Exhibit 10.6


 


REGISTRATION RIGHTS AGREEMENT


 


 


by and among


 


 


Niska Gas Storage US, LLC,


Niska Gas Storage US Finance Corp.,


Niska Gas Storage Canada ULC,


Niska Gas Storage Canada Finance Corp.

and the Guarantors party hereto


 


 


and


 


 


Morgan Stanley & Co. Incorporated


UBS Securities LLC

Goldman, Sachs & Co.

Credit Suisse Securities (USA) LLC

RBC Capital Markets Corporation


as the Representatives of the several Purchasers




 


Dated as of March 5, 2010


 





















 


REGISTRATION RIGHTS
AGREEMENT


 


This
Registration Rights Agreement (this “Agreement”) is made and entered into as of
March 5, 2010, by and among Niska Gas Storage US, LLC, a Delaware limited
liability company (“Niska US”), and, its wholly-owned subsidiary, Niska Gas
Storage US Finance Corp. (“US Finco” and together with Niska US, the “US
Issuers”), and Niska Gas Storage Canada ULC, an Alberta unlimited liability
corporation (“Niska Canada”) and, its wholly-owned subsidiary, Niska Gas
Storage Canada Finance Corp., a Delaware corporation (“Canadian Finco” and
together with Niska Canada, the “Canadian Issuers” and the Canadian Issuers
together with the US Issuers, the “Issuers”), the Guarantors party hereto
(collectively, the “Guarantors”), Morgan Stanley & Co. Incorporated,
UBS Securities LLC, Goldman, Sachs & Co., Credit Suisse Securities
(USA) LLC and RBC Capital Markets Corporation (the “Representatives”) as the
representatives of the several purchasers (the “Purchasers”) listed on Schedule
I to the Purchase Agreement (as defined below), each of whom has agreed to purchase
the units (the “Units”), each Unit consisting of $218.75 principal amount of
the 8.875% Senior Notes due 2018 of the US Issuers (the “US Notes”) and $781.25
principal amount of the 8.875% Senior Notes due 2018 of the Canadian Issuers
(the “Canadian Notes” and, together with the US Notes, the “Notes”). The Notes
will be unconditionally guaranteed (the “Note Guarantees”) on a senior
unsecured basis by the Guarantors pursuant to the Indenture (as defined
below).  The Units and the Note
Guarantees attached thereto are herein collectively referred to as the “Securities.”


 


This Agreement is made pursuant to the Purchase
Agreement, dated February 26, 2010 (the “Purchase Agreement”), among the
Issuers, the Guarantors and the Representatives on behalf of themselves and
each of the other Purchasers (i) for the benefit of the Purchasers and (ii) for
the benefit of the holders from time to time of the Transfer Restricted
Securities, including the Purchasers.  In
order to induce the Purchasers to purchase the Securities, the Issuers have
agreed to provide the Purchasers the registration rights set forth in this
Agreement.  The execution and delivery of
this Agreement is a condition to the obligations of the Purchasers set forth in
Section 8(k) of the Purchase Agreement.


 


The parties hereby agree as follows:


 


SECTION 1.           Definitions.  As used in this Agreement, the following
capitalized terms shall have the following meanings:


 


Additional Interest:  As defined in Section 5
hereof.


 


Advice:  As defined
in Section 6(c) hereof.


 


Agreement:  As defined
in the preamble hereof.


 


Broker-Dealer:  Any broker or
dealer registered under the Exchange Act.


 


Business Day:  Any day other than a Saturday, Sunday or U.S.
federal holiday or a day on which banking institutions or trust companies
located in New York, New York are authorized or obligated to be closed.


 





















 


Closing Date:  The date of
this Agreement.


 


Commission:  The U.S.
Securities and Exchange Commission.


 


Consummate:  A registered
Exchange Offer shall be deemed “Consummated” for purposes of this Agreement
upon the occurrence of (i) the filing and effectiveness under the Securities
Act of the Exchange Offer Registration Statement relating to the Exchange
Securities to be issued in the Exchange Offer, (ii) the maintenance of
such Registration Statement continuously effective and the keeping of the
Exchange Offer open for a period not less than the minimum period required
pursuant to Section 3(b) hereof, and (iii) the delivery by the
Issuers to the Registrar under the Indenture of Exchange Securities in the same
aggregate principal amount as the aggregate principal amount of Transfer
Restricted Securities that were tendered by Holders thereof pursuant to the
Exchange Offer.


 


Exchange Act:  The Securities
Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.


 


Exchange Date: As defined in Section 3 hereof.


 


Exchange Offer:  The
registration by the Issuers under the Securities Act of the exchange of
Transfer Restricted Securities for Exchange Securities or pursuant to a
Registration Statement pursuant to which the Issuers offer the Holders of all
outstanding Transfer Restricted Securities permitted under applicable law and
Commission policy to participate in such offer the opportunity to exchange all
such outstanding Transfer Restricted Securities held by such Holders for Exchange
Securities in an aggregate principal amount equal to the aggregate principal
amount of the Transfer Restricted Securities tendered in such exchange offer by
such Holders.


 


Exchange Offer Registration Statement: 
The Registration Statement relating to the Exchange Offer, including
the related Prospectus.


 


Exchange Securities:  The units, each
unit consisting of the 8.875% Senior Notes due 2018 of the US Issuers and the
8.875% Senior Notes due 2018 of the Canadian Issuers, of the same series under
the Indenture as the Units and the Note Guarantees attached thereto, to be issued
to Holders in exchange for Transfer Restricted Securities pursuant to this
Agreement.


 


FINRA: Financial Industry Regulatory Authority.


 


Guarantors:  As defined
in the preamble hereof.


 


Holders:  As defined in Section 2(b) hereof.


 


Indemnified Holder:  As defined in Section 8(a) hereof.


 


Indenture:  The Indenture,
dated as of March 5, 2010, by and among the Issuers, the Guarantors and
The Bank of New York Mellon, as trustee (the “Trustee”), pursuant to which the
Securities are to be issued, as such Indenture is amended or supplemented from
time to time in accordance with the terms thereof.


 


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Initial Placement:  The issuance
and sale by the Issuers of the Securities to the Purchasers pursuant to the
Purchase Agreement.


 


Issuer Indemnified Party:  As defined in Section 8(b) hereof.


 


Issuers:  As defined in the
preamble hereof.


 


Note Guarantees:  As
defined in the preamble hereof.


 


Person:  Any individual,
corporation, limited liability company, partnership, joint venture,
association, joint stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.


 


Prospectus:  The prospectus
included in a Registration Statement, as amended or supplemented by any
prospectus supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by reference into such
Prospectus.


