ARMSTRONG RESOURCE PARTNERS, L.P. Common Units Representing Limited Partner Interests UNDERWRITING AGREEMENT
Exhibit 1.1
XXXXXXXXX RESOURCE PARTNERS, L.P.
Common Units
Representing Limited Partner Interests
Representing Limited Partner Interests
[ ], 2012
XXXXXXX XXXXX & ASSOCIATES, INC.
FBR CAPITAL MARKETS & CO.
as Representatives of the several Underwriters
c/o Raymond Xxxxx & Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxx Xxxxxxxxxx, XX 00000
FBR CAPITAL MARKETS & CO.
as Representatives of the several Underwriters
c/o Raymond Xxxxx & Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxx Xxxxxxxxxx, XX 00000
Dear Sirs:
Xxxxxxxxx Resource Partners, L.P., a Delaware limited partnership (the “Partnership”),
confirms its agreement with each of the Underwriters listed on Schedule II hereto (collectively,
the “Underwriters”), for whom Xxxxxxx Xxxxx & Associates, Inc. and FBR Capital Markets & Co. are
acting as representatives (in such capacity, collectively, the “Representatives”), with respect to
(i) the sale by the Partnership of [ ] common units (the “Initial Units”)
representing limited partner interests in the Partnership (the “Common Units”) in the number of
units set forth opposite the name of the Partnership in Schedule I hereto, and the purchase by the
Underwriters, acting severally and not jointly, of the respective number of Common Units set forth
opposite the names of the Underwriters in Schedule II hereto, and (ii) the grant of the option
described in Section 1(b) hereof to purchase all or any part of [ ] additional Common
Units to cover over-allotments (the “Option Units”), if any, from the Partnership in the number of
Common Units set forth opposite the name of the Partnership in Schedule I hereto, to the
Underwriters, acting severally and not jointly, in the respective numbers of Common Units set forth
opposite the names of each of the Underwriters listed in Schedule II hereto. The Initial Units to
be purchased by the Underwriters and all or any part of the Option Units subject to the option
described in Section 1(b) hereof are hereinafter called, collectively, the “Units.”
The Partnership and Elk Creek GP, LLC, a Delaware limited liability company (the “General
Partner”) are collectively referred to herein as the “Partnership Parties.”
The “Operative Agreements” shall mean Second Amended and Restated Agreement of Limited
Partnership, dated May [ ], 2012 (the “Partnership Agreement”)
and the Limited Liability Company Agreement of the General Partner, dated March 31, 2008 (the
“General Partner Agreement”).
The Partnership Parties understand that the Underwriters propose to make a public offering of
the Units as soon as the Underwriters deem advisable after this Underwriting Agreement (the
“Agreement”) has been executed and delivered, and to offer the Units on the terms set forth in the
Prospectus (as defined below).
The Partnership has filed with the Securities and Exchange Commission (the Commission”), a
registration statement on Form S-1 (No. 333-177260) including a related preliminary prospectus, for
the registration of the Units under the Securities Act of 1933, as amended (the “Securities Act”),
and the rules and regulations thereunder (the “Securities Act Regulations”). The Partnership
Parties have prepared and filed such amendments to the registration statement and such amendments
or supplements to the related preliminary prospectus as may have been required to the date hereof,
and will file such additional amendments or supplements as may hereafter be required under the
Securities Act and the Securities Act Regulations. The registration statement, as amended at the
time it was declared effective by the Commission (and, if the Partnership files a post-effective
amendment to such registration statement which becomes effective prior to the Closing Time (as
defined below), such registration statement as so amended) and including all information deemed to
be a part of the registration statement pursuant to incorporation by reference, Rule 430A of the
Securities Act Regulations or otherwise, is hereinafter called the “Registration Statement.” Any
registration statement filed pursuant to Rule 462(b) of the Securities Act Regulations is
hereinafter called the “Rule 462(b) Registration Statement,” and after such filing the term
“Registration Statement” shall include the 462(b) Registration Statement. Each prospectus included
in the Registration Statement before it was declared effective by the Commission under the
Securities Act, and any preliminary form of prospectus filed with the Commission by the Partnership
with the consent of the Underwriters pursuant to Rule 424(a) of the Securities Act Regulations,
including all information incorporated by reference in either such prospectus, is hereinafter
called the “Preliminary Prospectus.” The term “‘Prospectus” means the final prospectus, as first
filed with the Commission pursuant to paragraph (1) or (4) of Rule 424(b) of the Securities Act
Regulations, and any amendments thereof or supplements thereto including all information
incorporated by reference therein.
The term “Disclosure Package” means (i) the Preliminary Prospectus, as most recently amended
or supplemented immediately prior to the Initial Sale Time (as defined herein), (ii) the Issuer
Free Writing Prospectuses (as defined below), if any, identified in Schedule III(a) hereto, and
(iii) any other Free Writing Prospectus (as defined below) that the parties hereto shall hereafter
expressly agree to treat as part of the Disclosure Package.
The term “Issuer Free Writing Prospectus” means any issuer free writing prospectus, as defined
in Rule 433 of the Securities Act Regulations. The term “Free Writing Prospectus” means any free
writing prospectus, as defined in Rule 405 of the Securities Act Regulations; and any oral or
written communications with potential investors undertaken pursuant to Section 5(d) of the Securities Act are hereinafter called
“Section 5(d) Communications”.
The Partnership Parties and the Underwriters agree as follows:
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1. Sale and Purchase:
(a) Initial Units. Upon the basis of the agreements, warranties and representations and other
terms and conditions herein set forth, at the purchase price per share of Common Units of $[
], the Partnership agrees to sell to the Underwriters the number of Initial Units set forth in
Schedule I opposite its name, and each Underwriter agrees, severally and not jointly, to purchase
from the Partnership the number of Initial Units set forth in Schedule II opposite such
Underwriter’s name, plus any additional number of Initial Units which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 8 hereof, subject in each case, to such
adjustments among the Underwriters as the Representatives in their sole discretion shall make to
eliminate any sales or purchases of fractional units.
(b) Option Units. In addition, upon the basis of the agreements, warranties and
representations and other terms and conditions herein set forth, at the purchase price per share of
Common Units set forth in paragraph (a) above, the Partnership hereby grants an option to the
Underwriters, acting severally and not jointly, to purchase from the Partnership all or any part of
the Option Units set forth in Schedule I, plus any additional number of Option Units which such
Underwriter may become obligated to purchase pursuant to the provisions of Section 8 hereof. The
option hereby granted will expire 30 days after the date hereof and may be exercised in whole or in
part from time to time within such 30-day period only for the purpose of covering over-allotments
which may be made in connection with the offering and distribution of the Initial Units upon
written notice by the Representatives to the Partnership setting forth the number of Option Units
as to which the several Underwriters are then exercising the option and the time and date of
payment and delivery for such Option Units. Any such time and date of delivery (an “Option Closing
Time”) shall be determined by the Representatives, but shall not be later than three full business
days (or earlier, without the consent of the Partnership, than two full business days) after the
exercise of such option and the delivery of notice of same to the Partnership, nor in any event
prior to the Closing Time, as hereinafter defined. If the option is exercised as to all or any
portion of the Option Units, the Partnership will sell that number of Option Units then being
purchased, and each of the Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of Option Units then being purchased which the number of Initial
Units set forth in Schedule II opposite the name of such Underwriter bears to the total number of
Initial Units, subject in each case to such adjustments among the Underwriters as the
Representatives in their sole discretion shall make to eliminate any sales or purchases of
fractional units.
2. Payment and Delivery
(a) Initial Units. The Initial Units to be purchased by each Underwriter hereunder in such
authorized denominations and registered in such names as the Representatives may request upon at least forty-eight hours’ prior written notice to the
Partnership shall be delivered by or on behalf of the Partnership to the Representatives through
the facilities of The Depository Trust Company (“DTC”) for the account of such Underwriter, against
payment by or on behalf of such Underwriter of the purchase price
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therefor by wire transfer in immediately available funds to the account specified to the Representatives by the Partnership upon
at least forty-eight hours’ prior written notice. The Partnership Parties will cause the
certificates representing the Initial Units to be made available for checking and packaging not
later than 1:00 p.m. New York City time on the business day prior to the Closing Time (as defined
below) with respect thereto at the office of DTC or its designated custodian, as the case may be
(the “Designated Office”). The time and date of such delivery and payment shall be 9:30 a.m., New
York City time, on the third (fourth, if the determination of the purchase price of the Initial
Units occurs after 4:30 p.m., New York City time) business day after the date hereof (unless
another time and date shall be agreed to by the Representatives and the Partnership Parties). The
time and date at which such delivery and payment are actually made is hereinafter called the
“Closing Time.”
(b) Option Units. Any Option Units to be purchased by each Underwriter hereunder in such
authorized denominations and registered in such names as the Representatives may request upon at
least forty-eight hours’ prior written notice to the Partnership Parties shall be delivered by or
on behalf of the Partnership Parties to the Representatives through the facilities of DTC for the
account of such Underwriter, against payment by or on behalf of such Underwriter of the purchase
price therefor by wire transfer in immediately available funds to the account specified to the
Representatives by the Partnership upon at least forty-eight hours’ prior written notice. The
Partnership Parties will cause the certificates representing the Option Units to be made available
for checking and packaging at least twenty-four hours prior to the Option Closing Time with respect
thereto at the Designated Office. The time and date of such delivery and payment shall be 9:30
a.m., New York City time, on the date specified by the Representatives in the notice given by the
Representatives to the Partnership Parties of the Underwriters’ election to purchase such Option
Units or on such other time and date as the Partnership Parties and the Representatives may agree
upon in writing.
