Boardwalk Pipeline Partners, LP 6,000,000 Common Units Representing Limited Partner Interests UNDERWRITING AGREEMENT
Exhibit
1.1
6,000,000
Common Units
Representing
Limited Partner Interests
November
16, 2006
Citigroup
Global Markets Inc.
Xxxxxx
Brothers Inc.
UBS
Securities LLC
As
Representatives of the several
Underwriters
named in Schedule
1
attached
hereto,
c/o
Citigroup Global Markets Inc.
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
and
c/x
Xxxxxx Brothers Inc.
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
and
c/o
UBS
Securities LLC
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
Boardwalk
Pipeline Partners, LP, a Delaware limited partnership (the “Partnership”),
proposes to sell 6,000,000 common units (the “Firm
Units”)
representing limited partner interests in the Partnership (the “Common
Units”).
In
addition, the Partnership proposes to grant to the underwriters (the
“Underwriters”)
named
in Schedule 1
attached
to this agreement (this “Agreement”)
an
option to purchase up to 900,000 additional Common Units on the terms set forth
in Section 2
hereof
(the “Option
Units”).
The
Firm Units and the Option Units, if purchased, are hereinafter collectively
called the “Units.”
This
is to confirm the agreement concerning the purchase of the Units from the
Partnership by the Underwriters.
Boardwalk
GP, LP, a Delaware limited partnership (the “General
Partner”),
serves as the sole general partner of the Partnership. Boardwalk GP, LLC, a
Delaware limited liability company (“BGL”),
serves as the sole general partner of the General Partner. Boardwalk Pipelines
Holding Corp., a Delaware corporation (“BPHC”),
is
the sole member of BGL and is the sole limited partner of the General Partner.
BPHC is a direct subsidiary of Loews Corporation, a Delaware corporation
(“Loews”).
BPHC
is also a limited partner of the Partnership.
Each
of
Boardwalk Operating GP, LLC, a Delaware limited liability company and a direct
wholly owned subsidiary of the Partnership (“Operating
GP”),
Boardwalk Pipelines, LP, a Delaware limited partnership and a direct and
indirect wholly owned subsidiary of the Partnership (the “Operating
Partnership”),
Texas
Gas Transmission, LLC, a Delaware limited liability company and a direct wholly
owned subsidiary of the Operating Partnership (“Texas
Gas”),
GS
Pipeline Company, LLC, a Delaware limited liability company and a direct wholly
owned subsidiary of the Operating Partnership (“Gulf
South GP”),
and
Gulf South Pipeline Company, LP, a Delaware limited partnership and a direct
and
indirect wholly owned subsidiary of the Operating Partnership (“Gulf
South”),
is
sometimes referred to herein as a “Subsidiary,”
and
they are sometimes collectively referred to herein as the “Subsidiaries.”
Each
of BGL, the General Partner, the Partnership, Operating GP, the Operating
Partnership, Texas Gas, Gulf South GP and Gulf South is sometimes referred
to
herein as a “Partnership
Party,”
and
they are sometimes collectively referred to herein as the “Partnership
Parties.”
The
Partnership Parties, together with BPHC, are sometimes collectively referred
to
herein as the “BPHC
Entities.”
The
BPHC Entities, together with Loews, are sometimes collectively referred to
herein as the “Loews
Entities.”
1. Representations,
Warranties and Agreements of the Partnership Parties
.Each
Partnership Party jointly and severally represents, warrants and agrees
that:
(a) A
registration statement on Form S-1 (File No. 333-137489) relating to the Units
has (i) been prepared by the Partnership in conformity with the
requirements of the Securities Act of 1933, as amended (the “Securities
Act”),
and
the rules and regulations (the “Rules
and Regulations”)
of the
Securities and Exchange Commission (the “Commission”)
thereunder; (ii) been filed with the Commission under the Securities Act;
and (iii) become effective under the Securities Act. Copies of such
registration statement and any amendment thereto have been delivered by the
Partnership to you as the representatives (the “Representatives”)
of the
Underwriters. As used in this Agreement:
(i) “Applicable
Time”
means
8:30 p.m. (New York City time) on the date of this Agreement;
(ii) “Effective
Date”
means
the date and time as of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission;
(iii) “Issuer
Free Writing Prospectus”
means
each “free writing prospectus” (as defined in Rule 405 of the Rules and
Regulations) prepared by or on behalf of the Partnership or used or referred
to
by the Partnership in connection with the offering of the Units;
(iv) “Preliminary
Prospectus”
means
any preliminary prospectus relating to the Units included in such registration
statement or filed with the Commission pursuant to Rule 424(b) of the Rules
and
Regulations;
(v) “Pricing
Disclosure Package”
means,
as of the Applicable Time, the most recent Preliminary Prospectus, together
with
each Issuer Free Writing Prospectus filed or used by the Partnership on or
before the Applicable Time, other than a road show that is an Issuer Free
Writing Prospectus but is not required to be filed under Rule 433 of the Rules
and Regulations;
(vi) “Prospectus”
means
the final prospectus relating to the Units, as filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations; and
(vii) “Registration
Statement”
means
such registration statement, as amended as of the Effective Date, including
any
Preliminary Prospectus or the Prospectus and all exhibits to such registration
statement.
Any
reference to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents incorporated
by
reference therein pursuant to Form S-1 under the Securities Act as of the date
of such Preliminary Prospectus or the Prospectus, as the case may be. Any
reference to the “most
recent Preliminary Prospectus”
shall
be deemed to refer to the latest Preliminary Prospectus included in the
Registration Statement or filed pursuant to Rule 424(b) of the Rules and
Regulations prior to or on the date hereof. Any reference to any amendment
or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed
to
refer to and include any document filed under the Securities Exchange Act of
1934, as amended (the “Exchange
Act”),
after
the date of such Preliminary Prospectus or the Prospectus, as the case may
be,
and before the date of such amendment or supplement and incorporated by
reference in such Preliminary Prospectus or the Prospectus, as the case may
be;
and any reference to any amendment to the Registration Statement shall be deemed
to include any periodic or current report of the Partnership filed with the
Commission pursuant to Section 13(a) or 15(d) of the Exchange Act after the
Effective Date and before the date of such amendment and incorporated by
reference in the Registration Statement. The Commission has not issued any
order
preventing or suspending the use of any Preliminary Prospectus or the Prospectus
or suspending the effectiveness of the Registration Statement, and no proceeding
for such purpose has been instituted or threatened by the
Commission.
(b) The
Partnership was not at the time of initial filing of the Registration Statement
and at the earliest time thereafter that the Partnership or another offering
participant made a bona
fide
offer
(within the meaning of Rule 164(h)(2) of the Rules and Regulations) of the
Units, is not on the date hereof and will not be on the applicable Delivery
Date
(as defined in Section 4
hereof)
an “ineligible issuer” (as defined in Rule 405 of the Rules and Regulations).
The Partnership has met all the conditions for incorporation by reference
pursuant to the General Instructions to Form S-1.
(c) The
Registration Statement conformed and will conform in all material respects
on
the Effective Date and on the applicable Delivery Date, and any amendment to
the
Registration Statement filed after the date hereof will conform in all material
respects when filed, to the requirements of the Securities Act and the Rules
and
Regulations. The most recent Preliminary Prospectus conformed, and the
Prospectus will conform in all material respects when filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations and on the applicable
Delivery Date, to the requirements of the Securities Act and the Rules and
Regulations. The documents incorporated by reference into any Preliminary
Prospectus or the Prospectus conformed, when filed with the Commission, in
all
material respects to the requirements of the Exchange Act or the Securities
Act,
as applicable, and the rules and regulations of the Commission
thereunder.
(d) The
Registration Statement did not, as of the Effective Date, 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
that no
representation or warranty is made as to information contained in or omitted
from the Registration Statement in reliance upon and in conformity with written
information furnished to the Partnership through the Representatives by or
on
behalf of any Underwriter specifically for inclusion therein, which information
is specified in Section 8(e)
hereof.
(e) The
Prospectus will not, as of its date and on the applicable Delivery Date, contain
an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided
that no
representation or warranty is made as to information contained in or omitted
from the Prospectus in reliance upon and in conformity with written information
furnished to the Partnership through the Representatives by or on behalf of
any
Underwriter specifically for inclusion therein, which information is specified
in Section 8(e)
hereof.
(f) The
documents incorporated by reference into any Preliminary Prospectus or the
Prospectus did not, when filed with the Commission, contain an untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(g) The
Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue
statement of a material fact or omit to state a material fact necessary to
make
the statements therein, in the light of the circumstances under which they
were
made, not misleading, except that the price and number of the Units will be
included on the cover page of the Prospectus; provided
that no
representation or warranty is made as to information contained in or omitted
from the Pricing Disclosure Package in reliance upon and in conformity with
written information furnished to the Partnership through the Representatives
by
or on behalf of any Underwriter specifically for inclusion therein, which
information is specified in Section 8(e)
hereof.
(h) Each
Issuer Free Writing Prospectus (including, without limitation, any road show
that is a free writing prospectus under Rule 433 of the Rules and Regulations),
when considered together with the Pricing Disclosure Package as of the
Applicable Time, did not contain an untrue statement of a material fact or
omit
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, except that
the
price and number of the Units will be included on the cover page of the
Prospectus.
(i) Each
Issuer Free Writing Prospectus conformed or will conform in all material
respects to the requirements of the Securities Act and the Rules and Regulations
on the date of first use, and the Partnership has complied with all prospectus
delivery and any filing requirements applicable to such Issuer Free Writing
Prospectus pursuant to the Rules and Regulations. The Partnership has not made
any offer relating to the Units that would constitute an Issuer Free Writing
Prospectus without the prior written consent of the Representatives. The
Partnership has retained in accordance with the Rules and Regulations all Issuer
Free Writing Prospectuses that were not required to be filed pursuant to the
Rules and Regulations.
(j) BPHC
has
been duly formed and is validly existing and in good standing as a corporation
under the Delaware General Corporation Law (the “DGCL”),
has
the full corporate power and authority necessary to own or hold its properties
and assets and to conduct the businesses in which it is engaged, and is, or
at
each Delivery Date will be, duly registered or qualified to do business and
in
good standing as a foreign corporation in each jurisdiction listed opposite
its
name in Schedule 2
attached
hereto, such jurisdictions being the only jurisdictions in which its ownership
or lease of property or the conduct of its business requires such qualification,
except where the failure to so register or qualify could not reasonably be
expected to (i) have a material adverse effect on the condition (financial
or other), results of operations, securityholders’ equity, properties, business
or prospects of the Partnership Parties (other than the General Partner), taken
as a whole (a “Material
Adverse Effect”)
or
(ii) subject the limited partners of the Partnership to any material
liability or disability.
(k) Each
of
the General Partner, the Partnership, the Operating Partnership and Gulf South
has been duly formed and is validly existing and in good standing as a limited
partnership under the Delaware Revised Uniform Limited Partnership Act (the
“Delaware
LP Act”),
has
the full partnership power and authority necessary to own or hold its properties
and assets and to conduct the businesses in which it is engaged, and is, or
at
each Delivery Date will be, duly registered or qualified to do business and
in
good standing as a foreign limited partnership in each jurisdiction listed
opposite its name in Schedule 2
attached
hereto, such jurisdictions being the only jurisdictions in which its ownership
or lease of property or the conduct of its business requires such qualification,
except where the failure to so register or qualify could not reasonably be
expected to (i) have a Material Adverse Effect or (ii) subject the
limited partners of the Partnership to any material liability or
disability.
(l) Each
of
BGL, Operating GP, Texas Gas and Gulf South GP has been duly formed and is
validly existing and in good standing as a limited liability company under
the
Delaware Limited Liability Company Act (the “Delaware
LLC Act”),
has
the full limited liability company power and authority necessary to own or
hold
its properties and assets and to conduct the businesses in which it is engaged,
and is, or at each Delivery Date will be, duly registered or qualified to do
business and in good standing as a foreign limited liability company in each
jurisdiction listed opposite its name in Schedule 2
attached
hereto, such jurisdictions being the only jurisdictions in which its ownership
or lease of property or the conduct of its business requires such qualification,
except where the failure to so register or qualify could not reasonably be
expected to (i) have a Material Adverse Effect or (ii) subject the
limited partners of the Partnership to any material liability or
disability.
(m) Loews
owns all of the outstanding shares of capital stock of BPHC; all of such shares
of capital stock have been duly and validly authorized and issued and are fully
paid and nonassessable.
(n) BPHC
owns
a 100% limited liability company interest in BGL; such limited liability company
interest has been duly and validly authorized and issued in accordance with
the
limited liability company agreement of BGL (as the same may be amended and
restated on or prior to the Initial Delivery Date (as defined in Section 4
hereof),
the “BGL
LLC Agreement”)
and is
fully paid (to the extent required under the BGL LLC Agreement) and
non-assessable (except as such non-assessability may be affected by Sections
18-607 and 18-804 of the Delaware LLC Act); and BPHC owns such limited liability
company interest free and clear of all liens, encumbrances, security interests,
equities, charges or claims (collectively, “Liens”).
(o) BGL
is
the sole general partner of the General Partner, with a 0.001% general partner
interest in the General Partner; such general partner interest has been duly
and
validly authorized and issued in accordance with the agreement of limited
partnership of the General Partner (as the same may be amended and restated
on
or prior to the Initial Delivery Date, the “GP
Partnership Agreement”);
and
BGL owns such general partner interest free and clear of all Liens. BPHC is
the
sole limited partner of the General Partner, with a 99.999% limited partner
interest in the General Partner; such limited partner interest has been duly
and
validly authorized and issued in accordance with the GP Partnership Agreement
and is fully paid (to the extent required under the GP Partnership Agreement)
and non-assessable (except as such non-assessability may be affected by Sections
17-607 and 17-804 of the Delaware LP Act); and BPHC owns such limited partner
interest free and clear of all Liens.
(p) The
General Partner is the sole general partner of the Partnership, with a 2.0%
general partner interest in the Partnership; such general partner interest
has
been duly and validly authorized and issued in accordance with the Second
Amended and Restated Agreement of Limited Partnership of the Partnership (as
the
same may be amended and restated on or prior to the Initial Delivery Date,
the
“Partnership
Agreement”);
and
the General Partner owns such general partner interest free and clear of all
Liens. The General Partner owns all of the Incentive Distribution Rights (as
defined in the Partnership Agreement); all of such Incentive Distribution Rights
have been duly and validly authorized and issued in accordance with the
Partnership Agreement and are fully paid (to the extent required under the
Partnership Agreement) and non-assessable (except as such non-assessability
may
be affected by matters described in the most recent Preliminary Prospectus
under
the caption “The Partnership Agreement—Limited Liability”); the General Partner
owns all of such Incentive Distribution Rights free and clear of all Liens;
and
such Incentive Distribution Rights conform to the descriptions thereof contained
in each of the most recent Preliminary Prospectus and the
Prospectus.
(q) BPHC
owns
33,093,878 subordinated units (“Subordinated
Units”)
representing an approximate 32.0% limited partner interest in the Partnership
and 53,256,122 Common Units representing an approximate 51.5% limited partner
interest in the Partnership (such Subordinated Units and Common Units, the
“Sponsor
Units”);
all
of such Sponsor Units have been duly and validly authorized and issued in
accordance with the Partnership Agreement and are fully paid (to the extent
required under the Partnership Agreement) and non-assessable (except as such
non-assessability may be affected by matters described in the most recent
Preliminary Prospectus under the caption “The Partnership Agreement—Limited
Liability”); BPHC owns all of such Sponsor Units free and clear of all Liens;
and such Sponsor Units conform to the descriptions thereof contained in each
of
the most recent Preliminary Prospectus and the Prospectus.
