PLAINS ALL AMERICAN PIPELINE, L.P. 5,000,000 Common Units Representing Limited Partner Interests UNDERWRITING AGREEMENT
Exhibit 1.1
PLAINS ALL AMERICAN PIPELINE, L.P.
5,000,000 Common Units
Representing Limited Partner Interests
UBS Securities LLC
Citigroup Global Markets Inc.
X.X. Xxxxxx Securities Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Wachovia Capital Markets, LLC
As Representatives of the Several Underwriters
named in Schedule I attached hereto
Citigroup Global Markets Inc.
X.X. Xxxxxx Securities Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Wachovia Capital Markets, LLC
As Representatives of the Several Underwriters
named in Schedule I attached hereto
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
Plains All American Pipeline, L.P., a Delaware limited partnership (the “Partnership”),
proposes to issue and sell an aggregate of 5,000,000 common units (the “Firm Units”) representing
limited partner interests in the Partnership (“Common Units”) to the several underwriters named in
Schedule I hereto (the “Underwriters”), upon the terms and conditions set forth in Section 2
hereof. The Partnership also proposes to grant to the Underwriters, upon the terms and conditions
set forth in Section 2 hereof, an option to purchase up to an additional 750,000 Common Units (the
“Option Units”). The Firm Units and the Option Units, if purchased, are hereinafter collectively
called the “Units.”
PAA GP LLC, a Delaware limited liability company (the “General Partner”), is the general
partner of the Partnership. Plains AAP, L.P., a Delaware limited partnership (“Plains AAP”), owns
a 100% membership interest in the General Partner. Plains All American GP LLC, a Delaware limited
liability company (“GP LLC”), is the general partner of Plains AAP.
Plains Marketing GP Inc., a Delaware corporation (“GP Inc.”); Plains Marketing, L.P., a Texas
limited partnership (“Plains Marketing”); Plains Pipeline, L.P., a Texas limited partnership
(“Plains Pipeline”); Pacific Energy Group LLC, a Delaware limited liability company (“Pacific
Energy Group”); PAA Finance Corp., a Delaware corporation; Pacific LA Marine Terminal LLC, a
Delaware limited liability company; Rocky Mountain Pipeline System LLC, a Delaware limited
liability company; Plains Products Terminals LLC, a Delaware limited liability company; Plains
Towing LLC, a Delaware limited liability company; Plains Marketing Canada LLC, a Delaware limited
liability company (“PMC LLC”); Plains LPG Services GP
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LLC, a Delaware limited liability company (“LPG LLC”); PICSCO LLC, a Delaware limited
liability company; Plains LPG Services, L.P., a Delaware limited partnership (“LPG Services LP”);
Plains Midstream GP LLC, a Delaware limited liability company (“Plains Midstream GP”); Plains
Midstream, L.P., a Delaware limited partnership (“Plains Midstream LP”); Lone Star Trucking, LLC, a
California limited liability company; and Rancho LPG Holdings LLC, a Delaware limited liability
company, are collectively referred to herein as the “Domestic Subsidiaries.”
Aurora Pipeline Company Ltd., a corporation incorporated under the laws of Canada (“Aurora”);
Plains Midstream Canada ULC, an Alberta unlimited liability company (“Plains Midstream Canada”);
Plains Marketing Canada, L.P., an Alberta limited partnership (“PMC LP”); and PMC (Nova Scotia)
Company, a Nova Scotia unlimited liability company (“PMC NS”), are collectively referred to herein
as the “Canadian Subsidiaries.”
Pacific Energy GP, LP, a Delaware limited partnership; Pacific Energy Management LLC, a
Delaware limited liability company; Pacific Pipeline System LLC, a Delaware limited liability
company; Pacific Terminals LLC, a Delaware limited liability company; SLC Pipeline LLC, a Delaware
limited liability company; Plains All American Emergency Relief Fund, a Delaware corporation; and
Plains Marketing Bondholder LLC, a Delaware limited liability company, are collectively referred to
herein as the “Other Subsidiaries.”
The Domestic Subsidiaries and the Canadian Subsidiaries are collectively referred to herein as
the “Subsidiaries.” The Partnership, the General Partner, Plains AAP, GP LLC, GP Inc., Plains
Marketing, Plains Pipeline and Pacific Energy Group are collectively referred to herein as the
“Plains Parties.” The Partnership, the General Partner, Plains AAP, GP LLC, the Subsidiaries, the
Other Subsidiaries and PAA/Vulcan Gas Storage, LLC, a Delaware limited liability company (the
“Joint Venture”), are collectively referred to herein as the “Plains Entities.”
The Plains Parties wish to confirm as follows their agreement with you in connection with the
several purchases of the Units by the Underwriters.
1. Representations and Warranties of the Plains Parties. The Plains Parties, jointly
and severally, represent and warrant to the Underwriters that:
(a) A registration statement on Form S-3 relating to the Units (File No. 333-155671) (i) has
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) has been filed with the
Commission under the Securities Act; and (iii) is effective under the Securities Act. Copies of
such registration statement and any amendment thereto have been delivered by the Partnership to the
Representatives. As used in this Agreement:
(i) “Applicable Time” means 8:45 a.m., New York City time, on March 17, 2009,
which the Underwriters have informed the Partnership and its counsel is a time prior
to the first sale of the Units;
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(ii) “Effective Date” means any date as of which any part of such registration
statement relating to the Units became, or is deemed to have become, effective under
the Securities Act in accordance with the Rules and Regulations;
(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, including any preliminary prospectus
supplement thereto relating to the Units;
(v) “Pricing Disclosure Package” means, as of the Applicable Time, the most
recent Preliminary Prospectus, together with (A) 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 under Rule 433 of the Rules and
Regulations, and (B) the pricing information identified in Schedule II;
(vi) “Prospectus” means the final prospectus relating to the Units, including
any prospectus supplement thereto relating to the Units, as filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations; and
(vii) “Registration Statement” means the registration statement on Form S-3
(File No. 333-155671), as amended as of the Effective Date, including any
Preliminary Prospectus or the Prospectus and all exhibits to such registration
statement.
Any reference to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents incorporated by reference therein pursuant to Form S-3 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 (including, for purposes hereof, any
documents incorporated by reference therein 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
incorporated by reference in such Preliminary Prospectus or the Prospectus, as the case may be.
Any reference to any amendment to the Registration Statement shall be deemed to include any
periodic report of the Partnership filed with the Commission pursuant to Section 13(a) or 15(d) of
the Exchange Act after the Effective Date that is incorporated by reference in the Registration
Statement. As used herein, the term “Incorporated Documents” means the documents that at the time
are incorporated by reference in the Registration Statement, the Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto. The Commission has not issued any order
preventing or suspending the use
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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, to the Plains
Parties’ knowledge, threatened by the Commission. The Commission has not notified the Partnership
of any objection to the use of the form of the Registration Statement.
(b) The Registration Statement conformed and will conform in all material respects on the
Effective Date and on each applicable Delivery Date (as defined herein), and any amendment to the
Registration Statement filed after the date hereof will conform in all material respects when
filed, to the applicable 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) and on each applicable Delivery
Date to the requirements of the Securities Act and the Rules and Regulations. The Incorporated
Documents conformed and will conform, 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.
(c) The Registration Statement did not, as of its most recent Effective Date, contain an
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein 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 12.
(d) 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 in order 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 12.
(e) The Incorporated Documents, when filed with the Commission, conformed or will conform, as
the case may be, in all material respects to the applicable requirements of the Exchange Act and
the Rules and Regulations, and did not and will not contain an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(f) 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 in order 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 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 12.
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(g) 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 in order 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 such
Issuer Free Writing 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 12.
(h) 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 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. The Partnership has taken all actions necessary so that any road show (as
defined in Rule 433 of the Rules and Regulations) in connection with the offering of the Units will
not be required to be filed pursuant to the Rules and Regulations.
(i) At (i) the time of initial filing of the Registration Statement and (ii) the earliest time
after the initial filing of the Registration Statement that the Partnership or another offering
participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act)
of the Units, the Partnership was not an “ineligible issuer,” as defined in Rule 405 under the
Securities Act.
(j) Each of the Partnership, the General Partner, Plains AAP, GP LLC, the Subsidiaries and the
Joint Venture has been duly formed or incorporated and is validly existing in good standing as a
limited partnership, limited liability company, corporation or unlimited liability company under
the laws of its respective jurisdiction of formation or incorporation with full corporate,
partnership, limited liability company or unlimited liability company power and authority, as the
case may be, to own or lease its properties and to conduct its business, in each case in all
material respects. Each of the Partnership, the General Partner, Plains AAP, GP LLC, the
Subsidiaries and the Joint Venture is duly registered or qualified as a foreign corporation,
limited partnership, limited liability company or unlimited liability company, as the case may be,
for the transaction of business under the laws of each jurisdiction (as set forth on Exhibit A to
this Agreement) in which the character of the business conducted by it or the nature or location of
the properties owned or leased by it makes such registration or qualification necessary, except
where the failure so to register or qualify would not have a material adverse effect on the
condition (financial or other), business, prospects, properties, net worth or results of operations
of the Plains Entities, taken as a whole.
(k) GP LLC has full limited liability company power and authority to act as the general
partner of Plains AAP; the General Partner has full limited liability company power and authority
to act as the general partner of the Partnership; GP Inc. has full corporate power and authority to
act as the general partner of Plains Marketing and Plains Pipeline; PMC NS has
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full unlimited liability company power and authority to act as the general partner of PMC LP;
LPG LLC has full limited liability company power and authority to act as the general partner of LPG
Services LP; and Plains Midstream GP has full limited liability company power and authority to act
as the general partner of Plains Midstream LP, in each case in all material respects.
(l) 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 authorized and
validly issued in accordance with the Third Amended and Restated Agreement of Limited Partnership
of the Partnership (as the same may be amended or restated prior to each applicable Delivery Date,
the “Partnership Agreement”); and the General Partner owns such general partner interest free and
clear of all liens, encumbrances, security interests, equities, charges or claims.
(m) Plains AAP is the sole member of the General Partner, with a 100% membership interest in
the General Partner; such membership interest has been duly authorized and validly issued in
accordance with the Limited Liability Company Agreement of the General Partner (as the same may be
amended or restated prior to each applicable Delivery Date, such agreement being referred to herein
as the “General Partner LLC Agreement”) and is fully paid (to the extent required under the General
Partner LLC Agreement) and nonassessable (except as such nonassessability may be affected by
matters described in Section 18-607 and 18-804 of the Delaware Limited Liability Company Act (the
“Delaware LLC Act”)); and Plains AAP owns such membership interest free and clear of all liens,
encumbrances, security interests, equities, charges or claims, except as provided in the Credit
Agreement dated January 3, 2008 (as amended, the “Plains AAP Facility”), by and among Plains AAP,
the lenders party thereto and Citibank, N.A., as Administrative Agent.
(n) GP LLC is the sole general partner of Plains AAP, with a 1.0% general partner interest in
Plains AAP; such general partner interest has been duly authorized and validly issued in accordance
with the Fifth Amended and Restated Limited Partnership Agreement of Plains AAP (as the same may be
amended or restated prior to each applicable Delivery Date, such agreement being referred to herein
as the “Plains AAP Partnership Agreement”); and GP LLC owns such general partner interest free and
clear of all liens, encumbrances, security interests, equities, charges or claims.
(o) GP Inc. is the sole general partner of Plains Marketing, with a 0.001% general partner
interest in Plains Marketing, and the sole general partner of Plains Pipeline, with a 0.001%
general partner interest in Plains Pipeline; such general partner interests have been duly
authorized and validly issued in accordance with the agreement of limited partnership of Plains
Marketing and the agreement of limited partnership of Plains Pipeline, respectively (in each case,
as in effect on the date hereof and as the same may be amended or restated prior to each applicable
Delivery Date, such agreements being referred to herein as the “Plains Marketing Partnership
Agreement” and the “Plains Pipeline Partnership Agreement,” respectively); and GP Inc. owns such
general partner interests free and clear of all liens, encumbrances, security interests, equities,
charges or claims.
(p) As of the date hereof, the issued and outstanding partnership interests of the Partnership
(other than the general partner interest) consist of 122,911,645 Common Units
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and the Incentive Distribution Rights (as such capitalized term is defined in the Partnership
Agreement). All outstanding Common Units and Incentive Distribution Rights and the limited partner
interests represented thereby have been duly authorized and validly issued in accordance with the
Partnership Agreement and are fully paid (to the extent required under the Partnership Agreement)
and nonassessable (except as such nonassessability may be affected by Section 17-607 of the
Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”)). The authorized limited
partner interests of the Partnership conform as to legal matters to the descriptions thereof
contained in the Pricing Disclosure Package and the Prospectus.
(q) All of the outstanding shares of capital stock or other equity interests (other than
general partner interests) of each Subsidiary, Other Subsidiary and the Joint Venture (a) have been
duly authorized and validly issued (in the case of an interest in a limited partnership or limited
liability company, in accordance with the Organizational Documents (as defined in Section 1(t)
below) of such Subsidiary, Other Subsidiary or the Joint Venture), are fully paid (in the case of
an interest in a limited partnership or limited liability company, to the extent required under the
Organizational Documents of such Subsidiary, Other Subsidiary or the Joint Venture) and
nonassessable (except (i) in the case of an interest in a Delaware limited partnership or Delaware
limited liability company, as such nonassessability may be affected by Section 17-607 of the
Delaware LP Act or Section 18-607 and 18-804 of the Delaware LLC Act), as applicable, (ii) in the
case of an interest in a limited partnership or limited liability company formed under the laws of
another domestic state, as such nonassessability may be affected by similar provisions of such
state’s limited partnership or limited liability company statute, as applicable, and (iii) in the
case of an interest in an entity formed under the laws of a foreign jurisdiction, as such
nonassessability may be affected by similar provisions of such jurisdiction’s corporate,
partnership or limited liability company statute, if any, as applicable) and (b) except for a 50%
membership interest in the Joint Venture owned by Vulcan Gas Storage LLC, are owned, directly or
indirectly, by the Partnership, free and clear of all liens, encumbrances, security interests,
equities, charges or claims.