(c) Directed Shares.
It is understood that approximately [ ] Initial Units
(the “Directed Shares”) will initially be reserved by the several Underwriters for offer and sale upon the terms
and conditions to be set forth in the Prospectus and in accordance with the rules and regulations of FINRA to directors,
officers and employees of the Partnership Parties and their subsidiary and persons having business relationships with the
Partnership Parties and their subsidiary who have heretofore delivered to Xxxxxxx Xxxxx & Associates, Inc. offers or
indications of interest to purchase Initial Shares in form satisfactory to Xxxxxxx Xxxxx & Associates, Inc.
(“Directed Share Participants”) and that any allocation of such Initial Units among such persons will be made in
accordance with timely directions received by Xxxxxxx Xxxxx & Associates, Inc. from the Partnership (such program, the
“Directed Share Program”); provided that under no circumstances will Xxxxxxx Xxxxx & Associates, Inc.
or any Underwriter be liable to the Partnership Parties or to any such person for any action taken or omitted in good faith
in connection with such Directed Share Program. It is further understood that any Directed Shares not affirmatively
reconfirmed for purchase by any participant in the Directed Share Program by 9:30 a.m., New York City time, on the first
business day following the date hereof or otherwise are not purchased by such persons will be offered by the Underwriters
to the public upon the terms and conditions set forth in the Disclosure Package and Prospectus. The Partnership agrees
to pay all fees and disbursements incurred by the Underwriters in connection with the Directed Share Program and any stamp
duties or other taxes incurred by the Underwriters in connection with the Directed Share Program.
3. Representations and Warranties of the Partnership Parties:
The Partnership Parties represent and warrant to the Underwriters as of the date hereof, the
Initial Sale Time (as defined below), as of the Closing Time and as of any Option Closing Time (if
any), and agrees with each Underwriter, that:
(a) the Partnership has an authorized capitalization as set forth in both the Prospectus and
the Disclosure Package under the heading “Capitalization”; the outstanding common units
representing limited partner interests, shares of capital stock or other equity interests, as
applicable, in the Partnership and each subsidiary of the Partnership (each, a “Subsidiary”) have
been duly and validly authorized and issued and are fully paid and non-assessable, and the
outstanding shares of capital stock or other equity interests of the Subsidiaries are directly or
indirectly owned of record and beneficially by the Partnership are as set forth in the Prospectus
and the Disclosure Package; except as disclosed in both the Prospectus and the Disclosure Package, there are no
outstanding (i) securities or obligations of the Partnership Parties or any of the Subsidiaries
convertible into or exchangeable for any capital stock or other equity interests of the Partnership
Parties or any such Subsidiary, (ii) warrants, rights or options
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to subscribe for or purchase from the Partnership Parties or any such Subsidiary any such capital stock or other equity interests or
any such convertible or exchangeable securities or obligations, or (iii) obligations of the
Partnership Parties or any such Subsidiary to issue any shares of capital stock or other equity
interests, as applicable, any such convertible or exchangeable securities or obligation, or any
such warrants, rights or options;
(b) Xxxxxxxxx Energy, Inc. owns 100% of the issued liability company interests in the General
Partner (the “Membership Interests”); such Membership Interests are duly authorized and validly
issued in accordance with the General Partner Agreement and are fully paid (to the extent required
under the General Partner Agreement) and nonassessable (except as such nonassessability may be
affected by matters described in Sections 18-303, 18-607 and 18-804 of the Delaware Uniform Limited
Liability Company Act (the “Delaware LLC Act”)); and Xxxxxxxxx Energy, Inc. owns such Membership
Interests free and clear of all liens, encumbrances, security interests, charges or claims
(“Liens”), except as described in the Registration Statement, the Prospectus and the Disclosure
Package.
(c) each of the Partnership Parties and the Subsidiaries (all of which are named in Exhibit 21
to the Registration Statement) has been duly incorporated or organized, as applicable, and is
validly existing as a corporation, limited liability partnership or limited partnership, as the
case may be, in good standing under the laws of its respective jurisdiction of incorporation with
all necessary corporate power and authority to own or hold its respective properties and to conduct
its respective businesses as described in each of the Registration Statement, the Prospectus and
the Disclosure Package, and, in the case of the Partnership Parties, to execute and deliver this
Agreement and to consummate the transactions contemplated herein;
(d) the General Partner has the requisite limited liability company power and authority to act
as the general partner of the Partnership in all material respects as described in the Registration
Statement, the Prospectus and the Disclosure Package.
(e) the General Partner is the sole general partner of the Partnership and owns the General
Partner’s 0.3% of the equity interest, as represented by 38,023 general partner units in the
Partnership (the “GP Interest”); such GP Interest is duly authorized and validly issued in
accordance with the Partnership Agreement and the General Partner owns such GP Interest and free
and clear of all Liens.
(f) investment funds managed
by Yorktown Partners LLC own 13,141,434 Common Units after giving
effect to conversion of all of the Series A convertible preferred units of the Partnership into
1,068,376 Common Units; such Common Units and the limited partner interests represented thereby
have been duly authorized and validly issued in accordance with the
Partnership Agreement and the holders of such Common Units have no
obligation to make any further payments for the purchase of such
Common Units or contributions to the Partnership or the General
Partner solely by reason of the ownership of such Common Units (except as such nonassessability may be affected by matters described
in Sections 17-303, 17-607, and 17-804 of the Delaware LP Act); and such investment funds own
such Common Units free and clear of all Liens.
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(g) the Partnership Agreement has been duly authorized, executed and delivered by the General
Partner and is a valid and legally binding agreement of the General Partner, enforceable against
the General Partner in accordance with its terms; provided, that, with respect to agreement, the
enforceability thereof may be limited by (x) 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 (y) public policy, applicable law relating to
fiduciary duties and indemnification and an implied covenant of good faith and fair dealing.
(h) the General Partner Agreement has been duly authorized, executed and delivered by
Xxxxxxxxx Energy, Inc. and is a valid and legally binding agreement of Xxxxxxxxx Energy, Inc.,
enforceable against Xxxxxxxxx Energy, Inc. in accordance with its terms; provided, that, with
respect to agreement, the enforceability thereof may be limited by (x) 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 (y) public policy,
applicable law relating to fiduciary duties and indemnification and an implied covenant of good
faith and fair dealing.
(i) the Partnership Parties and all of the Subsidiaries are duly qualified or licensed and are
in good standing in each jurisdiction in which they conduct their respective businesses or in which
they own or lease real property or otherwise maintain an office and in which the failure,
individually or in the aggregate, to be so qualified or licensed could have a material adverse
effect on the assets, business, operations, earnings, properties, rights or condition (financial or
otherwise), present or prospective, of the Partnership Parties and the Subsidiaries taken as a
whole, (any such effect or change, where the context so requires, is hereinafter called a “Material
Adverse Effect” or “Material Adverse Change”); except as disclosed in both the Prospectus and the
Disclosure Package, no Subsidiary is prohibited or restricted, directly or indirectly, from paying
dividends to the Partnership Parties, or from making any other distribution with respect to such
Subsidiary’s capital stock or other equity interests or from repaying to the Partnership Parties or
any other Subsidiary any amounts which may from time to time become due under any loans or advances
to such Subsidiary from the Partnership or such other Subsidiary, or from transferring any such
Subsidiary’s property, rights or assets to the Partnership or to any other Subsidiary. The only
Subsidiaries of the Partnership are the subsidiaries, partnerships, joint ventures and other
associations listed on Schedule IV hereto and Schedule IV accurately sets forth whether each such
Subsidiary is a corporation, limited or general partnership or limited liability company and the
jurisdiction of organization of each such Subsidiary and, in the case of any Subsidiary which is a
partnership or limited liability company, the general partner and managing members, respectively.
The General Partner does not own any capital stock or other equity securities of any other
corporation or any ownership interest in any partnership, joint venture or other association other
than in the Partnership.
