Exhibit 1.1
PENN VIRGINIA RESOURCE PARTNERS, L.P.
6,352,408 Common Units
Representing Limited Partner Interests
UNDERWRITING AGREEMENT
----------------------
Xxxxxx Brothers Inc. October ___, 2001
UBS Warburg LLC
Banc of America Securities LLC
Xxxx Xxxxxxxx Incorporated
First Union Securities, Inc.
As Representatives of the Several
Underwriters named in Schedule 1
c/x Xxxxxx Brothers Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Dear Sirs:
Penn Virginia Resource Partners, L.P., a Delaware limited partnership
(the "Partnership"), proposes to issue and sell to the several Underwriters
named in Schedule 1 hereto (the "Underwriters") 6,352,408 Common Units (the
"Firm Units"), each representing a limited partner interest in the Partnership
(the "Common Units"). In addition, the Partnership proposes to grant to the
Underwriters an option to purchase up to an additional 952,861 Common Units, on
the terms and for the purposes set forth in Section 2 (the "Option Units"). The
Firm Units and the Option Units, if purchased, are hereinafter collectively
called the "Units." Capitalized terms used but not defined herein shall have the
same meanings given them in the Partnership Agreement or the Prospectus (each as
defined herein).
It is understood and agreed to by all parties that the Partnership was
formed to acquire substantially all of the assets, liabilities and operations of
the coal business (the "Penn Virginia Coal Business") held by various
subsidiaries of Penn Virginia Corporation, a Virginia corporation ("Penn
Virginia"), and, thereafter, to manage such acquired coal properties and related
assets. Pursuant to the transactions described below, as of the date hereof (i)
Penn Virginia Holding Corp., a Delaware corporation ("PV Holding"), is a wholly
owned direct subsidiary of Penn Virginia; (ii) each of Penn Virginia Resource
Holdings Corp., a Delaware corporation ("Resource Holdings"), and Penn Virginia
Oil & Gas Corporation, a Virginia corporation ("Penn Virginia Oil & Gas"), is a
wholly owned direct subsidiary of PV Holding; (iii) each of Penn Virginia
Resource GP Corp., a Delaware corporation ("GP Corp."), Penn Virginia Resource
LP Corp., a Delaware corporation ("LP Corp."), Xxxxxx River Rail Corporation, a
Virginia corporation ("Xxxxxx"), and Kanawha Rail Corp., a Virginia corporation
("KRC"), is a wholly owned direct subsidiary of Resource Holdings; (iv) Penn
Virginia Resource GP, LLC, a Delaware limited liability company and a wholly
owned direct subsidiary
-1-
of GP Corp. (the "General Partner"), is the general partner of the Partnership;
(v) Penn Virginia Operating Co., LLC,. a Delaware limited liability company (the
"Operating Company"), is a wholly owned direct subsidiary of the Partnership;
and (vi) each of PVR Concord LLC, a Delaware limited liability company ("Concord
LLC"), PVR Lexington LLC, a Delaware limited liability company ("Lexington
LLC"), PVR Savannah LLC, a Delaware limited liability company ("Savannah LLC"),
K Rail LLC, a Delaware limited liability company ("K Rail LLC"), Loadout LLC, a
Delaware limited liability company ("Loadout LLC"), and Wise LLC, a Delaware
limited liability company ("Wise LLC"), is a wholly owned direct subsidiary of
the Operating Company (collectively, prior to the First Delivery Date, the
"Operating Subsidiaries"; on and after the First Delivery Date, each of Loadout
LLC, Wise LLC and K Rail LLC, together shall constitute the "Operating
Subsidiaries"). The General Partner, the Partnership, the Operating Company and
the Operating Subsidiaries are collectively referred to herein as the
"Partnership Entities."
Prior to the date hereof, the following transactions occurred pursuant
to that certain Contribution, Conveyance and Assumption Agreement dated
effective as of September 14, 2001 (the "Prior Contribution Agreement"):
(a) PV Holding contributed all of the common stock of Penn Virginia
Coal Company, a Virginia corporation ("Penn Virginia Coal"), to Resource
Holdings as a capital contribution;
(b) Each of Penn Virginia Coal, Wise Environmental Technologies, Inc.,
a Virginia corporation, and Paragon Coal Corporation, a Virginia corporation,
merged with and into the Operating Company, Wise LLC and Loadout LLC,
respectively;
(c) KRC conveyed certain assets to K Rail LLC as a capital
contribution;
(d) Each of Concord Land Company, a Virginia corporation, Lexington
Land Company, a Virginia corporation, and Savannah Land Company, a Virginia
corporation, respectively, converted into Concord LLC, Lexington LLC and
Savannah LLC, respectively;
(e) The Operating Company distributed to Resource Holdings certain oil
and gas interests (the "Oil and Gas Interests"), all of the common stock of
Xxxxxx and all of the common stock of KRC;
(f) Resource Holdings distributed the Oil and Gas Interests to PV
Holding as a dividend and PV Holding, in turn, contributed the Oil and Gas
Interests to Penn Virginia Oil & Gas as a capital contribution;
(g) Resource Holdings contributed a portion of its membership interest
in the Operating Company to the General Partner and LP Corp., the sum of these
portions equaling 100% of the membership interest in the Operating Company;
(h) Resource Holdings contributed its interest in the General Partner
to GP Corp. as a capital contribution;
-2-
(i) (i) the General Partner contributed its interest in the Operating
Company to the Partnership in exchange for a continuation of its 2% general
partner interest in the Partnership [and the Incentive Distribution Rights (the
"Incentive Distribution Rights"), as defined in the Partnership Agreement
(defined below)], and (ii) LP Corp. will contribute its interest in the
Operating Company to the Partnership in exchange for its 98% limited partner
interest in the Partnership; and
(j) KRC contributed its interest in K Rail LLC to the Partnership in
exchange for a 0.50% limited partner interest in the Partnership and, in turn,
the Partnership will contribute such interest in K Rail LLC to the Operating
Company as a capital contribution;
On or concurrently with the First Delivery Date, the following
transactions will occur:
(k) Each of Loadout LLC, Concord LLC, Lexington LLC, Wise LLC and
Savannah LLC will distribute to the Operating Company (i) certain accounts
receivable due from affiliates and (ii) certain other assets not intended to
ultimately constitute assets of the Partnership and its subsidiaries; and the
Operating Company, in turn, will distribute to the Partnership which, in turn,
will distribute to KRC, the General Partner and LP Corp. certain assets listed
in the Contribution, Conveyance and Assumption Agreement, dated as of
__________, 2001 by and among Penn Virginia, the Partnership, the Operating
Company, the General Partner and certain other parties (the "Contribution
Agreement");
(l) Certain intercompany debt of the Operating Company and the
Operating Subsidiaries owed to affiliates of Penn Virginia will be cancelled;
(m) The limited partner interests in the Partnership owned by LP Corp.
will be converted into 7,234,399 subordinated units representing limited partner
interests (the "Subordinated Units") and 943,617 Common Units, and the limited
partner interests in the Partnership owned by KRC will be converted into 70,870
Subordinated Units and 9,244 Common Units;
(n) The public offering of the Firm Units contemplated hereby will be
consummated;
(o) The Partnership will contribute the net proceeds of the public
offering to the Operating Company;
(p) The Operating Company will repay $114.1 million of indebtedness;
and
(q) The Partnership will enter into a Credit Agreement (the "Credit
Agreement") with PNC Bank, National Association, as Administrative Agent, and
PNC Capital Markets, Inc., as Arranger.
The transactions described above in clauses (a)-(j) are referred to as the
"Prior Transactions" and the transactions described in clauses (k)-(q) are
referred to as the "Subsequent Transactions," which, together with the Prior
Transactions, are referred to as the "Transactions." In connection with the
Prior Transactions, the parties to the Prior Transactions entered into various
bills of sale, assignments, conveyances, contribution agreements and related
documents (collectively, the
-3-
"Prior Conveyances"). In connection with the Subsequent Transactions, the
parties to the Subsequent Transactions entered into various bills of sale,
assignments, conveyances, contribution agreements and related documents (the
"Subsequent Conveyances" and, together with the Prior Conveyances, the
"Conveyances"). The mergers described in clause (b) above are referred to herein
as the "Mergers" and the conversions from corporations to limited liability
companies described in clause (d) above are referred to herein as the
"Conversions." In connection with the consummation of the Mergers and the
Conversions, the subsidiaries of the Operating Company and certain of their
predecessors entered into, as applicable, merger agreements, limited liability
company agreements, and certificates and articles of merger and articles of
conversion (the "Merger and Conversion Documents"). The Merger and Conversion
Documents, the Conveyances, the Prior Contribution Agreement and the
Contribution Agreement are collectively referred to herein as the "Merger and
Contribution Agreements." Penn Virginia, PV Holding, Resource Holdings, Penn
Virginia Oil & Gas, KRC, LP Corp., GP Corp., Xxxxxx, the General Partner, the
Partnership, the Operating Company and the Operating Subsidiaries, together with
their respective predecessor entities, as applicable, collectively constitute
the "Penn Virginia Entities."
This is to confirm the agreement among Penn Virginia, the General
Partner, the Partnership and the Operating Company (collectively, the "Penn
Virginia Parties") and the Underwriters concerning the purchase of the Firm
Units and the Option Units from the Partnership by the Underwriters.
1. Representations, Warranties and Agreements of the Penn Virginia
Parties. Each of the Penn Virginia Parties, jointly and severally, represents
and warrants to, and agrees with, each Underwriter that:
(a) Definitions. A registration statement on Form S-1 (File No. 333-
65442) with respect to the Units (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) has become
effective under the Securities Act. Copies of such registration statement and
each of the amendments thereto have been delivered by the Partnership to you as
the representatives (the "Representatives") of the Underwriters. For purposes
of this Agreement, "Effective Time" means the date and the time as of which such
registration statement, or the most recent post-effective amendment thereto, if
any, was declared effective by the Commission; "Effective Date" means the date
of the Effective Time; "Preliminary Prospectus" means each prospectus included
in such registration statement, or amendments thereof, before it became
effective under the Securities Act and any prospectus filed with the Commission
by the Partnership with the consent of the Representatives pursuant to Rule
424(a) of the Rules and Regulations; "Registration Statement" means such
registration statement, as amended at the Effective Time, including all
information contained in the final prospectus filed with the Commission pursuant
to Rule 424(b) of the Rules and Regulations ("Rule 424(b)") and deemed to be a
part thereof as of the Effective Time pursuant to paragraph (b) of Rule 430A of
the Rules and Regulations; and "Prospectus" means the final prospectus in the
form first used to confirm sales of Units. The Commission has not issued any
order preventing or suspending the use of any Preliminary Prospectus. If an
abbreviated registration statement is prepared and filed with
-4-
the Commission in accordance with Rule 462(b) or Rule 462(d) under the
Securities Act, the term "Registration Statement" as used in this Agreement
includes such abbreviated registration statement.
(b) No Material Misstatements or Omissions. The Registration Statement
conforms, and any further amendments or supplements to the Registration
Statement will, when they become effective, conform in all material respects to
the requirements of the Securities Act and the Rules and Regulations and do not
and will not, as of the applicable 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. The Prospectus and
any supplement or amendment thereto when filed with the Commission under Rule
424(b) will conform in all material respects to the requirements of the
Securities Act and the Rules and Regulations, and do not or will not include any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading. Each of the statements made by the
Partnership in such documents within the coverage of Rule 175(b) of the Rules
and Regulations under the Securities Act, including (but not limited to) any
statements with respect to future available cash or future cash distributions of
the Partnership or the anticipated ratio of taxable income to distributions, was
made or will be made with a reasonable basis and in good faith. Notwithstanding
the foregoing, no representation or warranty is made as to information contained
in or omitted from the Registration Statement or the Prospectus in reliance upon
and in conformity with written information furnished to the Partnership through
the Representatives by or on behalf of any Underwriter specifically for
inclusion therein.
(c) Formation and Qualification of Partnership. The Partnership has
been duly formed and is validly existing in good standing as a limited
partnership under the Delaware Revised Uniform Limited Partnership Act (the
"Delaware LP Act") with full partnership power and authority to own or lease its
properties to be owned or leased at each Delivery Date (as defined in Section 4
hereof), to assume the liabilities being assumed by it pursuant to the Merger
and Contribution Agreements and to conduct its business to be conducted at each
Delivery Date, in each case in all material respects as described in the
Registration Statement and the Prospectus. The Partnership is, or at each
Delivery Date will be, duly registered or qualified as a foreign limited
partnership for the transaction of business under the laws of each jurisdiction
in which the character of the business conducted by it or the nature or location
of the properties owned or leased by it makes such registration or qualification
necessary, except where the failure so to register or qualify would not (i) have
a material adverse effect on the condition (financial or otherwise), business,
prospects, assets or results of operations of the Partnership Entities taken as
a whole (a "Material Adverse Effect"), or (ii) subject the limited partners of
the Partnership to any material liability or disability.
(d) Formation and Qualification of Operating Company and Operating
Subsidiaries. The Operating Company and each of the Operating Subsidiaries has
been duly formed and is validly existing in good standing as a limited liability
company under the Delaware Limited Liability Company Act (the "Delaware LLC
Act") with full limited liability company power and authority to own or lease
its properties to be owned or leased at each Delivery Date, to assume the
liabilities being assumed by it pursuant to the Merger and Contribution
Agreements and to conduct its business to be conducted at each Delivery Date, in
-5-
each case in all material respects as described in the Registration Statement
and the Prospectus. The Operating Company and each of the Operating Subsidiaries
is, or at each Delivery Date will be, duly registered or qualified as a foreign
limited liability company for the transaction of business under the laws of each
jurisdiction in which the character of the business conducted by it or the
nature or location of the properties owned or leased by it makes such
registration or qualification necessary, except where the failure so to register
or qualify would not (i) have a Material Adverse Effect or (ii) subject the
limited partners of the Partnership to any material liability or disability.
(e) Formation and Qualification of General Partner. The General
Partner has been duly formed and is validly existing in good standing as a
limited liability company under the Delaware LLC Act with full limited liability
company power and authority to own or lease its properties to be owned or leased
at each Delivery Date, to assume the liabilities being assumed by it pursuant to
the Merger and Contribution Agreements, to conduct its business to be conducted
at each Delivery Date and to act as general partner of the Partnership, in all
material respects as described in the Registration Statement and the Prospectus.
The General Partner is, or at each Delivery Date will be, duly registered or
qualified as a foreign limited liability company for the transaction of business
under the laws of each jurisdiction in which the character of the business
conducted by it or the nature or location of the properties owned or leased by
it makes such registration or qualification necessary, except where the failure
so to register or qualify would not (i) have a Material Adverse Effect or (ii)
subject the limited partners of the Partnership to any material liability or
disability.