(r) The
Units
to be issued and sold by the Partnership to the Underwriters hereunder have
been
duly authorized in accordance with the Partnership Agreement and, when issued
and delivered against payment therefor pursuant to this Agreement, will be
validly issued in accordance with the Partnership Agreement, fully paid (to
the
extent required under the Partnership Agreement) and non-assessable (except
as
such non-assessability may be affected by matters described in the most recent
Preliminary Prospectus under the caption “The Partnership Agreement—Limited
Liability”); the Units, when issued and delivered against payment therefor
pursuant to this Agreement, will conform to the descriptions thereof contained
in each of the most recent Preliminary Prospectus and the Prospectus; and other
than the Sponsor Units owned by BPHC, the Incentive Distribution Rights and
15,000,000 Common Units issued in November 2005 in the Partnership’s initial
public offering, the Units to be issued and sold by the Partnership to the
Underwriters hereunder will be the only limited partner interests in the
Partnership issued and outstanding at each Delivery Date.
(s) The
Partnership owns a 100% limited liability company interest in Operating GP;
such
limited liability company interest has been duly and validly authorized and
issued in accordance with the limited liability company agreement of Operating
GP (as the same may be amended and restated on or prior to the Initial Delivery
Date, the “Operating
GP LLC Agreement”)
and is
fully paid (to the extent required under the Operating GP LLC Agreement) and
non-assessable (except as such non-assessability may be affected by Sections
18-607 and 18-804 of the Delaware LLC Act); and the Partnership owns such
limited liability company interest free and clear of all Liens.
(t) Operating
GP is the sole general partner of the Operating Partnership, with a 0.001%
general partner interest in the Operating Partnership; such general partner
interest has been duly and validly authorized and issued in accordance with
the
agreement of limited partnership of the Operating Partnership (as the same
may
be amended and restated on or prior to the Initial Delivery Date, the
“Operating
Partnership Agreement”);
and
Operating GP owns such general partner interest free and clear of all Liens.
The
Partnership is the sole limited partner of the Operating Partnership, with
a
99.999% limited partner interest in the Operating Partnership; such limited
partner interest has been duly and validly authorized and issued in accordance
with the Operating Partnership Agreement and is fully paid (to the extent
required under the Operating Partnership Agreement) and non-assessable (except
as such non-assessability may be affected by Sections 17-607 and 17-804 of
the
Delaware LP Act); and the Partnership owns such limited partner interest free
and clear of all Liens.
(u) The
Operating Partnership owns a 100% limited liability company interest in Texas
Gas; such limited liability company interest has been duly and validly
authorized and issued in accordance with the limited liability company agreement
of Texas Gas (as the same may be amended and restated on or prior to the Initial
Delivery Date, the “Texas
Gas LLC Agreement”)
and is
fully paid (to the extent required under the Texas Gas LLC Agreement) and
non-assessable (except as such non-assessability may be affected by Sections
18-607 and 18-804 of the Delaware LLC Act); and the Operating Partnership owns
such limited liability company interest free and clear of all
Liens.
(v) The
Operating Partnership owns a 100% limited liability company interest in Gulf
South GP; such limited liability company interest has been duly and validly
authorized and issued in accordance with the limited liability company agreement
of Gulf South GP (as the same may be amended and restated on or prior to the
Initial Delivery Date, the “Gulf
South GP LLC Agreement”)
and is
fully paid (to the extent required under the Gulf South GP LLC Agreement) and
non-assessable (except as such non-assessability may be affected by Sections
18-607 and 18-804 of the Delaware LLC Act); and the Operating Partnership owns
such limited liability company interest free and clear of all
Liens.
(w) Gulf
South GP is the sole general partner of Gulf South, with a 1.0% general partner
interest in Gulf South; such general partner interest has been duly and validly
authorized and issued in accordance with the agreement of limited partnership
of
Gulf South (as the same may be amended and restated on or prior to the Initial
Delivery Date, the “Gulf
South Partnership Agreement”);
and
Gulf South GP owns such general partner interest free and clear of all Liens.
The Operating Partnership is the sole limited partner of Gulf South, with a
99.0% limited partner interest in Gulf South; such limited partner interest
has
been duly and validly authorized and issued in accordance with the Gulf South
Partnership Agreement and is fully paid (to the extent required under the Gulf
South Partnership Agreement) and non-assessable (except as such
non-assessability may be affected by Sections 17-607 and 17-804 of the Delaware
LP Act); and the Operating Partnership owns such limited partner interest free
and clear of all Liens.
(x) Other
than (i) BGL’s ownership of a 0.001% general partner interest in the
General Partner, (ii) the General Partner’s ownership of a 2% general
partner interest in the Partnership, (iii) the General Partner’s ownership
of all of the Incentive Distribution Rights, (iv) the Partnership’s
ownership of a 100% limited liability company interest in Operating GP,
(v) the Partnership’s ownership of a 99.999% limited partner interest in
the Operating Partnership, (vi) Operating GP’s ownership of a 0.001%
general partner interest in the Operating Partnership, (vii) the Operating
Partnership’s ownership of a 100% limited liability company interest in Texas
Gas, (viii) the Operating Partnership’s ownership of a 100% limited
liability company interest in Gulf South GP, (ix) the Operating
Partnership’s ownership of a 99% limited partner interest in Gulf South,
(x) Gulf South GP’s ownership of a 1% general partner interest in Gulf
South and (xi) if formed prior to the applicable Delivery Date, a Partnership
Party’s ownership of not less than 51% of the membership interests in a new
entity to be formed for the purpose of constructing the Gulf Crossing Pipeline,
no Partnership Party owns, directly or indirectly, any equity or short- or
long-term debt securities (other than intercompany advances and notes among
the
Partnership and the Subsidiaries) of any corporation, partnership, limited
liability company, joint venture, association or other entity; and none of
the
entities mentioned in the preceding clauses (i) through (xi), other than Texas
Gas, Gulf South and the Operating Partnership, is a “significant subsidiary” of
the Partnership as such term is defined in Rule 405 of the Rules and
Regulations.
(y) Except
as
described in the most recent Preliminary Prospectus or provided for in the
Partnership Agreement, there are no preemptive rights or other rights to
subscribe for or to purchase, nor any restriction upon the voting or transfer
of, any limited partner interests in the Partnership pursuant to any agreement
or instrument to which any of the BPHC Entities is a party or by which any
one
of them may be bound. Except as described in the most recent Preliminary
Prospectus or provided for in the applicable Organization Documents (as defined
below), there are no preemptive rights or other rights to subscribe for or
to
purchase, nor any restriction upon the voting or transfer of, (i) any
limited partner interests in the General Partner, the Operating Partnership
or
Gulf South or (ii) any membership interests in BGL, Operating GP, Texas Gas
or Gulf South GP, in each case pursuant to any agreement or instrument to which
any of such entities is a party or by which any one of them may be bound. Except
as described in the most recent Preliminary Prospectus, there are no outstanding
options or warrants to purchase (A) any Common Units, Subordinated Units or
other interests in the Partnership or (B) any interests in BGL, the General
Partner, or the Subsidiaries. “Organization
Documents”
means,
collectively, the GP Partnership Agreement, the Partnership Agreement, the
Operating Partnership Agreement, the Gulf South Partnership Agreement, the
BGL
LLC Agreement, the Operating GP LLC Agreement, the Texas Gas LLC Agreement
and
the Gulf South GP LLC Agreement, each as amended or restated at or prior to
the
Initial Delivery Date.
(z) Except
as
described in the most recent Preliminary Prospectus or provided for in the
Partnership Agreement, there are no contracts, agreements or understandings
between any BPHC Entity and any person granting such person the right to require
any Partnership Party to file a registration statement under the Securities
Act
with respect to any securities of the Partnership Parties owned or to be owned
by such person, or to require any Partnership Party to include such securities
in the Units registered pursuant to the Registration Statement or in any
securities registered or to be registered pursuant to any other registration
statement filed by or required to be filed by any Partnership Party under the
Securities Act.
(aa) No
BPHC
Entity has sold or issued any securities that would be integrated with the
offering of the Units contemplated by this Agreement pursuant to the Securities
Act, the Rules and Regulations or the interpretations thereof by the
Commission.
(bb) On
each
Delivery Date, the Partnership will have all requisite power and authority
to
issue, sell and deliver the Units, in accordance with and upon the terms and
conditions set forth in this Agreement, the Partnership Agreement, the
Registration Statement, the most recent Preliminary Prospectus and the
Prospectus. On each Delivery Date, all corporate, partnership or limited
liability company action, as the case may be, required to be taken by the Loews
Entities or any of their stockholders, members or partners for the
authorization, issuance, sale and delivery of the Units, the execution and
delivery by the Partnership Parties of this Agreement and the consummation
of
the transactions contemplated hereby shall have been validly taken.
(cc) This
Agreement has been duly and validly authorized, executed and delivered by the
Partnership Parties.
(dd) None
of
the offering, issuance and sale by the Partnership of the Units and the
application of the proceeds therefrom as described under the caption “Use of
Proceeds” in each of the most recent Preliminary Prospectus and the Prospectus,
the execution, delivery and performance of this Agreement by the Partnership
Parties, or the consummation of the transactions contemplated hereby
(i) conflicts or will conflict with, or constitutes or will constitute a
violation of, the certificate or agreement of limited partnership, certificate
of formation, limited liability company agreement, certificate or articles
of
incorporation, bylaws or other organizational documents of any Partnership
Party, or, to the knowledge of the Partnership Parties, BPHC or Loews,
(ii) conflicts or will conflict with, or constitutes or will constitute a
breach or violation of or a default under (or an event that, with notice or
lapse of time or both, would constitute such a breach or violation of or default
under), any indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which any of the Partnership Parties, or to the
knowledge of the Partnership Parties, BPHC or Loews, is a party, by which any
of
them is bound or to which any of their respective properties or assets is
subject, (iii) violates or will violate any statute, law, ordinance,
regulation, order, judgment, decree or injunction of any court or governmental
agency or body to which any of the Partnership Parties, or, to the knowledge
of
the Partnership Parties, BPHC or Loews, or any of their respective properties
or
assets may be subject or (iv) will result in the creation or imposition of
any Lien upon any property or assets of any Partnership Party, or, to the
knowledge of the Partnership Parties, BPHC or Loews, which conflicts, breaches,
violations, defaults or Liens, in the case of clauses (ii), (iii) or (iv),
would, individually or in the aggregate, have a Material Adverse
Effect.
(ee) Except
for the registration of the Units under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws in connection with
the purchase and sale of the Units by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any court or
governmental agency or body to which any of the Partnership Parties or any
of
their respective properties or assets is subject is required for the execution,
delivery and performance of this Agreement by the Partnership Parties, the
consummation of the transactions contemplated hereby and the application of
the
proceeds from the sale of the Units as described under the caption “Use of
Proceeds” in each of the most recent Preliminary Prospectus and the
Prospectus.
(ff) (i) Each
Services Agreement between any Loews Entities, on the one hand, and any
Partnership Party, on the other hand (such agreements collectively, the
“Services
Agreements”)
has
been duly authorized, executed and delivered by such Partnership Party and
is a
valid and legally binding agreement of such Partnership Party, enforceable
against such Partnership Party in accordance with its terms; (ii) the BGL LLC
Agreement has been duly authorized, executed and delivered by BPHC and is a
valid and legally binding agreement of BPHC, enforceable against BPHC in
accordance with its terms; (iii) the GP Partnership Agreement has been duly
authorized, executed and delivered by each of BPHC and BGL and is a valid and
legally binding agreement of each of BPHC and BGL, enforceable against each
of
BPHC and BGL in accordance with its terms; (iv) the Partnership Agreement
has been duly authorized, executed and delivered by each of the General Partner
and BPHC, and is a valid and legally binding agreement of each of the General
Partner and BPHC, enforceable against each of the General Partner and BPHC
in
accordance with its terms; (v) the Operating GP LLC Agreement has been duly
authorized, executed and delivered by the Partnership and is a valid and legally
binding agreement of the Partnership, enforceable against the Partnership in
accordance with its terms; (vi) the Operating Partnership Agreement has
been duly authorized, executed and delivered by each of the Partnership and
Operating GP and is a valid and legally binding agreement of each of the
Partnership and Operating GP, enforceable against each of the Partnership and
Operating GP in accordance with its terms; (vii) the Texas Gas LLC
Agreement has been duly authorized, executed and delivered by the Operating
Partnership and is a valid and legally binding agreement of the Operating
Partnership, enforceable against the Operating Partnership in accordance with
its terms; (viii) the Gulf South GP LLC Agreement has been duly authorized,
executed and delivered by the Operating Partnership and is a valid and legally
binding agreement of the Operating Partnership, enforceable against the
Operating Partnership in accordance with its terms; (ix) the Gulf South
Partnership Agreement has been duly authorized, executed and delivered by each
of the Operating Partnership and Gulf South GP and is a valid and legally
binding agreement of each of the Operating Partnership and Gulf South GP,
enforceable against each of the Operating Partnership and Gulf South GP in
accordance with its terms; and (x) the Amended and Restated Revolving Credit
Agreement, dated as of June 29, 2006 (the “Credit
Agreement”),
has
been duly authorized, executed and delivered by each Partnership Party party
thereto and is a valid and legally binding agreement of each such Partnership
Party, enforceable against each such Partnership Party in accordance with its
terms; provided
that,
with respect to each agreement described in this Section 1(ff),
the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws relating to or affecting
creditors’ rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and provided,
further,
that
the indemnity, contribution and exoneration provisions contained in any of
such
agreements may be limited by applicable laws and public policy.
(gg) At
September 30, 2006, the Partnership would have had, on the consolidated as
adjusted and as further adjusted bases indicated in each of the most recent
Preliminary Prospectus and the Prospectus (and any amendments or supplements
thereto), a capitalization as set forth therein. The historical financial
statements (including the related notes and supporting schedules) included
in,
or incorporated by reference into, the Registration Statement, the most recent
Preliminary Prospectus and the Prospectus (and any amendment or supplement
thereto) comply as to form in all material respects with the requirements of
Regulation S-X of the Commission and present fairly in all material respects
the
financial position, results of operations and cash flows of the entities
purported to be shown thereby on the basis stated therein at the respective
dates or for the respective periods to which they apply, and have been prepared
in accordance with generally accepted accounting principles consistently applied
throughout the periods involved. The summary historical information set forth
in
the Registration Statement, the most recent Preliminary Prospectus and the
Prospectus (and any amendment or supplement thereto) under the caption “Summary
Historical Financial and Operating Data” is accurately presented in all material
respects and prepared on a basis consistent with the audited and unaudited
historical consolidated financial statements from which it has been
derived.
(hh) Deloitte
& Touche LLP, who have certified certain financial statements of the General
Partner, the Partnership, the Operating Partnership and Gulf South, whose
reports appear in each of the most recent Preliminary Prospectus and the
Prospectus (or are incorporated by reference therein) and who have delivered
the
initial letter referred to in Section 7(g)
hereof,
are an independent registered public accounting firm as required by the
Securities Act and the Rules and Regulations and were such during the periods
covered by the financial statements on which they reported. Ernst & Young
LLP, who have certified certain financial statements of Gulf South and whose
report appears in each of the most recent Preliminary Prospectus and the
Prospectus, are an independent registered public accounting firm as required
by
the Securities Act and the Rules and Regulations and were such during the
periods covered by the financial statements on which they reported.
(ii) The
statistical and market-related data included in each of the most recent
Preliminary Prospectus and the Prospectus are based on or derived from sources
that the Partnership believes to be reliable and accurate in all material
respects.
(jj) Each
Partnership Party has good and indefeasible title to all real property and
good
title to all personal property contemplated as owned or to be owned by it in
each of the most recent Preliminary Prospectus and the Prospectus, in each
case
free and clear of all liens, claims, security interests, encumbrances and other
defects, except as described in the most recent Preliminary Prospectus or that
would not materially affect the value of such property and would not materially
interfere with the use made and proposed to be made of such property as
described in each of the most recent Preliminary Prospectus and the Prospectus.
With respect to title to pipeline rights-of-way, none of the Partnership Parties
has received any actual notice or claim from any owner of land upon which any
pipeline that is owned by any Subsidiary is located that such entity does not
have sufficient title to enable it to use and occupy the pipeline rights-of-way
as they have been used and occupied in the past and are proposed to be used
and
occupied in the future as described in each of the most recent Preliminary
Prospectus and the Prospectus, except where such failure to have sufficient
title would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect. All assets held under lease or license
by
the Partnership Parties are held under valid, subsisting and enforceable leases
or licenses, with such exceptions as would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect or materially
interfere with the use made and proposed to be made of such assets as they
have
been used in the past and are proposed to be used in the future as described
in
each of the most recent Preliminary Prospectus and the Prospectus.