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(j) the Partnership Parties and the Subsidiaries are in compliance in all respects with all
applicable laws, rules, regulations, orders, decrees and judgments, including those relating to
transactions with affiliates; except where the failure to be in compliance would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect;
(k) neither of the Partnership Parties nor any Subsidiary is in breach of or in default under
(nor has any event occurred which with notice, lapse of time, or both would constitute a breach of,
or default under), its respective organizational documents, including, without limitation, the
Operative Agreements, or in the performance or observance of any obligation, agreement, covenant or
condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or
other agreement or instrument to which the Partnership Parties or any Subsidiary is a party or by
which any of them or their respective properties is bound, except for such breaches or defaults
which would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect;
(l) the execution, delivery and performance of this Agreement, and consummation of the
transactions contemplated herein will not (A) conflict with, or result in any breach of, or
constitute a default under (nor constitute any event which with notice, lapse of time, or both
would constitute a breach of, or default under), (i) any provision of the organizational documents
of the Partnership Parties or any Subsidiary, including, without limitation, the Operative
Agreements, or (ii) any provision of any license, indenture, mortgage, deed of trust, loan or
credit agreement or other agreement or instrument to which the Partnership Parties or any
Subsidiary is a party or by which any of them or their respective properties may be bound or
affected, or under any federal, state, local or foreign law, regulation or rule or any decree,
judgment or order applicable to the Partnership Parties or any Subsidiary, except in the case of
this clause (ii) for such breaches or defaults which would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect; or (B) result in the creation or
imposition of any lien, charge, claim or encumbrance upon any property, right or asset of the
Partnership Parties or any Subsidiary, except for such liens, charges, claims or encumbrances which
would not reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect;
(m) this Agreement has been duly authorized, executed and delivered by the Partnership Parties
and is a legal, valid and binding agreement of the Partnership Parties enforceable in accordance
with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors’ rights generally, and by general equitable principles, and except
to the extent that the indemnification and contribution provisions of Section 9 hereof may be
limited by federal or state securities laws and public policy considerations in respect thereof;
(n) no approval, authorization, consent or order of or filing with any federal, state, local
or foreign governmental or regulatory commission, board, body, authority or agency is required in
connection with the Partnership Parties’ execution, delivery and performance of this Agreement, its
consummation of the transactions contemplated
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herein, and its sale and delivery of the Units, other than (A) such as have been obtained, or
will have been obtained at the Closing Time or the relevant Option Closing Time, as the case may
be, under the Securities Act and the Securities Exchange Act of 1934 (the “Exchange Act”), (B) such
approvals as have been obtained in connection with the approval of the quotation of the Units on
the Nasdaq Global Market (the “Nasdaq”), (C) any necessary qualification under the securities or
blue sky laws of the various jurisdictions in which the Units are being offered by the Underwriters
and (D) such approvals, authorizations, consents, orders, filings, registrations or qualifications
as may be required by the Financial Industry Regulatory Authority, Inc. (“FINRA”);
(o) Except as otherwise disclosed in the Prospectus and the Disclosure Package, each of the
Partnership Parties and the Subsidiaries has all necessary licenses, authorizations, consents and
approvals and has made all necessary filings required under any federal, state, local or foreign
law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from
other persons, required in order to conduct their respective businesses as described in both the
Prospectus and the Disclosure Package, except to the extent that any failure to have any such
licenses, authorizations, consents or approvals, to make any such filings or to obtain any such
authorizations, consents or approvals would not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect; neither of the Partnership Parties nor any of the
Subsidiaries is in violation of, in default under, or has received any notice regarding a possible
violation, default or revocation of any such license, authorization, consent or approval or any
federal, state, local or foreign law, regulation or rule or any decree, order or judgment
applicable to the Partnership Parties or any of the Subsidiaries the effect of which could result
in a Material Adverse Change; and no such license, authorization, consent or approval contains a
materially burdensome restriction that is not adequately disclosed in each of the Registration
Statement, the Prospectus and the Disclosure Package;
(p) each of the Registration Statement and any Rule 462(b) Registration Statement has become
effective under the Securities Act and no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement has been issued under the
Securities Act and no proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Partnership Parties, are contemplated or threatened by the Commission; and the
Partnership Parties has complied with any request on the part of the Commission for additional
information;
(q) the Preliminary Prospectus when filed and the Registration Statement as of each effective
date and as of the date hereof complied or will comply, and the Prospectus and any further
amendments or supplements to the Registration Statement, the Preliminary Prospectus or the
Prospectus will, when they become effective or are filed with the Commission, as the case may be,
comply, in all material respects with the requirements of the Securities Act and the Securities Act
Regulations;
(r) the Registration Statement, as of its effective date and as of the date hereof, did not,
does not and will not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
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statements therein not misleading; and the Preliminary Prospectus does not, and the Prospectus
or any amendment or supplement thereto will not, as of the applicable filing date, the date hereof
and at the Closing Time and on each Option Closing Time (if any), contain an untrue statement of a
material fact or omit to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided, however, that the
Partnership Parties make no warranty or representation with respect to any statement contained in
or omitted from the Registration Statement, the Preliminary Prospectus or the Prospectus in
reliance upon and in conformity with the information concerning the Underwriters and furnished in
writing by or on behalf of the Underwriters through the Representatives to the Partnership Parties
expressly for use therein (that information being limited to that described in the last sentence of
the first paragraph of Section 9(b) hereof);
(s) as of [___]:00 [am] [pm] (Eastern time) on the date of this Agreement (the “Initial Sale
Time”), the Disclosure Package did not, and at the Closing Time and each Option Closing Time, the
Disclosure Package will not, contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; as of its issue date or date of first use and at all
subsequent times through the Initial Sale Time, each Issuer Free Writing Prospectus and each
written Section 5(d) Communication listed on Schedule III(b) hereto did not, and at the Closing
Time and each Option Closing Time, each such Issuer Free Writing Prospectus and each written
Section 5(d) Communication will not, contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that the Partnership
Parties make no warranty or representation with respect to any statement contained in or omitted
from the Disclosure Package in reliance upon and in conformity with the information concerning the
Underwriters and furnished in writing by or on behalf of the Underwriters through the
Representatives to the Partnership Parties expressly for use therein (that information being
limited to that described in the last sentence of the first paragraph of Section 9(b) hereof);
(t) each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Units did not, does not and will not
include any information that conflicted, conflicts or will conflict with the information contained
in the Registration Statement, as may be amended under this Agreement, including any document
incorporated by reference therein that has not been superseded or modified;
(u) the Partnership is eligible to use Free Writing Prospectuses in connection with this
offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that
the Partnership is required to file pursuant to Rule 433(d) under the Securities Act Regulations
has been, or will be, filed with the Commission in accordance with the requirements of the
Securities Act and the Securities Act Regulations; and each Free Writing Prospectus that the
Partnership has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act
Regulations or that was prepared by or on behalf of or used by the Partnership complies or will
comply in all
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material respects with the requirements of the Securities Act and the Securities Act
Regulations;
(v) except for the Issuer Free Writing Prospectuses identified in Schedule III(a) hereto, and
any electronic road show relating to the public offering of common units contemplated herein,
neither of the Partnership Parties has prepared, used or referred to, and will not, without the
prior consent of the Representatives, which consent shall not be unreasonably withheld, prepare,
use or refer to, any Free Writing Prospectus;
(w) the Preliminary Prospectus, the Prospectus and any Issuer Free Writing Prospectuses (to
the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission)
delivered to the Underwriters for use in connection with the public offering of the Units
contemplated herein have been and will be identical to the versions of such documents transmitted
to the Commission for filing via the Electronic Data Gathering Analysis and Retrieval System
(“XXXXX”), except to the extent permitted by Regulation S-T;
(x) the Partnership filed the Registration Statement with the Commission before using any
Issuer Free Writing Prospectus; and each Issuer Free Writing Prospectus was preceded or accompanied
by the most recent Preliminary Prospectus satisfying the requirements of Section 10 under the
Securities Act, which Preliminary Prospectus included an estimated price range.
