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EXHIBIT 1.1
XXXXXX XXXXXX ENERGY PARTNERS, L.P.
6.75% SENIOR NOTES DUE 2011
7.40% SENIOR NOTES DUE 2031
PURCHASE AGREEMENT
March 7, 2001
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
First Union Securities, Inc.
Chase Securities Inc.
Banc of America Securities LLC
Xxxxxxx, Xxxxx & Co.
c/x Xxxxxxx Xxxxx & Co.
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Xxxxxx Xxxxxx Energy Partners, L.P., a Delaware limited partnership (the
"Partnership"), confirms its agreement with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Xxxxxx, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and each of the other
Underwriters named in Schedule II hereto (collectively, the "Underwriters",
which term shall also include any underwriter substituted as hereinafter
provided in Section 11 hereof), for whom Xxxxxxx Xxxxx, First Union Securities,
Inc., Chase Securities Inc., Banc of America Securities LLC, and Xxxxxxx, Xxxxx
& Co. are acting as representatives (in such capacity, the "Representatives"),
with respect to the issue and sale by the Partnership and the purchase by the
Underwriters, acting severally and not jointly, of the respective principal
amounts set forth in said Schedule II of $700,000,000 aggregate principal amount
of the Partnership's 6.75% Senior Notes due March 15, 2011 and $300,000,000
aggregate principal amount of the Partnership's 7.40% Senior Notes due March 15,
2031 (the "Securities"). The Securities are to be issued pursuant to an
indenture dated as of January 2, 2001 (the "Indenture") between the Partnership
and First Union National Bank, as trustee (the "Trustee"). The term "Indenture,"
as used herein, includes the Officer's Certificate (as defined in the Indenture)
establishing the form and terms of the Securities pursuant to Sections 2 and 3
of the Indenture.
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The Partnership understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered and the Indenture has been
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").
The Partnership has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-54616) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Partnership will
prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations. The information included in such prospectus that was
omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration statement at the time it became
effective pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A
Information." Each prospectus used before such registration statement became
effective, and any prospectus that omitted the Rule 430A Information that was
used after such effectiveness and prior to the execution and delivery of this
Agreement is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto, schedules thereto, if any, and the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, at the time it became effective and including the Rule 430A
Information is herein called the "Registration Statement." Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "Rule 462(b) Registration Statement," and after such filing
the term "Registration Statement" shall include the Rule 462(b) Registration
Statement. The final prospectus, including the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the
form first furnished to the Underwriters for use in connection with the offering
of the Securities is herein called the "Prospectus." 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").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended (the "1934
Act"), which is incorporated by reference in the Registration Statement, such
preliminary prospectus or the Prospectus, as the case may be.
1. (a) The Partnership represents and warrants to each Underwriter as of
the date hereof, and as of the Closing Time referred to in Section 2(b) hereof,
and agrees with each Underwriter, as follows:
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(i) (A) The Partnership meets the requirements for use of Form
S-3 under the 1933 Act. Each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no proceedings for
that purpose have been instituted or are pending or, to the knowledge of the
Partnership, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with;
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time, the Registration Statement, the Rule 462(b)
Registration Statement and any amendments and supplements thereto complied and
will comply in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations and the 1939 Act and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations"), and did not and will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. Neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any such amendment or supplement was
issued and at the Closing Time, included or will include an untrue statement of
a material fact or omitted or will 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. The representations and warranties in this
subsection shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with information
furnished to the Partnership in writing by any Underwriter through Xxxxxxx Xxxxx
expressly for use in the Registration Statement or Prospectus;
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all
material respects with the 1933 Act Regulations and each preliminary prospectus
and the Prospectus delivered to the Underwriters for use in connection with this
offering was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T;
(B) The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus, when
they became effective or at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations or the 1934 Act and
the rules and regulations of the Commission thereunder (the "1934 Act
Regulations"), as applicable, and, when read together with the other information
in the Prospectus, at the time the Registration Statement became effective, at
the time the Prospectus was issued and at the Closing Time, did not and will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading;
(ii) (A) The financial statements of the Partnership included
in the Registration Statement and the Prospectus, together with the related
schedules and notes thereto, present fairly the financial condition of the
Partnership and its subsidiaries as of the dates
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indicated and the results of income, changes in financial position, partner's
capital and cash flows for the periods therein specified, in conformity with
generally accepted accounting principles ("GAAP") consistently applied
throughout the periods involved (except as otherwise stated therein) and all
adjustments necessary for a fair presentation of results for such periods have
been made. The supporting schedules, if any, included in the Registration
Statement present fairly in accordance with GAAP the information required to be
stated therein. Any summary and selected financial and statistical data included
in the Prospectus present fairly the information shown therein and, to the
extent based upon or derived from the financial statements, have been compiled
on a basis consistent with that of the audited financial statements included in
the Registration Statement except as otherwise stated therein or in the notes
thereto;
(B) The financial statements of GATX Terminals
Corporation, a Delaware corporation ("GATX"), included in the Registration
Statement and the Prospectus, together with the related schedules and notes
thereto, present fairly the financial condition of GATX and its combined
subsidiaries as of the dates indicated and the statement of operations, parent
investment and advances and cash flows of GATX and its combined subsidiaries for
the periods specified therein; said financial statements have been prepared in
conformity with GAAP consistently applied throughout the periods involved. The
supporting schedules relating to GATX, if any, included in the Registration
Statement present fairly in accordance with GAAP the information required to be
stated therein.
(C) The pro forma financial statements of the
Partnership and its subsidiaries and the related notes thereto included in the
Registration Statement and the Prospectus present fairly the information shown
therein, have been prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances referred to
therein except as otherwise stated therein or in the notes thereto;
(iii) The Partnership is a limited partnership duly formed,
validly existing and in good standing under the laws of the State of Delaware.
