EXHIBIT 1.3
XXXXXX XXXXXX ENERGY PARTNERS, L.P.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
January 31, 2003
Xxxxxx Xxxxxx Energy Partners, L.P., a Delaware limited partnership (the
"Partnership"), proposes to issue and sell from time to time certain of its
securities, including its senior debt securities and subordinated debt
securities ("Debt Securities") and its common units ("Equity Securities")
registered under the Securities Act of 1933, as amended (the "Securities Act"),
as set forth in Section 3. The Debt Securities are to be issued under either a
senior indenture or subordinated indenture, respectively, each dated as of
January 31, 2003, as supplemented and amended (each an "Indenture"), between the
Partnership and Wachovia Bank, National Association, as Trustee (the "Trustee").
From time to time, the Partnership may enter into one or more underwriting
agreements that provide for the sale of certain of the Debt Securities or Equity
Securities to the underwriter or several underwriters named therein (the
"Underwriters"). The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions hereof incorporated therein by
reference, is herein referred to as this "Agreement."
1. Sale and Purchase of the Securities. On the basis of the
representations, warranties and agreements herein contained, the Partnership
proposes to issue and sell (i) the Debt Securities in one or more series, which
series may vary as to their terms (including, but not limited to, interest rate,
maturity, any redemption provisions and any sinking fund requirements), all of
such terms for any particular series being determined at the time of sale, or
(ii) Equity Securities. All or a portion of a particular series of the Debt
Securities or the Equity Securities will be purchased by the Underwriters for
resale upon terms of offering determined at the time of sale. The securities so
to be purchased in any such offering are hereinafter referred to as the
"Purchased Securities," and any firm or firms acting as representatives of such
Underwriters are hereinafter referred to as the "Representatives." If with
respect to the Purchased Securities such Representatives are acting on behalf of
the Underwriters, references herein to the Underwriters (or a majority in
interest thereof) or the Representatives in the alternative shall be deemed to
refer only to the Representatives. The term "Underwriters' Securities" means
Debt Securities which are Purchased Securities other than Contract Securities.
The term "Contract Securities" means Debt Securities which are Purchased
Securities, if any, to be purchased pursuant to delayed delivery contracts
referred to below.
If this Agreement provides for sales of Debt Securities pursuant to
delayed delivery contracts, the Partnership hereby authorizes the Underwriters
to solicit offers to purchase Contract Securities on the terms and subject to
the conditions set forth in the Prospectus (as hereinafter defined) pursuant to
delayed delivery contracts substantially in the form of Schedule I attached
hereto (the "Delayed Delivery Contracts") but with such changes therein as the
Partnership may authorize or approve. Delayed Delivery Contracts are to be with
institutional investors approved by the Partnership and of the types set forth
in the Prospectus. On the Closing Date (as hereinafter defined), the Partnership
will pay the Underwriters in immediately available funds the fee set forth in
the Underwriting Agreement in respect of the principal amount of Contract
Securities. The Underwriters will not have any responsibility in respect of the
validity or the performance of any Delayed Delivery Contracts.
If the Partnership executes and delivers Delayed Delivery Contracts with
institutional investors, the Contract Securities shall be deducted from the Debt
Securities to be purchased by the several Underwriters and the aggregate
principal amount of Debt Securities to be purchased by each Underwriter shall be
reduced pro rata in proportion to the principal amount of Debt Securities set
forth opposite each Underwriter's name in the Underwriting Agreement, except to
the extent that the Representatives, if any, determine that such reduction shall
be otherwise and so advise the Partnership.
The obligations of the Underwriters under this Agreement are several and
not joint.
2. Payment and Delivery. The closing of the purchase and sale of the
Purchased Securities or, if this Agreement provides for sales of Debt Securities
pursuant to Delayed Delivery Contracts, the Underwriters' Securities, shall take
place at the offices of counsel for the Partnership, on the date or dates and at
the time or times specified in this Agreement, each of which date and time may
be postponed for not more than ten business days by agreement between a majority
in interest of the Underwriters or the Representatives and the Partnership (each
such date and time of delivery and payment for the Purchased Securities or, if
this Agreement provides for sales of Debt Securities pursuant to Delayed
Delivery Contracts, the Underwriters' Securities, is hereinafter referred to as
the "Closing Date"), except that physical delivery of the Purchased Securities
may be made by or on behalf of the Partnership through the offices of The
Depository Trust Company or the Trustee, if the Purchased Securities are Debt
Securities, or through the offices of The Depository Trust Company or any
transfer agent if the Purchased Securities are Equity Securities. Delivery by
the Partnership of the Purchased Securities or, if this Agreement provides for
sales of Debt Securities pursuant to Delayed Delivery Contracts, the
Underwriters' Securities, shall be made against payment by or on behalf of the
Underwriters or the Representatives of the purchase price therefor by wire
transfer of immediately available funds to a bank account designated by the
Partnership.
Unless otherwise specified by the Underwriters or the Representatives, the
Purchased Securities or, if this Agreement provides for sales of Debt Securities
pursuant to Delayed Delivery Contracts, the Underwriters' Securities, shall be
registered in the name of Cede & Co. If the Underwriters or Representatives in
fact choose to specify otherwise, the Purchased Securities or, if this Agreement
provides for sales of Debt Securities pursuant to Delayed Delivery Contracts,
the Underwriters' Securities, shall be registered in such names and shall be in
such denominations as the Underwriters or the Representatives shall request at
least one full business day prior to the Closing Date and, if requested, shall
be made available to the Underwriters or Representatives for checking and
packaging at least one full business day prior to the Closing Date. Unless
otherwise specified by the Underwriters or the Representatives, Debt Securities
shall be in definitive global form without coupons.
-2-
3. Registration Statement and Prospectus; Public Offering. The Partnership
has filed with the Securities and Exchange Commission (the "Commission"),
pursuant to the Securities Act and the rules and regulations adopted by the
Commission thereunder (the "Rules"), a registration statement or statements on
Form S-3, including a prospectus, relating to the Debt Securities and the Equity
Securities, and such registration statement has or such registration statements
have become effective. Such registration statement or statements referred to in
the first paragraph of the Underwriting Agreement, including financial
statements, exhibits and Incorporated Documents (as hereinafter defined), as
amended to the date of this Agreement, is or are hereinafter referred to as the
"Registration Statement," and the prospectus or prospectuses included in the
Registration Statement or deemed, pursuant to Rule 429 under the Securities Act,
to relate to the Registration Statement, as proposed to be supplemented by a
prospectus supplement (including any preliminary prospectus supplement) relating
to any Purchased Securities to be filed pursuant to Rule 424 under the
Securities Act, is or are hereinafter referred to as the "Prospectus." Any
reference herein to the Registration Statement or Prospectus shall be deemed to
include all documents incorporated, or deemed to be incorporated, therein by
reference pursuant to the requirements of Item 12 of Form S-3 under the
Securities Act (the "Incorporated Documents"). For purposes of this Agreement,
all references to the Registration Statement, any preliminary prospectus, the
Prospectus or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system (XXXXX), which XXXXX copy is
substantially identical to the other copies of such material, except to the
extent permitted by Regulation S-T.
The Partnership understands, and if this Agreement provides for sales by
one or more Selling Unitholders, each Selling Unitholder understands, that the
Underwriters propose to make a public offering of their respective portions of
the Purchased Securities, as set forth in and pursuant to the Prospectus
relating thereto.