(y) there are no actions, suits, proceedings, inquiries or investigations pending or, to the
knowledge of the Partnership Parties, threatened against the Partnership Parties or any Subsidiary
or any of their respective executive officers and directors, in such capacity, or to which the
properties, assets or rights of any such entity are subject, at law or in equity, before or by any
federal, state, local or foreign governmental or regulatory commission, board, body, authority,
arbitral panel or agency which would reasonably be expected to result in a judgment, decree, award
or order having a Material Adverse Effect;
(z) the financial statements, including the notes thereto, included in each of the
Registration Statement, the Prospectus and the Disclosure Package present fairly the consolidated
financial position of the entities to which such financial statements relate (the “Covered
Entities”) as of the dates indicated and the consolidated results of operations and changes in
financial position and cash flows of the Covered Entities for the periods specified; such financial
statements have been prepared in conformity with generally accepted accounting principles as
applied in the United States and on a consistent basis during the periods involved and in
accordance with Regulation S-X promulgated by the Commission; the financial statement schedules
included in the Registration Statement and the amounts in both the Prospectus and the Disclosure
Package under the captions “Prospectus Summary—Summary Historical and Pro Forma Consolidated
Financial and Operating Data” and “Selected Historical and Pro Forma Consolidated Financial and
Operating Data” fairly present the information shown therein and have been compiled on a basis
consistent with the financial statements
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included in each of the Registration Statement, the Prospectus and the Disclosure Package; no other financial statements or supporting schedules are
required to be included in the Registration Statement, the Prospectus or the Disclosure Package; the unaudited pro forma
financial information (including the related notes) included in each of the Registration Statement,
the Prospectus and the Disclosure Package complies as to form in all material respects with the
applicable accounting requirements of the Securities Act and the Securities Act Regulations, and
management of the Partnership Parties believes that the assumptions underlying the pro forma
adjustments are reasonable; such pro forma adjustments have been properly applied to the historical
amounts in the compilation of the information and such information fairly presents with respect to
the Partnership Parties and the Subsidiaries, the financial position, results of operations and
other information purported to be shown therein at the respective dates and for the respective
periods specified; and no other pro forma financial information is required to be included in the
Registration Statement, the Prospectus or the Disclosure Package;
(aa) Ernst & Young LLP, whose report on the consolidated financial statements of the
Partnership and the Subsidiaries is filed with the Commission as part of each of the Registration
Statement, the Prospectus and the Disclosure Package or is incorporated by reference therein, is,
and was during the periods covered by its reports, an independent public accountant as required by
the Securities Act and the Securities Act Regulations and are registered with the Public Company
Accounting Oversight Board;
(bb) subsequent to the date of the most recent financial statements of the Partnership
included in each of the Registration Statement, the Prospectus and the Disclosure Package, and
except as may be otherwise stated in such documents, there has not been (A) any Material Adverse
Change or any development that would reasonably be expected to result in a Material Adverse Change
or a prospective Material Adverse Change, whether or not arising in the ordinary course of
business, (B) any transaction that is material to the Partnership Parties and the Subsidiaries
taken as a whole, contemplated or entered into by the Partnership Parties or any of the
Subsidiaries, (C) any obligation, contingent or otherwise, directly or indirectly incurred by the
Partnership Parties or any Subsidiary that is material to the Partnership Parties and Subsidiaries
taken as a whole or (D) any dividend or distribution of any kind declared, paid or made by the
Partnership Parties on any class of its common units representing limited partner interests or
other equity interests, as applicable;
(cc) the Units conform in all material respects to the description thereof contained in the
Registration Statement, the Prospectus and the Disclosure Package;
(dd) except as disclosed in both the Prospectus and the Disclosure Package, there are no
persons with registration or other similar rights to have any equity or debt securities, including
securities which are convertible into or exchangeable for equity securities, registered pursuant to
the Registration Statement or otherwise registered by the Partnership Parties under the Securities
Act, except for those registration or similar rights which have been waived with respect to the
offering contemplated by this
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Agreement, all of which registration or similar rights are fairly
summarized in both the Prospectus and the Disclosure Package;
(ee) the Units have been duly authorized and, when issued and duly delivered against payment
therefor as contemplated by this Agreement, will be validly issued, fully paid and non-assessable, free and clear of any pledge, lien, encumbrance, security interest or
other claim, and the issuance and sale of the Units by the Partnership is not subject to preemptive
or other similar rights arising by operation of law, under the organizational documents of the
Partnership Parties or under any agreement to which the Partnership Parties or any Subsidiary is a
party or otherwise;
(ff) the Units have been, or will be as of the Closing Time, approved for listing on the
Nasdaq; the Partnership Parties have taken all necessary actions to ensure that, upon and at all
times after Nasdaq shall have approved the Units for listing, it will be in compliance with all
applicable corporate governance requirements set forth in the Nasdaq’s listing qualifications that
are then in effect and is taking such steps as are necessary to ensure that it will be in
compliance with other applicable corporate governance requirements set forth in the Nasdaq’s
listing qualifications not currently in effect upon the effectiveness of such requirements;
(gg) the Partnership Parties have not taken, and will not take, directly or indirectly, any
action which is designed to or which has constituted or which might reasonably be expected to cause
or result in stabilization or manipulation of the price of any security of the Partnership to
facilitate the sale or resale of the Units;
(hh) neither of the Partnership Parties nor any of their affiliates (i) is required to
register as a “broker” or “dealer” in accordance with the provisions of the Exchange Act, or the
rules and regulations thereunder (the “Exchange Act Regulations”), or (ii) directly, or indirectly
through one or more intermediaries, controls or has any other association with (within the meaning
of Article I of the By-laws of FINRA) any member firm of FINRA;
(ii) any certificate signed by any officer of the Partnership Parties or any Subsidiary
delivered to the Representatives or to counsel for the Underwriters pursuant to or in connection
with this Agreement shall be deemed a representation and warranty by the Partnership Parties to
each Underwriter as to the matters covered thereby;
(jj) the form of certificate used to evidence the Common Units complies in all material
respects with all applicable statutory requirements, with any applicable requirements of the
organizational documents of the Partnership and the requirements of the Nasdaq;
(kk) the Partnership Parties and the Subsidiaries have good and marketable title in fee simple
to, or have valid rights to lease or otherwise use, all real property and personal property that is
material to the business of the Partnership Parties and the Partnership’s Subsidiaries, taken as a
whole and as disclosed in both the Prospectus and the Disclosure Package, in each case free and
clear of all liens, security interests, pledges, charges, encumbrances, mortgages and defects,
except such as are disclosed in
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both the Prospectus and the Disclosure Package or such as do not materially and adversely affect the value of such property and do not materially and adversely
interfere with the use made or proposed to be made of such property by the Partnership Parties and
the Subsidiaries; and any real property and buildings held under lease by the Partnership Parties
or any Subsidiary are held under valid, existing and enforceable leases, with such exceptions as are disclosed in both the Prospectus and the Disclosure
Package or are not material and do not interfere with the use made or proposed to be made of such
property and buildings by the Partnership Parties or such Subsidiary;
(ll) the descriptions in each of the Registration Statement, the Prospectus and the Disclosure
Package of the legal or governmental proceedings, contracts, leases and other legal documents
therein described present fairly the information required to be shown, and there are no legal or
governmental proceedings, contracts, leases, or other documents of a character required to be
described in the Registration Statement, the Prospectus or the Disclosure Package or to be filed as
exhibits to the Registration Statement which are not described or filed as required; all agreements
between the Partnership Parties or any of the Subsidiaries and third parties expressly referenced
in both the Prospectus and the Disclosure Package are legal, valid and binding obligations of the
Partnership Parties or one or more of the Subsidiaries, enforceable in accordance with their
respective terms, except to the extent enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights generally and by general
equitable principles;
(mm) the Partnership Parties and each Subsidiary owns or possesses the right to use all
patents, trademarks, service marks, trade names, copyrights (including software and design rights),
trade secrets, manufacturing processes and any and all other intellectual, intangible and
industrial property rights, wherever subsisting (collectively “Intellectual Property”) that is
material to the conduct each of its businesses as described in both the Prospectus and the
Disclosure Package. The conduct of the Partnership Parties’ and each Subsidiary’s business as
currently conducted does not infringe or violate any Intellectual Property owned by any other
Person, and none of the Partnership Parties nor any Subsidiary has received notice (including cease
and desist letters and invitations to take a patent license) of infringement of or conflict with
(and neither of the Partnership Parties knows of no basis for such infringement of or conflict
with) Intellectual Property rights of others that would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. To the knowledge of the Partnership
Parties, no person is infringing or violating any Intellectual Property owned by the Partnership
Parties or any Subsidiary;
(nn) (x) the Partnership has established and maintains disclosure controls and procedures (as
such term is defined in Rule 13a-15(e) under the Exchange Act), which (i) are designed to ensure
that material information relating to the Partnership Parties, including the Partnership’s
consolidated subsidiaries, is made known to the principal executive officer, the principal
financial officer and other appropriate officers of the General Partner, particularly during the
periods in which the periodic reports required under the Exchange Act are being prepared, (ii) have
been evaluated for effectiveness as of the end of the last fiscal period covered by the
Registration Statement, and (iii) are
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effective in all material respects to perform the functions
for which they were established, and (y) the Partnership Parties are not aware of (a) any
significant deficiency or material weakness in the design or operation of its internal controls
over financial reporting which are reasonably likely to adversely affect the Partnership Parties’
ability to record, process, summarize and report financial information to management and the Board
of Directors, or (b) any fraud, whether or not material, that involves management or other employees who have a
significant role in the Partnership Parties’ internal control over financial reporting. Since the
most recent evaluation of the Partnership Parties’ disclosure controls and procedures described
above, there have been no significant changes in internal control over financial reporting or in
other factors that could significantly affect internal control over financial reporting;
(oo) the Partnership Parties and each of the Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i) transactions are executed
in accordance with management’s general or specific authorizations; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with generally accepted
accounting principles as applied in the United States and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any differences;
(pp) each of the Partnership Parties and the Subsidiaries has filed on a timely basis all
necessary federal, state, local and foreign tax returns required to be filed through the date
hereof and all such tax returns are true, correct and complete in all material respects; the
Partnership Parties and each of the Subsidiaries have paid all taxes shown as due thereon (and any
related assessments, fines or penalties); no tax deficiency has been asserted against any such
entity, nor does any such entity know of any tax deficiency which is likely to be asserted against
any such entity which, if determined adversely to any such entity, would reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect; there are no tax liens
outstanding against any of the assets, properties or business of the Partnership Parties or any
Subsidiary; and all tax liabilities are adequately provided for on the respective books of such
entities in conformity with generally accepted accounting principles as applied in the United
States;
(qq) the Partnership Parties reasonably believe that the Partnership is, and expects it will
continue to be, a United States Real Property Holding Corporation within the meaning of Xxxxxxx 000
xx xxx Xxxxxx Xxxxxx Internal Revenue Code of 1986;
(rr) each of the Partnership Parties and the Subsidiaries maintains insurance of the types and
in the amounts generally deemed adequate for their respective businesses and consistent with
insurance coverage maintained by similar companies in similar businesses, including, but not
limited to, insurance covering real and personal property owned or leased by the Partnership
Parties and the Subsidiaries against theft, damage, destruction, acts of vandalism and all other