The Partnership has all necessary partnership power and authority to conduct the
activities conducted by it, to own or lease all the assets owned or leased by it
and to conduct its business as described in the Prospectus. The Partnership is
duly licensed or qualified to do business and is in good standing as a foreign
limited partnership in all jurisdictions in which the nature of the activities
conducted by it or the character of the assets owned or leased by it makes such
licensing or qualification necessary (except where the failure to be so licensed
or qualified would not have a material adverse effect on the financial
condition, results of operations or business of the Partnership and its
subsidiaries taken as a whole (a "Material Adverse Effect"));
(iv) Each of the Partnership's subsidiaries has been duly
formed or incorporated and is validly existing as a corporation, limited
partnership, general partnership or limited liability company 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
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qualified to do business as a corporation, limited partnership, general
partnership or limited liability company 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;
(v) The Kinder Xxxxxx X.X., Inc., a Delaware corporation (the
"General Partner") is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. The General Partner is an
indirect subsidiary of Xxxxxx Xxxxxx, Inc., a Delaware corporation. The General
Partner has all necessary corporate power and authority to conduct all the
activities conducted by it, to own or lease all the assets owned or leased by it
and to conduct its business as described in the Prospectus. The General Partner
is duly licensed or qualified to do business and is in good standing as a
foreign corporation in all jurisdictions in which the nature of the activities
conducted by it or the character of the assets owned or leased by it makes such
licensing or qualification necessary (except where the failure to be so licensed
or qualified would not have a material adverse effect on the financial
condition, results of operations or business of the General Partner and its
subsidiaries taken as a whole);
(vi) All of the outstanding shares of capital stock, limited
partner interests, general partner interests or limited liability company
interests of each of the Partnership's 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 and the Delaware Revised
Uniform Limited Partnership Act (the "Delaware Act") and (B) with respect to any
general partner interests) nonassessable, and are owned by the Partnership,
directly or indirectly through one or more wholly-owned subsidiaries or the
General Partner, free and clear of any lien, encumbrance, security interest,
equity or charge (except for such liens, encumbrances, security interest,
equities or charges as are not, individually or in the aggregate, material to
such interest ownership or as described in the Prospectus);
(vii) The General Partner is the sole general partner of the
Partnership and each of the Xxxxxx Xxxxxx Operating L.P. "A," a Delaware limited
partnership ("OLP-A"), Xxxxxx Xxxxxx Operating L.P. "B," a Delaware limited
partnership ("OLP-B"), Xxxxxx Xxxxxx Operating L.P. "C," a Delaware limited
partnership ("OLP-C") and Xxxxxx Xxxxxx Operating L.P. "D," a Delaware limited
partnership ("OLP-D" and together with OLP-A, OLP-B, and OLP-C, the "Operating
Partnerships"); such general partner interests are duly authorized by the
Partnership Agreement and the Agreements of Limited Partnership of the
respective Operating Partnerships, as the case may be, and were validly issued
to the General Partner; and the General Partner owns each 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 Registration Statement). The authorized, issued and
outstanding common units of the Partnership are as set forth in the Prospectus
(except for subsequent issuances, if any, pursuant to this Agreement, pursuant
to reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or options
referred to in the Prospectus). The issued and outstanding common units of the
Partnership have been duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding common units of the Partnership were
issued in violation of the preemptive or other similar
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rights of any securityholder of the Partnership;
(viii) The Partnership has all necessary partnership power and
authority to enter into this Agreement and consummate the transactions
contemplated hereby. This Agreement has been duly authorized, executed and
delivered by the Partnership;
(ix) The Securities have been duly and validly authorized and,
when issued and delivered against payment therefor as provided in this
Agreement, will have been duly executed, authenticated, issued and delivered and
will constitute valid and legally binding obligations of the Partnership
entitled to the benefits provided by the Indenture, enforceable against the
Partnership in accordance with their respective terms; the Indenture has been
duly authorized and, when executed and delivered by the Partnership and the
Trustee, will constitute a valid and legally binding instrument, enforceable
against the Partnership in accordance with its terms, subject, as to
enforcement, in the case of the Securities and the Indenture (A) to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights, and (B) to general equity principles; and the
Securities and the Indenture will conform in all material respects to the
descriptions thereof under the caption "Description of Debt Securities" in the
Prospectus and in under the caption "Description of the Notes" in the prospectus
supplement thereto and in the case of the Indenture will be in substantially the
respective forms filed or incorporated by reference, as the case may be, as
exhibits to the Registration Statement;
(x) Prior to the date hereof, none of the Partnership or any
of its subsidiaries or the General Partner has taken any action that is designed
to or that has constituted or that might have been expected to cause or result
in stabilization or manipulation of the price of any security of the Partnership
in connection with the offering of the Securities;
(xi) Neither the execution, delivery and performance of the
Securities, the Indenture or this Agreement, nor the consummation of the
transactions contemplated herein, therein or in the Registration Statement
(including, without limitation, the issuance and sale by the Partnership of the
Securities), will conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the
Partnership or any of its subsidiaries is a party or by which any of the
Partnership or any of its subsidiaries is bound or to which any of the property
or assets of the Partnership or any of its 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, by-laws or other formation
document, as the case may be, of any of the Partnership or any of its
subsidiaries or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over any of the Partnership or
any of its 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 any of
the Partnership or any of its subsidiaries or any of the properties of such
entities is required in connection with the offering, issuance or sale of the
Securities hereunder or the consummation by the Partnership of the transactions
contemplated by this Agreement or for the due execution, delivery or
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performance of the Indenture by the Partnership, except such as have been
already obtained or as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws and except for the qualification of the
Indenture under the 1939 Act;
(xii) None of the Partnership or any of its subsidiaries or
the General Partner is (A) in violation of its partnership agreement,
certificate of incorporation, by-laws or other formation documents, as the case
may be, or (B) in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound, except for such
violations and defaults as would not have a Material Adverse Effect;
(xiii) Other than as disclosed in the Registration Statement,
there are no legal or governmental proceedings pending, or, to the knowledge of
the Partnership, threatened, 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 that is required to be disclosed in the Registration
Statement or, if determined adversely to such entity, would individually or in
the aggregate have a Material Adverse Effect;
(xiv) Except as disclosed in the Registration Statement,
neither the Partnership nor 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 have a