(r) All outstanding general partner interests in each Subsidiary that is a partnership have
been duly authorized and validly issued in accordance with the Organizational Documents of such
Subsidiary and are owned, directly or indirectly, by the Partnership, free and clear of all liens,
encumbrances, security interests, equities, charges or claims.
(s) At the applicable Delivery Date, the Units to be sold by the Partnership and the limited
partner interests represented thereby will be duly authorized in accordance with the Partnership
Agreement and, when issued and delivered to the Underwriters against payment therefor in accordance
with the terms hereof, will be validly issued, fully paid (to the extent required under the
Partnership Agreement) and nonassessable (except as such nonassessability may be affected by
Section 17-607 of the Delaware LP Act).
(t) Except as described in the Pricing Disclosure Package and the Prospectus or as provided in
the Organizational 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, any interests in
the Partnership, the General Partner, Plains AAP, the Subsidiaries or the Joint Venture pursuant to
the agreement or certificate of limited partnership, limited liability company agreement,
certificate of formation, certificate or articles of incorporation, bylaws or other similar
organizational documents (in each case as in effect on the date hereof and as the
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same may be amended or restated prior to each applicable Delivery Date) (the “Organizational
Documents”) of the Partnership, the General Partner, Plains AAP, the Subsidiaries or the Joint
Venture or any agreement or other instrument to which the Partnership, the General Partner, Plains
AAP, the Subsidiaries or the Joint Venture is a party or by which any one of them may be bound.
Neither the filing of the Registration Statement nor the offering or sale of the Units as
contemplated by this Agreement gives rise to any rights for or relating to the registration of any
Units or other securities of the Partnership, the General Partner, Plains AAP, the Subsidiaries or
the Joint Venture, except such rights as have been waived or satisfied. Except as described in the
Pricing Disclosure Package and the Prospectus, there are no outstanding options or warrants to
purchase any Common Units or other equity interests in the Partnership, the General Partner, Plains
AAP, the Subsidiaries or the Joint Venture. The Units, when issued and delivered against payment
therefor as provided herein, will conform in all material respects to the description thereof
contained in the Pricing Disclosure Package and the Prospectus.
(u) The Partnership has 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 and the Registration Statement, the Pricing Disclosure Package and the
Prospectus. At each applicable Delivery Date, all corporate, limited liability company and
partnership action, as the case may be, required to be taken by the Partnership or its partners for
the authorization, issuance, sale and delivery of the Units shall have been validly taken.
(v) The execution and delivery of, and the performance by each of the Plains Parties of their
respective obligations under, this Agreement have been duly and validly authorized by each of the
Plains Parties, and this Agreement has been duly executed and delivered by each of the Plains
Parties, and constitutes the valid and legally binding agreement of each of the Plains Parties,
enforceable against each of the Plains Parties in accordance with its terms; provided that
the enforceability hereof 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 except as rights to indemnity and contribution hereunder may be
limited by federal or state securities laws.
(w) (i) The General Partner LLC Agreement has been duly authorized, executed and
delivered by Plains AAP and is a valid and legally binding agreement of Plains AAP,
enforceable against it in accordance with its terms;
(ii) the Plains AAP Partnership Agreement has been duly authorized, executed
and delivered by GP LLC and Plains AAP’s limited partners and, assuming due
authorization, execution and delivery by the other parties thereto, is a valid and
legally binding agreement of GP LLC and such limited partners, enforceable against
the GP LLC and such limited partners in accordance with its terms;
(iii) the Partnership Agreement has been duly authorized, executed and
delivered by the General Partner and is a valid and legally binding agreement of the
General Partner, enforceable against the General Partner in accordance with its
terms;
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(iv) the Plains Marketing Partnership Agreement has been duly authorized,
executed and delivered by each of GP Inc. and the Partnership, and is a valid and
legally binding agreement of GP Inc. and the Partnership, enforceable against each
of them in accordance with its terms;
(v) the Plains Pipeline Partnership Agreement has been duly authorized,
executed and delivered by each of GP Inc. and Plains Marketing and is a valid and
legally binding agreement of GP Inc. and Plains Marketing, enforceable against each
of them in accordance with its terms;
(vi) the Limited Liability Company Agreement of Pacific Energy Group (as in
effect on the date hereof and as the same may be amended or restated prior to each
applicable Delivery Date, the “Pacific Energy Group 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 it in accordance with its
terms; and
(vii) the Limited Liability Company Agreement of the Joint Venture (as in
effect on the date hereof and as the same may be amended or restated prior to each
applicable Delivery Date, the “Gas Storage LLC Agreement”) has been duly authorized,
executed and delivered by the Partnership and, assuming due authorization, execution
and delivery by the other parties thereto, is a valid and legally binding agreement
of the Partnership, enforceable against it in accordance with its terms;
provided that, with respect to each such agreement, 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).
(x) None of the offering, issuance and sale by the Partnership of the Units, the execution,
delivery and performance of this Agreement by the Plains Parties, or the consummation of the
transactions contemplated hereby (i) conflicts or will conflict with or constitutes or will
constitute a violation of the Organizational Documents of any of the Partnership, the General
Partner, Plains AAP, GP LLC or the Subsidiaries, (ii) conflicts or will conflict with or
constitutes or will constitute a breach or violation of, a change of control or a default under (or
an event that, with notice or lapse of time or both, would constitute such an event), any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which
any of the Partnership, the General Partner, Plains AAP, GP LLC or the Subsidiaries is a party or
by which any of them or any of their respective properties may be bound, (iii) violates or will
violate any statute, law or regulation or any order, judgment, decree or injunction of any court or
governmental agency or body directed to any of the Partnership, the General Partner, Plains AAP, GP
LLC or the Subsidiaries or any of their properties in a proceeding to which any of them or their
property is a party or (iv) will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of any of the Partnership, the General Partner, Plains AAP,
GP LLC, the Subsidiaries or the Joint Venture, which conflicts, breaches, violations or defaults,
in the case of clauses (ii), (iii) or (iv), would
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have a material adverse effect upon the condition (financial or other), business, prospects,
properties, net worth or results of operations of the Plains Entities, taken as a whole.
(y) No permit, consent, approval, authorization, order, registration, filing or qualification
of or with any court, governmental agency or body is required in connection with the offering,
issuance and sale by the Partnership of the Units, the execution, delivery and performance of, or
the consummation by the Plains Parties of the transactions contemplated by, this Agreement, except
for such permits, consents, approvals and similar authorizations required under the Securities Act,
the Exchange Act and state securities or “Blue Sky” laws.
(z) None of the Partnership, the General Partner, Plains AAP, GP LLC or the Subsidiaries is in
(i) violation of its Organizational Documents, or of any law, statute, ordinance, administrative or
governmental rule or regulation applicable to it or of any decree of any court or governmental
agency or body having jurisdiction over it or (ii) breach, default (or an event that, with notice
or lapse of time or both, would constitute such an event) or violation in the performance of any
obligation, agreement or condition contained in any bond, debenture, note or any other evidence of
indebtedness or in any agreement, indenture, lease or other instrument to which it is a party or by
which it or any of its properties may be bound, which breach, default or violation would, if
continued, have a material adverse effect on the condition (financial or other), business,
prospects, properties, net worth or results of operations of the Plains Entities, taken as a whole,
or could materially impair the ability of any of the Plains Parties to perform its obligations
under this Agreement. To the knowledge of the Plains Parties, no third party to any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which any of the
Partnership, the General Partner, Plains AAP, GP LLC or the Subsidiaries is a party or by which any
of them is bound or to which any of their properties are subject, is in default under any such
agreement, which breach, default or violation would, if continued, have a material adverse effect
on the condition (financial or other), business, prospects, properties, net worth or results of
operations of the Plains Entities, taken as a whole.
(aa) The accountants, PricewaterhouseCoopers LLP, who have certified or shall certify the
audited financial statements included in the Registration Statement, the most recent Preliminary
Prospectus and the Prospectus (and any amendment or supplement thereto), are independent registered
public accountants with respect to the Partnership, the General Partner and the Subsidiaries as
required by the Securities Act and the Rules and Regulations.
(bb) At December 31, 2008, the Partnership would have had, on an as adjusted basis as
indicated in the Prospectus (and any amendment or supplement thereto), a total capitalization as
set forth therein. The financial statements (including the related notes and supporting schedules)
and other financial information included in the Registration Statement, the most recent Preliminary
Prospectus and the Prospectus (and any amendment or supplement thereto) present fairly in all
material respects the financial position, results of operations and cash flows of the entities
purported to be shown thereby, at the dates and for the periods indicated, and have been prepared
in conformity with generally accepted accounting principles applied on a consistent basis
throughout the periods indicated, except to the extent disclosed therein. The summary and selected
historical financial information included or incorporated by reference in the Registration
Statement, the most recent Preliminary Prospectus and the Prospectus (and any amendment or
supplement thereto) is accurately presented in all material respects and prepared on a basis
consistent with the audited and unaudited historical consolidated financial statements
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from which it has been derived, except as described therein. The pro forma financial
statements and other pro forma financial information, if any, included or incorporated by reference
in the Registration Statement, the most recent Preliminary Prospectus and the Prospectus (and any
amendment or supplement thereto) (i) present fairly in all material respects the information shown
therein, (ii) have been prepared in accordance with the Commission’s rules and guidelines with
respect to pro forma financial statements and (iii) have been properly computed on the bases
described therein. The assumptions used in the preparation of the pro forma financial statements
and other pro forma financial information, if any, included or incorporated by reference in the
Registration Statement, the most recent Preliminary Prospectus and the Prospectus (and any
amendment or supplement thereto) are reasonable, and the adjustments used therein are appropriate
to give effect to the transactions or circumstances referred to therein. No other financial
statements or schedules of the Partnership are required by the Securities Act or the Exchange Act
to be included in the Registration Statement, the most recent Preliminary Prospectus or the
Prospectus.
(cc) Except as disclosed in the Pricing Disclosure Package and the Prospectus, subsequent to
the respective dates as of which such information is given in the Pricing Disclosure Package and
the Prospectus, (i) none of the Partnership, the General Partner, Plains AAP, GP LLC or the
Subsidiaries has incurred any liability or obligation, indirect, direct or contingent, or entered
into any transactions, not in the ordinary course of business, that, singly or in the aggregate, is
material to the Plains Entities, taken as a whole, (ii) there has not been any material change in
the capitalization, or material increase in the short-term debt or long-term debt, of the
Partnership, the General Partner, Plains AAP, GP LLC or the Subsidiaries and (iii) there has not
been any material adverse change, or any development involving or that may reasonably be expected
to involve, singly or in the aggregate, a prospective material adverse change in the condition
(financial or other), business, prospects, properties, net worth or results of operations of the
Plains Entities, taken as a whole.
(dd) There are no legal or governmental proceedings pending or, to the knowledge of the Plains
Parties, threatened, against any of the Partnership, the General Partner, Plains AAP, GP LLC and
the Subsidiaries, or to which any of the Partnership, the General Partner, Plains AAP, GP LLC and
the Subsidiaries is a party, or to which any of their respective properties is subject, that are
required to be described in the Registration Statement, the Pricing Disclosure Package or the
Prospectus but are not described as required, and there are no agreements, contracts, indentures,
leases or other instruments that are required to be described in the Registration Statement, the
Pricing Disclosure Package or the Prospectus or to be filed as an exhibit to the Registration
Statement that are not described or filed as required by the Securities Act or the Exchange Act.
(ee) The Partnership, the General Partner, Plains AAP, GP LLC and the Subsidiaries have good
and indefeasible title to all real property and good title to all personal property described in
the Pricing Disclosure Package and the Prospectus as being owned by them, free and clear of all
liens, claims, security interests or other encumbrances except (i) as provided in the Second
Restated Credit Agreement dated November 6, 2008 (as amended, the “Restated Facility”) among Plains
Marketing, Bank of America, N.A., as administrative agent thereunder and the lenders from time to
time party thereto, described in the Pricing Disclosure Package and the Prospectus, (ii) as
provided in the Plains AAP Facility, and (iii) such as do not materially interfere with the use of
such properties taken as a whole as described in the Pricing
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Disclosure Package and the Prospectus; and all real property and buildings held under lease by
any of the Partnership, the General Partner, Plains AAP, GP LLC and the Subsidiaries are held under
valid and subsisting and enforceable leases with such exceptions as do not materially interfere
with the use of such properties taken as a whole as described in the Pricing Disclosure Package and
the Prospectus.
(ff) Each of the Partnership, the General Partner, Plains AAP, GP LLC and the Subsidiaries has
such permits, consents, licenses, franchises, certificates and authorizations of governmental or
regulatory authorities (“permits”) as are necessary to own its properties and to conduct its
business in the manner described in the Pricing Disclosure Package and the Prospectus, subject to
such qualifications as may be set forth in the Pricing Disclosure Package and the Prospectus and
except for such permits the failure of which to have obtained would not have, individually or in
the aggregate, a material adverse effect upon the ability of the Plains Entities considered as a
whole to conduct their businesses in all material respects as currently conducted and as
contemplated by the Pricing Disclosure Package and the Prospectus to be conducted; each of the
Partnership, the General Partner, Plains AAP, GP LLC and the Subsidiaries has fulfilled and
performed all of its material obligations with respect to such permits and no event has occurred
that allows, or after notice or lapse of time would allow, revocation or termination thereof or
results in any impairment of the rights of the holder of any such permit, except for such failures
to perform, revocations, terminations and impairments that would not have a material adverse effect
upon the ability of the Plains Entities considered as a whole to conduct their businesses in all
material respects as currently conducted and as contemplated by the Pricing Disclosure Package and
the Prospectus to be conducted, subject in each case to such qualification as may be set forth in
the Pricing Disclosure Package and the Prospectus; and, except as described in the Pricing
Disclosure Package and the Prospectus, none of such permits contains any restriction that is
materially burdensome to Plains Entities, considered as a whole.