(f) Existence and Good Standing of Penn Virginia, Penn Virginia Oil &
Gas and KRC. Each of Penn Virginia, Penn Virginia Oil & Gas and KRC is a
corporation duly incorporated and validly existing in good standing under the
laws of the State of Virginia with full corporate power and authority to own and
lease its properties to be owned or leased at each Delivery Date, to assume the
liabilities being assumed by it pursuant to the Merger and Contribution
Agreements and to conduct its business to be conducted at each Delivery Date.
(g) Existence and Good Standing of PV Holding, Resource Holdings, GP
Corp. and LP Corp. Each of PV Holding, Resource Holdings, GP Corp. and LP
Corp. has been duly incorporated and is validly existing in good standing as a
corporation under the Delaware General Corporation Law (the "DGCL") with full
corporate power and authority to own or lease its properties to be owned or
leased at each Delivery Date, to assume the liabilities being assumed by it
pursuant to the Merger and Contribution Agreements and to conduct its business
to be conducted at each Delivery Date.
(h) Ownership of General Partner Interests. At each Delivery Date the
General Partner will be the sole general partner of the Partnership with a 2.0%
general partner interest in the Partnership; such general partner interest will
be duly authorized and validly issued in accordance with the partnership
agreement of the Partnership (as the same may be amended and restated at or
prior to each Delivery Date, the "Partnership Agreement"); and the General
Partner will own such general partner interest free and clear of all liens,
encumbrances, security interests, equities, charges or claims.
-6-
(i) Ownership of the Incentive Distribution Rights. At each Delivery
Date the General Partner will own all of the Incentive Distribution Rights, and
such Incentive Distribution Rights will be duly authorized and validly issued in
accordance with the Partnership Agreement, and will be fully paid (to the extent
required under the Partnership Agreement) and nonassessable (except as such
nonassessability may be affected by matters described in the Prospectus under
the caption "The Partnership Agreement--Limited Liability"); and the General
Partner will own the Incentive Distribution Rights free and clear of all liens,
encumbrances (except restrictions on transferability as described in the
Prospectus), security interests, equities, charges or claims.
(j) Ownership of the Sponsor Units. At the First Delivery Date, LP
Corp. will own 7,234,399 Subordinated Units and 943,617 Common Units; at the
Second Delivery Date, LP Corp. will own 7,234,399 Subordinated Units and no
Common Units at each Delivery Date, KRC will own 70,870 Subordinated Units and
9,244 Common Units (all such Subordinated Units owned by LP Corp. and KRC being
collectively referred to herein as the "Sponsor Units"); all of such Sponsor
Units and the limited partner interests represented thereby will be duly
authorized and validly issued in accordance with the Partnership Agreement, and
will be fully paid (to the extent required under the Partnership Agreement) and
nonassessable (except as such nonassessability may be affected by matters
described in the Prospectus under the caption "The Partnership Agreement--
Limited Liability"); and LP Corp. and KRC will own the Sponsor Units free and
clear of all liens, encumbrances, security interests, equities, charges or
claims.
(k) Valid Issuance of Firm Units. At the First Delivery Date, there
will be issued to the Underwriters the Firm Units (assuming no purchase by the
Underwriters of Option Units); at the First Delivery Date or the Second Delivery
Date, as the case may be, the Firm Units or the Option Units, as the case may
be, and the limited partner interests represented thereby will be duly
authorized by the Partnership Agreement and, when issued and delivered to the
Underwriters against payment therefor in accordance with the terms hereof, will
be validly issued, fully paid (to the extent required under the Partnership
Agreement) and nonassessable (except as such nonassessability may be affected by
matters described in the Prospectus under the caption "The Partnership
Agreement--Limited Liability"); and other than the Sponsor Units and the
Incentive Distribution Rights, the Units will be the only limited partner
interests of the Partnership issued and outstanding at each Delivery Date.
(l) Ownership of Operating Company. At each Delivery Date, the
Partnership will own a 100% membership interest in the Operating Company; such
membership interest will have been duly authorized and validly issued in
accordance with the limited liability company agreement of the Operating Company
(as the same may be amended and restated at or prior to each Delivery Date, the
"Operating Company Agreement") and will be fully paid (to the extent required
under the Operating Company Agreement) and nonassessable (except as such
nonassessability may be affected by Section 18-607 of the Delaware LLC Act); and
the Partnership will own such membership interest free and clear of all liens,
encumbrances, security interests, equities, charges or claims.
(m) Ownership of Operating Subsidiaries. At each Delivery Date, the
Operating Company will own a 100% membership interest in each Operating
Subsidiary; such
-7-
membership interests will have been duly authorized and validly issued in
accordance with the respective limited liability company agreement of each
Operating Subsidiary (together, as the same may be amended and restated at or
prior to each Delivery Date, the "Operating Subsidiary LLC Agreements") and will
be fully paid (to the extent required under the Operating Subsidiary LLC
Agreements) and nonassessable (except as such nonassessability may be effected
by Section 18-607 of the Delaware LLC Act); and the Operating Company will own
such membership interests free and clear of all liens, encumbrances, security
interests, equities, charges or claims.
(n) Ownership of General Partner. At each Delivery Date, GP Corp.
will own a 100% membership interest in the General Partner; such membership
interest will be duly authorized and validly issued in accordance with the
limited liability company agreement of the General Partner (as the same may be
amended and restated at or prior to each Delivery Date, the "General Partner LLC
Agreement") and will be fully paid (to the extent required under the General
Partner LLC Agreement) and nonassessable (except as such nonassessability may be
affected by Section 18-607 of the Delaware LLC Act); and GP Corp. will own such
membership interest free and clear of all liens, encumbrances, security
interests, equities, charges or claims.
(o) Ownership of KRC, LP Corp. and GP Corp. At each Delivery Date,
Resource Holdings will own 100% of the issued and outstanding common stock of
each of KRC, LP Corp. and GP Corp.; such stock will be duly authorized and
validly issued and will be fully paid and nonassessable; and Resource Holdings
will own such stock free and clear of all liens, encumbrances, security
interests, equities, charges or claims.
(p) Ownership of Resource Holdings. At each Delivery Date, PV Holding
will own 100% of the issued and outstanding common stock of Resource Holdings;
such stock will be duly authorized and validly issued and will be fully paid and
nonassessable; and PV Holding will own such stock free and clear of all liens,
encumbrances, security interests, equities, charges or claims.
(q) Ownership of PV Holding. At each Delivery Date, Penn Virginia
will own 100% of the issued and outstanding stock of PV Holding; such stock will
be duly authorized and validly issued and will be fully paid and nonassessable;
and Penn Virginia will own such stock free and clear of all liens, encumbrances,
security interests, equities, charges or claims.
(r) No Other Subsidiaries. Other than the Partnership's ownership of
a 100% membership interest in the Operating Company and the Operating Company's
ownership of a 100% membership interest in each of the Operating Subsidiaries,
neither the Partnership nor the Operating Company own, and at the First Delivery
Date and the Second Delivery date, neither will own, directly or indirectly, any
equity or long-term debt securities of any corporation, partnership, limited
liability company, joint venture, association or other entity. Other than its
ownership of its partnership interests in the Partnership, the General Partner
does not own, and at the First Delivery Date and Second Delivery Date will not
own, directly or indirectly, any equity or long-term debt securities of any
corporation, partnership, limited liability company, joint venture, association
or other entity.
-8-
(s) No Preemptive Rights, Registration Rights or Options. Except as
described in the Prospectus, there are no preemptive rights or other rights to
subscribe for or to purchase, nor any restriction upon the voting or transfer
of, (i) any limited partner interests in the Partnership or (ii) any membership
interests in the General Partner, the Operating Company or any Operating
Subsidiary, in each case pursuant to the organizational documents or any
agreement or other instrument to which the General Partner, the Partnership, the
Operating Company or any Operating Subsidiary is a party or by which any of them
may be bound. Neither the filing of the Registration Statement nor the offering
or sale of the Units as contemplated by this Agreement gives rise to any rights
for or relating to the registration of any Units or other securities of the
Partnership or any of its subsidiaries, other than as provided in the
Partnership Agreement or as have been waived. Except as described in the
Prospectus, there are no outstanding options or warrants to purchase (i) any
Common Units, Subordinated Units or other partnership interests in the
Partnership or (ii) any membership interests in the Operating Company, the
General Partner or any Operating Subsidiary. The Partnership has all requisite
power and authority to issue, sell and deliver (i) the Units, in accordance with
and upon the terms and conditions set forth in this Agreement, the Partnership
Agreement, the Registration Statement and Prospectus, and (ii) the Subordinated
Units and the Incentive Distribution Rights, in accordance with the terms and
conditions set forth in the Partnership Agreement and the Merger and
Contribution Agreements. At each Delivery Date, all corporate, partnership and
limited liability company action, as the case may be, required to be taken by
the Penn Virginia Entities or any of their stockholders, partners or members for
the authorization, issuance, sale and delivery of the Units, the Subordinated
Units and the Incentive Distribution Rights, the execution and delivery of the
Operative Agreements (as defined in Section 1(v)) and the consummation of the
transactions (including the Transactions) contemplated by this Agreement and the
Operative Agreements (as herein defined) shall have been validly taken.
(t) Enforceability of Agreement. This Agreement has been duly
authorized and validly executed and delivered by each of the Penn Virginia
Parties, and constitutes the valid and legally binding agreement of each of the
Penn Virginia Parties, enforceable against each of the Penn Virginia Parties in
accordance with its terms, provided that the enforceability hereof may be
limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws relating to or affecting creditors' rights generally
and by general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law); provided, further, that the
indemnity and contribution provisions hereunder may be limited by federal or
state securities laws.
(u) Conformity to Description of Units and Incentive Distribution
Rights. The Units, when issued and delivered against payment therefor as
provided herein, and the Subordinated Units and the Incentive Distribution
Rights, when issued and delivered in accordance with the terms of the
Partnership Agreement, will conform in all material respects to the descriptions
thereof contained in the Prospectus.
(v) Enforceability of Other Agreements. At or before the First
Delivery Date:
(i) the Partnership Agreement will have been duly authorized,
executed and delivered by the General Partner and PV Holding as the
"Organizational Limited Partner," and will be a valid and legally binding
agreement of the General
-9-
Partner and the Organizational Limited Partner, enforceable against the
General Partner and the Organizational Limited Partner in accordance with
its terms;
(ii) the Operating Company Agreement will have been duly
authorized, executed and delivered by the Partnership and will be a valid
and legally binding agreement of the Partnership, enforceable against the
Partnership in accordance with its terms;
(iii) the Operating Subsidiary LLC Agreements will have been
duly authorized, executed and delivered by the Operating Company and will
be valid and legally binding agreements of the Operating Company
enforceable against the Operating Company in accordance with their terms;
(iv) the Credit Agreement will have been duly authorized,
executed and delivered by the Partnership and the lenders party thereto and
will be a valid and legally binding agreement of the Partnership
enforceable against the Partnership in accordance with its terms;
(v) each of the Merger and Contribution Agreements will have
been duly authorized, executed and delivered by the parties thereto and
will be a valid and legally binding agreement of each of them enforceable
against each of them in accordance with its terms;
(vi) An omnibus agreement (the "Omnibus Agreement") will have
been duly authorized, executed and delivered by each of Penn Virginia, the
General Partner, the Partnership and the Operating Company, and will be a
valid and legally binding agreement of each of them enforceable against
each of them in accordance with its terms;
provided that, with respect to each agreement described in this Section 1(v),
the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and provided further, that the indemnity, contribution and exoneration
provisions contained in any of such agreements may be limited by applicable laws
and public policy. The Partnership Agreement, the Operating Company Agreement,
the Operating Subsidiary LLC Agreements, the Credit Agreement, the Merger and
Contribution Agreements and the Omnibus Agreement are herein collectively
referred to as the "Operative Agreements."
(w) Effective Date of Mergers and Conversions. The Mergers became
effective under the Code of Virginia and the Delaware LLC Act on September 14,
2001 and the Conversions became effective under the DGCL and the Delaware LLC
Act on September 14, 2001.
(x) Sufficiency of Transferred Assets Under Prior Conveyances. The
Prior Conveyances were legally sufficient to transfer or convey to the Operating
Company and the Operating Subsidiaries all properties not already held by them
that are, individually or in the aggregate, required to enable the Operating
Company and the Operating Subsidiaries to conduct
-10-
their operations (in all material respects as contemplated by the Prospectus),
subject to the conditions, reservations and limitations contained in the Merger
and Contribution Agreements and those set forth in the Prospectus. The Operating
Company and the Operating Subsidiaries, upon execution and delivery of the Prior
Conveyances, succeeded or will succeed in all material respects to the business,
assets, properties, liabilities and operations of the Penn Virginia Coal
Business as reflected by the pro forma financial statements of the Partnership,
except as disclosed in the Prospectus and the Merger and Contribution
Agreements.
(y) No Conflicts. None of the offering, issuance and sale by the
Partnership of the Units, the execution, delivery and performance of this
Agreement or the Operative Agreements by the Penn Virginia Entities which are
parties hereto or thereto, or the consummation of the transactions contemplated
hereby and thereby (including the Transactions) (i) conflicted, conflicts or
will conflict with or constituted, constitutes or will constitute a violation of
the agreement of limited partnership, limited liability company agreement,
certificate or articles of incorporation or bylaws or other organizational
documents of any of the Penn Virginia Entities, (ii) conflicted, conflicts or
will conflict with or constituted, constitutes or will constitute a breach or
violation of, or a default (or an event which, with notice or lapse of time or
both, would constitute such a default) under, any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which any of
the Penn Virginia Entities is a party or by which any of them or any of their
respective properties may be bound, (iii) violated, violates or will violate any
statute, law or regulation or any order, judgment, decree or injunction of any
court or governmental agency or body directed to any of the Penn Virginia
Entities or any of their properties in a proceeding to which any of them or
their property is or was a party, or (iv) resulted, results or will result in
the creation or imposition of any lien, charge or encumbrance upon any property
or assets of any of the Penn Virginia Entities, 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.
(z) No Consents. No permit, consent, approval, authorization, order,
registration, filing or qualification ("consent") of or with any court,
governmental agency or body having jurisdiction over the Penn Virginia Entities
or any of their respective properties is required in connection with the
offering, issuance and sale by the Partnership of the Units, the execution,
delivery and performance of this Agreement and the Operative Agreements by the
Penn Virginia Entities party thereto, or the consummation by the Penn Virginia
Entities of the transactions contemplated by this Agreement or the Operative
Agreements (including the Transactions), except (i) for such consents required
under the Securities Act, the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and state securities or "Blue Sky" laws, (ii) for such consents
that have been, or prior to each Delivery Date will be, obtained, (iii) for such
consents which, if not obtained, would not, individually or in the aggregate,
have a Material Adverse Effect, (iv) for such consents which are (A) of a
routine or administrative nature, (B) are not customarily obtained or made prior
to the consummations of transactions such as those contemplated by this
Agreement and the Operative Agreements and (C) are expected in the reasonable
judgment of the General Partner to be obtained in the ordinary course of
business subsequent to the consummation of the Transactions, and (v) as
disclosed in the Prospectus.