Material Adverse Effect;
(xv) Each of the Partnership and its subsidiaries maintains
insurance (issued by insurers of recognized financial responsibility) of the
types and in the amounts generally deemed adequate for their respective
businesses and, to the knowledge of the Partnership, consistent with insurance
coverage maintained by similar companies in similar businesses, including, but
not limited to, insurance covering real and personal property owned or leased by
it against theft, damage, destruction, acts of vandalism and all other risks
customarily insured against, all of which insurance is in full force and effect;
(xvi) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as otherwise
stated therein, (A) none of the Partnership or any of its subsidiaries has
sustained any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree otherwise
than as set forth or contemplated in the Prospectus, and (B) there has not been
any material change in the capitalization or long-term debt of the Partnership
or any of its subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' or unitholders' equity or
results of operations of the Partnership or any of its subsidiaries, taken as a
whole otherwise than as set forth or contemplated in the Prospectus;
(xvii) The Partnership and its subsidiaries own or lease all
properties as are necessary to the conduct of their operations as described in
the Prospectus, except where the
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failure to own or lease any of such properties would not, individually or in the
aggregate, have a Material Adverse Effect;
(xviii) There are no contracts or documents which are required
to be described in the Registration Statement, the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits thereto which have
not been so described and filed as required;
(xix) Each of the Partnership and the General Partner is, and
after giving effect to the offering and sale of the Securities, will be, exempt
from regulation as (A) a "holding 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 (B) an "investment company," a person
"controlled by" an "investment company" or an "affiliated person" of or
"promoter" or "principal underwriter" for an "investment company," as such terms
are defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act");
(xx) None of the Partnership or any of its 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 have a
Material Adverse Effect;
(xxi) None of the Partnership or any of its subsidiaries or
the General Partner is in violation or default of any statute, law, rule,
regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Partnership or such subsidiary or the General Partner or
any of its properties, as applicable, except where such violation or default
would not, individually or in the aggregate, have a Material Adverse Effect; and
(xxii) PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, who
have each certified certain financial statements of the Partnership and certain
of its subsidiaries, and Xxxxx & Young LLP, who have certified the financial
statements of GATX, are independent accountants as required by the 1933 Act and
the 1933 Act Regulations.
(b) Any certificate signed by any officer of the General Partner on
behalf of the Partnership or by any officer of any of the Partnership's
subsidiaries delivered to the Representatives or to counsel for the Underwriters
shall be deemed a representation and warranty by the Partnership to each
Underwriter as to the matters covered thereby.
2. (a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Partnership agrees
to sell to each Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Partnership, at the price
set forth in Schedule III, the aggregate principal amount of Securities set
forth in Schedule II opposite the name of such Underwriter, plus any additional
principal amount of Securities which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 11 hereof.
(b) Payment of the purchase price for, and delivery of, the Securities
shall be
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made at the Closing Location (as defined below), or at such other place as shall
be agreed upon by the Representatives and the Partnership, at 9:00 a.m. (Eastern
Time) on the third (fourth, if the pricing occurs after 4:30 p.m. (Eastern Time)
on any given day) business day after the date hereof (unless postponed in
accordance with the provisions of Section 11), or such other time not later than
10 business days after such date as shall be agreed upon by the Representatives
and the Partnership (such time and date of payment and delivery being herein
called "Closing Time").
3. (a) Payment shall be made to the Partnership by wire transfer of
immediately available funds to a bank account designated by the Partnership
against delivery of the Securities to the Representatives in the manner set
forth below. It is understood that each Underwriter has authorized the
Representatives, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Securities which it has agreed to
purchase. Xxxxxxx Xxxxx, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Securities to be purchased by any Underwriter whose funds have not
been received by the Closing Time, but such payment shall not relieve such
Underwriter from its obligations hereunder.
(b) The Securities to be purchased by the Underwriters hereunder will
be represented by one or more definitive global certificates in book-entry form
representing the Securities, which will be deposited by or on behalf of the
Partnership with The Depository Trust Company ("DTC") or its designated
custodian. The Partnership will deliver the global certificates representing the
Securities to the Representatives, for the respective accounts of the
Underwriters, against payment by or on behalf of the Representatives of the
purchase price therefor by causing DTC to credit the Securities to the account
of the Representatives at DTC. The Partnership will cause the global
certificates representing the Securities to be made available to the
Representatives for checking at least twenty-four hours prior to the Closing
Time at the office of DTC or its designated custodian (the "Designated Office").
4. The documents to be delivered by or on behalf of the parties hereto
pursuant to Section 7 hereof, including the cross-receipt for the Securities and
any additional documents requested by the Representatives pursuant to Section
7(h) hereof, will be delivered at the offices of Xxxxxx & Xxxxxx L.L.P. at 0000
Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000-0000 (the "Closing Location"),
and the Securities will be delivered at the Designated Office, all at the
Closing Time. A meeting will be held at the Closing Location at 4:00 p.m.,
Eastern Time, on the New York Business Day next preceding the Closing Time, at
which meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto. For the
purposes of this Section 4, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday that is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Partnership agrees with each Underwriter as follows:
(a) The Partnership, subject to Section 5(b), will comply with the
requirements of Rule 430A and will notify the Representatives immediately, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have
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been filed, (ii) of the receipt of any comments from the Commission, (iii) of
any request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or for additional information, and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such purposes. The
Partnership will promptly effect the filings necessary pursuant to Rule 424(b)
and will take such steps as it deems necessary to ascertain promptly whether the
form of prospectus transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not, it will promptly
file such prospectus. The Partnership will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) The Partnership will give the Representatives notice of its
intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)) or any amendment, supplement or
revision to either the prospectus included in the Registration Statement at the
time it became effective or to the Prospectus, whether pursuant to the 1933 Act,
the 1934 Act or otherwise, will furnish the Representatives with copies of any
such documents a reasonable amount of time prior to such proposed filing or use,
as the case may be, and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall reasonably object.