(gg) Each of the Partnership, the General Partner, Plains AAP, GP LLC and the Subsidiaries has
such consents, easements, rights-of-way or licenses from any person (“rights-of-way”) as are
necessary to conduct its business in the manner described in the Pricing Disclosure Package and the
Prospectus, subject to such qualifications as may be set forth in the Pricing Disclosure Package
and the Prospectus and except for such rights-of-way the failure of which to have obtained would
not have, individually or in the aggregate, a material adverse effect upon the ability of the
Plains Entities considered as a whole to conduct their businesses in all material respects as
currently conducted and as contemplated by the Pricing Disclosure Package and the Prospectus to be
conducted; each of the Partnership, the General Partner, Plains AAP, GP LLC and the Subsidiaries
has fulfilled and performed all its material obligations with respect to such rights-of-way and no
event has occurred that allows, or after notice or lapse of time would allow, revocation or
termination thereof or would result in any impairment of the rights of the holder of any such
rights-of-way, except for such failures to perform, revocations, terminations and impairments that
will not have a material adverse effect upon the ability of the Plains Entities considered as a
whole to conduct their businesses in all material respects as currently conducted and as
contemplated by the Pricing Disclosure Package and the Prospectus to be conducted, subject in each
case to such qualification as may be set forth in the Prospectus; and, except as described in the
Pricing Disclosure Package and the Prospectus, none of such rights-of-way contains any restriction
that is materially burdensome to the Plains Entities, considered as a whole.
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(hh) None of the Partnership, the General Partner, Plains AAP, GP LLC and the Subsidiaries is
now, and after sale of the Units to be sold by the Partnership hereunder and application of the net
proceeds from such sale as described in the Pricing Disclosure Package and the Prospectus under the
caption “Use of Proceeds,” none of the Partnership, the General Partner, Plains AAP, GP LLC and the
Subsidiaries will be, (i) an “investment company” within the meaning of the Investment Company Act
of 1940, as amended, (ii) a “gas utility,” within the meaning of Tex. Util. Code § 121.001 or
(iii) a “public utility” or “utility” within the meaning of the Public Utility Regulatory Act of
Texas or under similar laws of any state in which any such Plains Party does business; other than
in respect of any subsidiary of Pacific Energy Group that is under the jurisdiction of the
California Public Utility Commission.
(ii) None of the Partnership, the General Partner, Plains AAP, GP LLC and the Subsidiaries has
sustained since the date of the latest audited financial statements included in the Pricing
Disclosure Package and the Prospectus (and any amendment or supplement thereto) any material loss
or interference with its business from fire, explosion, flood or other calamity whether or not
covered by insurance, or from any labor dispute or court or governmental action, investigation,
order or decree, otherwise than as set forth or contemplated in the Pricing Disclosure Package and
the Prospectus (and any amendment or supplement thereto), which in each case would have a material
adverse effect on the condition (financial or other), business, prospects, properties, net worth or
results of operations of the Plains Entities, taken as a whole.
(jj) Except as described in the Pricing Disclosure Package and the Prospectus, none of the
Partnership, the General Partner, Plains AAP, GP LLC and the Subsidiaries has violated any
environmental, safety, health or similar law or regulation applicable to its business relating to
the protection of human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants (“Environmental Laws”), or lacks any permits, licenses or other
approvals required of them under applicable Environmental Laws to own, lease or operate their
properties and conduct their business as described in the Pricing Disclosure Package and the
Prospectus or is violating any terms and conditions of any such permit, license or approval, which
in each case would have a material adverse effect on the condition (financial or other), business,
prospects, properties, net worth or results of operations of the Plains Entities, taken as a whole.
(kk) No labor dispute by the employees of any of the Partnership, the General Partner, Plains
AAP, GP LLC or the Subsidiaries exists or, to the knowledge of the Plains Parties, is imminent,
which might reasonably be expected to have a material adverse effect on the condition (financial or
other), business, prospects, properties, net worth or results of operations of the Plains Entities,
taken as a whole.
(ll) The Partnership, the General Partner, Plains AAP, GP LLC and the Subsidiaries maintain
insurance covering their properties, operations, personnel and businesses against such losses and
risks as are reasonably adequate to protect them and their businesses in a manner consistent with
other businesses similarly situated. None of the Partnership, the General Partner, Plains AAP, GP
LLC and the Subsidiaries has received notice from any insurer or agent of such insurer that
substantial capital improvements or other expenditures will have to be made in order to continue
such insurance, and all such insurance is outstanding and duly in force on the date hereof and will
be outstanding and duly in force on each applicable Delivery Date.
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(mm) Except as described in the Pricing Disclosure Package and the Prospectus, there is (i) no
action, suit or proceeding before or by any court, arbitrator or governmental agency, body or
official, domestic or foreign, now pending or, to the knowledge of the Plains Parties, threatened,
to which any of the Partnership, the General Partner, Plains AAP, GP LLC and the Subsidiaries, or
any of their respective subsidiaries, is or may be a party or to which the business or property of
any of the Partnership, the General Partner, Plains AAP, GP LLC and the Subsidiaries, or any of
their respective subsidiaries, is or may be subject, (ii) no statute, rule, regulation or order
that has been enacted, adopted or issued by any governmental agency or, to the knowledge of the
Plains Parties, that has been proposed by any governmental body and (iii) no injunction,
restraining order or order of any nature issued by a federal or state court or foreign court of
competent jurisdiction to which any of the Partnership, the General Partner, Plains AAP, GP LLC and
the Subsidiaries, or any of their respective subsidiaries, is or may be subject, that, in the case
of clauses (i), (ii) and (iii) above, is reasonably expected to (A) singly or in the aggregate have
a material adverse effect on the condition (financial or other), business, prospects, properties,
net worth or results of operations of the Plains Entities, taken as a whole, (B) prevent or result
in the suspension of the offering and issuance of the Units or (C) in any manner draw into question
the validity of this Agreement.
(nn) No Subsidiary is currently prohibited, directly or indirectly, from paying any dividends
to the Partnership, from making any other distribution on such Subsidiary’s capital stock or
partnership or limited liability company interests, from repaying to the Partnership any loans or
advances to such Subsidiary from the Partnership or from transferring any of such Subsidiary’s
property or assets to the Partnership or any other Subsidiary of the Partnership, except as
described in or contemplated by the Pricing Disclosure Package and the Prospectus (exclusive of any
amendment or supplement thereto).
(oo) None of the Partnership, the General Partner, Plains AAP, GP LLC and the Subsidiaries has
distributed and, prior to the later to occur of (i) any Delivery Date and (ii) completion of the
distribution of the Firm Units or Option Units, as the case may be, will not distribute, any
prospectus (as defined under the Securities Act) in connection with the offering and sale of the
Units other than any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus,
subject to the conditions in Section 1(h) of this Agreement, or other materials, if any, permitted
by the Securities Act, including Rule 134 of the Rules and Regulations.
(pp) The Common Units are listed on the New York Stock Exchange (“NYSE”), and prior to the
Initial Delivery Date, the Units will be approved for listing on the NYSE subject only to official
notice of issuance.
(qq) The Partnership maintains a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with management’s general or
specific authorization; (ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in accordance with management’s
general or specific authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with respect to any
differences.
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(rr) The Partnership and, to the knowledge of the Plains Parties, the directors and officers
of GP LLC in their capacities as such, are in compliance in all material respects with all
applicable and effective provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
promulgated thereunder.
(ss) The Partnership maintains disclosure controls and procedures (as such term is defined in
Rules 13a-15 and 15d-15 under the Exchange Act), that (i) are designed to provide reasonable
assurance that material information relating to the Partnership, including its consolidated
subsidiaries, is recorded, processed, summarized and communicated to the principal executive
officer, the principal financial officer and other appropriate officers of GP LLC to allow for
timely decisions regarding required disclosure, particularly during the periods in which the
periodic reports required under the Exchange Act are being prepared; (ii) have been evaluated for
effectiveness as of the end of the Partnership’s most recent fiscal quarter; and (iii) are
effective in all material respects to perform the functions for which they are established.
(tt) Based on the evaluation of its disclosure controls and procedures conducted in connection
with the preparation and filing of the Partnership’s Annual Report on Form 10-K for the period
ended December 31, 2008, the Partnership is not aware of (i) any significant deficiency or material
weakness in the design or operation of internal controls over financial reporting that are likely
to adversely affect its ability to record, process, summarize and report financial data; or (ii)
any fraud, whether or not material, that involves management or other employees who have a
significant role in the internal controls over financial reporting of the Partnership.
(uu) None of the Plains Entities nor, to the knowledge of the Plains Parties, any director,
officer, agent, employee or affiliate of the Plains Entities is aware of or has taken any action,
directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt
Practices Act of 1977, as amended, and the rules and regulations thereunder.
(vv) No action, suit or proceeding by or before any court or governmental agency, authority or
body or any arbitrator involving the Plains Entities that involve allegations of money laundering
is pending or, to the knowledge of the Plains Parties, threatened.
(ww) None of the Plains Entities nor, to the knowledge of the Plains Parties, any director,
officer or employee of the Plains Entities has received notice that it is subject to any sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury Department.
2. Purchase and Sale. (a) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Partnership agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the
Partnership, at a purchase price of $35.77 per Unit, the amount of the Firm Units set forth
opposite such Underwriter’s name in Schedule I hereto, subject to adjustment as set forth in
Section 9 hereof.
(b) Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Partnership hereby grants an option to the several Underwriters to
purchase, severally and not jointly, up to 750,000 Option Units at the same purchase price per Unit
as the Underwriters shall pay for the Firm Units. Said option may
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be exercised in whole or in part at any time and from time to time on or before the 30th day
after the date of the Prospectus upon written or telegraphic notice by the Representatives to the
Partnership setting forth the number of Option Units as to which the several Underwriters are
exercising the option and the settlement date. The number of Option Units to be purchased by each
Underwriter shall be the same percentage of the total number of Option Units to be purchased by the
several Underwriters as such Underwriter is purchasing of the Firm Units, subject to (i) such
adjustments as you in your absolute discretion shall make to eliminate any fractional shares and
(ii) adjustment as set forth in Section 9 hereof.
3. Delivery and Payment. Delivery of and payment for the Firm Units and the Option
Units (if the option provided for in Section 2(b) hereof shall have been exercised on or before the
third business day prior to the Initial Delivery Date) shall be made at the office of Xxxxxx &
Xxxxxx L.L.P., 0000 Xxxxxx, Xxxxxxx, Xxxxx 00000 at 9:00 a.m., Houston time, on March 20, 2009, or
at such time on such later date not more than three business days after the foregoing date as the
Representatives shall designate, which date and time may be postponed by agreement between the
Representatives and the Partnership or as provided in Section 9 hereof (such date and time of
delivery and payment for the Units being herein called the “Initial Delivery Date”). Delivery of
the Units shall be made to the Underwriters for the respective accounts of the several Underwriters
against payment by the several Underwriters of the purchase price thereof to or upon the order of
the Partnership by wire transfer payable in same-day funds to an account specified by the
Partnership. Delivery of the Firm Units and the Option Units shall be made through the facilities
of The Depository Trust Company unless the Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after the third business day
prior to the Initial Delivery Date, the Partnership will deliver the Option Units (at the expense
of the Partnership) to the Representatives on the date (an “Option Units Delivery Date”) specified
by the Underwriters (which shall be within three business days after each exercise of said option),
for the respective accounts of the several Underwriters, against payment by the several
Underwriters of the purchase price thereof to or upon the order of the Partnership by wire transfer
payable in same-day funds to an account specified by the Partnership. If settlement for the Option
Units occurs after the Initial Delivery Date, the Partnership will deliver to the Underwriters on
the Option Units Delivery Date for the Option Units, and the obligation of the Underwriters to
purchase the Option Units shall be conditioned upon receipt of, supplemental opinions, certificates
and letters confirming as of such date the opinions, certificates and letters delivered on the
Initial Delivery Date pursuant to Section 7 hereof. The Initial Delivery Date and any Option Units
Delivery Date are each sometimes referred to as a “Delivery Date.”
4. Offering by Underwriters. It is understood that the several Underwriters propose
to offer the Units for sale to the public as set forth in the Prospectus.
5. Agreements of the Plains Parties. Each of the Plains Parties, jointly and
severally, acknowledges and agrees with the Underwriters as follows:
(a) If, at the Applicable Time, it is necessary for a post-effective amendment to the
Registration Statement to be declared effective before the offering of the Units may commence, the
Partnership, the General Partner, Plains AAP and GP LLC will endeavor to cause such post-effective
amendment to become effective as soon as possible and will advise you
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promptly and, if requested by you, will confirm such advice in writing when such
post-effective amendment has become effective.
