Freeport-McMoRan Resource Partners,
Limited Partnership
7% Senior Notes due 2008
Underwriting Agreement
February 14, 1996
▇▇▇▇▇▇ Brothers Inc.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
Salomon Brothers Inc,
c/▇ ▇▇▇▇▇▇ Brothers Inc.,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
Dear Sirs:
Freeport-McMoRan Resource Partners, Limited Partnership, a
Delaware limited partnership (the "Company"), proposes, subject to the
terms and conditions stated herein, to issue and sell to you (the
"Underwriters") certain of its debt securities specified as an aggregate
of $150,000,000 of its 7% Senior Notes due 2008 (the "Designated
Securities").
1. The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(a) A registration statement in respect of an aggregate of
$500,000,000 principal amount of debt securities (including the
Designated Securities) and warrants to purchase debt securities
(collectively, the "Securities") has been filed with the
Securities and Exchange Commission (the "Commission"); such
registration statement and any post-effective amendment thereto,
each in the form heretofore delivered to you, have been declared
effective by the Commission in such form; no document with respect
to such registration statement or document incorporated by
reference therein has heretofore been filed or transmitted for
filing with the Commission other than those heretofore delivered
to you; and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in such registration statement or
filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Securities Act of 1933, as
amended (the "Act"), being hereinafter called a "Preliminary
Prospectus"; the various parts of such registration statement
including all exhibits thereto and the documents incorporated by
reference in the prospectus contained in the registration
statement at the time such part of the registration statement
became effective but excluding Form T-1, each as amended at the
time such part of the registration statement became effective,
being hereinafter called the "Registration Statement"; the
prospectus relating to the Securities, in the form in which it has
most recently been filed, or transmitted for filing, with the
Commission on or prior to the date of this Agreement, being
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act, as of the date of
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to
the Registration Statement shall be deemed to refer to and include
any annual report of the Company filed pursuant to Section 13(a)
or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to the Prospectus
as amended or supplemented in relation to the Designated
Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section
5(a) hereof, including any documents incorporated by reference
therein as of the date of such filing);
(b) No order preventing or suspending the use of any
Preliminary Prospectus or preliminary prospectus supplement has
been issued by the Commission, and each Preliminary Prospectus and
preliminary prospectus supplement, at the time of filing thereof,
conformed in all material respects to the requirements of the Act
and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by
you expressly for use therein;
(c) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder, and
none of such documents 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; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with
the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by you expressly for use in the Prospectus
as amended or supplemented relating to the Designated Securities;
(d) The Registration Statement and the Prospectus conform,
and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects
to the requirements of the Act and the Trust Indenture Act, and
the rules and regulations of the Commission thereunder and do not
and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by
the Underwriters expressly for use in the Prospectus as amended or
supplemented relating to the Designated Securities;
(e) Neither the Company, nor any of its subsidiaries, nor,
to the best of the Company's knowledge, IMC-Agrico Company ("IMC")
has sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus
any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as
of which information is given in the Registration Statement and
the Prospectus, there has not been (a) any change in the partners'
capital or (b) any increase in excess of $15 million in long-term
debt of the Company or any of its subsidiaries or, to the best of
the Company's knowledge, IMC above the amount of such debt on such
dates or (c) any material adverse change, or any development
involving a prospective material adverse change, in or affecting
the general affairs, management, financial position, partners'
capital or results of operations of the Company, its subsidiaries
and, to the best of the Company's knowledge, IMC, otherwise than
as set forth or contemplated in the Prospectus;
(f) The Company has been duly organized and is validly
existing as a limited partnership in good standing as a limited
partnership under the Delaware Revised Uniform Limited Partnership
Act with all requisite power and authority to own its properties
and conduct its business as described in the Prospectus; each
subsidiary of the Company and IMC has been duly incorporated or
organized and is validly existing as a corporation, partnership or
limited partnership, as the case may be, in good standing under
the laws of its jurisdiction of incorporation or organization as
the case may be; and each of the Company and its subsidiaries has