(aa) No Default. None of the Penn Virginia Entities is (i) in
violation of its certificate or agreement of limited partnership, limited
liability company agreement, certificate
-11-
or articles of incorporation or bylaws or other organizational documents, (ii)
in violation of any law, statute, ordinance, administrative or governmental rule
or regulation applicable to it or of any order, judgment, decree or injunction
of any court or governmental agency or body having jurisdiction over it, or
(iii) in breach, default (or an event which, with notice or lapse of time or
both, would constitute such a default) or violation in the performance of any
obligation, agreement or condition contained in any bond, debenture, note or any
other evidence of indebtedness or in any agreement, indenture, lease or other
instrument to which it is a party or by which it or any of its properties may be
bound, which breach, default or violation, in the case of clause (ii) or (iii),
would, if continued, have a Material Adverse Effect, or could materially impair
the ability of any of the Penn Virginia Entities to perform their obligations
under this Agreement or the Operative Agreements. To the knowledge of the Penn
Virginia Parties, no third party to any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which any of the Penn
Virginia Entities is a party or by which any of them are bound or to which any
of their properties are subject, is in default under any such agreement, which
breach, default or violation would, if continued, have a Material Adverse
Effect.
(bb) Independent Public Accountants. The accountants, Xxxxxx Xxxxxxxx
LLP, who have certified or shall certify the audited financial statements
included in the Registration Statement, any Preliminary Prospectus and the
Prospectus (or any amendment or supplement thereto) are independent public
accountants with respect to the Partnership and the General Partner as required
by the Securities Act and the Rules and Regulations.
(cc) Financial Statements. At June 30, 2001, the Partnership would
have had, on the consolidated pro forma basis indicated in the Prospectus (and
any amendment or supplement thereto), a capitalization as set forth therein. The
historical combined financial statements (including the related notes and
supporting schedules) of the Penn Virginia Coal Business included in the
Registration Statement, the Preliminary Prospectus dated ____________, 2001 and
the Prospectus (and any amendment or supplement thereto) present fairly in all
material respects the financial position, results of operations and cash flows
of the entities purported to be shown thereby on the basis stated therein at the
respective dates or for the respective periods which have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except to the extent disclosed therein. The
selected historical and pro forma financial information set forth in the
Registration Statement, the Preliminary Prospectus dated ____________, 2001 and
the Prospectus (and any amendment or supplement thereto) under the caption
"Selected Historical and Pro Forma Financial and Operating Data" is accurately
presented in all material respects and prepared on a basis consistent with the
audited and unaudited historical consolidated financial statements and pro forma
financial statements from which it has been derived. The pro forma financial
statements of the Partnership included in the Registration Statement, the
Preliminary Prospectus dated ____________, 2001 and the Prospectus (and any
amendment or supplement thereto) have been prepared in all material respects in
accordance with the applicable accounting requirements of Article 11 of
Regulation S-X of the Commission; the assumptions used in the preparation of
such pro forma financial statements are, in the opinion of the management of the
Penn Virginia Parties, reasonable; and the pro forma adjustments reflected in
such pro forma financial statements have been properly applied to the historical
amounts in compilation of such pro forma financial statements.
-12-
(dd) No Material Adverse Change. None of the Partnership Entities or
their predecessors has sustained since the date of the latest audited financial
statements included in the Registration Statement, the Preliminary Prospectus
and the Prospectus any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, investigation, order
or decree, otherwise than as set forth or contemplated in the Registration
Statement, the Preliminary Prospectus and the Prospectus. Except as disclosed
in the Registration Statement, the Preliminary Prospectus dated _____________,
2001 and the Prospectus (or any amendment or supplement thereto), subsequent to
the respective dates as of which such information is given in the Registration
Statement, the Preliminary Prospectus dated ____________, 2001 and the
Prospectus (or any amendment or supplement thereto), (i) none of the Penn
Virginia Entities has incurred any liability or obligation, indirect, direct or
contingent, or entered into any transactions, not in the ordinary course of
business, that, singly or in the aggregate, is material to the Partnership
Entities, taken as a whole, (ii) there has not been any material change in the
capitalization, or material increase in the short-term debt or long-term debt,
of the Partnership Entities or their predecessors and (iii) there has not been
any material adverse change, or any development involving or which may
reasonably be expected to involve, singly or in the aggregate, a prospective
material adverse change in or affecting the general affairs, condition
(financial or other), business, prospects, assets or results of operations of
the Partnership Entities, taken as a whole.
(ee) Legal Proceedings. There are no legal or governmental proceedings
pending or, to the knowledge of the Penn Virginia Parties, threatened, against
any of the Penn Virginia Entities, or to which any of the Penn Virginia Entities
is a party, or to which any of their respective properties is subject, that are
required to be described in the Registration Statement or the Prospectus but are
not described as required, and there are no agreements, contracts, indentures,
leases or other instruments that are required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement that are not described or filed as required by the
Securities Act.
(ff) No Distribution of Other Offering Materials. None of the Penn
Virginia Parties has distributed and, prior to the later to occur of (i) the
First Delivery Date and (ii) completion of the distribution of the Units, will
not distribute, any prospectus (as defined under the Securities Act) in
connection with the offering and sale of the Units other than the Registration
Statement, any Preliminary Prospectus, the Prospectus or other materials, if
any, permitted by the Securities Act, including Rule 134 of the Rules and
Regulations.
(gg) Title to Properties. The Operating Company and the Operating
Subsidiaries have good and indefeasible title to all real property and good
title to all personal property described in the Prospectus to be owned by the
Operating Company and the Operating Subsidiaries, free and clear of all liens,
claims, security interests or other encumbrances except (i) as described in the
Prospectus or (ii) such as do not materially interfere with the use of such
properties taken as a whole as they have been used in the past and are proposed
to be used in the future as described in the Prospectus, provided that, with
respect to any real property and buildings held under lease by the Operating
Company and the Operating Subsidiaries, such real property and buildings are
held under valid and subsisting and enforceable leases with such exceptions as
do not materially interfere with the use of such properties taken as a whole as
they
-13-
have been used in the past and are proposed to be used in the future as
described in the Prospectus. The mineral interests that constitute the
Partnership's coal reserves reflect in all material respects the right of the
Partnership to explore, lease, mine and/or receive production from such
reserves, and the care taken by the Partnership and its subsidiaries with
respect to acquiring or otherwise procuring such leases or mineral interests was
generally consistent with standard industry practices for acquiring or procuring
coal leases and interests therein for coal production.
(hh) Rights-of-Way. Each of the Partnership Entities has, or at each
Delivery Date will have, such consents, easements, rights-of-way or licenses
from any person ("rights-of-way") as are necessary to conduct its business in
the manner described in the Prospectus, subject to such qualifications as may be
set forth in the Prospectus and except for such rights-of-way that, if not
obtained, would not have, individually or in the aggregate, a material adverse
effect upon the ability of the Partnership Entities, taken as a whole, to
conduct their businesses in all material respects as currently conducted and as
contemplated by the Prospectus to be conducted; each of the Partnership Entities
has, or at each Delivery Date will have, fulfilled and performed all its
material obligations with respect to such rights-of-way and no event has
occurred that allows, or after notice or lapse of time would allow, revocation
or termination thereof or would result in any impairment of the rights of the
holder of any such rights-of-way, except for such revocations, terminations and
impairments that would not have a material adverse effect upon the ability of
the Partnership Entities, taken as a whole, to conduct their businesses in all
material respects as currently conducted and as contemplated by the Prospectus
to be conducted, subject in each case to such qualification as may be set forth
in the Prospectus; and, except as described in the Prospectus, none of such
rights-of-way contains any restriction that is materially burdensome to the
Partnership Entities, taken as a whole.
(ii) Permits. Each of the Partnership Entities and, to the knowledge
of the Penn Virginia Parties after due inquiry, their lessees has, or at each
Delivery Date will have, such permits, consents, licenses, franchises,
certificates and 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 the Prospectus, subject to such
qualifications as may be set forth in the Prospectus and except for such permits
that, if not obtained, would not have, individually or in the aggregate, a
Material Adverse Effect; each of the Partnership Entities and their lessees has,
or at each Delivery Date will have, fulfilled and performed all its material
obligations with respect to such permits and no event has occurred that would
prevent the permits from being renewed or reissued or which allows, or after
notice or lapse of time would allow, revocation or termination thereof or
results or would result in any impairment of the rights of the holder of any
such permit, except for such non-renewals, non-issues, revocations, terminations
and impairments that would not, individually or in the aggregate, have a
Material Adverse Effect.
(jj) Coal Sales Contracts. To the knowledge of the Penn Virginia
Parties, there is no customer of any lessee who, with or without the lapse of
time or the giving of notice, or both, is in breach or default in any respect
under any coal sales contract or other coal supply agreement or arrangement
between such customer and any lessee (a "Coal Sales Contract"), except for such
breaches or defaults that, individually or in the aggregate, have not and could
not reasonably be expected to have a Material Adverse Effect. To the knowledge
of the Penn
-14-
Virginia Parties, no customer of any Operator has delivered to such Operator any
notice of intention to terminate any Coal Sales Contract prior to the stated
term thereof.
(kk) Books and Records. The Partnership (i) makes and keeps books,
records and accounts that, in reasonable detail, accurately and fairly reflect
the transactions and dispositions of assets and (ii) maintains systems of
internal accounting controls sufficient to provide reasonable assurances that
(A) transactions are executed in accordance with management's general or
specific authorization; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (C) access to
assets is permitted only in accordance with management's general or specific
authorization; and (D) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(ll) Tax Returns. Each of the Penn Virginia Entities has filed (or
has obtained extensions with respect to) all material federal, state and foreign
income and franchise tax returns required to be filed through the date hereof,
which returns are complete and correct in all material respects, and has timely
paid all taxes shown to be due pursuant to such returns, other than those (i)
that are being contested in good faith and for which adequate reserves have been
established in accordance with generally accepted accounting principles or (ii)
which, if not paid, would not reasonably be likely to result in a Material
Adverse Effect.
(mm) Investment Company/Public Utility Holding Company. None of the
Partnership Entities is now, and after sale of the Units to be sold by the
Partnership hereunder and application of the net proceeds from such sale as
described in the Prospectus under the caption "Use of Proceeds" will be, (i) an
"investment company" or a company "controlled by" an "investment company" within
the meaning of the Investment Company Act of 1940, as amended, or (ii) a "public
utility company," "holding company" or a "subsidiary company" of a "holding
company" or an "affiliate" thereof, under the Public Utility Holding Company Act
of 1935, as amended.
(nn) Environmental Compliance. The Partnership Entities and, to the
knowledge of the Penn Virginia Parties after due inquiry, their lessees (i) are
in compliance with any and all applicable federal, state and local laws and
regulations relating to the protection of human health and safety and the
environment ("Environmental Laws"), (ii) are not subject to liability under
Environmental Laws related to any Hazardous Material, (iii) have received all
permits required of them under applicable Environmental Laws to conduct their
respective businesses and (iv) are in compliance with all terms and conditions
of any such permits, except where such noncompliance with Environmental Laws,
liability, failure to receive required permits, or failure to comply with the
terms and conditions of such permits would not, individually or in the
aggregate, have a Material Adverse Effect. The term "Hazardous Material" means
(A) any solid or "hazardous substance" as defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, (B)
any "hazardous waste" as defined in the Resource Conservation and Recovery Act,
as amended, (C) any petroleum or petroleum product, (D) any polychlorinated
biphenyl, (E) any substance regulated by federal or state laws or permits
governing coal mining or silvicultural activity, and (F) any pollutant or
contaminant or hazardous, dangerous or toxic chemical, material, waste or
substance regulated
-15-
under or within the meaning of any other Environmental Law. The representations
set forth in this Section 1(nn) take into account the impact of judicial rulings
and order that have interpreted Environmental Laws.
(oo) No Labor Dispute. Except as disclosed in the Prospectus, no labor
dispute with the employees of the Penn Virginia Entities that are engaged in the
Penn Virginia Coal Business exists or, to the knowledge of the Penn Virginia
Parties, is imminent or threatened; and except as disclosed in the Prospectus,
none of the Penn Virginia Parties is aware of any existing, imminent or
threatened labor disturbance by the employees of any of its lessees, principal
suppliers, manufacturers or contractors that would, individually or in the
aggregate, be reasonably likely to result in a Material Adverse Effect.
(pp) Insurance. The Partnership Entities maintain insurance covering
their properties, operations, personnel and businesses against such losses and
risks as are reasonably adequate to protect them and their businesses in a
manner consistent with other businesses similarly situated. None of the
Partnership Entities has received notice from any insurer or agent of such
insurer that substantial capital improvements or other expenditures will have to
be made in order to continue such insurance; all such insurance is outstanding
and duly in force on the date hereof and will be outstanding and duly in force
on each Delivery Date.
(qq) Litigation. Except as described in the Prospectus, there is (i)
no action, suit or proceeding before or by any court, arbitrator or governmental
agency, body or official, domestic or foreign, now pending or, to the knowledge
of the Penn Virginia Parties, threatened, to which any of the Penn Virginia
Entities is or may be a party or to which the business or property of any of the
Penn Virginia Entities is or may be subject, (ii) no statute, rule, regulation
or order that has been enacted, adopted or issued by any governmental agency or
that has been proposed by any governmental agency, and (iii) no injunction,
restraining order or order of any nature issued by a federal or state court or
foreign court of competent jurisdiction to which any of the Penn Virginia
Entities is or may be subject, that, in the case of clauses (i), (ii) and (iii)
above, is reasonably expected to (A) singly or in the aggregate have a Material
Adverse Effect, (B) prevent or result in the suspension of the offering and
issuance of the Units, or (C) in any manner draw into question the validity of
this Agreement or any Operative Agreement.
(rr) Private Placement. The offer, sale and issuance of (i) the
Sponsor Units to KRC and LP Corp. and (ii) the Incentive Distribution Rights to
the General Partner pursuant to the Partnership Agreement are exempt from the
registration requirements of the Securities Act, the Rules and Regulations and
the securities laws of any state having jurisdiction with respect thereto, and
none of the Penn Virginia Entities has taken or will take any action that would
cause the loss of such exemption.
(ss) NYSE Listing. The Units have been approved for listing on the
New York Stock Exchange ("NYSE"), subject only to official notice of issuance.
(tt) Directed Unit Sales. None of the Directed Units (as defined in
Section 5(l) below) distributed in connection with the Directed Unit Program (as
defined in Section 5(l) below) will be offered or sold outside of the United
States.