(b) The Partnership will advise you promptly and, if requested by you, will confirm such
advice in writing: (i) of any request by the Commission for amendment of or a supplement to the
Registration Statement, the Preliminary Prospectus or the Prospectus or for additional information;
(ii) of the issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Units for offering or sale in
any jurisdiction or the initiation of any proceeding for such purpose; and (iii) within the period
of time referred to in paragraph (e) below, of any change in the condition (financial or other),
business, prospects, properties, net worth or results of operations of the Plains Entities, taken
as a whole, or of the happening of any event that makes any statement of a material fact made in
the Registration Statement, the Pricing Disclosure Package or the Prospectus (as then amended or
supplemented) untrue or that requires the making of any additions to or changes in the Registration
Statement, the Pricing Disclosure Package or the Prospectus (as then amended or supplemented) in
order to state a material fact required by the Securities Act or the regulations thereunder to be
stated therein or necessary in order to make the statements therein (in the case of any Preliminary
Prospectus or the Prospectus, in the light of the circumstances under which any such statements
were made) not misleading, or of the necessity to amend or supplement the Prospectus (as then
amended or supplemented) to comply with the Securities Act or any other applicable law. If at any
time the Commission shall issue any stop order suspending the effectiveness of the Registration
Statement, the Partnership, the General Partner, Plains AAP and GP LLC will make every commercially
reasonable effort to obtain the withdrawal of such order at the earliest possible time.
(c) The Partnership will furnish to you, without charge, (i) one copy of the manually signed
copy of the registration statement corresponding to the Commission’s electronic data gathering,
analysis and retrieval system (“XXXXX”) or interactive data electronic applications (“IDEA”)
version filed with the Commission and of each amendment thereto, including financial statements and
all exhibits to the registration statement, (ii) such number of conformed copies of the
registration statement as originally filed and of each amendment thereto, but without exhibits, as
you or your counsel may reasonably request, (iii) such number of copies of the Incorporated
Documents, without exhibits, as you may request, and (iv) such number of copies of the exhibits to
the Incorporated Documents as you may request.
(d) For such period as in the opinion of counsel for the Underwriters a prospectus is required
by the Securities Act to be delivered in connection with sales by any Underwriter or dealer, the
Partnership will not file any amendment to the Registration Statement, supplement to the Prospectus
(or any other prospectus relating to the Units filed pursuant to Rule 424(b) of the Rules and
Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)), or any
Preliminary Prospectus or Issuer Free Writing Prospectus of which the Underwriters shall not
previously have been advised or to which the Underwriters shall have reasonably objected in writing
after being so advised unless the Partnership shall have determined based upon the advice of
counsel that such amendment, supplement or other filing is required by law; and the Partnership
will promptly notify the Representatives after it shall have received notice thereof of the time
when any amendment to the Registration Statement becomes effective or when any supplement to the
Prospectus has been filed.
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(e) As soon after the Applicable Time as possible and thereafter from time to time for such
period as in the opinion of counsel for the Underwriters a prospectus is required by the Securities
Act to be delivered in connection with sales by any Underwriter or dealer, the Partnership will
expeditiously deliver to each Underwriter and each dealer that you may specify, without charge, as
many copies of the Prospectus (and of any amendment or supplement thereto) as you may reasonably
request. At any time after nine months after the time of issuance of the Prospectus, upon request
and without charge, the Partnership will deliver as many copies of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Securities Act as you may reasonably request,
provided that a prospectus is required by the Securities Act to be delivered in connection with
sales of Units by any Underwriter or dealer. The Partnership consents to the use of the Prospectus
(and of any amendment or supplement thereto) in accordance with the provisions of the Securities
Act and with the securities or Blue Sky laws of the jurisdictions in which the Units are offered by
the Underwriters and by all dealers to whom Units may be sold, both in connection with the offering
and sale of the Units and for such period of time thereafter as the Prospectus is required by the
Securities Act to be delivered in connection with sales by any Underwriter or dealer. If during
such period of time any event shall occur that in the judgment of the Partnership or in the opinion
of counsel for the Underwriters and the Partnership is required to be set forth in the Prospectus
(as then amended or supplemented) or should be set forth therein in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading, or if it is
necessary to supplement or amend the Prospectus (or to file under the Exchange Act any document
which, upon filing, becomes an Incorporated Document) to comply with the Securities Act or any
other law, the Partnership will forthwith prepare and, subject to the provisions of paragraph (d)
above, file with the Commission an appropriate supplement or amendment thereto (or to such
document), and will expeditiously furnish to the Underwriters and dealers a reasonable number of
copies thereof; provided that, if any such event necessitating a supplement or amendment to the
Prospectus occurs at any time after nine months after the time of issuance of the Prospectus, such
supplement or amendment shall be prepared at your expense. In the event that the Partnership and
you agree that the Prospectus should be amended or supplemented, the Partnership, if requested by
you, will promptly issue a press release announcing or disclosing the matters to be covered by the
proposed amendment or supplement unless the Partnership shall have determined, based on the advice
of counsel, that the issuance of such press release would not be required by law.
(f) The Partnership, the General Partner, Plains AAP and GP LLC will cooperate with you and
with counsel for the Underwriters in connection with the registration or qualification of the Units
for offering and sale by the Underwriters and by dealers under the securities or Blue Sky laws of
such jurisdictions as you may reasonably designate and will file such consents to service of
process or other documents reasonably necessary or appropriate in order to effect such registration
or qualification; provided that in no event shall any Plains Party be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take any action that would
subject it to service of process in suits, other than those arising out of the offering or sale of
the Units, in any jurisdiction where it is not now so subject.
(g) In accordance with Section 11(a) of the Securities Act and Rule 158 of the Rules and
Regulations, the Partnership will make generally available to its security holders an earnings
statement (which need not be audited) in reasonable detail covering the 12-month period beginning
not later than the first day of the month next succeeding the month in which
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occurred the effective date (within the meaning of Rule 158) of the Registration Statement as
soon as practicable after the end of such period.
(h) Unless otherwise available on XXXXX, during the period of two years hereafter, the
Partnership will furnish or make available to you (i) as soon as publicly available, a copy of each
report of the Partnership mailed to unitholders or filed with the Commission or the principal
national securities exchange or automated quotation system upon which the Units may be listed, and
(ii) from time to time such other information concerning the Partnership as you may reasonably
request.
(i) If this Agreement shall terminate or shall be terminated after execution pursuant to any
provisions hereof (otherwise than pursuant to Section 9 hereof or Section 10 hereof (except
pursuant to the first clause of Section 10(i))) or if this Agreement shall be terminated by the
Underwriters because of any failure or refusal on the part of any of the Plains Parties to comply
with the terms or fulfill any of the conditions of this Agreement, the Plains Parties, jointly and
severally, agree to reimburse the Underwriters for all reasonable out-of-pocket expenses (including
reasonable fees and expenses of counsel for the Underwriters) incurred by you in connection
herewith.
(j) The Partnership will apply the net proceeds from the sale of the Units in accordance with
the description set forth under the caption “Use of Proceeds” in the Prospectus.
(k) The Partnership will timely file the Prospectus, and any amendment or supplement thereto,
pursuant to Rule 424(b) of the Rules and Regulations and will advise you of the time and manner of
such filing.
(l) Except as provided in this Agreement, the Plains Parties will not (i) offer, sell,
contract to sell, pledge or otherwise dispose of (or enter into any transaction that is designed
to, or might reasonably be expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by the Plains Parties or any of
their controlled affiliates or any person in privity with the Plains Parties or any of their
controlled affiliates) directly or indirectly, including the filing (or participation in the
filing) of a registration statement with the Commission in respect of, or establish or increase a
put equivalent position or liquidate or decrease a call equivalent position within the meaning of
Section 16 of the Exchange Act with respect to, any Common Units or any securities that are
convertible into, or exercisable or exchangeable for, or that represent the right to receive,
Common Units or any securities that are senior to or pari passu with Common Units, or publicly
announce an intention to effect any such transaction or (ii) grant any options or warrants to
purchase Common Units for a period of 45 days after the date of the Prospectus (the “Lock-Up
Period”) without the prior written consent of the Representatives, except that (A) the Partnership
may issue the Units, (B) the Plains Parties may issue Common Units or any securities convertible or
exchangeable into Common Units as payment of any part of the purchase price for businesses that are
acquired by the Plains Parties and its affiliates or any third parties, provided that any
recipient of such Common Units must agree in writing to be bound by the terms of this Section 5(l)
for the remaining term of the Lock-Up Period and (C) the Plains Parties may issue and sell Common
Units pursuant to any long-term incentive plan, any employee unit option plan, unit ownership plan
or dividend reinvestment plan of the Partnership (or adopted by the General Partner, Plains AAP or
GP LLC) in effect at the Applicable Time and (D) the Partnership may issue or deliver
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Common Units issuable upon the conversion, vesting or exercise of securities (including
long-term incentive plan awards, options and warrants) outstanding at the Applicable Time.
(m) Except as stated in this Agreement and the Prospectus, none of the Plains Parties has
taken, or will take, directly or indirectly, any action designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of the price of the Common Units to
facilitate the sale or resale of the Units.
(n) Each of the Plains Parties will take such steps as shall be necessary to ensure that none
of them shall become an “investment company” within the meaning of such term under the Investment
Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder.
(o) Upon the issuance of the Units by the Partnership, the General Partner shall make the
additional capital contributions to the Partnership as required by Section 5.2(b) of the
Partnership Agreement.
(p) The Partnership, during the period when the Prospectus is required to be delivered under
the Securities Act, will file all documents required to be filed with the Commission pursuant to
the Exchange Act within the time periods required by the Exchange Act.
(q) The Partnership has complied and will comply with the requirements of Rule 433 under the
Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the
Commission or retention where required and legending. The Partnership represents that it has
satisfied and agrees that it will satisfy the conditions under Rule 433 under the Securities Act to
avoid a requirement to file with the Commission any electronic road show. The Partnership agrees
that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or
occurs as a result of which such Issuer Free Writing Prospectus 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 then prevailing, not
misleading, the Partnership will give prompt notice thereof to the Representatives and, if
requested by the Representatives, will prepare and furnish without charge to each Underwriter an
Issuer Free Writing Prospectus or other document that will correct such conflict, statement or
omission; provided, however, that this representation and warranty shall not apply
to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in
conformity with information furnished in writing to the Partnership by an Underwriter through the
Representatives expressly for use therein, which information is specified in Section 12.
6. Indemnification and Contribution.
(a) Each of the Plains Parties, jointly and severally, agrees to indemnify and hold harmless
each Underwriter, the directors, officers, employees and agents of each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act from and against any and all losses, claims, damages, liabilities and expenses, joint or several (including reasonable
costs of
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investigation), to which they or any of them became subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities or expenses arise
out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, any Preliminary Prospectus, the Prospectus, any Issuer
Free Writing Prospectus or in any amendment or supplement thereto or (ii) the omission or alleged
omission to state in the Registration Statement, any Preliminary Prospectus, the Prospectus, any
Issuer Free Writing Prospectus or in any amendment or supplement thereto, any material fact
required to be stated therein or necessary to make the statements therein not misleading (in the
case of any Preliminary Prospectus or the Prospectus, in the light of the circumstances under which
any such statements were made), and shall reimburse each Underwriter and each such director,
officer, employee or controlling person promptly upon demand for any legal or other expenses
reasonably incurred by that 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 Plains 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 the Registration Statement, any Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus or in any such amendment or
supplement thereto, 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 12. The foregoing indemnity agreement is in addition to any
liability that the Plains Parties may otherwise have to any Underwriter or to any director,
officer, employee or controlling person of that Underwriter.
(b) If any action, suit or proceeding shall be brought against any Underwriter, any director,
officer, employee or agent of any Underwriter or any person controlling any Underwriter in respect
of which indemnity may be sought against a Plains Party, such Underwriter or such director,
officer, employee, agent or controlling person shall promptly notify the Partnership in writing,
and the Partnership, the General Partner, Plains AAP and GP LLC shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to such indemnified party and payment
of all reasonable fees and expenses. The failure to notify the indemnifying party shall not
relieve it from liability that it may have to an indemnified party unless the indemnifying party is
foreclosed by reason of such delay from asserting a defense otherwise available to it. Such
Underwriter or any such director, officer, employee, agent or controlling person shall have the
right to employ separate counsel in any such action, suit or proceeding and to participate in (but
not control) the defense thereof, but the fees and expenses of such counsel shall be at the expense
of such Underwriter or such director, officer, employee, agent or controlling person unless (i) the
Partnership, the General Partner, Plains AAP and/or GP LLC has agreed in writing to pay such fees
and expenses, (ii) the Partnership, the General Partner, Plains AAP and GP LLC have failed to
assume the defense and employ counsel within a reasonable period of time in light of the
circumstances or (iii) such indemnified party or parties shall have reasonably concluded, based on
the advice of counsel, that there may be defenses available to it or them which are different from,
additional to or in conflict with those available to the Partnership, the General Partner, Plains
AAP and/or GP LLC (in which case the Partnership, the General Partner, Plains AAP and GP LLC shall
not have the right to direct the defense of such action, suit or proceeding on behalf of the
indemnified party or parties), in any of which events the Partnership, the General Partner, Plains AAP and/or GP LLC shall pay the
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reasonable fees and expenses of such counsel as such fees and expenses are incurred (it being
understood, however, that the Partnership, the General Partner, Plains AAP and GP LLC shall not be
liable for the expenses of more than one separate counsel (in addition to any local counsel) in any
one action, suit or proceeding or series of related actions, suits or proceedings in the same
jurisdiction representing the indemnified parties who are parties to such action, suit or
proceeding). None of the Plains Parties shall be liable for any settlement of any such action,
suit or proceeding effected without its written consent, but if settled with such written consent,
or if there be a final judgment for the plaintiff in any such action, suit or proceeding, the
Plains Parties agree, jointly and severally, to indemnify and hold harmless any Underwriter, to the
extent provided in the preceding paragraph, and any such controlling person from and against any
loss, claim, damage, liability or expense by reason of such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the
Plains Parties, their respective directors and the officers who sign the Registration Statement,
and any person who controls the Plains Parties within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, to the same extent as the foregoing indemnity from the
Plains Parties to each Underwriter, but only with respect to information furnished in writing by or
on behalf of such Underwriter through you expressly for use in the Registration Statement, any
Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or
supplement thereto, which information is limited to the information set forth in Section 12. If
any action, suit or proceeding shall be brought against a Plains Party, any of such directors and
officers or any such controlling person based on the Registration Statement, any Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement
thereto, and in respect of which indemnity may be sought against any Underwriter pursuant to this
paragraph (c), such Underwriter shall have the rights and duties given to the Plains Parties by
paragraph (b) above (except that if the Partnership, the General Partner, Plains AAP or GP LLC
shall have assumed the defense thereof such Underwriter shall not be required to do so, but may
employ separate counsel therein and participate in (but not control) the defense thereof, but the
fees and expenses of such counsel shall be at such Underwriter’s expense), and the Plains Parties,
any of such directors and officers and any such controlling person shall have the rights and duties
given to the Underwriters by paragraph (b) above. The foregoing indemnity agreement shall be in
addition to any liability that the Underwriters may otherwise have.