(c) The Partnership has furnished or will deliver to the
Representatives and counsel for the Underwriters, without charge, conformed
copies of the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference therein
and documents incorporated or deemed to be incorporated by reference therein)
and conformed copies of all consents and certificates of experts, and will also
deliver to the Representatives, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters. The copies of the Registration
Statement and each amendment thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(d) The Partnership has delivered to each Underwriter, without
charge, as many copies of each preliminary prospectus as such Underwriter
reasonably requested, and the Partnership hereby consents to the use of such
copies for purposes permitted by the 1933 Act. The Partnership will furnish to
each Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(e) The Partnership will comply with the 1933 Act and the 1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations and the 1939 Act and the
1939 Act
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Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement and in the Prospectus. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters or for the
Partnership, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue statements
of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Partnership will promptly prepare
and file with the Commission, subject to Section 5(b), such amendment or
supplement as may be necessary to correct such statement or omission or to make
the Registration Statement or the Prospectus comply with such requirements, and
the Partnership will furnish to the Underwriters such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
(f) The Partnership will use all reasonable efforts, in cooperation
with the Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions as the
Representatives may designate and to maintain such qualifications in effect for
a period of not less than one year from the later of the effective date of the
Registration Statement and any Rule 462(b) Registration Statement; provided,
however, that the Partnership shall not be obligated to file any general consent
to service of process or to qualify as a foreign limited partnership or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject. The Partnership will also supply the
Underwriters with such information as is necessary for the determination of the
legality of the Securities for investment under the laws of such jurisdictions
as the Underwriters may request.
(g) The Partnership will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
unitholders as soon as practicable an earnings statement for the purposes of,
and to provide the benefits contemplated by, the last paragraph of Section 11(a)
of the 1933 Act.
(h) The Partnership, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, will file all
documents required to be filed with the Commission pursuant to the 1934 Act
within the time periods required by the 1934 Act and the 1934 Act Regulations.
(i) During the period beginning from the date hereof and continuing
to and including the date of the Closing Time, the Partnership shall not
directly or indirectly offer, sell, contract to sell or otherwise dispose of,
except as provided hereunder, any securities of the Partnership that are
substantially similar to the Securities.
(j) The Partnership shall make available to the holders of the
Securities as soon as reasonably practicable after the end of each fiscal year
an annual report (including a balance sheet and statements of income,
unitholders' equity and cash flows of the Partnership
12
and its consolidated subsidiaries certified by independent public accountants)
and, as soon as reasonably practicable after the end of each of the first three
quarters of each fiscal year (beginning with the fiscal quarter ending after the
date of the Prospectus, the Partnership shall make available to the holders of
the Securities consolidated summary financial information of the Partnership and
its subsidiaries for such quarter in reasonable detail.
(k) During the period of five years from the date of the Prospectus,
the Partnership shall furnish to you copies of all reports or other
communications (financial or other) furnished to unitholders of the Partnership,
and shall deliver to you (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the Commission or
any national securities exchange on which the Securities or any class of
securities of the Partnership is listed; and (ii) such additional information
concerning the business and financial condition of the Partnership as you may
from time to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Partnership and its
subsidiaries are consolidated in reports furnished to its unitholders generally
or to the Commission).
6. The Partnership covenants and agrees with each Underwriter that the
Partnership will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Partnership's counsel and accountants in
connection with the issuance of the Securities and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement (including exhibits and financial statements) as originally filed and
of any amendments and supplements thereto and the mailing and delivering of
copies thereof to the Underwriters, and of the preparation, printing and
delivering to the Underwriters of copies of each preliminary prospectus and of
the Prospectus and any amendments or supplements thereto; (ii) the cost of
preparing, printing and delivering to the Underwriters this Agreement, the
Indenture, the Blue Sky memoranda (and any supplements thereto), closing
documents (including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 5(f)
hereof; (iv) any fees charged by securities rating services for rating the
Securities; (v) the cost of preparing, issuing and delivering the Securities;
(vi) the fees and expenses of the Trustee and any agent of the Trustee and the
reasonable fees and disbursements of counsel for the Trustee in connection with
the Indenture and the Securities; and (vii) all other costs and expenses
incident to the performance of its obligations hereunder that are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 8 and 10 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel.
7. The obligations of the several Underwriters hereunder shall be subject,
in their discretion, to the condition that all representations and warranties
and other statements of the Partnership herein, or in certificates of any
officer of the Partnership or any subsidiary of the Partnership delivered
pursuant to the provisions hereof, are, at and as of the Closing Time, true and
correct, the condition that the Partnership shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Registration Statement, including any Rule 462(b) Registration
13
Statement, has become effective and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission, and
any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing the Rule 430A Information shall have been
filed with the Commission in accordance with Rule 424(b) (or a post-effective
amendment providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A).