 


Purchase Agreement:  As defined in
the preamble hereof.


 


Purchasers:  As defined in
the preamble hereof.


 


Registration Default:  As defined in Section 5
hereof.


 


Registration Statement:  Any
registration statement of the Issuers 
relating to (a) an offering of Exchange Securities pursuant to an
Exchange Offer or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement, which is filed pursuant
to the provisions of this Agreement, in each case, including the Prospectus
included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.


 


Securities:  As defined in
the preamble hereof.


 


Securities Act:  The Securities
Act of 1933, as amended and the rules and regulations promulgated
thereunder.


 


Shelf Filing Deadline:  As defined in Section 4(a) hereof.


 


Shelf Registration Statement:  As defined in Section 4(a) hereof.


 


Trust Indenture Act:  The Trust
Indenture Act of 1939, as amended and the rules and regulations
promulgated thereunder.


 


Transfer Restricted Securities:  The Securities;
provided that the Securities shall cease to be Transfer Restricted Securities
on the earliest to occur of (i) the date on which a Registration Statement
with respect to such Securities has become effective under the Securities Act
and such Securities have been exchanged or disposed of pursuant to such
Registration Statement or (ii) the date on which such Securities cease to
be outstanding.


 


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Underwritten Registration or Underwritten Offering:  A registration in which
securities of the Issuers are sold to an underwriter for reoffering to the
public.


 


SECTION 2.           Securities Subject to this
Agreement.


 


(a)           Transfer Restricted
Securities.  The securities
entitled to the benefits of this Agreement are the Transfer Restricted
Securities.


 


(b)           Holders of Transfer Restricted
Securities.  A Person is
deemed to be a holder of Transfer Restricted Securities (each, a “Holder”)
whenever such Person owns Transfer Restricted Securities.


 


SECTION 3.           Registered Exchange Offer.


 


(a)           Unless the Exchange Offer
shall not be permissible under applicable law or Commission policy (after the
procedures set forth in Section 6(a) hereof have been complied with),
each of the Issuers and the Guarantors shall use their reasonable best efforts
to (i) cause to be filed with the Commission, a Registration Statement
under the Securities Act relating to the Exchange Securities and the Exchange
Offer, (ii) cause such Registration Statement to become effective, (iii) in
connection with the foregoing, (A) file all pre-effective amendments to
such Registration Statement as may be necessary in order to cause such
Registration Statement to become effective, (B) if applicable, file a
post-effective amendment to such Registration Statement pursuant to Rule 430A
under the Securities Act and (C) cause all necessary filings in connection
with the registration and qualification of the Exchange Securities to be made
under the state securities or blue sky laws of such jurisdictions as are
necessary to permit Consummation of the Exchange Offer, and (iv) upon the
effectiveness of such Registration Statement, commence the Exchange Offer.  Each of the Issuers and the Guarantors shall
use their reasonable best efforts to Consummate the Exchange Offer not later
than 365 days following the Closing Date (or if such 365th day is not a Business
Day, the next succeeding Business Day) (the “Exchange Date”).  The Exchange Offer, if required pursuant to
this Section 3(a) shall be on the appropriate form permitting
registration of the Exchange Securities to be offered in exchange for the
Transfer Restricted Securities and to permit resales of Transfer Restricted
Securities held by Broker-Dealers as contemplated by Section 3(c) hereof.


 


(b)           If an Exchange Offer
Registration Statement is required to be filed and declared effective pursuant
to Section 3(a) above, the Issuers and the Guarantors shall cause the
Exchange Offer Registration Statement to be effective continuously and shall
keep the Exchange Offer open for a period of not less than the minimum period
required under applicable federal and state securities laws to Consummate the
Exchange Offer; provided, however, that in no
event shall such period be less than 20 Business Days as calculated pursuant to
the rules and regulations of the Commission after the date notice of the
Exchange Offer is mailed to the Holders. 
The Issuers shall cause the Exchange Offer to comply with all applicable
federal and state securities laws.  No
securities other than the Exchange Securities shall be included in the Exchange
Offer Registration Statement.  The Issuers
shall use their reasonable best efforts to cause the Exchange Offer to be Consummated
on or before the Exchange Date.


 


4





















 


(c)           The Issuers shall indicate
in a “Plan of Distribution” section contained in the Prospectus forming a part
of the Exchange Offer Registration Statement that any Broker-Dealer who holds
Transfer Restricted Securities that were acquired for its own account as a
result of market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Issuers), may exchange such
Transfer Restricted Securities pursuant to the Exchange Offer; however, such
Broker-Dealer may be deemed to be an “underwriter” within the meaning of the
Securities Act and must, therefore, deliver a prospectus meeting the
requirements of the Securities Act in connection with any resales of the
Exchange Securities received by such Broker-Dealer in the Exchange Offer, which
prospectus delivery requirement may be satisfied by the delivery by such
Broker-Dealer of the Prospectus contained in the Exchange Offer Registration
Statement.  Such “Plan of Distribution”
section shall also contain all other information with respect to such resales
by Broker-Dealers that the Commission may require in order to permit such
resales pursuant thereto, but such “Plan of Distribution” shall not name any
such Broker-Dealer or disclose the amount of Transfer Restricted Securities
held by any such Broker-Dealer except to the extent required by the Commission
as a result of a change in policy after the date of this Agreement.


 


Each of the Issuers and the Guarantors shall use
their reasonable best efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented and amended as required by the provisions
of Section 6(c) hereof to the extent necessary to ensure that it is
available for resales of Transfer Restricted Securities acquired by
Broker-Dealers for their own accounts as a result of market-making activities
or other trading activities, and to ensure that it conforms with the
requirements of this Agreement, the Securities Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period ending
on the earlier of (i) 180 days from the date on which the Exchange Offer
Registration Statement is declared effective and (ii) the date on which a
Broker-Dealer is no longer required to deliver a prospectus in connection with
market-making or other trading activities.


 


The Issuers shall provide sufficient copies of the
latest version of such Prospectus to Broker-Dealers promptly upon request at
any time during such 180-day (or shorter as provided in the foregoing sentence)
period in order to facilitate such resales.


 


SECTION 4.           Shelf Registration.