(kk) Each
Partnership Party carries or is covered by insurance from insurers of recognized
financial responsibility in such amounts and covering such risks as is
reasonably adequate for the conduct of its business and the value of its
properties and as is customary for companies engaged in similar businesses
in
similar industries. All policies of insurance of each Partnership Party are
in
full force and effect, except as would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect; each Partnership
Party is in compliance with the terms of such policies in all material respects;
and no Partnership Party has received notice from any insurer or agent of such
insurer that any material capital improvements or other expenditures are
required or necessary to be made in order to continue such
insurance.
(ll) Each
Partnership Party owns or possesses adequate rights to use all material patents,
patent applications, trademarks, service marks, trade names, trademark
registrations, service xxxx registrations, copyrights, licenses and know-how
(including trade secrets and other unpatented and/or unpatentable proprietary
or
confidential information, systems or procedures) necessary for the conduct
of
its business, and no Partnership Party has any reason to believe that the
conduct by any Partnership Party of its business will conflict in any material
respect with, and no Partnership Party has received any notice or claim of
conflict with, any such rights of any other person or party.
(mm) Except
as
described in the most recent Preliminary Prospectus, there are no legal or
governmental proceedings pending to which any Partnership Party is a party
or to
which any property or asset of any Partnership Party is subject that, if
determined adversely to such party, could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect or a material
adverse effect on the performance of this Agreement or the consummation of
the
transactions contemplated hereby, and to the knowledge of the Partnership
Parties, no such proceedings are threatened or contemplated by governmental
authorities or others. There are no legal or governmental proceedings pending
that are required to be described in the most recent Preliminary Prospectus
and
the Prospectus that are not so described.
(nn) There
are
no contracts or other documents that are required to be described in the most
recent Preliminary Prospectus and the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or the Rules and Regulations that
have not been so described in the most recent Preliminary Prospectus and the
Prospectus or filed as exhibits to the Registration Statement.
(oo) The
statements set forth in each of the most recent Preliminary Prospectus and
the
Prospectus under the captions “Summary—Management and Ownership,”
“Summary—Summary of Conflicts of Interest and Fiduciary Duties,”
“Summary—Restrictions on Ownership of Common Units,” “Summary—The Offering,”
“How We Make Cash Distributions,” “Conflicts of Interest and Fiduciary Duties,”
“Description of the Common Units” and “The Partnership Agreement,” insofar as
they purport to constitute a summary of the terms of the Common Units and the
Subordinated Units, and under the caption “Material Tax Consequences,” insofar
as they purport to describe the provisions of the laws and documents referred
to
therein, are fair and accurate summaries in all material respects.
(pp) Except
as
described in the most recent Preliminary Prospectus, no labor disturbance by
the
employees of any Partnership Party (and to the extent that they perform services
on behalf of any Partnership Party, employees of Loews or BPHC) exists or,
to
the knowledge of the Partnership Parties, is imminent or threatened that could
reasonably be expected to have a Material Adverse Effect.
(qq) Since
the
date of the latest audited financial statements included in or incorporated
by
reference into the most recent Preliminary Prospectus, (i) no Partnership
Party has sustained any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, any
labor dispute or any court or governmental action, order or decree, and
(ii) there has not been any adverse change in the partners’ capital,
members’ equity or short- or long-term debt of any Partnership Party (other
than, if applicable, the offering of $250,000,000 principal amount of senior
notes of Boardwalk Pipelines, LP and the guarantee thereof by the Partnership)
or any adverse change, or any development involving a prospective adverse
change, in or affecting the condition (financial or otherwise), results of
operations, securityholders’ equity, properties, management, business or
prospects of any Partnership Party, in each case except as could not reasonably
be expected to have a Material Adverse Effect or as set forth or contemplated
in
the most recent Preliminary Prospectus.
(rr) Each
Partnership Party has filed all tax returns required to be filed through the
date hereof, which returns are complete and correct in all material respects,
and has paid all taxes shown to be due pursuant to such returns, other than
those that (i) if not paid, could not reasonably be expected to have a
Material Adverse Effect or (ii) are being contested in good faith and for
which adequate reserves have been established in accordance with generally
accepted accounting principles.
(ss) From
the
date as of which information is given in the most recent Preliminary Prospectus
through the date hereof, and except as may be disclosed in the most recent
Preliminary Prospectus (including the offering of $250,000,000 principal amount
of senior notes of Boardwalk Pipelines, LP and the guarantee thereof by the
Partnership), none of the Partnership Parties has (i) issued or granted any
securities, (ii) incurred any liability or obligation, direct or
contingent, other than liabilities and obligations that were incurred in the
ordinary course of business, (iii) entered into any transaction not in the
ordinary course of business or (iv) declared or paid any dividend or
distribution on its capital stock or other equity interests.
(tt) Each
Partnership Party (i) makes and keeps accurate books and records and
(ii) maintains a system of internal accounting controls sufficient to
provide reasonable assurance that (A) transactions are executed in
accordance with management’s general or specific authorizations,
(B) transactions are recorded as necessary to permit preparation of such
Partnership Party’s financial statements in conformity with accounting
principles generally accepted in the United States and to maintain
accountability for its assets, (C) access to such Partnership Party’s
assets is permitted only in accordance with management’s general or specific
authorization and (D) the recorded accountability for such Partnership
Party’s assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(uu) The
Partnership has established and maintain disclosure controls and procedures
(as
such term is defined in Rule 13a-15 under the Exchange Act), (ii) such
disclosure controls and procedures are designed to ensure that the information
required to be disclosed by the Partnership in the reports it files or submits
under the Exchange Act is accumulated and communicated to management of the
Partnership, including its principal executive officers and principal financial
officers, as appropriate, to allow timely decisions regarding required
disclosure to be made and (iii) such disclosure controls and procedures are
effective in all material respects to perform the functions for which they
were
established.
(vv) Since
the
date of the most recent balance sheet of the Partnership Parties reviewed or
audited by Deloitte & Touche LLP and the audit committee of the board of
directors of BGL, (i) the Partnership Parties have not been advised of (A)
any
significant deficiencies in the design or operation of internal controls that
are reasonably likely to adversely affect the ability of the Partnership Parties
to record, process, summarize and report financial data, or any material
weaknesses in internal controls (whether or not remediated) and (B) any fraud,
whether or not material, that involves management or other employees who have
a
significant role in the internal controls of the Partnership Parties, and (ii)
since that date, there have been no changes in internal controls that have
materially affected, or are reasonably likely to materially affect, internal
controls, including any corrective actions with regard to significant
deficiencies and material weaknesses.
(ww) No
relationship, direct or indirect, exists between or among the Partnership
Parties, on the one hand, and the directors, officers, securityholders,
customers or suppliers of the Partnership Parties, on the other hand, that
is
required to be described in the most recent Preliminary Prospectus and the
Prospectus that is not so described.
(xx) Each
Partnership Party subject to the Xxxxxxxx-Xxxxx Act of 2002, and each of its
directors and officers in their capacities as such, is in compliance in all
material respects with such act.
(yy) None
of
the Partnership Parties (i) is in violation of its certificate or agreement
of limited partnership, certificate of formation or limited liability company
agreement, certificate or articles of incorporation, bylaws or other
organizational documents, (ii) is in breach of or default under any term,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan
agreement, lease or other agreement or instrument to which it is a party, by
which it is bound or to which any of its properties or assets is subject (and
no
event has occurred that, with notice or lapse of time or both, would constitute
such a breach or default), (iii) is in violation of any statute, law,
ordinance, rule, regulation, order, judgment, decree or injunction of any court
or governmental agency or body to which it or its property or assets may be
subject or (iv) has failed to obtain any license, permit, certificate,
franchise or other governmental authorization or permit necessary to the
ownership of its property or to the conduct of its business, except, in the
case
of clauses (ii) or (iv), as could not reasonably be expected to have a Material
Adverse Effect.
(zz) None
of
the Partnership Parties, nor any of their respective directors, officers,
agents, employees or other persons associated with them or acting on their
behalf, has (i) used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to political activity,
(ii) made any direct or indirect unlawful payment to any foreign or
domestic government official or employee from corporate funds,
(iii) violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977 or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(aaa) Except
as
described in the most recent Preliminary Prospectus, the Partnership Parties
(i) are in compliance with any and all applicable federal, state and local
laws, regulations, ordinances, rules, orders, judgments, decrees or other legal
requirements relating to the protection of human health and safety, the
environment or natural resources or imposing liability or standards of conduct
concerning any Hazardous Materials (as defined below) (“Environmental
Laws”),
(ii) have received, and as necessary maintained, all permits required of
them under applicable Environmental Laws to conduct their respective businesses,
(iii) are in compliance with all terms and conditions of any such permits
and (iv) do not have any liability in connection with the release into the
environment of any Hazardous Material, except where such noncompliance with
Environmental Laws, failure to receive and maintain required permits, failure
to
comply with the terms and conditions of such permits or liability in connection
with such releases could not, individually or in the aggregate, reasonably
be
expected to have a Material Adverse Effect. The term “Hazardous
Material”
means
(1) any “hazardous substance” as defined in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (“CERCLA”),
(2) any “hazardous waste” as defined in the Resource Conservation and
Recovery Act, as amended, (3) petroleum or any petroleum product,
(4) any polychlorinated biphenyl and (5) any pollutant, contaminant or
hazardous, dangerous or toxic chemical, material, waste or substance regulated
under or within the meaning of any other Environmental Law. No Partnership
Party
has been named as a “potentially responsible party” under CERCLA or any other
similar Environmental Law, except with respect to any matters that, individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect. Except as described in the most recent Preliminary Prospectus, no
Partnership Party (A) is a party to any proceeding under Environmental Laws
in which a governmental authority is also a party, other than proceedings
regarding which it is believed that no monetary penalties in excess of $100,000
will be imposed, (B) has received notice of any potential liability for the
disposal or release of any Hazardous Material, except where such liability
could
not reasonably be expected to have a Material Adverse Effect or
(C) anticipates any material capital expenditures relating to Environmental
Laws.
(bbb) Each
Partnership Party is in compliance in all material respects with all presently
applicable provisions of the Employee Retirement Income Security Act of 1974,
as
amended, including the regulations and published interpretations thereunder
(“ERISA”);
no
“reportable event” (as defined in ERISA) has occurred with respect to any
“pension plan” (as defined in ERISA) for which any Partnership Party would have
any liability; no Partnership Party has incurred or expects to incur liability
under (i) Title IV of ERISA with respect to the termination of, or
withdrawal from, any “pension plan” or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the “Code”);
and
each “pension plan” that is intended to be qualified under Section 401(a) of the
Code and for which any Partnership Party would have any liability is so
qualified and nothing has occurred, whether by action or by failure to act,
that
would cause the loss of such qualification.
(ccc) Each
Partnership Party has, or at each Delivery Date will have, such permits,
consents, licenses, franchises, certificates and other approvals or
authorizations of governmental or regulatory authorities (“Permits”)
as are
necessary to own or lease its properties and to conduct its business in the
manner described in each of the most recent Preliminary Prospectus and the
Prospectus, except as disclosed in or specifically contemplated by the most
recent Preliminary Prospectus or except for any failure to have any such Permit
that could not reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect. Except as described in the most recent Preliminary
Prospectus, each Partnership Party has fulfilled and performed all of its
material obligations with respect to all such Permits, and no event has occurred
that would prevent any such Permit from being renewed or reissued, that allows,
or after notice or lapse of time would allow, revocation or termination of
any
such Permit or that would result in any other impairment of the rights of the
holder of any such Permit, except for any such non-renewal, revocation,
termination or impairment that could not reasonably be expected to have a
Material Adverse Effect.
(ddd) No
Partnership Party is, and as of each Delivery Date and after giving effect
to
the application of the net proceeds of the offering as described under the
caption “Use of Proceeds” in the most recent Preliminary Prospectus and the
Prospectus, no Partnership Party will be, an “investment company” as defined in
the Investment Company Act of 1940, as amended (the “Investment
Company Act”).
(eee) None
of
the Partnership Parties or, to the knowledge of the Partnership Parties, any
of
their affiliates has distributed, and prior to the later to occur of any
Delivery Date and completion of the distribution of the Units, none of the
Partnership Parties or, to the knowledge of the Partnership Parties, any of
their affiliates will distribute, any offering material in connection with
the
offering and sale of the Units other than any Preliminary Prospectus, the
Prospectus, and any Issuer Free Writing Prospectus to which the Representatives
have consented pursuant to Section 1(i)
or
5(a)(vi)
hereof.
(fff) None
of
the Partnership Parties or, to the knowledge of the Partnership Parties, any
of
their affiliates has taken, nor will any of the Partnership Parties or, to
the
knowledge of the Partnership Parties, any of their affiliates take, directly
or
indirectly, any action that has constituted, that was designed to cause or
result in, or that could reasonably be expected to cause or result in, the
stabilization or manipulation of the price of any security of any Partnership
Party to facilitate the sale or resale of the Units.
(ggg) The
Units
have been approved for listing on the New York Stock Exchange (the “NYSE”),
subject only to official notice of issuance.
(hhh) Except
for this Agreement, there are no contracts, agreements or understandings between
the Partnership and any person that would give rise to a valid claim against
the
Partnership or any Underwriter for a brokerage commission, finder’s fee or other
like payment in connection with the offering and sale of the Units contemplated
by this Agreement.
Any
certificate signed by or on behalf of any Partnership Party and delivered to
the
Representatives or counsel for the Underwriters in connection with the offering
of the Units shall be deemed a representation and warranty by each such
Partnership Party, as to matters covered thereby, to each
Underwriter.
2. Purchase
of the Units by the Underwriters
On
the basis of the representations and warranties contained in, and subject to
the
terms and conditions of, this Agreement, the Partnership agrees to sell
6,000,000 Firm Units to the several Underwriters, and each of the Underwriters,
severally and not jointly, agrees to purchase the number of Firm Units set
forth
opposite that Underwriter’s name in Schedule 1
attached
hereto. The respective purchase obligations of the Underwriters with respect
to
the Firm Units shall be rounded among the Underwriters to avoid fractional
Units, as the Representatives may determine.
In
addition, the Partnership grants to the Underwriters an option to purchase
up to
900,000 Option Units. Such option is exercisable in the event that the
Underwriters sell more Common Units than the number of Firm Units in the
offering and as set forth in Section 4
hereof.
Each Underwriter agrees, severally and not jointly, to purchase the number
of
Option Units (subject to such adjustments to eliminate fractional Units as
the
Representatives may determine) that bears the same proportion to the total
number of Option Units to be sold on such Delivery Date as the number of Firm
Units set forth in Schedule 1
attached
hereto opposite the name of such Underwriter bears to the total number of Firm
Units.
The
price
of both the Firm Units and any Option Units purchased by the Underwriters shall
be $29.65 per Unit.
The
Partnership shall not be obligated to deliver any of the Firm Units or Option
Units to be delivered on the applicable Delivery Date, except upon payment
for
all such Units to be purchased on such Delivery Date as provided
herein.
3. Offering
of Units by the Underwriters
Upon
authorization by the Representatives of the release of the Firm Units, the
several Underwriters propose to offer the Firm Units for sale upon the terms
and
conditions to be set forth in the Prospectus.
4. Delivery
of and Payment for the Units
Delivery
of and payment for the Firm Units shall be made at the offices of Xxxxxxx Xxxxx
LLP at 9:00 A.M., Houston time, on the fourth full business day following the
date of this Agreement or at such other date, time or place as shall be
determined by agreement between the Representatives and the Partnership. This
date and time are sometimes referred to as the “Initial
Delivery Date.”