4. Representations and Warranties.
(a) The Partnership represents and warrants to each Underwriter
that:
(i) The Partnership has reasonable grounds to believe that it
meets the requirements for the use of Form S-3 under the Securities
Act;
(ii) The Registration Statement, at the time it became
effective, and the prospectus contained therein, complied, and on
the date of the Underwriting Agreement and the Closing Date and when
any post-effective amendment to the Registration Statement becomes
effective or any supplement to such prospectus is filed with the
Commission, the Registration Statement, the Prospectus and any such
amendment or supplement, respectively, will comply, in all
-3-
material respects with the applicable requirements of the Securities
Act and the Rules; the Incorporated Documents, when they were or are
filed with the Commission, conformed or will conform as of their
respective dates in all material respects with the applicable
requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the applicable rules and regulations adopted by
the Commission thereunder; the Indenture complied and will comply in
all material respects with the requirements of the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"); and each part
of the Registration Statement and any amendment thereto, at the time
it became effective, and the Prospectus and any amendment or
supplement thereto, at the time it was filed with the Commission
pursuant to Rule 424 under the Securities Act, when such part became
effective, did not and will not contain an untrue statement of a
material fact or omit to a state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, except that this representation and warranty does not
apply to (i) statements or omissions in the Registration Statement
or Prospectus (or in amendments or supplements thereto) made in
reliance upon information furnished in writing to the Partnership by
any Underwriter or the Representatives on behalf of any Underwriter
or by any Selling Unitholder expressly for use therein, or (ii) that
part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification of the Trustee, under the
Trust Indenture Act on Form T-1, except statements or omissions in
such Statement made in reliance upon information furnished in
writing to the Trustee on behalf of the Partnership for use therein;
(iii) The consolidated financial statements included in the
Registration Statement and Prospectus present fairly the financial
position of the Partnership and its consolidated subsidiaries as of
the dates shown and their results of operations, partners' capital
and cash flows for the periods shown, and, except as otherwise
disclosed in the Prospectus, such financial statements have been
prepared in conformity with the generally accepted accounting
principles in the United States applied on a consistent basis; any
schedules included in the Registration Statement present fairly the
information required to be stated therein; and if pro forma
financial statements are included in the Registration Statement and
Prospectus, the assumptions used in preparing the pro forma
financial statements included in the Registration Statement and the
Prospectus provide a reasonable basis for presenting the significant
effects directly attributable to the transactions or events
described therein, the related pro forma adjustments give
appropriate effect to those assumptions, and the pro forma columns
therein reflect the proper application of those adjustments to the
corresponding historical financial statement amounts;
(iv) The Partnership is a limited partnership duly formed,
validly existing and in good standing under the laws of the State of
Delaware, with all necessary partnership power and authority to own
its properties and conduct its business as described in the
Prospectus and has been duly qualified as a foreign limited
partnership for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, except where the failure to be so qualified would not
individually or in the aggregate have a material adverse effect on
the consolidated financial condition, results of operations or
business of the Partnership and its subsidiaries, taken as a whole
(a "Material Adverse Effect");
-4-
(v) All of the outstanding shares of capital stock, limited
partner interests, general partner interests, or limited liability
company interests, as applicable, of each of the Partnership's
significant subsidiaries, as defined in the rules and regulations of
the Commission under the Securities Act and Exchange Act (the
"Significant Subsidiaries"), have been duly and validly authorized
and issued and are fully paid and (except (A) as required to the
contrary by the Delaware Limited Liability Company Act (the
"Delaware LLC Act") and the Delaware Revised Uniform Limited
Partnership Act (the "Delaware LP Act") and (B) with respect to any
general partner interests) non-assessable, and are (unless otherwise
stated on a Schedule to this Agreement) owned by the Partnership
directly or indirectly through one or more wholly-owned subsidiaries
or Kinder Xxxxxx X.X., Inc., a Delaware corporation (the "General
Partner"), free and clear of any lien, encumbrance, security
interest, equity or charge (except for such liens, encumbrances,
security interests, equities or charges as are not, individually or
in the aggregate, material to such interest ownership or as
described in the Prospectus);
(vi) Each of the Significant Subsidiaries has been duly formed
or incorporated and is validly existing as a corporation, limited
partnership, general partnership, or limited liability company, as
the case may be, in good standing under the laws of the jurisdiction
in which it is chartered or organized, with full entity power and
authority to own or lease, as the case may be, and to operate its
properties and conduct its business as described in the Prospectus,
and is duly qualified to do business as a corporation, limited
partnership, general partnership, or limited liability company, as
the case may be, and is in good standing under the laws of each
jurisdiction which requires such qualification, other than any
jurisdiction where the failure to be so qualified would not,
individually or in the aggregate, have a Material Adverse Effect;
(vii) The General Partner is the sole general partner of the
Partnership; the General Partner owns a general partner interest in
the Partnership; such general partner interest is duly authorized by
the Agreement of Limited Partnership, as amended, of the Partnership
and was validly issued to or acquired by the General Partner; the
General Partner owns such general partner interest free and clear of
all liens, encumbrances, security interests, equities or charges
(except for such liens, encumbrances, security interests, equities
or charges as are not, individually or in the aggregate, material to
such ownership or as described in the Prospectus);
(viii) The General Partner has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware; the General Partner is an indirect subsidiary
of Xxxxxx Xxxxxx, Inc., a Kansas corporation; and the General
Partner has all necessary corporate power and authority to own its
properties and conduct its business as described in the Prospectus
and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such
-5-
qualification, except where the failure to be so qualified would not
individually or in the aggregate have a Material Adverse Effect;
(ix) Xxxxxx Xxxxxx Management, LLC, a Delaware limited
liability company (the "Company"), all of the shares of which that
may vote for the election of directors are owned by the General
Partner and which is the delegate of the General Partner, is a
limited liability company duly organized, validly existing and in
good standing under the laws of the State of Delaware; the Company
has all the necessary limited liability company power and authority
to perform its functions as the delegate of the General Partner.