 


(a)           Shelf Registration.  If (i) the Issuers are
not required to file an Exchange Offer Registration Statement or to consummate
the Exchange Offer solely because the Exchange Offer is not permitted by
applicable law or Commission policy (after the procedures set forth in Section 6(a) hereof
have been complied with), (ii) for any reason the Exchange Offer is not Consummated
by the Exchange Date or (iii) prior to the Exchange Date:  (A) the Purchasers request from the
Issuers with respect to Transfer Restricted Securities not eligible to be
exchanged for Exchange Securities in the Exchange Offer, (B) with respect
to any Holder of Transfer Restricted Securities such Holder notifies the
Issuers that (i) such Holder is prohibited by applicable law or Commission
policy from participating in the Exchange Offer, (ii) such Holder may not
resell the Exchange Securities acquired by it in the Exchange Offer to the
public without delivering a prospectus and that the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for such
resales by such Holder, or (iii) such Holder is a Broker-Dealer 


 


5





















 


and holds Transfer Restricted Securities
acquired directly from the Issuers or one of their affiliates or (C) in
the case of the Purchasers, the Purchasers notify the Issuers they will not
receive Exchange Securities in exchange for Transfer Restricted Securities
constituting any portion of the Purchasers’s unsold allotment, the Issuers and
the Guarantors shall


 


(x)            use reasonable best efforts
to file a shelf registration statement pursuant to Rule 415 under the
Securities Act, which may be an amendment to the Exchange Offer Registration
Statement (in either event, the “Shelf Registration Statement”) as promptly as
practicable (such date being the “Shelf Filing Deadline”), which Shelf
Registration Statement shall provide for resales of all Transfer Restricted
Securities the Holders of which shall have provided the information required
pursuant to Section 4(b) hereof; and


 


(y)           use their reasonable best
efforts to cause such Shelf Registration Statement to be declared effective by
the Commission.


 


Each of the Issuers and the Guarantors shall use
their reasonable best efforts to keep such Shelf Registration Statement
continuously effective, supplemented and amended as required by the provisions
of Sections 6(b) and (c) hereof to the extent necessary to ensure
that it is available for resales of Transfer Restricted Securities by the
Holders of such Securities entitled to the benefit of this Section 4(a),
and to ensure that it conforms with the requirements of this Agreement, the
Securities Act and the policies, rules and regulations of the Commission
as announced from time to time, from the date on which the Shelf Registration
Statement is declared effective by the Commission until the expiration of the
two-year period after the Closing Date (or shorter period that will terminate
when all the Transfer Restricted Securities covered by such Shelf Registration
Statement have been sold pursuant to such Shelf Registration Statement; provided that the Issuers may for a period of up to 90 days
in any twelve-month period determine that the Shelf Registration Statement is
not usable under certain circumstances relating to corporate developments,
public filings with the Commission and similar events, and suspend the use of
the prospectus that is part of the Shelf Registration Statement).


 


(b)           Provision by Holders of Certain
Information in Connection with the Shelf Registration Statement.  No Holder of Transfer
Restricted Securities may include any of its Transfer Restricted Securities in
any Shelf Registration Statement pursuant to this Agreement unless and until
such Holder furnishes to the Issuers in writing, within 20 Business Days after
receipt of a request therefor, such information as the Issuers may reasonably
request for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein.  No Holder of Transfer Restricted Securities
shall be entitled to Additional Interest pursuant to Section 5 hereof
unless and until such Holder shall have provided all such information to the extent
such information is required; provided that such Additional Interest shall not
include any Additional Interest accrued prior to the provision of such
information by such Holder.  Each Holder
as to which any Shelf Registration Statement is being effected agrees to
furnish promptly to the Issuers all information required to be disclosed in
order to make the information previously furnished to the Issuers by such
Holder not materially misleading.


 


SECTION 5.           Additional Interest.  If (i) the Exchange
Offer has not been Consummated by the Exchange Date, (ii) any Shelf
Registration Statement, if required hereby, has not been declared effective by
the Commission 120 days after any obligation to file a shelf registration


 


6





















 


statement arises or (iii) any
Registration Statement required by this Agreement has been declared effective
but ceases to be effective at any time at which it is required to be effective
under this Agreement (each such event referred to in clauses (i) through
(iii), a “Registration Default”), the Issuers hereby agree that the interest
rate borne by the Transfer Restricted Securities shall be increased by 0.25%
per annum during the 90-day period immediately following the occurrence of any
Registration Default and shall increase by 0.25% per annum at the end of each
subsequent 90-day period (such increase, “Additional Interest”), but in no
event shall such increase exceed 1.00% per annum.  At the earlier of (i) the cure of all
Registration Defaults relating to the particular Transfer Restricted Securities
or (ii) the second anniversary of the Closing Date, the interest rate
borne by the relevant Transfer Restricted Securities will be reduced to the
original interest rate borne by such Transfer Restricted Securities; provided, however, that, if after any such reduction in
interest rate, a different Registration Default occurs, the interest rate borne
by the relevant Transfer Restricted Securities shall again be increased
pursuant to the foregoing provisions.


 


All obligations of the Issuers and the Guarantors
set forth in the preceding paragraph that are outstanding with respect to any
Transfer Restricted Security at the time such security ceases to be a Transfer
Restricted Security shall survive until such time as all such obligations with
respect to such security shall have been satisfied in full.


 


SECTION 6.           Registration Procedures.


 


(a)           Exchange Offer Registration
Statement.  In connection
with the Exchange Offer, if required pursuant to Section 3(a) hereof,
the Issuers and the Guarantors shall comply with all of the provisions of Section 6(c) hereof,
shall use their reasonable best efforts to effect such exchange to permit the
sale of Transfer Restricted Securities being sold in accordance with the intended
method or methods of distribution thereof, and shall comply with all of the
following provision:


 


(i)            As a condition
to its participation in the Exchange Offer pursuant to the terms of this
Agreement, each Holder of Transfer Restricted Securities shall furnish, upon
the request of the Issuers, prior to the Consummation thereof, a written
representation to the Issuers (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an affiliate of the Issuers, (B) it is not
engaged in, and does not intend to engage in, and has no arrangement or
understanding with any Person to participate in, a distribution of the Exchange
Securities to be issued in the Exchange Offer and (C) it is acquiring the
Exchange Securities in its ordinary course of business.  In addition, all such Holders of Transfer
Restricted Securities shall otherwise cooperate in the Issuers’ preparations
for the Exchange Offer.  Each Holder
hereby acknowledges and agrees that any Broker-Dealer and any such Holder using
the Exchange Offer to participate in a distribution of the securities to be
acquired in the Exchange Offer (1) could not under Commission policy as in
effect on the date of this Agreement rely on the position of the Commission
enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991)
and Exxon Capital Holdings Corporation (available May 13, 1988), as
interpreted in the Commission’s letter to Shearman & Sterling dated July 2,
1993, and similar no-action letters (which may include any no-action


 


7





















 


letter
obtained pursuant to clause (i) above), and (2) must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with a secondary resale transaction and that such a secondary resale
transaction should be covered by an effective registration statement containing
the selling security holder information required by Item 507 or 508, as
applicable, of Regulation S K if the resales are of Exchange Securities obtained
by such Holder in exchange for Transfer Restricted Securities acquired by such
Holder directly from the Issuers.