Delivery of the Firm Units shall be made to the Representatives for the account
of each Underwriter against payment by the several Underwriters through the
Representatives of the aggregate purchase price of the Firm Units being sold
by
the Partnership to or upon the order of the Partnership by wire transfer in
immediately available funds to the accounts specified by the Partnership. Time
shall be of the essence, and delivery of the Firm Units at the time and place
specified pursuant to this Agreement is a further condition of the obligation
of
each Underwriter hereunder. The Partnership shall deliver the Firm Units through
the facilities of DTC unless the Representatives shall otherwise
instruct.
The
option granted in Section 2
hereof
will expire 30 days after the date of this Agreement and may be exercised in
whole or from time to time in part by written notice being given to the
Partnership by the Representatives; provided
that if
such date falls on a day that is not a business day, the option granted in
Section 2
hereof
will expire on the next succeeding business day. Such notice shall set forth
the
aggregate number of Option Units as to which the option is being exercised,
the
names in which the Option Units are to be registered, the denominations in
which
the Option Units are to be issued and the date and time, as determined by the
Representatives, when the Option Units are to be delivered; provided,
however,
that
this date and time shall not be earlier than the Initial Delivery Date, nor
earlier than the second business day after the date on which the option shall
have been exercised, nor later than the fifth business day after the date on
which the option shall have been exercised. Each date and time the Option Units
are delivered is sometimes referred to as an “Option
Unit Delivery Date,”
and
the Initial Delivery Date and any Option Unit Delivery Date are sometimes each
referred to as a “Delivery
Date.”
Delivery
of the Option Units by the Partnership and payment for the Option Units by
the
several Underwriters through the Representatives shall be made at the offices
of
Xxxxxxx Xxxxx LLP on the Option Unit Delivery Date or at such other date, time
or place as shall be determined by agreement between the Representatives and
the
Partnership. On the Option Unit Delivery Date, the Partnership shall deliver
or
cause to be delivered the Option Units to the Representatives for the account
of
each Underwriter against payment by the several Underwriters through the
Representatives of the aggregate purchase price of the Option Units being sold
by the Partnership to or upon the order of the Partnership by wire transfer
in
immediately available funds to the accounts specified by the Partnership. Time
shall be of the essence, and delivery of the Option Units at the time and place
specified pursuant to this Agreement is a further condition of the obligation
of
each Underwriter hereunder. The Partnership shall deliver the Option Units
through the facilities of DTC unless the Representatives shall otherwise
instruct.
5. Further
Agreements of the Partnership Parties and the Underwriters
(a) Each
Partnership Party jointly and severally agrees:
(i) To
prepare the Prospectus in a form approved by the Representatives and to file
such Prospectus pursuant to Rule 424(b) of the Rules and Regulations not later
than the Commission’s close of business on the second business day following the
execution and delivery of this Agreement; to make no further amendment or any
supplement to the Registration Statement or the Prospectus prior to the last
Delivery Date except as provided herein; to advise the Representatives, promptly
after it receives notice thereof, of the time when any amendment or supplement
to the Registration Statement or the Prospectus has been filed and to furnish
the Representatives with copies thereof; to advise the Representatives, promptly
after it receives notice thereof, of the issuance by the Commission of any
stop
order or of any order preventing or suspending the use of the Prospectus or
any
Issuer Free Writing Prospectus, of the suspension of the qualification of the
Units for offering or sale in any jurisdiction, of the initiation or threatening
of any proceeding for any such purpose or of any request by the Commission
for
the amendment or supplement of the Registration Statement, the Prospectus or
any
Issuer Free Writing Prospectus or for additional information; and, in the event
of the issuance of any stop order or of any order preventing or suspending
the
use of the Prospectus or any Issuer Free Writing Prospectus or suspending any
such qualification, to use promptly its best efforts to obtain its
withdrawal;
(ii) To
furnish promptly to each of the Representatives and to counsel for the
Underwriters a signed copy of the Registration Statement as originally filed
with the Commission, and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith;
(iii) To
deliver promptly to the Representatives such number of the following documents
as the Representatives shall reasonably request: (A) conformed copies of
the Registration Statement as originally filed with the Commission and each
amendment thereto (in each case excluding exhibits other than this Agreement),
(B) each Preliminary Prospectus, the Prospectus and any amended or
supplemented Prospectus, (C) each Issuer Free Writing Prospectus and
(D) any document incorporated by reference in any Preliminary Prospectus or
the Prospectus; and, if the delivery of a Prospectus is required at any time
after the date hereof in connection with the offering or sale of the Units
or
any other securities relating thereto and if at such time any events 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 circumstances under which they were made, not misleading, or, if for any
other reason it shall be necessary to amend or supplement the Prospectus in
order to comply with the Securities Act, to notify the Representatives and,
upon
their request, to prepare and file an amended or supplemented Prospectus that
will correct such statement or omission or effect such compliance and furnish
without charge to each Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time reasonably request of such
amended or supplemented Prospectus;
(iv) To
file
promptly with the Commission any amendment or supplement to the Registration
Statement or the Prospectus that may, in the reasonable judgment of the
Partnership or the Representatives, be required by the Securities Act or
requested by the Commission;
(v) Prior
to
filing with the Commission any amendment or supplement to the Registration
Statement, the Prospectus, or any document incorporated by reference in the
Prospectus, to furnish a copy thereof to the Representatives and counsel for
the
Underwriters and obtain the consent of the Representatives to the filing, which
consent shall not be unreasonably withheld and which shall be provided to the
Partnership promptly after having been given notice of the proposed filing;
provided
that the
foregoing provision shall not apply if such filing is, in the judgment of
counsel to the Partnership Parties, required by law;
(vi) Not
to
make any offer relating to the Units that would constitute an Issuer Free
Writing Prospectus without the prior written consent of the
Representatives;
(vii) To
retain
in accordance with the Rules and Regulations all Issuer Free Writing
Prospectuses not required to be filed pursuant to the Rules and Regulations;
and
if at any time after the date hereof any events shall have occurred as a result
of which any Issuer Free Writing Prospectus, as then amended or supplemented,
would conflict with the information in the Registration Statement, the most
recent Preliminary Prospectus or the Prospectus or 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 circumstances under
which they were made, not misleading, or, if for any other reason it shall
be
necessary to amend or supplement any Issuer Free Writing Prospectus, to notify
the Representatives and, upon their request, to prepare and file an amended
or
supplemented Issuer Free Writing Prospectus that will correct such conflict,
statement or omission or effect such compliance and furnish without charge
to
each Underwriter as many copies as the Representatives may from time to time
reasonably request of such amended or supplemented Issuer Free Writing
Prospectus;
(viii) As
soon
as practicable after the Effective Date (it being understood that the
Partnership shall have until 410, or, if the fourth quarter following the fiscal
quarter that includes the Effective Date is the last fiscal quarter of the
Partnership’s fiscal year, 455, days after the end of the Partnership’s current
fiscal quarter), to make generally available to the Partnership’s security
holders and to deliver to the Representatives an earnings statement of the
Partnership and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and the Rules and Regulations (including,
at
the option of the Partnership, Rule 158);
(ix) For
a
period of two years following the Effective Date, to furnish or to make
available via the Commission’s Electronic Data, Gathering, Analysis, and
Retrieval (XXXXX) System to the Representatives copies of (i) all materials
furnished by the Partnership to its unitholders (excluding any periodic income
tax reporting materials), (ii) all public reports and (iii) all reports and
financial statements furnished by the Partnership to (A) the principal national
securities exchange or automated quotation system upon which the Units may
be
listed pursuant to the requirements of or agreements with such exchange or
system and/or (B) the Commission pursuant to the Exchange Act or any rule or
regulation of the Commission thereunder;
(x) Promptly
from time to time to take such action as the Representatives may reasonably
request to qualify the Units for offering and sale under the securities laws
of
such jurisdictions as the Representatives 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 Units; provided
that in
connection therewith the Partnership shall not be required to (A) qualify
as a foreign limited partnership in any jurisdiction in which it would not
otherwise be required to so qualify, (B) file a general consent to service
of process in any such jurisdiction or (C) subject itself to taxation in
any jurisdiction in which it would not otherwise be subject;
(xi) For
a
period commencing on the date hereof and ending on the 90th day after the date
of the Prospectus (the “Lock-Up Period”),
not
to take any of the following actions, directly or indirectly, without the prior
written consent of Xxxxxx Brothers Inc., Citigroup Global Markets Inc. and
UBS
Securities LLC on behalf of the Underwriters: (A) offer for sale, sell,
pledge, transfer or otherwise dispose of (or enter into any transaction or
device that is designed to, or could be expected to, result in the disposition
by any individual or entity at any time in the future of) any Common Units
or
securities convertible into or exchangeable or exercisable for Common Units
(other than the Units and Common Units issued pursuant to employee benefit
plans, qualified unit option plans or other employee compensation plans existing
on the date hereof or pursuant to currently outstanding options, warrants or
rights); (B) sell or grant any options, rights or warrants with respect to
any Common Units or securities convertible into or exchangeable or exercisable
for Common Units (other than the grant of options pursuant to option plans
existing on the date hereof); (C) enter into any swap or other derivatives
transaction that transfers to another, in whole or in part, any of the economic
benefits or risks of ownership of any Common Units, whether any such transaction
described in clause (A), (B) or (C) above is to be settled by delivery of Common
Units or other securities, in cash or otherwise; (D) file or cause to be
filed a registration statement, including any amendments thereto, with respect
to the registration of any Common Units, any securities convertible into or
exchangeable or exercisable for Common Units, or any other securities of the
Partnership (other than any registration statement on Form S-8 or Form S-3
and,
if applicable, the registration of $250,000,000 principal amount of senior
notes
of Boardwalk Pipelines, LP and the guarantee thereof by the Partnership); or
(E) publicly disclose the intention to do any of the foregoing; and to
cause each officer, director and/or securityholder of the Partnership Parties
set forth on Schedule 3
attached
hereto to furnish to the Representatives, prior to the Initial Delivery Date,
a
letter or letters, substantially in the form of Exhibit A
hereto
(the “Lock-Up
Agreements”);
Notwithstanding
the foregoing paragraph, if (X) during the last 17 days of the Lock-Up Period,
the Partnership issues an earnings release or material news or a material event
relating to the Partnership Parties occurs or (Y) prior to the expiration of
the
Lock-Up Period, the Partnership announces that it will release earnings results
during the 16-day period beginning on the last day of the Lock-Up Period, then
the restrictions imposed in the foregoing paragraph shall continue to apply
until the expiration of the 18-day period beginning on the issuance of the
earnings release, the announcement of the material news or the occurrence of
the
material event, unless Xxxxxx Brothers Inc., Citigroup Global Markets Inc.
and
UBS Securities LLC, on behalf of the Underwriters, waive such extension in
writing; and
(xii) To
apply
the net proceeds from the sale of the Units being sold by the Partnership as
set
forth in the Prospectus.
(b) Each
Underwriter severally agrees that such Underwriter shall not include any “issuer
information” (as defined in Rule 433 of the Rules and Regulations) in any “free
writing prospectus” (as defined in Rule 405 of the Rules and Regulations) used
or referred to by such Underwriter without the prior consent of the Partnership
(any such issuer information with respect to the use of which the Partnership
has given its consent, “Permitted
Issuer Information”);
provided
that
(i) no such consent shall be required with respect to any such issuer
information contained in any document filed by the Partnership Parties with
the
Commission prior to the use of such free writing prospectus and
(ii) “issuer information,” as used in this Section 5(b),
shall
not be deemed to include information prepared by or on behalf of such
Underwriter on the basis of or derived from issuer information.
6. Expenses
The
Partnership Parties agree, whether or not the transactions contemplated by
this
Agreement are consummated or this Agreement is terminated, to pay all costs,
expenses, fees and taxes incident to and in connection with (a) the
authorization, issuance, sale and delivery of the Units, any stamp duties or
other taxes payable in that connection and the preparation and printing of
certificates for the Units; (b) the preparation, printing and filing under
the Securities Act of the Registration Statement (including any exhibits
thereto), any Preliminary Prospectus, the Prospectus, any Issuer Free Writing
Prospectus and any amendment or supplement thereto; (c) the distribution of
the Registration Statement (including any exhibits thereto), any Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any amendment
or supplement thereto, and any document incorporated by reference in any of
the
foregoing, all as provided in this Agreement; (d) the production and
distribution of this Agreement, any supplemental agreement among Underwriters,
and any other related documents in connection with the offering, purchase,
sale
and delivery of the Units; (e) any required review by the National
Association of Securities Dealers, Inc. (the “NASD”)
of the
terms of sale of the Units (including related fees and expenses of counsel
to
the Underwriters); (f) the listing of the Units on the NYSE; (g) the
qualification of the Units under the securities laws of the several
jurisdictions as provided in Section 5(a)(ix)
hereof
and the preparation, printing and distribution of a “blue sky memorandum”
(including related fees and expenses of counsel to the Underwriters);
(h) the investor presentations on any “road show” undertaken in connection
with the marketing of the Units, including, without limitation, expenses
associated with (i) the preparation or production of road show slides and
graphics or any electronic road show, (ii) the engagement, with the
approval of the Partnership, of any consultants in connection with any road
show, (iii) travel and lodging expenses of the representatives and officers
of the Partnership Parties and (iv) the cost of any aircraft chartered in
connection with the road show; and (i) the performance of the obligations
of the Partnership Parties under this Agreement; provided
that,
except as provided in this Section 6
and in
Sections
8
and
11
hereof,
the Underwriters shall pay their own costs and expenses, including the costs
and
expenses of their counsel, and the expenses of advertising any offering of
the
Units made by the Underwriters.
7. Conditions
of Underwriters’ Obligations
The
respective obligations of the Underwriters hereunder are subject to the
accuracy, when made and on each Delivery Date, of the representations and
warranties of the Partnership Parties contained herein, to the performance
by
the Partnership Parties of their respective obligations hereunder, and to each
of the following additional terms and conditions:
(a) The
Prospectus shall have been timely filed with the Commission in accordance with
Section 5(a)(i)
hereof;
the Partnership shall have complied with all filing requirements applicable
to
any Issuer Free Writing Prospectus used or referred to after the date hereof;
no
stop order suspending the effectiveness of the Registration Statement or
preventing or suspending the use of the Prospectus or any Issuer Free Writing
Prospectus shall have been issued and no proceeding for such purpose shall
have
been initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in the Registration Statement
or the Prospectus or otherwise shall have been complied with.
(b) No
Underwriter shall have discovered and disclosed to the Partnership on or prior
to such Delivery Date that the Registration Statement, the Prospectus or the
Pricing Disclosure Package, or any amendment or supplement thereto, contains
an
untrue statement of a fact that, in the reasonable opinion of Xxxxxxx Xxxxx
LLP,
counsel for the Underwriters, is material or omits to state a fact that, in
the
opinion of such counsel, is material and is required to be stated therein or
is
necessary to make the statements therein not misleading (in the case of the
Prospectus or the Pricing Disclosure Package, in the light of the circumstances
under which such statements were made), except that in the case of the Pricing
Disclosure Package, the price and number of the Units will be included on the
cover page of the Prospectus.
(c) All
corporate, partnership and limited liability company proceedings and other
legal
matters incident to the authorization, form and validity of this Agreement,
the
Units, the Registration Statement, the Prospectus and any Issuer Free Writing
Prospectus, and all other legal matters relating to this Agreement and the
transactions contemplated hereby, shall be reasonably satisfactory in all
material respects to counsel for the Underwriters, and the Partnership Parties
shall have furnished to such counsel all documents and information that they
may
reasonably request to enable them to pass upon such matters.
(d) Xxxxxx
& Xxxxxx L.L.P. shall have furnished to the Representatives its written
opinion, as counsel to the Partnership Parties, addressed to the Underwriters
and dated such Delivery Date, in form and substance reasonably satisfactory
to
the Representatives, with respect to the matters set forth in Exhibit B
to this
Agreement.
(e) Xxxxxxx
X. XxXxxxx shall have furnished to the Representatives his written opinion,
as
counsel to the Partnership, addressed to the Underwriters and dated such
Delivery Date, in form and substance reasonably satisfactory to the
Representatives, with respect to the matters set forth in Exhibit C
to this
Agreement.