-16-
2. Purchase of the Units by the Underwriters. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Partnership agrees to sell 6,352,408 Firm
Units to the several Underwriters, and each of the Underwriters, severally and
not jointly, agrees to purchase the number of Firm Units set forth opposite that
Underwriter's name in Schedule 1 hereto. The respective purchase obligations of
the Underwriters with respect to the Firm Units shall be rounded among the
Underwriters to avoid fractional shares, as the Representatives may determine.
In addition, the Partnership grants to the Underwriters an option to
purchase up to 952,861 Option Units. Such option is granted for the purpose of
covering over-allotments in the sale of Firm Units and is exercisable as
provided in Section 4 hereof. Option Units shall be purchased severally for the
account of the Underwriters in proportion to the number of Firm Units set forth
opposite the names of such Underwriters in Schedule 1 hereto. The respective
purchase obligations of each Underwriter with respect to the Option Units shall
be adjusted by the Representatives so that no Underwriter shall be obligated to
purchase Option Units other than in 100 Unit amounts.
The price of both the Firm Units and any Option Units shall be $____
per Unit.
The Partnership shall not be obligated to deliver any of the Units to
be delivered on the First Delivery Date or the Second Delivery Date (as
hereinafter defined), as the case may be, except upon payment for all the Units
to be purchased on such Delivery Date as provided herein.
3. Offering of Units by the Underwriters. Upon authorization by the
Representatives of the release of the Firm Units, the several Underwriters
propose to offer the Firm Units for sale upon the terms and conditions set forth
in the Prospectus.
4. Delivery of and Payment for the Units. Delivery of and payment
for the Firm Units shall be made at the office of Xxxxxx & Xxxxxx L.L.P. at
10:00 A.M., New York City time, on the fourth full business day following the
date of this Agreement or at such other date or place as shall be determined by
agreement between the Representatives and the Partnership. This date and time
are sometimes referred to as the "First Delivery Date." On the First Delivery
Date, the Partnership shall cause its transfer agent to deposit as original
issue the Firm Units pursuant to the Full Fast Delivery Program of The
Depository Trust Company ("DTC") for the account of each Underwriter against
payment to or upon the order of the Partnership of the purchase price by wire
transfer of immediately available funds. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligation of each Underwriter hereunder.
The option granted in Section 2 will expire 30 days after the date of
this Agreement and may be exercised in whole or in part from time to time by
written notice being given to the Partnership by the Representatives. Such
notice shall set forth the aggregate number of Option Units as to which the
option is being exercised, the names in which the Option Units are to be
registered, the denominations in which the Option Units are to be issued and the
date and time, as determined by the Representatives, when the Option Units are
to be delivered; provided, however, that this date and time shall not be earlier
than the First Delivery Date nor
-17-
earlier than the second business day after the date on which the option shall
have been exercised nor later than the fifth business day after the date on
which the option shall have been exercised. The date and time the Option Units
are delivered are sometimes referred to as the "Second Delivery Date," and the
First Delivery Date and the Second Delivery Date are sometimes each referred to
as a "Delivery Date."
Delivery of and payment for the Option Units shall be made at the
place specified in the first sentence of the first paragraph of this Section 4
(or at such other place as shall be determined by agreement between the
Representatives and the Partnership) at 10:00 A.M., New York City time, on the
Second Delivery Date. On the Second Delivery Date, the Partnership shall cause
its transfer agent to deposit as original issue the Option Units pursuant to the
Full Fast Delivery Program of the DTC for the account of each Underwriter
against payment to or upon the order of the Partnership of the purchase price by
wire transfer of immediately available funds. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligation of each Underwriter hereunder.
5. Further Agreements of the Penn Virginia Parties. Each of the
Penn Virginia Parties, jointly and separately, covenants and agrees with each
Underwriter:
(a) Preparation of Prospectus and Registration Statement. (i) To
prepare the Prospectus in a form approved by the Representatives and to file
such Prospectus pursuant to Rule 424(b) under the Securities Act not later than
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 430A(a)(3) under the Securities Act; (ii) to make no
further amendment or any supplement to the Registration Statement or to the
Prospectus except as permitted herein; (iii) to advise the Representatives,
promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed and to furnish the
Representatives with copies thereof; (iv) to advise the Representatives,
promptly after it receives notice thereof, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, of the suspension of the qualification
of the Units for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose or of any request by the
Commission for the amending or supplementing of the Registration Statement or
the Prospectus or for additional information; and (v) in the event of the
issuance of any stop order or of any order preventing or suspending the use of
any Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal.
(b) Signed Copies of Registration Statements. To furnish promptly to
each of the Representatives and to counsel for the Underwriters a signed copy of
the Registration Statement as originally filed with the Commission, and each
amendment thereto filed with the Commission, including all consents and exhibits
filed therewith.
(c) Copies of Documents to Representatives. To deliver promptly to
the Representatives such number of the following documents as the
Representatives shall reasonably request: (i) conformed copies of the
Registration Statement as originally filed with the Commission and each
amendment thereto (in each case excluding exhibits) and (ii) each
-18-
Preliminary Prospectus, the Prospectus and any amended or supplemented
Prospectus; and, if the delivery of a prospectus is required at any time after
the Effective Time 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 when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary to amend or
supplement the Prospectus in order to comply with the Securities Act, to notify
the Representatives and, upon their request, to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended or
supplemented Prospectus which will correct such statement or omission or effect
such compliance.
(d) Filing of Amendment or Supplement. To file promptly with the
Commission any amendment to the Registration Statement or the Prospectus or any
supplement to the Prospectus that may, in the reasonable judgment of the
Partnership or the Representatives, be required by the Securities Act or
requested by the Commission. Prior to filing with the Commission any amendment
to the Registration Statement or supplement to the Prospectus or any Prospectus
pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to
the Representatives and counsel for the Underwriters and obtain the consent of
the Representatives to the filing, which shall not be unreasonably withheld or
delayed.
(e) Reports to Security Holders. As soon as practicable after the
Effective Date, to make generally available to the Partnership's security
holders and to deliver to the Representatives an earnings statement of the
Partnership and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and the Rules and Regulations (including, at
the option of the Partnership, Rule 158).
(f) Copies of Reports. For a period of two years following the
Effective Date, to furnish or make available to the Representatives copies of
all materials furnished by the Partnership to its security holders all reports
and financial statements furnished by the Partnership to the principal national
securities exchange upon which the Units may be listed pursuant to requirements
of or agreements with such exchange or to the Commission pursuant to the
Exchange Act or any rule or regulation of the Commission thereunder.
(g) Qualifications. Promptly from time to time to take such action as
the Representatives may reasonably request to qualify the Units for offering and
sale under the securities laws of such jurisdictions as the Representatives may
request and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Units; provided that in no event shall the
Partnership or the General Partner be obligated in connection therewith to
qualify as a foreign limited partnership or as a foreign limited liability
company, or to file a general consent to service of process in any jurisdiction.
(h) Lock-up Period; Lock-up Letters. For a period of 180 days from
the date of this Prospectus, not to, directly or indirectly, (i) offer for sale,
sell, pledge or otherwise dispose of (or enter into any transaction or device
which is designed to, or could be expected to,
-19-
result in the disposition by any person at any time in the future of) any Common
Units or securities convertible into, or exchangeable for Common Units (other
than Units issued pursuant to employee benefits plans, qualified unit option
plans or other employee compensation plans existing on the date hereof or
pursuant to currently outstanding options, warrants or rights), or sell or grant
options, rights or warrants with respect to any Common Units or securities
convertible into or exchangeable for Common Units (other than the grant of
options pursuant to option plans existing on the date hereof), or (ii) enter
into any swap or other derivatives transaction that transfers to another, in
whole or in part, any of the economic benefits or rights of ownership of such
Common Units, whether any such transaction described in clause (i) or (ii) above
is to be settled by delivery of Common Units or other securities, in cash or
otherwise, in each case without the prior written consent of Xxxxxx Brothers
Inc. on behalf of the Underwriters; provided, however, that the foregoing
restrictions do not apply to: (A) the sale of Common Units by the Partnership to
the Underwriters in connection with the public offering contemplated hereby, (B)
Common Units to be issued by the Partnership under employee incentive plans
described in the Prospectus or upon the exercise of options issued under such
employee incentive plans, and (C) up to 1,500,000 Common Units to be issued by
the Partnership in connection with acquisitions provided that, (1) such issuance
is made pursuant to Section 5.7(b) of the Partnership Agreement and (2) the
recipients of such Common Units agree in writing to be bound by the foregoing
restrictions of this Section 5(i) by executing a letter or letters substantially
in the form of Exhibit D hereto. Each executive officer and director of the
General Partner shall furnish to the Representatives, prior to the First
Delivery Date, a letter or letters, substantially in the form of Exhibit D
hereto, pursuant to which each such person shall agree not to, directly or
indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter
into any transaction or device which is designed to, or could be expected to,
result in the disposition by any person at any time in the future of) any shares
of Common Units or securities convertible into or exchangeable for Common Units
or (2) 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 such Common Units, whether any such transaction described in clause (1) or
(2) above is to be settled by delivery of Common Units or other securities, in
cash or otherwise, in each case for a period of 180 days from the date of the
Prospectus, without the prior written consent of Xxxxxx Brothers Inc. on behalf
of the Underwriters.
(i) NYSE Listing. To apply for the listing of the Units on the New
York Stock Exchange, and to use its best efforts to complete that listing,
subject only to official notice of issuance, prior to the First Delivery Date.
(j) Application of Proceeds. To apply the net proceeds from the sale
of the Units as set forth in the Prospectus.
(k) Consents. To cause the Penn Virginia Entities to accomplish or
obtain as soon as practicable all consents, recordings and filings necessary to
perfect, preserve and protect the title of the Operating Company and the
Operating Subsidiaries to the properties and assets owned by them as a result of
the Transactions.
(l) Directed Unit Program. It is understood that approximately
__________ of the Firm Units (the "Directed Units") will initially be reserved
by the Underwriters for offer and sale to employees and persons having business
relationships with the Partnership Entities
-20-
("Directed Unit Participants") upon the terms and conditions set forth in the
Prospectus and in accordance with the rules and regulations of the National
Association of Securities Dealers, Inc. (the "Directed Unit Program"). Under no
circumstances will Xxxxxx Brothers or any Underwriter be liable to the
Partnership Entities or to any Directed Unit Participant for any action taken or
omitted to be taken in good faith in connection with such Directed Unit Program.
To the extent that any Directed Units are not affirmatively reconfirmed for
purchase by any Directed Unit Participant on or immediately after the date of
this Agreement, such Directed Units may be offered to the public as part of the
public offering contemplated hereby.
6. Expenses. The Penn Virginia Parties agree to pay (a) the costs
incident to the authorization, issuance, sale and delivery of the Units and any
taxes payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement and
any amendments and exhibits thereto; (c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), each
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus, all as provided in this Agreement; (d) the costs of producing and
distributing this Agreement, the Agreement Between Underwriters and any other
related documents in connection with the offering, purchase, sale and delivery
of the Units; (e) the filing fees incident to securing the review by the
National Association of Securities Dealers, Inc. of the terms of sale of the
Units; (f) any applicable listing or other similar fees; (g) the fees and
expenses of qualifying the Units under the securities laws of the several
jurisdictions as provided in Section 5(h) and of preparing, printing and
distributing a Blue Sky Memorandum (including related fees and expenses of
counsel to the Underwriters); (h) incurred by the Underwriters in connection
with the Directed Unit Program, including counsel fees and any stamp duties or
other taxes incurred by the Underwriters in connection with the Directed Unit
Program; (i) the cost of printing certificates representing the Units; (j) the
costs and charges of any transfer agent or registrar; (k) the costs and expenses
of the Partnership relating to investor presentations on any "road show"
undertaken in connection with the marketing of the offering of the Units,
including, without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval of the
Partnership, travel and lodging expenses of the representatives and officers of
the Partnership and any such consultants, and the cost of any aircraft chartered
in connection with the road show; and (l) all other costs and expenses incident
to the performance of the obligations of the Partnership; provided that, except
as provided in this Section 6 and in Section 11 the Underwriters shall pay their
own costs and expenses, including the costs and expenses of their counsel, any
transfer taxes on the Units which they may sell and the expenses of advertising
any offering of the Units made by the Underwriters.
7. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on each Delivery Date, of the representations and warranties of the Penn
Virginia Parties contained herein, to the performance by the Penn Virginia
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); no stop order suspending the effectiveness of
the Registration
-21-
Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and any
request of the Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall have been complied
with.
(b) All corporate, partnership and limited liability company
proceedings and other legal matters incident to the authorization, form and
validity of this Agreement, the Operative Agreements, the Common Units, the
Subordinated Units, the Registration Statement and the Prospectus, and all other
legal matters relating to this Agreement, the transactions contemplated hereby
and the Transactions shall be reasonably satisfactory in all material respects
to counsel for the Underwriters, and the Partnership shall have furnished to
such counsel all documents and information that they may reasonably request to
enable them to pass upon such matters.
(c) Xxxxxx & Xxxxxx L.L.P. shall have furnished to the
Representatives their written opinion, as counsel for the Penn Virginia
Entities, addressed to the Underwriters and dated such Delivery Date, in form
and substance satisfactory to the Representatives, with respect to the matters
set forth in Exhibit A to this Agreement.
(d) The Representatives shall have received on the First Delivery
Date, a copy of the opinion of Xxxxxx & Xxxxxx L.L.P. delivered pursuant to the
Credit Agreement, substantially in the forms provided for therein, accompanied
by a letter dated the First Delivery Date and addressed to the Underwriters from
such counsel stating that the Underwriters are entitled to rely on such opinion
as if it were addressed to the Underwriters.
(e) Xxxxx X. Xxxxxx, General Counsel of the Partnership, shall have
furnished to the Representatives her written opinion, addressed to the
Underwriters and dated such Delivery Date, in form and substance satisfactory to
the Representatives, with respect to the matters set forth in Exhibit B to this
Agreement.
(f) Each of Xxxxxxx Xxxxxx & Battle, PLLC, opining as to the law of
West Virginia, and Xxxx Xxxxxx & Xxxxxxxx, opining as to the law of Virginia and
Kentucky, shall have furnished to the Representatives their written opinions,
addressed to the Underwriters and dated the First Delivery Date, in form and
substance satisfactory to the Representatives, with respect to the matters set
forth in Exhibit C to this Agreement.
(g) The Representatives shall have received from Xxxxx Xxxxx L.L.P.,
counsel for the Underwriters, such opinion or opinions, dated such Delivery
Date, with respect to the issuance and sale of the Units, the Registration
Statement, the Prospectus and other related matters as the Representatives may
reasonably require, and the Partnership shall have furnished to such counsel
such documents as they may reasonably request for the purpose of enabling them
to pass upon such matters.