 


(b)           Shelf Registration
Statement.  If required
pursuant to Section 4 hereof, in connection with the Shelf Registration
Statement, each of the Issuers and the Guarantors shall comply with all the
provisions of Section 6(c) hereof and shall use their reasonable best
efforts to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof, and pursuant thereto each of the Issuers and
the Guarantors will as expeditiously as possible prepare and file with the
Commission a Registration Statement relating to the registration on any
appropriate form under the Securities Act, which form shall be available for
the sale of the Transfer Restricted Securities in accordance with the intended
method or methods of distribution thereof.


 


(c)           General Provisions.  In connection with any
Registration Statement and any Prospectus required by this Agreement to permit
the sale or resale of Transfer Restricted Securities (including, without
limitation, any Registration Statement and the related Prospectus required to
permit resales of Transfer Restricted Securities by Broker-Dealers), each of
the Issuers and the Guarantors shall:


 


(i)            use their
reasonable best efforts to keep such Registration Statement continuously
effective and provide all requisite financial statements (including, if
required by the Securities Act or any regulation thereunder, financial
statements of the Guarantors) for the period specified in Section 3 or 4
hereof, as applicable; upon the occurrence of any event that would cause any
such Registration Statement or the Prospectus contained therein (A) to
contain a material misstatement or omission or (B) not to be effective and
usable for resale of Transfer Restricted Securities during the period required
by this Agreement, the Issuers shall file promptly an appropriate amendment to
such Registration Statement, in the case of clause (A), correcting any such
misstatement or omission, and, in the case of either clause (A) or (B),
use their reasonable best efforts to cause such amendment to be declared
effective and such Registration Statement and the related Prospectus to become
usable for their intended purpose(s) as soon as practicable thereafter;


 


(ii)           use their
reasonable best efforts to prepare and file with the Commission such amendments
and post-effective amendments to the applicable Registration Statement as may
be necessary to keep the Registration Statement effective for the applicable
period set forth in Section 3 or 4 hereof, as applicable, or such shorter
period as will terminate when all Transfer Restricted Securities covered by
such Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to
be filed pursuant to Rule 424 under the Securities Act, and to comply
fully with the applicable provisions of Rules 424 and 430A under the


 


8





















 


Securities
Act in a timely manner; and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended method
or methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;


 


(iii)          advise the
underwriter(s), if any, and selling Holders promptly and, if requested by such
Persons, to confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and, with
respect to any Registration Statement or any post-effective amendment thereto,
when the same has become effective, (B) of any request by the Commission
for amendments to the Registration Statement or amendments or supplements to
the Prospectus or for additional information relating thereto, (C) of the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement under the Securities Act or of the suspension by any
state securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation of any proceeding
for any of the preceding purposes, (D) of the existence of any fact or the
happening of any event that makes any statement of a material fact made in the
Registration Statement, the Prospectus, any amendment or supplement thereto, or
any document incorporated by reference therein untrue, or that requires the
making of any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading.  If at any time the Commission shall issue any
stop order suspending the effectiveness of the Registration Statement, or any
state securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or blue sky laws, each of the
Issuers and the Guarantors shall use their reasonable best efforts to obtain
the withdrawal or lifting of such order at the earliest possible time;


 


(iv)          furnish without
charge to the Purchasers, each selling Holder named in any Registration
Statement, and each of the underwriter(s), if any, before filing with the Commission,
copies of any Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Registration Statement or Prospectus (including
all documents incorporated by reference after the initial filing of such
Registration Statement), which documents will be subject to the review and
comment of such Holders and underwriter(s) in connection with such sale,
if any, for a period of at least five Business Days, and the Issuers will not
file any such Registration Statement or Prospectus or any amendment or
supplement to any such Registration Statement or Prospectus (including all such
documents incorporated by reference) to which the Purchasers of Transfer
Restricted Securities covered by such Registration Statement or the underwriter(s),
if any, shall reasonably object in writing within five Business Days except for
any Registration Statement, Prospectus or any amendment or supplement to any
such Shelf Registration Statement or Prospectus (a copy of which has been
previously furnished as provided in the preceding sentence) that counsel to the
Issuers has advised the Issuers that are, to such counsel’s knowledge, required
to be filed to comply with applicable law after the receipt thereof (such
objection to be deemed timely made upon confirmation of telecopy transmission
within such period).  The objection of
the Purchasers or underwriters,


 


9


















 


if
any, shall be deemed to be reasonable if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be filed,
contains a material misstatement or omission;


 


(v)           if requested in
writing by Holders of a majority in principal amount of the Transfer Restricted
Securities covered by such Registration Statement (the “Majority Holders”),
promptly incorporate in any Registration Statement or Prospectus, pursuant to a
supplement or post-effective amendment if necessary, such information as such
selling Holders and underwriter(s), if any, may reasonably request to have
included therein, including, without limitation, information relating to the “Plan
of Distribution” of the Transfer Restricted Securities, information with respect
to the principal amount of Transfer Restricted Securities being sold to such
underwriter(s), the purchase price being paid therefor and any other terms of
the offering of the Transfer Restricted Securities to be sold in such offering;
and make all required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after the Issuers are notified of the matters
to be incorporated in such Prospectus supplement or post-effective amendment;


 


(vi)          cause the
Transfer Restricted Securities covered by the Registration Statement to be
rated with the appropriate rating agencies, if so requested by the Holders of a
Majority Holder;


 


(vii)         furnish to the
Purchasers, each selling Holder that so requests and each of the underwriter(s),
if any, without charge, at least one copy of the Registration Statement, as
first filed with the Commission, and of each amendment thereto, including
financial statements and schedules, all documents incorporated by reference
therein and all exhibits (including exhibits incorporated therein by
reference);


 


(viii)        deliver to each
selling Holder and each of the underwriter(s), if any, without charge, as many
copies of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may request; each of
the Issuers and the Guarantors hereby consent to the use of the Prospectus and
any amendment or supplement thereto by each of the selling Holders and each of
the underwriter(s), if any, in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any amendment or
supplement thereto;


 


(ix)           upon the
request of the Majority Holders enter into such agreements (including an
underwriting agreement), and make such representations and warranties, and take
all such other actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted Securities pursuant to
any Registration Statement contemplated by this Agreement, all to such extent
as may be reasonably requested by the Majority Holders in connection with any
sale or resale pursuant to any Registration Statement contemplated by this
Agreement; and whether or not an underwriting agreement is entered into and
whether or not the registration is an Underwritten Registration, each of the
Issuers and the Guarantors shall;


