Boardwalk Pipeline Partners, LP 8,000,000 Common Units Representing Limited Partner Interests UNDERWRITING AGREEMENT
Exhibit
1.1
8,000,000
Common Units
Representing
Limited Partner Interests
March
19,
2007
Xxxxxx
Brothers Inc.
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
Boardwalk
Pipeline Partners, LP, a Delaware limited partnership (the “Partnership”),
proposes to sell 8,000,000 common units (the “Units”)
representing limited partner interests in the Partnership (the “Common
Units”).
This
agreement (this “Agreement”)
is to
confirm the agreement concerning the purchase of the Units from the Partnership
by Xxxxxx Brothers Inc. (the “Underwriter”).
Boardwalk
GP, LP, a Delaware limited partnership (the “General
Partner”),
serves as the sole general partner of the Partnership. Boardwalk GP, LLC, a
Delaware limited liability company (“BGL”),
serves as the sole general partner of the General Partner. Each of Boardwalk
Operating GP, LLC, a Delaware limited liability company (“Operating
GP”),
Boardwalk Pipelines, LP, a Delaware limited partnership (the “Operating
Partnership”),
Texas
Gas Transmission, LLC, a Delaware limited liability company (“Texas
Gas”),
GS
Pipeline Company, LLC, a Delaware limited liability company (“Gulf
South GP”),
Gulf
South Pipeline Company, LP, a Delaware limited partnership (“Gulf
South”),
and
Gulf Crossing Pipeline Company, LLC, a Delaware limited liability company
(“Gulf Crossing”),
is
sometimes referred to herein as a “Subsidiary,”
and
they are sometimes collectively referred to herein as the “Subsidiaries.”
Each
of BGL, the General Partner and the Partnership is sometimes referred to herein
as a “Partnership
Party,”
and
they are sometimes collectively referred to herein as the “Partnership
Parties.”
Each
of the Partnership Parties and each of the Subsidiaries is sometimes referred
to
herein as a “Partnership
Entity,”
and
they are sometimes collectively referred to herein as the “Partnership
Entities.”
1. Representations,
Warranties and Agreements of the Partnership Parties»
.
Each
Partnership Party jointly and severally represents, warrants and agrees
that:
(a) A
registration statement on Form S-3 relating to the Units (File No. 333-141058)
(i) has been prepared by the Partnership in conformity with the
requirements of the Securities Act of 1933, as amended (the “Securities
Act”)
and
the rules and regulations (the “Rules
and Regulations”)
of the
Securities and Exchange Commission (the “Commission”)
thereunder; (ii) has been filed with the Commission under the Securities Act;
and (iii) is effective under the Securities Act. Copies of such
registration statement and any amendment thereto (including all documents
incorporated by reference in each prospectus contained therein) have been
delivered by the Partnership to you (the “Underwriter”).
As
used in this Agreement,
(i) “Applicable
Time”
means
8:30 a.m. (New York City time) on March 20, 2007;
(ii) “Base
Prospectus”
means
the base prospectus filed as part of the Registration Statement, in the form
in
which it has most recently been amended on or prior to the date hereof, relating
to the Units;
(iii) “Effective
Date”
means
any date as of which any part of such registration statement relating to the
Units became, or is deemed to have become, effective under the Securities Act
in
accordance with the Rules and Regulations;
(iv) “Issuer
Free Writing Prospectus”
means
each “free writing prospectus” (as defined in Rule 405 of the Rules and
Regulations) prepared by or on behalf of the Partnership or used or referred
to
by the Partnership in connection with the offering of the Units;
(v) “Pricing
Disclosure Package”
means,
as of the Applicable Time, the Base Prospectus, together with the information
included in Schedule 3 hereto and each Issuer Free Writing Prospectus identified
on Schedule 4 hereto, other than a road show that is an Issuer Free Writing
Prospectus but is not required to be filed under Rule 433 of the Rules and
Regulations;
(vi) “Prospectus”
means
the final prospectus relating to the Units, including the Base Prospectus and
any prospectus supplement thereto relating to the Units, as filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations;
and
(vii) “Registration
Statement”
means,
collectively, the various parts of such registration statement, including all
exhibits thereto, each as amended as of the Effective Date for such part,
including the Prospectus and all exhibits to such registration
statement.
Any
reference to the Registration Statement, Base Prospectus, the Pricing Disclosure
Package or the Prospectus shall be deemed to refer to and include any documents
incorporated by reference therein pursuant to Form S-3 under the Securities
Act.
Any reference to any amendment or supplement to the Pricing Disclosure Package
or the Prospectus shall be deemed to refer to and include any document filed
under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”),
after
the date of the Pricing Disclosure Package or the Prospectus, as the case may
be, and incorporated by reference in the Pricing Disclosure Package or the
Prospectus, as the case may be; and any reference to any amendment to the
Registration Statement shall be deemed to include any periodic or current report
of the Partnership filed with the Commission pursuant to Section 13(a) or 15(d)
of the Exchange Act after the Effective Date and that is incorporated by
reference in the Registration Statement. The Commission has not issued any
order
preventing or suspending the use of the Pricing Disclosure Package or the
Prospectus or suspending the effectiveness of the Registration Statement, and
no
proceeding for such purpose has been instituted or threatened by the Commission,
The Commission has not notified the Partnership of any objection to the use
of
the form of the Registration Statement.
(b) The
Partnership was, (i) at the time of filing of the Registration Statement and
(ii) at the time of the most recent amendment thereto (whether by post-effective
amendment, incorporated report filed pursuant to Section 13 or 15(d) of the
Exchange Act, or form of prospectus) for purposes of complying with Section
10(a)(3) of the Securities Act (or, if any such amendment was not made within
the time period required by Section 10(a)(3) of the Securities Act, at the
date
on which such amendment was required), a “well-known seasoned issuer” (as
defined in Rule 405 of the Rules and Regulations). The Partnership was not,
at
the earliest time after the filing of the Registration Statement at which the
Partnership or another offering participant made a bona fide offer (including
without limitation through the use of a free writing prospectus) relating to
the
Units, an “ineligible issuer” (as defined in Rule 405 of the Rules and
Regulations). The Registration Statement is an “automatic shelf registration
statement” (as defined in Rule 405 of the Rules and Regulations) and was filed
not earlier than the date that is three years prior to the Delivery Date (as
defined in Section 4).
(c) The
Registration Statement conformed and will conform in all material respects
on
the Effective Date and on the Delivery Date, and any amendment to the
Registration Statement filed after the date hereof will conform in all material
respects when filed, to the requirements of the Securities Act and the Rules
and
Regulations. The Prospectus will conform in all material respects, when filed
with the Commission pursuant to Rule 424(b) of the Rules and Regulations and
on
the Delivery Date, to the requirements of the Securities Act and the Rules
and
Regulations. The documents incorporated by reference into the Pricing Disclosure
Package or the Prospectus conformed or will conform, at the time they were
or
are filed with the Commission, in all material respects to the requirements
of
the Exchange Act or the Securities Act, as applicable, and the rules and
regulations of the Commission thereunder.
(d) The
Registration Statement did not, as of the Effective Date, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided
that no
representation or warranty is made as to information contained in or omitted
from the Registration Statement in reliance upon and in conformity with written
information furnished to the Partnership by or on behalf of the Underwriter
specifically for inclusion therein, which information is specified in
Section 8(e)
hereof.
(e) The
Prospectus and any amendment or supplement thereto did not, as of its date,
and
will not, as of the Delivery Date, contain an untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided
that no
representation or warranty is made as to information contained in or omitted
from the Prospectus in reliance upon and in conformity with written information
furnished to the Partnership by or on behalf of the Underwriter specifically
for
inclusion therein, which information is specified in Section 8(e)
hereof.
(f) The
documents incorporated by reference into the Registration Statement, the Pricing
Disclosure Package and the Prospectus did not, and any further documents filed
and incorporated by reference will not, at the time they were or are filed
with
the Commission, contain an untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein (and in the case of
documents incorporated by reference into the Pricing Disclosure Package or
the
Prospectus, in the light of the circumstances under which they were made) not
misleading.
(g) The
Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue
statement of a material fact or omit to state a material fact necessary to
make
the statements therein, in the light of the circumstances under which they
were
made, not misleading; provided
that no
representation or warranty is made as to information contained in or omitted
from the Pricing Disclosure Package in reliance upon and in conformity with
written information furnished to the Partnership by or on behalf of the
Underwriter specifically for inclusion therein, which information is specified
in Section 8(e)
hereof.
(h) Each
Issuer Free Writing Prospectus (including, without limitation, any road show
that is a free writing prospectus under Rule 433 of the Rules and Regulations),
when considered together with the Pricing Disclosure Package as of the
Applicable Time, did not contain an untrue statement of a material fact or
omit
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(i) Each
Issuer Free Writing Prospectus conformed or will conform in all material
respects to the requirements of the Securities Act and the Rules and Regulations
on the date of first use, and the Partnership has complied with all prospectus
delivery and any filing requirements applicable to such Issuer Free Writing
Prospectus pursuant to the Rules and Regulations. The Partnership has not made
any offer relating to the Units that would constitute an Issuer Free Writing
Prospectus without the prior written consent of the Underwriter. The Partnership
has retained in accordance with the Rules and Regulations all Issuer Free
Writing Prospectuses that were not required to be filed pursuant to the Rules
and Regulations.
(j) Each
of
the General Partner, the Partnership, the Operating Partnership and Gulf South
has been duly formed and is validly existing and in good standing as a limited
partnership under the Delaware Revised Uniform Limited Partnership Act (the
“Delaware
LP Act”),
has
the full partnership power and authority necessary to own or hold its properties
and assets and to conduct the businesses in which it is engaged, and is, or
at
the Delivery Date will be, duly registered or qualified to do business and
in
good standing as a foreign limited partnership in each jurisdiction listed
opposite its name in Schedule 1
attached
hereto, such jurisdictions being the only jurisdictions in which its ownership
or lease of property or the conduct of its business requires such qualification,
except where the failure to so register or qualify could not reasonably be
expected to (i) have a material adverse effect on the condition (financial
or other), results of operations, securityholders’ equity, properties, business
or prospects of the Partnership Entities (other than the General Partner and
BGL), taken as a whole (a “Material
Adverse Effect”)
or
(ii) subject the limited partners of the Partnership to any material
liability or disability.
(k) Each
of
BGL, Operating GP, Texas Gas, Gulf South GP and Gulf Crossing has been duly
formed and is validly existing and in good standing as a limited liability
company under the Delaware Limited Liability Company Act (the “Delaware
LLC Act”),
has
the full limited liability company power and authority necessary to own or
hold
its properties and assets and to conduct the businesses in which it is engaged,
and is, or at the Delivery Date will be, duly registered or qualified to do
business and in good standing as a foreign limited liability company in each
jurisdiction listed opposite its name in Schedule 1
attached
hereto, such jurisdictions being the only jurisdictions in which its ownership
or lease of property or the conduct of its business requires such qualification,
except where the failure to so register or qualify could not reasonably be
expected to (i) have a Material Adverse Effect or (ii) subject the
limited partners of the Partnership to any material liability or
disability.
(l) (l)Relying
solely on documents filed by Loews Corporation, a Delaware corporation
(“Loews”),
under
Section 13(d) of the Exchange Act, Loews indirectly owns a 100% limited
liability company interest in BGL; such limited liability company interest
has
been duly and validly authorized and issued in accordance with the limited
liability company agreement of BGL (as the same may be amended and restated
on
or prior to the Delivery Date, the “BGL
LLC Agreement”)
and is
fully paid (to the extent required under the BGL LLC Agreement) and
non-assessable (except as such non-assessability may be affected by Sections
18-607 and 18-804 of the Delaware LLC Act).
(m) BGL
is
the sole general partner of the General Partner, with a 0.001% general partner
interest in the General Partner; such general partner interest has been duly
and
validly authorized and issued in accordance with the agreement of limited
partnership of the General Partner (as the same may be amended and restated
on
or prior to the Delivery Date, the “GP
Partnership Agreement”);
and
BGL owns such general partner interest free and clear of all liens,
encumbrances, security interests, equities, charges or claims (collectively,
“Liens”).
(n) The
General Partner is the sole general partner of the Partnership, with a 2.0%
general partner interest in the Partnership; such general partner interest
has
been duly and validly authorized and issued in accordance with the Second
Amended and Restated Agreement of Limited Partnership of the Partnership (as
the
same may be amended and restated on or prior to the Delivery Date, the
“Partnership
Agreement”);
and
the General Partner owns such general partner interest free and clear of all
Liens. The General Partner owns all of the Incentive Distribution Rights (as
defined in the Partnership Agreement); all of such Incentive Distribution Rights
have been duly and validly authorized and issued in accordance with the
Partnership Agreement and are fully paid (to the extent required under the
Partnership Agreement) and non-assessable (except as such non-assessability
may
be affected by matters described in the Base Prospectus under the caption “The
Partnership Agreement—Limited Liability”); the General Partner owns all of such
Incentive Distribution Rights free and clear of all Liens; and such Incentive
Distribution Rights conform to the descriptions thereof contained in the Pricing
Disclosure Package.