(b) Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, shall have
furnished to you such written opinion or opinions, dated the Closing Time, with
respect to the matters covered in paragraphs (i) (insofar as it relates to the
due formation and good standing of the Partnership in Delaware and the
Partnership's power and authority to conduct its business as described in the
Prospectus, as amended or supplemented), (iv), (v), (vi), (vii), (xi) and (xii)
of subsection (c) below and a letter substantially similar to the letter
required to be delivered by Xxxxxxxxx & Xxxxxxxxx, L.L.P. pursuant to subsection
(c) below as well as such other related matters as you may reasonably request,
and such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) Xxxxxxxxx & Xxxxxxxxx, L.L.P., counsel for the Partnership, shall
have furnished to you its written opinion, dated the Closing Time, in form and
substance satisfactory to you, to the collective effect that:
(i) Each of the Partnership and the General Partner and each
of OLP-A, OLP-B, OLP-C, OLP-D, Xxxxxx Xxxxxx Interstate Gas Transmission LLC,
Xxxxxx Xxxxxx CO2 Company, L.P., Xxxxxx Xxxxxx Bulk Terminals, Inc. and SFPP,
L.P. (collectively the "Subsidiaries") is validly existing and in good standing
under the laws of its jurisdiction of formation or incorporation, as applicable,
and each such entity has the partnership, corporate or limited liability company
power and authority to conduct its business as described in the Prospectus;
(ii) No consent, approval, authorization, order, or filing
with, any federal, Delaware or Texas court or governmental agency or body is
required under federal or Texas law, the Delaware General Corporation Law (the
"DGCL") or the Delaware Act for the issue and sale of the Securities or the
consummation by the Partnership of the transactions contemplated by this
Agreement or the Indenture, except (A) as may be required under the 1933 Act and
the 1933 Act Regulations, (B) as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the 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;
(iii) To the knowledge of such counsel after due inquiry and
other than as set forth in the Prospectus, there are no legal or governmental
proceedings pending or threatened to which the Partnership, the General Partner
or any of the Subsidiaries is a party or of which any of their respective
property is subject which, if determined adversely to the Partnership, the
General Partner or any of the Subsidiaries, would individually or in the
aggregate
14
reasonably be expected to have a Material Adverse Effect;
(iv) This Agreement has been duly authorized, executed and
delivered by the General Partner on behalf of the Partnership;
(v) The Partnership has all necessary partnership power and
authority to enter into this Agreement and consummate the transactions
contemplated hereby. The issuance and sale by the Partnership of the Securities
to the Underwriters pursuant to this Agreement has been duly authorized by all
necessary partnership action;
(vi) The Securities have been duly authorized by the General
Partner on behalf of the Partnership and when executed by the General Partner on
behalf of the Partnership and authenticated by the Trustee and issued and
delivered, in the manner provided in the Indenture against payment of the
consideration thereof, will constitute valid and legally binding obligations of
the Partnership entitled to the benefits provided by the Indenture; and the
Securities and the Indenture conform as to legal matters in all material
respects to the descriptions under the caption "Description of Debt Securities"
in the Prospectus, as supplemented by the descriptions thereof under the caption
"Description of Notes" in the prospectus supplement to the Prospectus;
(vii) The Indenture has been duly authorized, executed and
delivered by the General Partner on behalf of the Partnership and, assuming the
due authorization, execution and delivery thereof by the Trustee, constitutes a
valid and legal binding agreement of the Partnership, enforceable against the
Partnership in accordance with its terms, and has been duly qualified under the
1939 Act;
(viii) All of the outstanding limited partner interests and
general partner interests of each of the partnership Subsidiaries have been duly
and validly authorized and issued and are fully paid and (except (A) as required
to the contrary by the Delaware Act and (B) with respect to any general partner
interests) nonassessable, and all of the issued and outstanding capital stock of
each of the corporate Subsidiaries and all of the issued and outstanding limited
liability company interests in each of the limited liability company
Subsidiaries have been duly authorized and validly issued, are fully paid and
non-assessable, and, except as otherwise set forth in the Registration Statement
all such capital stock and partnership and limited liability company interests
are owned by the Partnership, directly or indirectly through one or more
wholly-owned Subsidiaries or the General Partner, free and clear of any lien,
encumbrance, security interest, equity or charge (except for such liens,
encumbrances, security interest, equities, or charges as are not, individually
or in the aggregate, material to such interest ownership or as described in the
Registration Statement); and none of the outstanding shares of any corporate
Subsidiary, limited liability company interests of any limited liability company
Subsidiary or partnership interests of any partnership Subsidiary were issued in
violation of any preemptive or similar rights of any holder of any security or
other interest of such Subsidiary, as the case may be;
(ix) The execution, delivery and performance by the
Partnership of the Securities, the Indenture and this Agreement and the
consummation of the transactions
15
contemplated herein and therein and in the Registration Statement will not (A)
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument filed or incorporated by
reference as an exhibit to the Partnership's filings under the 1934 Act on Form
10-Q or Form 8-K since January 1, 2000, (B) result in a violation of any
provision of the partnership agreement, charter, by-laws or other formation
document, as applicable, of any of the Partnership, the General Partner or the
Subsidiaries, (C) breach or otherwise violate an existing obligation of any of
the Partnership, the General Partner or the Subsidiaries under any existing
court or administrative order, judgment or decree of which we have knowledge
after due inquiry, or (D) violate 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, the DGCL or the Delaware Act;
(x) Each of the Partnership and the General Partner (A) is
exempt from regulation as a "holding company" under the Public Utility Holding
Company Act of 1935, as amended, and (B) is not an "investment company," as such
term is defined in the Investment Company Act;
(xi) The Registration Statement has been declared effective
under the 1933 Act; any required filing of the Prospectus pursuant to Rule
424(b) has been made in the manner and within the time period required by Rule
424(b); and, to such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under the 1933 Act
and no proceedings for that purpose have been instituted or are pending or
threatened by the Commission;
(xii) The Registration Statement, the Rule 430A Information
and the Prospectus, 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 data included therein or
omitted therefrom, and the Trustee's Statement of Eligibility on Form T-1 (the
"Form T-1"), as to which such counsel need express no opinion) complied as to
form in all material respects with the requirements of the 1933 Act and the 1933
Act Regulations;
(xiii) The documents incorporated by reference in the
Prospectus (other than the financial statements and supporting schedules and
other financial data included therein or omitted therefrom, as to which such
counsel need express no opinion), when they became effective or (if incorporated
by reference to another registration statement) were filed with the Commission,
as the case may be, complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations or the 1934 Act and
the 1934 Act Regulations, as applicable;
In addition, such counsel may state that the enforceability of obligations of
the Partnership under the Securities and the Indenture, 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
16
limitation, concepts of good faith and fair dealing, and the possible
unavailability of specific performance or injunctive relief. Further, such
counsel may state that the enforceability of indemnification provisions
contained in the Indenture may be limited by applicable law or public policy.