(d) If the indemnification provided for in this Section 6 is unavailable to an indemnified
party under paragraph (a) or (c) hereof in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Plains Parties on the one hand and the Underwriters
on the other hand 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 Plains
Parties on the one hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages, liabilities or expenses, as well as any
other relevant equitable considerations. The relative benefits received by the Plains Parties on
the one hand and the Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by the
Partnership
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bear to the total underwriting discounts and commissions received by the Underwriters,
in each case as set forth in the table on the cover page of the Prospectus. The relative fault of
the Plains Parties on the one hand, and the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to information supplied by the
Plains Parties or any other affiliate of the Plains Parties on the one hand, or by the Underwriters
on the other hand, and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Plains Parties and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 6 were determined by a 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 account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses, claims, damages,
liabilities and expenses referred to in paragraph (d) above shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 6, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price of the Units underwritten by
it and distributed to the public exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 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 6 are several and not joint.
(f) No indemnifying party shall (i) 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 (ii) be
liable for any settlement of any such action 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 action, 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.
(g) Any losses, claims, damages, liabilities or expenses for which an indemnified party is
entitled to indemnification or contribution under this Section 6 shall be paid by the indemnifying
party to the indemnified party as such losses, claims, damages, liabilities or expenses are
incurred. The indemnity and contribution agreements contained in this Section 6 and the covenants,
representations and warranties of the Plains Parties set forth in this Agreement shall remain
operative and in full force and effect, regardless of (i) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter, the Plains Parties or any of their respective directors or officers or any person controlling the Plains
Parties,
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(ii) acceptance of any Units and payment therefor in accordance with the terms of this
Agreement, and (iii) any termination of this Agreement. A successor to any Underwriter or any
person controlling any Underwriter, or to the Plains Parties or any of their respective directors
or officers or any person controlling a Plains Party shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in this Section 6.
7. Conditions of Underwriters’ Obligations. The several obligations of the
Underwriters to purchase the Firm Units and the Option Units, as the case may be, hereunder are
subject to the following conditions:
(a) All filings required by Rule 424 and Rule 430A of the Rules and Regulations shall have
been made. All material required to be filed by the Partnership pursuant to Rule 433(d) under the
Securities Act shall have been filed with the Commission within the applicable time period
prescribed for such filing by Rule 433 under the Securities Act. No stop order (i) suspending the
effectiveness of the Registration Statement or (ii) suspending or preventing the use of the most
recent Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been
issued and no proceeding for that purpose shall have been instituted or, to the knowledge of the
Plains Parties or any Underwriter, threatened by the Commission, and any request of the Commission
for additional information (to be included in the Registration Statement or the Prospectus or
otherwise) shall have been complied with to the reasonable satisfaction of the Representatives.
(b) Subsequent to the Applicable Time, there shall not have occurred (i) any change, or any
development involving a prospective change, in or affecting the condition (financial or other),
business, prospects, properties, net worth or results of operations of any of the Plains Parties
not contemplated by the Prospectus, which in your opinion, would materially adversely affect the
market for the Units, or (ii) any event or development relating to or involving any of the Plains
Parties or any executive officer or director of any of such entities that makes any statement made
in the Prospectus untrue or which, in the opinion of the Partnership and its counsel or the
Underwriters and their counsel, requires the making of any addition to or change in the Prospectus
in order to state a material fact required by the Securities Act or any other law to be stated
therein or necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, if amending or supplementing the Prospectus to reflect
such event or development would, in your opinion, materially adversely affect the market for the
Units.
(c) You shall have received on each applicable Delivery Date, an opinion of Xxxxxx & Xxxxxx
L.L.P., special counsel for the Plains Parties, dated the applicable Delivery Date and addressed to
you, to the effect that:
(i) Each of the Partnership, the General Partner, Plains AAP, GP LLC, the
Subsidiaries (other than the Canadian Subsidiaries) and the Joint Venture has been
duly formed or incorporated and is validly existing in good standing as a limited
partnership, limited liability company or corporation under the laws of its
respective jurisdiction of formation or incorporation with full corporate,
partnership or limited liability company power and authority, as the case may be, to
own or lease its properties and to conduct its business, in each case in all
material respects.
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(ii) GP LLC has full limited liability company power and authority to act as
the general partner of Plains AAP; the General Partner has full limited liability
company power and authority to act as the general partner of the Partnership; GP
Inc. has full corporate power and authority to act as the general partner of Plains
Marketing and Plains Pipeline; PMC NS has full unlimited liability company power and
authority to act as the general partner of PMC LP; LPG LLC has full limited
liability company power and authority to act as the general partner of LPG Services
LP; and Plains Midstream GP has full limited liability company power and authority
to act as the general partner of Plains Midstream LP, in each case in all material
respects.
(iii) 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 authorized and validly 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, charges or claims (A) in respect of
which a financing statement under the Uniform Commercial Code of the State of
Delaware or Texas naming the General Partner as debtor is on file in the office of
the Secretary of State of the States of Delaware or Texas or (B) otherwise known to
such counsel, without independent investigation, other than those created by or
arising under the Delaware LP Act.
(iv) Plains AAP is the sole member of the General Partner, with a 100% membership
interest in the General Partner; such membership interest has been duly authorized
and validly issued in accordance with the General Partner LLC Agreement and is fully
paid (to the extent required under the General Partner LLC Agreement) and
nonassessable (except as such nonassessability may be affected by matters described
in Section 18-607 and 18-804 of the Delaware LLC Act).
(v) GP LLC is the sole general partner of Plains AAP, with a 1.0% general partner
interest in Plains AAP; such general partner interest has been duly authorized and
validly issued in accordance with the Plains AAP Partnership Agreement; and GP LLC
owns such general partner interest free and clear of all liens, encumbrances,
security interests, charges or claims, (A) in respect of which a financing statement
under the Uniform Commercial Code of the State of Delaware or Texas naming GP LLC as
debtor is on file in the office of the Secretary of State of the States of Delaware
or Texas or (B) otherwise known to such counsel, without independent investigation,
other than those created by or arising under the Delaware LP Act.
(vi) GP Inc. is the sole general partner of Plains Marketing, with a 0.001% general
partner interest in Plains Marketing, and the sole general partner of Plains
Pipeline, with a 0.001% general partner interest in Plains Pipeline; such general
partner interests have been duly authorized and validly issued in accordance with
the Plains Marketing Partnership Agreement and the Plains Pipeline Partnership
Agreement, respectively; and GP Inc. owns such general partner interests free and
clear of all liens, encumbrances, security interests, charges or claims (A) in
respect of which a financing statement under the Uniform Commercial Code of
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the States of Delaware or Texas naming GP Inc. as debtor is on file in the office of
the Secretary of State of the States of Delaware or Texas or (B) otherwise known to
such counsel, without independent investigation, other than those created by or
arising under the Delaware LP Act.
(vii) All of the outstanding shares of capital stock or other equity interests
(other than general partner interests) of each Domestic Subsidiary and the Joint
Venture (a) have been duly authorized and validly issued (in the case of an interest
in a limited partnership or limited liability company, in accordance with the
Organizational Documents of such Domestic Subsidiary or the Joint Venture), are
fully paid (in the case of an interest in a limited partnership or limited liability
company, to the extent required under the Organizational Documents of such Domestic
Subsidiary or the Joint Venture) and nonassessable (except (i) in the case of an
interest in a Delaware limited partnership or Delaware limited liability company, as
such nonassessability may be affected by Section 17-607 of the Delaware LP Act or
Section 18-607 and 18-804 of the Delaware LLC Act, as applicable, (ii) in the case
of an interest in a limited partnership or limited liability company formed under
the laws of another domestic state, as such nonassessability may be affected by
similar provisions of such state’s limited partnership or limited liability company
statute, as applicable) and (b) except for a 50% membership interest in the Joint
Venture owned by Vulcan Gas Storage LLC, are owned, directly or indirectly, by the
Partnership, free and clear of all liens, encumbrances, security interests, charges
or claims (A) in respect of which a financing statement under the Uniform Commercial
Code of the States of Delaware or Texas naming the Partnership as debtor or, in the
case of capital stock or other equity interests of a Domestic Subsidiary owned
directly by one or more other Domestic Subsidiaries, naming any such other Domestic
Subsidiaries as debtor(s), is on file in the office of the Secretary of State of the
States of Delaware or Texas or (B) otherwise known to such counsel, without
independent investigation, other than those created by or arising under the
corporate, limited liability company or partnership laws of the jurisdiction of
formation or incorporation of the respective Domestic Subsidiary or the Joint
Venture, as the case may be.
(viii) All outstanding general partner interests in each Domestic Subsidiary that is
a partnership have been duly authorized and validly issued in accordance with the
Organizational Documents of such Domestic Subsidiary and are owned, directly or
indirectly, by the Partnership, free and clear of all liens, encumbrances, security
interests, charges or claims (A) in respect of which a financing statement under the
Uniform Commercial Code of the States of Delaware or Texas naming the Partnership as
debtor or, in the case of general partner interests of a Domestic Subsidiary owned
directly by one or more other Domestic Subsidiaries is on file in the office of the
Secretary of State of the States of Delaware or Texas or (B) otherwise known to such
counsel, without independent investigation, other than those created by or arising
under the partnership laws of the jurisdiction of formation of the respective
Domestic Subsidiary, as the case may be.
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(ix) The Firm Units to be issued and sold to the Underwriters by the Partnership
pursuant to this Agreement and the limited partner interests represented thereby
have been duly authorized by the Partnership Agreement and, when issued and
delivered against payment therefor as provided in this Agreement, will be validly
issued, fully paid (to the extent required under the Partnership Agreement) and
nonassessable (except as such nonassessability may be affected by Section 17-607 of
the Delaware LP Act).
(x) Except as have been waived or satisfied, there are no preemptive rights or other
rights to subscribe for or to purchase, nor any restriction upon the voting or
transfer of, any interests in the Partnership, any Domestic Subsidiary or the Joint
Venture pursuant to any of the Organizational Documents (other than the
Organizational Documents of the Canadian Subsidiaries) or any other agreement or
instrument known to such counsel to which the Partnership, any Domestic Subsidiary
or the Joint Venture is a party or by which any one of them may be bound. To such
counsel’s knowledge, neither the filing of the Registration Statement nor the
offering or sale of the Units as contemplated by this Agreement gives rise to any
rights for or relating to the registration of any Units or other securities of the
Partnership, any Domestic Subsidiary or the Joint Venture, except such rights as
have been waived or satisfied. To such counsel’s knowledge, except as described in
the Prospectus or as have been issued pursuant to compensation plans adopted or
administered by the General Partner, there are no outstanding options or warrants to
purchase any Common Units or other equity interests in the Partnership, any Domestic
Subsidiary or the Joint Venture. The Partnership has 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 and the
Registration Statement, the Pricing Disclosure Package and the Prospectus.
(xi) This Agreement has been duly authorized and validly executed and delivered by
each of the Plains Parties.
(xii) At or before each applicable Delivery Date:
(A) the General Partner LLC Agreement has been duly authorized, executed and
delivered by Plains AAP and is a valid and legally binding agreement of Plains AAP,
enforceable against it in accordance with its terms;
(B) the Plains AAP Partnership Agreement has been duly authorized, executed and
delivered by GP LLC and, assuming due authorization, execution and delivery by the
other parties thereto, is a valid and legally binding agreement of GP LLC,
enforceable against GP LLC in accordance with its terms;
(C) the Partnership Agreement has been duly authorized, executed and delivered
by the General Partner and is a valid and legally binding agreement of the General
Partner, enforceable against the General Partner in accordance with its terms;
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(D) the Plains Marketing Partnership Agreement has been duly authorized,
executed and delivered by each of GP Inc. and the Partnership, and is a valid and
legally binding agreement of GP Inc. and the Partnership, enforceable against each
of them in accordance with its terms;
(E) the Plains Pipeline Partnership Agreement has been duly authorized,
executed and delivered by each of GP Inc. and Plains Marketing and is a valid and
legally binding agreement of GP Inc. and Plains Marketing, enforceable against each
of them in accordance with its terms;
(F) the Pacific Energy Group 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 it in accordance with its terms; and
(G) the Gas Storage LLC Agreement has been duly authorized, executed and
delivered by the Partnership and, assuming due authorization, execution and delivery
by the other parties thereto, is a valid and legally binding agreement of the
Partnership, enforceable against it in accordance with its terms;
provided that, with respect to each such agreement, the enforceability
thereof may be limited by (A) applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or similar laws from time to time in effect
affecting creditors’ rights and remedies generally and by general principles of
equity (regardless of whether such principles are considered in a proceeding in
equity or at law) and (B) public policy, applicable law relating to fiduciary duties
and indemnification and an implied covenant of good faith and fair dealing.