(o) (o)Relying
solely on documents filed by Loews under Section 13(d) of the Exchange Act,
Loews indirectly owns all of the outstanding subordinated units (“Subordinated
Units”)
and
53,256,122 Common Units (such Subordinated Units and Common Units, the
“Sponsor
Units”);
all
of such Sponsor Units have been duly and validly authorized and issued in
accordance with the Partnership Agreement and are fully paid (to the extent
required under the Partnership Agreement) and non-assessable (except as such
non-assessability may be affected by matters described in the Base Prospectus
under the caption “The Partnership Agreement—Limited Liability”); and such
Sponsor Units conform to the descriptions thereof contained in each of the
Pricing Disclosure Package and the Prospectus.
(p) The
Units
to be issued and sold by the Partnership to the Underwriter hereunder have
been
duly authorized in accordance with the Partnership Agreement and, when issued
and delivered against payment therefor pursuant to this Agreement, will be
validly issued in accordance with the Partnership Agreement, fully paid (to
the
extent required under the Partnership Agreement) and non-assessable (except
as
such non-assessability may be affected by matters described in the Base
Prospectus under the caption “The Partnership Agreement—Limited Liability”); the
Units, when issued and delivered against payment therefor pursuant to this
Agreement, will conform to the descriptions thereof contained in Pricing
Disclosure Package; and other than the Sponsor Units, the Incentive Distribution
Rights and the Common Units issued in the Partnership’s initial public offering
and in its November 2006 follow-on public offering, the Units to be issued
and
sold by the Partnership to the Underwriter hereunder will be the only limited
partner interests in the Partnership issued and outstanding at the Delivery
Date.
(q) The
Partnership owns a 100% limited liability company interest in Operating GP;
such
limited liability company interest has been duly and validly authorized and
issued in accordance with the limited liability company agreement of Operating
GP (as the same may be amended and restated on or prior to the Delivery Date,
the “Operating
GP LLC Agreement”)
and is
fully paid (to the extent required under the Operating GP LLC Agreement) and
non-assessable (except as such non-assessability may be affected by Sections
18-607 and 18-804 of the Delaware LLC Act); and the Partnership owns such
limited liability company interest free and clear of all Liens (except for
such
Liens as are not individually or in the aggregate, material to such ownership
or
as described in the Pricing Disclosure Package).
(r) Operating
GP is the sole general partner of the Operating Partnership, with a 0.001%
general partner interest in the Operating Partnership; such general partner
interest has been duly and validly authorized and issued in accordance with
the
agreement of limited partnership of the Operating Partnership (as the same
may
be amended and restated on or prior to the Delivery Date, the “Operating
Partnership Agreement”);
and
Operating GP owns such general partner interest free and clear of all Liens.
The
Partnership is the sole limited partner of the Operating Partnership, with
a
99.999% limited partner interest in the Operating Partnership; such limited
partner interest has been duly and validly authorized and issued in accordance
with the Operating Partnership Agreement and is fully paid (to the extent
required under the Operating Partnership Agreement) and non-assessable (except
as such non-assessability may be affected by Sections 17-607 and 17-804 of
the
Delaware LP Act); and the Partnership owns such limited partner interest free
and clear of all Liens (except for such Liens as are not individually or in
the
aggregate, material to such ownership or as described in the Pricing Disclosure
Package).
(s) The
Operating Partnership owns a 100% limited liability company interest in Texas
Gas; such limited liability company interest has been duly and validly
authorized and issued in accordance with the limited liability company agreement
of Texas Gas (as the same may be amended and restated on or prior to the
Delivery Date, the “Texas
Gas LLC Agreement”)
and is
fully paid (to the extent required under the Texas Gas LLC Agreement) and
non-assessable (except as such non-assessability may be affected by Sections
18-607 and 18-804 of the Delaware LLC Act); and the Operating Partnership owns
such limited liability company interest free and clear of all Liens (except
for
such Liens as are not individually or in the aggregate, material to such
ownership or as described in the Pricing Disclosure Package).
(t) The
Operating Partnership owns a 100% limited liability company interest in Gulf
South GP; such limited liability company interest has been duly and validly
authorized and issued in accordance with the limited liability company agreement
of Gulf South GP (as the same may be amended and restated on or prior to the
Delivery Date, the “Gulf
South GP LLC Agreement”)
and is
fully paid (to the extent required under the Gulf South GP LLC Agreement) and
non-assessable (except as such non-assessability may be affected by Sections
18-607 and 18-804 of the Delaware LLC Act); and the Operating Partnership owns
such limited liability company interest free and clear of all Liens (except
for
such Liens as are not individually or in the aggregate, material to such
ownership or as described in the Pricing Disclosure Package).
(u) Gulf
South GP is the sole general partner of Gulf South, with a 1.0% general partner
interest in Gulf South; such general partner interest has been duly and validly
authorized and issued in accordance with the agreement of limited partnership
of
Gulf South (as the same may be amended and restated on or prior to the Delivery
Date, the “Gulf
South Partnership Agreement”);
and
Gulf South GP owns such general partner interest free and clear of all Liens.
The Operating Partnership is the sole limited partner of Gulf South, with a
99.0% limited partner interest in Gulf South; such limited partner interest
has
been duly and validly authorized and issued in accordance with the Gulf South
Partnership Agreement and is fully paid (to the extent required under the Gulf
South Partnership Agreement) and non-assessable (except as such
non-assessability may be affected by Sections 17-607 and 17-804 of the Delaware
LP Act); and the Operating Partnership owns such limited partner interest free
and clear of all Liens (except for such Liens as are not individually or in
the
aggregate, material to such ownership or as described in the Pricing Disclosure
Package).
(v) The
Operating Partnership owns a 100% limited liability company interest in Gulf
Crossing; such limited liability company interest has been duly and validly
authorized and issued in accordance with the limited liability company agreement
of Gulf Crossing (as the same may be amended and restated on or prior to the
Delivery Date, the “Gulf
Crossing LLC Agreement”)
and is
fully paid (to the extent required under the Gulf Crossing LLC Agreement) and
non-assessable (except as such non-assessability may be affected by Sections
18-607 and 18-804 of the Delaware LLC Act); and the Operating Partnership owns
such limited liability company interest free and clear of all Liens (except
for
such Liens as are not individually or in the aggregate, material to such
ownership or as described in the Pricing Disclosure Package).
(w) Other
than (i) BGL’s ownership of a 0.001% general partner interest in the
General Partner, (ii) the General Partner’s ownership of a 2% general
partner interest in the Partnership, (iii) the General Partner’s ownership
of all of the Incentive Distribution Rights, (iv) the Partnership’s
ownership of a 100% limited liability company interest in Operating GP,
(v) the Partnership’s ownership of a 99.999% limited partner interest in
the Operating Partnership, (vi) Operating GP’s ownership of a 0.001%
general partner interest in the Operating Partnership, (vii) the Operating
Partnership’s ownership of a 100% limited liability company interest in Texas
Gas, (viii) the Operating Partnership’s ownership of a 100% limited
liability company interest in Gulf South GP, (ix) the Operating
Partnership’s ownership of a 99% limited partner interest in Gulf South,
(x) Gulf South GP’s ownership of a 1% general partner interest in Gulf
South and (xi) the Operating Partneship’s ownership of a 100% limited liability
company interest in Gulf Crossing, no Partnership Entity owns, directly or
indirectly, any equity or short- or long-term debt securities (other than
intercompany advances and notes among the Partnership and the Subsidiaries)
of
any corporation, partnership, limited liability company, joint venture,
association or other entity.
(x) Except
as
described in the Pricing Disclosure Package or provided for in the Partnership
Agreement, there are no preemptive rights or other rights to subscribe for
or to
purchase, nor any restriction upon the voting or transfer of, any limited
partner interests in the Partnership pursuant to any agreement or instrument
to
which any of the Partnership Entities is a party or by which any one of them
may
be bound. Except as described in the Pricing Disclosure Package or as provided
for in the applicable Organizational Documents, there are no outstanding options
or warrants to purchase (A) any Common Units, Subordinated Units or other
interests in the Partnership or (B) any interests in BGL, the General
Partner, or the Subsidiaries. “Organizational
Documents”
means,
collectively, the GP Partnership Agreement, the Partnership Agreement, the
Operating Partnership Agreement, the Gulf South Partnership Agreement, the
BGL
LLC Agreement, the Operating GP LLC Agreement, the Texas Gas LLC Agreement,
the
Gulf South GP LLC Agreement and the Gulf Crossing LLC Agreement, each as amended
or restated at or prior to the Delivery Date.
(y) Except
as
described in the Pricing Disclosure Package or provided for in the Partnership
Agreement, there are no contracts, agreements or understandings between any
Partnership Party and any person granting such person the right to require
the
Partnership to file a registration statement under the Securities Act with
respect to any securities of the Partnership owned or to be owned by such
person, or to require any Partnership to include such securities with the Units
registered pursuant to the Registration Statement or in any securities
registered or to be registered pursuant to any other registration statement
filed by or required to be filed by the Partnership under the Securities
Act.
(z) The
Partnership has not sold or issued any securities that would be integrated
with
the offering of the Units contemplated by this Agreement pursuant to the
Securities Act, the Rules and Regulations or the interpretations thereof by
the
Commission.
(aa) On
the
Delivery Date, the Partnership will have all requisite power and authority
to
issue, sell and deliver the Units, in accordance with and upon the terms and
conditions set forth in this Agreement, the Partnership Agreement, the
Registration Statement, the Pricing Disclosure Package and the Prospectus.
On
the Delivery Date, all corporate, partnership or limited liability company
action, as the case may be, required to be taken by the Partnership Parties
or
any of their stockholders, members or partners for the authorization, issuance,
sale and delivery of the Units, the execution and delivery by the Partnership
Parties of this Agreement and the consummation of the transactions contemplated
hereby shall have been validly taken.
(bb) This
Agreement has been duly and validly authorized, executed and delivered by the
Partnership Parties.
(cc) None
of
the offering, issuance and sale by the Partnership of the Units and the
application of the proceeds therefrom as described under the caption “Use of
Proceeds” in each of the Pricing Disclosure Package and the Prospectus, the
execution, delivery and performance of this Agreement by the Partnership
Parties, or the consummation of the transactions contemplated hereby
(i) conflicts or will conflict with, or constitutes or will constitute a
violation of, the certificate or agreement of limited partnership, certificate
of formation, limited liability company agreement or other organizational
documents of any Partnership Party, (ii) conflicts or will conflict with,
or constitutes or will constitute a breach or violation of or a default under
(or an event that, with notice or lapse of time or both, would constitute such
a
breach or violation of or default under), any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which any
of
the Partnership Entities is a party, by which any of them is bound or to which
any of their respective properties or assets is subject, (iii) violates or
will violate any statute, law, ordinance, regulation, order, judgment, decree
or
injunction of any court or governmental agency or body to which any of the
Partnership Entities or any of their respective properties or assets may be
subject or (iv) will result in the creation or imposition of any Lien upon
any property or assets of any Partnership Entity which conflicts, breaches,
violations, defaults or Liens, in the case of clauses (ii), (iii) or (iv),
would, individually or in the aggregate, have a Material Adverse
Effect.
(dd) Except
for the registration of the Units under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws in connection with
the purchase and sale of the Units by the Underwriter, no consent, approval,
authorization or order of, or filing or registration with, any court or
governmental agency or body to which any of the Partnership Parties or any
of
their respective properties or assets is subject is required for the execution,
delivery and performance of this Agreement by the Partnership Parties, the
consummation of the transactions contemplated hereby and the application of
the
proceeds from the sale of the Units as described under the caption “Use of
Proceeds” in each of the Pricing Disclosure Package and the
Prospectus.
(ee) (i)
The
Partnership Agreement has been duly authorized, executed and delivered by the
General Partner and is a valid and legally binding agreement of the General
Partner, enforceable against the General Partner in accordance with its terms;
and (ii) each of the Organizational Documents (other than the Partnership
Agreement) has been duly authorized, executed and delivered by the respective
Partnership Entity or Entities thereto and is a valid and legally binding
agreement of such Partnership Entity or Entities, enforceable against such
parties in accordance with the terms of each of such Organizational Documents;
provided
that in
each case the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws related to
or
affecting creditors’ rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and provided,
further,
that
the indemnity, contribution and exoneration provisions contained in any such
agreements may limited by applicable laws and public policy.
(ff) The
historical consolidated financial statements (including the related notes and
supporting schedules) included in, or incorporated by reference into, the
Registration Statement, the Pricing Disclosure Package and the Prospectus (and
any amendment or supplement thereto) comply as to form in all material respects
with the requirements of Regulation S-X of the Commission and present fairly
in
all material respects the financial position, results of operations and cash
flows of the entities purported to be shown thereby on the basis stated therein
at the respective dates or for the respective periods to which they apply,
and,
except as otherwise disclosed in the Pricing Disclosure Package and the
Prospectus, have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved. Any summary
historical information set forth in the Registration Statement, the Pricing
Disclosure Package and the Prospectus (and any amendment or supplement thereto)
is accurately presented in all material respects and prepared on a basis
consistent with the audited and unaudited historical consolidated financial
statements from which it has been derived.
(gg) Deloitte
& Touche LLP, who have certified certain financial statements of the
Partnership, whose reports are incorporated by reference in each of the
Registration Statement and the Prospectus and who have delivered the initial
letter referred to in Section 7(g)
hereof,
are an independent registered public accounting firm as required by the
Securities Act and the Rules and Regulations and were such during the periods
covered by the financial statements on which they reported.