Such counsel shall also deliver a letter to the effect, 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 any amendment thereto, including the Rule 430A
Information, 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 any amendment thereto, including the
Rule 430A Information (except to the extent expressly set forth in paragraph
(xiv) of this Section 7(c) and in the last clause of paragraph (vi) of this
Section 7(c)), 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 data
included in the Registration Statement and any amendment thereto, including the
Rule 430A Information, and they have not examined the accounting, financial or
other records from which such financial statements and other financial data
contained therein were derived; and that they are not experts with respect to
any portion of the Registration Statement and any amendment thereto, including
the Rule 430A Information, including, without limitation, such financial
statements and related data and other financial or accounting data; however,
they have participated in conferences with officers and other representatives of
the General Partner of the Partnership, 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 and any amendment thereto, the Rule 430A Information and
the Prospectus 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 General Partner of the
Partnership, no facts have come to their attention that have caused them to
believe that the Registration Statement or any amendment thereto, including the
430A Information (except in each case for the financial statements and related
data and other financial or accounting data 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, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein not misleading or that the Prospectus or any amendment or supplement
thereto (except in each case for the financial statements and related data and
other financial or accounting data contained or incorporated by reference
therein or omitted therefrom and the Form T-1, as to which such counsel need
make no statement), at the time the Prospectus was issued, at the time any such
amended or supplemented prospectus was issued or at the Closing Time, included
or includes 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.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than federal law, Texas law,
New York law, the DGCL and the
17
Delaware Act.
(d) (i) At the time of the execution of this Agreement, the
Representatives shall have received from each of PricewaterhouseCoopers LLP,
Xxxxxx Xxxxxxxx LLP and Xxxxx & Young LLP a letter dated such date, in form and
substance satisfactory to the Representatives, together with signed or
reproduced copies of such letter for each of the other Underwriters to the
effect set forth in Annex I hereto and to such further effect as counsel to the
Underwriters may reasonably request.
(ii) At Closing Time, the Representatives shall have received
from PricewaterhouseCoopers LLP a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (d)(i) of this Section, except that the specified date referred to
shall be a date not more than three business days prior to Closing Time.
(e) Since the time of execution of this Agreement or the respective
dates as of which such information is given in the Prospectus, (i) neither the
Partnership nor any of its subsidiaries shall have sustained any material loss
or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, and (ii) there shall not have been any
material adverse change in the partners' capital or capital stock or limited
liability company interests, as applicable, or long-term debt of the Partnership
or any of its subsidiaries, or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, stockholders', limited liability company interest holders' or
unitholders' equity or results of operations of the Partnership or any of its
subsidiaries, the effect of which, in any such case described in clause (i) or
(ii), is in the judgment of the Representatives so material and adverse as to
make it impracticable or inadvisable to proceed with the offering or the
delivery of the Securities being delivered at the Closing Time on the terms and
in the manner contemplated in the Prospectus;
(f) At Closing Time, the Securities shall be rated at least Baa1 by
Xxxxx'x Investor's Service Inc. and A- by Standard & Poor's Ratings Group, a
division of XxXxxx-Xxxx, Inc. On or after the date hereof (i) no downgrading
shall have occurred in the rating accorded any debt securities or preferred
stock of the Partnership or any of its subsidiaries by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the 1933 Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of debt securities or
preferred stock of the Partnership or any of its subsidiaries;
(g) The Partnership shall have furnished or caused to be furnished
to you at the Closing Time certificates of officers of the Partnership
satisfactory to you as to the accuracy of the representations and warranties of
the Partnership herein at and as of the Closing Time, as to the performance by
the Partnership of all of its obligations hereunder to be performed at or prior
to the Closing Time, as to the matters set forth in subsection (e) of this
Section and as to such other matters as you may reasonably request.
18
(h) If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Partnership at any time at or prior to
Closing Time, and such termination shall be without liability of any party to
any other party except as provided in Section 6 or Section 11 and except that
Sections 1, 8 and 9 shall survive any such termination and remain in full force
and effect.
8. (a) The Partnership agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 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), including the Rule 430A
Information, 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 omission, or any
such alleged untrue statement or omission; provided that (subject to
Section 8(d) below) any such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Xxxxxxx Xxxxx and
reasonably acceptable to the Partnership), 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 this indemnity agreement 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
any Underwriter through Xxxxxxx Xxxxx expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information, or
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
19
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Partnership, the General Partner, the General Partner's directors, each of
their respective officers who signed the Registration Statement, and each
person, if any, who controls the Partnership and the General Partner within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any
and all 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), including the
Rule 430A Information, 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 such Underwriter through Xxxxxxx
Xxxxx expressly for use in the Registration Statement (or any amendment thereto)
or such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) 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 8(a) above, counsel to the indemnified
parties shall be selected by Xxxxxxx Xxxxx and reasonably acceptable to the
Partnership, and, in the case of parties indemnified pursuant to Section 8(b)
above, counsel to the indemnified parties shall be selected by the Partnership
and reasonably acceptable to Xxxxxxx Xxxxx. 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 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.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 8(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
20
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.
(e) If the indemnification provided for in Section 8 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 on the one hand and
the Underwriters on the other hand from the offering of the 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 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 on the one hand and the
Underwriters on the other hand in connection with the offering of the 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 Securities
pursuant to this Agreement (before deducting expenses) received by the
Partnership and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus.