(x) The Partnership has all necessary partnership power and
authority to authorize, issue and sell the Purchased Securities as
contemplated by this Agreement; this Agreement, and, if the
Purchased Securities are Debt Securities, any Delayed Delivery
Contracts, have been duly authorized, executed and delivered by the
Partnership ;
(xi) If the Purchased Securities are Debt Securities, the
Indenture has been duly authorized and has been duly qualified under
the Trust Indenture Act; the Purchased Securities have been duly
authorized; and when the Purchased Securities are delivered and paid
for pursuant to this Agreement on the Closing Date or pursuant to
Delayed Delivery Contracts, the Indenture will have been duly
executed and delivered, such Purchased Securities will be duly
executed, authenticated, issued and delivered and will conform in
all material respects to the description thereof contained in the
Prospectus; and the Indenture and such Purchased Securities will
constitute valid and legally binding obligations of the Partnership,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(xii) If the Purchased Securities are Equity Securities, the
Purchased Securities have been duly and validly authorized and when
issued and delivered against payment therefore pursuant to this
Agreement on the Closing Date, such Purchased Securities will be
validly issued, fully paid and (except as required to the contrary
by the Delaware LP Act) non-assessable and will conform in all
material respects to the description thereof contained in the
Prospectus; and the common unitholders of the Partnership have no
preemptive rights with respect to the Purchased Securities;
(xiii) The execution, delivery and performance of the
Indenture (if the Purchased Securities are Debt Securities), this
Agreement, and any Delayed Delivery Contracts, and the issuance and
sale of the Purchased Securities, and, if the Purchased Securities
are Debt Securities, compliance with the terms and provisions
thereof, will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Partnership or any
-6-
of the Significant Subsidiaries is a party or by which the
Partnership or any of the Significant Subsidiaries is bound or to
which any of the property of the Partnership or the property of any
of the Significant Subsidiaries is subject, except where any such
foregoing occurrence will not prevent the consummation of the
transactions contemplated herein or would not have a Material
Adverse Effect, nor will such action result in any violation of the
provisions of the partnership agreement, certificate of
incorporation, bylaws or other formation document, as the case may
be, of the Partnership or any of the Significant Subsidiaries, or
any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Partnership
or any of the Significant Subsidiaries or any of the properties of
any such entities, and no consent, approval, authorization, order,
registration or qualification of or with any court or governmental
agency or body having jurisdiction over the Partnership or any of
the Significant Subsidiaries or any of the properties of such
entities is required for the issuance and sale of the Purchased
Securities by the Partnership, except such as have been obtained or
made under the Securities Act, and if the Purchased Securities are
Debt Securities, the Trust Indenture Act, and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the state securities or Blue Sky laws;
(xiv) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Partnership
or any of its subsidiaries is a party or of which any property of
the Partnership or any of its subsidiaries is the subject which, if
determined adversely to such entity, would be reasonably likely to,
individually or in the aggregate, have a Material Adverse Effect;
and, to the Partnership's knowledge, no such proceedings are
threatened or contemplated;
(xv) Except as disclosed in the Prospectus, none of the
Partnership or any of its subsidiaries has violated any federal or
state law or regulation relating to the protection of human health
or the environment except for any violations and remedial actions as
would not be reasonably likely to, individually or in the aggregate,
have a Material Adverse Effect;
(xvi) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus
there has been no change, nor any development or event involving a
prospective change that would have a Material Adverse Effect;
(xvii) Each of the Partnership and the Significant
Subsidiaries owns or leases all properties as are necessary to the
conduct of its operations as described in the Prospectus, except
where the failure to own or lease any of such properties would not
individually or in the aggregate, have a Material Adverse Effect;
(xviii) The Partnership is, and after giving effect to the
offering and sale of the Purchased Securities and the application of
the proceeds thereof as described in the Prospectus, will be, exempt
from regulation as (i) a "holding
-7-
company" or a "subsidiary company" of a "holding company" thereof
within the meaning of the Public Utility Holding Company Act of
1935, as amended, or (ii) an "investment company," as defined in the
Investment Company Act of 1940, as amended; and
(xix) None of the Partnership or any of the Significant
Subsidiaries is involved in any labor dispute and, to the knowledge
of the Partnership, no such dispute has been threatened, except for
such disputes as would not, individually or in the aggregate have a
Material Adverse Effect.
(b) If this Agreement provides for sales by one or more Selling
Unitholders, each Selling Unitholder severally represents and warrants to
each Underwriter that such Selling Unitholder has (i) good and valid title
to, and full right, power and authority to convert, convertible securities
of the Partnership which are convertible into at least the number of
Purchased Securities to be sold by it pursuant to this Agreement; and
immediately after the execution of this Agreement such Selling Unitholder
will convert into Purchased Securities at least such number of convertible
securities; and upon such conversion and on each Closing Date such Selling
Unitholder will have good and valid title to the Purchased Securities to
be sold by such Selling Unitholder or (ii) has and on each Closing Date
will have good and valid title to the Purchased Securities to be sold by
such Selling Unitholder. Such Selling Unitholder has full right, power and
authority to enter into this Agreement and to sell, assign, transfer and
deliver the Purchased Securities to be sold by such Selling Unitholder
hereunder; and upon the delivery of and payment for the Purchased
Securities hereunder the several Underwriters will acquire good and valid
title to the Purchased Securities to be sold by such Selling Unitholder.
5. Conditions of the Underwriters' Obligations. The obligations of the
Underwriters hereunder to purchase and pay for the Purchased Securities or, if
this Agreement provides for sales of Debt Securities pursuant to Delayed
Delivery Contracts, the Underwriters' Securities, are subject to the following
conditions:
(a) Promptly upon the execution of this Agreement by the Partnership
(or at such later time acceptable to the Representatives, or if there are
none, such firm as may be designated by a majority in interest of the
Underwriters) and on the Closing Date, the Representatives or such
designated firm shall have received from the independent accountants of
the Partnership who have certified the financial statements of the
Partnership and its subsidiaries included or incorporated by reference in
the Registration Statement signed letters dated the respective dates of
delivery, in form and substance satisfactory to the Underwriters or the
Representatives.
(b) No stop order suspending the effectiveness of the Registration
Statement under the Securities Act shall be in effect and no proceedings
for such purpose shall be pending before or threatened by the Commission
and any requests for additional information on the part of the Commission
(to be included in the Registration Statement or the Prospectus or
otherwise) shall have been complied with to the reasonable satisfaction of
the Underwriters or the Representatives.
-8-
(c) Subsequent to the execution of this Agreement, there shall not
have been any material change in the partnership interests or long-term
debt of the Partnership or any material adverse change in the general
affairs, management, financial position or results of operations of the
Partnership and its subsidiaries taken as a whole, whether or not arising
in the ordinary course of business, in each case other than as set forth
in or contemplated by the Registration Statement and Prospectus, if in the
reasonable judgment of a majority in interest of the Underwriters or of
the Representatives any such change makes it impracticable or inadvisable
to consummate the sale and delivery of the Purchased Securities or, if
this Agreement provides for sales of Debt Securities pursuant to Delayed
Delivery Contracts, the Underwriters' Securities, by the Underwriters as
contemplated in the Prospectus.
(d) Subsequent to the execution of this Agreement, there shall not
have occurred any of the following (i) a suspension or material limitation
in trading in securities generally on the New York Stock Exchange; (ii) a
suspension in trading in the Partnership's securities on the New York
Stock Exchange; (iii) a general moratorium on commercial banking
activities declared by either Federal or New York authorities; or (iv) the
outbreak or escalation of major hostilities involving the United States or
the declaration by the United States of a national emergency or war, if
the effect of any such event specified in this clause (iv) in the
reasonable judgment of a majority in interest of the Underwriters or of
the Representatives makes it impracticable or inadvisable to proceed with
the public offering or the sale of and payment for the Purchased
Securities.
(e) The representations and warranties of the Partnership contained
herein shall be true and correct on and as of the Closing Date and the
Partnership shall have performed all covenants and agreements herein
contained to be performed on its part at or prior to the Closing Date.
(f) The Underwriters or Representatives shall have received on the
Closing Date a certificate, dated the Closing Date, of the Chief Executive
Officer, the President, any Vice President or the Vice President,
Treasurer and Chief Financial Officer of the Company or the General
Partner on behalf of the Partnership, which shall certify that (i) no
order suspending the effectiveness of the Registration Statement or the
qualification of the Indenture has been issued and, to the knowledge of
such officer, no proceedings for such purpose are pending before or
threatened by the Commission, (ii) the representations and warranties of
the Partnership contained herein are true and correct on and as of the
Closing Date, and (iii) the Partnership has performed all covenants and
agreements herein contained to be performed on its part at or prior to the
Closing Date.
(g) The Underwriters or the Representatives shall have received on
the Closing Date from Xxxxxxxxx & Xxxxxxxxx, L.L.P., counsel for the
Partnership, an opinion, dated the Closing Date, substantially to the
effect as set forth in Schedule II hereto.
(h) The Underwriters or the Representatives shall have received on
the Closing Date from counsel for the Underwriters an opinion dated the
Closing Date, with
-9-
respect to the Partnership, the Indenture, the Purchased Securities or, if
this Agreement provides for sales of Debt Securities pursuant to Delayed
Delivery Contracts, the Underwriters' Securities, the Registration
Statement and Prospectus and this Agreement. Such opinion shall also
include language substantially to the effect of the penultimate paragraph
of Schedule II hereto. The Partnership and, if this Agreement provides for
sales by Selling Unitholders, each Selling Unitholder shall have furnished
to counsel for the Underwriters such documents as they may reasonably
request for the purpose of enabling them to render such opinions.