(f) Xxxxxxx
Xxxxx LLP shall have furnished to the Representatives its written opinion or
opinions, as counsel for the Underwriters, addressed to the Underwriters and
dated such Delivery Date, with respect to the issuance and sale of the Units,
the Registration Statement, the Prospectus, the Pricing Disclosure Package
and
such other related matters as the Representatives may reasonably require, and
the Partnership Parties shall have furnished to such counsel such documents
as
they reasonably request for the purpose of enabling them to pass upon such
matters.
(g) At
the
time of execution of this Agreement, the Representatives shall have received
from Deloitte & Touche LLP a letter (the “initial
letter”),
in
form and substance satisfactory to the Representatives, addressed to the
Underwriters and dated the date hereof (i) confirming that they are
independent public accountants within the meaning of the Securities Act and
are
in compliance with the applicable requirements relating to the qualification
of
accountants under Rule 2-01 of Regulation S-X of the Commission and
(ii) stating, as of the date hereof (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in the most recent Preliminary Prospectus, as
of
a date not more than three days prior to the date hereof), the conclusions
and
findings of such firm with respect to the financial information and other
matters ordinarily covered by accountants’ “comfort letters” to underwriters in
connection with registered public offerings.
(h) The
Representatives shall have received from Deloitte & Touche LLP a letter (the
“bring-down
letter”),
in
form and substance satisfactory to the Representatives, addressed to the
Underwriters and dated such Delivery Date (i) confirming that they are
independent public accountants within the meaning of the Securities Act and
are
in compliance with the applicable requirements relating to the qualification
of
accountants under Rule 2-01 of Regulation S-X of the Commission,
(ii) stating, as of the date of the bring-down letter (or, with respect to
matters involving changes or developments since the respective dates as of
which
specified financial information is given in the Prospectus, as of a date not
more than three days prior to the date of the bring-down letter), the
conclusions and findings of such firm with respect to the financial information
and other matters covered by the initial letter and (iii) confirming in all
material respects the conclusions and findings set forth in the initial
letter.
(i) BGL
shall
have furnished to the Representatives a certificate, dated such Delivery Date,
of its Chairman of the Board, either of its Presidents or any of its Vice
Presidents and its Chief Financial Officer stating that:
(i) The
representations, warranties and agreements of the Partnership Parties in
Section 1
hereof
are true and correct on and as of such Delivery Date, and the Partnership
Parties have complied with all their agreements contained herein and satisfied
all the conditions on their part to be performed or satisfied hereunder at
or
prior to such Delivery Date;
(ii) No
stop
order suspending the effectiveness of the Registration Statement has been
issued; and no proceedings for that purpose have been instituted or, to the
knowledge of such officers, threatened; and
(iii) They
have
carefully examined the Registration Statement, the Prospectus and the Pricing
Disclosure Package and, in their opinion, (A) (1) the Registration
Statement, as of the Effective Date, (2) the Prospectus, as of its date and
on the applicable Delivery Date, and (3) the Pricing Disclosure Package, as
of the Applicable Time, did not and do not contain any untrue statement of
a
material fact and did not and do not omit to state a material fact required
to
be stated therein or necessary to make the statements therein not misleading
(in
the case of the Registration Statement) or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (in the case of the Pricing Disclosure Package and the Prospectus),
except that in the case of the Pricing Disclosure Package, the price and number
of the Units are included on the cover page of the Prospectus, and (B) since
the
Effective Date, no event has occurred that should have been set forth in a
supplement or amendment to the Registration Statement, the Prospectus or any
Issuer Free Writing Prospectus that has not been so set forth.
(j) Since
the
date of the latest audited financial statements included in or incorporated
by
reference into the most recent Preliminary Prospectus, (i) no Partnership
Party shall have sustained any loss or interference with its business from
fire,
explosion, flood or other calamity, whether or not covered by insurance, any
labor dispute or any court or governmental action, order or decree, (ii) no
Partnership Party shall have become a party to or the subject of any litigation
or court or government action, investigation, order or decree that is adverse
to
any Partnership Party and (iii) there shall not have been any adverse
change in the partners’ capital, members’ equity or short- or long-term debt of
any Partnership Party (other than, if applicable, the offering of $250,000,000
principal amount of senior notes of Boardwalk Pipelines, LP and the guarantee
thereof by the Partnership) or any adverse change, or any development involving
a prospective adverse change, in or affecting the condition (financial or
otherwise), results of operations, securityholders’ equity, properties,
management, business or prospects of any Partnership Party, the effect of which
in any such case is, in the judgment of the Representatives, so material and
adverse as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Units being delivered on such Delivery Date
on
the terms and in the manner contemplated herein and in the
Prospectus.
(k) Subsequent
to the execution and delivery of this Agreement (i) no downgrading shall
have occurred in the rating accorded the debt securities of any Partnership
Party by any “nationally recognized statistical rating organization” (as that
term is defined by the Commission for purposes of Rule 436(g)(2) of the Rules
and Regulations) and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any debt securities of any Partnership Party;
provided,
however,
that
this paragraph (k) shall not apply to any downgrade of not more than one ratings
notch or level contemplated by an existing notice of surveillance or
review.
(l) Subsequent
to the execution and delivery of this Agreement there shall not have occurred
any of the following: (i) trading in securities generally on the NYSE or
the American Stock Exchange or in the over-the-counter market, or trading in
any
securities of any Partnership Party on any exchange or in the over-the-counter
market, shall have been suspended or materially limited, the settlement of
such
trading generally shall have been materially disrupted or minimum prices shall
have been established on any such exchange or such market by the Commission,
by
such exchange or by any other regulatory body or governmental authority having
jurisdiction, (ii) a banking moratorium shall have been declared by federal
or state authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving the
United States or there shall have been a declaration of a national emergency
or
war by the United States or (iv) a material adverse change in general economic,
political or financial conditions, including, without limitation, as a result
of
terrorist activities or any other calamity or crisis after the date hereof,
or
the effect of international conditions on the financial markets in the United
States, that would make it, in the judgment of the Representatives,
impracticable or inadvisable to proceed with the public offering or delivery
of
the Units being delivered on such Delivery Date on the terms and in the manner
contemplated herein and in the Prospectus.
(m) The
NYSE
shall have approved the Units for listing, subject only to official notice
of
issuance.
(n) The
Lock-Up Agreements between the Representatives and the securityholders, officers
and directors of the Partnership Parties listed on Schedule 3
attached
hereto, delivered to the Representatives on or before the date of this
Agreement, shall be in full force and effect on such Delivery Date.
(o) The
Representatives shall have received from the Partnership Parties such additional
documents and certificates as the Representatives or counsel for the
Underwriters may reasonably request.
All
opinions, letters, evidence and certificates mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel for
the Underwriters.
8. Indemnification
and Contribution
(a) The
Partnership Parties, jointly and severally, shall indemnify and hold harmless
each Underwriter, its directors, officers and employees and each person, if
any,
who controls such Underwriter within the meaning of Section 15 of the Securities
Act from and against any loss, claim, damage or liability, joint or several,
or
any action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of Units) to which
that Underwriter, director, officer, employee or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in
(A) any Preliminary Prospectus, the Registration Statement, the Prospectus,
any Issuer Free Writing Prospectus, or in any amendment or supplement thereto,
(B) any Permitted Issuer Information used or referred to in any “free
writing prospectus” (as defined in Rule 405 of the Rules and Regulations) used
or referred to by any Underwriter, (C) any “road show” (as defined in Rule
433 of the Rules and Regulations) not constituting an Issuer Free Writing
Prospectus (a “Non-Prospectus
Road Show”)
or
(D) any “blue sky” application or other document prepared or executed by
the Partnership (or based upon any written information furnished by the
Partnership for use therein) specifically for the purpose of qualifying any
or
all of the Units under the securities laws of any state or other jurisdiction
(any such application, document or information being hereinafter called a
“Blue
Sky Application”),
(ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing
Prospectus or in any amendment or supplement thereto, or in any Permitted Issuer
Information, any Non-Prospectus Road Show or any Blue Sky Application, any
material fact required to be stated therein or necessary to make the statements
therein not misleading (in the case of the Registration Statement) or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading (in the case of any Preliminary Prospectus,
the
Prospectus or any Issuer Free Writing Prospectus) or (iii) any act or
failure to act or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Units or the offering
contemplated hereby, and that is included as part of or referred to in any
loss,
claim, damage, liability or action arising out of or based upon matters covered
by clause (i) or (ii) above (provided
that the
Partnership Parties shall not be liable under this clause (iii) to the extent
that it is determined in a final judgment by a court of competent jurisdiction
that such loss, claim, damage, liability or action resulted directly from any
such acts or failures to act undertaken or omitted to be taken by such
Underwriter through its gross negligence or willful misconduct), and shall
reimburse each such Underwriter and each such director, officer, employee or
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by such Underwriter, director, officer, employee or
controlling person in connection with investigating or defending or preparing
to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided,
however,
that
the Partnership Parties shall not be liable in any such case to the extent
that
any such loss, claim, damage, liability or action arises out of, or is based
upon, any untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, the Registration Statement, the
Prospectus, any Issuer Free Writing Prospectus or in any such amendment or
supplement thereto, or in any Permitted Issuer Information, any Non-Prospectus
Road Show or any Blue Sky Application, in reliance upon and in conformity with
written information concerning such Underwriter furnished to the Partnership
through the Representatives by or on behalf of any Underwriter specifically
for
inclusion therein, which information consists solely of the information
specified in Section 8(e)
hereof.
The foregoing indemnity agreement is in addition to any liability which the
Partnership Parties may otherwise have to any Underwriter or to any director,
officer, employee or controlling person of such Underwriter.
(b) Each
Underwriter, severally and not jointly, shall indemnify and hold harmless each
Partnership Party, its directors, officers, managers who are natural persons
and
employees and each person, if any, who controls such Partnership Party within
the meaning of Section 15 of the Securities Act from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which such Partnership Party or any such director, officer, employee, manager
who is a natural person or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability
or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus,
the
Registration Statement, the Prospectus, any Issuer Free Writing Prospectus
or in
any amendment or supplement thereto, or in any Non-Prospectus Road Show or
Blue
Sky Application, or (ii) the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer
Free Writing Prospectus or in any amendment or supplement thereto, or in any
Non-Prospectus Road Show or Blue Sky Application, any material fact required
to
be stated therein or necessary to make the statements therein not misleading
(in
the case of any Preliminary Prospectus, the Prospectus or any Issuer Free
Writing Prospectus, in the light of the circumstances under which any such
statements were made), but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information concerning such
Underwriter furnished to the Partnership through the Representatives by or
on
behalf of that Underwriter specifically for inclusion therein, which information
is limited to the information set forth in Section 8(e)
hereof.
The foregoing indemnity agreement is in addition to any liability that any
Underwriter may otherwise have to any Partnership Party or any director,
officer, employee, manager who is a natural person or controlling person of
such
Partnership Party.
(c) Promptly
after receipt by an indemnified party under this Section 8
of
notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8,
notify
the indemnifying party in writing of the claim or the commencement of that
action; provided,
however,
that
the failure to notify the indemnifying party shall not relieve it from any
liability that it may have under this Section 8,
except
to the extent it has been materially prejudiced by such failure; and
provided,
further,
that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 8.
If any
such claim or action shall be brought against an indemnified party, and the
indemnified party shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it wishes
to assume, jointly with any other similarly notified indemnifying party, the
defense thereof with counsel reasonably satisfactory to the indemnified party.
After notice from the indemnifying party to the indemnified party of the
indemnifying party’s election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 8
for any
legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided,
however,
that
the Representatives shall have the right to employ counsel to represent jointly
the Representatives and those other Underwriters and their respective directors,
officers, employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Underwriters against the Partnership Parties under this Section 8
if
(i) the Partnership Parties and the Underwriters shall have so mutually
agreed; (ii) the Partnership Parties have failed within a reasonable time
to retain counsel reasonably satisfactory to the Underwriters; (iii) the
Underwriters and their respective directors, officers, employees and controlling
persons shall have reasonably concluded that there may be legal defenses
available to them that are different from or in addition to those available
to
the Partnership Parties; or (iv) the named parties in any such proceeding
(including any impleaded parties) include both the Underwriters or their
respective directors, officers, employees or controlling persons, on the one
hand, and the Partnership Parties or their respective directors, officer,
employees, managers who are natural persons or controlling persons, on the
other
hand, and representation of both sets of parties by the same counsel would
be
inappropriate due to actual or potential differing interests between them,
and
in any such event the fees and expenses of such separate counsel shall be paid
by the Partnership Parties. No indemnifying party shall (X) without the
prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld) settle, or compromise or consent to the entry of any
judgment with respect to, any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding and does not include
any
findings of fact or admissions of fault or culpability as to the indemnified
party or (Y) be liable for any settlement of any such claim, action, suit
or proceedings effected without its written consent (which consent shall not
be
unreasonably withheld), but if settled with the consent of the indemnifying
party or if there be a final judgment for the plaintiff in any such claim,
action, suit or proceeding, the indemnifying party agrees to indemnify and
hold
harmless any indemnified party from and against any loss or liability by reason
of such settlement or judgment.
(d) If
the
indemnification provided for in this Section 8
shall
for any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a)
or
8(b)
hereof
in respect of any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable
by
such indemnified party as a result of such loss, claim, damage or liability,
or
action in respect thereof, (i) in such proportion as shall be appropriate
to reflect the relative benefits received by the Partnership Parties, on the
one
hand, and the Underwriters, on the other, from the offering of the Units or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of
the Partnership Parties, on the one hand, and the Underwriters, on the other,
with respect to the statements or omissions that resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Partnership
Parties, on the one hand, and the Underwriters, on the other, with respect
to
such offering shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Units purchased under this Agreement (before
deducting expenses) received by the Partnership, as set forth in the table
on
the cover page of the Prospectus, on the one hand, and the total underwriting
discounts and commissions received by the Underwriters with respect to the
Units
purchased under this Agreement, as set forth in the table on the cover page
of
the Prospectus, on the other hand, bear to the total gross proceeds from the
offering of the Units purchased under this Agreement. The relative fault shall
be determined by reference to whether the untrue or alleged untrue statement
of
a material fact or omission or alleged omission to state a material fact relates
to information supplied by the Partnership Parties or the Underwriters, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Partnership
Parties and the Underwriters agree that it would not be just and equitable
if
contributions pursuant to this Section 8(d)
were to
be determined by pro rata allocation (even if the Underwriters were treated
as
one entity for such purpose) or by any other method of allocation that does
not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this
Section 8(d)
shall be
deemed to include, for purposes of this Section 8(d),
any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating, defending or preparing to defend any such action
or claim. Notwithstanding the provisions of this Section 8(d),
no
Underwriter shall be required to contribute any amount in excess of the amount
by which the net proceeds from the sale of the Units underwritten by it exceeds
the amount of any damages that such Underwriter has otherwise paid or become
liable to pay by reason of any 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 Underwriters’ obligations to contribute as provided in
this Section 8(d)
are
several in proportion to their respective underwriting obligations and not
joint.
(e) The
Underwriters severally confirm and the Partnership Parties acknowledge and
agree
that the table of Underwriters on page 86, the second full paragraph under
the
heading “Commissions and Expenses” on page 86, the first sentence under the
heading “Stabilization, Short Positions and Penalty Bids” on page 87, and the
sentence regarding pre-pricing stabilization transactions under the heading
“Stabilization, Short Positions and Penalty Bids” on page 87, in each case
appearing under the caption “Underwriting” in the most recent Preliminary
Prospectus (except the sentence regarding pre-pricing stabilization
transactions) and the Prospectus, are correct and constitute the only
information concerning such Underwriters furnished in writing to the Partnership
by or on behalf of the Underwriters specifically for inclusion in any
Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer
Free Writing Prospectus or in any amendment or supplement thereto or in any
Non-Prospectus Road Show.