been duly qualified as a foreign corporation for the transaction
of business and is in good standing to the extent applicable under
the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, except where the failure to be so qualified or in
good standing, considering all such cases in the aggregate, does
not involve a material risk to the business, properties, financial
position or results of operations of the Company and its
subsidiaries considered as a whole;
(g) The Company has the partners' capital as set forth in
the Prospectus, and all of the issued partnership interests of the
Company have been duly and validly authorized and issued and are
fully paid and non-assessable except as required under the
Delaware Revised Uniform Limited Partnership Act;
(h) The Securities have been duly authorized, and, when
Designated Securities are issued and delivered pursuant to this
Agreement, such Designated Securities will have been duly
executed, authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Company entitled to
the benefits provided by the Indenture (the "Indenture") dated as
of February 1, 1996 between the Company and Chemical Bank as
Trustee (the "Trustee"), which will be substantially in the form
filed as an exhibit to the Registration Statement; the Indenture
has been duly authorized and duly qualified under the Trust
Indenture Act and, at the Time of Delivery (as defined in Section
4 hereof), the Indenture will constitute a valid and legally
binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
and the Indenture conforms, and the Designated Securities will
conform, to the descriptions thereof contained in the Prospectus
as amended or supplemented relating to such Designated Securities;
(i) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the
Designated Securities, the Indenture and this Agreement, and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will such
action result in any violation of the provisions of the
Certificate of Limited Partnership or Amended and Restated
Agreement of Limited Partnership of the Company or any statute or
any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the
issue and sale of the Securities or the consummation by the
Company of the transactions contemplated by this Agreement or the
Indenture, except such as have been, or will have been prior to
the Time of Delivery, obtained under the Act and the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(j) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or
any of its subsidiaries or, to the best of the Company's
knowledge, IMC is a party or of which any property of the Company
or any of its subsidiaries or, to the best of the Company's
knowledge, IMC is the subject which, if determined adversely to
the Company or any of its subsidiaries or IMC, would individually
or in the aggregate have a material adverse effect on the
consolidated financial position, partners' capital or results of
operations of the Company and its subsidiaries and IMC; and, to
the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
(k) The Company and its subsidiaries and, to the best of
the Company's knowledge, IMC possess such licenses, certificates,
permits and other authorizations issued by the appropriate state,
federal or foreign regulatory agencies or bodies as are currently
required to conduct the businesses now operated by them and all
such licenses, certificates, permits and other authorizations are
in full force and effect and the Company and its subsidiaries and,
to the best of the Company's knowledge, IMC are in compliance
therewith, except where the failure to possess or comply with such
licenses, certificates, permits or authorizations would not have a
material adverse effect on the condition, financial or otherwise,
or the earnings, business affairs or business prospects of the
Company and its subsidiaries and IMC considered as a whole;
(l) Other than as set forth in the Prospectus, the Company
and its subsidiaries have good title to their properties and
businesses, free and clear of all liens, encumbrances, claims and
security interests except for (a) liens deemed to exist by virtue
of negative pledge covenants in agreements under which the Company
has or is entitled to incur indebtedness or (b) liens, claims and
encumbrances under sales contracts, operating agreements,
unitization and pooling agreements and other similar agreements as
are customarily found in connection with comparable operations,
and except for other liens, claims, encumbrances and title defects
that are, singly and in the aggregate, not material in amount or
do not materially interfere with the Company's and its
subsidiaries' use or enjoyment of their properties; and
(m) The Company is not an "investment company" as defined
in the Investment Company Act of 1940, as amended (the "Investment
Company Act"), and is not required to register as an investment
company under the Investment Company Act.
2. Subject to the terms and conditions herein set forth,
the Company agrees to issue and sell to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to purchase
from the Company, at a purchase price of 98.754% of the principal amount
thereof, the principal amount of Securities set forth opposite the name
of such Underwriter in Schedule I hereto.
3. Upon the authorization by the Underwriters of the
release of the Designated Securities, the several Underwriters propose
to offer the Designated Securities for sale upon the terms and
conditions set forth in the Prospectus as amended or supplemented
relating to the Designated Securities.