 


(A)          furnish to the
Purchasers, each selling Holder and each underwriter, if any, in such substance
and scope as they may request and as are customarily


 


10





















 


made
by issuers to underwriters in primary underwritten offerings, upon the date of
the Consummation of the Exchange Offer or, if applicable, the effectiveness of
the Shelf Registration Statement:


 


(1)           a certificate, dated the
date of Consummation of the Exchange Offer or the date of effectiveness of the
Shelf Registration Statement, as the case may be, signed by (y) the
President or any Vice President and (z) a principal financial or
accounting officer of each of the Issuers and the Guarantors, confirming, as of
the date thereof, the matters set forth in Section 8(l) of the
Purchase Agreement and such other matters as such parties may reasonably
request;


 


(2)           opinions, dated the date of
Consummation of the Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, of counsel, covering the matters
set forth in Sections 8(b) - 8(f) of the Purchase Agreement and such
other matters as such parties may reasonably request, and in any event
including a statement to the effect that such counsel have participated in
conferences with officers and other representatives of the Issuers and the
Guarantors, representatives of the independent public accountants for the
Issuers and the Guarantors, representatives of the underwriter(s), if any, and
counsel to the underwriter(s), if any, in connection with the preparation of
such Registration Statement and the related Prospectus and have considered the
matters required to be stated therein and the statements contained therein,
although such counsel have not independently verified the accuracy,
completeness or fairness of such statements; and that such counsel advises
that, on the basis of the foregoing, no facts came to such counsels’ attention
that caused such counsel to believe that the applicable Registration Statement,
at the time such Registration Statement or any post-effective amendment thereto
became effective, and, in the case of the Exchange Offer Registration
Statement, as of the date of Consummation, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus contained in such Registration Statement as of its date and, in the
case of the opinion dated the date of Consummation of the Exchange Offer, as of
the date of Consummation, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein not misleading.  Without limiting
the foregoing, such counsel may state further that such counsel assumes no responsibility
for, and has not independently verified, the accuracy, completeness or fairness
of the financial statements, notes and schedules and other financial data
included in any Registration Statement contemplated by this Agreement or the
related Prospectus; and


 


(3)           a customary comfort letter,
dated the date of effectiveness of the Shelf Registration Statement, from the
Issuers’ independent accountants,


 


11

















 


in the customary form and covering matters of the type customarily
requested to be covered in comfort letters by underwriters in connection with
primary underwritten offerings, and covering or affirming the matters set forth
in the comfort letters delivered pursuant to Section 8(g) of the
Purchase Agreement, without exception;


 


(B)           set forth in
full or incorporate by reference in the underwriting agreement, if any, the
indemnification provisions and procedures of Section 8 hereof with respect
to all parties to be indemnified pursuant to said Section; and


 


(C)           deliver such
other documents and certificates as may be reasonably requested by such parties
to evidence compliance with Section 6(c)(ix)(A) hereof and with any
customary conditions contained in the underwriting agreement or other agreement
entered into by the Issuers or any of the Guarantors pursuant to this Section 6(c)(ix),
if any.


 


If at any time the representations and warranties
of the Issuers and the Guarantors contemplated in Section 6(c)(ix)(A)(1) hereof
cease to be true and correct, the Issuers or the Guarantors shall so advise the
Purchasers and the underwriters, if any, and each selling Holder promptly and,
if requested by such Persons, shall confirm such advice in writing;


 


(x)            prior to any
public offering of Transfer Restricted Securities, cooperate with the selling
Holders, the underwriter(s), if any, and their respective counsel in connection
with the registration and qualification of the Transfer Restricted Securities
under the state securities or blue sky laws of such jurisdictions as the
selling Holders or underwriter(s), if any, may request and do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the Shelf
Registration Statement; provided, however,
that none of the Issuers or the Guarantors shall be required to register or
qualify as a foreign corporation where it is not then so qualified or to take
any action that would subject it to the service of process in suits or to
taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not then so subject;


 


(xi)           shall issue,
upon the request of any Holder of Transfer Restricted Securities covered by the
Shelf Registration Statement, Exchange Securities having an aggregate principal
amount equal to the aggregate principal amount of Transfer Restricted Securities
surrendered to the Issuers by such Holder in exchange therefor or being sold by
such Holder; such Exchange Securities to be registered in the name of such
Holder or in the name of the purchaser(s) of such Securities, as the case
may be; in return, the Transfer Restricted Securities held by such Holder shall
be surrendered to the Issuers for cancellation;


 


(xii)          cooperate with
the selling Holders and the underwriter(s), if any, to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends; and enable such
Transfer Restricted Securities to be in such denominations and registered in
such names as the 


 


12





















 


Holders
or the underwriter(s), if any, may request at least two Business Days prior to
any sale of Transfer Restricted Securities made by such Holders or
underwriter(s);


 


(xiii)         use their
reasonable best efforts to cause the Transfer Restricted Securities covered by
the Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the seller
or sellers thereof or the underwriter(s), if any, to consummate the disposition
of such Transfer Restricted Securities, subject to the proviso contained in Section 6(c)(x) hereof;


 


(xiv)        if any fact or
event contemplated by Section 6(c)(iii)(D) hereof shall exist or have
occurred, prepare a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein not misleading;


 


(xv)         provide a CUSIP
number for all Securities not later than the effective date of the Registration
Statement covering such Securities and provide the Trustee under the Indenture
with printed certificates for such Securities which are in a form eligible for
deposit with the Depository Trust Company and take all other action necessary
to ensure that all such Securities are eligible for deposit with the Depository
Trust Company;


 


(xvi)        cooperate and
assist in any filings required to be made with FINRA and in the performance of
any due diligence investigation by any underwriter (including any “qualified
independent underwriter”) that is required to be retained in accordance with
the rules and regulations of FINRA;


 


(xvii)       otherwise use
their reasonable best efforts to comply with all applicable rules and
regulations of the Commission, and make generally available to their security
holders, as soon as practicable, a consolidated earnings statement meeting the
requirements of Rule 158 of the Securities Act (which need not be audited)
for the twelve-month period (A) commencing at the end of any fiscal
quarter in which Transfer Restricted Securities are sold to underwriters in a
firm commitment or best efforts Underwritten Offering or (B) if not sold
to underwriters in such an offering, beginning with the first month of the
Issuers’ first fiscal quarter commencing after the effective date of the Registration
Statement; and


 


(xviii)      cause the
Indenture to be qualified under the Trust Indenture Act not later than the
effective date of the first Registration Statement required by this Agreement,
and, in connection therewith, cooperate with the Trustee and the Holders of
Securities to effect such changes to the Indenture as may be required for such
Indenture to be so qualified in accordance with the terms of the Trust
Indenture Act; and to execute and use their reasonable best efforts to cause
the Trustee to execute, all documents that may be required to effect such
changes and all other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a timely manner.