(hh) Each
Partnership Entity has good and indefeasible title to all real property and
good
title to all personal property contemplated as owned or to be owned by it in
each of the Pricing Disclosure Package and the Prospectus, in each case free
and
clear of all Liens, except as described in the Pricing Disclosure Package or
that would not materially affect the value of such property and would not
materially interfere with the use made and proposed to be made of such property
as described in each of the Pricing Disclosure Package and the Prospectus.
With
respect to title to pipeline rights-of-way, none of the Partnership Entities
has
received any actual notice or claim from any owner of land upon which any
pipeline that is owned by any Subsidiary is located that such entity does not
have sufficient title to enable it to use and occupy the pipeline rights-of-way
as they have been used and occupied in the past and are proposed to be used
and
occupied in the future as described in each of the Pricing Disclosure Package
and the Prospectus, except where such failure to have sufficient title would
not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect. All assets held under lease or license by the Partnership
Entities are held under valid, subsisting and enforceable leases or licenses,
with such exceptions as would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect or materially interfere with
the
use made and proposed to be made of such assets as they have been used in the
past and are proposed to be used in the future as described in each of the
Pricing Disclosure Package and the Prospectus.
(ii) Each
Partnership Entity carries or is covered by insurance from insurers of
recognized financial responsibility in such amounts and covering such risks
as
is reasonably adequate for the conduct of its business and the value of its
properties and as is customary for companies engaged in similar businesses
in
similar industries. All policies of insurance of each Partnership Entity are
in
full force and effect, except as would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect; each Partnership
Entity is in compliance with the terms of such policies in all material
respects; and no Partnership Entity has received notice from any insurer or
agent of such insurer that any material capital improvements or other
expenditures are required or necessary to be made in order to continue such
insurance.
(jj) Each
Partnership Entity owns or possesses adequate rights to use all material
patents, patent applications, trademarks, service marks, trade names, trademark
registrations, service xxxx registrations, copyrights, licenses and know-how
(including trade secrets and other unpatented and/or unpatentable proprietary
or
confidential information, systems or procedures) necessary for the conduct
of
its business, and no Partnership Entity has any reason to believe that the
conduct by any Partnership Entity of its business will conflict in any material
respect with, and no Partnership Entity has received any notice or claim of
conflict with, any such rights of any other person or party, with such
exceptions as would not reasonably be expected to have, individually or in
the
aggregate, a Material Adverse Effect or materially interfere with the use made
and proposed to be made of such assets as they have been used in the past and
are proposed to be used in the future as described in each of the Pricing
Disclosure Package and the Prospectus.
(kk) Except
as
described in the Pricing Disclosure Package, there are no legal or governmental
proceedings pending to which any Partnership Entity is a party or to which
any
property or asset of any Partnership Entity is subject that, if determined
adversely to such party, could reasonably be expected to have, individually
or
in the aggregate, a Material Adverse Effect or a material adverse effect on
the
performance of this Agreement or the consummation of the transactions
contemplated hereby, and to the knowledge of the Partnership Parties, no such
proceedings are threatened or contemplated by governmental authorities or
others. There are no legal or governmental proceedings pending that are required
to be described in the Pricing Disclosure Package and the Prospectus that are
not so described.
(ll) There
are
no contracts or other documents that are required to be described in the
Registration Statement, the Pricing Disclosure Package or the Prospectus or
filed as exhibits to the Registration Statement or to a document incorporated
by
reference into the Registration Statement, the Pricing Disclosure Package or
the
Prospectus by the Securities Act or the Rules and Regulations that have not
been
so described in the most Registration Statement and the Prospectus or filed
as
exhibits to the Registration Statement or such incorporated
document.
(mm) The
statements set forth in each of the Registration Statement and the Prospectus
under the captions “How We Make Cash Distributions,” “Conflicts of Interest and
Fiduciary Duties,” “Description of the Common Units” and “The Partnership
Agreement,” insofar as they purport to constitute a summary of the terms of the
Common Units and the Subordinated Units, and under the caption “Material Tax
Consequences,” insofar as they purport to describe the provisions of the laws
and documents referred to therein, are fair and accurate summaries in all
material respects.
(nn) Except
as
described in the Pricing Disclosure Package, no labor disturbance by the
employees of any Partnership Entity exists or, to the knowledge of the
Partnership Parties, is imminent or threatened that could reasonably be expected
to have a Material Adverse Effect.
(oo) Since
the
date of the latest audited financial statements included in or incorporated
by
reference into the Pricing Disclosure Package, (i) no Partnership Entity
has sustained any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, any labor dispute
or any court or governmental action, order or decree, and (ii) there has
not been any adverse change in the partners’ capital, members’ equity or short-
or long-term debt of any Partnership Entity or any adverse change, or any
development involving a prospective adverse change, in or affecting the
condition (financial or otherwise), results of operations, securityholders’
equity, properties, management, business or prospects of any Partnership Entity,
in each case except as could not reasonably be expected to have a Material
Adverse Effect or as set forth or contemplated in the Pricing Disclosure
Package.
(pp) Each
Partnership Entity has filed all tax returns required to be filed through the
date hereof, which returns are complete and correct in all material respects,
and has paid all taxes shown to be due pursuant to such returns, other than
those that (i) if not paid, could not reasonably be expected to have a
Material Adverse Effect or (ii) are being contested in good faith and for
which adequate reserves have been established in accordance with generally
accepted accounting principles.
(qq) From
the
date as of which information is given in the Pricing Disclosure Package through
the date hereof, and except as may be disclosed in the Pricing Disclosure
Package, none of the Partnership Entities has (i) issued or granted any
securities, (ii) incurred any liability or obligation, direct or
contingent, other than liabilities and obligations that were incurred in the
ordinary course of business, (iii) entered into any transaction not in the
ordinary course of business or (iv) declared or paid any dividend or
distribution on its capital stock or other equity interests.
(rr) Each
Partnership Entity (i) makes and keeps accurate books and records and
(ii) maintains a system of internal accounting controls sufficient to
provide reasonable assurance that (A) transactions are executed in
accordance with management’s general or specific authorizations,
(B) transactions are recorded as necessary to permit preparation of the
Partnership’s financial statements in conformity with accounting principles
generally accepted in the United States and to maintain accountability for
its
assets, (C) access to the Partnership Entities’ assets is permitted only in
accordance with management’s general or specific authorization and (D) the
recorded accountability for the Partnership Entities’ assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(ss) The
Partnership has established and maintains disclosure controls and procedures
(as
such term is defined in Rule 13a-15 under the Exchange Act), (ii) such
disclosure controls and procedures are designed to ensure that the information
required to be disclosed by the Partnership in the reports it files or submits
under the Exchange Act is accumulated and communicated to management of the
Partnership, including its principal executive officers and principal financial
officers, as appropriate, to allow timely decisions regarding required
disclosure to be made and (iii) such disclosure controls and procedures are
effective in all material respects to perform the functions for which they
were
established.
(tt) Since
the
date of the most recent balance sheet of the Partnership reviewed or audited
by
Deloitte & Touche LLP and the audit committee of the board of directors of
BGL, (i) the Partnership Parties have not been advised of (A) any significant
deficiencies in the design or operation of internal controls that are reasonably
likely to adversely affect the ability of the Partnership Entities to record,
process, summarize and report financial data, or any material weaknesses in
internal controls (whether or not remediated) and (B) any fraud, whether or
not
material, that involves management or other employees who have a significant
role in the internal controls of the Partnership Entities, and (ii) since that
date, there have been no changes in internal controls that have materially
affected, or are reasonably likely to materially affect, internal controls,
including any corrective actions with regard to significant deficiencies and
material weaknesses.
(uu) Each
Partnership Entity subject to the Xxxxxxxx-Xxxxx Act of 2002, and each of its
directors and officers in their capacities as such, is in compliance in all
material respects with such act.
(vv) None
of
the Partnership Entities (i) is in violation of its certificate or
agreement of limited partnership, certificate of formation or limited liability
company agreement, certificate or articles of incorporation, bylaws or other
organizational documents, (ii) is in breach of or default under any term,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan
agreement, lease or other agreement or instrument to which it is a party, by
which it is bound or to which any of its properties or assets is subject (and
no
event has occurred that, with notice or lapse of time or both, would constitute
such a breach or default), (iii) is in violation of any statute, law,
ordinance, rule, regulation, order, judgment, decree or injunction of any court
or governmental agency or body to which it or its property or assets may be
subject or (iv) has failed to obtain any license, permit, certificate,
franchise or other governmental authorization or permit necessary to the
ownership of its property or to the conduct of its business, except, in the
case
of clauses (ii) or (iv), as could not reasonably be expected to have a Material
Adverse Effect.
(ww) Except
as
described in the Pricing Disclosure Package, the Partnership Entities
(i) are in compliance with any and all applicable federal, state and local
laws, regulations, ordinances, rules, orders, judgments, decrees or other legal
requirements relating to the protection of human health and safety, the
environment or natural resources or imposing liability or standards of conduct
concerning any Hazardous Materials (as defined below) (“Environmental
Laws”),
(ii) have received, and as necessary maintained, all permits required of
them under applicable Environmental Laws to conduct their respective businesses,
(iii) are in compliance with all terms and conditions of any such permits
and (iv) do not have any liability in connection with the release into the
environment of any Hazardous Material, except where such noncompliance with
Environmental Laws, failure to receive and maintain required permits, failure
to
comply with the terms and conditions of such permits or liability in connection
with such releases could not, individually or in the aggregate, reasonably
be
expected to have a Material Adverse Effect. The term “Hazardous
Material”
means
(1) any “hazardous substance” as defined in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (“CERCLA”),
(2) any “hazardous waste” as defined in the Resource Conservation and
Recovery Act, as amended, (3) petroleum or any petroleum product,
(4) any polychlorinated biphenyl and (5) any pollutant, contaminant or
hazardous, dangerous or toxic chemical, material, waste or substance regulated
under or within the meaning of any other Environmental Law. Except as described
in the Pricing Disclosure Package, no Partnership Entity has been named as
a
“potentially responsible party” under CERCLA or any other similar Environmental
Law, except with respect to any matters that, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect. Except
as
described in the Pricing Disclosure Package, no Partnership Entity (A) is a
party to any proceeding under Environmental Laws in which a governmental
authority is also a party, other than proceedings regarding which it is believed
that no monetary penalties in excess of $100,000 will be imposed, (B) has
received notice of any potential liability for the disposal or release of any
Hazardous Material, except where such liability could not reasonably be expected
to have a Material Adverse Effect or (C) anticipates any material capital
expenditures relating to Environmental Laws.
(xx) Each
Partnership Entity is in compliance in all material respects with all presently
applicable provisions of the Employee Retirement Income Security Act of 1974,
as
amended, including the regulations and published interpretations thereunder
(“ERISA”);
no
“reportable event” (as defined in ERISA) has occurred with respect to any
“pension plan” (as defined in ERISA) for which any Partnership Entity would have
any liability; no Partnership Entity has incurred or expects to incur liability
under (i) Title IV of ERISA with respect to the termination of, or
withdrawal from, any “pension plan” or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the “Code”);
and
each “pension plan” that is intended to be qualified under Section 401(a) of the
Code and for which any Partnership Entity would have any liability is so
qualified and nothing has occurred, whether by action or by failure to act,
that
would cause the loss of such qualification.
(yy) Each
Partnership Entity has, or at the Delivery Date will have, such permits,
consents, licenses, franchises, certificates and other approvals or
authorizations of governmental or regulatory authorities (“Permits”)
as are
necessary to own or lease its properties and to conduct its business in the
manner described in each of the Pricing Disclosure Package and the Prospectus,
except as disclosed in or specifically contemplated by the Pricing Disclosure
Package or except for any failure to have any such Permit that could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect. Except as described in the Pricing Disclosure Package, each
Partnership Entity has fulfilled and performed all of its material obligations
with respect to all such Permits, and no event has occurred that would prevent
any such Permit from being renewed or reissued, that allows, or after notice
or
lapse of time would allow, revocation or termination of any such Permit or
that
would result in any other impairment of the rights of the holder of any such
Permit, except for any such non-renewal, revocation, termination or impairment
that could not reasonably be expected to have a Material Adverse
Effect.
(zz) The
Partnership is not, and as of the Delivery Date and after giving effect to
the
application of the net proceeds of the offering as described under the caption
“Use of Proceeds” in the Pricing Disclosure Package and the Prospectus, the
Partnership will not be, an “investment company” as defined in the Investment
Company Act of 1940, as amended (the “Investment
Company Act”).
(aaa) None
of
the Partnership Entities or, to the knowledge of the Partnership Parties, any
of
their affiliates has distributed, and prior to the later to occur of the
Delivery Date and completion of the distribution of the Units, none of the
Partnership Entities or, to the knowledge of the Partnership Parties, any of
their affiliates will distribute, any offering material in connection with
the
offering and sale of the Units other than the Pricing Disclosure Package, the
Prospectus, and any Issuer Free Writing Prospectus to which the Underwriter
has
consented pursuant to Section 1(i)
or
5(a)(vi)
hereof.
(bbb) None
of
the Partnership Entities or, to the knowledge of the Partnership Parties, any
of
their affiliates has taken, nor will any of the Partnership Entities or, to
the
knowledge of the Partnership Parties, any of their affiliates take, directly
or
indirectly, any action that has constituted, that was designed to cause or
result in, or that could reasonably be expected to cause or result in, the
stabilization or manipulation of the price of any security of any Partnership
Party to facilitate the sale or resale of the Units.