(i) Subsequent to the date of this Agreement, no downgrading shall
have occurred in the rating accorded the Partnership's debt securities or
preferred stock by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Securities Act, nor shall there have been any
public announcement, beyond what it had announced prior to the date of
this Agreement, that any such organization has under surveillance or
review its ratings of any debt securities or preferred stock of the
Partnership (other than an announcement with positive implication of a
possible upgrading, and no implication of a possible downgrading of such
rating).
(j) If this Agreement provides for sales by Selling Unitholders, the
Underwriters or Representatives shall have received on the Closing Date a
certificate, dated the Closing Date, of the President or any Vice
President of each Selling Unitholder, which shall certify that (i) the
representations and warranties of such Selling Unitholder contained herein
are true and correct on and as of the Closing Date, and (ii) such Selling
Unitholder has performed all covenants and agreements herein contained to
be performed on its part at or prior to the Closing Date.
(k) If this Agreement provides for sales by Selling Unitholders, the
Underwriters or Representatives shall have received on the Closing Date
from counsel for each Selling Unitholder, an opinion, dated the Closing
Date, substantially to the effect as set forth in Schedule III hereto.
6. Covenants. The Partnership and, if this Agreement provides for sales
by Selling Unitholders, each Selling Unitholder as to paragraphs (a), (c), (h),
(k), (l) and (m), covenants and agrees with the several Underwriters as follows:
(a) To advise the Underwriters or the Representatives promptly of
any amendment or supplement of the Registration Statement or the
Prospectus which is proposed to be filed and not to effect such amendment
or supplement in a form to which the Underwriters or the Representatives
reasonably object.
(b) To furnish to each of the Underwriters or the Representatives
and to the counsel for the Underwriters, one copy of the Registration
Statement filed pursuant to XXXXX, including exhibits and Incorporated
Documents, relating to the Debt Securities and the Equity Securities in
the form it became effective and of all amendments thereto, including
exhibits; and to each such firm and counsel, copies of each preliminary
-10-
prospectus supplement and Prospectus and any amendment or supplement
thereto relating to the Debt Securities and the Equity Securities.
(c) As soon as it is advised thereof, to advise the Underwriters or
the Representatives (i) of the initiation or threatening by the Commission
of any proceedings for the issuance of any order suspending the
effectiveness of the Registration Statement or the qualification of the
Indenture or preventing or suspending the use of any preliminary
prospectus supplement, (ii) of receipt by it or any representative or
attorney of it of any other communication from the Commission relating to
the Partnership, any Selling Unitholders, the Registration Statement or
the Prospectus, or (iii) suspension of qualification of the Purchased
Securities for offering or sale in any jurisdiction. The Partnership will
make every reasonable effort to prevent the issuance of an order
suspending the effectiveness of the Registration Statement or the
qualification of the Indenture, and if any such order is issued, to obtain
as soon as possible the lifting thereof.
(d) To deliver to the Underwriters or the Representatives, without
charge, as many conformed copies of the Indenture, the Registration
Statement (excluding exhibits but including the Incorporated Documents),
each preliminary prospectus supplement, the Prospectus and all amendments
and supplements to such documents as the Underwriters or the
Representatives may reasonably request.
(e) During such period as a prospectus is required by law to be
delivered by an Underwriter or dealer, to deliver, without charge, to
Underwriters and dealers, at such office or offices as the Underwriters or
the Representatives may designate, as many copies of the Prospectus and
any amendment or supplement thereto as the Underwriters or the
Representatives may reasonably request.
(f) During the period in which copies of the Prospectus are to be
delivered as provided in paragraph (e) above, if any event occurs as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or
if for any reason it shall be necessary during such same period to file
any document which will be deemed an Incorporated Document in order to
comply with the Exchange Act and the rules and regulations thereunder,
forthwith to prepare, submit to the Underwriters or the Representatives,
file with the Commission and deliver, without charge to the Underwriters
either (i) amendments or supplements to the Prospectus so that the
statements in the Prospectus, as so amended or supplemented, will not be
misleading or (ii) documents which will effect such compliance. Delivery
by Underwriters of any such amendments or supplements to the Prospectus or
documents shall not constitute a waiver of any of the conditions set forth
in Section 5 hereof.
(g) To make generally available to the Partnership's security
holders, as soon as practicable, an earnings statement which satisfies the
provisions of Section 11(a) of the Securities Act.
-11-
(h) To cooperate with the Underwriters or the Representatives in
qualifying the Purchased Securities for offer and sale under the
securities or "blue sky" laws of such jurisdictions as the Underwriters or
the Representatives may reasonably request; provided that in no event
shall the Partnership nor any Selling Unitholder be obligated to qualify
to do business in any jurisdiction where it is not now so qualified, to
take any action which would subject it to service of process in suits,
other than those arising out of the offering or sale of the Purchased
Securities, in any jurisdiction where it is not now so subject, qualify in
any jurisdiction as a broker-dealer or subject itself to any taxing
authority where it is not now so subject.
(i) Unless otherwise specified, to endeavor to obtain as promptly as
practicable the listing of the Purchased Securities on the New York Stock
Exchange and, if the Purchased Securities are of a class or series of
securities which is already listed on the New York Stock Exchange or any
other stock exchange, to effect the listing of the Purchased Securities on
such stock exchanges prior to the Closing Date, subject to notice of
issuance.
(j) During the period of five years from the date hereof, to supply
to the Representatives, if any, and to each other Underwriter who may so
request in writing, copies of such financial statements and other periodic
and special reports as the Partnership may from time to time distribute
generally to its lenders or to the holders of any class of its securities
registered under Section 12 of the Exchange Act and to furnish to the
Underwriters or the Representatives a copy of each annual or other report
it shall be required to file with the Commission.
(k) To pay all of its own expenses incurred in connection with the
performance of its obligations under this Agreement, and the Partnership
will pay, or reimburse if paid by the Underwriters or the Representatives,
whether or not the transactions contemplated hereby are consummated or
this Agreement is terminated, all reasonable costs and expenses incident
to the performance of the obligations of the Partnership under this
Agreement, including those relating to (i) the preparation, printing and
filing of the Registration Statement and exhibits thereto, each
preliminary prospectus, any preliminary prospectus supplement, the
Prospectus, all amendments and supplements to the Registration Statement
and the Prospectus, the printing of the Indenture and the printing of this
Agreement (including any Agreement Among Underwriters), (ii) the issuance,
preparation and delivery of the Purchased Securities to the Underwriters,
and if applicable, those entering into Delayed Delivery Contracts with the
Partnership, including the costs and expenses of any Trustee, Registrar,
Transfer Agent and any agent thereof, including any reasonable fees and
disbursements of counsel therefor, (iii) the registration or qualification
of the Purchased Securities for offer and sale under the securities or
"blue sky" laws of the various jurisdictions referred to in paragraph (h)
above, including the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and the preparation and printing of
legal investment and preliminary and supplementary "blue sky" memoranda,
(iv) the furnishing to the Underwriters and the Representatives, if any,
of copies of the Prospectus and all amendments or supplements to the
Prospectus, and of the several documents required by this Section to be so
furnished, including costs of shipping and mailing, (v) the listing of
-12-
the Purchased Securities on any securities exchange, (vi) the rating of
the Purchased Securities by rating agencies, and (vii) the furnishing to
the Underwriters and the Representatives, if any, of copies of all reports
and information required by paragraph (j) above, including costs of
shipping and mailing. If a separate agreement exists between the
Partnership and any Selling Unitholder which allocates such costs and
expenses in a manner different from that set forth above, such agreement
shall control as between the Partnership and such Selling Unitholder only,
but such agreement shall not modify the obligations of the Partnership and
the Selling Unitholder to the Underwriters to cause the payment of costs
and expenses as set forth above.