9. Defaulting
Underwriters
If,
on any Delivery Date, any Underwriter defaults in the performance of its
obligations under this Agreement, the remaining non-defaulting Underwriter(s)
shall be obligated to purchase the Units that the defaulting Underwriter(s)
agreed but failed to purchase on such Delivery Date in the respective
proportions which the number of Firm Units set forth opposite the name of each
remaining non-defaulting Underwriter in Schedule 1
attached
hereto bears to the total number of Firm Units set forth opposite the names
of
all the remaining non-defaulting Underwriters in Schedule 1
attached
hereto; provided,
however,
that
the remaining non-defaulting Underwriter(s) shall not be obligated to purchase
any of the Units on such Delivery Date if the total number of Units that the
defaulting Underwriter(s) agreed but failed to purchase on such Delivery Date
exceeds 9.09% of the total number of Units to be purchased on such Delivery
Date, and any remaining non-defaulting Underwriter shall not be obligated to
purchase more than 110% of the number of Units that it agreed to purchase on
such Delivery Date pursuant to the terms of Section 2
hereof.
If the foregoing maximums are exceeded, the remaining non-defaulting
Underwriter(s), or those other underwriters satisfactory to the Representatives
who so agree, shall have the right, but shall not be obligated, to purchase,
in
such proportion as may be agreed upon among them, all the Units to be purchased
on such Delivery Date. If the remaining non-defaulting Underwriter(s) or other
underwriters satisfactory to the Representatives do not elect to purchase the
Units that the defaulting Underwriter(s) agreed but failed to purchase on such
Delivery Date, this Agreement (or, with respect to any Option Unit Delivery
Date, the obligation of the Underwriters to purchase, and of the Partnership
to
sell, the Option Units) shall terminate without liability on the part of any
non-defaulting Underwriter or the Partnership Parties, except that the
Partnership Parties will continue to be liable for the payment of expenses
to
the extent set forth in Sections 6
and
11
hereof.
As used in this Agreement, the term “Underwriter”
includes, for all purposes of this Agreement unless the context requires
otherwise, any party not listed in Schedule 1
attached
hereto that, pursuant to this Section 9,
purchases Units that a defaulting Underwriter agreed but failed to
purchase.
Nothing
contained herein shall relieve a defaulting Underwriter of any liability it
may
have to any Partnership Party for damages caused by its default. If other
Underwriters are obligated or agree to purchase the Units of a defaulting or
withdrawing Underwriter, either the Representatives or the Partnership may
postpone the Delivery Date for up to seven full business days in order to effect
any changes that in the opinion of counsel for the Partnership Parties or
counsel for the Underwriters may be necessary in the Registration Statement,
the
Prospectus or in any other document or arrangement.
10. Termination
.
The
obligations of the Underwriters hereunder may be terminated by the
Representatives by notice given to and received by the Partnership prior to
delivery of and payment for the Firm Units if, prior to that time, any of the
events described in Sections 7(j),
7(k)
and
7(l)
hereof
shall have occurred or if the Underwriters shall decline to purchase the Units
for any reason permitted under this Agreement.
11. Reimbursement
of Underwriters’ Expenses
.
If the sale of the Units provided for herein is not consummated because any
condition of the Underwriters’ obligations set forth in Section
7
hereof
is not satisfied, because of any termination pursuant to Section
10
hereof
or because of any refusal, inability or failure on the part of any Partnership
Party to perform any agreement herein or comply with any provision hereof other
than by reason of a default by any of the Underwriters, the Partnership Parties
will reimburse the Underwriters severally through the Representatives on demand
for all reasonable out-of-pocket expenses (including fees and disbursements
of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Units.
12. Research
Analyst Independence
The
Partnership Parties acknowledge that (a) the Underwriters’ research
analysts and research departments are required to be independent from their
respective investment banking divisions and are subject to certain regulations
and internal policies and (b) such Underwriters’ research analysts may hold
views and make statements or investment recommendations and/or publish research
reports with respect to the Partnership, the value of the Common Units and/or
the offering that differ from the views of their respective investment banking
divisions. The Partnership Parties hereby waive and release, to the fullest
extent permitted by law, any claims that the Partnership Parties may have
against the Underwriters with respect to any conflict of interest that may
arise
from the fact that the views expressed by their independent research analysts
and research departments may be different from or inconsistent with the views
or
advice communicated to Loews, BPHC or the Partnership Parties by such
Underwriters’ investment banking divisions. The Partnership Parties acknowledge
that each of the Underwriters is a full service securities firm and as such,
from time to time, subject to applicable securities laws, may effect
transactions for its own account or the account of its customers and hold long
or short positions in debt or equity securities of the companies that are the
subject of the transactions contemplated by this Agreement.
13. No
Fiduciary Duty
The
Partnership Parties acknowledge and agree that in connection with this offering,
sale of the Units or any other services the Underwriters may be deemed to be
providing hereunder, notwithstanding any preexisting relationship, advisory
or
otherwise, between the parties or any oral representations or assurances
previously or subsequently made by the Underwriters: (a) no fiduciary or
agency relationship between any Partnership Party, any affiliate of a
Partnership Party or any other person, on the one hand, and the Underwriters,
on
the other, exists; (b) the Underwriters are not acting as advisors, expert
or otherwise, to the Partnership Parties or any of their affiliates, including,
without limitation, with respect to the determination of the public offering
price of the Units, and such relationship between the Partnership Parties or
any
of their affiliates, on the one hand, and the Underwriters, on the other, is
entirely and solely commercial, based on arms-length negotiations; (c) any
duties and obligations that the Underwriters may have to the Partnership Parties
or their affiliates shall be limited to those duties and obligations
specifically stated herein; and (d) the Underwriters and their respective
affiliates may have interests that differ from those of the Partnership Parties
and their affiliates. Each Partnership Party hereby waives, on its own behalf
and on behalf of its affiliates, any claims that the Partnership Parties or
any
of their affiliates may have against the Underwriters with respect to any breach
or alleged breach of fiduciary duty in connection with this
offering.
14. Notices,
Etc.
All
statements, requests, notices and agreements hereunder shall be in writing,
and:
(a) if
to the
Underwriters, shall be delivered or sent by mail or facsimile transmission
to
Citigroup Global Markets Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: General Counsel (Fax: (000) 000-0000) and Xxxxxx Brothers
Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate
Registration (Fax: (000) 000-0000) and UBS Securities LLC, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate Department (Fax: (000)
000-0000), with a copy, in the case of any notice pursuant to Section 8(c)
hereof,
to the Director of Litigation, Office of the General Counsel, Xxxxxx Brothers
Inc., 000 Xxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (Fax: (000) 000-0000);
(b) if
to the
Partnership Parties, shall be delivered or sent by mail or facsimile
transmission to the address of the Partnership set forth in the Registration
Statement, Attention: W. Xxxxxxx Xxxxx (Fax: (000) 000-0000).
Any
such
statements, requests, notices or agreements shall take effect at the time of
receipt thereof. The Partnership shall be entitled to act and rely upon any
request, consent, notice or agreement given or made on behalf of the
Underwriters by the Representatives.
15. Persons
Entitled to Benefit of Agreement
This
Agreement shall inure to the benefit of and be binding upon the Underwriters,
the Partnership Parties and their respective successors. This Agreement and
the
terms and provisions hereof are for the sole benefit of only those persons,
except that (a) the representations, warranties, indemnities and agreements
of the Partnership Parties contained in this Agreement shall also be deemed
to
be for the benefit of the directors, officers and employees of the Underwriters
and each person or persons, if any, who control any Underwriter within the
meaning of Section 15 of the Securities Act and (b) the indemnity agreement
of the Underwriters contained in Section 8(b)
hereof
shall be deemed to be for the benefit of the directors of BGL, the officers
of
BGL who have signed the Registration Statement and any person controlling BGL
within the meaning of Section 15 of the Securities Act. Nothing in this
Agreement is intended or shall be construed to give any person, other than
the
persons referred to in this Section 15,
any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein. Notwithstanding anything in this Agreement
to
the contrary, all liabilities and obligations of the Partnership Parties
hereunder shall be non-recourse against Loews Corporation or any limited
partner, stockholder, member, officer, manager, director or employee of any
of
the Partnership Parties who is a natural person. In that connection, neither
Loews nor any such limited partner, stockholder, member, officer, manager,
director or employee who is a natural person shall be bound by this Agreement,
or be obligated by virtue of this Agreement or the obligations of any party
created hereunder to (y) provide funds to any of the Partnership Parties,
whether by contributions to capital, loans, returns of monies, securities or
other property, or (z) assume any liabilities of any of the Partnership Parties.
For the avoidance of doubt, nothing in this Section 15 shall preclude recourse,
to the extent permitted by applicable law, against any such limited partner,
stockholder, member, officer, manager, director or employee of any of the
Partnership Parties who is a natural person in the event of fraud, gross
negligence or willful misconduct.
16. Survival
The
respective indemnities, representations, warranties and agreements of the
Partnership Parties and the Underwriters contained in this Agreement or made
by
or on behalf of them, respectively, pursuant to this Agreement, shall survive
the delivery of and payment for the Units and shall remain in full force and
effect, regardless of any investigation made by or on behalf of any of them
or
any person controlling any of them.
17. Definition
of the Terms “Business Day” and “Subsidiary."
For
purposes of this Agreement, (a) “business
day”
means
each Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which
banking institutions in New York are generally authorized or obligated by law
or
executive order to close and (b) “subsidiary”
has
the
meaning set forth in Rule 405 of the Rules and Regulations.
18. Governing
Law
.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York.
19. Counterparts
.
This
Agreement may be executed in one or more counterparts and, if executed in more
than one counterpart, the executed counterparts shall each be deemed to be
an
original but all such counterparts shall together constitute one and the same
instrument.
20. Headings
The
headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this
Agreement.
[Remainder
of page intentionally left blank.]
If
the
foregoing correctly sets forth the agreement among the Partnership Parties
and
the Underwriters, please indicate your acceptance in the space provided for
that
purpose below.
Very
truly yours,
Boardwalk
GP, LLC
By:
/s/
Xxxxx X. Xxxxxxx
Name: Xxxxx
X.
Xxxxxxx
Title: Chief
Financial Officer
Boardwalk
GP, LP
By:
Boardwalk GP, LLC, its general partner
By:
/s/
Xxxxx X. Xxxxxxx
Name: Xxxxx
X.
Xxxxxxx
Title: Chief
Financial Officer
By:
Boardwalk GP, LP, its general partner
By:
Boardwalk GP, LLC, its general partner
By:
/s/
Xxxxx X. Xxxxxxx
Name: Xxxxx
X.
Xxxxxxx
Title: Chief
Financial Officer
Boardwalk
Operating GP, LLC
By:
Boardwalk Pipeline Partners, LP, its sole member
By:
Boardwalk GP, LP, its general partner
By:
Boardwalk GP, LLC, its general partner
By:
/s/
Xxxxx X. Xxxxxxx
Name: Xxxxx
X.
Xxxxxxx
Title: Chief
Financial Officer
Boardwalk
Pipelines, LP
By:
Boardwalk Operating GP, LLC, its general partner
By:
Boardwalk Pipeline Partners, LP, its sole member
By:
Boardwalk GP, LP, its general partner
By:
Boardwalk GP, LLC, its general partner
By:
/s/
Xxxxx X. Xxxxxxx
Name: Xxxxx
X.
Xxxxxxx
Title: Chief
Financial Officer
Texas
Gas Transmission, LLC
By:
/s/
Xxxxx X. Xxxxxxx
Name: Xxxxx
X.
Xxxxxxx
Title: Chief
Financial Officer
GS
Pipeline Company, LLC
By
/s/
Xxxx X. Xxxxxxx
Name: Xxxx
X.
Xxxxxxx
Title: President
Gulf
South Pipeline Company, LP
By:
GS Pipeline Company, LLC, its general partner
By:
/s/
Xxxx X. Xxxxxxx
Name: Xxxx
X.
Xxxxxxx
Title: President
Accepted:
Citigroup
Global Markets Inc.
Xxxxxx
Brothers Inc.
UBS
Securities LLC
For
themselves and as Representatives
of
the
several Underwriters named
in
Schedule
1
attached
hereto
By: Citigroup
Global Markets Inc.
By:
/s/__________________________
Authorized
Representative
By: Xxxxxx
Brothers Inc.
By:
/s/ __________________________
Authorized
Representative
By: UBS
Securities LLC
By:
/s/ ___________________________
Authorized
Representative
By:
/s/___________________________
Authorized
Representative
SCHEDULE
1
|
Underwriters
|
Number
of Firm Units
|
|
Citigroup
Global Markets Inc.
|
1,500,000
|
|
Xxxxxx
Brothers Inc.
|
1,500,000
|
|
UBS
Securities LLC
|
930,000
|
|
Xxxxxx
Xxxxxxx & Co. Incorporated
|
600,000
|
|
Wachovia
Capital Markets LLC
|
600,000
|
|
X.X.
Xxxxxxx & Sons, Inc.
|
510,000
|
|
Xxxxxxx
Xxxxx & Associates, Inc.
|
360,000
|
|
Total
|
6,000,000
|
SCHEDULE
2
JURISDICTIONS
OF QUALIFICATION
|
Name
of Entity
|
Jurisdiction
of
Formation
|
Jurisdictions
of
Qualification
|
|
Boardwalk
GP, LLC
|
Delaware
|
Kentucky
|
|
Boardwalk
GP, LP
|
Delaware
|
Kentucky
|
|
|
Delaware
|
Kentucky
|
|
Boardwalk
Operating GP, LLC
|
Delaware
|
Kentucky
|
|
Boardwalk
Pipelines, LP
|
Delaware
|
Kentucky
|
|
Texas
Gas Transmission, LLC
|
Delaware
|
Louisiana,
Texas, Arkansas, Mississippi, Tennessee, Kentucky, Indiana, Ohio
and
Illinois
|
|
GS
Pipeline Company, LLC
|
Delaware
|
Texas,
Mississippi and Florida
|
|
Gulf
South Pipeline Company, LP
|
Delaware
|
Texas,
Louisiana, Mississippi, Alabama, Florida and Kansas
|
SCHEDULE
3
PERSONS
DELIVERING LOCK-UP AGREEMENTS
Xxxx
X.
Xxxxxxx
H.
Xxxx
Xxxxx II
Xxxxx
X.
Xxxxxxx
Xxxxxx
X.
Xxxxxx
Xxxxxx
X.
Xxxxxx
Xxxxxxxx
X. Xxxxxxxxx
Xxxx
X.
Xxxxxxx
Xxxxxx
X.
Xxxxx
Xxxxxxx
X. Xxxxxx
Boardwalk
Pipelines Holding Corp.
Loews
Corporation
EXHIBIT
A
LOCK-UP
LETTER AGREEMENT
Citigroup
Global Markets Inc.
Xxxxxx
Brothers Inc.
UBS
Securities LLC
As
Representatives of the several
Underwriters
c/o
Citigroup Global Markets Inc.
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
and
c/x
Xxxxxx Brothers Inc.
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
and
c/o
UBS
Securities LLC
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
The
undersigned understands that you and certain other firms (the “Underwriters”)
propose to enter into an Underwriting Agreement (the “Underwriting
Agreement”)
providing for the purchase by the Underwriters of common units representing
limited partner interests (the “Common
Units”)
of
Boardwalk Pipeline Partners, LP, a Delaware limited partnership (the
“Partnership”),
and
that the Underwriters propose to reoffer the Common Units to the public (the
“Offering”).