risks customarily insured against, all of which insurance is in full force and effect;
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(ss) the Partnership Parties and the Subsidiaries have received all permits, licenses or other
approvals required of them under applicable federal and state occupational safety and health laws
and regulations to conduct their respective businesses, and the Partnership Parties and the
Subsidiaries are in compliance with all terms and conditions of any such permit, license or
approval, except any such violation of law or regulation, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals which
would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse
Change;
(tt) neither of the Partnership Parties nor any Subsidiary is in violation of or has received
notice of any violation with respect to any federal or state law relating to discrimination in the
hiring, promotion or pay of employees, nor any applicable federal or state wages and hours law, nor
any state law precluding the denial of credit due to the neighborhood in which a property is
situated, the violation of any of which would not reasonably be expected to have, individually or
in the aggregate,, individually or in the aggregate, a Material Adverse Effect;
(uu) the Partnership Parties and each of the Subsidiaries are in compliance in all material
respects with all presently applicable provisions of the Employee Retirement Income Security Act of
1974, as amended, including the regulations and published interpretations thereunder (“ERISA”); no
“reportable event” (as defined in ERISA) has occurred with respect to any “pension plan” (as
defined in ERISA) for which the Partnership Parties or any of the Subsidiaries would have any
liability; the Partnership Parties and each of the Subsidiaries have not incurred and do not expect
to incur liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from,
any “pension plan” or (ii) Section 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (“Code”); and each “pension
plan” for which the Partnership Parties and each of the Subsidiaries would have any liability that
is intended to be qualified under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure to act, which would cause the
loss of such qualification;
(vv) neither of the Partnership Parties nor any of the Subsidiaries nor, to the Partnership
Parties’ knowledge, any officer or director purporting to act on behalf of the Partnership Parties
or any of the Subsidiaries has at any time (i) made any contributions to any candidate for
political office, or failed to disclose fully any such contributions, in violation of law, (ii)
made any payment to any state, federal or foreign governmental officer or official, or other person
charged with similar public or quasi-public duties, other than payments required or allowed by
applicable law, (iii) made any payment outside the ordinary course of business to any investment
officer or loan broker or person charged with similar duties of any entity to which the Partnership
Parties or any of the Subsidiaries sells or from which the Partnership Parties or any of the
Subsidiaries buys loans or servicing arrangements for the purpose of influencing such agent,
officer, broker or person to buy loans or servicing arrangements from or sell loans to the
Partnership Parties or any of the Subsidiaries, or (iv) engaged in any transactions, maintained any
bank account or used any corporate funds except for transactions, bank
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accounts and funds which have been and are reflected in the normally maintained books and records of the Partnership Parties
and the Subsidiaries;
(ww) there are no outstanding loans, extensions of credit or advances or guarantees of
indebtedness by the Partnership Parties or any of the Subsidiaries to or for the benefit of any of the officers or directors of the Partnership Parties or any of the
Subsidiaries or any of the members of the families of any of them;
(xx) all securities issued by the Partnership Parties, any of the Subsidiaries or any trusts
established by the Partnership Parties or any Subsidiary, have been or will be issued and sold in
compliance with (i) all applicable federal and state securities laws, (ii) the laws of the
applicable jurisdiction of incorporation of the issuing entity and, (iii) to the extent applicable
to the issuing entity, the requirements of the Nasdaq;
(yy) the Partnership Parties and the Subsidiaries are, and at all times prior were, (i) in
compliance with any and all applicable federal, state, local and foreign laws, regulations,
ordinances, rules, orders, judgments, decrees, permits or other legal requirements relating to the
protection of human health and safety, the environment, natural resources, petroleum or hazardous
or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), which compliance
includes obtaining, maintaining and complying with all permits and authorizations and approvals
required by Environmental Laws to conduct their respective businesses, and (ii) have not received
notice of nor do they otherwise have knowledge of any actual or potential liability for the
investigation or remediation of any disposal or release of petroleum, hazardous or toxic substances
or wastes, pollutants or contaminants, except in the case of clause (i) or (ii) where such
non-compliance with or liability under Environmental Laws or investigations would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect; and neither of the
Partnership Parties nor any of the Subsidiaries has been named as a “potentially responsible party”
under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended,
or any other similar Environmental Law, except with respect to any matters that would not
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Except such as are disclosed in both the Prospectus and the Disclosure Package, none of the
Partnership Parties and the Subsidiaries (A) is a party to any proceeding under Environmental Laws
in which a governmental authority is also a party, other than such proceedings regarding which it
is believed no monetary penalties of $100,000 or more will be imposed, and (B) anticipates material
capital expenditures relating to Environmental Laws;
(zz) in connection with this offering, the Partnership Parties have not offered and will not
offer its Common Units or any other securities convertible into or exchangeable or exercisable for
Common Units in a manner in violation of the Securities Act; and the Partnership Parties have not
distributed and will not distribute any offering material in connection with the offer and sale of
the Units except for the Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus
or the Registration Statement;
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(aaa) the Partnership Parties have complied and will comply with all the provisions of Florida
Statutes, Section 517.075 (Chapter 92-198, Laws of Florida); and neither of the Partnership Parties
nor any of the Subsidiaries or other persons associated with or acting on behalf of such entities
does business with the government of Cuba or with any person or affiliate located in Cuba;
(bbb) other than this Agreement, the Partnership Parties have not incurred any liability for
any finder’s fees or similar payments in connection with the transactions herein contemplated;
(ccc) no relationship, direct or indirect, exists between or among the Partnership Parties or
any of the Subsidiaries on the one hand, and the directors, officers, unitholders, customers or
suppliers of the Partnership Parties or any of the Subsidiaries on the other hand, which is
required by the Securities Act and the Securities Act Regulations to be described in the
Registration Statement, the Prospectus or the Disclosure Package, which is not so described;
(ddd) neither of the Partnership Parties nor any of the Subsidiaries is and, after giving
effect to the offering and sale of the Units, will be an “investment company” or an entity
“controlled” by an “investment company”, as such terms are defined in the Investment Company Act of
1940, as amended (the “Investment Company Act”);
(eee) there are no existing or, to the knowledge of the Partnership Parties, threatened labor
disputes with the employees of the Partnership Parties or any of the Subsidiaries which would
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(fff) the Partnership Parties, the Subsidiaries and any of the officers and directors of the
Partnership Parties and the Subsidiaries, in their capacities as such, are, and at the Closing Time
and any Option Closing Time will be, in compliance in all material respects with the provisions of
the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated thereunder;
(ggg) none of the Partnership Parties nor any of the Subsidiaries or, to the knowledge of the
Partnership Parties, any director, officer, agent, employee or other persons associated with or
acting on behalf of such entities is aware of or has taken any action, directly or indirectly, that
would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as
amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation,
making use of the mails or any means or instrumentality of interstate commerce corruptly in
furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or
other property, gift, promise to give, or authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in contravention of the FCPA and the
Partnership Parties and the Subsidiaries and, to the knowledge of the Partnership Parties, their
affiliates have conducted their businesses in compliance with the FCPA;
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(hhh) neither of the Partnership Parties nor any of its Subsidiaries, nor, to the Partnership
Parties’ knowledge, any director, officer, agent or employee of, or other persons associated with
or acting on behalf of, the Partnership Parties, has violated the Bank Secrecy Act, as amended, the
Uniting and Strengthening of America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act (USA PATRIOT ACT) of 2001 or the rules and regulations promulgated under any such law or any successor law;
(iii) the operations of the Partnership Parties and the Subsidiaries are and have been
conducted at all times in compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the Money
Laundering Control Act of 1986, as amended, any other money laundering statutes of all
jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations
or guidelines, issued, administered or enforced by any governmental agency (collectively, the
“Money Laundering Laws”), except for any such non-compliance as would not reasonably be expected
to, singly or in the aggregate, result in a Material Adverse Change, and no action, suit or
proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Partnership Parties or any of the Subsidiaries with respect to the Money Laundering
Laws is pending or, to the Partnership Parties’ knowledge, threatened;
(jjj) each of the Partnership Parties and its Subsidiaries, and, to the Partnership Parties’
knowledge, any director, officer, agent or employee of, or other persons associated with or acting
on behalf of, the Partnership Parties have acted at all times in compliance with applicable Export
and Import Laws (as defined below) and there are no claims, complaints, charges, investigations or
proceedings pending or expected or, to the knowledge of the Partnership Parties, threatened between
the Partnership Parties or any of the Subsidiaries and any governmental authority under any Export
or Import Laws. The term “Export and Import Laws” means the Arms Export Control Act, the
International Traffic in Arms Regulations, the Export Administration Act of 1979, as amended, the
Export Administration Regulations, and all other laws and regulations of the United States
government regulating the provision of services to non-U.S. parties or the export and import of
articles or information from and to the United States of America, and all similar laws and
regulations of any foreign government regulating the provision of services to parties not of the
foreign country or the export and import of articles and information from and to the foreign
country to parties not of the foreign country;
(kkk) neither of the Partnership Parties nor any of the Subsidiaries, nor, to the Partnership
Parties’ knowledge, any director, officer, agent or employee of, or other persons associated with
or acting on behalf of, the Partnership Parties, is currently subject to any United States
sanctions administered by the Office of Foreign Assets Control of the United States Treasury
Department (“OFAC”); and the Partnership Parties will not directly or indirectly use the proceeds
of the offering, or lend, contribute or otherwise make available such proceeds to any Subsidiary,
partner or joint venturer or other person or entity, for the purpose of financing the activities of
any person currently subject to any United States sanctions administered by OFAC;
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(lll) at the time of (i) filing the Registration Statement and any Rule 462(b) Registration
Statement and (ii) any Section 5(d) Communications, the Partnership was and on the date hereof, the
Partnership is, an “emerging growth company” as defined in
Section 2(a)(19) of the Securities Act;
(mmm) each Disclosure Package,
the Prospectus and each Issuer Free Writing Prospectus comply, and any further amendments or supplements thereto will
comply, with any applicable laws or regulations of jurisdictions in which such Disclosure Package, Prospectus or such
Issuer Free Writing Prospectus, as amended or supplemented, if applicable, are distributed in connection with the Directed
Share Program. No consent, approval, authorization or order of, or filing or registration with, any court or governmental
agency or body, other than such as have been obtained, is required under the securities laws and regulations of any
jurisdiction in which the Directed Shares are offered or sold outside the United States;
(nnn) the Partnership
Parties have not offered, or caused the Underwriters to offer, Units to any person pursuant to the Directed Share Program
with the specific intent to unlawfully influence (i) a customer or supplier of the Partnership Parties to alter the
customer’s or supplier’s level or type of business with the Partnership Parties or (ii) a trade journalist
or publication to write or publish favorable information about the Partnership Parties, its business or its products; and
(ooo) the Partnership Parties
has not distributed and, prior to the later to occur of any Delivery Date and completion of the distribution of the Units,
will not distribute any offering material in connection with the offering and sale of the Units other than any Disclosure
Package, the Prospectus, any Issuer Free Writing Prospectus to which the Representatives have consented in accordance with
Section 4(e), (h) or (l), any Issuer Free Writing Prospectus set forth on Schedule III(a) hereto and, in connection with
the Directed Share Program described in Section 2, the enrollment materials prepared by Xxxxxxx Xxxxx & Associates, Inc.