(ccc) Except
for this Agreement, there are no contracts, agreements or understandings between
the Partnership and any person that would give rise to a valid claim against
the
Partnership or the Underwriter for a brokerage commission, finder’s fee or other
like payment in connection with the offering and sale of the Units contemplated
by this Agreement.
Any
certificate signed by or on behalf of any Partnership Party and delivered to
the
Underwriter or counsel for the Underwriter in connection with the offering
of
the Units shall be deemed a representation and warranty by each such Partnership
Party, as to matters covered thereby, to the Underwriter.
2. Purchase
of the Units by the Underwriter»
.
On the
basis of the representations and warranties contained in, and subject to the
terms and conditions of, this Agreement, the Partnership agrees to sell
8,000,000 Units to the Underwriter, and the Underwriter agrees to purchase
such
Units.
The
price
of the Units purchased by the Underwriter shall be $36.00 per Unit.
The
Partnership shall not be obligated to deliver any of the Units to be delivered
on the Delivery Date, except upon payment for all such Units as provided
herein.
3. Offering
of Units by the Underwriter»
.
Upon
authorization by the Underwriter of the release of the Units, the Underwriter
proposes to offer the Units for sale upon the terms and conditions to be set
forth in the Prospectus.
4. Delivery
of and Payment for the Units»
.
Delivery of and payment for the Units shall be made at the offices of Xxxxxxx
Xxxxx LLP at 10:00 A.M., Eastern time, on the fourth full business day following
the date of this Agreement or at such other date, time or place as shall be
determined by agreement between the Underwriter and the Partnership. This date
and time are sometimes referred to as the “Delivery
Date.”
Delivery of the Units shall be made to the Underwriter against payment by the
Underwriter of the aggregate purchase price of the Units being sold by the
Partnership to or upon the order of the Partnership by wire transfer in
immediately available funds to the accounts specified by the Partnership. Time
shall be of the essence, and delivery of the Units at the time and place
specified pursuant to this Agreement is a further condition of the obligation
of
the Underwriter hereunder. The Partnership shall deliver the Units through
the
facilities of The Depository Trust Company, New York, New York (“DTC”)
unless
the Underwriter shall otherwise instruct.
5. Further
Agreements of the Partnership Parties and the Underwriter»
.
(a) Each
Partnership Party jointly and severally agrees:
(i) To
prepare the Prospectus in a form approved by the Underwriter (such approval
not
to be unreasonably withheld) and to file such Prospectus pursuant to Rule 424(b)
of the Rules and Regulations not later than the Commission’s close of business
on the second business day following the execution and delivery of this
Agreement or, if applicable, such earlier time as may be required by Rule
424(b); to make no further amendment or any supplement to the Registration
Statement or the Prospectus prior to the Delivery Date except as provided
herein; to advise the Underwriter, promptly after it receives notice thereof,
of
the time when any amendment or supplement to the Registration Statement or
the
Prospectus has been filed or has become effective and to furnish the Underwriter
with copies thereof; to file promptly all reports and any definitive proxy
or
information statements required to be filed by the Partnership with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery of
a
prospectus is required in connection with the offering or sale of the Units;
to
advise the Underwriter, promptly after it receives notice thereof, of the
issuance by the Commission or any state or other regulatory body of any stop
order or of any order suspending the effectiveness of the Registration Statement
or preventing or suspending the use of the Prospectus or any Issuer Free Writing
Prospectus, of the suspension of the qualification of the Units for offering
or
sale in any jurisdiction, of the initiation or threatening of any proceeding
for
any such purpose, of any notice from the Commission objecting to the use of
the
form of the Registration Statement or any post-effective amendment thereto,
or
of any request by the Commission for the amendment or supplement of the
Registration Statement, the Prospectus or any Issuer Free Writing Prospectus
or
for additional information; to use its best efforts to prevent the issuance
of
any such order or notice of objection, and, in the event of the issuance of
any
stop order or of any order preventing or suspending the use of the Prospectus
or
any Issuer Free Writing Prospectus or suspending any such qualification or
such
notice of objection, to use promptly its best efforts to obtain its
withdrawal;
(ii) To
pay
the required Commission filing fees relating to the Units within the time period
required by Rule 456(b)(1) of the Rules and Regulations without regard to the
proviso therein and otherwise in accordance with Rule 456(b) and 457(r) of
the
Rules and Regulations.
(iii) To
furnish promptly to the Underwriter and to counsel for the Underwriter a signed
copy of the Registration Statement as originally filed with the Commission,
and
each amendment thereto filed with the Commission, including all consents and
exhibits filed therewith;
(iv) To
deliver promptly to the Underwriter such number of the following documents
as
the Underwriter shall reasonably request: (A) conformed copies of the
Registration Statement as originally filed with the Commission and each
amendment thereto (in each case excluding exhibits other than this Agreement),
(B) the Prospectus and any amended or supplemented Prospectus,
(C) each Issuer Free Writing Prospectus and (D) any document
incorporated by reference in the Registration Statement or the Prospectus;
and,
if the delivery of a Prospectus (or in lieu thereof the notice referred to
in
Rule 173(a) under the Securities Act) is required at any time after the date
hereof in connection with the offering or sale of the Units or any other
securities relating thereto and if at such time any events shall have occurred
as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or, if for any other
reason it shall be necessary to amend or supplement the Prospectus or to file
under the Exchange Act any document incorporated by reference in order to comply
with the Securities Act or the Exchange Act, to notify the Underwriter and,
upon
its request, to prepare and file such document that will correct such statement
or omission or effect such compliance and furnish without charge to the
Underwriter and to any dealer in securities as many copies as the Underwriter
may from time to time reasonably request of such amended or supplemented
Prospectus or other documents;
(v) To
file
promptly with the Commission any amendment or supplement to the Registration
Statement or the Prospectus that may, in the reasonable judgment of the
Partnership or the Underwriter, be required by the Securities Act or requested
by the Commission;
(vi) Prior
to
filing with the Commission any amendment or supplement to the Registration
Statement or the Prospectus, or any document incorporated by reference in the
Prospectus or any amendment to any document incorporated by reference in the
Prospectus, to furnish a copy thereof to the Underwriter and counsel for the
Underwriter and obtain the consent of the Underwriter to the filing, which
consent shall not be unreasonably withheld and which shall be provided to the
Partnership promptly after having been given notice of the proposed filing;
provided
that the
foregoing provision shall not apply if such filing is, in the judgment of
counsel to the Partnership Parties, required by law;
(vii) Not
to
make any offer relating to the Units that would constitute an Issuer Free
Writing Prospectus without the prior written consent of the
Underwriter;
(viii) To
retain
in accordance with the Rules and Regulations all Issuer Free Writing
Prospectuses not required to be filed pursuant to the Rules and Regulations;
and
if at any time after the date hereof any events shall have occurred as a result
of which any Issuer Free Writing Prospectus, as then amended or supplemented,
would conflict with the information in the Registration Statement, the Pricing
Disclosure Package or the Prospectus or would include an untrue statement of
a
material fact or omit to state any material fact necessary in order to make
the
statements therein, in the light of the circumstances under which they were
made, not misleading, or, if for any other reason it shall be necessary to
amend
or supplement any Issuer Free Writing Prospectus, to notify the Underwriter
and,
upon its request, to prepare and file an amended or supplemented Issuer Free
Writing Prospectus that will correct such conflict, statement or omission or
effect such compliance and furnish without charge to the Underwriter as many
copies as the Underwriter may from time to time reasonably request of such
amended or supplemented Issuer Free Writing Prospectus;
(ix) As
soon
as practicable after the Effective Date and in any event not later than 16
months after the date hereof, to make generally available to the Partnership’s
security holders and to deliver to the Underwriter an earnings statement of
the
Partnership Entities (which need not be audited) complying with Section 11(a)
of
the Securities Act and the Rules and Regulations;
(x) Promptly
from time to time to take such action as the Underwriter may reasonably request
to qualify the Units for offering and sale under the securities laws of such
jurisdictions as the Underwriter may request and to comply with such laws so
as
to permit the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of the Units;
provided
that in
connection therewith the Partnership shall not be required to (A) qualify
as a foreign limited partnership in any jurisdiction in which it would not
otherwise be required to so qualify, (B) file a general consent to service
of process in any such jurisdiction or (C) subject itself to taxation in
any jurisdiction in which it would not otherwise be subject;
(xi) For
a
period commencing on the date hereof and ending on the 90th
day
after the date of the Prospectus (the “Lock-Up Period”),
not
to, directly or indirectly, without the prior written consent of the
Underwriter: (A) offer for sale, sell, pledge, transfer or otherwise
dispose of (or enter into any transaction or device that is designed to, or
could be expected to, result in the disposition by any individual or entity
at
any time in the future of) any Common Units or securities convertible into
or
exchangeable or exercisable for Common Units (other than the Units and Common
Units issued (1) pursuant to employee benefit plans, qualified unit option
plans
or other employee compensation plans existing on the date hereof, (2) pursuant
to currently outstanding options, warrants or rights, or (3) by the Partnership
of Common Units to sellers in connection with acquisitions of assets or entities
by the Partnership or any of the Subsidiaries, provided that any recipients
of
such Common Units in any such acquisitions enter into Lock-Up Agreements (as
defined below) for the remainder of the Lock-Up Period); (B) sell or grant
any options, rights or warrants with respect to any Common Units or securities
convertible into or exchangeable or exercisable for Common Units (other than
the
grant of options pursuant to option plans existing on the date hereof);
(C) enter into any swap or other derivatives transaction that transfers to
another, in whole or in part, any of the economic benefits or risks of ownership
of any Common Units, whether any such transaction described in clause (A),
(B)
or (C) above is to be settled by delivery of Common Units or other securities,
in cash or otherwise; (D) file
or
cause to be filed a registration statement, including any amendments thereto,
with respect to the registration of any equity securities or any securities
convertible into or exchangeable or exercisable for equity securities of the
Partnership;
or
(E) publicly disclose the intention to do any of the foregoing; and to
cause each officer, director and/or securityholder of the Partnership set forth
on Schedule 2
attached
hereto to furnish to the Underwriter, prior to the Delivery Date, a letter
or
letters, substantially in the form of Exhibit A
hereto
(the “Lock-Up
Agreements”);
Notwithstanding
the foregoing paragraph, if (X) during the last 17 days of the Lock-Up Period,
the Partnership issues an earnings release or material news or a material event
relating to the Partnership occurs or (Y) prior to the expiration of the Lock-Up
Period, the Partnership announces that it will release earnings results during
the 16-day period beginning on the last day of the Lock-Up Period, then the
restrictions imposed in the foregoing paragraph shall continue to apply until
the expiration of the 18-day period beginning on the issuance of the earnings
release, the announcement of the material news or the occurrence of the material
event, unless Xxxxxx Brothers Inc. waives such extension in writing;
(xii) To
apply
the net proceeds from the sale of the Units being sold by the Partnership as
set
forth in the Prospectus;
(b) The
Underwriter agrees that the Underwriter shall not include any “issuer
information” (as defined in Rule 433 of the Rules and Regulations) in any “free
writing prospectus” (as defined in Rule 405 of the Rules and Regulations) used
or referred to by the Underwriter without the prior consent of the Partnership
(any such issuer information with respect to the use of which the Partnership
has given its consent, “Permitted
Issuer Information”);
provided
that
(i) no such consent shall be required with respect to any such issuer
information contained in any document filed by the Partnership Parties with
the
Commission prior to the use of such free writing prospectus and
(ii) “issuer information,” as used in this Section 5(b),
shall
not be deemed to include information prepared by or on behalf of the Underwriter
on the basis of or derived from issuer information.
6. Expenses»
.
The
Partnership Parties agree, whether or not the transactions contemplated by
this
Agreement are consummated or this Agreement is terminated, to pay all costs,
expenses, fees and taxes incident to and in connection with (a) the
authorization, issuance, sale and delivery of the Units, any stamp duties or
other taxes payable in that connection and the preparation and printing of
certificates for the Units; (b) the preparation, printing and filing under
the Securities Act of the Registration Statement (including any exhibits
thereto), the Prospectus, any Issuer Free Writing Prospectus and any amendment
or supplement thereto; (c) the distribution of the Registration Statement
(including any exhibits thereto), the Prospectus, any Issuer Free Writing
Prospectus and any amendment or supplement thereto, and any document
incorporated by reference in any of the foregoing, all as provided in this
Agreement; (d) the production and distribution of this Agreement, any
supplemental agreement among Underwriters, and any other related documents
in
connection with the offering, purchase, sale and delivery of the Units;
(e) any required review by the National Association of Securities Dealers,
Inc. (the “NASD”)
of the
terms of sale of the Units (including related fees and expenses of counsel
to
the Underwriter); (f) the listing of the Units on the New York Stock
Exchange (the “NYSE”);
(g) the qualification of the Units under the securities laws of the several
jurisdictions as provided in Section 5(a)(x)
hereof;
and (h) the performance of the obligations of the Partnership Parties under
this Agreement; provided
that,
except as provided in this Section 6
and in
Sections
8
and
11
hereof,
the Underwriter shall pay their own costs and expenses, including the costs
and
expenses of their counsel, and the expenses of advertising any offering of
the
Units made by the Underwriter.
7. Conditions
of Underwriter’s Obligations»
.