The relative fault of the Partnership 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 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 and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8(e) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 8(e). The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 8(e) 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(e), no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the 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
21
the 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
For purposes of this Section 8(e), each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the General Partnership, each officer of the Partnership and
General Partner who signed the Registration Statement, and each person, if any,
who controls the Partnership and General Partner within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Partnership and General Partner. The Underwriters'
respective obligations to contribute pursuant to this Section 8 are several in
proportion to the principal amount of Securities set forth opposite their
respective names in Schedule II hereto and not joint.
(f) The obligations of the Partnership under this Section 8 shall be
in addition to any liability which the Partnership may otherwise have and shall
extend, upon the same terms and conditions, to each controlling person, if any,
any Underwriter; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the Underwriters may otherwise have
and shall extend, upon the same terms and conditions, to each officer and
director of the General Partner and to each controlling person, if any, of the
Partnership.
9. The respective indemnities, agreements, representations, warranties
and other statements of the Partnership and the Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of the Underwriters or any controlling person of any Underwriter, or the
Partnership, or any officer or director or controlling person of the
Partnership, and shall survive delivery of and payment for the Securities to the
Underwriters.
22
10. (a) The Representatives may terminate this Agreement, by notice to
the Partnership, at any time at or prior to Closing Time (i) if there has been,
since the time of execution of this Agreement or since the respective dates as
of which information is given in the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Partnership and its subsidiaries taken as a whole,
whether or not arising in the ordinary course of business, (ii) if there has
occurred any material adverse change in the financial markets in the United
States, any outbreak of hostilities or escalation thereof or other calamity or
crisis or any change or development involving a prospective change in national
or international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representatives,
impracticable to market the Securities or to enforce contracts for the sale of
the Securities, or (iii) if trading in any securities of the Partnership has
been suspended or materially limited by the Commission or the New York Stock
Exchange, (iv) if trading generally on the American Stock Exchange or the New
York Stock Exchange or in the Nasdaq National Market has been suspended or
materially limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or (v) if a
banking moratorium has been declared by either Federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 6 hereof, and provided further that Sections 1, 8 and 9
shall survive such termination and remain in full force and effect.
11. If the Representatives elect not to purchase Securities hereunder
solely because the condition in Section 7(b) has not been satisfied or the
Representatives elect to terminate this Agreement pursuant to Section 10(a)(ii),
(iv) or (v), the Partnership shall not then be under any liability to the
Underwriters except as provided in Sections 6 and 8 hereof; but, if for any
other reason, the Securities are not delivered by or on behalf of the
Partnership as provided herein, the Partnership will reimburse the Underwriters
through you for all out-of-pocket expenses approved in writing by you, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of the Securities, but
the Partnership shall then be under no further liability to the Underwriters
except as provided in Sections 6 and 8 hereof.
12. If one or more of the Underwriters shall fail at Closing Time to
purchase the Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
aggregate principal amount of the Securities to be purchased hereunder, each of
the non-
23
defaulting Underwriters shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
aggregate principal amount of the Securities to be purchased hereunder, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Representatives or the Partnership shall have the
right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 11.
13. All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated at
North Tower, World Financial Center, New York, New York 10281-1201; and if to
the Partnership shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Partnership set forth in the Prospectus,
Attention: Secretary. Any such statements, requests, notices or agreements shall
take effect upon receipt thereof.
14. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Partnership and, to the extent provided in Sections 8
and 9 hereof, the officers and directors of the Partnership and each person who
controls the Partnership or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Securities from the Underwriters shall be deemed a successor or
assign by reason merely of such purchase.
15. Time shall be of the essence of this Agreement.
16. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
17. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
24
If the foregoing is in accordance with your understanding, please sign and
return to us, one for the Partnership and one for each Underwriter, plus one for
each counsel, counterparts hereof, and, upon the acceptance hereof by you, this
letter and such acceptance hereof shall constitute a binding agreement between
the Underwriters and the Partnership.
Very truly yours,
XXXXXX XXXXXX ENERGY PARTNERS, L.P.
By: Kinder Xxxxxx X.X., Inc.,
its general partner
By: /s/ X. Xxxx Xxxxxx
--------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
FIRST UNION SECURITIES, INC.
CHASE SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
XXXXXXX, XXXXX & CO.
C/X XXXXXXX XXXXX & CO.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Authorized Signatory
For itself and as Representatives of the other
Underwriters named in Schedule II hereto.
25
SCHEDULE I
Delta Terminal Services, Inc.
Xxxxxx Xxxxxx Interstate Gas Transmission LLC
Xxxxxx Xxxxxx CO2 Company, X.X.
Xxxxxx Xxxxxx Bulk Terminals, Inc.
Xxxxxx Xxxxxx Operating L.P. "A"
Xxxxxx Xxxxxx Operating L.P. "B"
Xxxxxx Xxxxxx Operating L.P. "C"
Xxxxxx Xxxxxx Operating L.P. "D"
Xxxxxx Xxxxxx Texas Pipeline, L.P.
Plantation Pipe Line Company
SFPP, L.P.
Trailblazer Pipeline Company
Xxxxxx Xxxxxx Liquids Terminals, LLC
Central Florida Pipeline Company
26
SCHEDULE II
Principal
Principal Amount of
Amount of 7.40% Senior
6.75% Senior Notes due
Name of Underwriter Notes due 2011 2031
------------------- -------------- ------------
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx &
Xxxxx Incorporated ....................... 294,000,000 126,000,000
First Union Securities, Inc. ............... 126,000,000 54,000,000
Chase Securities Inc. ...................... 126,000,000 54,000,000
Banc of America Securities LLC ............. 77,000,000 33,000,000
Xxxxxxx, Xxxxx & Co. ....................... 77,000,000 33,000,000
----------- -----------
Total ...................................... 700,000,000 300,000,000
=========== ===========
27
SCHEDULE III
Xxxxxx Xxxxxx Energy Partners, L.P.