4. The Securities to be purchased by each Underwriter
hereunder will be represented by one or more definitive global
Securities in book-entry form which will be deposited by or on behalf of
the Company with The Depository Trust Company ("DTC") or its designated
custodian. The Company will deliver the Securities to ▇▇▇▇▇▇ Brothers
Inc. ("▇▇▇▇▇▇ Brothers"), for the account of each Underwriter, against
payment by or on behalf of such Underwriter of the purchase price
therefor by wire transfer of immediately available funds to the account
specified by the Company, by causing DTC to credit the Securities to the
account of ▇▇▇▇▇▇ Brothers at DTC. The Company will cause the
certificates representing the Securities to be made available to ▇▇▇▇▇▇
Brothers for checking at least twenty-four hours prior to the Time of
Delivery (as defined below) at the office of DTC or its designated
custodian (the "Designated Office"). The time and date of such delivery
and payment shall be 10:00 a.m., New York City time, on February 21,
1996 or such other time and date as ▇▇▇▇▇▇ Brothers and the Company may
agree upon in writing. Such time and date are herein called the "Time
of Delivery". For purposes of Rule 15c6-1 under the Exchange Act, the
Time of Delivery shall be the date for payment of funds and delivery
of securities for all the Securities sold pursuant to the offering.
The documents to be delivered at the Time of Delivery by or on behalf of
the parties hereto pursuant to Section 7 hereof, including the cross-receipt
for the Securities and any additional documents requested by the
Underwriters pursuant to Section 7(i) hereof, will be delivered at the
offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, and the Securities will be delivered at the Designated Office,
all at the Time of Delivery.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus as amended and supplemented
in relation to the Designated Securities in a form approved by you
and to file such Prospectus pursuant to Rule 424(b) under the Act
not later than the Commission's close of business on the second
business day following the execution and delivery of this
Agreement or, if applicable, such earlier time as may be required
by Rule 424(b); to make no further amendment or any supplement to
the Registration Statement or Prospectus as amended or
supplemented prior to the Time of Delivery which shall be
disapproved by you promptly after reasonable notice thereof; to
advise the Underwriters promptly of any such amendment or
supplement after such Time of Delivery and furnish the
Underwriters with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Sec-
tion 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as
the delivery of a prospectus is required in connection with the
offering or sale of the Designated Securities, and during such
same period to advise the Underwriters, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed with the
Commission, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any prospectus
relating to the Securities, of the suspension of the qualification
of the Designated Securities for offering or sale in any jurisdic-
tion, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus or
for additional information; and, in the event of the issuance of
any such stop order or of any such order preventing or suspending
the use of any Preliminary Prospectus, preliminary prospectus
supplement or prospectus relating to the Securities or suspending
any such qualification, to use promptly its best efforts to obtain
its withdrawal;
(b) Promptly from time to time to take such action as the
Underwriters may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions
as the Underwriters may request and to comply with such laws so as
to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Designated Securities, provided that in
connection therewith the Company shall not be required to qualify
as a foreign corporation or to file a general consent to service
of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City Time, on the New
York Business Day next succeeding the date of this Agreement and
from time to time, to furnish the Underwriters with copies of the
Prospectus as amended or supplemented in such quantities as the
Underwriters may from time to time reasonably request, and, if the
delivery of a prospectus is required at any time in connection
with the offering or sale of the Securities and if at such time
any event shall have occurred as a result of which the Prospectus
as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circum-
stances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to
notify the Underwriters and upon their request to file such
document and to prepare and furnish without charge to the
Underwriters and to any dealer in securities as many copies as the
Underwriters may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance;
(d) To make generally available to its securityholders as
soon as practicable, but in any event not later than eighteen
months after the effective date of the Registration Statement (as
defined in Rule 158(c)), an earnings statement of the Company and
its subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including at the option of the Company Rule
158); and
(e) During the period beginning from the date hereof and
continuing to and including the Time of Delivery, not to offer,
sell, contract to sell or otherwise dispose of any debt securities
of the Company which mature more than one year after such Time of
Delivery and which are substantially similar to the Designated
Securities, without the prior written consent of the Underwriters.
6. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's
counsel and accountants in connection with the registration of the
Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements
thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any
Agreement among Underwriters, this Agreement, any Indenture, any Blue
Sky Memoranda and any other documents in connection with the offering,
purchase, sale and delivery of the Securities; (iii) all expenses in
connection with the qualification of the Securities for offering and
sale under state securities laws as provided in Section 5(b) hereof,
including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with any Blue Sky
surveys; (iv) any fees charged by securities rating services for rating
the Securities; (v) any filing fees incident to any required review by
the National Association of Securities Dealers, Inc. of the terms of the
sale of the Securities; (vi) the cost of preparing the Securities; (vii)
the fees and expenses of any Trustee and any agent of any Trustee and
the fees and disbursements of counsel for any Trustee in connection with
the Indenture and the Securities; and (viii) all other costs and
expenses incident to the performance of its obligations hereunder which
are not otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this Section, Section 8
and Section 11 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising expenses
connected with any offers they may make.
7. The obligations of the Underwriters hereunder shall be
subject, in the discretion of the Underwriters, to the condition that
all representations and warranties and other statements of the Company
herein are, at and as of the Time of Delivery, true and correct, the
condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus as amended or supplemented in relation
to the Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the rules and regulations
under the Act and in accordance with Section 5(a) hereof; no stop
order suspending the effectiveness of the Registration Statement
or any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the
part of the Commission shall have been complied with to the
Underwriters reasonable satisfaction;
(b) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters,
shall have furnished to the Underwriters such opinion or opinions,
dated the Time of Delivery, with respect to the organization of
the Company, the validity of the Indenture, the Designated
Securities, the Registration Statement, the Prospectus as amended
or supplemented and other related matters as the Underwriters may
reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable
them to pass upon such matters;
(c) ▇▇▇▇▇, ▇▇▇▇▇▇ Waechter, Poitevent, Carrere & ▇▇▇▇▇▇▇
L.L.P., special counsel for the Company, shall have furnished to
the Underwriters their written opinion, dated the Time of
Delivery, in form and substance satisfactory to the Underwriters,
to the effect that:
(i) The Company has been duly organized and is
validly existing as a limited partnership in good standing
under the Delaware Revised Uniform Limited Partnership Act;
IMC has been duly organized and is validly existing as a
partnership under the laws of Delaware; and each of the
Company and IMC has the partnership power and authority to
own, lease and operate its properties and to conduct its
business as described in the Prospectus;
(ii) The Company has all requisite partnership
power and authority to enter into this Agreement and to
carry out the provisions and conditions herein;
(iii) Each part of the Registration Statement, when
such part became effective, and the Prospectus and any
amendment or supplement thereto, on the date of filing
thereof with the Commission, complied as to form in all
material respects with the requirements of the Act and the
Trust Indenture Act and the rules and regulations
thereunder; and such counsel has no reason to believe that
any such part of the Registration Statement, when such part
became effective, 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, as of its
date and at the Time of Delivery, and any amendment or
supplement thereto, as of the date thereof and at the Time
of Delivery, contained an untrue statement of a material
fact or omitted to state a material fact necessary to make
the statements therein, in the light of the circumstances
under which they were made, not misleading; it being
understood that such counsel need express no opinion as to
the financial statements or other financial data included or
incorporated by reference in any of the documents mentioned
in this clause (iii);
(iv) All of the issued and outstanding partnership
interests in the Company have been duly authorized and
validly issued and all of the limited partnership interests
of the Company are fully-paid and nonassessable except as
required under the Delaware Revised Uniform Limited
Partnership Act;
(v) To the best knowledge of such counsel and
other than as set forth in the Prospectus as amended or
supplemented relating to the Designated Securities, there
are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries
is the subject which, if determined adversely to the Company
or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the consolidated
financial position, partners' capital or results of
operations of the Company and its subsidiaries; and, to the
best of knowledge of such counsel, no such proceedings are
threatened by governmental authorities or threatened by
others;
(vi) This Agreement has been duly authorized,
executed and delivered by the Company; the performance of
this Agreement and the compliance by the Company with all of
the provisions of the Designated Securities, the Indenture
and this Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, (a) the
Company's Certificate of Limited Partnership or Partnership
Agreement, or (b) to the best of such counsel's knowledge,
but without any independent investigation, any provision of
any law or regulation applicable to the Company or any of
its subsidiaries or of any order, writ, judgment, decree,
determination or award of any court or governmental agency
or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties, and no consent,
approval, authorization or order of, or qualification,
registration or filing with, any court or governmental
agency or body is required for the consummation of the
transactions contemplated by this Agreement except such as
have been obtained under the Act and the Trust Indenture Act
and such as may be required under state securities laws in
connection with the purchase and distribution of the
Designated Securities by the Underwriters;
(vii) The statements in the Prospectus under the
captions "Description of Debt Securities" and "Description
of the Notes", insofar as such statements constitute
summaries of the documents and matters referred to therein,
fairly present the information called for with respect to
such documents and matters; and
(viii) The Company is not an "investment company" as
defined in the Investment Company Act and is not required to
register as an investment company under the Investment
Company Act.