In
consideration of the execution of the Underwriting Agreement by the
Underwriters, and for other good and valuable consideration, the undersigned
hereby irrevocably agrees that the undersigned will not, for a period of 90
days
after the date of the final Prospectus relating to the Offering (the
“Lock-Up
Period”),
without the prior written consent of Citigroup Global Markets Inc., Xxxxxx
Brothers Inc. and UBS Securities LLC (collectively, the “Representatives”),
directly or indirectly, (i) offer for sale, sell, pledge, transfer or
otherwise dispose of (or enter into any transaction or device that is designed
to, or could be expected to, result in the disposition by any individual or
entity at any time in the future of) any Common Units or securities convertible
into or exchangeable or exercisable for Common Units (including, without
limitation, Common Units that may be deemed to be beneficially owned by the
undersigned in accordance with the rules and regulations of the Securities
and
Exchange Commission and Common Units that may be issued upon exercise of any
options or warrants), (ii) sell or grant any options, rights or warrants
with respect to any Common Units or securities convertible into or exchangeable
or exercisable for Common Units, (iii) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part, any
of
the economic benefits or risks of ownership of any Common Units, whether any
such transaction described in clause (i), (ii) or (iii) above is to be settled
by delivery of Common Units or other securities, in cash or otherwise,
(iv) make any demand for, exercise any right with respect to or cause to be
filed a registration statement, including any amendments thereto, with respect
to the registration of any Common Units, any securities convertible into or
exchangeable or exercisable for Common Units, or any other securities of the
Partnership (other than any registration statement on Form S-8 or Form S-3
and,
if applicable, the registration of $250,000,000 principal amount of senior
notes
of Boardwalk Pipelines, LP and the guarantee thereof by the Partnership) or
(v) publicly disclose the intention to do any of the foregoing. The
foregoing sentence shall not apply to bona
fide
gifts,
sales or other dispositions of any Common Units that are made exclusively
between and among the undersigned or members of the undersigned’s family, or
affiliates of the undersigned, including its partners (if a partnership) or
members (if a limited liability company); provided
that
it
shall be a condition to any such transfer that (A) the transferee/donee agrees
to be bound by the terms of the lock-up agreement (including, without
limitation, the restrictions set forth in the preceding sentence) to the same
extent as if the transferee/donee were a party hereto, (B) no filing by any
party (donor, donee, transferor or transferee) under the Securities Exchange
Act
of 1934, as amended (the “Exchange
Act”),
shall
be required or shall be voluntarily made in connection with such transfer or
distribution (other than a filing on Form 5, Schedule 13D or Schedule 13G (or
13D/A or 13G/A) made after the expiration of the 90-day period referred to
above), (C) each party (donor, donee, transferor or transferee) shall not be
required by law (including without limitation the disclosure requirements of
the
Securities Act of 1933, as amended, and the Exchange Act) to make, and shall
agree to not voluntarily make, any public announcement of the transfer or
disposition, and (D) the undersigned notifies Xxxxxx Brothers Inc. at least
two
business days prior to the proposed transfer or disposition.
Notwithstanding
the foregoing, if (i) during the last 17 days of the Lock-Up Period, the
Partnership issues an earnings release or material news or a material event
relating to the Partnership Parties (as defined in the Underwriting Agreement)
occurs or (ii) prior to the expiration of the Lock-Up Period, the
Partnership announces that it will release earnings results during the 16-day
period beginning on the last day of the Lock-Up Period, then the restrictions
imposed by this Lock-Up Letter Agreement shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings
release, the announcement of the material news or the occurrence of the material
event, unless Citigroup Global Markets Inc., Xxxxxx Brothers Inc. and UBS
Securities LLC waive such extension in writing. The undersigned hereby further
agrees that, prior to engaging in any transaction or taking any other action
that is subject to the terms of this Lock-Up Letter Agreement during the period
from the date of this Lock-Up Letter Agreement to and including the 34th day
following the expiration of the Lock-Up Period, the undersigned will give notice
thereof to the Partnership and will not consummate such transaction or take
any
such action unless it has received written confirmation from the Partnership
that the Lock-Up Period (as such may have been extended pursuant to this
paragraph) has expired.
In
furtherance of the foregoing, the Partnership and its transfer agent are hereby
authorized to decline to make any transfer of securities if such transfer would
constitute a violation or breach of this Lock-Up Letter Agreement.
It
is
understood that, if the Partnership notifies the Underwriters that it does
not
intend to proceed with the Offering, if the Underwriting Agreement does not
become effective, or if the Underwriting Agreement (other than the provisions
thereof that survive termination) shall terminate or be terminated prior to
payment for and delivery of the Common Units, the undersigned will be released
from the undersigned’s obligations under this Lock-Up Letter
Agreement.
The
undersigned understands that the Partnership and the Underwriters will proceed
with the Offering in reliance on this Lock-Up Letter Agreement.
Whether
or not the Offering actually occurs depends on a number of factors, including
market conditions. Any Offering will only be made pursuant to an Underwriting
Agreement, the terms of which are subject to negotiation between the Partnership
and the Underwriters.
The
undersigned hereby represents and warrants that the undersigned has full power
and authority to enter into this Lock-Up Letter Agreement and that, upon
request, the undersigned will execute any additional documents necessary in
connection with the enforcement hereof. Any obligations of the undersigned
shall
be binding upon the heirs, personal representatives, successors and assigns
of
the undersigned.
Very
truly yours,
By:
________________________
Name:
______________________
Title:
_________________________
Dated:
________________________
EXHIBIT
B
FORM
OF OPINION OF ISSUER’S COUNSEL
(a) Each
of
the General Partner, the Partnership, the Operating Partnership and Gulf South
has been duly formed and is validly existing and in good standing as a limited
partnership under the Delaware LP Act, has the full partnership power and
authority necessary to own or hold its properties and assets and to conduct
the
businesses in which it is engaged, and is duly registered or qualified to do
business and is in good standing as a foreign limited partnership in each
jurisdiction listed opposite its name in Schedule 1
hereto;
(c) Each
of
BGL, Operating GP, Texas Gas and Gulf South GP has been duly formed and is
validly existing and in good standing as a limited liability company under
the
Delaware LLC Act, has the full limited liability company power and authority
necessary to own or hold its properties and assets and to conduct the businesses
in which it is engaged, and is duly registered or qualified to do business
and
is in good standing as a foreign limited liability company in each jurisdiction
listed opposite its name in Schedule 1
hereto;
(d) BPHC
owns
a 100% limited liability company interest in BGL; such limited liability company
interest has been duly and validly authorized and issued in accordance with
the
BGL LLC Agreement and is fully paid (to the extent required under the BGL LLC
Agreement) and non-assessable (except as such non-assessability may be affected
by Sections 18-607 and 18-804 of the Delaware LLC Act); and BPHC owns such
limited liability company interest free and clear of all liens, encumbrances,
security interests or claims (except restrictions on transferability contained
in the BGL LLC Agreement, as described in the most recent Preliminary Prospectus
or created or arising under the Delaware LLC Act) (i) in respect of which a
financing statement under the Uniform Commercial Code of the State of Delaware
naming BPHC as debtor is on file with the Secretary of State of the State of
Delaware as of the date of such counsel’s opinion or (ii) otherwise known
to such counsel, without independent investigation, other than those created
by
or arising under the Delaware LLC Act or the BGL LLC Agreement;
(e) BGL
is
the sole general partner of the General Partner, with a 0.01% general partner
interest in the General Partner; such general partner interest has been duly
and
validly authorized and issued in accordance with the GP Partnership Agreement;
and BGL owns such general partner interest free and clear of all liens,
encumbrances, security interests or claims (except restrictions on
transferability contained in the GP Partnership Agreement, as described in
the
most recent Preliminary Prospectus or created or arising under the Delaware
LP
Act) (i) in respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware naming BGL as debtor is on file with
the Secretary of State of the State of Delaware as of the date of such counsel’s
opinion or (ii) otherwise known to such counsel, without independent
investigation, other than those created by or arising under the Delaware LP
Act
or the GP Partnership Agreement. BPHC is the sole limited partner of the General
Partner, with a 99.99% limited partner interest in the General Partner; such
limited partner interest has been duly and validly authorized and issued in
accordance with the GP Partnership Agreement and is fully paid (to the extent
required under the GP Partnership Agreement) and non-assessable (except as
such
non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of
the
Delaware LP Act); and BPHC owns such limited partner interest free and clear
of
all liens, encumbrances, security interests or claims (except restrictions
on
transferability contained in the GP Partnership Agreement, as described in
the
most recent Preliminary Prospectus or created or arising under the Delaware
LP
Act) (i) in respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware naming BPHC as debtor is on file with
the Secretary of State of the State of Delaware as of the date of such counsel’s
opinion or (ii) otherwise known to such counsel, without independent
investigation, other than those created by or arising under the Delaware LP
Act
or the GP Partnership Agreement;
(f) The
General Partner is the sole general partner of the Partnership, with a 2.0%
general partner interest in the Partnership; such general partner interest
has
been duly and validly authorized and issued in accordance with the Partnership
Agreement; and the General Partner owns such general partner interest free
and
clear of all liens, encumbrances, security interests or claims (except
restrictions on transferability contained in the Partnership Agreement, as
described in the most recent Preliminary Prospectus or created or arising under
the Delaware LP Act) (i) in respect of which a financing statement under
the Uniform Commercial Code of the State of Delaware naming the General Partner
as debtor is on file with the Secretary of State of the State of Delaware as
of
the date of such counsel’s opinion or (ii) otherwise known to such counsel,
without independent investigation, other than those created by or arising under
the Delaware LP Act or the Partnership Agreement. The General Partner owns
all
of the Incentive Distribution Rights (as defined in the Partnership Agreement);
all of such Incentive Distribution Rights have been duly and validly authorized
and issued in accordance with the Partnership Agreement and are fully paid
(to
the extent required under the Partnership Agreement) and non-assessable (except
as such non-assessability may be affected by matters described in the most
recent Preliminary Prospectus under the caption “The Partnership
Agreement—Limited Liability”); and the General Partner owns all of such
Incentive Distribution Rights free and clear of all liens, encumbrances,
security interests or claims (except restrictions on transferability contained
in the Partnership Agreement, as described in the most recent Preliminary
Prospectus or created or arising under the Delaware LP Act) (i) in respect
of which a financing statement under the Uniform Commercial Code of the State
of
Delaware naming the General Partner as debtor is on file with the Secretary
of
State of the State of Delaware as of the date of such counsel’s opinion or
(ii) otherwise known to such counsel, without independent investigation,
other than those created by or arising under the Delaware LP Act or the
Partnership Agreement;
(g) BPHC
owns
33,093,878 Subordinated Units and 53,256,122 Common Units; all of such Sponsor
Units have been duly and validly authorized and issued in accordance with the
Partnership Agreement and are fully paid (to the extent required under the
Partnership Agreement) and non-assessable (except as such non-assessability
may
be affected by matters (i) described in the most recent Preliminary
Prospectus under the caption “The Partnership Agreement—Limited Liability” and
(ii) Sections 17-303, 17-607 and 17-804 of the Delaware LP Act); and BPHC
owns all of such Sponsor Units free and clear of all liens, encumbrances,
security interests or claims (except restrictions on transferability contained
in the Partnership Agreement, as described in the most recent Preliminary
Prospectus or created or arising under the Delaware LP Act) (i) in respect
of which a financing statement under the Uniform Commercial Code of the State
of
Delaware naming BPHC as debtor is on file with the Secretary of State of the
State of Delaware as of the date of such counsel’s opinion or
(ii) otherwise known to such counsel, without independent investigation,
other than those created by or arising under the Delaware LP Act or the
Partnership Agreement;
(h) The
Units
to be issued and sold by the Partnership to the Underwriters have been duly
authorized in accordance with the Partnership Agreement and, when issued and
delivered against payment therefor pursuant to the Underwriting Agreement,
will
be validly issued in accordance with the Partnership Agreement, fully paid
(to
the extent required under the Partnership Agreement) and non-assessable (except
as such non-assessability may be affected by matters (i) described in the
most recent Preliminary Prospectus under the caption “The Partnership
Agreement—Limited Liability” and (ii) Sections 17-303, 17-607 and 17-804 of
the Delaware LP Act); the Units, when issued and delivered against payment
therefor pursuant to the Underwriting Agreement, will conform to the
descriptions thereof contained in each of the most recent Preliminary Prospectus
and the Prospectus; and other than the Sponsor Units owned by BPHC and
15,000,000 publicly-held Common Units, the Units to be issued and sold by the
Partnership to the Underwriters will be the only limited partner interests
in
the Partnership issued and outstanding as of the date hereof;
(i) The
Partnership owns a 100% limited liability company interest in Operating GP;
such
limited liability company interest has been duly and validly authorized and
issued in accordance with the Operating GP LLC Agreement and is fully paid
(to
the extent required under the Operating GP LLC Agreement) and non-assessable
(except as such non-assessability may be affected by Sections 18-607 and 18-804
of the Delaware LLC Act); and the Partnership owns such limited liability
company interest free and clear of all liens, encumbrances, security interests
or claims (except restrictions on transferability contained in the Operating
GP
LLC Agreement, as described in the most recent Preliminary Prospectus or created
or arising under the Delaware LLC Act) (i) in respect of which a financing
statement under the Uniform Commercial Code of the State of Delaware naming
the
Partnership as debtor is on file with the Secretary of State of the State of
Delaware as of the date of such counsel’s opinion or (ii) otherwise known
to such counsel, without independent investigation, other than those created
by
or arising under the Delaware LLC Act or the Operating GP LLC
Agreement;
(j) Operating
GP is the sole general partner of the Operating Partnership, with a 0.001%
general partner interest in the Operating Partnership; such general partner
interest has been duly and validly authorized and issued in accordance with
the
Operating Partnership Agreement; and Operating GP owns such general partner
interest free and clear of all liens, encumbrances, security interests or claims
(except restrictions on transferability contained in the Operating Partnership
Agreement, as described in the most recent Preliminary Prospectus or created
or
arising under the Delaware LP Act) (A) in respect of which a financing
statement under the Uniform Commercial Code of the State of Delaware naming
Operating GP as debtor is on file with the Secretary of State of the State
of
Delaware as of the date of such counsel’s opinion or (B) otherwise known to
such counsel, without independent investigation, other than those created by
or
arising under the Delaware LP Act or the Operating Partnership Agreement. The
Partnership is the sole limited partner of the Operating Partnership, with
a
99.999% limited partner interest in the Operating Partnership; such limited
partner interest has been duly and validly authorized and issued in accordance
with the Operating Partnership Agreement and is fully paid (to the extent
required under the Operating Partnership Agreement) and non-assessable (except
as such non-assessability may be affected by Sections 17-303, 17-607 and 17-804
of the Delaware LP Act); and the Partnership owns such limited partner interest
free and clear of all liens, encumbrances, security interests or claims (except
restrictions on transferability contained in the Operating Partnership
Agreement, as described in the most recent Preliminary Prospectus or created
or
arising under the Delaware LP Act) (A) in respect of which a financing
statement under the Uniform Commercial Code of the State of Delaware naming
the
Partnership as debtor is on file with the Secretary of State of the State of
Delaware as of the date of such counsel’s opinion or (B) otherwise known to
such counsel, without independent investigation, other than those created by
or
arising under the Delaware LP Act or the Operating Partnership
Agreement;
(k) The
Operating Partnership owns a 100% limited liability company interest in Texas
Gas; such limited liability company interest has been duly and validly
authorized and issued in accordance with the Texas Gas LLC Agreement and is
fully paid (to the extent required under the Texas Gas LLC Agreement) and
non-assessable (except as such non-assessability may be affected by Sections
18-607 and 18-804 of the Delaware LLC Act); and the Operating Partnership owns
such limited liability company interest free and clear of all liens,
encumbrances, security interests or claims (except restrictions on
transferability contained in the Texas Gas LLC Agreement, as described in the
most recent Preliminary Prospectus or created or arising under the Delaware
LLC
Act) (i) in respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware naming the Operating Partnership as
debtor is on file with the Secretary of State of the State of Delaware as of
the
date of such counsel’s opinion or (ii) otherwise known to such counsel,
without independent investigation, other than those created by or arising under
the Delaware LLC Act or the Texas Gas LLC Agreement;
(l) The
Operating Partnership owns a 100% limited liability company interest in Gulf
South GP; such limited liability company interest has been duly and validly
authorized and issued in accordance with the Gulf South GP LLC Agreement and
is
fully paid (to the extent required under the Gulf South GP LLC Agreement) and
non-assessable (except as such non-assessability may be affected by Sections
18-607 and 18-804 of the Delaware LLC Act); and the Operating Partnership owns
such limited liability company interest free and clear of all liens,
encumbrances, security interests or claims (except restrictions on
transferability contained in the Gulf South GP LLC Agreement, as described
in
the most recent Preliminary Prospectus or created or arising under the Delaware
LLC Act) (i) in respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware naming the Operating Partnership as
debtor is on file with the Secretary of State of the State of Delaware as of
the
date of such counsel’s opinion or (ii) otherwise known to such counsel,
without independent investigation, other than those created by or arising under
the Delaware LLC Act or the Gulf South GP LLC Agreement;
(m) Gulf
South GP is the sole general partner of Gulf South, with a 1.0% general partner
interest in Gulf South; such general partner interest has been duly and validly
authorized and issued in accordance with the Gulf South Partnership Agreement;
and Gulf South GP owns such general partner interest free and clear of all
liens, encumbrances, security interests or claims (except restrictions on
transferability contained in the Gulf South Partnership Agreement, as described
in the most recent Preliminary Prospectus or created or arising under the
Delaware LP Act) (A) in respect of which a financing statement under the
Uniform Commercial Code of the State of Delaware naming Gulf South GP as debtor
is on file with the Secretary of State of the State of Delaware as of the date
of such counsel’s opinion or (B) otherwise known to such counsel, without
independent investigation, other than those created by or arising under the
Delaware LP Act or the Gulf South Partnership Agreement. The Operating
Partnership is the sole limited partner of Gulf South, with a 99.0% limited
partner interest in Gulf South; such limited partner interest has been duly
and
validly authorized and issued in accordance with the Gulf South Partnership
Agreement and is fully paid (to the extent required under the Gulf South
Partnership Agreement) and non-assessable (except as such non-assessability
may
be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act);
and
the Operating Partnership owns such limited partner interest free and clear
of
all liens, encumbrances, security interests or claims (except restrictions
on
transferability contained in the Gulf South Partnership Agreement, as described
in the most recent Preliminary Prospectus or created or arising under the
Delaware LP Act) (A) in respect of which a financing statement under the
Uniform Commercial Code of the State of Delaware naming the Operating
Partnership as debtor is on file with the Secretary of State of the State of
Delaware as of the date of such counsel’s opinion or (B) otherwise known to
such counsel, without independent investigation, other than those created by
or
arising under the Delaware LP Act or the Gulf South Partnership
Agreement;
(n) Except
as
described in the most recent Preliminary Prospectus or provided for in the
Partnership Agreement, there are no preemptive rights or other rights to
subscribe for or to purchase, nor any restriction upon the voting or transfer
of, any limited partner interests in the Partnership pursuant to federal or
Delaware law or any agreement or instrument known to such counsel to which
any
of the Partnership Parties is a party or by which any one of them may be bound.