(l) During the period beginning on the date of this Agreement and
continuing to the date specified in this Agreement, not to, directly or
indirectly, sell, offer to sell, contract to sell, hedge, pledge, grant an
option to purchase, issue any instrument convertible or exchangeable for
or representing the right to receive, or otherwise dispose of any
securities of the Partnership substantially similar to the Purchased
Securities (other than commercial paper issued in the ordinary course of
business), without the prior written consent of a majority in interest of
the Underwriters or the Representatives.
(m) If this Agreement provides for sales by Selling Unitholders,
each Selling Unitholder agrees to deliver to the Underwriters or the
Representatives on or prior to the Closing Date a properly completed and
executed United States Treasury Department Form W-9 (or other applicable
form or statement specified by Treasury Department regulations in lieu
thereof).
7. Indemnification.
(a) The Partnership will indemnify and hold harmless 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, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or
-13-
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 7(e) below) any such settlement is effected
with the written consent of the Partnership; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 7(d) hereof, the fees and
disbursements of counsel chosen by the Underwriters), reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above; provided, however, that
the indemnity set forth in this Section 7(a) shall not apply to any
loss, liability, claim, damage or expense to the extent arising out
of any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written
information furnished to the Partnership by or on behalf of any
Underwriter expressly for use in the Registration Statement (or any
amendment thereto), or any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto). The foregoing indemnity
with respect to any untrue statement or alleged untrue statement
contained in or omission or alleged omission from a preliminary
prospectus shall not inure to the benefit of the Underwriter (or any
person controlling such Underwriter) from whom the person asserting
any loss, liability, claim, damage or expense purchased any of the
Purchased Securities which are the subject thereof if the
Partnership shall sustain the burden of proving that such person was
not sent or given a copy of the Prospectus (or the Prospectus as
amended or supplemented) at or prior to the written confirmation of
the sale of such Purchased Securities to such person and the untrue
statement contained in or omission from such preliminary prospectus
was corrected in the Prospectus (or the Prospectus as amended or
supplemented) and the Partnership had previously furnished copies
thereof to such Underwriter.
(b) If this Agreement provides for sales by Selling Unitholders,
each of the Selling Unitholders severally will indemnify and hold harmless
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, to the same extent as the foregoing indemnity from the
Partnership to each Underwriter, but only insofar as losses, liabilities
claims, damages, expenses or actions arise out of or are based upon any
untrue statement or omission or alleged untrue statement or omission which
was made in the Registration Statement, the prospectus or any amendment or
supplement thereto, in reliance on and in conformity with information
furnished in writing to the Partnership by such Selling Unitholder
expressly for use therein.
(c) Each Underwriter, severally in proportion to its respective
purchase obligation and not jointly, agrees to indemnify and hold harmless
the Partnership, the General Partner, the Company, the directors of the
General Partner and the Company, the officers of the Company who signed
the Registration Statement, and each person, if any, who controls the
Partnership, the General Partner or the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act,
against any and all
-14-
loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written
information furnished to the Partnership by or on behalf of such
Underwriter expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or
any amendment or supplement thereto).
(d) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account
of this indemnity agreement. In the case of parties indemnified pursuant
to Section 7(a) above, counsel to the indemnified parties shall be
selected by the Underwriters, and, in the case of parties indemnified
pursuant to Section 7(c) above, counsel to the indemnified parties shall
be selected by the Partnership, provided that if it so elects within a
reasonable time after receipt of such notice, an indemnifying party,
jointly with any other indemnifying parties receiving such notice, may
assume the defense of such action with counsel chosen by it and approved
by the indemnified parties defendant in such action, unless such
indemnified parties reasonably object to such assumption on the ground
that there may be legal defenses available to them which are different
from or in addition to those available to such indemnifying party. If an
indemnifying party assumes the defense of such action, the indemnifying
parties shall not be liable for any fees and expenses of counsel for the
indemnified parties incurred thereafter in connection with such action. An
indemnifying party may participate at its own expense in the defense of
any such action; provided, however, that counsel to the indemnifying party
shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the
same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever in respect of
which indemnification or contribution could be sought under this Section 7
or Section 8 hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified
party.
(e) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for reasonable fees
and expenses of counsel,
-15-
such indemnifying party agrees that it shall be liable for any settlement
of the nature contemplated by Section 7(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into
and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of
such settlement. Notwithstanding the immediately preceding sentence, if at
any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel, an
indemnifying party shall not be liable for any settlement of the nature
contemplated by Section 7(a)(ii) effected without its consent if such
indemnifying party (i) reimburses such indemnified party in accordance
with such request to the extent it considers such request to be reasonable
and (ii) provides written notice to the indemnified party substantiating
the unpaid balance as unreasonable, in each case prior to the date of such
settlement.
8. Contribution. If the indemnification provided for in Section 7
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Partnership or the
Selling Unitholder, if any (taking into account the portion of the proceeds of
the offering received by each), on the one hand and the Underwriters on the
other hand from the offering of the Purchased Securities pursuant to this
Agreement or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Partnership and the Selling Unitholder, if any, on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations. The relative benefits received
by the Partnership and the Selling Unitholder, if any, on the one hand and the
Underwriters on the other hand in connection with the offering of the Purchased
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Purchased Securities pursuant to this Agreement (before deducting expenses but
after deducting the total underwriting commission received by the Underwriters)
received by the Partnership and the Selling Unitholder, if any, and the total
underwriting commission received by the Underwriters, in each case as set forth
on the cover of the Prospectus, bear to the aggregate initial public offering
price of the Purchased Securities as set forth on such cover. The relative fault
of the Partnership and the Selling Unitholder, if any, on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Partnership and the Selling Unitholder, if any, or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Partnership, the Selling Unitholder, if any, and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the
-16-
equitable considerations referred to above in this Section 8. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 8 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission. Notwithstanding the provisions of
this Section 8, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Purchased Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of any 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. For purposes of this Section 8, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act shall have the same rights to contribution as
such Underwriter; each director of the General Partner and the Company, each
officer of the Company who signed the Registration Statement, and each person,
if any, who controls the Partnership, the General Partner and the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act shall have the same rights to contribution as the Partnership, the General
Partner and the Company; and if this Agreement provides for sales by Selling
Unitholders, each person, if any, who controls a Selling Unitholder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as such Selling Unitholder. The
Underwriters' respective obligations to contribute pursuant to this Section 8
are several in proportion to their respective underwriting obligations and not
joint.
9. Termination. This Agreement may be terminated by a majority in
interest of the Underwriters or by the Representatives by notifying the
Partnership at any time at or prior to the Closing Date, if any of the
conditions specified in Section 5 hereof shall not have been fulfilled when and
as required by this Agreement.
If this Agreement is terminated pursuant to any of the provisions hereof,
except as otherwise provided herein, the Partnership shall not be under any
liability to any Underwriter or any Selling Unitholder and no Underwriter shall
be under any liability to the Partnership or any Selling Unitholder, except that
(a) if this Agreement is terminated by the Underwriters or the Representatives
because of any failure or refusal on the part of the Partnership or any Selling
Unitholder to comply with the terms or to fulfill any of the conditions of this
Agreement, the Partnership and each Selling Unitholder will reimburse the
Underwriters for all reasonable out-of-pocket expenses (including the reasonable
fees and disbursement of their counsel) reasonably incurred by them and (b) no
Underwriter who shall have failed or refused to purchase the Purchased
Securities or, if this Agreement provides for sales of Debt Securities pursuant
to Delayed Delivery Contracts, the Underwriters' Securities, agreed to be
purchased by it hereunder, without some reason sufficient hereunder to justify
its cancellation or termination of its obligations hereunder, shall be relieved
of liability to the Partnership, any Selling Unitholder or the other
Underwriters for damages occasioned by its default.