(h) At the time of execution of this Agreement, the Representatives
shall have received from Xxxxxx Xxxxxxxx LLP a letter or letters, in form and
substance satisfactory to the Representatives, addressed to the Underwriters and
dated the date hereof (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in
-22-
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 Prospectus, as of a date not more than five 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.
(i) With respect to the letter of Xxxxxx Xxxxxxxx LLP referred to in
the preceding paragraph and delivered to the Representatives concurrently with
the execution of this Agreement (the "initial letter"), the Partnership shall
have furnished to the Representatives a letter (the "bring-down letter") of such
accountants, addressed to the Underwriters and dated such Delivery Date (i)
confirming that they are independent public accountants within the meaning of
the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation S-X
of the Commission, (ii) stating, as of the date of the bring-down letter (or,
with respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the Prospectus, as
of a date not more than five 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 letters and (iii)
confirming in all material respects the conclusions and findings set forth in
the initial letters.
(j) At the time of execution of this Agreement, the Representatives
shall have received a letter addressed to them dated on or prior to the date
hereof from Xxxxxxxx Xxxxxx & Associates substantially in the form heretofore
approved by the Representatives.
(k) On each Delivery Date, there shall have been furnished to the
Representatives a certificate, dated such Delivery Date and addressed to the
Representatives, signed on behalf of the Partnership by the chief executive
officer and the chief financial officer of the General Partner, stating that (i)
the representations and warranties of the Penn Virginia Parties are true and
correct, as if made at and as of such Delivery Date, and the Penn Virginia
Parties have complied in all material respects with all the agreements and
satisfied all the conditions on their part to be complied with or satisfied at
or prior to such Delivery Date; (ii) no stop order suspending the effectiveness
of the Registration Statement has been issued, and no proceeding for that
purpose has been initiated or threatened by the Commission; (iii) since the
Effective Date there has occurred no event required to be set forth in an
amendment or supplement to the Registration Statement or the Prospectus which
has not been so set forth; (iv) no event contemplated by subsection (l) of this
Section 7 in respect of the Penn Virginia Parties shall have occurred; and (v)
they have carefully examined the Registration Statement and the Prospectus and,
in their opinion (A) as of the Effective Date, the Registration Statement and
Prospectus did not include any untrue statement of a material fact and did not
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading, and (B) since the Effective Date no event
has occurred which should have been set forth in a supplement or amendment to
the Registration Statement or the Prospectus.
(l) Since the Effective Date, none of the Partnership Entities shall
have sustained any material loss or interference with its business from fire,
flood, explosion, accident
-23-
or other calamity, whether or not covered by insurance, or from any labor
dispute or shall have become a party to or the subject of any litigation, court
or governmental action, investigation, order or decree that is materially
adverse to the Partnership Entities, taken as a whole; nor shall there have been
a change in the partners' capital, capital stock, members' interests, short-term
debt or long-term debt of any of the Partnership Entities or any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, operations, business, prospects,
management, capitalization, financial condition, results of operations or net
worth of the Partnership Entities, which loss, litigation, change or
development, in the judgment of the Representatives, shall render it impractical
or inadvisable to proceed with the public offering or the delivery of the Units
being delivered on such Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(m) 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 New York Stock Exchange or the American Stock Exchange or in
the over-the-counter market, or trading in any securities of the Partnership on
any exchange or in the over-the-counter market, shall have been suspended or
minimum prices shall have been established on any such exchange or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall have
been declared by federal or state authorities, (iii) the United States shall
have become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment of a
majority in interest of the Representatives, impracticable or inadvisable to
proceed with the public offering or delivery of the Units being delivered on
such Delivery Date on the terms and in the manner contemplated in the
Prospectus.
(n) The New York Stock Exchange shall have approved the Units for
listing, subject only to official notice of issuance.
(o) The Penn Virginia Parties shall have furnished the
Representatives such additional documents and certificates as the
Representatives or counsel for the Underwriters may reasonably request.
All such opinions, certificates, letters and documents mentioned above
or elsewhere in this Agreement shall be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to the
Representatives and to counsel for the Underwriters. The Partnership shall
furnish to the Representatives conformed copies of such opinions, certificates,
letters and other documents in such number as they shall reasonably request.
8. Indemnification and Contribution.
(a) The Penn Virginia Parties, jointly and severally, shall indemnify
and hold harmless each Underwriter, its officers and employees and each person,
if any, who controls any Underwriter within the meaning of the Securities Act,
from and against any loss, claim, damage
-24-
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, officer, employee or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in (A) any Preliminary Prospectus, the Registration Statement or
the Prospectus or in any amendment or supplement thereto or (B) in any written
or electronically produced materials or information provided to investors by, or
with the approval of, the Partnership in connection with the marketing of the
offering of the Common Units ("Marketing Materials"), (ii) the omission or
alleged omission to state in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or in any amendment or supplement thereto, or in
any Marketing Materials, any material fact required to be stated therein or
necessary to make the statements therein not misleading, (iii) the omission or
alleged omission to state in any Preliminary Prospectus, the Prospectus or in
any amendment or supplement thereto, any material fact necessary to make the
statements therein, in light of the circumstance under which there were made,
not misleading, or (iv) any act or failure to act or any alleged act or failure
to act by any Underwriter in connection with, or relating in any manner to, the
Units or the offering contemplated hereby, and which 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), (ii) or (iii) above (provided that the
Penn Virginia Parties shall not be liable under this clause (iv) to the extent
that it is determined in a final judgment by a court of competent jurisdiction
that such loss, claim, damage, liability or action resulted directly from any
such acts or failures to act undertaken or omitted to be taken by such
Underwriter through its gross negligence or willful misconduct), and shall
reimburse each Underwriter and each such officer, employee or controlling person
promptly upon demand for any legal or other expenses reasonably incurred by that
Underwriter, 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 Penn Virginia Parties shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus, or in any such amendment or supplement, in reliance upon and
in conformity with written information concerning such Underwriter furnished to
the Partnership through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein which information consists solely of the
information specified in Section 8(e). The foregoing indemnity agreement is in
addition to any liability which the Penn Virginia Parties may otherwise have to
any Underwriter or to any officer, employee or controlling person of that
Underwriter.
In connection with the offer and sale of the Directed Units, the Penn
Virginia Parties, jointly and severally, agree, promptly upon a request in
writing, to indemnify and hold harmless Xxxxxx Brothers and the other
Underwriters from and against any loss, claim, damage, expense, liability or
action which (i) arises out of, or is based upon, any untrue statement or
alleged untrue statement of a material fact contained in any material prepared
by or with the approval of the Partnership Entities for distribution to Directed
Unit Participants in connection with the Directed Unit Program or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii) arises
out of the failure of any Directed Unit Participant to pay for and accept
delivery of
-25-
Directed Units that the Directed Unit Participant agreed to purchase or (iii) is
otherwise related to the Directed Unit Program, other than losses, claims,
damages or liabilities (or expenses relating thereto) that are finally
judicially determined to have resulted directly from the bad faith or gross
negligence of Xxxxxx Brothers.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Penn Virginia Parties, their officers and employees, each of
their directors, and each person, if any, who controls the Penn Virginia Parties
within the meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof, to
which the Penn Virginia Parties or any such director, officer or controlling
person may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto, or (ii) the omission or
alleged omission to state in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or in any amendment or supplement thereto, any
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (iii) the omission or alleged omission to state in
any Preliminary Prospectus, the Prospectus or in any amendment or supplement
thereto, any material fact necessary to make the statements therein, in light of
the circumstances in which there were made, not misleading, but in each case
only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information concerning such Underwriter furnished to the Penn Virginia
Parties through the Representatives by or on behalf of that Underwriter
specifically for inclusion therein, and shall reimburse the Penn Virginia
Parties and any such director, officer or controlling person for any legal or
other expenses reasonably incurred by the Penn Virginia Parties or any such
director, officer 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. The foregoing indemnity agreement is in
addition to any liability which any Underwriter may otherwise have to the Penn
Virginia Parties or any such director, officer, employee or controlling person.
(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 which 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
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its 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
-26-
investigation; provided, however, that the Representatives shall have the right
to employ counsel to represent jointly the Representatives and those other
Underwriters and their respective officers, employees and controlling persons
who may be subject to liability arising out of any claim in respect of which
indemnity may be sought by the Underwriters against the Partnership under this
Section 8 if, in the reasonable judgment of the Representatives, it is advisable
for the Representatives and those Underwriters, officers, employees and
controlling persons to be jointly represented by separate counsel, and in that
event the fees and expenses of such separate counsel shall be paid by the
Partnership. No indemnifying party shall (i) without the prior written consent
of the indemnified parties (which consent shall not be unreasonably withheld),
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with the consent of the indemnifying party or if there
be a final judgment of the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(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) 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 Penn Virginia Parties, on the one hand, and the Underwriters on
the other from the offering of the Units or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Penn Virginia Parties, on the one hand,
and the Underwriters on the other, with respect to the statements or omissions
which 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 Penn Virginia Parties, on the one hand, and the
Underwriters on the other, with respect to such offering shall be deemed to be
in the same proportion as the total net proceeds from the offering of the Units
purchased under this Agreement (before deducting expenses) received by the
Partnership, on the one hand, and the total underwriting discounts and
commissions received by the Underwriters with respect to the Units purchased
under this Agreement, on the other hand, bear to the total gross proceeds from
the offering of the Units under this Agreement, in each case as set forth in the
table on the cover page of the Prospectus. 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 Penn Virginia Parties or the Underwriters, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Penn Virginia
Parties and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 8 were to be determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other
-27-
method of allocation which 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 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 or defending any such
action or claim. Notwithstanding the provisions of this Section 8(d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Units underwritten by it and distributed
to the public was offered to the public exceeds the amount of any damages which
such Underwriter has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters' obligations
to contribute as provided in this Section 8(d) are several in proportion to
their respective underwriting obligations and not joint.
(e) The Underwriters severally confirm and the Penn Virginia Parties
acknowledge that the statements with respect to the public offering of the Units
by the Underwriters set forth on the cover page of the Prospectus and the
statements in the table in the first paragraph, the concession and reallowance
figures in the fifth paragraph, and the statements in the ninth, tenth,
eleventh, twelfth, eighteenth, nineteenth, twentieth, twenty-first and twenty-
second paragraphs appearing under the caption "Underwriting" in the Prospectus
are correct and constitute the only information concerning such Underwriters
furnished in writing to the Partnership by or on behalf of the Underwriters
specifically for inclusion in the Registration Statement and the Prospectus.
9. Defaulting Underwriters.
If, on either Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining non-
defaulting Underwriters shall be obligated to purchase the Units which the
defaulting Underwriter agreed but failed to purchase on such Delivery Date in
the respective proportions which the number of Firm Units set opposite the name
of each remaining non-defaulting Underwriter in Schedule 1 hereto bears to the
total number of Firm Units set opposite the names of all the remaining non-
defaulting Underwriters in Schedule 1 hereto; provided, however, that the
remaining non-defaulting Underwriters shall not be obligated to purchase any of
the Units on such Delivery Date if the total number of Units which the
defaulting Underwriter or Underwriters agreed but failed to purchase on such
date exceeds 9.09% of the total number of Units to be purchased on such Delivery
Date, and any remaining non-defaulting Underwriter shall not be obligated to
purchase more than 110% of the number of the Units which it agreed to purchase
on such Delivery Date pursuant to the terms of Section 2. If the foregoing
maximums are exceeded, the remaining non-defaulting Underwriters, or those other
underwriters satisfactory to the Representatives who so agree, shall have the
right, but shall not be obligated, to purchase, in such proportion as may be
agreed upon among them, all the Units to be purchased on such Delivery Date. If
the remaining Underwriters or other underwriters satisfactory to the
Representatives do not elect to purchase the Units which the defaulting
Underwriter or Underwriters agreed but failed to purchase on such Delivery Date,
this Agreement (or, with respect to the Second Delivery Date, the obligation of
the Underwriters to purchase, and of the Partnership to sell, the Option Units)
shall terminate without liability on the
-28-
part of any non-defaulting Underwriter or any Penn Virginia Party except that
the Penn Virginia Parties will continue to be liable for the payment of expenses
to the extent set forth in Sections 6 and 11. As used in this Agreement, the
term "Underwriter" includes, for all purposes of this Agreement unless the
context requires otherwise, any party not listed in Schedule 1 hereto who,
pursuant to this Section 9, purchases Firm Units which a defaulting Underwriter
agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Penn Virginia Parties for damages caused by its
default. If other underwriters are obligated or agree to purchase the Units of a
defaulting or withdrawing Underwriter, either the Representatives or the
Partnership may postpone the Delivery Date for up to seven full business days in
order to effect any changes that in the opinion of counsel for the Partnership
or counsel for the Underwriters may be necessary in the Registration Statement,
the Prospectus or in any other document or arrangement.
10. Termination. The obligations of the Underwriters hereunder may
be terminated by the Representatives by notice given to and received by the
Partnership prior to delivery of and payment for the Firm Units if, prior to
that time, any of the events described in Section 7(n) or 7(o) shall have
occurred or if the Underwriters shall decline to purchase the Units for any
reason permitted under this Agreement.
11. Reimbursement of Underwriters' Expenses. If the Partnership
shall fail to tender the Units for delivery to the Underwriters by reason of any
failure, refusal or inability on the part of any Penn Virginia Party to perform
any agreement on its part to be performed, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled by any Penn
Virginia Entity is not fulfilled, the Penn Virginia Parties will reimburse the
Underwriters for all reasonable out-of-pocket expenses (including fees and
disbursements of counsel) incurred by the Underwriters in connection with this
Agreement and the proposed purchase of the Units, and upon demand the Penn
Virginia Parties shall pay the full amount thereof to the Representatives. If
this Agreement is terminated pursuant to Section 9 by reason of the default of
one or more Underwriters, the Penn Virginia Parties shall not be obligated to
reimburse any defaulting Underwriter on account of those expenses.
12. Notices. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to any of the Penn Virginia Parties, shall be delivered or
sent by mail, telex or facsimile transmission to such Penn Virginia Party at 000
Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxx 00000, Attention: Xx. Xxxxx X.
Xxxxxx, General Counsel (Fax: 610/000-0000);
(b) if to the Underwriters, such notice shall be delivered or sent by
mail, telex or facsimile transmission to the Representatives in care of Xxxxxx
Brothers Inc., Three World Financial Center, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Syndicate Department (Fax: 212/000-0000), with a copy, in
the case of any notice pursuant to Section 8(c), to the Director of Litigation,
Office of the General Counsel, Xxxxxx Brothers Inc., 000 Xxxxxx Xxxxxx, Xxxxxx
Xxxx, Xxx Xxxxxx 00000; provided, however, that any notice to an Underwriter
-29-
pursuant to Section 8(c) shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its acceptance
telex to the Representatives, which address will be supplied to any other party
hereto by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect at the time of receipt thereof. The
Partnership shall be entitled to act and rely upon any request, consent, notice
or agreement given or made on behalf of the Underwriters by Xxxxxx Brothers Inc.
on behalf of the Representatives.
13. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Penn Virginia
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 Penn
Virginia Parties contained in this Agreement shall also be deemed to be for the
benefit of the person or persons, if any, who control any Underwriter within the
meaning of Section 15 of the Securities Act and (B) the indemnity agreement of
the Underwriters contained in Section 8(b) of this Agreement shall be deemed to
be for the benefit of directors of the General Partner, officers of the General
Partner who have signed the Registration Statement and any person controlling
any of the Penn Virginia Parties 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 13, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
14. Survival. The respective indemnities, representations, warranties
and agreements of the Penn Virginia Parties and the Underwriters contained in
this Agreement or made by or on behalf on 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.
15. Definition of the Terms "Business Day" and "Subsidiary". For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange is open for trading, and (b) "subsidiary" has the meaning
set forth in Rule 405 of the Rules and Regulations.
16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
17. 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.
18. 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.
-30-
If the foregoing correctly sets forth the agreement among the Penn
Virginia Parties and the Underwriters, please indicate your acceptance in the
space provided for that purpose below.
Very truly yours,
PENN VIRGINIA CORPORATION
By:_______________________________________________
Name:
Title:
PENN VIRGINIA RESOURCE GP, LLC
By: Penn Virginia Holding Corp., its sole member
By:_______________________________________________
Name:
Title:
PENN VIRGINIA RESOURCE PARTNERS, L.P.
By: Penn Virginia Resource GP, LLC, its general
partner
By:_______________________________________________
Name:
Title:
PENN VIRGINIA OPERATING CO., LLC
By: Penn Virginia Resource Partners, L.P., its
sole member
By: Penn Virginia Resource GP, LLC, its
general partner
By:___________________________________________
Name:
Title:
-31-
Accepted:
Xxxxxx Brothers Inc.
UBS Warburg LLC
Banc of America Securities LLC
Xxxx Xxxxxxxx Incorporated
First Union Securities, Inc.
For themselves and as
Representatives of the
several Underwriters named
in Schedule 1 hereto
By: XXXXXX BROTHERS INC.
By:_____________________________
Authorized Representative
-32-
SCHEDULE 1
PENN VIRGINIA RESOURCE PARTNERS, L.P.
Number of Firm
Underwriters Units to be Purchased
------------ ---------------------
Xxxxxx Brothers Inc. [to come]
UBS Warburg LLC
Banc of America Securities LLC
Xxxx Xxxxxxxx Incorporated
First Union Securities, Inc.
[rest to come]
______________
TOTAL: 6,352,408
-33-
EXHIBIT A
FORM OF OPINION OF XXXXXX & XXXXXX L.L.P.
(a) The Partnership has been duly formed and is validly existing and
in good standing as a limited partnership under the Delaware LP Act with all
necessary partnership power and authority to own or lease its properties, to
assume the liabilities being assumed by it pursuant to the Merger and
Contribution Agreements and to conduct its business, in each case in all
material respects as described in the Registration Statement and the Prospectus.
The Partnership has been duly registered or qualified as a foreign limited
partnership for the transaction of business under the jurisdictions set forth
under Annex I to this Opinion.
(b) The Operating Company has been duly formed and is validly
existing and in good standing as a limited liability company under the Delaware
LLC Act with all necessary liability company power and authority to own or lease
its properties, to assume the liabilities being assumed by it pursuant to the
Merger and Contribution Agreements and to conduct its business, in each case in
all material respects as described in the Registration Statement and the
Prospectus. The Operating Company is duly registered or qualified as a foreign
limited liability company for the transaction of business under the
jurisdictions set forth under Annex I to this Opinion.
(c) The General Partner has been duly formed and is validly existing
in good standing as a limited liability company under the Delaware LLC Act with
all necessary limited liability company power and authority to own or lease its
properties, to conduct its business and to act as general partner of the
Partnership, in each case in all material respects as described in the
Registration Statement and the Prospectus. The General Partner is duly
registered or qualified as a foreign limited liability company for the
transaction of business under the jurisdictions set forth under Annex I to this
Opinion.
(d) Each of Resource Holdings, LP Corp. and GP Corp. is a corporation
that has been duly incorporated and is validly existing in good standing under
the DGCL with all necessary corporate power and authority to own or lease its
properties and to conduct its business, in each case in all material respects as
described in the Registration Statement and the Prospectus.
(e) The General Partner is the sole general partner of the
Partnership with a 2.0% general partner interest in the Partnership; such
general partner interest has been duly authorized and validly issued in
accordance with the Partnership Agreement; and the General Partner owns such
general partner interest free and clear of all liens, encumbrances, security
interests, charges or claims (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 in the office of the Secretary of State of the State of
Delaware or (ii) otherwise known to such counsel, without independent
investigation, other than those created by or arising under the Delaware LP Act.
A-1
(f) The Incentive Distribution Rights and the limited partner
interests represented thereby have been duly authorized and validly issued in
accordance with the Partnership Agreement and are fully paid (to the extent
required under the Partnership Agreement) and nonassessable (except as such
nonassessability may be affected by matters described in the Prospectus under
"The Partnership Agreement--Limited Liability"); and the General Partner owns
the Incentive Distribution Rights free and clear of all liens, encumbrances,
security interests, charges or claims (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 in the office of the Secretary of State of
the State of Delaware or (ii) otherwise known to such counsel, without
independent investigation, other than those created by or arising under the
Delaware LP Act.
(g) The Sponsor Units and the limited partner interests represented
thereby have been duly authorized and validly issued in accordance with the
Partnership Agreement and are fully paid (to the extent required under the
Partnership Agreement) and nonassessable (except as such nonassessability may be
affected by matters described in the Prospectus under "The Partnership
Agreement--Limited Liability"); and LP Corp. owns 7,234,399 Subordinated Units
and 943,617 Common Units and KRC owns 70,870 Subordinated Units and 9,244 Common
Units, in each case, free and clear of all liens, encumbrances, security
interests, charges or claims (i) in respect of which a financing statement under
the Uniform Commercial Code of the State of Delaware naming LP Corp. or KRC as
debtor is on file in the office of the Secretary of State of the State of
Delaware or (ii) otherwise known to such counsel, without independent
investigation, other than those created by or arising under the Delaware LP Act.
(h) The Units to be issued and sold to the Underwriters by the
Partnership pursuant to the Underwriting Agreement and the limited partner
interests represented thereby have been duly authorized by the Partnership
Agreement and, when issued and delivered to the Underwriters against payment
therefor in accordance with the terms of the Underwriting Agreement, will be
validly issued, fully paid (to the extent required under the Partnership
Agreement) and nonassessable (except as such nonassessability may be affected by
matters described in the Prospectus under the caption "The Partnership
Agreement--Limited Liability"); other than the Sponsor Units and the Incentive
Distribution Rights, the Units will be the only limited partner interests of the
Partnership issued and outstanding at the Delivery Date.
(i) The Partnership is the sole member of the Operating Company with
a 100% membership interest in the Operating Company; such membership interest
has been duly authorized and validly issued in accordance with the Operating
Company Agreement and is fully paid (to the extent required under the Operating
Company Agreement) and nonassessable (except as such nonassessability may be
affected by Section 18-607 of the Delaware LLC Act); and the Partnership owns
such membership interest, free and clear of all liens, encumbrances, security
interests, equities, charges or claims (i) in respect of which a financing
statement under the Uniform Commercial Code of the State of Delaware naming the
Partnership as a debtor is on file in the office of the Secretary of State of
the State of Delaware or (ii) otherwise known to such counsel, without
independent investigation, other than those created by or arising under the
Delaware LLC Act.
A-2
(j) The Operating Company owns a 100% membership interest in each of
the Operating Subsidiaries; such membership interests have been duly authorized
and validly issued in accordance with the Operating Subsidiary LLC Agreements
and are fully paid (to the extent required under the Operating Subsidiary LLC
Agreements) and nonassessable (except as such nonassessability may be affected
by Section 18-607 of the Delaware LLC Act); and the Operating Company owns such
membership interests free and clear of all liens, encumbrances, security
interests, equities, charges or claims (i) in respect of which a financing
statement under the Uniform Commercial Code of the State of Delaware naming the
Operating Company as debtor is on file in the office of the Secretary of State
of the State of Delaware or (ii) otherwise known to such counsel, without
independent investigation, other than those created by or under the Delaware LLC
Act.
(k) GP Corp. owns a 100% membership interest in the General Partner;
such membership interest has been duly authorized and validly issued in
accordance with the General Partner LLC Agreement and is fully paid (to the
extent required under the General Partner LLC Agreement) and nonassessable
(except as such nonassessability may be affected by Section 18-607 of the
Delaware LLC Act); and GP Corp. owns such membership interest free and clear of
all liens, encumbrances, security interests, charges or claims (i) in respect of
which a financing statement under the Uniform Commercial Code of the State of
Delaware naming GP Corp. as a debtor is on file in the office of the Secretary
of State of the State of Delaware or (ii) otherwise known to such counsel,
without independent investigation, other than those created by or arising under
the Delaware LLC Act.
(l) Resource Holdings owns 100% of the issued and outstanding capital
stock of each of LP Corp. and GP Corp.; such stock has been duly authorized and
validly issued and is fully paid and nonassessable; and Resource Holdings owns
such stock free and clear of all liens, encumbrances, security interests,
charges or claims (i) in respect of which a financing statement under the
Uniform Commercial Code of the State of Delaware naming Resource Holdings is on
file in the office of the Secretary of State of Delaware or (ii) otherwise known
to such counsel, without independent investigation, other than those created by
or arising under the DGCL.
(m) Except as described in the Prospectus, there are no preemptive
rights or other rights to subscribe for or to purchase, nor any restriction upon
the voting or transfer of, (i) any limited partner interests in the Partnership
or (ii) any limited liability company interests in or the General Partner, the
Operating Company or any Operating Subsidiaries, in each case pursuant to the
Partnership Agreement, the Operating Company Agreement, the General Partner LLC
Agreement, the Operating Subsidiary LLC Agreements or, to the knowledge of such
counsel after due inquiry, any other agreement or instrument to which the
General Partner, the Partnership, the Operating Company or any of the Operating
Subsidiaries are a party or by which any of them may be bound. To such counsel's
knowledge and except as provided in the Partnership Agreement, neither the
filing of the Registration Statement nor the offering or sale of the Units as
contemplated by the Underwriting Agreement gives rise to any rights for or
relating to the registration of any Units or other securities of the Partnership
or any of its subsidiaries other than as have been waived. To such counsel's
knowledge after due inquiry, except as described in the Prospectus, there are no
outstanding options or warrants to purchase any (i) Common Units or Subordinated
Units or other partnership interests in the Partnership or
A-3
(ii) any membership interests in the Operating Company, the General Partner or
any of the Operating Subsidiaries.
(n) The Partnership has all requisite partnership power and authority
to issue, sell and deliver (i) the Units, in accordance with and upon the terms
and conditions set forth in the Underwriting Agreement, the Partnership
Agreement and the Registration Statement and Prospectus, and (ii) the Sponsor
Units and the Incentive Distribution Rights, in accordance with the terms and
conditions set forth in the Partnership Agreement and the Merger and
Contribution Agreements.
(o) The Underwriting Agreement has been duly authorized and validly
executed and delivered by each of the General Partner, the Partnership and the
Operating Company.
(p) Each of the Operative Agreements to which any of the Penn Virginia
Entities other than Penn Virginia, Penn Virginia Oil & Gas, Xxxxxx and KRC (the
"Penn Virginia Delaware Entities") is a party has been duly authorized and
validly executed and delivered by the Penn Virginia Delaware Entities parties
thereto. Each of the Operative Agreements (other than any Merger and
Contribution Agreements governed by law other than Delaware law) constitutes a
valid and legally binding obligation of the Penn Virginia Entities parties
thereto, enforceable against each such party in accordance with its respective
terms, subject to (i) applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws relating to or affecting creditors'
rights generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity), and (ii)
public policy, applicable law relating to fiduciary duties and indemnification
and an implied covenant of good faith and fair dealing.
(q) The Mergers became effective under the Delaware LLC Act on
September 14, 2001 and the Conversions became effective under the DGCL and the
Delaware LLC Act on September 14, 2001.
(r) None of the offering, issuance and sale by the Partnership of the
Units, the execution, delivery and performance of the Underwriting Agreement or
the Operative Agreements (other than any Merger and Contribution Agreements
governed by law other than Delaware law) by the Penn Virginia Entities that are
party thereto, or the consummation of the transactions contemplated thereby
(including the Transactions) (i) constitutes or will constitute a violation of
the certificate of limited partnership, agreement of limited partnership,
limited liability company operating agreement, certificate or articles of
incorporation or bylaws or other organizational documents of any of the Penn
Virginia Delaware Entities, (ii) constitutes or will constitute a breach or
violation of, or a default under (or an event which, with notice or lapse of
time or both, would constitute such an event), any Operative Agreement (other
than any Merger and Contribution Agreement governed by law other than Delaware
law), (iii) violates or will violate the Delaware LP Act, the Delaware LLC Act
or the DGCL or federal law, or (iv) results or will result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of any
of the Penn Virginia Delaware Entities, which breaches, violations, defaults or
liens, in the case of clauses (ii), (iii) and (iv), would, individually or in
the aggregate, have a
A-4
material adverse effect on the condition (financial or other), business or
results of operations of the Partnership Entities, taken as a whole.
(s) No permit, consent, approval, authorization, order, registration,
filing or qualification ("consent") of or with any federal or Delaware court,
governmental agency or body having jurisdiction over the General Partner, the
Partnership, the Operating Company or the Operating Subsidiaries is required for
the offering, issuance and sale by the Partnership of the Units, the execution,
delivery and performance of the Underwriting Agreement or the Operative
Agreements (other than any Merger and Contribution Agreement governed by law
other than Delaware law) by the Penn Virginia Entities party thereto or the
consummation by the Penn Virginia Entities of the transactions contemplated by
the Underwriting Agreement or the Operative Agreements (other than any Merger
and Contribution Agreement governed by law other than Delaware law), except (i)
for such consents required under the Securities Act and the Exchange Act or
under state securities or "Blue Sky" laws, as to which such counsel need not
express any opinion, (ii) for such consents which have been obtained or made,
(iii) for such consents which (A) are of a routine or administrative nature, (B)
are not customarily obtained or made prior to the consummation of transactions
such as those contemplated by the Underwriting Agreement and the Operative
Agreements and (C) are expected in the reasonable judgment of the General
Partner to be obtained in the ordinary course of business subsequent to the
consummation of the Transactions, (iv) for such consents which, if not obtained
or made, would not, individually or in the aggregate, have a material adverse
effect upon the condition (financial or other), business or results of
operations of the Partnership Entities taken as a whole, or (v) as disclosed in
the Prospectus.