 


13





















 


Each Holder agrees by acquisition of a Transfer
Restricted Security that, upon receipt of any notice from the Issuers of the
existence of any fact of the kind described in Section 6(c)(iii)(D) hereof,
such Holder will forthwith discontinue disposition of Transfer Restricted Securities
pursuant to the applicable Registration Statement until such Holder’s receipt
of the copies of the supplemented or amended Prospectus contemplated by Section 6(c)(xiv)
hereof, or until it is advised in writing (the “Advice”) by the Issuers that
the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference in the
Prospectus.  If so directed by the
Issuers, each Holder will deliver to the Issuers (at the Issuers’ expense) all
copies, other than permanent file copies then in such Holder’s possession, of
the Prospectus covering such Transfer Restricted Securities that was current at
the time of receipt of such notice.  In
the event the Issuers shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4
hereof, as applicable, shall be extended by the number of days during the
period from and including the date of the giving of such notice pursuant to Section 6(c)(iii)(D) hereof
to and including the date when each selling Holder covered by such Registration
Statement shall have received the copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(xiv) hereof or shall have received
the Advice; provided, however, that no such
extension shall be taken into account in determining whether Additional
Interest is due pursuant to Section 5 hereof or the amount of such
Additional Interest.


 


SECTION 7.           Registration Expenses.


 


(a)           All expenses incident to the
Issuers’ and the Guarantors’ performance of or compliance with this Agreement
(other than underwriting discounts or commissions) will be borne by the Issuers
and the Guarantors, jointly and severally, regardless of whether a Registration
Statement becomes effective, including, without limitation: (i) all
registration and filing fees and expenses (including filings made by the
Purchasers or Holder with FINRA (and, if applicable, the fees and expenses of
any “qualified independent underwriter” and its counsel that may be required by
the rules and regulations of FINRA)); (ii) all fees and expenses of
compliance with federal securities and state securities or blue sky laws; (iii) all
expenses of printing (including printing certificates for the Exchange
Securities to be issued in the Exchange Offer and printing of Prospectuses),
messenger and delivery services and telephone; (iv) all fees and
disbursements of counsel for the Issuers, the Guarantors and, subject to Section 7(b) hereof,
of one firm of counsel, including local counsel, for the Holders of Transfer
Restricted Securities; (v) all application and filing fees, if applicable,
in connection with listing the Exchange Securities on a securities exchange or
automated quotation system pursuant to the requirements thereof; and (vi) all
fees and disbursements of independent certified public accountants of the
Issuers and the Guarantors (including the expenses of any special audit and
comfort letters required by or incident to such performance).


 


Each of the Issuers and the Guarantors will, in any
event, bear their internal expenses (including, without limitation, all
salaries and expenses of their officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and expenses
of any Person, including special experts, retained by the Issuers or the
Guarantors.


 


14

















 


(b)           In connection with any
Registration Statement required by this Agreement (including, without
limitation, the Exchange Offer Registration Statement and the Shelf Registration
Statement), the Issuers and the Guarantors, jointly and severally, will
reimburse the Purchasers and the Holders of Transfer Restricted Securities
being tendered in the Exchange Offer and/or resold pursuant to the “Plan of
Distribution” contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
Cahill Gordon & Reindel LLP or such other counsel as may be chosen by
the Holders of a majority in principal amount of the Transfer Restricted
Securities for whose benefit such Registration Statement is being prepared.


 


SECTION 8.           Indemnification.


 


(a)           The Issuers and the
Guarantors, jointly and severally, agree to indemnify and hold harmless (A) (i) each
Holder, (ii) each Person, if any, who controls (within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act) any Holder (any
of the Persons referred to in this clause (ii) being hereinafter referred
to as a “controlling person”) and (iii) the respective officers,
directors, partners, employees, representatives and agents of any Holder or any
controlling person (any Person referred to in clause (i), (ii) or (iii) may
hereinafter be referred to as an “Indemnified Holder”), to the fullest extent
lawful, from and against any and all losses, claims, damages, liabilities,
judgments, actions and expenses (including, without limitation, and as
incurred, reimbursement of all reasonable costs of investigating, preparing,
pursuing, settling, compromising, paying or defending any claim or action, or
any investigation or proceeding by any governmental agency or body, commenced
or threatened, including the reasonable fees and expenses of counsel to any
Indemnified Holder), joint or several, directly or indirectly caused by,
related to, based upon, arising out of or in connection with any untrue statement
or alleged untrue statement of a material fact contained in any Registration
Statement or Prospectus (or any amendment or supplement thereto), or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or expenses are
caused by an untrue statement or omission or alleged untrue statement or
omission that is made in reliance upon and in conformity with information
relating to any of the Holders furnished in writing to the Issuers by any of
the Holders expressly for use therein. 
This indemnity agreement shall be in addition to any liability which the
Issuers or any of the Guarantors may otherwise have.


 


In case any action or proceeding (including any
governmental or regulatory investigation or proceeding) shall be brought or
asserted against any of the Indemnified Holders with respect to which indemnity
may be sought against the Issuers or the Guarantors, such Indemnified Holder
(or the Indemnified Holder controlled by such controlling person) shall
promptly notify the Issuers and the Guarantors in writing; provided,
however, that the failure to give such notice shall not relieve any
of the Issuers or the Guarantors of their obligations pursuant to this Agreement.  Such Indemnified Holder shall have the right
to employ its own counsel in any such action and the fees and expenses of such
counsel shall be paid, as incurred, by the Issuers and the Guarantors
(regardless of whether it is ultimately determined that an Indemnified Holder
is not entitled to indemnification hereunder). 
The Issuers and the Guarantors shall not, in connection with any one
such action or proceeding or separate but substantially similar or related
actions or 


 


15

















 


proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) at any time for such Indemnified
Holders.  Any such firm for each Holder,
any controlling person or the respective officers, directors, partners,
employees, representatives and agents of any Holder or any controlling person
shall be designated by the Holders.  The
Issuers and the Guarantors shall be liable for any settlement of any such
action or proceeding effected with the Issuers’ and the Guarantors’ prior
written consent, which consent shall not be withheld unreasonably, and each of
the Issuers and the Guarantors agrees to indemnify and hold harmless any
Indemnified Holder from and against any loss, claim, damage, liability or expense
by reason of any settlement of any action effected with the written consent of
the Issuers and the Guarantors.  The
Issuers and the Guarantors shall not, without the prior written consent of each
Indemnified Holder, settle or compromise or consent to the entry of judgment in
or otherwise seek to terminate any pending or threatened action, claim,
litigation or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not any Indemnified Holder is a party
thereto), unless such settlement, compromise, consent or termination includes
an unconditional release of each Indemnified Holder from all liability arising
out of such action, claim, litigation or proceeding.