4. Certain Covenants:
The Partnership Parties hereby agree with each Underwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying
the Units for offering and sale under the securities or blue sky laws of such jurisdictions (both
domestic and foreign) as the Representatives may reasonably designate and to maintain such
qualifications in effect as long as reasonably requested by the Representatives for the
distribution of the Units, provided that the Partnership Parties shall not be required to qualify
as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction or
to consent to the service of process under the laws of any such jurisdiction (except service of
process with respect to the offering and sale of the Units) or subject itself to taxation in any
such jurisdiction if it is not otherwise so subject;
(b) if, at the time this Agreement is executed and delivered, it is necessary for a
post-effective amendment to the Registration Statement to be declared effective before the offering
of the Units may commence, the Partnership Parties will endeavor to cause such post-effective
amendment, in a form approved by the Representatives, to become effective as soon as possible and
will advise the Representatives promptly and, if requested by the Representatives, will confirm
such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus
with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. (New
York City time), on the business day next succeeding the day following the execution and delivery
of this Agreement or on such other day as the parties may mutually agree and to furnish promptly
(and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York
City time) on the business day next succeeding the day following the execution and delivery of this
Agreement or on such other day as the parties may mutually agree to the Underwriters copies of the
Prospectus (or of the Prospectus as amended or supplemented if the Partnership shall have made any
amendments or supplements thereto after the effective date of the Registration Statement) in such
quantities and at such locations as the Underwriters may reasonably request for the purposes
contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements
thereto furnished to the Underwriters will be identical to the version transmitted to the
Commission for filing via XXXXX, except to the extent permitted by Regulation S-T;
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(d) to advise the Representatives promptly and (if requested by the Representatives) to
confirm such advice in writing, when the Registration Statement has become effective and when any
post-effective amendment thereto becomes effective under the Securities Act Regulations;
(e) to furnish a copy of each proposed Free Writing Prospectus to the Representatives and
counsel for the Underwriters and obtain the consent of the Representatives prior to referring to,
using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the
Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule
III(a) hereto;
(f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission,
legending and record keeping, as applicable;
(g) to advise the Representatives promptly, confirming such advice in writing, of (i) the
receipt of any comments from, or any request by, the Commission for amendments or supplements to
the Registration Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing
Prospectus, or for additional information with respect thereto, (ii) the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Issuer Free
Writing Prospectus, or of the suspension of the qualification of the Units for offering or sale in
any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes
and, if the Commission or any other government agency or authority should issue any such order, to
make every reasonable effort to obtain the lifting or removal of such order as soon as possible,
(iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration
Statement, or (iv) if the Partnership Parties become subject to a proceeding under Section 8A of
the Securities Act in connection with the public offering of Units contemplated herein;
(h) to advise the Representatives promptly of any proposal to amend or supplement the
Registration Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing
Prospectus and to not effect any amendment or supplement to the Registration Statement, any
Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus without the
Representatives’ consent, which shall not be unreasonably withheld;
(i) to furnish to the Underwriters for a period of three years from the date of this Agreement
(i) as soon as available, copies of all annual, quarterly and current reports or other
communications supplied to holders of Common Units, (ii) as soon as practicable after the filing
thereof, copies of all reports filed by the Partnership with the Commission, FINRA or any
securities exchange and (iii) such other information as the Underwriters may reasonably request
regarding the Partnership Parties and the Subsidiaries, provided, the Partnership Parties shall be
deemed to have furnished such reports, communications and information to the Representatives to the
extent they are filed on the Commission’s XXXXX system;
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(j) to advise the Underwriters promptly of the happening of any event or development known to
the Partnership Parties within the time during which a Prospectus relating to the Units (or in lieu
thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is required to
be delivered under the Securities Act Regulations which, in the judgment of the Partnership Parties
or in the reasonable opinion of the Representatives or counsel for the Underwriters, (i) would require the making
of any change in the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure
Package would not include 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, in the light of the
circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free
Writing Prospectus conflicted or would conflict with the information contained in the Registration
Statement relating to the Units, or (iii) if it is necessary at any time to amend or supplement the
Prospectus or the Disclosure Package to comply with any law and, during such time, to promptly
prepare and furnish to the Underwriters copies of the proposed amendment or supplement before
filing any such amendment or supplement with the Commission and thereafter promptly furnish at the
Partnership’s own expense to the Underwriters and to dealers, copies in such quantities and at such
locations as the Representatives may from time to time reasonably request of an appropriate
amendment or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the
Disclosure Package as so amended or supplemented will not, in the light of the circumstances when
it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations)
is so delivered, be misleading or, in the case of any Issuer Free Writing Prospectus, conflict with
the information contained in the Registration Statement, or so that the Prospectus or the
Disclosure Package will comply with the law;
(k) to file, in a form approved by the Representatives, which approval shall not be
unreasonably withheld or delayed, promptly with the Commission any amendment or supplement to the
Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing
Prospectus that may, in the reasonable judgment of the Partnership Parties or the Representatives,
be required by the Securities Act or requested by the Commission;
(l) prior to filing with the Commission any amendment or supplement to the Registration
Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to
furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the
consent of the Representatives to the filing, which consent shall not be unreasonably withheld or
delayed;
(m) to furnish promptly to each Representative a signed copy of the Registration Statement, as
initially filed with the Commission, and of all amendments or supplements thereto (including all
exhibits filed therewith or incorporated by reference therein) and such number of conformed copies
of the foregoing as the Representatives may reasonably request;
(n) to furnish to each Representative, not less than one business day before filing with the
Commission, during the period referred to in paragraph (i) above, a copy
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of any document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act and during
the period of three years hereafter to file all such documents in the manner and within the time
periods required by the Exchange Act and the Exchange Act Regulations;
(o) to apply the net proceeds of the sale of the Units in material accordance with its
statements under the caption “Use of Proceeds” in the Prospectus and the Disclosure Package;
(p) to make generally available to its security holders and to deliver to the Representatives
as soon as practicable, but in any event not later than the end of the fiscal quarter first
occurring after the first anniversary of the effective date of the Registration Statement an
earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form,
at the option of the Partnership, complying with the provisions of Rule 158 of the Securities Act
Regulations,) covering a period of 12 months beginning after the effective date of the Registration
Statement;
(q) to use its commercially reasonable efforts to maintain the quotation of the Units on the
Nasdaq and to file with the Nasdaq all documents and notices required by the Nasdaq of companies
that have securities that are traded and quotations for which are reported by the Nasdaq;
(r) to use its commercially reasonable efforts to engage and maintain, at its expense, a
registrar and transfer agent for the Units;
(s) to refrain, from the date hereof until 180 days (the “Lock-Up Period”) after the date of
the Prospectus, without the prior written consent of the Representatives, from, directly or
indirectly, (i) offering, pledging, selling, contracting to sell, selling any option or contract to
purchase, purchasing any option or contract to sell, granting any option for the sale of, or
otherwise disposing of or transferring, (or entering 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 share of Common Units or any securities convertible into or exercisable or
exchangeable for Common Units, or filing any registration statement under the Securities Act with
respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the economic consequence
of ownership of the Common Units, whether any such swap or transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Units or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Units to be sold hereunder, or (B)
Common Units specifically permitted to be transferred in a lock-up letter described in Section 4(u)
hereof, (C) any Common Units issued by the Partnership upon the exercise of an option outstanding
on the date hereof and referred to in the Prospectus; provided, however, that if (1) during the
last 17 days of the initial Lock-Up Period, the Partnership releases earnings results or announces
material news or a material event or (2) prior to the expiration of the initial Lock-Up Period, the
Partnership announces that it will release earnings results during the 16-day period following the
last day of the initial Lock-Up
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Period, then in each case the Lock-Up Period will be automatically extended until the expiration of the 18-day period beginning on the date of release of the earnings
results or the announcement of the material news or material event, as applicable, unless the
Representatives waive, in writing, such extension; the Partnership will provide the Representatives
and each unitholder subject to the Lock-Up Period pursuant to the lock-up letters described in
Section 4(u) with prior notice of any such announcement that gives rise to an extension of the Lock-up Period; if the
Representatives, in their sole discretion, agree to release or waive the restrictions set forth in
a lock-up letter described in Section 4(u) hereof for an officer or director of the Partnership and
provides the Partnership with notice of the impending release or waiver at least three business
days before the effective date of the release or waiver substantially in the form of Exhibit B
hereto, and the Partnership agrees to announce the impending release or waiver by a press release
substantially in the form of Exhibit C hereto through a major news service at least two business
days before the effective date of the release or waiver.