(t) The statements in the Registration Statement and Prospectus under
the captions "Cash Distribution Policy," "Management's Discussion and Analysis
of Financial Condition and Results of Operations - The Partnership - Description
of Credit Agreement," "Business - Regulation," "Certain Relationships and
Related Party Transactions," "Conflicts of Interest and Fiduciary
Responsibilities," "Description of the Common Units," "Description of the
Subordinated Units" and "The Partnership Agreement," insofar as they constitute
descriptions of the Operative Agreement or legal proceedings or refer to
statements of law or legal conclusions, are accurate and complete in all
material respects, and the Common Units, the Subordinated Units and the
Incentive Distribution Rights conform in all material respects to the
descriptions thereof contained in the Registration Statement and Prospectus
under the captions "Prospectus Summary -- The Offering," "Cash Distribution
Policy," "Description of the Common Units," "Description of the Subordinated
Units" and "The Partnership Agreement."
(u) The opinion of Xxxxxx & Xxxxxx L.L.P. that is filed as Exhibit 8.1
to the Registration Statement is confirmed and the Underwriters may rely upon
such opinion as if it were addressed to them.
(v) The Registration Statement was declared effective under the
Securities Act on ____________, 2001; to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or threatened by the
Commission; and any required filing of the Prospectus pursuant to Rule 424(b)
has been made in the manner and within the time period required by such Rule.
A-5
(w) The Registration Statement and the Prospectus (except for the
financial statements and the notes and the schedules thereto, the reserve report
and other reserve information contained therein and the other financial,
statistical and accounting data included in the Registration Statement or the
Prospectus, as to which such counsel need not express any opinion) comply as to
form in all material respects with the requirements of the Securities Act and
the rules and regulations promulgated thereunder.
(x) To the knowledge of such counsel, (i) there are no legal or
governmental proceedings pending or threatened to which any of the Penn Virginia
Entities or to which any of the Penn Virginia Entities is a party or to which
any of their respective properties is subject that are required to be disclosed
in the Prospectus and are not so disclosed and (ii) there are no agreements,
contracts, indentures, leases or other instruments that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required by the Securities Act.
(y) None of the Penn Virginia Entities is an "investment company" as
such term is defined in the Investment Company Act of 1940, as amended, or a
"public utility holding company" or "holding company" within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
(z) The offer, sale and issuance of (i) the Sponsor Units to LP Corp.
and KRC and (ii) the Incentive Distribution Rights to the General Partner
pursuant to the Partnership Agreement are exempt from the registration
requirements of the Securities Act.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Penn Virginia Parties
and the independent public accountants of the Partnership and your
representatives, at which the contents of the Registration Statement and the
Prospectus and related matters were discussed, and although such counsel has not
independently verified, is not passing on, and is not assuming any
responsibility for the accuracy, completeness or fairness of the statements
contained in, the Registration Statement and the Prospectus (except to the
extent specified in the foregoing opinion), based on the foregoing, no facts
have come to such counsel's attention that lead such counsel to believe that the
Registration Statement (other than (i) the financial statements included
therein, including the notes and schedules thereto and the auditors' reports
thereon, (ii) the other financial and statistical data included therein and
(iii) the reserve report and other reserve information included therein, as to
which such counsel need not comment), as of its effective date, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or that the Prospectus (other than (i) the financial statements included
therein, including the notes and schedules thereto and the auditors' reports
thereon, (ii) the other financial and statistical data included therein and
(iii) the reserve report and other reserve information included therein, as to
which such counsel need not comment), as of its issue date and as of each
Delivery Date, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
A-6
In rendering such opinion, such counsel may (A) rely in respect of
matters of fact upon the representations of the Penn Virginia Parties set forth
in this Underwriting Agreement and on certificates of officers and employees of
the Penn Virginia Entities and upon information obtained from public officials,
(B) assume that all documents submitted to them as originals are authentic, that
all copies submitted to them conform to the originals thereof, and that the
signatures on all documents examined by them are genuine, (C) state that their
opinion is limited to federal laws, the Delaware LP Act, the Delaware LLC Act
and the DGCL, (D) with respect to the opinions expressed in subparagraphs (a)
through (d) above as to the due qualification or registration as a foreign
limited partnership, corporation or limited liability company, as the case may
be, of the Partnership, the Operating Company and the General Partner, state
that such opinions are based upon the opinions of local counsel provided
pursuant to the Agreement and upon certificates of foreign qualification or
registration provided by the Secretary of State of the states listed on Annex I
(each of which will be dated not more than fourteen days prior to such Delivery
Date and shall be provided to you), (E) state that they express no opinion with
respect to the title of any of the Penn Virginia Entities to any of their
respective real or personal property purported to be transferred by the Merger
and Contribution Agreements nor with respect to the accuracy or descriptions of
real or personal property and (F) state that they express no opinion with
respect to state or local taxes or tax statutes to which any of the limited
partners of the Partnership or any of the Penn Virginia Entities may be subject.
A-7
EXHIBIT B
FORM OF OPINION OF XXXXX X. XXXXXX
(a) PV Holding is a corporation that has been duly incorporated and
is validly existing in good standing under the DGCL with all necessary corporate
power and authority to own or lease its properties and to conduct its business,
in each case in all material respects as described in the Registration Statement
and the Prospectus.
(b) PV Holding owns 100% of the issued and outstanding capital stock
of Resource Holdings; such stock has been duly authorized and validly issued and
is fully paid and nonassessable; and PV Holding owns such stock free and clear
of all liens, encumbrances, security interests, charges or claims (i) in respect
of which a financing statement under the Uniform Commercial Code of the State of
Delaware naming PV Holding is on file in the office of the Secretary of State of
Delaware or (ii) otherwise known to such counsel, without independent
investigation, other than those created by or arising under the DGCL.
(c) Penn Virginia owns 100% of the issued and outstanding capital
stock of PV Holding; such stock has been duly authorized and validly issued and
is fully paid and nonassessable; and Penn Virginia owns such stock free and
clear of all liens, encumbrances, securities interests, charges or claims (i) in
respect of which a financing statement under the Uniform Commercial Code of the
Commonwealth of Virginia naming Penn Virginia as a debtor is on file in the
office of the State Corporation Commission of the Commonwealth of Virginia or
(ii) otherwise known to such counsel, without independent investigation, other
than those created by or arising under the DGCL.
(d) None of the offering, issuance and sale by the Partnership of the
Units, the execution, delivery and performance of the Underwriting Agreement or
the Operative Agreements by the Penn Virginia Entities which are party thereto,
and the consummation of the transactions contemplated hereby and thereby
(including the Transactions), constituted, constitutes or will constitute a
breach or violation of, or a default (or an event which, with notice or lapse of
time or both, would constitute such a default) under, any agreement, lease or
other instrument known to such counsel (excluding any Operative Agreement (i)
other than any Merger and Contribution Agreement governed by law other than
Delaware law, and (ii) entered into by a PV Virginia Entity (as defined in
Exhibit C) and any agreement filed as an exhibit to the Registration Statement)
to which any of the Penn Virginia Entities or any of their properties may be
bound, which breach, violation or default would reasonably be expected to have a
material adverse effect on the condition (financial or other), business or
results of operations of the Partnership Entities, taken as a whole.
(e) To the knowledge of such counsel after due inquiry, each of the
Partnership Entities and their lessees has such permits, consents, licenses,
franchises, certificates and 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 the Prospectus, subject to such
qualifications as may be set forth in the Prospectus, and except for such
permits which, if not obtained, would not reasonably be expected to have,
individually or in the aggregate, a material adverse effect upon the operations
conducted by the Partnership Entities,
B-1
taken as a whole, and, to the knowledge of such counsel after due inquiry, none
of the Partnership Entities or their lessees has received any notice of
proceedings relating to the revocation or modification of any such permit which,
individually or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would reasonably be expected to have a material adverse
effect upon the Partnership Entities.
(f) To the knowledge of such counsel after due inquiry, none of the
Penn Virginia Entities is in (i) violation of its certificate or agreement of
limited partnership, limited liability company agreement, certificate or
articles of incorporation or bylaws or other organizational documents, or of any
law, statute, ordinance, administrative or governmental rule or regulation
applicable to it or of any decree of any court or governmental agency or body
having jurisdiction over it or (ii) breach, default (or an event which, with
notice or lapse of time or both, would constitute such a default) or violation
in the performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or in any agreement,
indenture, lease or other instrument to which it is a party or by which it or
any of its properties may be bound, which breach, default or violation would, if
continued, have a material adverse effect on the condition (financial or other),
business or results of operations of the Partnership Entities, taken as a whole,
or could materially impair the ability of any of the Penn Virginia Entities to
perform their obligations under the Underwriting Agreement or the Operative
Agreements.
(g) Except as described in the Prospectus, to the knowledge of such
counsel after due inquiry, there is no litigation, proceeding or governmental
investigation pending or threatening against any of the Penn Virginia Entities
or to which any of the Penn Virginia Entities is a party or to which any of
their respective properties is subject, which, if adversely determined to the
Penn Virginia Entities, is reasonably likely to have a material adverse effect
on the condition (financial or otherwise), business or results of operations of
the Partnership Entities, taken as a whole.
(h) None of the offering, issuance and sale by the Partnership of the
Units, the execution, delivery and performance of the Underwriting Agreement or
the Operative Agreements by the Penn Virginia Entities that are party thereto,
or the consummation of the transactions contemplated thereby (including the
Transactions) violates or will violate any order, judgment, decree or injunction
of any federal or Delaware court or governmental agency or body directed to any
of the Penn Virginia Entities or any of their properties in a proceeding to
which any of them or their property is subject.
In addition, such counsel shall state that she has participated in
conferences with officers and other representatives of the Penn Virginia Parties
and the independent public accountants of the Partnership and your
representatives, at which the contents of the Registration Statement and the
Prospectus and related matters were discussed, and although such counsel has not
independently verified, is not passing on, and is not assuming any
responsibility for the accuracy, completeness or fairness of the statements
contained in, the Registration Statement and the Prospectus (except to the
extent specified in the foregoing opinion), based on the foregoing, no facts
have come to such counsel's attention that lead such counsel to believe that the
Registration Statement (other than (i) the financial statements included
therein, including the notes and schedules thereto and the auditors' reports
thereon, (ii) the other financial and
B-2
statistical data included therein and (iii) the reserve report and other reserve
information included therein, as to which such counsel need not comment), as of
its effective, date contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus (other than (i) the
financial statements included therein, including the notes and schedules thereto
and the auditors' reports thereon, (ii) the other financial and statistical data
included therein and (iii) the reserve report and other reserve information
included therein, as to which such counsel need not comment), as of its issue
date and as of each Delivery Date contained, an untrue statement of a material
fact or omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
In rendering such opinion, such counsel may (A) rely in respect of
matters of fact upon the representations of the Penn Virginia Parties set forth
in this Agreement and in certificates of officers and employees of the Penn
Virginia Entities and upon information obtained from public officials, (B)
assume that all documents submitted to her as originals are authentic, that all
copies submitted to her conform to the originals thereof, and that the
signatures on all documents examined by her are genuine, (C) state that such
opinions are limited to federal laws, the Delaware LP Act, the Delaware LLC Act
and the DGCL, (D) state that she expresses no opinion with respect to the title
of any of the Penn Virginia Entities to the real or personal property purported
to be transferred by the Merger and Contribution Agreements nor with respect to
the accuracy or descriptions of real or personal property, and (E) state that
she expresses no opinion with respect to state or local taxes or tax statutes to
which any of the limited partners of the Partnership or any of the Penn Virginia
Entities may be subject.
B-3
EXHIBIT C
FORM OF LOCAL COUNSEL OPINIONS
West Virginia and Kentucky:
In the case of the First Time of Delivery only, each of Xxxxxxx Xxxxxx & Battle,
PLLC, with respect to the State of West Virginia, and Xxxx Xxxxxx & Xxxxxxxx,
with respect to the State of Kentucky, shall have furnished to you their written
opinion, dated the First Delivery Date, in form and substance satisfactory to
you, to the effect that:
(a) The Partnership has been duly qualified or registered as a foreign
limited partnership for the transaction of business under the laws of the
applicable jurisdiction set forth on Annex I.
(b) Each of the General Partner, the Operating Company and the Operating
Subsidiaries has been duly qualified or registered as a foreign limited
liability company for the transaction of business under the laws of the
applicable jurisdiction set forth on Annex I.
(c) The Partnership has all requisite limited partnership power and
authority under the laws of the State of [insert applicable state] to own or
lease its properties and to conduct its business in the State of [insert
applicable state], in each case in all material respects as described or
otherwise disclosed in the Prospectus; the Operating Company and each Operating
Subsidiary has all requisite limited liability company power and authority under
the laws of the State of [insert applicable state] to own or lease its
properties and to conduct its business in the State of [insert applicable
state], in each case in all material respects as described or otherwise
disclosed in the Prospectus; and upon the consummation of the Transactions
(assuming that the Partnership will not be liable under the laws of the State of
Delaware for the liabilities of the Operating Company or the Operating
Subsidiaries and assuming that unitholders will not be liable under the laws of
the State of Delaware for the liabilities of the Partnership, the Operating
Company or the Operating Subsidiaries), the Partnership will not be liable under
the laws of the State of [insert applicable state] for the liabilities of the
Operating Company, and unitholders will not be liable under the laws of the
State of [insert applicable state] for the liabilities of the Partnership or the
Operating Company except in each case to the same extent as under the laws of
the State of Delaware.
(d) Assuming that the Mergers and the Conversions were legally sufficient
under applicable Delaware law to vest in the Operating Company and the Operating
Subsidiaries, as applicable, the assets of the parties to the Mergers and the
Conversions, then the Mergers and the Conversions were legally sufficient under
the law of the State of [insert applicable state] to vest, directly or
indirectly, in the Operating Company and the Operating Subsidiaries, as
applicable, the assets of the parties to the Merger and the Conversions located
in the State of [insert applicable state].
(e) No permit, consent, approval, authorization, order, registration,
filing or qualification ("consent") of or with any court, governmental agency or
body of the State of
C-1
[insert applicable state] having jurisdiction over the Penn Virginia Entities or
any of their respective properties is required for the issuance and sale of the
Units by the Partnership, or for the conveyance of the properties located in the
State of [insert applicable state] purported to be conveyed to the Operating
Company or the Operating Subsidiaries, as applicable, pursuant to the
Conveyances, except (A) for such consents required under the Securities Act, the
Exchange Act and state securities or "Blue Sky" laws, as to which such counsel
need not express any opinion, (B) for such consents which have been obtained or
made, (C) for such consents which (i) are of a routine or administrative nature,
(ii) are not customarily obtained or made prior to the consummation of
transactions such as those contemplated by this Agreement and the Operative
Agreements and (iii) are expected in the reasonable judgment of the General
Partner to be obtained or made in the ordinary course of business subsequent to
the consummation of the Transactions, (D) for such consents which, if not
obtained or made, would not, individually or in the aggregate, have a material
adverse effect upon the operations conducted or to be conducted as described in
the Prospectus in the State of [insert applicable state] by the Partnership
Entities or (E) as disclosed in the Prospectus.