-17-
10. Default of Underwriters. If one or more of the Underwriters shall
fail (other than for a reason sufficient to justify the termination of this
Agreement) to purchase on the Closing Date the principal amount of Purchased
Securities or, if this Agreement provides for sales of Debt Securities pursuant
to Delayed Delivery Contracts, the Underwriters' Securities, agreed to be
purchased by such Underwriter or Underwriters, the Representatives, or if there
are none, such firm as may be designated by a majority in interest of the
Underwriters may find one or more substitute underwriters to purchase such
Purchased Securities or, if this Agreement provides for sales of Debt Securities
pursuant to Delayed Delivery Contracts, the Underwriters' Securities, or make
such other arrangements as they may deem advisable or one or more of the
remaining Underwriters may agree to purchase such Purchased Securities or, if
this Agreement provides for sales of Debt Securities pursuant to Delayed
Delivery Contracts, the Underwriters' Securities, in such proportions as may be
approved by the Representatives or such designated firm, in each case upon the
terms herein set forth. If no such arrangements have been made within 24 hours
after the Closing Date, and
(a) the aggregate principal amount or number of units, as the case
may be, of Purchased Securities or, if this Agreement provides for sales
of Debt Securities pursuant to Delayed Delivery Contracts, the
Underwriters' Securities, to be purchased by the defaulting Underwriter or
Underwriters shall not exceed 10% of the total principal amount or number
of units, as the case may be, of Purchased Securities or, if this
Agreement provides for sales of Debt Securities pursuant to Delayed
Delivery Contracts, the Underwriters' Securities, each of the
non-defaulting Underwriters shall be obligated to purchase such Purchased
Securities or, if this Agreement provides for sales of Debt Securities
pursuant to Delayed Delivery Contracts, the Underwriters' Securities, on
the terms herein set forth in proportion to their respective obligations
hereunder, or
(b) the aggregate principal amount or number of units, as the case
may be, of Purchased Securities or, if this Agreement provides for sales
of Debt Securities pursuant to Delayed Delivery Contracts, the
Underwriters' Securities, to be purchased by the defaulting Underwriter or
Underwriters shall exceed 10% of the total principal amount or number of
units, as the case may be, of Purchased Securities or, if this Agreement
provides for sales of Debt Securities pursuant to Delayed Delivery
Contracts, the Underwriters' Securities, the Partnership shall be entitled
to an additional period of 24 hours within which to find one or more
substitute underwriters satisfactory to the Representatives, or if there
are none, to such designated firm to purchase such Purchased Securities
or, if this Agreement provides for sales of Debt Securities pursuant to
Delayed Delivery Contracts, the Underwriters' Securities, upon the terms
set forth herein.
In any such case, either the Representatives, or if there are none, such
designated firm or the Partnership shall have the right to postpone the Closing
Date for a period of not more than seven business days in order that necessary
changes and arrangements may be effected. If the aggregate principal amount or
number of units, as the case may be, of the Purchased Securities or, if this
Agreement provides for sales of Debt Securities pursuant to Delayed Delivery
Contracts, the Underwriters' Securities, to be purchased by such defaulting
Underwriters shall exceed 10% of the total principal amount or number of units,
as the case may be, of Purchased Securities or, if this Agreement provides for
sales of Debt Securities pursuant to Delayed Delivery Contracts, the
Underwriters' Securities, and neither the non-defaulting Underwriters nor
-18-
the Partnership shall make arrangements pursuant to this Section 10 within the
period stated for the purchase of the Purchased Securities or, if this Agreement
provides for sales of Debt Securities pursuant to Delayed Delivery Contracts,
the Underwriters' Securities, which the defaulting Underwriter or Underwriters
agreed to purchase, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter and without liability on the part of the
Partnership or any Selling Unitholder, except, in each case, as provided in
Section 6(k), 7, 8 and 9 hereof. The provisions of this Section 10 shall not in
any way affect the liability of any defaulting Underwriter to the Partnership,
any Selling Unitholder or the non-defaulting Underwriters arising out of such
default. A substitute underwriter hereunder shall become an Underwriter for all
purposes of this Agreement.
11. Miscellaneous. The reimbursement, indemnification and contribution
agreements contained in Sections 6(k), 7 and 8 hereof and the representations,
warranties, covenants and agreements of the Partnership and any Selling
Unitholder in this Agreement shall remain in full force and effect regardless of
(a) any termination of this Agreement, (b) any investigation (or any statement
as to the results thereof) made by or on behalf of any Underwriter or any
officer, director or controlling person of any Underwriter, or by or on behalf
of the Partnership or any controlling person of the Partnership, or any officer,
director or controlling person of the General Partner or the Company, or by or
on behalf of any Selling Unitholder or any officer, director or controlling
person, and (c) delivery of and payment for Purchased Securities under this
Agreement.
This Agreement has been and is made solely for the benefit of the
Underwriters, any Selling Unitholder, the Partnership, the General Partner, the
Company and their respective permitted successors and assigns, and, to the
extent expressed herein, for the benefit of persons controlling any of the
Underwriters, any Selling Unitholder, the Partnership, the General Partner or
the Company, and for the benefit of the directors and officers of the General
Partner and the Company, and their respective successors and assigns, and no
other person, partnership, association or corporation shall acquire or have any
right under or by virtue of this Agreement. The term "successors and assigns"
shall not include any purchaser of Purchased Securities, Underwriters'
Securities or Contract Securities merely because of such purchase.
In dealings hereunder, the Representatives, if designated, shall act on
behalf of each of the Underwriters, and the parties hereto shall be entitled to
act and rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by such firm as the Representatives may designate to
the Partnership.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument. Facsimile copies of signatures shall constitute original
signatures for all purposes of this Agreement and any enforcement hereof.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
-19-
SCHEDULE I
DELAYED DELIVERY CONTRACT
__________, 20__
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Xxxxxx Xxxxxx Energy
Partners, L.P., a Delaware limited partnership (the "Partnership"), and the
Partnership agrees to sell to the undersigned $________________ principal amount
of the Partnership's [state title of issue] (the "Securities"), offered by the
Partnership's Prospectus dated _________, 20__ and Prospectus Supplement dated
__________, 20__, receipt of copies of which are hereby acknowledged, at a
purchase price equal to __% of the principal amount thereof plus accrued
interest from ____________, 20__ to the date or dates for payment and delivery
thereof and on the further terms and conditions set forth in this contract. The
undersigned does not contemplate selling Securities prior to making payment
therefor.
The undersigned will purchase from the Partnership Securities in the
principal amounts and on the delivery date or dates set forth below:
Principal Plus Accrued
Delivery Date Amount Interest From:
------------- ------ --------------
$
$
$
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date".
Payment for the Securities which the undersigned has agreed to purchase on
each Delivery Date shall be made to the Partnership or its order by certified or
official bank check in New York Clearing House funds (available on the next
business day) at the office of _____________, New York, New York, at 10:00 a.m.
(New York time) on the Delivery Date, upon delivery to the undersigned of the
Securities to be purchased by the undersigned on the Delivery Date, in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Partnership not less than
five full business days prior to the Delivery Date. If no such request is
received, the Securities will be registered in the name of the undersigned and
issued in a denomination equal to the aggregate principal amount of Securities
to be purchased by the Delivery Date.
By the execution hereof, the undersigned represents and warrants to the
Partnership that (i) all necessary corporate action for the due execution and
delivery of this contract and payment for and purchase of the Securities has
been taken by it, (ii) no further authorization or approval of any governmental
or other regulatory authority is required for such execution, delivery, payment
or purchase, and (iii) its investment in the Securities is not, as of the date
hereof, prohibited
under the laws of any jurisdiction to which the undersigned is subject and which
govern such investment.