(xiii) None of the offering, issuance and sale by the Partnership of the Units, the
execution, delivery and performance of this Agreement by the Plains Parties or the
consummation of the transactions contemplated hereby (A) constitutes or will
constitute a violation of the Organizational Documents (other than the
Organizational Documents of the Canadian Subsidiaries) of any of the Partnership,
the General Partner, Plains AAP, GP LLC and the Domestic Subsidiaries, (B) conflicts
or will conflict with or constitutes or will constitute a breach or violation of, a
change of control or a default under (or an event which, with notice or lapse of
time or both, would constitute such an event), any agreement filed as an exhibit to
any document incorporated by reference into the Pricing Disclosure Package or the
Prospectus (including any amendment or supplement thereto) (other than the Second
Amended and Restated Credit Agreement [US/Canada Facilities] dated July 31, 2006 (as
amended, the “Revolving Agreement”) among the Partnership, PMC NS, PMC LP and Plains
Midstream Canada, as borrowers thereunder, Bank of America, N.A., as administrative
agent thereunder, Bank of America, N.A., acting through its Canada Branch, as
Canadian administrative agent thereunder, and various other agents thereunder and
lenders from time to time party thereto and/or the Restated Facility, as to which
such counsel need not express an opinion), (C) results or will result in any
violation of the Delaware LP Act, the Delaware LLC Act, the
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Delaware General Corporation Law (the “DGCL”), the laws of the State of Texas or
federal law, or (D) results or will result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of any of the Partnership,
the General Partner, Plains AAP, GP LLC, the Domestic Subsidiaries or the Joint
Venture, which conflicts, breaches, violations or defaults, in the case of clauses
(B), (C) or (D) would reasonably be expected to have a material adverse effect on
the financial condition, business or results of operations of the Plains Entities,
taken as a whole, it being understood that such counsel need not express any opinion
in clause (C) of this paragraph (xiii) with respect to any securities or other
anti-fraud law.
(xiv) No permit, consent, approval, authorization, order, registration, filing or
qualification of or with any federal, Delaware, or Texas court, governmental agency
or body having jurisdiction over the Partnership, the General Partner, Plains AAP,
GP LLC or the Subsidiaries or any of their respective properties is required for the
offering, issuance and sale by the Partnership of the Units, the execution, delivery
and performance of this Agreement or the consummation of the transactions
contemplated by this Agreement, except as may be required under state securities or
“Blue Sky” laws, as to which such counsel need not express any opinion.
(xv) The statements in the Registration Statement, the Pricing Disclosure Package
and the Prospectus under the captions “Description of Our Common Units,” “Cash
Distribution Policy” and “Description of Our Partnership Agreement,” insofar as they
constitute descriptions of agreements or refer to statements of law or legal
conclusions, are accurate in all material respects, and the Units, the Common Units
and the Incentive Distribution Rights conform in all material respects to the
descriptions thereof contained in the Registration Statement, the Pricing Disclosure
Package and the Prospectus.
(xvi) 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.
(xvii) The Registration Statement was declared effective under the Securities Act on
December 11, 2008; to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings for
that purpose have been instituted or threatened by the Commission; and any required
filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and
within the time period required by such Rule.
(xviii) The Registration Statement, the Pricing Disclosure Package and the
Prospectus (including any amendment or supplement thereto) (except for the financial
statements and the notes and the schedules thereto and the other financial
information included in the Registration Statement, the Pricing Disclosure Package
or the Prospectus, as to which such counsel need not express any opinion) comply as
to form in all material respects with the requirements of
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the Securities Act and the Exchange Act and the rules and regulations promulgated
thereunder.
(xx) None of the Plains Parties is an “investment company” as such term is defined
in the Investment Company Act.
(xxi) To the knowledge of such counsel, there are no agreements, contracts or other
documents to which any of the Partnership, the General Partner, Plains AAP, GP LLC
or the Subsidiaries is a party that are required to be described in the Registration
Statement, the Pricing Disclosure Package or the Prospectus or to be filed as
exhibits to the Registration Statement or to the Incorporated Documents that are not
described or filed as required.
In addition, such counsel shall state that they have participated in conferences with officers
and other representatives of the Plains Parties and the independent public accountants of the
Partnership and your representatives, at which the contents of the Registration Statement, the
Pricing Disclosure Package and the Prospectus and related matters were discussed, and although such
counsel has not independently verified, is not passing on, and is not assuming any responsibility
for the accuracy, completeness or fairness of the statements contained in, the Registration
Statement, the Pricing Disclosure Package and the Prospectus (except to the extent specified in the
foregoing opinion), on the basis of the foregoing, no facts have come to the attention of such
counsel that lead them to believe that:
(A) the Registration Statement, as of the most recent Effective Date, contained an untrue
statement of a material fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(B) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement
of a material fact or omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading; or
(C) that the Prospectus, as of its date and as of each applicable Delivery Date, contained or
contains an untrue statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading.
it being understood that such counsel need not express any statement or belief with respect to (i)
the financial statements and related schedules, including the notes and schedules thereto and the
auditor’s report thereon, included or incorporated by reference in the Registration Statement, the
Pricing Disclosure Package and the Prospectus or (ii) any other financial or statistical
information, included or incorporated by reference in the Registration Statement, the Pricing
Disclosure Package and the Prospectus.
In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon
certificates of officers and employees of the Plains Parties, to the extent they deem proper, and
upon information obtained from public officials, (B) assume that all documents submitted to them as
originals are authentic, that all copies submitted to them conform to the originals thereof, and
that the signatures on all documents examined by them are genuine, (C) state that their
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opinion is limited to federal laws, the Delaware LP Act, the Delaware LLC Act, the DGCL and
the laws of the State of Texas and (D) state that they express no opinion with respect to (i) any
permits to own or operate any real or personal property or (ii) state or local taxes or tax
statutes to which any of the limited partners of the Partnership or any of the Plains Entities may
be subject.
(d) You shall have received on each applicable Delivery Date, an opinion of Fulbright &
Xxxxxxxx L.L.P., special counsel for the Plains Parties, dated the applicable Delivery Date and
addressed to you, to the effect that none of the offering, issuance or sale by the Partnership of
the Units, the execution and delivery of this Agreement by the Plains Parties or the consummation
of the transactions contemplated hereby, result in a breach of, or constitutes a default under (or
an event which, with notice or lapse of time or both, would constitute such an event) the
provisions of any Credit Facility (as defined in Annex A to such opinion, which shall include the
Revolving Agreement, the Restated Facility and the Plains AAP Facility).
In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon
certificates of officers and employees of the Plains Parties, to the extent they deem proper, and
upon information obtained from public officials, (B) assume that all documents submitted to them as
originals are authentic, that all copies submitted to them conform to the originals thereof, and
that the signatures on all documents examined by them are genuine and (C) state that such opinions
are limited to the laws of the state of Texas, excepting therefrom municipal and local ordinances
and regulations.
In rendering such opinion, such counsel shall state that such opinion letter may be relied
upon only by the Underwriters and their counsel in connection with the transactions contemplated by
this Agreement and no other use or distribution of such opinion letter may be made without such
counsel’s prior written consent.
(e) You shall have received on each applicable Delivery Date an opinion of Xxx Xxxxx, general
counsel for GP LLC, dated the applicable Delivery Date and addressed to you, to the effect that:
(i) To the knowledge of such counsel, none of the Partnership, the General Partner,
Plains AAP, GP LLC or the Subsidiaries is in (A) breach or violation of the
provisions of its Organizational Documents or (B) default (and no event has occurred
which, with notice or lapse of time or both, would constitute such a default) or
violation in the performance of any obligation, agreement or condition contained in
any bond, debenture, note or any other evidence of indebtedness or in any agreement,
indenture, lease or other instrument to which it is a party or by which it or any of
its properties may be bound, which breach, default or violation, if continued, would
reasonably be expected to have a material adverse effect on the condition, business
or operations of the Plains Entities, taken as a whole, or would reasonably be
expected to materially impair the ability of any of the Plains Parties to perform
their obligations under this Agreement.
(ii) None of the offering, issuance and sale by the Partnership of the Units, the
execution, delivery and performance by the Plains Parties of this Agreement or the
consummation of the transactions contemplated hereby (A) constitutes or will
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constitute a breach or violation of, a change of control or a default (or an event
which, with notice or lapse of time or both, would constitute such an event) under
any bond, debenture, note or any other evidence of indebtedness, indenture or any
other material agreement or instrument known to such counsel to which any of the
Partnership, the General Partner, Plains AAP, GP LLC or the Subsidiaries is a party
or by which any one of them may be bound (other than any other agreement filed as an
exhibit to the Registration Statement (including any amendment thereto), as an
exhibit to any Incorporated Documents or any Credit Agreement (as defined in Annex A
to such opinion)) or (B) violates or will violate any statute, law or regulation or
any order, judgment, decree or injunction of any court or governmental agency or
body directed to any of the Partnership, the General Partner, Plains AAP, GP LLC or
the Subsidiaries or any of their properties in a proceeding to which any of them is
a party, which would, in the case of either (A) or (B), reasonably be expected to
have a material adverse effect on the condition, business or operations of the
Plains Entities, taken as a whole.
(iii) To the knowledge of such counsel, each of the Partnership, the General
Partner, Plains AAP, GP LLC and the Subsidiaries has such permits, consents,
licenses, franchises and authorizations (“permits”) issued by the appropriate
federal, state or local governmental or regulatory authorities as are necessary to
own or lease its properties and to conduct its business in the manner described in
the Pricing Disclosure Package and the Prospectus, subject to such qualifications as
may be set forth in the Pricing Disclosure Package and the Prospectus, and except
for such permits which, if not obtained, would not reasonably be expected to have,
individually or in the aggregate, a material adverse effect upon the operations
conducted by the Plains Entities, taken as a whole; and, to the knowledge of such
counsel, none of the Partnership, the General Partner, Plains AAP, GP LLC or the
Subsidiaries has received any notice of proceedings relating to the revocation or
modification of any such permits which, individually or in the aggregate, would
reasonably be expected to have a material adverse effect upon the operations
conducted by the Plains Entities, taken as a whole.
(iv) To the knowledge of such counsel, there is no legal or governmental proceeding
pending or threatened to which any of the Partnership, the General Partner, Plains
AAP, GP LLC or the Subsidiaries is a party or to which any of their respective
properties is subject that is required to be disclosed in the Pricing Disclosure
Package or the Prospectus and is not so disclosed.
In addition, such counsel shall state that he has participated in discussions with officers
and other representatives of the Plains Parties and the independent public accountants of the
Partnership and your representatives, at which the contents of the Registration Statement, the
Pricing Disclosure Package and the Prospectus and related matters were discussed, and although such
counsel has not independently verified, is not passing on, and is not assuming any responsibility
for the accuracy, completeness or fairness of the statements contained in, the Registration
Statement, the Pricing Disclosure Package and the Prospectus, on the basis of the foregoing, no
facts have come to the attention of such counsel that lead him to believe that:
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(A) the Registration Statement, as of the most recent Effective Date, contained an untrue
statement of a material fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(B) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement
of a material fact or omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading; or
(C) that the Prospectus, as of its date and as of each applicable Delivery Date, contained or
contains an untrue statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading.
it being understood that such counsel need not express any statement or belief with respect to (i)
the financial statements and related schedules, including the notes and schedules thereto and the
auditor’s report thereon, included or incorporated by reference in the Registration Statement, the
Pricing Disclosure Package and the Prospectus or (ii) any other financial or statistical
information included or incorporated by reference in the Registration Statement, the Pricing
Disclosure Package and the Prospectus.
In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon
certificates of officers and employees of the Plains Parties, to the extent they deem proper, and
upon information obtained from public officials, (B) assume that all documents submitted to him as
originals are authentic, that all copies submitted to him conform to the originals thereof, and
that the signatures on all documents examined by him are genuine, (C) state that such opinions are
limited to federal laws and the Delaware LP Act, the Delaware LLC Act and the DGCL and the laws of
the State of Texas and (D) state that he expresses no opinion with respect to state or local taxes
or tax statutes.
(f) You shall have received on each applicable Delivery Date, an opinion of Xxxxxxx Xxxxx LLP
with respect to the Province of Alberta, the Province of Nova Scotia and the federal laws of
Canada, dated the Closing Date and addressed to you, to the effect that:
(i) Each of the Canadian Subsidiaries has been duly formed and is validly existing
in good standing as a corporation, limited partnership or unlimited liability
company under the laws of its jurisdiction of formation with all necessary
partnership or corporate power and authority to own or lease its properties, as the
case may be, in all material respects as described in the Pricing Disclosure Package
and the Prospectus, and to conduct its business as currently conducted and as
proposed in the Pricing Disclosure Package and the Prospectus to be conducted. PMC
NS has all necessary corporate power and authority to act as general partner of PMC
LP in all material respects as described in the Pricing Disclosure Package and the
Prospectus. Each of the Canadian Subsidiaries is duly registered extra-provincially
for the transaction of business and is in good standing under the laws of the
jurisdictions set forth on Exhibit A to this Agreement.
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(ii) PMC NS is the sole general partner of PMC LP with a 0.01% interest in PMC LP;
such interest has been duly authorized and validly issued in accordance with the
agreement of limited partnership of PMC LP (as in effect on the date hereof and as
the same may be amended or restated prior to each applicable Delivery Date, the “PMC
LP Partnership Agreement”); and PMC NS owns such interest free and clear of all
liens, encumbrances, security interests, charges or claims in respect of which a
financing statement under the laws of the Provinces of Nova Scotia or Alberta naming
PMC NS as debtor is on file.
(iii) Plains Marketing is the sole limited partner of PMC LP with a 99.99% limited
partner interest in PMC LP; such limited partner interest has been duly authorized
and validly issued in accordance with the PMC LP Partnership Agreement and is fully
paid (to the extent required under the PMC LP Partnership Agreement) and
nonassessable (except as such nonassessability may be affected by matters described
in the PMC LP Partnership Agreement).