 


(b)           Each Holder of Transfer
Restricted Securities agrees, severally and not jointly, to indemnify and hold
harmless (i) the Issuers, the Guarantors and their respective directors,
officers of each of the Issuers and the Guarantors who sign a Registration
Statement, and (ii) any Person controlling (within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act) the Issuers or
any of the Guarantors, and the respective officers, directors, partners,
employees, representatives and agents of each such Person (any Person referred
to in clause (i) or (ii) may hereinafter be referred to as an “Issuer
Indemnified Party”), to the same extent as the foregoing indemnity from the
Issuers and the Guarantors to each of the Indemnified Holders, but only with
respect to claims and actions based on information relating to such Holder furnished
in writing by such Holder expressly for use in any Registration Statement.  In case any action or proceeding shall be
brought against an Issuer Indemnified Party in respect of which indemnity may
be sought against a Holder of Transfer Restricted Securities, such Holder shall
have the rights and duties given the Issuers and the Guarantors, and the Issuer
Indemnified Party shall have the rights and duties given to each Holder by the
preceding paragraph.


 


(c)           If the indemnification
provided for in this Section 8 is unavailable to an indemnified party
under Section 8(a) or (b) hereof (other than by reason of
exceptions provided in those Sections) in respect of any losses, claims,
damages, liabilities, judgments, actions or expenses referred to therein, then
each applicable 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 losses, claims, damages, liabilities, judgments or expenses
in such proportion as is appropriate to reflect the relative benefits received
by the Issuers and the Guarantors, on the one hand, and the Holders, on the
other hand, from the Initial Placement (which in the case of the Issuers and
the Guarantors shall be deemed to be equal to the total gross proceeds to the Issuers
and the Guarantors from the Initial Placement), the amount of Additional
Interest which did not become payable as a result of the filing of the
Registration Statement resulting in such losses, claims, damages, liabilities,
judgments, actions or expenses, and such Registration Statement, or if such
allocation is not permitted by applicable law, the relative fault of the
Issuers and the Guarantors,


 


16





















 


on the one hand, and the Holders, on the
other hand, in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations.  The
relative fault of the Issuers and the Guarantors on the one hand and of the
Holders 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 relates to information
supplied by the Issuers or any of the Guarantors, on the one hand, or the
Holders, on the other hand, and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission.  The amount paid or payable by
a party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in the second paragraph of Section 8(a) hereof, any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.


 


The Issuers, the Guarantors, each Holder of Transfer
Restricted Securities agree that it would not be just and equitable if
contribution pursuant to this Section 8(c) were determined by pro
rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph.  The amount paid or payable by
an indemnified party as a result of the losses, claims, damages, liabilities or
expenses referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. 
Notwithstanding the provisions of this Section 8, none of the
Holders (and its related Indemnified Holders) shall be required to contribute,
in the aggregate, any amount in excess of the amount by which the total
discount with respect to the Securities received by such Holder exceeds the
amount of any damages which such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission.  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 was not
guilty of such fraudulent misrepresentation. 
The Holders’ obligations to contribute pursuant to this Section 8(c) are
several in proportion to the respective principal amount of Securities held by
each of the Holders hereunder and not joint.


 


SECTION 9.           Rule 144A.  Each of the Issuers and the
Guarantors hereby agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which the
Issuers or the Guarantors are not subject to Section 13 or 15(d) of
the Exchange Act, to make available to any Holder or beneficial owner of
Transfer Restricted Securities in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Securities from such Holder
or beneficial owner, the information required by Rule 144A(d)(4) under
the Securities Act in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144A under the Securities Act.


 


SECTION 10.         Participation in Underwritten
Registrations.  No Holder may
participate in any Underwritten Registration hereunder unless such Holder (a) agrees
to sell such Holder’s Transfer Restricted Securities on the basis provided in
any underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements and (b) completes and executes 


 


17

















 


all reasonable questionnaires, powers of
attorney, indemnities, underwriting agreements, lock-up letters and other
documents required under the terms of such underwriting arrangements.


 


SECTION 11.         Selection of Underwriters.  The Holders of Transfer
Restricted Securities covered by the Shelf Registration Statement who desire to
do so may sell such Transfer Restricted Securities in an Underwritten
Offering.  In any such Underwritten
Offering, the investment banker(s) and managing underwriter(s) that
will administer such offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided, however, that such
investment banker(s) and managing underwriter(s) must be reasonably
satisfactory to the Issuers.


 


SECTION 12.         Miscellaneous.


 


(a)           Remedies.  Each of the Issuers and the
Guarantors hereby agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agree to waive the defense in any
action for specific performance that a remedy at law would be adequate.


 


(b)           No Inconsistent Agreements.  Each of the Issuers and the
Guarantors will not on or after the date of this Agreement enter into any
agreement with respect to their securities that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof.  Neither the Issuers
nor any of the Guarantors has previously entered into any agreement granting
any registration rights with respect to their securities to any Person.  The rights granted to the Holders hereunder
do not in any way conflict with and are not inconsistent with the rights
granted to the holders of the Issuers’ or any of the Guarantors’ securities under
any agreement in effect on the date hereof.


 


(c)           Adjustments Affecting the
Securities.  The Issuers
will not take any action, or permit any change to occur, with respect to the
Securities that would materially and adversely affect the ability of the
Holders to Consummate any Exchange Offer.


 


(d)           Amendments and Waivers.  The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to or departures from the provisions hereof may not be given unless the Issuers
have (i) in the case of Section 5 hereof and this Section 12(d)(i) obtained
the written consent of Holders of all outstanding Transfer Restricted
Securities and (ii) in the case of all other provisions hereof (including Section 8
hereof as it relates to the Holders), obtained the written consent of Holders
of a majority of the outstanding principal amount of Transfer Restricted
Securities (excluding any Transfer Restricted Securities held by the Issuers or
their Affiliates).  Notwithstanding the
foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of Holders whose securities are being
tendered pursuant to the Exchange Offer and that does not affect directly or
indirectly the rights of other Holders whose securities are not being tendered
pursuant to such Exchange Offer may be given by the Holders of a majority of
the outstanding principal amount of Transfer Restricted Securities being
tendered or registered; provided, however,
that, with respect to any matter that directly or indirectly affects the rights
of the Purchasers hereunder, the Issuers shall obtain the written consent of
the Purchasers with respect to which such amendment, qualification, supplement,
waiver, consent or departure is to be effective.


