TIA or is exempt from such qualification and shall provide that
(1) the Exchange Securities shall not be subject to the
transfer restrictions set forth in the Indenture and (2) the
Private Exchange Securities shall be subject to the transfer
restrictions set forth in the Indenture. The Indenture
or such indenture described in (ii) above shall provide that
the Exchange Securities, the Private Exchange Securities and the
Securities shall vote and consent together on all matters as one
class and that none of the Exchange Securities, the Private
Exchange Securities or the Securities will have the right to vote
or consent as a separate class on any matter.
(d) If, (i) the
Issuers would otherwise be required to consummate an Exchange Offer
pursuant to Section 2(a) hereof but because of any change in law or
in currently prevailing interpretations of the staff of the SEC,
the Issuers are not permitted to effect an Exchange Offer,
(ii) the Exchange Offer is not consummated within
369 days of the Issue Date; provided , however ,
that if such 369th day would otherwise fall on a day that is not a
Business Day, then such Exchange Offer must be consummated not
later than the next succeeding Business Day (provided that if the
Exchange Offer shall be consummated after such 369-day period, then
the Issuers’ obligation under this clause (ii) arising from
the failure of the Exchange Offer to be consummated within such
369-day period shall terminate), (iii) the holder of Private
Exchange Securities so requests at any time within 90 days
after the consummation of the Private Exchange, (iv) because
of any changes in law or in currently prevailing interpretations of
the staff of the SEC, a Holder (other than an Initial Purchaser
holding Securities acquired directly from the Issuers) is not
permitted to participate in the Exchange Offer or (v) in the
case of any Holder that participates in the Exchange Offer, such
Holder does not receive Exchange Securities on the date of the
exchange that are Freely Tradable, then the Issuers shall promptly
deliver written notice thereof (the “ Shelf Notice
”) to the Trustee and in the case of clauses (i), (ii)
and (iv), all Holders, in the case of clause (iii), the
Holders of the Private Exchange Securities and in the case of
clause (v), the affected Holder, shall file a Shelf
Registration Statement pursuant to Section 3
hereof.
If a Shelf Notice is delivered as contemplated
by Section 2(c) hereof, then:
The Issuers shall file with the SEC
a Registration Statement for an offering to be made on a continuous
basis pursuant to Rule 415 covering all of the Registrable
Securities not exchanged in the Exchange Offer, Private Exchange
Notes and Exchange Notes as to which Section 2(c)(iv) is
applicable (the “ Shelf Registration Statement
”). The Issuers shall use their respective
commercially reasonable efforts to file with the SEC the Shelf
Registration Statement on or prior to the Filing
Date. The Shelf Registration Statement shall be on Form
S-1 or another appropriate form permitting registration of such
Registrable Securities for resale by Holders in the manner or
manners designated by them (including, without
limitation,
one or more underwritten
offerings). The Issuers shall not permit any securities
other than the Registrable Securities to be included in the Shelf
Registration Statement.
In the event that the Issuers are required to
file a Shelf Registration Statement, the Issuers shall use their
respective commercially reasonable efforts to cause the Shelf
Registration Statement to be declared effective under the
Securities Act on or prior to the Effectiveness Date and to keep
the Shelf Registration Statement continuously effective under the
Securities Act until no Securities covered by such Shelf
Registration Statement constitute Registrable Securities (the
“ Effectiveness Period ”); provided,
however , that the Effectiveness Period in respect of the Shelf
Registration Statement shall be extended to the extent required to
permit dealers to comply with the applicable prospectus delivery
requirements of Rule 174 under the Securities Act and as
otherwise provided herein.