(f) The execution, delivery and performance of the Conveyances relating to
the transfer of property in the State of [insert applicable state] has not
violated and will not violate any statute of the State of [insert applicable
state] or any rule, regulation or, to the knowledge of such counsel, any order
of any agency of the State of [insert applicable state] having jurisdiction over
any of the Penn Virginia Entities or any of their respective properties, except
for any such violations which, individually or in the aggregate, would not have
a material adverse effect on the unitholders or the operations conducted in the
State of [insert applicable state] by the Partnership Entities, taken as a
whole.
(g) Each of the Conveyances is in a form legally sufficient as between the
parties thereto to convey to the transferee thereunder all of the right, title
and interest of the transferor stated therein in and to the properties located
in the State of [insert applicable state], as described in the Conveyances,
subject to the conditions, reservations and limitations contained in the
Conveyances, except motor vehicles or other property requiring conveyance of
certificated title as to which the Conveyances are legally sufficient to compel
delivery of such certificated title.
(h) Each of the deeds and real property assignments (including, without
limitation, the form of the exhibits and schedules thereto) is in a form legally
sufficient for recordation in the appropriate public offices of the State of
[insert applicable state], to the extent such recordation is required, and, upon
proper recordation of any of such deeds and real property assignments in the
State of [insert applicable state], will constitute notice to all third parties
under the recordation statutes of the State of [insert applicable state]
concerning record title to the assets transferred thereby; recordation in the
office of the County Clerk for each county in which the Partnership Entities own
property is the appropriate public office in the State of [insert applicable
state] for the recordation of deeds and assignments of interests in real
property located in such county.
In rendering such opinion, such counsel may (A) rely in respect of matters
of fact upon certificates of officers and employees of the Partnership Entities
and upon information obtained from public officials, (B) assume that all
documents submitted to them as originals are authentic, and all copies submitted
to them conform to the originals thereof, and that the signatures on all
C-2
documents examined by them are genuine, (C) state that such opinions are limited
to the laws of the State of [insert applicable state], excepting therefrom
municipal and local ordinances and regulations, (D) state that they express no
opinion with respect to state or local taxes or tax statutes to which any of the
limited partners of the Partnership or any of the Partnership Entities may be
subject, and (E) with respect to the opinion in paragraph (i) rely upon
certificates of foreign qualification provided by the Secretary of State of
[insert applicable state] (each of which shall be dated as of the date not more
than fourteen days prior to such Delivery Date and provided to you.)
In rendering such opinion, such counsel shall state that (A) Xxxxxx &
Xxxxxx L.L.P. and Xxxxx X. Xxxxxx are hereby authorized to rely upon such
opinion letter in connection with the Transactions as if such opinion letter
were addressed and delivered to them on the date hereof and (B) subject to the
foregoing, such opinion letter may be relied upon only by the Underwriters and
its counsel in connection with the Transactions and no other use or distribution
of this opinion letter may be made without such counsel's prior written consent.
C-3
Virginia only:
On the Delivery Dates indicated below, Xxxx Xxxxxx & Xxxxxxxx shall have
furnished to you their written opinion, dated such Delivery Date, in form and
substance satisfactory to you, to the effect that:
(i) The Partnership has been duly qualified or registered as a foreign
limited partnership for the transaction of business under the laws of the
Commonwealth of Virginia. [First Delivery Date only]
(j) Each of the General Partner, the Operating Company and the Operating
Subsidiaries has been duly qualified or registered as a foreign limited
liability company for the transaction of business under the laws of the
Commonwealth of Virginia. [First Delivery Date only]
(k) The Partnership has all requisite limited partnership power and
authority under the laws of the Commonwealth of Virginia to own or lease its
properties and to conduct its business in the Commonwealth of Virginia, in each
case in all material respects as described or otherwise disclosed in the
Prospectus; the Operating Company and each Operating Subsidiary has all
requisite limited liability company power and authority under the laws of the
Commonwealth of Virginia to own or lease its properties and to conduct its
business in the Commonwealth of Virginia, in each case in all material respects
as described or otherwise disclosed in the Prospectus; and upon the consummation
of the Transactions (assuming that the Partnership will not be liable under the
laws of the State of Delaware for the liabilities of the Operating Company or
the Operating Subsidiaries and assuming that unitholders will not be liable
under the laws of the State of Delaware for the liabilities of the Partnership,
the Operating Company or the Operating Subsidiaries), the Partnership will not
be liable under the laws of the Commonwealth of Virginia for the liabilities of
the Operating Company, and unitholders will not be liable under the laws of the
Commonwealth of Virginia for the liabilities of the Partnership or the Operating
Company except in each case to the same extent as under the laws of the State of
Delaware. [First Delivery Date only]
(l) Assuming that the Mergers and the Conversions were legally sufficient
under applicable Delaware law to vest in the Operating Company and the Operating
Subsidiaries, as applicable, the assets of the parties to the Mergers and the
Conversions, then the Mergers and the Conversions were legally sufficient under
the law of the Commonwealth of Virginia to vest, directly or indirectly, in the
Operating Company and the Operating Subsidiaries, as applicable, the assets of
the parties to the Merger and the Conversions located in the Commonwealth of
Virginia. [First Delivery Date only]
(m) No permit, consent, approval, authorization, order, registration,
filing or qualification ("consent") of or with any court, governmental agency or
body of the Commonwealth of Virginia having jurisdiction over the Penn Virginia
Entities or any of their respective properties is required for the issuance and
sale of the Units by the Partnership, or for the conveyance of the properties
located in the Commonwealth of Virginia purported to be conveyed to the
Operating Company or the Operating Subsidiaries, as applicable, pursuant to the
Conveyances, except (A) for such consents required under the Securities Act, the
Exchange Act
C-4
and state securities or "Blue Sky" laws, as to which such counsel need not
express any opinion, (B) for such consents which have been obtained or made, (C)
for such consents which (i) are of a routine or administrative nature, (ii) are
not customarily obtained or made prior to the consummation of transactions such
as those contemplated by this Agreement and the Operative Agreements and (iii)
are expected in the reasonable judgment of the General Partner to be obtained or
made in the ordinary course of business subsequent to the consummation of the
Transactions, (D) for such consents which, if not obtained or made, would not,
individually or in the aggregate, have a material adverse effect upon the
operations conducted or to be conducted as described in the Prospectus in the
Commonwealth of Virginia by the Partnership Entities or (E) as disclosed in the
Prospectus. [First Delivery Date only]
(n) The execution, delivery and performance of the Conveyances relating to
the transfer of property in the Commonwealth of Virginia has not violated and
will not violate any statute of the Commonwealth of Virginia or any rule,
regulation or, to the knowledge of such counsel, any order of any agency of the
Commonwealth of Virginia having jurisdiction over any of the Penn Virginia
Entities or any of their respective properties, except for any such violations
which, individually or in the aggregate, would not have a material adverse
effect on the unitholders or the operations conducted in the Commonwealth of
Virginia by the Partnership Entities, taken as a whole. [First Delivery Date
only]
(o) Each of the Conveyances is in a form legally sufficient as between the
parties thereto to convey to the transferee thereunder all of the right, title
and interest of the transferor stated therein in and to the properties located
in the Commonwealth of Virginia, as described in the Conveyances, subject to the
conditions, reservations and limitations contained in the Conveyances, except
motor vehicles or other property requiring conveyance of certificated title as
to which the Conveyances are legally sufficient to compel delivery of such
certificated title. [First Delivery Date only]
(p) Each of the deeds and real property assignments (including, without
limitation, the form of the exhibits and schedules thereto) is in a form legally
sufficient for recordation in the appropriate public offices of the Commonwealth
of Virginia, to the extent such recordation is required, and, upon proper
recordation of any of such deeds and real property assignments in the
Commonwealth of Virginia, will constitute notice to all third parties under the
recordation statutes of the Commonwealth of Virginia concerning record title to
the assets transferred thereby; recordation in the office of the County Clerk
for each county in which the Partnership Entities own property is the
appropriate public office in the Commonwealth of Virginia] for the recordation
of deeds and assignments of interests in real property located in such county.
[First Delivery Date only]
(q) Each of Penn Virginia, Penn Virginia Oil & Gas and KRC (collectively,
the "PV Virginia Entities") is a Virginia corporation duly incorporated and
validly existing in good standing under the laws of the Commonwealth of Virginia
with full corporate power and authority to own and lease its properties to be
owned or leased at the First Delivery Date, to assume the liabilities assumed by
it pursuant to the Merger and Contribution Agreements and to conduct its
business to be conducted at such Delivery Dates. [First and Second Delivery
Dates]
C-5
(r) This Agreement and each of the Operative Agreements to which a PV
Virginia Entity, or any successor thereto, is a party has been duly authorized
and validly executed and delivered by each PV Virginia Entity, as applicable.
[First Delivery Date only]
(s) The Mergers became effective under the Code of Virginia on September
___, 2001. [First Delivery Date only]
(t) None of the offering, issuance and sale by the Partnership of the
Units, the execution, delivery and performance of this Agreement or the
Operative Agreements by any Penn Virginia Entity, or the consummation of the
transactions contemplated hereby and thereby (including the Transactions) (i)
conflicted, conflicts or will conflict with or constituted, constitutes or will
constitute a violation of the agreement of limited partnership, limited
liability company agreement, certificate or articles of incorporation or bylaws
or other organizational documents of any PV Virginia Entity, (ii) conflicted,
conflicts or will conflict with or constituted, constitutes or will constitute a
breach or violation of, or a default under (or an event which, with notice or
lapse of time or both, would constitute such a default), any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument
known to such counsel to which any PV Virginia Entity is or was a party or by
which any of them or any of their respective properties may be bound, (iii)
resulted, results or will result in any violation of any statute, law or
regulation or any order, judgment, decree or injunction of any court or
governmental agency or body directed to any PV Virginia Entity or any of their
properties in a proceeding to which any of them or their property is or was a
party, or (iv) resulted, results or will result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of any PV Virginia
Entity, in the case of clauses (ii), (iii) or (iv) which conflicts, breaches,
violations, defaults or liens would, individually or in the aggregate, have a
material adverse effect upon the condition (financial or otherwise), business,
prospects, assets or results of operations of the Partnership Entities, taken as
a whole. [First Delivery Date only]
In rendering such opinion, such counsel may (A) rely in respect of matters
of fact upon certificates of officers and employees of the Partnership Entities
and upon information obtained from public officials, (B) assume that all
documents submitted to them as originals are authentic, and all copies submitted
to them conform to the originals thereof, and that the signatures on all
documents examined by them are genuine, (C) state that such opinions are limited
to the laws of the Commonwealth of Virginia, excepting therefrom municipal and
local ordinances and regulations, (D) state that they express no opinion with
respect to state or local taxes or tax statutes to which any of the limited
partners of the Partnership or any of the Partnership Entities may be subject,
and (E) with respect to the opinion in paragraph (i) rely upon certificates of
foreign qualification provided by the State Corporation Commission of the
Commonwealth of Virginia (each of which shall be dated as of the date not more
than fourteen days prior to such Time of Delivery and provided to you.)
In rendering such opinion, such counsel shall state that (A) Xxxxxx &
Xxxxxx L.L.P. and Xxxxx X. Xxxxxx are hereby authorized to rely upon such
opinion letter in connection with the Transactions as if such opinion letter
were addressed and delivered to them on the date hereof and (B) subject to the
foregoing, such opinion letter may be relied upon only by the Underwriters and
its counsel in connection with the Transactions and no other use or distribution
of this opinion letter may be made without such counsel's prior written consent.
C-6
EXHIBIT X
Xxxxxx Brothers Inc. _____________, 2001
UBS Warburg LLC
Banc of America Securities LLC
Xxxx Xxxxxxxx Incorporated
First Union Securities, Inc.
c/x Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
The undersigned understands that you and certain other firms propose to enter
into an Underwriting Agreement (the "Underwriting Agreement") among Penn
Virginia Resource Partners, L.P. (the "Partnership"), Penn Virginia Corporation,
Penn Virginia Coal Company, Penn Virginia GP, LLC and Xxxxxx Brothers Inc., UBS
Warburg LLC, Banc of America Securities LLC, Xxxx Xxxxxxxx Incorporated and
First Union Securities, Inc., as Underwriters (the "Underwriters"), providing
for the purchase by you and such other Underwriters of common units, each
representing a limited partner interest (the "Common Units") in the Partnership,
and that the Underwriters propose to reoffer the Common Units to the public (the
"Offering").
In consideration of the execution of the Underwriting Agreement by the
Underwriters, and for other good and valuable consideration, the undersigned
hereby irrevocably agrees that, without the prior written consent of Xxxxxx
Brothers Inc., on behalf of the Underwriters, the undersigned will not, directly
or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or
enter into any transaction or device which is designed to, or could be expected
to, result in the disposition by any person at any time in the future of) any
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 option or warrant) or securities convertible into
or exchangeable for Common Units owned by the undersigned on the date of
execution of this Lock-up Letter Agreement or on the date of the completion of
the Offering, or (2) 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 such Common Units, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Units or other
securities, in cash or otherwise, for a period of 180 days from the date of the
Prospectus (as defined in the Underwriting Agreement).
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 you 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
which survive termination) shall terminate or be
1
terminated prior to payment for and delivery of the Shares, we will be released
from our obligations under this Lock-Up Letter Agreement.
The undersigned understands that the Partnership and the Underwriters will
proceed with the Offering in reliance on this Lock-Up Letter Agreement.
Whether or not the Offering actually occurs depends on a number of factors,
including market conditions. Any Offering will only be made pursuant to an
Underwriting Agreement, the terms of which are subject to negotiation between
the Partnership and the Underwriters.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to enter into this Lock-Up Letter Agreement and that, upon
request, the undersigned will execute any additional documents necessary in
connection with the enforcement hereof. Any obligations of the undersigned
shall be binding upon the [heirs, personal representatives,] successors and
assigns of the undersigned.
Yours very truly,
__________________________
Dated:______________, 2001
2
ANNEX I
FOREIGN QUALIFICATIONS
General Partner
---------------
Kentucky
West Virginia
Virginia
Partnership
-----------
Kentucky
West Virginia
Virginia
PV Holding
----------
None
Resource Holdings
-----------------
None
Operating Company
-----------------
Kentucky
West Virginia
Virginia
Loadout LLC
-----------
Virginia
K Rail LLC
----------
West Virginia
Wise LLC
--------
Virginia
1