(iv) PMC LLC is the registered holder of 100% of the issued and outstanding capital
stock of PMC NS; such share capital has been duly authorized and validly issued in
accordance with the PMC NS Memorandum and Articles of Association, as fully paid and
nonassessable shares (except as such nonassessability may be affected by the laws of
the Province of Nova Scotia).
(v) Plains Midstream Canada is the registered holder of 100% of the issued and
outstanding capital stock of Aurora; such share capital has been duly authorized and
validly issued in accordance with the Aurora Memorandum and Articles of
Association, as fully paid and nonassessable shares (except as such nonassessability
may be affected by the laws of the Province of Alberta).
(vi) Plains Midstream LP is the registered holder of 100% of the issued and
outstanding capital stock of Plains Midstream Canada; such share capital has been
duly authorized and validly issued in accordance with the Plains Midstream Canada
Articles of Incorporation, as fully paid and nonassessable shares (except as such
nonassessability may be affected by the laws of the Province of Alberta).
(vii) No permit, consent, approval, authorization, order, registration, filing or
qualification of or with any court, governmental agency or body of the federal
government of Canada or the Province of Alberta is required for the offering,
issuance and sale by the Partnership of the Units.
(viii) The PMC LP Partnership Agreement has been duly authorized, executed and
delivered by PMC NS and is a valid and legally binding agreement of PMC NS and
Plains Marketing enforceable against each of them in accordance with its terms;
provided that, with respect to such agreement, the enforceability thereof
may be limited by (A) applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or similar laws from time to time in effect affecting
creditors’ rights and remedies generally and by general principles of equity
(regardless of whether such principles are considered in a proceeding in equity or
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at law) and (B) public policy, applicable law relating to fiduciary duties and
indemnification and an implied covenant of good faith and fair dealing.
(ix) None of the offering, issuance and sale by the Partnership of the Units, the
execution, delivery and performance of this Agreement by the Plains Parties or the
consummation of the transactions contemplated hereby constitutes or will constitute
a violation of the Organizational Documents of the Canadian Subsidiaries.
(x) To the knowledge of such counsel, each of the Canadian Subsidiaries has such
permits, consents, licenses, franchises and authorizations (“permits”) issued by the
appropriate federal or provincial or regulatory authorities as are necessary to own
or lease its properties and to conduct its business as currently conducted and as
proposed in the Pricing Disclosure Package and the Prospectus to be conducted,
subject to such qualifications as may be set forth in the Pricing Disclosure Package
and the Prospectus, and except for such permits, consents, licenses, franchises and
authorizations which, if not obtained would not reasonably be expected to have,
individually or in the aggregate, a material adverse effect upon the operations
conducted by the Canadian Subsidiaries, taken as a whole.
In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon
certificates of officers and employees of the Plains Parties, to the extent they deem proper, and
upon information obtained from public officials, (B) assume that all documents submitted to them as
originals are authentic, that all copies submitted to them conform to the originals thereof, and
that the signatures on all documents examined by them are genuine, (C) state that such opinions are
limited to federal laws of Canada and the laws of the Provinces of Alberta and Nova Scotia,
excepting therefrom municipal and local ordinances and regulations and (D) state that they express
no 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 Plains Parties may be subject.
In rendering such opinion, such counsel shall state that (A) Xxxxxx & Xxxxxx L.L.P. is thereby
authorized to rely upon such opinion letter in connection with the transactions contemplated by
this Agreement as if such opinion letter were addressed and delivered to them on the date thereof
and (B) subject to the foregoing, such opinion letter may be relied upon only by the Underwriters
and their counsel in connection with the transactions contemplated by this Agreement and no other
use or distribution of such opinion letter may be made without such counsel’s prior written
consent.
(g) You shall have received on each applicable Delivery Date an opinion of Xxxxx Xxxxx L.L.P.,
counsel for the Underwriters, dated the applicable Delivery Date and addressed to you, with respect
to the issuance and sale of the Units, the Registration Statement, the Pricing Disclosure Package
and the Prospectus (together with any supplement or amendment thereto) and other related matters
the Underwriters may reasonably require.
(h) You shall have received letters addressed to you, and dated the date hereof and each
applicable Delivery Date from PricewaterhouseCoopers LLP, independent public
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accountants, substantially in the forms heretofore approved by you and agreed to by
PricewaterhouseCoopers LLP.
(i) (A) No stop order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted or taken or, to the
knowledge of the Plains Parties, shall be threatened by the Commission at or prior to each
applicable Delivery Date; (B) there shall not have been any material change in the partners’
capital or stockholder’s or members’ equity of the Plains Entities, taken as a whole, or the
General Partner, Plains AAP or GP LLC, as the case may be, nor any material increase in the
short-term or the long-term debt of the Plains Entities, taken as a whole (other than in the
ordinary course of business) from that set forth or contemplated in the Registration Statement, the
Pricing Disclosure Package or the Prospectus (or any amendment or supplement thereto); (C) there
shall not have been, since the respective dates as of which information is given in the
Registration Statement, the Pricing Disclosure Package and the Prospectus (or any amendment or
supplement thereto), except as may otherwise be stated in the Registration Statement, the Pricing
Disclosure Package and the Prospectus (or any amendment or supplement thereto), any material
adverse change in or affecting the condition (financial or other), business, prospects, properties,
net worth or results of operations of the Plains Entities, taken as a whole; (D) the Plains
Entities shall not have any liabilities or obligations, direct or contingent (whether or not in the
ordinary course of business), that are material to the Plains Entities taken as a whole other than
those reflected in the Registration Statement, the Pricing Disclosure Package or the Prospectus (or
any amendment or supplement thereto); and (E) all the representations and warranties of the Plains
Parties contained in this Agreement shall be true and correct on and as of the date hereof and on
and as of each applicable Delivery Date as if made on and as of each such Delivery Date.
(j) The Plains Parties shall not have failed at or prior to each applicable Delivery Date to
have performed or complied in all material respects with any of their agreements herein contained
and required to be performed or complied with by them hereunder at or prior to each such Delivery
Date.
(k) The NYSE shall have approved the Units for listing, subject only to official notice of
issuance and evidence of satisfactory distribution.
(l) The Plains Parties shall have furnished or caused to be furnished to you such further
certificates and documents as you shall have reasonably requested.
(m) There shall have been furnished to you at each applicable Delivery Date a certificate
reasonably satisfactory to you, signed on behalf of the Partnership by the President or any Vice
President and the Chief Financial Officer of GP LLC to the effect that: (A) the representations
and warranties of each of the Partnership, the General Partner, Plains AAP and GP LLC contained in
this Agreement are true and correct at and as of such Delivery Date as though made at and as of
such Delivery Date; (B) each of the Partnership, the General Partner, Plains AAP and GP LLC has in
all material respects performed all obligations required to be performed by it pursuant to the
terms of this Agreement at or prior to such Delivery Date; (C) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceeding for that purpose has
been instituted or taken or, to the knowledge of the Plains Parties, threatened by the Commission,
and all requests for additional information on the part of the Commission have been complied with
or otherwise satisfied; (D) no event contemplated by
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paragraph (i) of this Section 7 in respect of the Partnership, the General Partner, Plains
AAP, GP LLC, the Subsidiaries or the Joint Venture shall have occurred; (E) there has been no
document required to be filed under the Exchange Act that upon such filing would be deemed to be
incorporated by reference into the Prospectus that has not been so filed; and (F) since the date of
the most recent financial statements included or incorporated by reference in the Pricing
Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there has
been no material adverse change in the condition (financial or otherwise), business, prospects,
properties, net worth or results of operations of the Plains Entities, taken as a whole, whether or
not arising from transactions in the ordinary course of business, except as set forth in or
contemplated by the Pricing Disclosure Package and the Prospectus (exclusive of any amendment or
supplement thereto).
(n) There shall have been furnished to you at each applicable Delivery Date a certificate
reasonably satisfactory to you, signed on behalf of GP Inc. by the President or any Vice President
and the Chief Financial Officer of GP Inc. to the effect that: (A) the representations and
warranties of each of GP Inc., Plains Marketing and Plains Pipeline contained in this Agreement are
true and correct at and as of such Delivery Date as though made at and as of such Delivery Date;
and (B) each of GP Inc., Plains Marketing and Plains Pipeline has in all material respects
performed all obligations and satisfied all conditions required to be performed or satisfied by it
pursuant to the terms of this Agreement at or prior to such Delivery Date.
(o) There shall have been furnished to you at each applicable Delivery Date a certificate
reasonably satisfactory to you, signed on behalf of Pacific Energy Group by the President or any
Vice President and the Chief Financial Officer of Pacific Energy Group to the effect that: (A) the
representations and warranties of Pacific Energy Group contained in this Agreement are true and
correct at and as of such Delivery Date as though made at and as of such Delivery Date; and (B)
Pacific Energy Group has in all material respects performed all obligations and satisfied all
conditions precedent required to be performed or satisfied by it pursuant to the terms of this
Agreement at or prior to such Delivery Date.
(p) On or prior to the date hereof, the Partnership shall have furnished to you a letter
substantially in the form of Exhibit B hereto from Vulcan Energy Corporation (or its
successor) and from each officer (as defined in Rule 16a-1(f) of the rules and regulations under
the Exchange Act) and each director of GP LLC.
All such opinions, certificates, letters and other documents referred to in this Section 7
will be in compliance with the provisions hereof only if they are reasonably satisfactory in form
and substance to you and your counsel. The Partnership shall furnish to the Underwriters conformed
copies of such opinions, certificates, letters and other documents in such number as they shall
reasonably request.
The several obligations of the Underwriters to purchase Option Units hereunder are subject to
the satisfaction on and as of any Option Units Delivery Date of the conditions set forth in this
Section 7, except that, if any Option Units Delivery Date is other than the Initial Delivery Date,
(i) the certificates, opinions and letters referred to in paragraphs (c) through (h) and (l)
through (n) shall be dated the Option Units Delivery Date in question, (ii) the opinions called for
by paragraphs (c), (d), (e), (f) and (g), as applicable, shall be revised to reflect the sale
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of Option Units and (iii) any references in Section 7 to the Initial Delivery Date shall be
deemed to be such Option Units Delivery Date.
8. Expenses. The Partnership agrees to pay the following costs and expenses and all
other costs and expenses incident to the performance by it of its obligations hereunder: (i) the
preparation, printing or reproduction, and filing with the Commission of the Registration Statement
(including financial statements and exhibits thereto), any Preliminary Prospectus, the Prospectus,
and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting and packaging) of such copies of
the Registration Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus, the
Prospectus, the Incorporated Documents and all amendments or supplements to any of them as may be
reasonably requested for use in connection with the offering and sale of the Units; (iii) the
preparation, printing, authentication, issuance and delivery of certificates for the Units,
including any stamp taxes in connection with the original issuance and sale of the Units; (iv) the
printing (or reproduction) and delivery of this Agreement, the preliminary and supplemental Blue
Sky Memoranda, and all other agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Units; (v) the registration of the Common Units under the
Exchange Act and the listing of the Units on the NYSE; (vi) the registration or qualification of
the Units for offer and sale under the securities or Blue Sky laws of the several states as
provided in Section 5(f) hereof (including the reasonable fees, expenses and disbursements of
counsel for the Underwriters relating to the preparation, printing or reproduction, and delivery of
the preliminary and supplemental Blue Sky Memoranda and such registration and qualification); (vii)
any filing fees in connection with any filings required to be made with the Financial Industry
Regulatory Authority; (viii) the transportation and other expenses incurred by or on behalf of
officers and employees of GP LLC or the Partnership in connection with presentations to prospective
purchasers of the Units; and (ix) the fees and expenses of the Partnership’s accountants and the
fees and expenses of counsel (including local and special counsel) for the Partnership.
It is understood, however, that except as otherwise provided in this Section 8 or Section 5(i)
hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their
counsel, transfer taxes on any resale of the Units by any Underwriter, any advertising expenses
connected with any offers they may make and the transportation and other expenses incurred by the
Underwriters on their own behalf in connection with presentations to prospective purchasers of the
Units.
9. Default by an Underwriter. If any one or more of the Underwriters shall fail or
refuse to purchase Units that it or they are obligated to purchase hereunder on the Initial
Delivery Date, and the aggregate number of Units that such defaulting Underwriter or Underwriters
are obligated but fail or refuse to purchase is not more than one-tenth of the aggregate number of
the Units that the Underwriters are obligated to purchase on the Initial Delivery Date, each
non-defaulting Underwriter shall be obligated, severally, in the proportion that the number of Firm
Units set forth opposite its name in Schedule I hereto bears to the aggregate number of Firm Units
set forth opposite the names of all non-defaulting Underwriters or in such other proportion as you
may specify in accordance with the Agreement Among Underwriters of UBS Securities LLC to purchase
the Units that such defaulting Underwriter or Underwriters are obligated, but fail or refuse, to
purchase. If any one or more of the Underwriters shall fail or refuse to purchase Units that it or
they are obligated to purchase on the
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Initial Delivery Date and the aggregate number of Units with respect to which such default
occurs is more than one-tenth of the aggregate number of Units that the Underwriters are obligated
to purchase on the Initial Delivery Date and arrangements satisfactory to you and the Partnership
for the purchase of such Units by one or more non-defaulting Underwriters or other party or parties
approved by you and the Partnership are not made within five business days after such default, this
Agreement will terminate without liability on the part of any party hereto (other than the
defaulting Underwriter). In any such case that does not result in termination of this Agreement,
either you or the Partnership shall have the right to postpone the Initial Delivery Date, but in no
event for longer than seven days, in order that the required changes, if any, in the Registration
Statement and the Prospectus or any other documents or arrangements may be effected. If any one or
more of the Underwriters shall fail or refuse to purchase Option Units that it or they are
obligated to purchase hereunder on the Option Units Delivery Date, each non-defaulting Underwriter
shall be obligated, severally, in the proportion that the number of Firm Units set forth opposite
its name in Schedule I hereto bears to the aggregate number of Firm Units set forth opposite the
names of all non-defaulting Underwriters or in such other proportion as you may specify in
accordance with the Agreement Among Underwriters of UBS Securities LLC, to purchase the Option
Units that such defaulting Underwriter or Underwriters are obligated, but fail or refuse, to
purchase. Any action taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any such default of any such Underwriter under this Agreement. The term
“Underwriter” as used in this Agreement includes, for all purposes of this Agreement, any party not
listed in Schedule I hereto who, with your approval and the approval of the Partnership, purchases
Units that a defaulting Underwriter is obligated, but fails or refuses, to purchase.