In the event that a Shelf Registration Statement
is filed, the Targa Companies shall provide to each Holder of
Registrable Securities covered thereby copies of the prospectus
that is part of the Shelf Registration Statement, notify each such
Holder when the Shelf Registration Statement for the Registrable
Securities covered by the Shelf Registration Statement has become
effective and take certain other actions as are required to permit
unrestricted resales of the Registrable Securities covered by the
Shelf Registration Statement. A Holder that sells
Registrable Securities covered by the Shelf Registration Statement
pursuant to the Shelf Registration Statement will be (x) required
to be named as a selling security holder in the related prospectus
and to deliver a prospectus to purchasers, (y) subject to certain
of the civil liability provisions under the Securities Act in
connection with such sales and (z) bound by the provisions of this
Agreement that are applicable to such a Holder (including Section 7
hereof).
(b) Withdrawal of
Stop Orders .
If the Shelf Registration Statement
ceases to be effective for any reason at any time during the
Effectiveness Period (other than because of the sale of all of the
securities registered thereunder), the Issuers shall use their
commercially reasonable efforts to obtain the prompt withdrawal of
any order suspending the effectiveness thereof.
(c)
Supplements and
Amendments
. The Issuers shall promptly
supplement and amend the Shelf Registration Statement if required
by the rules, regulations or instructions applicable to the
registration form used for such Shelf Registration Statement, if
required by the Securities Act, or if reasonably requested by the
Holders of a majority in aggregate principal amount of the
Registrable Securities covered by such Registration Statement or by
any underwriter of such Registrable Securities.
(d) The Issuers and
the Initial Purchasers agree that the Holders of Registrable
Securities will suffer damages if the Issuers fail to fulfill their
respective obligations under Section 2 or Section 3
hereof and that it would not be feasible to ascertain the extent of
such damages with precision. Accordingly, the Issuers
agree to pay, as liquidated damages, additional interest on the
Registrable Securities (“ Additional Interest ”)
under the circumstances and to the extent set forth below (without
duplication):
(i) if an Exchange
Offer Registration Statement is required pursuant to Section 2(a)
hereof or a Shelf Registration Statement is required pursuant to
Section 3(a) hereof and such Exchange Offer Registration Statement
or Shelf Registration Statement does not become effective on or
prior to the Registration Trigger Date, then, commencing on the day
after the Registration Trigger Date, Additional Interest shall
accrue on the principal amount of the Notes over and above the
stated interest at a rate of 0.25% per annum for the first 90 days
immediately following the Registration Trigger Date, such
Additional Interest rate increasing by an additional 0.25% per
annum at the beginning of each subsequent 90-day period;
(ii) if an Exchange
Offer Registration Statement is required pursuant to Section 2(a)
hereof or a Shelf Registration Statement is required pursuant to
Section 3(a) hereof and (A) neither the Exchange Offer
Registration Statement nor the Shelf Registration Statement is
declared effective by the SEC (or becomes automatically effective)
on or prior to the Registration Trigger Date or (B) notwithstanding
that the Issuers have consummated or will consummate the Exchange
Offer, the Issuers are required to file a Shelf Registration
Statement and such Shelf Registration Statement is not declared
effective by the SEC (or fails to become automatically effective)
on or prior to the 90th day following the date such Shelf
Registration Statement was filed, then, commencing on the day after
such required effective date, Additional Interest shall accrue on
the principal amount of the Notes at a rate of 0.25% per annum for
the first 90 days immediately following each such filing date, such
Additional Interest rate increasing by an additional 0.25% per
annum at the beginning of each subsequent 90-day period;
and
(iii) if an Exchange
Offer Registration Statement is required pursuant to Section 2(a)
hereof or a Shelf Registration Statement is required pursuant to
Section 3(a) hereof and if either (A) the Issuers have not
exchanged Exchange Notes for all Notes validly tendered in
accordance with the terms of the Exchange Offer on or prior to the
30th day after the date on which the Exchange Offer Registration
Statement was declared (or became automatically) effective;
provided , however , that if such 30th day would
otherwise fall on a day that is not a Business Day, then such