(d) ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., general counsel of the Company,
shall have furnished to the Underwriters his written opinion,
dated the Time of Delivery, in form and substance satisfactory to
the Underwriters to the effect that:
(i) The Company has full power and authority to
conduct its business as described in the Prospectus and is
duly qualified to do business in each jurisdiction in which
it owns or leases real property or in which the conduct of
its business requires such qualification except where the
failure to be so qualified, considering all such cases in
the aggregate, does not involve a material risk to the
business, properties, financial position or results of
operations of the Company and its subsidiaries considered as
a whole;
(ii) The documents incorporated by reference in
the Registration Statement, the Prospectus and the
Preliminary Prospectus, when they were filed with the
Commission, complied as to form in all material respects
with the requirements of the Exchange Act and the rules and
regulations thereunder; and such counsel believes that none
of such documents, when such documents were so filed,
contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made when such documents were so filed, not
misleading, it being understood that such counsel need
express no opinion as to the financial statements or other
financial data included in any of the documents mentioned in
this clause (ii);
(iii) The descriptions in the Registration
Statement and Prospectus as amended or supplemented relating
to the Designated Securities of statutes, legal and
governmental proceedings, contracts and other documents are
accurate and fairly present the information required to be
shown; and such counsel does not know of any statutes or
legal or governmental proceedings required to be described
in the Registration Statement and Prospectus as amended or
supplemented relating to the Designated Securities that are
not described as required or of any contracts of a character
required to be described in the Registration Statement or
Prospectus as amended or supplemented relating to the
Designated Securities (or required to be filed under the
Exchange Act if upon such filing they would be incorporated
by reference therein) or to be filed as exhibits to the
Registration Statement that are not described and filed as
required;
(iv) The performance of this Agreement and the
compliance with all of the provisions of the Designated
Securities, the Indenture and this Agreement and the
consummation of the transactions herein and therein
contemplated will not result in a breach or violation of any
of the terms and provisions of, or constitute a default
under, any statute, any agreement or instrument known to
such counsel to which the Company or any of its subsidiaries
is a party or by which any of them is bound or to which any
of the property of any of them is subject, or any order,
rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their
properties;
(v) There is no action, suit, proceeding or rule
making before or by any court or governmental agency or
body, domestic or foreign, now pending or, to the knowledge
of such counsel, threatened, against or affecting the
Company or any of its subsidiaries which is required to be
disclosed in the Registration Statement or the Prospectus as
amended or supplemented relating to the Designated
Securities (other than as disclosed therein), or which may
reasonably be expected to result in any material adverse
change in the earnings, business affairs or business
prospects of the Company or may reasonably be expected to
materially and adversely affect the properties or assets
thereof or might materially and adversely affect the
consummation of this Agreement; and
(vi) The Company has an authorized capitalization
as set forth in the Prospectus; all the issued partnership
interests of the Company have been duly and validly
authorized and issued, and are fully paid and non-
assessable.