$700,000,000 6.75% Senior Notes due 2011
$300,000,000 7.40% Senior Notes due 2031
1. The initial public offering price of the 6.75% Securities shall be
99.705% of the principal amount thereof, plus accrued interest, if any, from the
date of issuance. The initial public offering price of the 7.40% Securities
shall be 99.748% of the principal amount thereof, plus accrued interest, if any,
from the date of issuance.
2. The purchase price to be paid by the Underwriters for the 6.75%
Securities shall be 99.055% of the principal amount thereof. The purchase price
to be paid by the Underwriters for the 7.40% Securities shall be 98.873% of the
principal amount thereof.
3. The interest rate on the 6.75% Securities shall be 6.75% per annum.
The interest rate on the 7.40% Securities shall be 7.40% per annum.
4. The Partnership will have the right to redeem each series of the
Securities, in whole or in part at any time, at a redemption price equal to the
greater of (1) 100% of the principal amount of the Securities of such series to
be redeemed or (2) the sum of the present values of the remaining scheduled
payments of principal and interest on such series of Securities (exclusive of
interest accrued to the redemption date) discounted to the redemption date on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at
the Treasury Rate plus 25 basis points in the case of the 6.75% Securities, and
the Treasury Rate plus 30 basis points in the case of the 7.40% Securities,
plus, in either case, accrued and unpaid interest on the principal amount being
redeemed to such redemption date. Terms used in this paragraph that are not
defined in this Agreement have the meaning given them in the Prospectus.
28
ANNEX I
Pursuant to Section 7(d) of the Agreement, the accountants shall furnish
letters to the Representatives to the effect that:
(i) They are independent certified public accountants with respect
to the Partnership and its subsidiaries within the meaning of the 1934 Act
and the 1934 Act Regulations;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable pro
forma financial information) examined by them and included in the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the 1934 Act and the 1934 Act Regulations; and,
if applicable, they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of the
consolidated interim financial statements, selected financial data, pro
forma financial information and/or condensed financial statements derived
from audited financial statements of the Partnership for the periods
specified in such letter, as indicated in their reports thereon, copies of
which have been separately furnished to the Representatives;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Prospectus as indicated in their reports thereon, copies of which have
been separately furnished to the Representatives; and on the basis of
specified procedures including inquiries of officials of the Partnership
who have responsibility for financial and accounting matters regarding
whether the unaudited condensed consolidated financial statements referred
to in paragraph (v)(A)(i) below comply as to form in all material respects
with the applicable accounting requirements of the 1934 Act and the 1934
Act Regulations, nothing came to their attention that caused them to
believe that the unaudited condensed consolidated financial statements do
not comply as to form in all material respects with the applicable
accounting requirements of the 1934 Act and 1934 Act Regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Partnership for the five most recent fiscal years included in the
Prospectus agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for such five
fiscal years, which were included or incorporated by reference in the
Partnership's Annual Reports on Form 10-K for such fiscal years;
(v) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Partnership and its subsidiaries, inspection
of the minute books of the Partnership and its subsidiaries since the date
of the latest audited financial statements included in the Prospectus,
inquiries of officials of the
29
Partnership and its subsidiaries responsible for financial and accounting
matters and such other inquiries and procedures as may be specified in
such letter, nothing came to their attention that caused them to believe
that:
(A) (i) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
1934 Act and the 1934 Act Regulations, or (ii) any material
modifications should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus for them to be
in conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any such
unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included in
the Prospectus;
(C) the unaudited financial statements that were not included
in the Prospectus but from which were derived any unaudited
condensed financial statements referred to in clause (A) and any
unaudited income statement data and balance sheet items included in
the Prospectus and referred to in clause (B) were not determined on
a basis substantially consistent with the basis for the audited
consolidated financial statements included in the Prospectus;
(D) any unaudited pro forma consolidated condensed financial
statements included in the Prospectus do not comply as to form in
all material respects with the applicable accounting requirements of
the 1934 Act and the 1934 Act Regulations or the pro forma
adjustments have not been properly applied to the historical amounts
in the compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated partner's capital (other than issuances of capital
stock upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of convertible
securities, in each case that were outstanding on the date of the
latest financial statements included in the Prospectus) or any
increase in the consolidated long-term debt of the Partnership and
its consolidated subsidiaries, or any decreases in consolidated net
current assets or stockholders' or unitholders' equity or other
items specified by the Underwriters, or any increases in any items
specified by the Purchaser, in each case as compared with amounts
shown in the latest balance sheet included in the Prospectus, except
in each case for changes, increases or decreases that the Prospectus
discloses have occurred or may occur or that are described in such
letter; and
30
(F) for the period from the date of the latest financial
statements included in the Prospectus to the specified date referred
to in clause (E) there were any decreases in consolidated net
revenues or operating profit or the total or per share amounts of
consolidated net income or other items specified by the
Underwriters, or any increases in any items specified by the
Underwriters, in each case as compared with the comparable period of
the preceding year and with any other period of corresponding length
specified by the Underwriters, except in each case for decreases or
increases that the Prospectus discloses have occurred or may occur
or that are described in such letter; and
(vi) In addition to the examination referred to in their report(s)
included in the Prospectus and the limited procedures, inspection of
minute books, inquiries and other procedures referred to in paragraphs
(iii) and (iv) above, they have carried out certain specified procedures,
not constituting an examination in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and
financial information specified by the Underwriters, which are derived
from the general accounting records of the Partnership and its
subsidiaries, which appear in the Prospectus, and have compared certain of
such amounts, percentages and financial information with the accounting
records of the Partnership and its subsidiaries and have found them to be
in agreement.