The
obligations of the Underwriter hereunder are subject to the accuracy, when
made
and on the Delivery Date, of the representations and warranties of the
Partnership Parties contained herein, to the performance by the Partnership
Parties of their respective obligations hereunder, and to each of the following
additional terms and conditions:
(a) The
Prospectus shall have been timely filed with the Commission in accordance with
Section 5(a)(i)
hereof;
the Partnership shall have complied with all filing requirements applicable
to
any Issuer Free Writing Prospectus used or referred to after the date hereof;
no
stop order suspending the effectiveness of the Registration Statement or
preventing or suspending the use of the Prospectus or any Issuer Free Writing
Prospectus shall have been issued and no proceeding for such purpose shall
have
been initiated or threatened by the Commission; any request of the Commission
for inclusion of additional information in the Registration Statement or the
Prospectus or otherwise shall have been complied with; and the Commission shall
not have notified the Partnership of any objection to the use of the form of
the
Registration Statement.
(b) The
Underwriter shall not have discovered and disclosed to the Partnership on or
prior to the Delivery Date that the Registration Statement as of the Effective
Date, the Prospectus as of its date and on the Delivery Date, or the Pricing
Disclosure Package as of the Applicable Time, in each case including any
amendment or supplement thereto, contains an untrue statement of a fact that,
in
the reasonable opinion of Xxxxxxx Xxxxx LLP, counsel for the Underwriter, is
material or omits to state a fact that, in the reasonable opinion of such
counsel, is material and is required to be stated therein or is necessary to
make the statements therein not misleading (in the case of the Prospectus or
the
Pricing Disclosure Package, in the light of the circumstances under which such
statements were made).
(c) All
corporate, partnership and limited liability company proceedings and other
legal
matters incident to the authorization, form and validity of this Agreement,
the
Units, the Registration Statement, the Prospectus and any Issuer Free Writing
Prospectus, and all other legal matters relating to this Agreement and the
transactions contemplated hereby, shall be reasonably satisfactory in all
material respects to counsel for the Underwriter, and the Partnership Parties
shall have furnished to such counsel all documents and information that they
may
reasonably request to enable them to pass upon such matters.
(d) Xxxxxx
& Xxxxxx L.L.P. shall have furnished to the Underwriter its written opinion,
as counsel to the Partnership Parties, addressed to the Underwriter and dated
the Delivery Date, in form and substance reasonably satisfactory to the
Underwriter, with respect to the matters set forth in Exhibit B
to this
Agreement.
(e) The
General Counsel of BGL shall have furnished to the Underwriter his written
opinion, as counsel to the Partnership, addressed to the Underwriter and dated
the Delivery Date, in form and substance reasonably satisfactory to the
Underwriter, with respect to the matters set forth in Exhibit C
to this
Agreement.
(f) Xxxxxxx
Xxxxx LLP shall have furnished to the Underwriter its written opinion or
opinions, as counsel for the Underwriter, addressed to the Underwriter and
dated
the Delivery Date, with respect to the issuance and sale of the Units, the
Registration Statement, the Prospectus, the Pricing Disclosure Package and
such
other related matters as the Underwriter may reasonably require, and the
Partnership Parties shall have furnished to such counsel such documents as
they
reasonably request for the purpose of enabling them to pass upon such
matters.
(g) Promptly
after the execution of this Agreement, the Underwriter shall have received
from
Deloitte & Touche LLP a letter (the “initial
letter”),
in
form and substance satisfactory to the Underwriter, addressed to the Underwriter
and dated the date hereof (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance
with
the applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission and (ii) stating, as of the
date hereof (or, with respect to matters involving changes or developments
since
the respective dates as of which specified financial information is given in
the
Pricing Disclosure Package, as of a date not more than three days prior to
the
date hereof), the conclusions and findings of such firm with respect to the
financial information and other matters ordinarily covered by accountants’
“comfort letters” to underwriters in connection with registered public
offerings.
(h) The
Underwriter shall have received from Deloitte & Touche LLP a letter (the
“bring-down
letter”),
in
form and substance satisfactory to the Underwriter, addressed to the Underwriter
and dated the Delivery Date (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance
with
the applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date
of the bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than three days
prior to the date of the bring-down letter), the conclusions and findings of
such firm with respect to the financial information and other matters covered
by
the initial letter and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letter.
(i) BGL
shall
have furnished to the Underwriter a certificate, dated the Delivery Date, of
its
Chairman of the Board, its Chief Executive Officer, its President or any of
its
Vice Presidents and its Chief Financial Officer stating that:
(i) The
representations, warranties and agreements of the Partnership Parties in
Section 1
hereof
are true and correct on and as of the Delivery Date, and the Partnership Parties
have complied with all their agreements contained herein and satisfied all
the
conditions on their part to be performed or satisfied hereunder at or prior
to
the Delivery Date;
(ii) No
stop
order suspending the effectiveness of the Registration Statement has been
issued; no proceedings for that purpose have been instituted or, to the
knowledge of such officers, threatened; and the Commission has not notified
the
Partnership of any objection to the use of the form of the Registration
Statement or any post-effective amendment thereto; and
(iii) They
have
carefully examined the Registration Statement, the Prospectus and the Pricing
Disclosure Package and, in their opinion, (A) (1) the Registration
Statement, as of the Effective Date, (2) the Prospectus, as of its date and
on the Delivery Date, and (3) the Pricing Disclosure Package, as of the
Applicable Time, did not and do not contain any untrue statement of a material
fact and did not and do not omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading (in the
case
of the Registration Statement) or necessary to make the statements therein,
in
the light of the circumstances under which they were made, not misleading (in
the case of the Pricing Disclosure Package and the Prospectus), and (B) since
the Effective Date, no event has occurred that should have been set forth in
a
supplement or amendment to the Registration Statement, the Prospectus or any
Issuer Free Writing Prospectus that has not been so set forth.
(j) Subsequent
to the execution and delivery of this Agreement, (i) no Partnership Entity
shall have sustained any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, any
labor dispute or any court or governmental action, order or decree, (ii) no
Partnership Entity shall have become a party to or the subject of any litigation
or court or government action, investigation, order or decree that is adverse
to
any Partnership Entity and (iii) there shall not have been any adverse
change in the partners’ capital, members’ equity or short- or long-term debt of
any Partnership Entity or any adverse change, or any development involving
a
prospective adverse change, in or affecting the condition (financial or
otherwise), results of operations, securityholders’ equity, properties,
management, business or prospects of any Partnership Entity, in each case the
effect of which in any such case is, in the judgment of the Underwriter, so
material and adverse as to make it impracticable or inadvisable to proceed
with
the public offering or the delivery of the Units being delivered on the Delivery
Date on the terms and in the manner contemplated herein and in the
Prospectus.
(k) Subsequent
to the execution and delivery of this Agreement (i) no downgrading shall
have occurred in the rating accorded the debt securities of any Partnership
Entity by any “nationally recognized statistical rating organization” (as that
term is defined by the Commission for purposes of Rule 436(g)(2) of the Rules
and Regulations) and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any debt securities of any Partnership Entity;
provided,
however,
that
this paragraph (k) shall not apply to any downgrade of not more than one ratings
notch or level contemplated by an existing notice of surveillance or
review.
(l) Subsequent
to the execution and delivery of this Agreement there shall not have occurred
any of the following: (i) trading in securities generally on the NYSE or
the American Stock Exchange or in the over-the-counter market, or trading in
any
securities of any Partnership Entity on any exchange or in the over-the-counter
market, shall have been suspended or materially limited, the settlement of
such
trading generally shall have been materially disrupted or minimum prices shall
have been established on any such exchange or such market by the Commission,
by
such exchange or by any other regulatory body or governmental authority having
jurisdiction, (ii) a banking moratorium shall have been declared by federal
or New York or Kentucky state authorities, (iii) the United States shall
have become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) a material adverse
change in general economic, political or financial conditions, including,
without limitation, as a result of terrorist activities or any other calamity
or
crisis after the date hereof, or the effect of international conditions on
the
financial markets in the United States, that in any such case would make it,
in
the judgment of the Underwriter, impracticable or inadvisable to proceed with
the public offering or delivery of the Units being delivered on the Delivery
Date on the terms and in the manner contemplated herein and in the
Prospectus.
(m) The
NYSE
shall have approved the Units for listing, subject only to official notice
of
issuance.
(n) The
Lock-Up Agreements between the Underwriter and the securityholders, officers
and
directors of the Partnership Parties listed on Schedule 2
attached
hereto, delivered to the Underwriter on or before the date of this Agreement,
shall be in full force and effect on the Delivery Date.
(o) The
Underwriter shall have received from the Partnership Parties such additional
documents and certificates as the Underwriter or counsel for the Underwriter
may
reasonably request.
All
opinions, letters, evidence and certificates mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel for
the Underwriter.
8. Indemnification
and Contribution»
.
(a) The
Partnership Parties, jointly and severally, shall indemnify and hold harmless
the Underwriter, its directors, officers and employees and each person, if
any,
who controls the Underwriter within the meaning of Section 15 of the Securities
Act from and against any loss, claim, damage or liability, joint or several,
or
any action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of Units) to which
that Underwriter, director, officer, employee or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in
(A) the Pricing Disclosure Package, the Registration Statement, the
Prospectus, any Issuer Free Writing Prospectus, or in any amendment or
supplement thereto, (B) any Permitted Issuer Information used or referred
to in any “free writing prospectus” (as defined in Rule 405 of the Rules and
Regulations) used or referred to by the Underwriter, (C) any “road show”
(as defined in Rule 433 of the Rules and Regulations) not constituting an Issuer
Free Writing Prospectus (a “Non-Prospectus
Road Show”)
or
(D) any “blue sky” application or other document prepared or executed by
the Partnership (or based upon any written information furnished by the
Partnership for use therein) specifically for the purpose of qualifying any
or
all of the Units under the securities laws of any state or other jurisdiction
(any such application, document or information being hereinafter called a
“Blue
Sky Application”),
(ii) the omission or alleged omission to state in Pricing Disclosure
Package, the Registration Statement, the Prospectus, any Issuer Free Writing
Prospectus or in any amendment or supplement thereto, or in any Permitted Issuer
Information, any Non-Prospectus Road Show or any Blue Sky Application, any
material fact required to be stated therein or necessary to make the statements
therein not misleading (in the case of the Registration Statement) or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading (in the case of the Pricing Disclosure Package,
the Prospectus or any Issuer Free Writing Prospectus) or (iii) any act or
failure to act or any alleged act or failure to act by the Underwriter in
connection with, or relating in any manner to, the Units or the offering
contemplated hereby, and that is included as part of or referred to in any
loss,
claim, damage, liability or action arising out of or based upon matters covered
by clause (i) or (ii) above (provided that the Partnership Parties shall not
be
liable under this clause (iii) to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such loss, claim, damage,
liability or action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by the Underwriter through its gross
negligence or willful misconduct), and shall reimburse the Underwriter and
each
such director, officer, employee or controlling person promptly upon demand
for
any legal or other expenses reasonably incurred by the Underwriter, director,
officer, employee or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred; provided,
however,
that
the Partnership Parties shall not be liable in any such case to the extent
that
any such loss, claim, damage, liability or action arises out of, or is based
upon, any untrue statement or alleged untrue statement or omission or alleged
omission made in the Pricing Disclosure Package, the Registration Statement,
the
Prospectus, any Issuer Free Writing Prospectus or in any such amendment or
supplement thereto, or in any Permitted Issuer Information, any Non-Prospectus
Road Show or any Blue Sky Application, in reliance upon and in conformity with
written information concerning the Underwriter furnished to the Partnership
by
or on behalf of the Underwriter specifically for inclusion therein, which
information consists solely of the information specified in Section 8(e)
hereof.
The foregoing indemnity agreement is in addition to any liability which the
Partnership Parties may otherwise have to the Underwriter or to any director,
officer, employee or controlling person of the Underwriter.
(b) The
Underwriter shall indemnify and hold harmless each Partnership Party, its
directors, officers, managers who are natural persons and employees and each
person, if any, who controls such Partnership Party within the meaning of
Section 15 of the Securities Act from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which such
Partnership Party or any such director, officer, employee, manager who is a
natural person or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in the Pricing Disclosure Package, the
Registration Statement, the Prospectus, any Issuer Free Writing Prospectus
or in
any amendment or supplement thereto, or in any Non-Prospectus Road Show or
Blue
Sky Application, or (ii) the omission or alleged omission to state in the
Pricing Disclosure Package, the Registration Statement, the Prospectus, any
Issuer Free Writing Prospectus or in any amendment or supplement thereto, or
in
any Non-Prospectus Road Show or Blue Sky Application, any material fact required
to be stated therein or necessary to make the statements therein not misleading
(in the case of the Pricing Disclosure Package, the Prospectus or any Issuer
Free Writing Prospectus, in the light of the circumstances under which any
such
statements were made), but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information concerning the
Underwriter furnished to the Partnership through the Underwriter by or on behalf
of that Underwriter specifically for inclusion therein, which information is
limited to the information set forth in Section 8(e)
hereof.
The foregoing indemnity agreement is in addition to any liability that the
Underwriter may otherwise have to any Partnership Party or any director,
officer, employee, manager who is a natural person or controlling person of
such
Partnership Party.
(c) Promptly
after receipt by an indemnified party under this Section 8
of
notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8,
notify
the indemnifying party in writing of the claim or the commencement of that
action; provided,
however,
that
the failure to notify the indemnifying party shall not relieve it from any
liability that it may have under this Section 8,
except
to the extent it has been materially prejudiced by such failure; and
provided,
further,
that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 8.