Except as described in the most recent Preliminary Prospectus or in the
applicable Organization Documents, there are no preemptive rights or other
rights to subscribe for or to purchase, nor any restriction upon the voting
or
transfer of, (i) any limited partner interests in the General Partner, the
Operating Partnership or Gulf South or (ii) any membership interests in
BGL, Operating GP, Texas Gas or Gulf South GP, in each case pursuant to federal
or Delaware law, the Organization Documents or any other agreement or instrument
known to such counsel to which any of such entities is a party or by which
any
one of them may be bound. Except as described in the most recent Preliminary
Prospectus, to the best of such counsel’s knowledge, there are no outstanding
options or warrants to purchase (A) any Common Units, Subordinated Units or
other interests in the Partnership or (B) any interests in BGL, the General
Partner, or the Subsidiaries;
(o) Except
as
described in the most recent Preliminary Prospectus, to the best of such
counsel’s knowledge, there are no contracts, agreements or understandings
between any BPHC Entity and any person granting such person the right to require
any Partnership Party to file a registration statement under the Securities
Act
with respect to any securities of the Partnership Parties owned or to be owned
by such person, or to require any Partnership Party to include such securities
in any securities registered or to be registered pursuant to any registration
statement filed by or required to be filed by any Partnership Party under the
Securities Act.
(p) The
Underwriting Agreement has been duly and validly authorized, executed and
delivered by the Partnership Parties;
(q) Each
of
the Organization Documents has been duly and validly authorized, executed and
delivered by each BPHC Entity party thereto. Each Organization Document
constitutes a valid and binding obligation of the BPHC Entities party thereto,
enforceable against each such BPHC Entity in accordance with its terms, subject
to (i) applicable bankruptcy, insolvency, fraudulent transfer or
conveyance, reorganization, moratorium and similar laws relating to or affecting
creditors’ rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law),
(ii) public policy, applicable law relating to fiduciary duties and
indemnification and an implied covenant of good faith and fair dealing and
(iii) in the case of the enforceability of equitable rights and remedies
provided for in such agreements, equitable defenses and judicial
discretion;
(r) None
of
the offering, issuance and sale by the Partnership of the Units, the execution,
delivery and performance of the Underwriting Agreement by the Partnership
Parties, or the consummation of the transactions contemplated thereby
(i) constitutes or will constitute a violation of the Organization
Documents, (ii) constitutes or will constitute a breach or violation of or
a default under (or an event that, with notice or lapse of time or both, would
constitute such a breach or violation of or default under), any agreement filed
as an exhibit to the Registration Statement or as an exhibit to the
Partnership’s or the Operating Partnership’s Form 10-K for the fiscal year ended
December 31, 2005 or any subsequent reports filed under the Exchange Act by
either of the Partnership or the Operating Partnership or (iii) violates or
will
violate any applicable law of the United States of America, the Delaware LP
Act
or the Delaware LLC Act, excluding in the case of clauses (ii) and
(iii) any such breaches, violations and defaults that would not have a
Material Adverse Effect;
(s) Except
for the registration of the Units under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws in connection with
the purchase and sale of the Units by the Underwriters, no Governmental Approval
is required for the execution, delivery and performance of the Underwriting
Agreement by the Partnership Parties, the consummation of the transactions
contemplated thereby and the application of the proceeds from the sale of the
Units as described under the caption “Use of Proceeds” in each of the most
recent Preliminary Prospectus and the Prospectus, except for such Governmental
Approvals (i) as have been obtained or made or (ii) would not have a
Material Adverse Effect if not obtained or made;
(t) The
Registration Statement, including any Rule 462(b) Registration Statement, was
declared effective under the Securities Act as of [date and time], the
Prospectus was filed with the Commission pursuant to subparagraph [___] of
Rule
424(b) of the Rules and Regulations on November [ ], 2006, no stop order
suspending the effectiveness of the Registration Statement has been issued
and,
to the best of such counsel’s knowledge, no proceeding for that purpose is
pending or threatened by the Commission;
(v) Each
of
(i) the Registration Statement, on the Effective Date, and (ii) the Prospectus,
as of its date and [the date hereof], appear on their face to be appropriately
responsive, in all material respects, to the requirements of the Securities
Act
and the Securities Act Regulations (except that such counsel express no
statement or belief as to Regulation S-T), except that such counsel need express
no opinion with respect to the financial statements and the notes and financial
schedules thereto and other related financial, accounting and statistical data
contained therein;
(w) The
statements made in each of the most recent Preliminary Prospectus and the
Prospectus under the captions “Risk Factors—Risks Inherent in an Investment in
Us,” “How We Make Cash Distributions,” “Certain Relationships and Related Party
Transactions,” “Conflicts of Interest and Fiduciary Duties,” “Description of the
Common Units,” “The Partnership Agreement” and “Units Eligible for Future Sale,”
insofar as they purport to summarize certain provisions of documents referred
to
therein or refer to statements of law or legal conclusions, fairly summarize
the
matters referred to therein in all material respects, subject to the
qualifications and assumptions therein; and the Units, the Subordinated Units
and the Incentive Distribution Rights conform in all material respects to the
descriptions thereof contained in the Prospectus under the captions
“Summary—Management and Ownership,” “Summary—Summary of Conflicts of Interest
and Fiduciary Duties,” “Summary—Restrictions on Ownership of Common Units,”
“Summary—The Offering,” “How We Make Cash Distributions,” “Conflicts of Interest
and Fiduciary Duties,” “Description of the Common Units” and “The Partnership
Agreement;”
(x) The
opinion of Xxxxxx & Xxxxxx L.L.P. that is filed as Exhibit 8.1 to the
Registration Statement is confirmed and the Underwriters may rely upon such
opinion as if it were addressed to them; and
(y) No
Partnership Party is, and after giving effect to the application of the net
proceeds from the offering as described under the caption “Use of Proceeds” in
each of the most recent Preliminary Prospectus and the Prospectus, no
Partnership Party will be, an “investment company” as defined in the Investment
Company Act.
In
rendering such opinion, such counsel may state that its opinion is limited
to
matters governed by the federal laws of the United States of America, the laws
of the State of New York, the Delaware LP Act and the Delaware LLC Act. Such
counsel need not express any opinion with respect to the title of any of the
Partnership Parties to any of their respective real or personal property or
the
accuracy of the descriptions or references in the Registration Statement or
the
Organization Documents to any real or personal property, and need not express
any opinion with respect to state or local taxes or tax statutes to which any
of
the limited partners of the Partnership or any of the Partnership
Parties may
be
subject.
Such
counsel has participated in conferences with officers and other representatives
of the Partnership
Parties,
representatives of the independent registered public accounting firm of the
Partnership and the Underwriters’ representatives, at which the contents of the
Registration Statement and the Prospectus and related matters were discussed,
and although such counsel did not independently investigate or verify the
information set forth in the Registration Statement or the Prospectus, and
such
counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus (except to the extent specified in
paragraph (w) above), based on the foregoing (relying as to factual matters
in
respect of the determination of materiality to the extent such counsel deems
reasonable and appropriate upon the statements of fact made by officers and
other representatives of the Partnership Parties), no facts have come to such
counsel’s attention that have led such counsel to believe that:
(a) the
Registration Statement, as of the Effective Date, contained any untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading;
(b) the
Prospectus, as of its date and as of such Delivery Date, contained or contains
any untrue statement of a material fact or omitted or omits to state any
material fact necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading; or
(c) the
most
recent Preliminary Prospectus, as of the Applicable Time, contained any untrue
statement of a material fact or omitted to state any material fact necessary
in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading,
except
that in each case such counsel need express no opinion with respect to the
financial statements and notes and schedules thereto or other related financial,
accounting and statistical data contained in, incorporated by reference into
or
omitted from the Registration Statement, the most recent Preliminary Prospectus
or the Prospectus, any further amendment or supplement thereto or the exhibits
to the Registration Statement.
“applicable
law” means mean those laws, rules and regulations that, in such counsel’s
experience, are normally applicable to transactions of the type contemplated
by
the Underwriting Agreement, without such counsel’s having made any special
investigation as to the applicability of any specific law, rule or regulation,
and that are not the subject of a specific opinion herein referring expressly
to
a particular law or laws; provided,
however,
that
such references do not include any municipal or other local laws, rules or
regulations, or any antifraud, environmental, labor, state securities or blue
sky, tax, insurance or antitrust, laws, rules or regulations, the Natural Gas
Act, as amended, or the rules and regulations promulgated thereunder by the
Federal Energy Regulatory Commission, or the rules and regulations of the
National Association of Securities Dealers, Inc.
“Governmental
Approval” means any consent, approval, license, authorization or validation of,
or filing, recording or registration with, any executive, legislative, judicial,
administrative or regulatory authority of the State of New York, the State
of
Delaware or the United States of America, pursuant to (a) applicable laws
of the State of New York, (b) applicable laws of the United States of America,
(c) the Delaware LP Act or (d) the Delaware LLC Act.
EXHIBIT
C
FORM
OF OPINION OF IN-HOUSE COUNSEL
(a) Except
as
described in the most recent Preliminary Prospectus, there are no legal or
governmental proceedings pending to which any Partnership Party is a party
or to
which any property or asset of any Partnership Party is subject that, if
determined adversely to such Partnership Party, could reasonably be expected
to
have, individually or in the aggregate, a Material Adverse Effect or an adverse
effect on the performance of the Underwriting Agreement or the consummation
of
the transactions contemplated thereby, and no such proceedings are threatened
or
contemplated by governmental authorities or others; and to the best of such
counsel’s knowledge, there are no statutes or pending or threatened legal or
governmental proceedings required to be described in the most recent Preliminary
Prospectus that are not so described;
(b)
The
statements made in (i) each of the most recent Preliminary Prospectus and the
Prospectus under the captions “Summary—Restrictions on Ownership of Common
Units,” and “Risk Factors—Risks Inherent in Our Business—Our natural gas
transportation, gathering and storage operations are subject to FERC rate-making
policies that could have an adverse impact on our ability to establish rates
that would allow us to recover the full cost of operating our pipelines,
including a reasonable return, and our ability to make distributions to you,”
and (ii) the Partnership’s annual report on Form 10-K for the year ended
December 31, 2005 under the captions “Business—Our Business—Nature of
Contracts,” “Business—Our Business—Competition,” “Business—Our
Business—Government Regulation,” “Risk Factors—Our natural gas transportation
and storage operations are subject to extensive regulation by FERC in addition
to FERC rules and regulations related to the rates we can charge for our
services,” “Risk Factors—We are subject to laws and regulations relating to the
environment which may expose us to significant costs, liabilities and loss
of
revenues. Any changes in such regulations or their application could negatively
affect our results of operations,” “Risk Factors—Pipeline safety integrity
programs and repairs may impose significant costs and liabilities on us,” “Risk
Factors—We are subject to strict regulations at many of our facilities regarding
employee safety, and failure to comply with these regulations could adversely
affect our financial condition,” and “Management’s Discussion and Analysis of
Financial Condition and Results of Operations—Critical Accounting Policies and
Estimates—Regulation,” insofar as they purport to summarize certain provisions
of documents referred to therein or refer to statements of law or legal
conclusions, fairly summarize the matters referred to therein in all material
respects, subject to the qualifications and assumptions therein;
(c) None
of
the offering, issuance and sale by the Partnership of the Units and the
application of the proceeds therefrom as described under the caption “Use of
Proceeds” in the most recent Preliminary Prospectus and the Prospectus, the
execution, delivery and performance of the Underwriting Agreement by the
Partnership Parties, or the consummation of the transactions contemplated
thereby violates or will violate the Natural Gas Act, as amended, and the rules
and regulations promulgated thereunder by the Federal Energy Regulatory
Commission; and
(d) To
the
best of such counsel’s knowledge, there are no contracts or other documents that
are required to be described in the most recent Preliminary Prospectus and
the
Prospectus or filed as exhibits to the Registration Statement by the Securities
Act or the Rules and Regulations, or that are required to be filed as exhibits
to the Registration Statement by the Exchange Act or the rules and regulations
promulgated thereunder, that have not been so described in the most recent
Preliminary Prospectus and the Prospectus or filed as exhibits to the
Registration Statement.
Such
counsel has participated in conferences with officers and other representatives
of the Partnership
Parties,
representatives of the independent registered public accounting firm of the
Partnership and the Underwriters’ representatives, at which the contents of the
Registration Statement and the Prospectus and related matters were discussed,
and although such counsel did not independently investigate or verify the
information set forth in the Registration Statement or the Prospectus, and
such
counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus (except to the extent specified in
paragraphs (b) and (d) above), based on the foregoing (relying as to factual
matters in respect of the determination of materiality to the extent such
counsel deems reasonable and appropriate upon the statements of fact made by
officers and other representatives of the Partnership Parties), no facts have
come to such counsel’s attention that have led such counsel to believe
that:
(a) the
Registration Statement, as of the Effective Date, contained any untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading;
(b) the
Prospectus, as of its date and as of such Delivery Date, contained or contains
any untrue statement of a material fact or omitted or omits to state any
material fact necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading; or
(c) the
most
recent Preliminary Prospectus, as of the Applicable Time, contained any untrue
statement of a material fact or omitted to state any material fact necessary
in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading,
except
that in each case such counsel need express no opinion with respect to the
financial statements and notes and schedules thereto or other related financial,
accounting and statistical data contained in, incorporated by reference into
or
omitted from the Registration Statement, the most recent Preliminary Prospectus
or the Prospectus, any further amendment or supplement thereto or the exhibits
to the Registration Statement.