(t) not to, and to use its commercially reasonable efforts to cause its officers, directors
and affiliates not to, (i) take, directly or indirectly prior to termination of the underwriting
syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price
of any security of the Partnership, or which may cause or result in, or which might in the future
reasonably be expected to cause or result in, the stabilization or manipulation of the price of any
security of the Partnership, to facilitate the sale or resale of any of the Units, (ii) sell, bid
for, purchase or pay anyone any compensation for soliciting purchases of the Units or (iii) pay or
agree to pay to any person any compensation for soliciting any order to purchase any other
securities of the Partnership;
(u) to cause each 1% or greater unitholder of the Partnership, Xxxxxxxxx Energy, Inc. and each
officer and director of the General Partner to furnish to the Representatives, prior to the Initial
Sale Time, a letter or letters, substantially in the form of Exhibit A hereto;
(v) that the Partnership Parties will comply with all of the provisions of any undertakings in
the Registration Statement;
(w) in connection with the
Directed Share Program, to ensure that the Directed Shares will be restricted from sale, transfer, assignment, pledge or
hypothecation to the same extent as sales and dispositions of Common Units would be restricted pursuant to a letter
substantially in the form of Exhibit A hereto, and Xxxxxxx Xxxxx & Associates, Inc. will notify the Partnership as to
which Directed Share Participants will need to be so restricted. At the request of Xxxxxxx Xxxxx & Associates, Inc.,
the Partnership Parties will direct the transfer agent to place stop transfer restrictions upon such securities for such
period of time as is consistent with Exhibit A;
(x) to comply with all
applicable securities and other applicable laws, rules and regulations in each jurisdiction in which the Directed Shares
are offered in connection with the Directed Share Program;
(y) the Partnership Parties represent and agree that, without the prior consent of the
Representatives, (i) each of the Partnership Parties did not make any Section 5(d) Communications
prior to the initial filing of the Registration Statement and (ii) each of the Partnership Parties
has not made and will not make any written Section 5(d) Communications that contain “issuer
information” as defined in Rule 433 under the Securities Act; each Underwriter represents and
agrees that, without the prior consent of the Partnership Parties and the Representatives, (i) it
did not make any Section 5(d) Communications prior to the initial filing of the Registration
Statement and (ii) it has not made and will not make any written Section 5(d) Communications that
contain “issuer information” as defined in Rule 433 under the Securities Act; any written Section
5(d) Communication which has been consented to by the Partnership Parties and the Representatives
is listed on Schedule III(b) hereto;
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(z) The Partnership Parties represent and agree that any Section 5(d) Communications
undertaken by any of the Partnership Parties were and will be with qualified institutional buyers
as defined in Rule 144A under the Securities Act and institutions that are accredited investors as
defined in Rule 501(a) under the Securities Act; and each Underwriter represents and agrees that
any Section 5(d) Communications undertaken by it were and will be with qualified institutional
buyers as defined in Rule 144A under the Securities Act and institutions that are accredited investors as defined in
Rule 501(a) under the Act; and
(aa) until the date that is 15 days after expiration of the Lock-Up Period, as may be extended,
to notify the Representatives on or prior to the date on which the Partnership is no longer and
“emerging growth company” as defined in Section 2(a)(19) of the Securities Act.
Each Underwriter hereby represents and agrees that it has not and will not use, authorize use
of, refer to, or participate in the planning for use of, any “free writing prospectus”, as defined
in Rule 405 under the Securities Act (which term includes use of any written information furnished
to the Commission by the Partnership Parties and not incorporated by reference into the
Registration Statement and any press release issued by the Partnership) other than (i) a free
writing prospectus that contains no “issuer information” (as defined in Rule 433(h)(2) under the
Securities Act) that was not included in the Preliminary Prospectus or a previously filed Issuer
Free Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed on Schedule III(a), or
(iii) any free writing prospectus prepared by such Underwriter and approved by the Partnership in
advance.
5. Payment of Expenses:
(a) The Partnership agrees to pay or cause to be paid all costs and expenses incident to the
performance of its obligations under this Agreement, whether or not the transactions contemplated
hereunder are consummated or this Agreement is terminated, including without limitation (i) the
preparation and filing of the Registration Statement, each Preliminary Prospectus, the Prospectus,
any Issuer Free Writing Prospectus and any amendments or supplements thereto, and the printing and
furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing
and shipment), (ii) the preparation, issuance and delivery of the certificates for the Units to the
Underwriters, including any stock or other transfer taxes or duties payable upon the sale of the
Units to the Underwriters, (iii) the qualification of the Units for offering and sale under state
laws that the Partnership and the Representatives have mutually agreed are appropriate and the
determination of their eligibility for investment under state law as aforesaid (including the legal
fees and filing fees and other disbursements of counsel for the Underwriters and the printing and
furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to
dealers, (iv) filing for review of the public offering of the Units by FINRA (including the legal
fees and filing fees and other disbursements of counsel and expenses of the Underwriters), (v) the
fees and expenses of any transfer agent or registrar for the Units and miscellaneous expenses
referred to in the Registration Statement, (vi) the fees and expenses incurred in connection with
the
-24-
inclusion of the Units in the Nasdaq, (vii) making road show presentations with respect to the
offering of the Units, (viii) preparing and distributing copies (electronic or otherwise) of
transaction documents for the Representatives and its legal counsel
and (ix) the offer and sale of Units by the Underwriters in connection
with the Directed Share Program, including the reasonable fees and disbursements of counsel to the Underwriters
related thereto, the actual out-of-pocket costs and expenses of preparation, printing and distribution of the
Directed Share Program material and all stamp duties or other taxes incurred by the Underwriters in connection
with the Directed Share Program; and (x) the performance of the
Partnership Parties’ other obligations hereunder.
(b) If this Agreement shall be terminated by the Underwriters, or any of them, because of any
failure or refusal on the part of the Partnership Parties to materially comply with the terms or to
fulfill any of the conditions of this Agreement, or if for any reason the Partnership Parties shall
be unable to perform its obligations under this Agreement, the Partnership also will reimburse the
Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (such as printing, facsimile, courier service, direct
computer expenses, accommodations, travel and the fees and disbursements of Underwriters’ counsel)
and any other advisors, accountants, appraisers, etc. reasonably incurred by such Underwriters in
connection with this Agreement or the transactions contemplated herein.