If any
such claim or action shall be brought against an indemnified party, and the
indemnified party shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it wishes
to assume, jointly with any other similarly notified indemnifying party, the
defense thereof with counsel reasonably satisfactory to the indemnified party.
After notice from the indemnifying party to the indemnified party of the
indemnifying party’s election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 8
for any
legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided,
however,
that
the Underwriter shall have the right to employ counsel to represent jointly
the
Underwriter and its directors, officers, employees and controlling persons
who
may be subject to liability arising out of any claim in respect of which
indemnity may be sought by the Underwriter against the Partnership Parties
under
this Section 8
if
(i) the Partnership Parties and the Underwriter shall have so mutually
agreed; (ii) the Partnership Parties have failed within a reasonable time
to retain counsel reasonably satisfactory to the Underwriter; (iii) the
Underwriter and its directors, officers, employees and controlling persons
shall
have reasonably concluded that there may be legal defenses available to them
that are different from or in addition to those available to the Partnership
Parties; or (iv) the named parties in any such proceeding (including any
impleaded parties) include both the Underwriter or its directors, officers,
employees or controlling persons, on the one hand, and the Partnership Parties
or their respective directors, officer, employees, managers who are natural
persons or controlling persons, on the other hand, and representation of both
sets of parties by the same counsel would be inappropriate due to actual or
potential differing interests between them, and in any such event the fees
and
expenses of such separate counsel shall be paid by the Partnership Parties.
No
indemnifying party shall (X) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld) settle,
or compromise or consent to the entry of any judgment with respect to, any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding and does not include any findings of fact or admissions
of
fault or culpability as to the indemnified party or (Y) be liable for any
settlement of any such claim, action, suit or proceedings effected without
its
written consent (which consent shall not be unreasonably withheld), but if
settled with the consent of the indemnifying party or if there be a final
judgment for the plaintiff in any such claim, action, suit or proceeding, the
indemnifying party agrees to indemnify and hold harmless any indemnified party
from and against any loss or liability by reason of such settlement or
judgment.
(d) If
the
indemnification provided for in this Section 8
shall
for any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a)
or
8(b)
hereof
in respect of any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable
by
such indemnified party as a result of such loss, claim, damage or liability,
or
action in respect thereof, (i) in such proportion as shall be appropriate
to reflect the relative benefits received by the Partnership Parties, on the
one
hand, and the Underwriter, on the other, from the offering of the Units or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of
the Partnership Parties, on the one hand, and the Underwriter, on the other,
with respect to the statements or omissions that resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Partnership
Parties, on the one hand, and the Underwriter, on the other, with respect to
such offering shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Units purchased under this Agreement (before
deducting expenses) received by the Partnership, as set forth in the table
on
the cover page of the Prospectus, on the one hand, and the total underwriting
discounts and commissions received by the Underwriter with respect to the Units
purchased under this Agreement, as set forth in the table on the cover page
of
the Prospectus, on the other hand, bear to the total gross proceeds from the
offering of the Units purchased under this Agreement. The relative fault shall
be determined by reference to whether the untrue or alleged untrue statement
of
a material fact or omission or alleged omission to state a material fact relates
to information supplied by the Partnership Parties or the Underwriter, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Partnership
Parties and the Underwriter agree that it would not be just and equitable if
contributions pursuant to this Section 8(d)
were to
be determined by pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred to herein.
The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this
Section 8(d)
shall be
deemed to include, for purposes of this Section 8(d),
any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating, defending or preparing to defend any such action
or claim. Notwithstanding the provisions of this Section 8(d),
the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the net proceeds from the sale of the Units underwritten by
it
exceeds the amount of any damages that the Underwriter has otherwise paid or
become liable to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The
Underwriter confirms and the Partnership Parties acknowledge and agree that
the
public offering price and the statements regarding delivery of shares by the
Underwriter set forth on the cover page of, and the concession and reallowance
figures and the paragraph relating to stabilization by the Underwriter appearing
under the caption “Underwriting” in, the Prospectus are correct and constitute
the only information concerning the Underwriter furnished in writing to the
Partnership by or on behalf of the Underwriter specifically for inclusion in
the
Registration Statement, the Prospectus, any Issuer Free Writing Prospectus
or in
any amendment or supplement thereto.
9. Termination»
.
The
obligations of the Underwriter hereunder may be terminated by the Underwriter
by
notice given to and received by the Partnership prior to delivery of and payment
for the Units if, prior to that time, any of the events described in
Sections 7(j),
7(k)
and
7(l)
hereof
shall have occurred or if the Underwriter shall decline to purchase the Units
for any reason permitted under this Agreement.
10. Reimbursement
of Underwriter’s Expenses»
.
If the sale of the Units provided for herein is not consummated because any
condition of the Underwriter’s obligations set forth in Section
7
hereof
is not satisfied, because of any refusal, inability or failure on the part
of
any Partnership Party to perform any agreement herein or comply with any
provision hereof other than by reason of a default by the Underwriter, the
Partnership Parties will reimburse the Underwriter on demand for all reasonable
out-of-pocket expenses (including fees and disbursements of counsel) that shall
have been incurred by it in connection with the proposed purchase and sale
of
the Units.
11. Research
Analyst Independence»
.
The
Partnership Parties acknowledge that (a) the Underwriter’s research
analysts and research departments are required to be independent from their
respective investment banking divisions and are subject to certain regulations
and internal policies and (b) the Underwriter’s research analysts may hold
views and make statements or investment recommendations and/or publish research
reports with respect to the Partnership, the value of the Common Units and/or
the offering that differ from the views of their respective investment banking
divisions. The Partnership Parties hereby waive and release, to the fullest
extent permitted by law, any claims that the Partnership Parties may have
against the Underwriter with respect to any conflict of interest that may arise
from the fact that the views expressed by their independent research analysts
and research departments may be different from or inconsistent with the views
or
advice communicated to the Partnership Parties or their affiliates by the
Underwriter’s investment banking division. The Partnership Parties acknowledge
that the Underwriter is a full service securities firm and as such, from time
to
time, subject to applicable securities laws, may effect transactions for its
own
account or the account of its customers and hold long or short positions in
debt
or equity securities of the companies that are the subject of the transactions
contemplated by this Agreement.
12. No
Fiduciary Duty»
.
The
Partnership Parties acknowledge and agree that in connection with this offering,
sale of the Units or any other services the Underwriter may be deemed to be
providing hereunder, notwithstanding any preexisting relationship, advisory
or
otherwise, between the parties or any oral representations or assurances
previously or subsequently made by the Underwriter: (a) no fiduciary or
agency relationship between any Partnership Party, any affiliate of a
Partnership Party or any other person, on the one hand, and the Underwriter,
on
the other, exists; (b) the Underwriter is not acting as advisors, expert or
otherwise, to the Partnership Parties or any of their affiliates, including,
without limitation, with respect to the determination of the public offering
price of the Units, and such relationship between the Partnership Parties or
any
of their affiliates, on the one hand, and the Underwriter, on the other, is
entirely and solely commercial, based on arms-length negotiations; (c) any
duties and obligations that the Underwriter may have to the Partnership Parties
or their affiliates shall be limited to those duties and obligations
specifically stated herein; and (d) the Underwriter and its respective
affiliates may have interests that differ from those of the Partnership Parties
and their affiliates. Each Partnership Party hereby waives, on its own behalf
and on behalf of its affiliates, any claims that the Partnership Parties or
any
of their affiliates may have against the Underwriter with respect to any breach
or alleged breach of fiduciary duty in connection with this
offering.
13. Notices,
Etc.»
All
statements, requests, notices and agreements hereunder shall be in writing,
and:
(a) if
to the
Underwriter, shall be delivered or sent by mail or facsimile transmission to
Xxxxxx Brothers Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Syndicate Registration (Fax: (000) 000-0000), with a copy, in the case of any
notice pursuant to Section 8(c) hereof, to the Director of Litigation, Office
of
the General Counsel, Xxxxxx Brothers Inc., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (Fax: (000) 000-0000);
(b) if
to the
Partnership Parties, shall be delivered or sent by mail or facsimile
transmission to the address of the Partnership set forth in the Registration
Statement, Attention: Chief Financial Officer.
Any
such
statements, requests, notices or agreements shall take effect at the time of
receipt thereof. The Partnership shall be entitled to act and rely upon any
request, consent, notice or agreement given or made on behalf of the
Underwriter.
14. Persons
Entitled to Benefit of Agreement»
.
This
Agreement shall inure to the benefit of and be binding upon the Underwriter,
the
Partnership Parties and their respective successors. This Agreement and the
terms and provisions hereof are for the sole benefit of only those persons,
except that (a) the representations, warranties, indemnities and agreements
of the Partnership Parties contained in this Agreement shall also be deemed
to
be for the benefit of the directors, officers and employees of the Underwriter
and each person or persons, if any, who control the Underwriter within the
meaning of Section 15 of the Securities Act and (b) the indemnity agreement
of the Underwriter contained in Section 8(b)
hereof
shall be deemed to be for the benefit of the directors of BGL, the officers
of
BGL who have signed the Registration Statement and any person controlling BGL
within the meaning of Section 15 of the Securities Act. Nothing in this
Agreement is intended or shall be construed to give any person, other than
the
persons referred to in this Section 14,
any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein. Notwithstanding anything in this Agreement
to
the contrary, all liabilities and obligations of the Partnership Parties
hereunder shall be non-recourse against Loews or any limited partner,
stockholder, member, officer, manager, director or employee of any of the
Partnership Parties who is a natural person. In that connection, neither Loews
nor any such limited partner, stockholder, member, officer, manager, director
or
employee who is a natural person shall be bound by this Agreement, or be
obligated by virtue of this Agreement or the obligations of any party created
hereunder to (y) provide funds to any of the Partnership Parties, whether by
contributions to capital, loans, returns of monies, securities or other
property, or (z) assume any liabilities of any of the Partnership Parties.
For
the avoidance of doubt, nothing in this Section 14 shall preclude recourse,
to
the extent permitted by applicable law, against any such limited partner,
stockholder, member, officer, manager, director or employee of any of the
Partnership Parties who is a natural person in the event of fraud, gross
negligence or willful misconduct.
15. Survival»
.
The
respective indemnities, representations, warranties and agreements of the
Partnership Parties and the Underwriter contained in this Agreement or made
by
or on behalf of them, respectively, pursuant to this Agreement, shall survive
the delivery of and payment for the Units and shall remain in full force and
effect, regardless of any investigation made by or on behalf of any of them
or
any person controlling any of them.
16. Definition
of the Terms “Business Day” and “Subsidiary»
.”
For
purposes of this Agreement, (a) “business
day”
means
each Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which
banking institutions in New York are generally authorized or obligated by law
or
executive order to close and (b) “subsidiary”
has
the
meaning set forth in Rule 405 of the Rules and Regulations.
17. Governing
Law»
.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York.
18. Counterparts»
.
This
Agreement may be executed in one or more counterparts and, if executed in more
than one counterpart, the executed counterparts shall each be deemed to be
an
original but all such counterparts shall together constitute one and the same
instrument.
19. Headings»
.
The
headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this
Agreement.
[Remainder
of page intentionally left blank.]
NYC:162296.9
If
the
foregoing correctly sets forth the agreement among the Partnership Parties
and
the Underwriter, please indicate your acceptance in the space provided for
that
purpose below.
Very
truly yours,
Boardwalk
GP, LLC
By:
/s/
Name: Xxxxx
X.
Xxxxxxx
Title: Chief
Financial Officer
Boardwalk
GP, LP
By:
Boardwalk GP, LLC, its general partner
By:
/s/
Name: Xxxxx
X.
Xxxxxxx
Title: Chief
Financial Officer
By:
Boardwalk GP, LP, its general partner
By:
Boardwalk GP, LLC, its general partner
By:
/s/
Name: Xxxxx
X.
Xxxxxxx
Title: Chief
Financial Officer
Accepted:
XXXXXX
BROTHERS INC.
By:
/s/
Authorized
Representative
SCHEDULE
1
JURISDICTIONS
OF QUALIFICATION
|
Name
of Entity
|
Jurisdiction
of
Formation
|
Jurisdictions
of
Qualification
|
|
Boardwalk
GP, LLC
|
Delaware
|
Kentucky
|
|
Boardwalk
GP, LP
|
Delaware
|
Kentucky
|
|
|
Delaware
|
Kentucky
|
|
Boardwalk
Operating GP, LLC
|
Delaware
|
Kentucky
|
|
Boardwalk
Pipelines, LP
|
Delaware
|
Kentucky
|
|
Texas
Gas Transmission, LLC
|
Delaware
|
Louisiana,
Texas, Arkansas, Mississippi, Tennessee, Kentucky, Indiana, Ohio
and
Illinois
|
|
GS
Pipeline Company, LLC
|
Delaware
|
Texas,
Mississippi and Florida
|
|
Gulf
South Pipeline Company, LP
|
Delaware
|
Texas,
Louisiana, Mississippi, Alabama, Florida and Kansas
|
|
Gulf
Crossing Pipeline Company, LLC
|
Delaware
|
SCHEDULE
2
PERSONS
DELIVERING LOCK-UP AGREEMENTS
Xxxx
X.
Xxxxxxx
H.
Xxxx
Xxxxx II
Xxxxx
X.
Xxxxxxx
Xxxxxx
X.
Xxxxxx
Xxxxxx
X.
Xxxxxx
Xxxxxxxx
X. Xxxxxxxxx
Xxxx
X.