(e) At the time of execution of this Agreement and at the
Time of Delivery, the independent accountants of the Company who
have certified the financial statements of the Company and its
subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to the Underwriters a
letter, dated the respective date of delivery thereof, to the
effect set forth in Annex I hereto, and with respect to such
letter dated such Time of Delivery, as to such other matters as
the Underwriters may reasonably request and in form and substance
satisfactory to the Underwriters;
(f) (i) Neither the Company nor any of its subsidiaries
shall have sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus as amended or supplemented any loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as
set forth or contemplated in the Prospectus as amended or
supplemented, and (ii) since the respective dates as of which
information is given in the Prospectus as amended or supplemented
there shall not have been (a) any change in the partners' capital
or (b) any increase in excess of $15 million in long-term debt of
the Company or any of its subsidiaries above the amount of such
debt on such dates or (c) any change, or any development involving
a prospective change, in or affecting the general affairs,
management, financial position, partners' capital or results of
operations of the Company and its subsidiaries, otherwise than as
set forth or contemplated in the Prospectus as amended or
supplemented, the effect of which, in any such case described in
clause (i) or (ii), is in the judgment of the Underwriters so
material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Designated
Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented;
(g) On or after the date hereof (i) no downgrading shall
have occurred in the rating accorded the Company's debt securities
by any "nationally recognized statistical rating organization," as
that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Act and (ii) no such organization shall
have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the
Company's debt securities;
(h) On or after the date hereof there shall not have
occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the New York
Stock Exchange; (ii) a general moratorium on commercial banking
activities in New York declared by either Federal or New York
State authorities; (iii) the outbreak or escalation of hostilities
involving the United States or the declaration by the United
States of a National Emergency or war, if the effect of any such
event specified in this clause (iii) in the reasonable judgment of
the Underwriters makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Designated
Securities on the terms and in the manner contemplated by the
Prospectus as amended and supplemented; or (iv) the occurrence of
an event causing any material adverse change in the existing
financial, political or economic conditions in the United States
or elsewhere which, in the reasonable judgment of the
Underwriters, has materially and adversely affected the financial
markets or the market for the Designated Securities and other debt
securities; and
(i) The Company shall have furnished or caused to be
furnished to the Underwriters at such Time of Delivery a
certificate or certificates of officers of the Company
satisfactory to the Underwriters as to the accuracy of the
representations and warranties of the Company herein at and as of
such Time of Delivery, as to the performance by the Company of all
of its obligations hereunder to be performed at or prior to such
Time of Delivery, as to the matters set forth in subsections (a)
and (f) of this Section and as to such other matters as the
Underwriters may reasonably request.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and
any other prospectus relating to the Securities, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating
or defending any such action or claim as such expenses are incurred;
provided, however, that the Company shall not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating
to the Securities, or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by
any Underwriter expressly for use in the Prospectus as amended or
supplemented relating to the Designated Securities; and, provided,
further, that the Company shall not be liable to any Underwriter under
the indemnity agreement in this Section 8(a) with respect to any
Preliminary Prospectus or preliminary prospectus supplement to the
extent that any such loss, claim, damage or liability of such
Underwriter results from the fact that such Underwriter sold Designated
Securities to a person as to whom it shall be established that there was
not sent or given, at or prior to the written confirmation of such sale,
a copy of the Prospectus or of the Prospectus as then amended or
supplemented (in either case excluding documents incorporated therein by
reference) in any case where such delivery is required by the Act if the
Company has previously furnished copies thereof in sufficient quantity
to the Underwriters and the loss, claim, damage or liability of such
Underwriter results from an untrue statement or omission of a material
fact contained in the Preliminary Prospectus which was identified in
writing at such time to the Underwriters and corrected in the Prospectus
or in the Prospectus as then amended or supplemented (in either case
excluding documents incorporated therein by reference).
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus,
any preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating
to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating
to the Securities, or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by
such Underwriter expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action or
claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omis-
sion so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof,
the indemnifying party shall not be liable to such indemnified party
under such subsection for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable
costs of investigation.