Any notice under this Section 9 may be given by telegram, telecopy or telephone but shall be
subsequently confirmed by letter.
10. Termination of Agreement. This Agreement shall be subject to termination in your
absolute discretion, without liability on the part of any Underwriter to any Plains Party, by
notice to the Partnership, if prior to the Initial Delivery Date or any Option Units Delivery Date
(if different from the Initial Delivery Date and then only as to the Option Units), as the case may
be, (i) trading in the Common Units shall have been suspended by the Commission or the NYSE or
trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the
Nasdaq National Market shall have been suspended or limited or minimum prices shall have been
established, (ii) a banking moratorium shall have been declared either by federal or New York or
Texas state authorities or a material disruption in commercial banking or securities settlement or
clearance services in the United States shall have occurred, or (iii) there shall have occurred any
outbreak or escalation of hostilities, declaration by the United States of a national emergency or
war, or other calamity or crisis or any change in financial, political or economic conditions in
the United States or elsewhere, the effect of which on financial markets is such as to make it, in
the sole judgment of the Underwriters, impractical or inadvisable to proceed with the offering or
delivery of the Units as contemplated by the Prospectus (exclusive of any supplement thereto).
Notice of such termination may be given to the Partnership by telegram, telecopy or telephone and
shall be subsequently confirmed by letter.
11. Notice; Successors. Except as otherwise provided in Sections 5, 9 and 10 hereof,
all communications hereunder will be in writing and effective only on receipt, and, if sent to the
Underwriters, will be mailed, delivered or telefaxed to UBS Securities LLC, 000 Xxxx
-00-
Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention: Syndicate Department; Citigroup Global Markets
Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel; Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, 4 World Financial Center, 000 Xxxxx Xx., Xxx Xxxx, Xxx Xxxx,
00000, Attention: Equity Syndicate; X.X. Xxxxxx Securities Inc.,
000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Equity Syndicate; Wachovia Capital Markets, LLC, 000 Xxxx Xxx., 0xx
Xxxxx., Xxx Xxxx, Xxx Xxxx, 00000, Attention: Equity Syndicate; or, if sent to any of the Plains
Parties, will be mailed, delivered or telefaxed to (000) 000-0000 and confirmed to it at 000 Xxxx
Xx., Xxxxx 0000, Xxxxxxx, Xxxxx 00000, Attention: Xxx Xxxxx.
12. Information Furnished by the Underwriters. The statements set forth in the first,
third, eighth, ninth, twelfth and thirteenth paragraphs under the caption “Underwriting” in the
Preliminary Prospectus and the Prospectus constitute the only information furnished by or on behalf
of the Underwriters through you as such information is referred to in Sections 1(c), 1(d), 1(f),
5(q), 6(a) and 6(c) hereof.
This Agreement has been and is made solely for the benefit of the several Underwriters, the
Plains Parties, their directors and officers, and the other controlling persons referred to in
Section 6 hereof and their respective successors and assigns, to the extent provided herein, and no
other person shall acquire or have any right under or by virtue of this Agreement. Neither the
term “successor” nor the term “successors and assigns” as used in this Agreement shall include a
purchaser from any Underwriter of any of the Units in his status as such purchaser.
13. Research Analyst Independence. The Plains Parties acknowledge that 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 that such Underwriters’ research analysts may hold views and make statements or
investment recommendations and/or publish research reports with respect to the Partnership and/or
the offering that differ from the views of their respective investment banking divisions. The
Plains Parties hereby waive and release, to the fullest extent permitted by law, any claims that
the Plains 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
the Plains Parties by such Underwriters’ investment banking divisions. The Plains 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 may be the subject of the transactions contemplated by this Agreement.
14. No Fiduciary Duty. The Plains 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: (i) no fiduciary or agency relationship between the Plains Parties and any other
person, on the one hand, and the Underwriters, on the other hand, exists; (ii) the Underwriters are
not acting as advisors, expert or otherwise, to any of the Plains Parties, including, without
limitation, with respect to the determination of the public offering
-40-
price of the Units, and such relationship between the Plains Parties, on the one hand, and the
Underwriters, on the other, is entirely and solely commercial, based on arms-length negotiations;
(iii) any duties and obligations that the Underwriters may have to the Plains Parties shall be
limited to those duties and obligations specifically stated herein; and (iv) the Underwriters and
their respective affiliates may have interests that differ from those of the Plains Parties. The
Plains Parties hereby waive any claims that they may have against the Underwriters with respect to
any breach of fiduciary duty in connection with this offering.
15. Applicable Law; Counterparts. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts made and to be
performed within the State of New York.
This Agreement may be signed in various counterparts which together constitute one and the
same instrument. If signed in counterparts, this Agreement shall not become effective unless at
least one counterpart hereof shall have been executed and delivered on behalf of each party hereto.
-41-
Please confirm that the foregoing correctly sets forth the agreement among the Plains Parties
and the Underwriters.
| Very truly yours, PLAINS ALL AMERICAN PIPELINE, L.P. By: PAA GP LLC, its General Partner By: PLAINS AAP, L.P. its Sole Member By: PLAINS ALL AMERICAN GP LLC its General Partner |
||||
| By: | /s/ Xxxx X. Xxxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxxx | |||
| Title: | Chief Executive Officer | |||
| PAA GP LLC By: Plains AAP, L.P. its Sole Member By: PLAINS ALL AMERICAN GP LLC its General Partner |
||||
| By: | /s/ Xxxx X. Xxxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxxx | |||
| Title: | Chief Executive Officer | |||
| PLAINS AAP, L.P. By: PLAINS ALL AMERICAN GP LLC its General Partner |
||||
| By: | /s/ Xxxx X. Xxxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxxx | |||
| Title: | Chief Executive Officer | |||
Signature Page to Underwriting Agreement
| PLAINS ALL AMERICAN GP LLC |
||||
| By: | /s/ Xxxx X. Xxxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxxx | |||
| Title: | Chief Executive Officer | |||
| PLAINS MARKETING GP INC. |
||||
| By: | /s/ Xxxx X. Xxxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxxx | |||
| Title: | Chief Executive Officer | |||
| PLAINS MARKETING, L.P. By: PLAINS MARKETING GP INC. its General Partner |
||||
| By: | /s/ Xxxx X. Xxxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxxx | |||
| Title: | Chief Executive Officer | |||
| PLAINS PIPELINE, L.P. By: PLAINS MARKETING GP INC. its General Partner |
||||
| By: | /s/ Xxxx X. Xxxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxxx | |||
| Title: | Chief Executive Officer | |||
| PACIFIC ENERGY GROUP LLC |
||||
| By: | /s/ Xxxx X. Xxxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxxx | |||
| Title: | Chief Executive Officer | |||
Signature Page to Underwriting Agreement
The foregoing Agreement is hereby confirmed and accepted as of the date first above written.
UBS Securities LLC
Citigroup Global Markets Inc.
Citigroup Global Markets Inc.
X.X. Xxxxxx Securities, Inc.
Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Wachovia Capital Markets, LLC
RBC Capital Markets Corporation
RBC Capital Markets Corporation
| By: UBS SECURITIES LLC |
||||
| By: | /s/ Xxxx Xxxxxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxxxxx | |||
| Title: | Director | |||
| By: | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Associate Director | |||
| By: CITIGROUP GLOBAL MARKETS INC. |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Managing Director | |||
| By: X.X. XXXXXX SECURITIES INC. |
||||
| By: | /s/ Xxx Xxxxxxx - Xxxxx | |||
| Name: | Xxx Xxxxxxx - Xxxxx | |||
| Title: | Executive Director | |||
| By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Director | |||
| By: WACHOVIA CAPITAL MARKETS, LLC |
||||
| By: | /s/ Xxxx Xxxxx | |||
| Name: | Xxxx Xxxxx | |||
| Title: | Managing Director, Wachovia Capital Markets, LLC | |||
Signature Page to Underwriting Agreement
SCHEDULE I
Plains All American Pipeline, L.P.
| Number of Firm Units | ||||
| Underwriter | to be Purchased | |||
UBS Securities LLC |
925,000 | |||
Citigroup Global Markets Inc. |
925,000 | |||
X.X. Xxxxxx Securities Inc. |
925,000 | |||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated |
925,000 | |||
Wachovia Capital Markets, LLC |
925,000 | |||
RBC Capital Markets Corporation |
375,000 | |||
Total |
5,000,000 | |||
Schedule I to Underwriting Agreement
SCHEDULE II
Additional Pricing Disclosure Package
| Pricing Information: | ||
Number of Units:
|
5,000,000 Firm Units or, if the Underwriters exercise in full their option to purchase additional Units granted in Section 2 hereof, 5,750,000 Units | |
Public offering price for the Units: |
$36.90 per unit |
Schedule II to Underwriting Agreement
1
EXHIBIT A
Entity
|
Jurisdiction in which registered or qualified | |
Plains All American Pipeline, L.P.
|
Texas | |
PAA GP LLC
|
None | |
Plains AAP, L.P.
|
Texas | |
Plains All American GP LLC
|
California, Illinois, Louisiana, Oklahoma, Texas | |
Plains Marketing GP Inc.
|
California, Illinois, Louisiana, Oklahoma, Texas | |
Plains Marketing, L.P.
|
California, Illinois, Louisiana, Oklahoma | |
Plains Pipeline, L.P.
|
California, Illinois, Louisiana, Oklahoma | |
Pacific Energy Group LLC
|
California | |
PAA Finance Corp.
|
None | |
Pacific LA Marine Terminal LLC
|
None | |
Rocky Mountain Pipeline System LLC
|
None | |
Plains Products Terminals LLC
|
California | |
Plains Towing LLC
|
None | |
Plains Marketing Canada LLC
|
None | |
Plains LPG Services GP LLC
|
Illinois, Texas | |
PICSCO LLC
|
Louisiana, Texas | |
Plains LPG Services, L.P.
|
California, Illinois, Oklahoma, Texas | |
Plains Midstream GP LLC
|
None | |
Plains Midstream, L.P.
|
None | |
Lone Star Trucking, LLC
|
None | |
Rancho LPG Holdings LLC
|
California, Texas | |
Aurora Pipeline Company Ltd.
|
Alberta | |
Plains Midstream Canada ULC
|
Alberta | |
Plains Marketing Canada, L.P.
|
Alberta, Saskatchewan, California, Louisiana, Oklahoma, Texas | |
PMC (Nova Scotia) Company
|
Alberta, Saskatchewan | |
PAA/Vulcan Gas Storage, LLC
|
Texas |
A-1
EXHIBIT B
[Date]
Plains All American Pipeline, L.P.
Public Offering of Common Units
Public Offering of Common Units
UBS Securities LLC
Citigroup Global Markets Inc.
X.X. Xxxxxx Securities Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Citigroup Global Markets Inc.
X.X. Xxxxxx Securities Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Wachovia
Capital Markets, LLC
As Representatives of the several Underwriters
As Representatives of the several Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed Underwriting Agreement
(the “Underwriting Agreement”) among Plains All American Pipeline, L.P., a Delaware limited
partnership (the “Partnership”), PAA GP LLC, Plains AAP, L.P., Plains All American GP LLC, Plains
Marketing GP Inc., Plains Marketing, L.P., Plains Pipeline, L.P., Pacific Energy Group LLC, UBS
Securities LLC, Citigroup Global Markets Inc., X.X. Xxxxxx Securities Inc., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, Wachovia Capital Markets, LLC and any other party thereto named
therein as an underwriter relating to an underwritten public offering of common units representing
limited partner interests of the Partnership.
To induce you and the other underwriters to enter into the Underwriting Agreement, the
undersigned agrees that, except for transfers of Common Units (as defined in the Underwriting
Agreement) in connection with (i) the exercise, termination or other disposition of options (or
common units underlying such options) under the Plains All American 2001 Performance Option Plan
(the “Option Plan”) and (ii) sales to pay tax liabilities associated with the vesting of Restricted
Unit or Phantom Unit awards under the Plains All American GP LLC 1998 or 2005 Long-Term Incentive
Plans or with the exercise of options under the Option Plan, the undersigned will not offer, sell,
contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by the undersigned or any
affiliate of the undersigned or any person in privity with the undersigned or any affiliate of the
undersigned, directly or indirectly, including the filing (or participation in the
filing) of a registration statement with the Securities and Exchange Commission in respect of, or
establish or increase a put equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Securities and Exchange Commission promulgated thereunder with respect to,
any Common Units or any securities that are convertible into, or exercisable or exchangeable for,
or that represent the right to receive, Common Units or any securities that are senior to
B-1
or pari passu with Common Units, or publicly announce an intention to effect any such
transaction, for a period of 45 days after the date of the Prospectus (as defined in the
Underwriting Agreement) (the “Lock-Up Period”) without your prior written consent.
If for any reason the Underwriting Agreement is terminated before the applicable Delivery Date
(as defined in the Underwriting Agreement), the agreement set forth above shall likewise be
terminated.
| Yours very truly, |
||||
| [Signature of officer, director or common Unitholder] |
||||
| [Name and address of officer, director or common | ||||
| Xxxxxxxxxx] | ||||
X-0