Exchange Offer must be consummated not later than the next
succeeding Business Day or (B) if appl
(iv) cable, a Shelf
Registration Statement has been declared effective and such Shelf
Registration Statement ceases to be effective at any time during
the Effectiveness Period (other than after such time as all Notes
have been disposed of thereunder), then Additional Interest shall
accrue on the principal amount of the Notes at a rate of 0.25% per
annum for the first 90 days commencing on (x) the 31st day
after such effective date, in the case of (A) above, or
(y) the day such Shelf Registration Statement ceases to be
effective, in the case of (B) above, such Additional Interest rate
increasing by an additional 0.25% per annum at the beginning of
each such subsequent 90-day period;
provided , however , that the Additional Interest
rate on the Registrable Securities may not accrue under more than
one of the foregoing clauses (i) through (iii) of this
Section 4(a) at the same time and at no time shall the
aggregate amount of Additional Interest accruing exceed at any one
time in the aggregate 1.0% per annum; and provided ,
further , however , that (1) upon the filing of the
Exchange Offer Registration Statement or a Shelf Registration
Statement (in the case of clause (i) of this Section 4(a)),
(2) upon the effectiveness of the Exchange Offer Registration
Statement or the Shelf Registration Statement (in the case of
clause (ii) of this Section 4(a)), or (3) upon the
exchange of Exchange Securities for all Securities tendered (in the
case of clause (iii)(A) of this Section 4(a)), or upon the
effectiveness of the applicable Shelf Registration Statement that
had ceased to remain effective (in the case of (iii)(B) of this
Section 4(a)), Additional Interest on the Registrable Securities as
a result of such clause (or the relevant subclause thereof), as the
case may be, shall cease to accrue.
(e) The Issuers shall
notify the Trustee within one Business Day after each and every
date on which an event occurs in respect of which Additional
Interest is required to be paid (an “ Event Date
”). Any amounts of Additional Interest due
pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section 4 will
be payable in cash semi-annually on the same original interest
dates as the Notes, commencing with the first such date occurring
after any such Additional Interest commences to
accrue. The amount of Additional Interest will be
determined by multiplying the applicable Additional Interest rate
by the principal amount of the Registrable Securities, multiplied
by a fraction, the numerator of which is the number of days such
Additional Interest rate was applicable during such period
(determined on the basis of a 360-day year consisting of twelve
30-day months and, in the case of a partial month, the actual
number of days elapsed) and the denominator of which is
360.
4.
Registration
Procedures
In connection with the filing of any
Registration Statement pursuant to Sections 2 or 3 hereof, if a
Registration Statement is required to be filed pursuant to such
sections, the Issuers shall effect such registrations to permit the
sale of the securities covered thereby in accordance with the
intended method or methods of disposition thereof, and
pursuant
thereto and in connection with any Registration
Statement filed by the Issuers hereunder, the Issuers
shall:
(a) Prepare and file
with the SEC on or before the date required herein, a Registration
Statement or Registration Statements as prescribed by Sections 2 or
3 hereof, and use its commercially reasonable efforts to cause each
such Registration Statement to become effective and remain
effective as provided herein; provided , however ,
that, if (1) such filing is pursuant to Section 3 hereof or
(2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, the Issuers
shall furnish to and afford the Holders of the Registrable
Securities covered by such Registration Statement or each such
Participating Broker-Dealer, as the case may be, their counsel and
the managing underwriters, if any, a reasonable opportunity to
review copies of all such documents (including copies of any
documents to be incorporated by reference therein and all exhibits
thereto) proposed to be filed (in each case at least three Business
Days prior to such filing). The Issuers shall not file
any Registration Statement or Prospectus or any amendments or
supplements thereto if the Holders of a majority in aggregate
principal amount of the Registrable Securities covered by such
Registration Statement, or any such Participating Broker-Dealer, as
the case may be, or their counsel, or the managing underwriters, if
any, shall reasonably object on a timely basis.
(b) Prepare and file
with the SEC such amendments and post-effective amendments to each
Shelf Registration Statement or Exchange Offer Registration
St