Xxxxxxx
Xxxxxx
X.
Xxxxx
Xxxxxxx
X. Xxxxxx
Boardwalk
Pipelines Holding Corp.
Loews
Corporation
SCHEDULE
3
PRICING
INFORMATION
Public
Offering Price: $36.50
Number
of
Units Offered: 8,000,000
SCHEDULE
4
ISSUER
FREE WRITING PROSPECTUSES
None.
EXHIBIT
A
LOCK-UP
LETTER AGREEMENT
Xxxxxx
Brothers Inc.
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
The
undersigned understands that you (the “Underwriter”)
proposes to enter into an Underwriting Agreement (the “Underwriting
Agreement”)
providing for the purchase by the Underwriter of common units representing
limited partner interests (the “Common
Units”)
of
Boardwalk Pipeline Partners, LP, a Delaware limited partnership (the
“Partnership”),
and
that the Underwriter proposes to reoffer the Common Units to the public (the
“Offering”).
In
consideration of the execution of the Underwriting Agreement by the Underwriter,
and for other good and valuable consideration, the undersigned hereby
irrevocably agrees that the undersigned will not, for a period of 90 days after
the date of the final Prospectus relating to the Offering (the “Lock-Up
Period”),
without the prior written consent of Xxxxxx Brothers Inc. (the “Underwriter”),
directly or indirectly, (i) offer for sale, sell, pledge, transfer or
otherwise dispose of (or enter into any transaction or device that is designed
to, or could be expected to, result in the disposition by any individual or
entity at any time in the future of) any Common Units or securities convertible
into or exchangeable or exercisable for Common Units (including, without
limitation, Common Units that may be deemed to be beneficially owned by the
undersigned in accordance with the rules and regulations of the Securities
and
Exchange Commission and Common Units that may be issued upon exercise of any
options or warrants), (ii) sell or grant any options, rights or warrants
with respect to any Common Units or securities convertible into or exchangeable
or exercisable for Common Units, (iii) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part, any
of
the economic benefits or risks of ownership of any Common Units, whether any
such transaction described in clause (i), (ii) or (iii) above is to be settled
by delivery of Common Units or other securities, in cash or otherwise,
(iv) make any demand for, exercise any right with respect to or cause to be
filed a registration statement, including any amendments thereto, with respect
to the registration of any Common Units, any securities convertible into or
exchangeable or exercisable for Common Units, or any other securities of the
Partnership or (v) publicly disclose the intention to do any of the
foregoing. The foregoing sentence shall not apply to bona
fide
gifts,
sales or other dispositions of any Common Units that are made exclusively
between and among the undersigned or members of the undersigned’s family, or
affiliates of the undersigned, including its partners (if a partnership) or
members (if a limited liability company); provided
that
it
shall be a condition to any such transfer that (A) the transferee/donee agrees
to be bound by the terms of the lock-up agreement (including, without
limitation, the restrictions set forth in the preceding sentence) to the same
extent as if the transferee/donee were a party hereto, (B) no filing by any
party (donor, donee, transferor or transferee) under the Securities Exchange
Act
of 1934, as amended (the “Exchange
Act”),
shall
be required or shall be voluntarily made in connection with such transfer or
distribution (other than a filing on Form 5, Schedule 13D or Schedule 13G (or
13D/A or 13G/A) made after the expiration of the 90-day period referred to
above), (C) each party (donor, donee, transferor or transferee) shall not be
required by law (including without limitation the disclosure requirements of
the
Securities Act of 1933, as amended, and the Exchange Act) to make, and shall
agree to not voluntarily make, any public announcement of the transfer or
disposition, and (D) the undersigned notifies Xxxxxx
Brothers Inc.
at least
two business days prior to the proposed transfer or disposition.
Notwithstanding
the foregoing, if (i) during the last 17 days of the Lock-Up Period, the
Partnership issues an earnings release or material news or a material event
relating to the Partnership Parties (as defined in the Underwriting Agreement)
occurs or (ii) prior to the expiration of the Lock-Up Period, the
Partnership announces that it will release earnings results during the 16-day
period beginning on the last day of the Lock-Up Period, then the restrictions
imposed by this Lock-Up Letter Agreement shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings
release, the announcement of the material news or the occurrence of the material
event, unless Xxxxxx Brothers Inc. waives such extension in writing. The
undersigned hereby further agrees that, prior to engaging in any transaction
or
taking any other action that is subject to the terms of this Lock-Up Letter
Agreement during the period from the date of this Lock-Up Letter Agreement
to
and including the 34th day following the expiration of the Lock-Up Period,
the
undersigned will give notice thereof to the Partnership and will not consummate
such transaction or take any such action unless it has received written
confirmation from the Partnership that the Lock-Up Period (as such may have
been
extended pursuant to this paragraph) has expired.
In
furtherance of the foregoing, the Partnership and its transfer agent are hereby
authorized to decline to make any transfer of securities if such transfer would
constitute a violation or breach of this Lock-Up Letter Agreement.
It
is
understood that, if the Partnership notifies the Underwriter that it does not
intend to proceed with the Offering, if the Underwriting Agreement does not
become effective, or if the Underwriting Agreement (other than the provisions
thereof that survive termination) shall terminate or be terminated prior to
payment for and delivery of the Common Units, the undersigned will be released
from the undersigned’s obligations under this Lock-Up Letter
Agreement.
The
undersigned understands that the Partnership and the Underwriter will proceed
with the Offering in reliance on this Lock-Up Letter Agreement.
Whether
or not the Offering actually occurs depends on a number of factors, including
market conditions. Any Offering will only be made pursuant to an Underwriting
Agreement, the terms of which are subject to negotiation between the Partnership
and the Underwriter.
The
undersigned hereby represents and warrants that the undersigned has full power
and authority to enter into this Lock-Up Letter Agreement and that, upon
request, the undersigned will execute any additional documents necessary in
connection with the enforcement hereof. Any obligations of the undersigned
shall
be binding upon the heirs, personal representatives, successors and assigns
of
the undersigned.
Very
truly yours,
By:
Name:
Title:
Dated:
EXHIBIT
B
FORM
OF OPINION OF ISSUER’S COUNSEL
(a) Each
of
the General Partner, the Partnership, the Operating Partnership and Gulf South
has been duly formed and is validly existing and in good standing as a limited
partnership under the Delaware LP Act, has the full partnership power and
authority necessary to own or hold its properties and assets and to conduct
the
businesses in which it is engaged, and is duly registered or qualified to do
business and is in good standing as a foreign limited partnership in each
jurisdiction listed opposite its name in Schedule 1
hereto;
(b) Each
of
BGL, Operating GP, Texas Gas, Gulf South GP and Gulf Crossing has been duly
formed and is validly existing and in good standing as a limited liability
company under the Delaware LLC Act, has the full limited liability company
power
and authority necessary to own or hold its properties and assets and to conduct
the businesses in which it is engaged, and is duly registered or qualified
to do
business and is in good standing as a foreign limited liability company in
each
jurisdiction listed opposite its name in Schedule 1
hereto;
(c) BGL
is
the sole general partner of the General Partner, with a 0.01% general partner
interest in the General Partner; such general partner interest has been duly
and
validly authorized and issued in accordance with the GP Partnership Agreement;
and BGL owns such general partner interest free and clear of all liens,
encumbrances, security interests or claims (except restrictions on
transferability contained in the GP Partnership Agreement, as described in
the
Pricing Disclosure Package or created or arising under the Delaware LP Act)
(i) in respect of which a financing statement under the Uniform Commercial
Code of the State of Delaware naming BGL as debtor is on file with the Secretary
of State of the State of Delaware as of the date of such counsel’s opinion or
(ii) otherwise known to such counsel, without independent investigation,
other than those created by or arising under the Delaware LP Act or the GP
Partnership Agreement. BPHC is the sole limited partner of the General Partner,
with a 99.99% limited partner interest in the General Partner; such limited
partner interest has been duly and validly authorized and issued in accordance
with the GP Partnership Agreement and is fully paid (to the extent required
under the GP Partnership Agreement) and non-assessable (except as such
non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of
the
Delaware LP Act);
(d) The
General Partner is the sole general partner of the Partnership, with a 2.0%
general partner interest in the Partnership; such general partner interest
has
been duly and validly authorized and issued in accordance with the Partnership
Agreement; and the General Partner owns such general partner interest free
and
clear of all liens, encumbrances, security interests or claims (except
restrictions on transferability contained in the Partnership Agreement, as
described in the Pricing Disclosure Package or created or arising under the
Delaware LP Act) (i) in respect of which a financing statement under the
Uniform Commercial Code of the State of Delaware naming the General Partner
as
debtor is on file with the Secretary of State of the State of Delaware as of
the
date of such counsel’s opinion or (ii) otherwise known to such counsel,
without independent investigation, other than those created by or arising under
the Delaware LP Act or the Partnership Agreement. The General Partner owns
all
of the Incentive Distribution Rights (as defined in the Partnership Agreement);
all of such Incentive Distribution Rights have been duly and validly authorized
and issued in accordance with the Partnership Agreement and are fully paid
(to
the extent required under the Partnership Agreement) and non-assessable (except
as such non-assessability may be affected by matters described in the Pricing
Disclosure Package; and the General Partner owns all of such Incentive
Distribution Rights free and clear of all liens, encumbrances, security
interests or claims (except restrictions on transferability contained in the
Partnership Agreement, as described in the Pricing Disclosure Package or created
or arising under the Delaware LP Act) (i) in respect of which a financing
statement under the Uniform Commercial Code of the State of Delaware naming
the
General Partner as debtor is on file with the Secretary of State of the State
of
Delaware as of the date of such counsel’s opinion or (ii) otherwise known
to such counsel, without independent investigation, other than those created
by
or arising under the Delaware LP Act or the Partnership Agreement;
(e) The
Units
to be issued and sold by the Partnership to the Underwriter have been duly
authorized in accordance with the Partnership Agreement and, when issued and
delivered against payment therefor pursuant to the Underwriting Agreement,
will
be validly issued in accordance with the Partnership Agreement, fully paid
(to
the extent required under the Partnership Agreement) and non-assessable (except
as such non-assessability may be affected by matters (i) described in the
Pricing Disclosure Package and (ii) Sections 17-303, 17-607 and 17-804 of
the Delaware LP Act); the Units, when issued and delivered against payment
therefor pursuant to the Underwriting Agreement, will conform to the
descriptions thereof contained in each of the Pricing Disclosure Package and
the
Prospectus; and other than the Sponsor Units, the Incentive Distribution Rights
and the Common Units issued in the Partnership’s initial public offering and in
its November 2006 follow-on public offering, the Units to be issued and sold
by
the Partnership to the Underwriter will be the only limited partner interests
in
the Partnership issued and outstanding as of the date hereof;
(f) The
Partnership owns a 100% limited liability company interest in Operating GP;
such
limited liability company interest has been duly and validly authorized and
issued in accordance with the Operating GP LLC Agreement and is fully paid
(to
the extent required under the Operating GP LLC Agreement) and non-assessable
(except as such non-assessability may be affected by Sections 18-607 and 18-804
of the Delaware LLC Act); and the Partnership owns such limited liability
company interest free and clear of all liens, encumbrances, security interests
or claims (except restrictions on transferability contained in the Operating
GP
LLC Agreement, as described in the Pricing Disclosure Package or created or
arising under the Delaware LLC Act) (i) in respect of which a financing
statement under the Uniform Commercial Code of the State of Delaware naming
the
Partnership as debtor is on file with the Secretary of State of the State of
Delaware as of the date of such counsel’s opinion or (ii) otherwise known
to such counsel, without independent investigation, other than those created
by
or arising under the Delaware LLC Act or the Operating GP LLC
Agreement;
(g) Operating
GP is the sole general partner of the Operating Partnership, with a 0.001%
general partner interest in the Operating Partnership; such general partner
interest has been duly and validly authorized and issued in accordance with
the
Operating Partnership Agreement; and Operating GP owns such general partner
interest free and clear of all liens, encumbrances, security interests or claims
(except restrictions on transferability contained in the Operating Partnership
Agreement, as described in the Pricing Disclosure Package or created or arising
under the Delaware LP Act) (A) in respect of which a financing statement
under the Uniform Commercial Code of the State of Delaware naming Operating
GP
as debtor is on file with the Secretary of State of the State of Delaware as
of
the date of such counsel’s opinion or (B) otherwise known to such counsel,
without independent investigation, other than those created by or arising under
the Delaware LP Act or the Operating Partnership Agreement. The Partnership
is
the sole limited partner of the Operating Partnership, with a 99.999% limited
partner interest in the Operating Partnership; such limited partner interest
has
been duly and validly authorized and issued in accordance with the Operating
Partnership Agreement and is fully paid (to the extent required under the
Operating Partnership Agreement) and non-assessable (except as such
non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of
the
Delaware LP Act); and the Partnership owns such limited partner interest free
and clear of all liens, encumbrances, security interests or claims (except
restrictions on transferability contained in the Operating Partnership
Agreement, as described in the Pricing Disclosure Package or created or arising
under the Delaware LP Act) (A) in respect of which a financing statement
under the Uniform Commercial Code of the State of Delaware naming the
Partnership as debtor is on file with the Secretary of State of the State of
Delaware as of the date of such counsel’s opinion or (B) otherwise known to
such counsel, without independent investigation, other than those created by
or
arising under the Delaware LP Act or the Operating Partnership
Agreement;
(h) The
Operating Partnership owns a 100% limited liability company interest in Gulf
Crossing; such limited liability company interest has been duly and validly
authorized and issued in accordance with the Gulf Crossing LLC Agreement and
is
fully paid (to the extent required under the Gulf Crossing LLC Agreement) and
non-assessable (except as such non-assessability may be affected by Sections
18-607 and 18-804 of the Delaware LLC Act); and the Operating Partnership owns
such limited liability company interest free and clear of all liens,
encumbrances, security interests or claims (except restrictions on
transferability contained in the Gulf Crossing LLC Agreement, as described
in
the Pricing Disclosure Package or created or arising under the Delaware LLC
Act)
(i) in respect of which a financing statement under the Uniform Commercial
Code of the State of Delaware naming the Operating Partnership as debtor is
on
file with the Secretary of State of the State of Delaware as of the date of
such
counsel’s opinion or (ii) otherwise known to such counsel, without
independent investigation, other than those created by or arising under the
Delaware LLC Act or the Gulf South GP LLC Agreement;
(i) Except
as
described in the Pricing Disclosure Package or provided for in the Partnership
Agreement, there are no preemptive rights or other rights to subscribe for
or to
purchase, nor any restriction upon the voting or transfer of, any limited
partner interests in the Partnership pursuant to federal or Delaware law or
any
agreement or instrument known to such counsel to which any of the Partnership
Entities is a party or by which any one of them may be bound. Except as
described in the Pricing Disclosure Package, to such counsel’s knowledge, there
are no outstanding options or warrants to purchase (A) any Common Units,
Subordinated Units or other interests in the Partnership or (B) any
interests in BGL, the General Partner, or the Subsidiaries;
(j) Except
as
described in the Pricing Disclosure Package, to such counsel’s knowledge, there
are no contracts, agreements or understandings between any Partnership Party
and
any person granting such person the right to require the Partnership to file
a
registration statement under the Securities Act with respect to any securities
of the Partnership owned or to be owned by such person, or to require the
Partnership to include such securities in any securities registered or to be
registered pursuant to any registration statement filed by or required to be
filed by the Partnership under the Securities Act.