The obligation of the undersigned to take delivery of and make payment for
the Securities on the Delivery Date shall be subject to the conditions that (1)
the purchase of Securities to be made by the undersigned shall not at the time
of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Partnership shall have sold, and delivery
shall have taken place to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above, of such part of the Securities as is to
be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Partnership will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by a copy of the
opinion of counsel for the Partnership delivered to the Underwriters in
connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other delayed delivery contract shall not relieve the
undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the prior written consent of the other, and any such
attempted assignment shall be void.
It is understood that acceptance of this contract and other similar
contracts is in the Partnership's sole discretion and, without limiting the
foregoing, need not be on a first-come, first-served basis.
If this contract is acceptable to the Partnership, it is requested that
the Partnership sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding contract, as of the date first above written, between the
Partnership and the undersigned when such counterpart is so mailed or delivered.
THIS CONTRACT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
Yours very truly,
_______________________________________
(Purchaser)
By:
-----------------------------------
Name:
Title:
-2-
Accepted:
XXXXXX XXXXXX ENERGY PARTNERS, L.P.
By: Kinder Xxxxxx X.X., Inc.,
its general partner
By: Xxxxxx Xxxxxx Management, LLC,
its delegate
By:
------------------------------
Name:
Title:
____________________________________
____________________________________
(Address)
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name, telephone number and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed
are as follows: (Please print.)
Telephone Number
Name (Including Area Code) Dept.
---- --------------------- -----
-3-
SCHEDULE II
[FORM OF OPINION OF XXXXXXXXX & XXXXXXXXX, L.L.P.
TO BE DELIVERED PURSUANT TO SECTION 5(g)]
(i) Each of the Partnership, the Company, and the General Partner is
validly existing and in good standing as a limited partnership, limited
liability company or corporation, as applicable, under the laws of its
jurisdiction of formation or incorporation, as applicable, and each such entity
has full partnership, limited liability company or corporate power and
authority, as the case may be, to own its properties and to conduct its business
as such business is described in the Prospectus;
(ii) The Agreement has been duly authorized, executed and delivered by the
Partnership;
(iii) If the Purchased Securities are Debt Securities, the Indenture has
been duly authorized, executed and delivered by the Partnership and, assuming
due authorization, execution and delivery thereof by the Trustee, constitutes a
valid and legally binding agreement of the Partnership enforceable against the
Partnership in accordance with its terms;
(iv) In the event any of the Purchased Securities are to be purchased
pursuant to Delayed Delivery Contracts, each of such Delayed Delivery Contracts
has been duly authorized, executed and delivered by the Partnership and,
assuming due authorization, execution and delivery thereof by the purchaser
named therein, constitutes a valid and legally binding agreement of the
Partnership enforceable against the Partnership in accordance with its terms;
(v) In the event any of the Purchased Securities are Debt Securities, the
Purchased Securities have been duly authorized by the Partnership; the Purchased
Securities or, if this Agreement provides for sales of Debt Securities pursuant
to Delayed Delivery Contracts, the Underwriters' Securities delivered on the
Closing Date, when executed by the Partnership and authenticated by the Trustee,
and issued and delivered, in the manner provided in the Indenture against
payment of the consideration therefor pursuant to the Agreement, will constitute
valid and legally binding obligations of the Partnership entitled to the
benefits of the Indenture and enforceable against the Partnership in accordance
with their respective terms; the Contract Securities, if any, when executed by
the Partnership and authenticated by the Trustee, against payment of the
consideration therefor, pursuant to the Delayed Delivery Contracts, and issued
and delivered in the manner provided in the Indenture and Delayed Delivery
Contracts will constitute valid and legally binding obligations of the
Partnership entitled to the benefits of the Indenture and enforceable against
the Partnership in accordance with their respective terms;
(vi) In the event any of the Purchased Securities are Equity Securities,
the Purchased Securities delivered on the Closing Date (a) have been duly
authorized and, when issued and delivered against payment of the consideration
therefor pursuant to the Agreement, will be validly issued, fully paid and
(except as affected by the Delaware LP Act) nonassessable, and (b) conform as to
legal matters in all material respects to the description thereof under the
appropriate captions in the Prospectus, are approved for listing, subject to
official notice of issuance, on the New York Stock Exchange; and to such
counsel's knowledge after due inquiry,
the common unit holders of the Partnership have no preemptive rights with
respect to the Purchased Securities;
(vii) If the Purchased Securities are Debt Securities, the Indenture, the
Debt Securities and the Delayed Delivery Contracts, if any, conform as to legal
matters in all material respects to the descriptions thereof under the
appropriate captions in the Prospectus;
(viii) If the Purchased Securities are Debt Securities, the Indenture has
been qualified under the Trust Indenture Act;
(ix) The Registration Statement has been declared effective under the
Securities Act; any filing of the Prospectus required to the Closing Date
pursuant to Rule 424(b) under the Securities Act has been made in the manner and
within the time period required by Rule 424(b); and, to such counsel's knowledge
after due inquiry, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities Act and no
proceedings for that purpose have been instituted or threatened by the
Commission;
(x) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Partnership prior to the Closing
Date, excluding the documents incorporated by reference therein, as of their
respective effective or issue dates (other than the financial statements and
supporting schedules and other financial or accounting data included therein or
omitted therefrom, and the Trustee's Statement of Eligibility on Form T-1, as to
which such counsel need express no opinion) appeared on their face to comply as
to form in all material respects with the requirements of the Securities Act and
the rules and regulations thereunder;
(xi) The documents incorporated by reference in the Prospectus (other than
the financial statements and supporting schedules and other financial or
accounting data included therein or omitted therefrom, as to which such counsel
need express no opinion) when they became effective (if incorporated by
reference to another registration statement) or were filed with the Commission,
as the case may be, appeared on their face to comply as to form in all material
respects with the requirements of the particular form under the Securities Act
or the Exchange Act and the respective rules and regulations thereunder, as
applicable;
(xii) The execution and delivery of the Agreement, and, if the Purchased
Securities are Debt Securities and each of the Delayed Delivery Contracts, if
any, and the consummation of the transactions therein contemplated will not
violate (a) any of the terms or provisions of any indenture, mortgage, deed of
trust or loan agreement or other agreement or instrument filed or incorporated
by reference as an exhibit to the Partnership's Annual Report on Form 10-K most
recently filed with the Commission or under any Form 10-Q or Form 8-K of the
Partnership filed since the filing of such Annual Report on Form 10-K, (b) any
provision of the partnership agreement of the Partnership, the limited liability
company agreement of the Company or the certificate of incorporation or bylaws
of the General Partner, (c) any existing obligation of the Partnership, the
Company or the General Partner under any existing court or administrative order,
judgment or decree of which such counsel has knowledge after due inquiry, or (d)
any applicable provisions of the federal laws of the United States (based on the
limitations set forth below), the laws of the State of Texas, or the General
Corporation Law of the State of Delaware, the Delaware LP Act or the Delaware
LLC Act;
-2-
(xiii) No consent, approval, authorization or order of, or filing with,
any federal, Delaware or Texas court or governmental agency or body is required
under federal or Texas law, or the General Corporation Law of the State of
Delaware, the Delaware LP Act or the Delaware LLC Act, for the consummation by
the Partnership of the transactions contemplated by the Agreement in connection
with the issue and sale of the Purchased Securities by the Partnership or, if
the Purchased Securities are Debt Securities, for the execution of the
Indenture, except (a) as have been obtained under the Securities Act and the
rules and regulations promulgated thereunder, (b) as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Purchased Securities by the Underwriters, and (c) such as the failure to
obtain or make would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect;
(xiv) To such counsel's knowledge after due inquiry, and other than as set
forth in the Prospectus, there is no legal or governmental proceeding pending or
threatened against the Partnership, the General Partner, the Company or any
Significant Subsidiary which would individually or in the aggregate reasonably
be expected to have a Material Adverse Effect;
(xv) The Partnership is not an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended; and
(xvi) The Partnership is exempt from regulation as a "holding company"
under the Public Utility Holding Company Act of 1935, as amended.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the relevant federal law
of the United States of America, Texas law, the General Corporation Law of the
State of Delaware, the Delaware LP Act, the Delaware LLC Act and, with respect
to the opinion expressed in paragraph (iii) and the last two clauses of
paragraph (v), the relevant contract law of the state of New York, and that they
render no opinion with respect to the state securities or blue sky laws of any
jurisdiction or the law of any other jurisdiction. Such counsel may note that
they are not admitted to the practice of law in the State of Delaware. With
respect to paragraph (xii), such counsel may also state that they render no
opinion with respect to the anti-fraud provisions of the federal securities
laws.