(d) If the indemnification provided for in this Section 8
is unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from
the offering of the Designated Securities to which such loss, claim,
damage or liability (or action in respect thereof) relates. If,
however, the allocation provided by the immediately preceding sentence
is not permitted by applicable law or if the indemnified party failed to
give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the
Company on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from
such offering (before deducting expenses) received by the Company bear
to the total underwriting discounts and commissions received by the
Underwriters. The relative fault 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 Company on the one hand or
the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation, even if the
Underwriters 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 above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include 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 subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the applicable Designated Securities
underwritten by the Underwriters and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter 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 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 8
shall be in addition to any liability which the Company may otherwise
have and shall extend, upon the same terms and conditions, to each
person, if any, who controls an Underwriter within the meaning of the
Act; and the obligations of the Underwriters under this Section 8 shall
be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each officer and director of the Company and to each person, if any, who
controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation
to purchase the Designated Securities which it has agreed to purchase
hereunder, you may in your discretion arrange for you or another party
or other parties to purchase such Designated Securities on the terms
contained herein. If within thirty-six hours after such default by any
Underwriter you do not arrange for the purchase of such Designated
Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to you to purchase such Designated Securities on such
terms. In the event that, within the respective prescribed periods, you
notify the Company that you have so arranged for the purchase of such
Designated Securities, or the Company notifies you that it has so
arranged for the purchase of such Designated Securities, you or the
Company shall have the right to postpone the Time of Delivery for a
period of not more than seven days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement, or in any
other documents or arrangements, and the Company agrees to prepare
promptly any amendments to the Registration Statement which in your
opinion may thereby be made necessary. The term "Underwriter" as used
in this Agreement shall include any person substituted under this
Section 9 with like effect as if such person had originally been a party
to this Agreement with respect to such Designated Securities. The term
"you" as used in this Section 9 means the non-defaulting Underwriters.
(b) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter or
Underwriters by you and the Company as provided in subsection (a) above,
the aggregate principal amount of such Designated Securities which
remains unpurchased does not exceed one-eleventh of the aggregate
principal amount of all the Designated Securities, then the Company
shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Designated Securities which such
Underwriter agreed to purchase hereunder and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on
the principal amount of Designated Securities which such Underwriter
agreed to purchase hereunder) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have
not been made; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter or
Underwriters by you and the Company as provided in subsection (a) above,
the aggregate principal amount of Designated Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of
all the Designated Securities, or if the Company shall not exercise the
right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting
Underwriter or Underwriters, then this Agreement shall thereupon
terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the
Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements, represen-
tations, warranties and other statements of the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full
force and effect, regardless of any investigation (or any statement as
to the results thereof) made by or on behalf of any Underwriter or any
controlling person of any Underwriter, or the Company, or any officer or
director or controlling person of the Company, and shall survive
delivery of and payment for the Securities.
11. If for any reason within the control or subject to the
direction of the Company, including without limitation the failure to
perform any covenant or agreement arising out of or in connection with
this Agreement to be performed by, on behalf of or at the direction of
the Company, or the failure to satisfy any condition of the
Underwriters' obligations hereunder (which conditions shall include,
without limitation, the conditions set forth in Sections 7(c), 7(d),
7(e), 7(f), 7(g), and 7(i) hereof) to be satisfied by, on behalf of or
at the direction of the Company, the Designated Securities are not
delivered by or on behalf of the Company as provided herein, the Company
will reimburse the Underwriters for all out-of-pocket expenses,
including fees and disbursements of counsel, reasonably incurred by them
in making preparations for the purchase, sale and delivery of such
Designated Securities, but the Company shall then be under no further
liability to the Underwriters with respect to such Designated Securities
except as provided in Section 6 and Section 8 hereof.
All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or
sent by mail, telex or facsimile transmission to the Underwriters c/▇
▇▇▇▇▇▇ Brothers Inc. at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇; and if to the Company shall be delivered
or sent by mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement: Attention: General
Counsel; provided, however, that any notice to an Underwriter pursuant
to Section 8(c) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its address set forth in
its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by you upon
request. Any such statements, requests, notices or agreements shall
take effect upon receipt thereof.
12. This Agreement shall be binding upon, and inure solely
to the benefit of, the several Underwriters, the Company and, to the
extent provided in Section 8 and Section 10 hereof, the officers and
directors of the Company and each person who controls the Company or any
Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any
right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
13. Time shall be of the essence of this Agreement. As
used herein, "business day" shall mean any day when the Commission's
office in Washington, D.C. is open for business.
14. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
15. This Agreement may be executed by any one or more of
the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding,
please sign and return to us seven counterparts hereof.
Very truly yours,
FREEPORT-McMoRan RESOURCE PARTNERS,
LIMITED PARTNERSHIP
By: FREEPORT-McMoRan INC.,
Administrative
Managing General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President
Accepted as of the date hereof:
▇▇▇▇▇▇ Brothers Inc.
By: /s/ H. E. ▇▇▇▇▇
_______________________________
Name: H. E. ▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
Salomon Brothers Inc
By:
Name:
Title:
SCHEDULE I
Underwriter Principal Amount
of Securities
to be Purchased
▇▇▇▇▇▇ Brothers Inc........................................$ 50,000,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated............50,000,000
Salomon Brothers Inc..........................................50,000,000
Total ______________
$150,000,000
ANNEX I
Pursuant to Section 7(d) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect
that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supple-
mentary financial information and schedules audited (and, if applicable,
prospective financial statements and/or pro forma financial information
examined) by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the Act
or the Exchange Act, as applicable, and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
prospective financial statements and/or condensed financial statements
derived from audited financial statements of the Company for the periods
specified in such letter, as indicated in their reports thereon, copies
of which have been furnished to the Underwriters;
(iii) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Prospectus
and included or incorporated by reference in Item 6 of the Company's
Annual Report on Form 10-K for the year ended December 31, 1994 agrees
with the corresponding amounts (after restatement where applicable) in
the audited consolidated financial statements for such years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not constituting an
audit in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of
the minute books of the Company and its subsidiaries since the date of
the latest audited financial statements included or incorporated by
reference in the Prospectus, inquiries of officials of the Company and
its subsidiaries responsible for financial and accounting matters and
such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of
operations, consolidated balance sheets and consolidated
statements of cash flow included or incorporated by reference in
the Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of
the Exchange Act as it applies to Form 10-Q and the related
published rules and regulations thereunder or are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent, except for the change in the
method of accounting for periodic scheduled maintenance costs,
with the basis for the audited consolidated statements of
operations, consolidated balance sheets and consolidated
statements of cash flow included or incorporated by reference in
the Company's Annual Report on Form 10-K for the most recent
fiscal year;
(B) any other unaudited statement of operations data and
balance sheet items included in the Prospectus do not agree with
the corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements, except
for the change in the method of accounting for periodic scheduled
maintenance costs, included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal
year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in Clause (A)
and any unaudited statement of operations data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with the
basis for the audited financial statements, except for the change
in the method of accounting for periodic scheduled maintenance
costs, included or incorporated by reference in the Company's
Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in the
Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
partners' capital or any increase in the consolidated long-term
debt of the Company and its subsidiaries, or any decreases in
consolidated net current assets or net assets or other items
reasonably specified by the Underwriters, or any increases in any
items specified by the Underwriters, in each case as compared with
amounts shown in the latest balance sheet included or incorporated
by reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus
to the specified date referred to in Clause (E) there were any
decreases in consolidated net revenues or operating profit or the
total or per unit amounts of consolidated net income or other
items reasonably specified by the Representatives, or any
increases in any items reasonably specified by the
Representatives, in each case as compared with the comparable
period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in
each case for increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
(v) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (iv) above, they have carried out
certain specified procedures, not constituting an audit in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Underwriters which are derived from the general accounting records of
the Company and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference) or in Part II of, or in
exhibits and schedules to, the Registration Statement specified by the
Underwriters or in documents incorporated by reference in the Prospectus
specified by the Underwriters, and have compared certain of such
amounts, percentages and financial information with the accounting
records of the Company and its subsidiaries and have found them to be in
agreement.
All references in this Annex I to the Prospectus shall be deemed
to refer to the Prospectus (including the documents incorporated by
reference therein) as defined in the Underwriting Agreement as of the
date of the letter delivered on the date of the Underwriting Agreement
for purposes of such letter and to the Prospectus as amended or
supplemented (including the documents incorporated by reference therein)
in relation to the applicable Designated Securities for purposes of the
letter delivered at the Time of Delivery for such Designated Securities.