(k) The
Underwriting Agreement has been duly and validly authorized, executed and
delivered by the Partnership Parties;
(l) The
Partnership Agreement has been duly and validly authorized, executed and
delivered by each Partnership Party party thereto. The Partnership Agreement
constitutes a valid and binding obligation of the Partnership Parties party
thereto, enforceable against each such Partnership Party in accordance with
its
terms, subject to (i) applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws relating to or affecting creditors’
rights generally and an implied covenant of good faith and fair dealing, (ii)
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and (iii) public policy
considerations relating to rights to indemnification or
contribution.
(m) None
of
the offering, issuance and sale by the Partnership of the Units, the execution,
delivery and performance of the Underwriting Agreement by the Partnership
Parties, or the consummation of the transactions contemplated thereby
(i) constitutes or will constitute a violation of the Organizational
Documents, (ii) constitutes or will constitute a breach or violation of or
a default under (or an event that, with notice or lapse of time or both, would
constitute such a breach or violation of or default under), any agreement filed
as an exhibit to the Registration Statement or as an exhibit to the
Partnership’s Form 10-K for the year ended December 31, 2006 or any subsequent
reports filed under the Exchange Act by the Partnership or (iii) violates or
will violate any applicable law of the United States of America, the Delaware
LP
Act or the Delaware LLC Act, excluding in the case of clauses (ii) and
(iii) any such breaches, violations and defaults that would not have a
Material Adverse Effect;
(n) Except
for the registration of the Units under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws in connection with
the purchase and sale of the Units by the Underwriter, no Governmental Approval
is required for the execution, delivery and performance of the Underwriting
Agreement by the Partnership Parties, the consummation of the transactions
contemplated thereby and the application of the proceeds from the sale of the
Units as described under the caption “Use of Proceeds” in each of the Pricing
Disclosure Package and the Prospectus, except for such Governmental Approvals
(i) as have been obtained or made or (ii) would not have a Material
Adverse Effect if not obtained or made;
(o) The
Registration Statement became effective under the Securities Act as of the
date
it was filed with the Commission, and the Prospectus was filed with the
Commission pursuant to subparagraph [___] of Rule 424(b) of the Rules and
Regulations on [________], 2007, no stop order suspending the effectiveness
of
the Registration Statement has been issued and, to such counsel’s knowledge, no
proceeding for that purpose is pending or threatened by the Commission, the
Commission has not notified the Partnership of any objection to the use of
the
form of the Registration Statement and no notice of objection of the Commission
to the use of the Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) of the Rules and Regulations has been received by
the
Partnership, and no order of the Commission directed to any document
incorporated by reference in the Registration Statement has been issued, and
no
challenge by appropriate proceedings has been made to the accuracy or adequacy
of any such document incorporated by reference in the Registration
Statement;
(p) Each
of
(i) the Registration Statement, on the Effective Date, and (ii) the Prospectus,
as of its date and the date hereof, appear on their face to be appropriately
responsive, in all material respects, to the requirements of the Securities
Act
and the Securities Act Regulations (except that such counsel express no
statement or belief as to the Trustee statements of eligibility on Form T-1),
except that such counsel need express no opinion with respect to the financial
statements and the notes and financial schedules thereto and other related
financial, accounting and statistical data contained therein;
(q) The
statements made in the Prospectus under the captions “How We Make Cash
Distributions,” “Conflicts of Interest and Fiduciary Duties,” “Description of
the Common Units,” and “The Partnership Agreement”, insofar as they purport to
summarize certain provisions of documents referred to therein or refer to
statements of law or legal conclusions, fairly summarize the matters referred
to
therein in all material respects, subject to the qualifications and assumptions
therein; and the Units, the Subordinated Units and the Incentive Distribution
Rights conform in all material respects to the descriptions thereof contained
in
the Prospectus under the captions “How We Make Cash Distributions,” “Conflicts
of Interest and Fiduciary Duties,” “Description of the Common Units” and “The
Partnership Agreement;”
(v) The
opinion of Xxxxxx & Xxxxxx L.L.P. that is filed as Exhibit 8.1 to the
Registration Statement is confirmed and the Underwriter may rely upon such
opinion as if it were addressed to them; and
(w) The
Partnership is not, and after giving effect to the application of the net
proceeds from the offering as described under the caption “Use of Proceeds” in
each of the Pricing Disclosure Package and the Prospectus, the Partnership
will
not be, an “investment company” as defined in the Investment Company
Act.
In
rendering such opinion, such counsel may state that its opinion is limited
to
matters governed by the federal laws of the United States of America, the laws
of the State of New York, the Delaware LP Act and the Delaware LLC Act. Such
counsel need not express any opinion with respect to the title of any of the
Partnership Entities to any of their respective real or personal property or
the
accuracy of the descriptions or references in the Registration Statement or
the
Organizational Documents to any real or personal property, and need not express
any opinion with respect to state or local taxes or tax statutes to which any
of
the limited partners of the Partnership or any of the Partnership
Entities may
be
subject.
Such
counsel has participated in conferences with officers and other representatives
of the Partnership
Parties,
representatives of the independent registered public accounting firm of the
Partnership and the Underwriter’s representatives, at which the contents of the
Registration Statement and the Prospectus and related matters were discussed,
and although such counsel did not independently investigate or verify the
information set forth in the Registration Statement or the Prospectus, and
such
counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus (except to the extent specified in
paragraph (w) above), based on the foregoing (relying as to factual matters
in
respect of the determination of materiality to the extent such counsel deems
reasonable and appropriate upon the statements of fact made by officers and
other representatives of the Partnership Parties), no facts have come to such
counsel’s attention that have led such counsel to believe that:
(a) the
Registration Statement, as of the Effective Date, contained any untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading;
(b) the
Prospectus, as of its date and as of the Delivery Date, contained or contains
any untrue statement of a material fact or omitted or omits to state any
material fact necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading; or
(c) the
Pricing Disclosure Package, as of the Applicable Time, contained any untrue
statement of a material fact or omitted to state any material fact necessary
in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading,
except
that in each case such counsel need express no opinion with respect to the
financial statements and notes and schedules thereto or other related financial,
accounting and statistical data contained in, incorporated by reference into
or
omitted from the Registration Statement, the Pricing Disclosure Package or
the
Prospectus, any further amendment or supplement thereto or the exhibits to
the
Registration Statement.
“applicable
law” means mean those laws, rules and regulations that, in such counsel’s
experience, are normally applicable to transactions of the type contemplated
by
the Underwriting Agreement, without such counsel’s having made any special
investigation as to the applicability of any specific law, rule or regulation,
and that are not the subject of a specific opinion herein referring expressly
to
a particular law or laws; provided,
however,
that
such references do not include any municipal or other local laws, rules or
regulations, or any antifraud, environmental, labor, state securities or blue
sky, tax, insurance or antitrust, laws, rules or regulations, the Natural Gas
Act, as amended, or the rules and regulations promulgated thereunder by the
Federal Energy Regulatory Commission, or the rules and regulations of the
National Association of Securities Dealers, Inc.
“Governmental
Approval” means any consent, approval, license, authorization or validation of,
or filing, recording or registration with, any executive, legislative, judicial,
administrative or regulatory authority of the State of New York, the State
of
Delaware or the United States of America, pursuant to (a) applicable laws
of the State of New York, (b) applicable laws of the United States of America,
(c) the Delaware LP Act or (d) the Delaware LLC Act.
EXHIBIT
C
FORM
OF OPINION OF IN-HOUSE COUNSEL
(a) Except
as
described in the Pricing Disclosure Package, there are no legal or governmental
proceedings pending to which any Partnership Entity is a party or to which
any
property or asset of any Partnership Entity is subject that, if determined
adversely to such Partnership Entity, could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect or an adverse effect
on the performance of the Underwriting Agreement or the consummation of the
transactions contemplated thereby, and no such proceedings are threatened or
contemplated by governmental authorities or others; and to such counsel’s
knowledge, there are no statutes or pending or threatened legal or governmental
proceedings required to be described in the Pricing Disclosure Package that
are
not so described;
(b)
The
statements made in the Partnership’s annual report on Form 10-K for the year
ended December 31, 2006 under the captions “Business—Our Business—Nature of
Contracts,” “Business—Our Business—Competition,” “Business—Our
Business—Government Regulation,” “Risk Factors—Our natural gas transportation
and storage operations are subject to extensive regulation by FERC in addition
to FERC rules and regulations related to the rates we can charge for our
services,” “Risk Factors—We are subject to laws and regulations relating to the
environment which may expose us to significant costs, liabilities and loss
of
revenues,” “Risk Factors—Pipeline safety integrity programs and repairs may
impose significant costs and liabilities on us,” “Risk Factors—We are subject to
strict regulations at many of our facilities regarding employee safety,” and
“Management’s Discussion and Analysis of Financial Condition and Results of
Operations—Critical Accounting Policies and Estimates—Regulation,” insofar as
they purport to summarize certain provisions of documents referred to therein
or
refer to statements of law or legal conclusions, fairly summarize the matters
referred to therein in all material respects, subject to the qualifications
and
assumptions therein;
(c) None
of
the offering, issuance and sale by the Partnership of the Units and the
application of the proceeds therefrom as described under the caption “Use of
Proceeds” in the Pricing Disclosure Package and the Prospectus, the execution,
delivery and performance of the Underwriting Agreement by the Partnership
Parties, or the consummation of the transactions contemplated thereby violates
or will violate the Natural Gas Act, as amended, and the rules and regulations
promulgated thereunder by the Federal Energy Regulatory Commission;
and
(d) To
such
counsel’s knowledge, there are no contracts or other documents that are required
to be described in the Pricing Disclosure Package and the Prospectus or filed
as
exhibits to the Registration Statement by the Securities Act or the Rules and
Regulations, or that are required to be filed as exhibits to the Registration
Statement by the Exchange Act or the rules and regulations promulgated
thereunder, that have not been so described in the Pricing Disclosure Package
and the Prospectus or filed as exhibits to the Registration
Statement.
Such
counsel has participated in conferences with officers and other representatives
of the Partnership
Parties,
representatives of the independent registered public accounting firm of the
Partnership and the Underwriter’s representatives, at which the contents of the
Registration Statement and the Prospectus and related matters were discussed,
and although such counsel did not independently investigate or verify the
information set forth in the Registration Statement or the Prospectus, and
such
counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus (except to the extent specified in
paragraphs (b) and (d) above), based on the foregoing (relying as to factual
matters in respect of the determination of materiality to the extent such
counsel deems reasonable and appropriate upon the statements of fact made by
officers and other representatives of the Partnership Parties), no facts have
come to such counsel’s attention that have led such counsel to believe
that:
(a) the
Registration Statement, as of the Effective Date, contained any untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading;
(b) the
Prospectus, as of its date and as of the Delivery Date, contained or contains
any untrue statement of a material fact or omitted or omits to state any
material fact necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading; or
(c) the
Pricing Disclosure Package, as of the Applicable Time, contained any untrue
statement of a material fact or omitted to state any material fact necessary
in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading,
except
that in each case such counsel need express no opinion with respect to the
financial statements and notes and schedules thereto or other related financial,
accounting and statistical data contained in, incorporated by reference into
or
omitted from the Registration Statement, the Pricing Disclosure Package or
the
Prospectus, any further amendment or supplement thereto or the exhibits to
the
Registration Statement.