Such counsel may state that in addition to the limitations and
qualifications set forth above, the enforceability of obligations of the
Partnership under the Debt Securities, the Indenture or the Delayed Delivery
Contracts, as the case may be, is subject to the effect of any applicable
bankruptcy (including, without limitation, fraudulent conveyance and
preference), insolvency, reorganization, rehabilitation, moratorium or similar
laws and decisions relating to or affecting the enforcement of creditors' rights
generally, and to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law), including,
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing, and the possible unavailability of specific performance or injunctive
relief. Such principles are of general application, and in applying such
principles a court, among other things, might decline to order the Partnership
to perform covenants. Further, such counsel need not express an opinion with
respect to the enforceability of provisions in the Debt Securities, the
Indenture or the Delayed Delivery Contracts (i) that require or relate to the
payment of liquidated damages at a rate or in an amount that a court would
determine in the circumstances under applicable law to
-3-
be commercially unreasonable or a penalty or a forfeiture, and (ii) with respect
to waiver, delay, extension or omission of notice or enforcement of rights or
remedies, waivers of defenses or waivers of benefits of stay, extension,
moratorium, redemption, statutes of limitations or other nonwaivable benefits
provided by operation of law. Further, such counsel may state that the
enforceability of any exculpation, indemnification or contribution provisions
contained in the Indenture may be limited by applicable law or public policy.
Such counsel may state that whenever its opinion is based on factual
matters that are "to its knowledge after due inquiry" or "of which it has
knowledge after due inquiry," such counsel has relied exclusively on
certificates of officers (after discussion of the contents thereof with such
officers) of the Company or the General Partner of the Partnership or
certificates of others as to the existence or nonexistence of the factual
matters upon which such opinion is predicated. Such counsel shall state that it
has no reason to believe, however, that any such certificate is untrue or
inaccurate in any material respect.
Such counsel may also state that, because the primary purpose of such
counsel's engagement was not to establish or confirm factual matters or
financial or accounting matters and because of the wholly or partially non-legal
character of many of the statements contained in the Registration Statement and
the Prospectus and any amendment or supplement thereto, such counsel is not
passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus and any amendment or supplement thereto (except to
the extent expressly set forth in clause (b) of paragraph (vi) above or set
forth in paragraph (vii) above, as the case may be) and they have not
independently verified the accuracy, completeness or fairness of such statements
(except as aforesaid); that, without limiting the foregoing, they assume no
responsibility for, have not independently verified and have not been asked to
comment on the accuracy, completeness or fairness of the financial statements
and other financial or accounting data included in the Registration Statement,
the Prospectus and any amendment or supplement thereto, or the exhibits to the
Registration Statement, and they have not examined the accounting, financial or
other records from which such financial statements and other financial or
accounting data contained therein were derived; that, although certain portions
of the Registration Statement have been included therein on the authority of
"experts" within the meaning of the Securities Act, they are not experts with
respect to any portion of the Registration Statement and any amendment thereto,
including, without limitation, such financial statements and other financial or
accounting data; that such counsel did not participate in the preparation of the
documents incorporated by reference in the Prospectus; however, they have
participated in conferences with officers and other representatives of the
Company, the General Partner, representatives of the independent accountants of
the Partnership, and representatives of the Underwriters, including counsel for
the Underwriters, at which the contents of the Registration Statement, the
Prospectus and any amendment or supplement thereto and related matters were
discussed; and, based upon such participation and review, and relying as to
materiality in part upon the factual statements of officers and other
representatives of the Company, the General Partner and representatives of the
Underwriters, no facts have come to their attention that have caused them to
believe that the Registration Statement or any amendment thereto (except for the
financial statements, schedules and related data and other financial or
accounting data or exhibits contained or incorporated by reference therein or
omitted therefrom and the Form T-1, as to which such counsel need not comment),
at the time such Registration Statement or any such amendment became effective,
-4-
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading or that the Prospectus or any amendment or supplement
thereto (except for the financial statements, schedules and related data and
other financial or accounting data or exhibits contained or incorporated by
reference therein or omitted therefrom, as to which such counsel need not
comment), at the time the Prospectus was issued, at the time any such amended or
supplemented prospectus was issued or at the Closing Date, contained or contains
an untrue statement of a material fact or omitted or omits 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.
Such counsel may state that its opinion is solely for the benefit of the
Underwriters or the Representatives pursuant to Section 5(g) of the Agreement,
and may not be used or relied upon by the Underwriters or the Representatives in
any other capacity or for any other purpose and may not be used or relied upon
by any other person or entity for any purpose without such counsel's express
prior written authorization. Such counsel may state that except for the use
permitted therein, such opinion may not be quoted, circulated or published, in
whole or in part, or otherwise referred to, filed with or furnished to any other
person or entity, without such counsel's prior written authorization; that the
opinion expressed therein is not an opinion with respect to matters of fact or a
guarantee and should not be construed or relied on as such; that the opinion
expressed therein is as of the date thereof, and such counsel expressly
disclaims any responsibility to update such opinion after the date thereof; and
that such opinion is strictly limited to the matters stated therein, and no
other or more extensive opinion is intended, implied or to be inferred beyond
the matters expressly stated therein.
-5-
SCHEDULE III
[FORM OF OPINION OF COUNSEL FOR
SELLING UNITHOLDERS TO BE DELIVERED
PURSUANT TO SECTION 5(j)]
(i) Each Selling Unitholder had good and valid title to the Purchased
Securities sold by such Selling Unitholder free and clear of all liens,
encumbrances, equities or claims and had full right, power and authority to
sell, assign, transfer and deliver such Purchased Securities; and the several
Underwriters, assuming that the Underwriters are bona fide purchasers within the
meaning of Section 8-302 of the Uniform Commercial Code, have acquired good and
valid title to the Purchased Securities purchased by them from each Selling
Unitholder pursuant to the Agreement free and clear of all liens, encumbrances,
equities or claims;
(ii) No consent, approval, authorization or order of, or filing with, any
governmental agency or body or any court is required to be obtained or made by
any Selling Unitholder for the consummation of the transactions contemplated by
the Agreement in connection with the sale of the Purchased Securities sold by
each Selling Unitholder, except such as have been obtained and made under the
Securities Act and such as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Purchased
Securities by the Underwriters;
(iii) The execution, delivery and performance of the Agreement and the
consummation of the transactions therein contemplated will not result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or order of any governmental
agency or body or any court having jurisdiction over any Selling Unitholder or
any of their properties or any material agreement or instrument to which any
Selling Unitholder is a party or by which any Selling Unitholder is bound or to
which any of the properties of any Selling Unitholder is subject, or the charter
or by-laws of any Selling Unitholder which is a corporation; and
(iv) The Agreement has been duly authorized, executed and delivered by
each Selling Unit holder.
Such counsel's opinion may be subject to the same types of limitations and
qualifications as are set forth in Schedule II.