 


18

















 


(e)           Notices.  All notices and other
communications provided for or permitted hereunder shall be made in writing by
hand-delivery, first-class mail (registered or certified, return receipt requested),
telex, telecopier, or air courier guaranteeing overnight delivery:


 


(i)            if to a Holder,
at the address set forth on the records of the Registrar under the Indenture,
with a copy to the Registrar under the Indenture; and


 


(ii)           If to the
Issuers or the Guarantors:


 


Niska Gas Storage

2780 West Liberty Road

Gridley, CA 95948

Facsimile:  1-866-452-8832

Attention:  Chief Legal Officer


 


with a copy to:


 


Vinson &
Elkins LLP

666 Fifth Avenue, 26th Floor

New York, New York 10103

Facsimile:  (212) 237-0000

Attention:  Mike Rosenwasser


 


All such notices and communications shall be deemed
to have been duly given:  at the time delivered
by hand, if personally delivered; five Business Days after being deposited in
the mail, postage prepaid, if mailed; when answered back, if telexed; when
receipt acknowledged, if telecopied; and on the next Business Day, if timely
delivered to an air courier guaranteeing overnight delivery.


 


Copies of all such notices, demands or other
communications shall be concurrently delivered by the Person giving the same to
the Trustee at the address specified in the Indenture.


 


(f)            Successors and Assigns.  This Agreement shall inure
to the benefit of and be binding upon the successors and assigns of each of the
parties, including, without limitation, and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; provided, however, that this Agreement shall not inure to
the benefit of or be binding upon a successor or assign of a Holder unless and
to the extent such successor or assign acquired Transfer Restricted Securities
from such Holder.


 


(g)           Counterparts.  This Agreement may be
executed in any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.


 


(h)           Headings.  The headings in this
Agreement are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.


 


19














 


(i)            Governing Law.  THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE CONFLICTS OF LAW RULES THEREOF.


 


(j)            Severability.  In the event that any one or
more of the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.


 


(k)           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 registration rights granted by the Issuers with respect to
the Transfer Restricted Securities.  This
Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.


 


20





















 


IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.


 


	
   

  	
  NISKA GAS STORAGE US, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Darin T. Olson

  
	
   

  	
   

  	
  Name:  Darin
  T. Olson

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  NISKA GAS STORAGE US
  FINANCE CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Darin T. Olson

  
	
   

  	
  Name:  Darin
  T. Olson

  
	
   

  	
  Title:  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  NISKA GAS STORAGE CANADA
  ULC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Darin T. Olson

  
	
   

  	
   

  	
  Name:  Darin
  T. Olson

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  NISKA GAS STORAGE CANADA
  FINANCE CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Darin T. Olson

  
	
   

  	
   

  	
  Name:  Darin
  T. Olson

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  
				



 


21

















 


	
   

  	
  AECO GAS STORAGE PARTNERSHIP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Darin T. Olson

  
	
   

  	
   

  	
  Name:  Darin
  T. Olson

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  NISKA GAS STORAGE LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Darin T. Olson

  
	
   

  	
   

  	
  Name:  Darin
  T. Olson

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  WILD GOOSE STORAGE, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Darin T. Olson

  
	
   

  	
   

  	
  Name:  Darin
  T. Olson

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  NISKA GAS TRANSPORT INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Darin T. Olson

  
	
   

  	
   

  	
  Name:  Darin
  T. Olson

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  SALT PLAINS STORAGE, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Darin T. Olson

  
	
   

  	
   

  	
  Name:  Darin
  T. Olson

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  



 


22

















 


	
   

  	
  NISKA GP ALBERTA ULC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Darin T. Olson

  
	
   

  	
   

  	
  Name:  Darin
  T. Olson

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  ENERSTREAM AGENCY SERVICES INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Darin T. Olson

  
	
   

  	
   

  	
  Name:  Darin
  T. Olson

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  ACCESS GAS SERVICES INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jason A. Dubchak 

  
	
   

  	
   

  	
  Name:  Jason
  A. Dubchak 

  
	
   

  	
   

  	
  Title:  Vice President, General Counsel & Corporate
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
  ACCESS GAS SERVICES (ALBERTA) INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jason A. Dubchak 

  
	
   

  	
   

  	
  Name:  Jason
  A. Dubchak 

  
	
   

  	
   

  	
  Title:  Vice President, General Counsel & Corporate
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
  ACCESS GAS SERVICES (ONTARIO) INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jason A. Dubchak 

  
	
   

  	
   

  	
  Name:  Jason
  A. Dubchak 

  
	
   

  	
   

  	
  Title:  Vice President, General Counsel & Corporate
  Secretary

  



 


23

















 


	
   

  	
  NISKA GS HOLDINGS I, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Darin T. Olson 

  
	
   

  	
   

  	
  Name:  Darin T.
  Olson 

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  NISKA GS HOLDINGS II,
  L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Darin T. Olson 

  
	
   

  	
   

  	
  Name:  Darin T.
  Olson 

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  NISKA GAS STORAGE CANADA GP, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Darin T. Olson 

  
	
   

  	
   

  	
  Name:  Darin T.
  Olson 

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  NISKA GAS STORAGE CANADA, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Darin T. Olson 

  
	
   

  	
   

  	
  Name:  Darin T.
  Olson 

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  



 


24

















 


The foregoing Registration Rights Agreement is
hereby confirmed and accepted as of the date first above written:


 


Morgan
Stanley & Co. Incorporated


UBS
Securities LLC


Goldman,
Sachs & Co.

Credit Suisse Securities (USA) LLC

RBC Capital Markets Corporation

Barclays Capital Inc.


Scotia
Capital (USA) Inc.


Natixis
Bleichroeder LLC
 U.S. Bancorp Investments, Inc.


Citigroup Global Markets Inc.


Daiwa Securities America Inc.


BNP Paribas Securities Corp.


 


 


	
  By:

  	
  Morgan
  Stanley & Co. Incorporated

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  William Graham

  	
   

  
	
   

  	
  Name:  William Graham

  	
   

  
	
   

  	
  Title:  Authorized Signatory

  	
   

  



 


 


Acting
for themselves and the other several Purchasers