6. Conditions of the Underwriters’ Obligations:
The obligations of the Underwriters hereunder to purchase Units at the Closing Time or on each
Option Closing Time, as applicable, are subject to the accuracy of the representations and
warranties on the part of the Partnership Parties hereunder on the date hereof and at the Closing
Time and on each Option Closing Time, as applicable, the performance by the Partnership Parties of
their obligations hereunder and to the satisfaction of the following further conditions at the
Closing Time or on each Option Closing Time, as applicable:
(a) The Partnership shall furnish to the Underwriters at the Closing Time and on each Option
Closing Time an opinion of Xxxxxxxxx Xxxxxxxx LLP, counsel for the Partnership and the
Subsidiaries, addressed to the Underwriters and dated the Closing Time and each Option Closing Time
and in form and substance reasonably satisfactory to Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for
the Underwriters, stating that:
(i) the Partnership has an authorized capitalization as set forth in both the
Prospectus and the Disclosure Package under the caption “Capitalization”; the
outstanding common units representing limited partner interests in the Partnership
and the Subsidiaries have been duly and validly authorized and issued and , upon
issuance of such units against payment as contemplated by the Registration
Statement and Prospectus, the holders of such units will have no obligation to make
any further payments for the purchase of such units or contributions to the
Partnership or the General Partner solely by reason of their ownership of such
units, and all of the outstanding shares of capital stock or other equity interests
of the Subsidiaries are directly or indirectly owned of record and beneficially by
the Partnership; except as disclosed in both the Prospectus and the Disclosure
Package, there are no outstanding (i) securities or
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obligations of the Partnership Parties or any of the Subsidiaries convertible into or exchangeable for any capital
stock or other equity interests of the Partnership Parties or any such Subsidiary,
(ii) warrants, rights or options to subscribe for or purchase from the Partnership
Parties or any such Subsidiary any such capital stock or other equity interests or
any such convertible or exchangeable securities or obligations, or (iii)
obligations of the Partnership Parties or any such Subsidiary to issue any shares
of capital stock or other equity interests, as applicable, any such convertible or
exchangeable securities or obligation, or any such warrants, rights or options;
(ii) Xxxxxxxxx Energy, Inc. owns 100% of the issued limited liability company
interests in the General Partner (the “Membership Interests”); such Membership
Interests are duly authorized and validly issued in accordance with the General
Partner Agreement and the holder of such Membership Interests has no obligation to
make any further payment for the purchase of such Membership Interests or
contributions to the Partnership or General Partner solely by reason of the
ownership of such Membership Interests (except as may be affected by matters
described in Sections 18-303, 18-607 and 18-804 of the Delaware Uniform Limited
Liability Company Act (the “Delaware LLC Act”)); and Xxxxxxxxx Energy, Inc. owns
such Membership Interests free and clear of all liens, encumbrances, security
interests, charges or claims (“Liens”), except as described in the Registration
Statement, the Prospectus and the Disclosure Package.
(iii) the General Partner has the requisite limited liability company power
and authority to act as the general partner of the Partnership in all material
respects as described in the Registration Statement, the Prospectus and the
Disclosure Package.
(iv) the General Partner is the sole general partner of the Partnership and
owns the General Partner’s 0.3% of the equity interest, as represented by 38,023
general partner units in the Partnership (the “GP Interest”); such GP Interest is
duly authorized and validly issued in accordance with the Partnership Agreement and
the General Partner owns such GP Interest and free and clear of all Liens.
(v) investment funds managed by Yorktown Partners LLC own 13,141,434 Common
Units after giving effect to conversion of all of the Series A convertible
preferred units of the Partnership into 1,068,376 Common Units; such Common Units
and the limited partner interests represented thereby have been duly authorized and
validly issued in accordance with the Partnership Agreement and the holders of such
Common Units have no obligation to make any further payments for the purchase of
such Common Units or contributions to the Partnership or the General Partner solely
by reason of the ownership of such Common Units
-26-
(except as may be affected by matters described in Sections 17-303, 17-607, and 17-804 of the Delaware LP Act);
and such investment funds own such Common Units free and clear of all Liens.
(vi) the Partnership Agreement has been duly authorized, executed and
delivered by the General Partner and is a valid and legally binding agreement of
the General Partner, enforceable against the General Partner in accordance with its
terms; provided, that, with respect to agreement, the enforceability thereof may be limited by (x) 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 (y) public policy, applicable law relating to fiduciary
duties and indemnification and an implied covenant of good faith and fair dealing.
(vii) the General Partner Agreement has been duly authorized, executed and
delivered by Xxxxxxxxx Energy, Inc. and is a valid and legally binding agreement of
Xxxxxxxxx Energy, Inc., enforceable against Xxxxxxxxx Energy, Inc. in accordance
with its terms; provided, that, with respect to agreement, the enforceability
thereof may be limited by (x) 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
(y) public policy, applicable law relating to fiduciary duties and indemnification
and an implied covenant of good faith and fair dealing.
(viii) each of the Partnership Parties and the Subsidiaries (all of which are
named in an exhibit to the Registration Statement) is validly existing as a
corporation, limited liability partnership or limited partnership, as the case may
be, in good standing under the laws of its respective jurisdiction of incorporation
with all necessary corporate power and authority to own or hold its respective
properties and to conduct its respective businesses as described in each of the
Registration Statement, the Prospectus and the Disclosure Package, and, in the case
of the Partnership Parties, to execute and deliver this Agreement and to consummate
the transactions described in this Agreement;
(ix) the Partnership Parties and the Subsidiaries are duly qualified or
licensed by each jurisdiction in which they conduct their respective businesses and
in which the failure to be so licensed would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect, and the Partnership
Parties and the Subsidiaries are duly qualified, and are in good standing, in each
jurisdiction in which they own or lease real property or maintain an office and in
which such qualification is necessary except where the failure to be so qualified
and in
-27-
good standing would not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect; except as disclosed in both the
Prospectus and the Disclosure Package, no Subsidiary is prohibited or restricted,
directly or indirectly, from paying dividends to the Partnership Parties, or from
making any other distribution with respect to such Subsidiary’s capital stock or
other equity interests or from repaying to the Partnership Parties or any other
Subsidiary any amounts which may from time to time become due under any loans or
advances to such Subsidiary from the Partnership Parties or such other Subsidiary, or from transferring
any such Subsidiary’s property or assets to the Partnership Parties or to any other
Subsidiary;
(x) to the knowledge of such counsel, the Partnership Parties and the
Subsidiaries are in compliance in all respects with all applicable laws, orders,
rules, regulations and orders, including those relating to transactions with
affiliates, except where the failure to be in compliance would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect;
(xi) to the knowledge of such counsel, neither of the Partnership Parties nor
any of the Subsidiaries is in violation of any term or provision of its
organizational documents, is in breach of, or in default under (nor has any event
occurred which with notice, lapse of time, or both would constitute a breach of, or
default under), any license, indenture, mortgage, deed of trust, loan or credit
agreement or any other agreement or instrument to which the Partnership Parties or
any of the Subsidiaries is a party or by which any of them or their respective
properties may be bound or affected or under any law, regulation or rule or any
decree, judgment or order applicable to the Partnership Parties or any of the
Subsidiaries, except such breaches or defaults which would not reasonably be
expected to have a Material Adverse Effect;
(xii) the execution, delivery and performance of this Agreement by the
Partnership Parties and the consummation by the Partnership Parties of the
transactions contemplated by this Agreement do not and will not (A) conflict with,
or result in any breach of, or constitute a default under (nor constitute any event
which with notice, lapse of time, or both would constitute a breach of or default
under), (i) any provisions of the organizational documents, certificate of
incorporation, charter or by-laws of the Partnership Parties or any Subsidiary,
including, without limitation, the Operating Agreements, (ii) any provision of any
license, indenture, mortgage, deed of trust, loan, credit or other agreement or
instrument to which the Partnership Parties or any Subsidiary is a party or by
which any of them or their respective properties, rights or assets may be bound or
affected, (iii) any law or regulation binding upon or applicable to the Partnership
Parties or any Subsidiary or any of their respective properties,
-28-
rights or assets, or (iv) any decree,
judgment or order applicable to the Partnership Parties or any Subsidiary; or (B)
result in the creation or imposition of any lien, charge, claim or encumbrance upon
any property, rights or assets of the Partnership Parties or the Subsidiaries,
except in the case of (A)(ii), (iii) and (iv) and (B) where such conflict, breach
or default would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect;
(xiii) this Agreement has been duly authorized, executed and delivered by the
Partnership Parties;
(xiv) no approval, authorization, consent or order of or filing with any
federal or state governmental or regulatory commission, board, body, authority or
agency is required in connection with the execution, delivery and performance of
this Agreement, the consummation of the transactions contemplated herein, and the
sale and delivery of the Units by the Partnership Parties as contemplated herein,
other than registration of the Units under the Securities Act and the Securities
Act Regulations and such consents, approvals, authorizations, registrations or
qualifications under the Exchange Act and Exchange Act Regulations, and except that
such counsel need express no opinion as to any necessary consents, approvals,
authorizations, registrations or qualification required by Nasdaq or FINRA, or
under the state securities or blue sky laws of the various jurisdictions in which
the Units are being offered by the Underwriters;
(xv) to such counsel’s knowledge, each of the Partnership Parties and the
Subsidiaries has all necessary material licenses, authorizations, consents and
approvals and has made all necessary filings required under any federal or state
law, regulation or rule, and has obtained all necessary authorizations, consents
and approvals from other persons, required to conduct their respective businesses,
as described in both the Prospectus and the Disclosure Package; to such counsel’s
knowledge, neither of the Partnership Parties nor any Subsidiary is in violation
of, in default under, or has received any notice regarding a possible violation,
default or revocation of any such material license, authorization, consent or
approval or any federal, state or foreign law, regulation or decree, order or
judgment applicable to the Partnership Parties or any of the Subsidiaries;
(xvi) the Partnership Parties are not subject to registration as an investment
company under the Investment Company Act of 1940, as
amended, and the transactions contemplated by this Agreement will not cause
the Partnership Parties to become an investment company subject to registration
under such Act;
-29-
(xvii) the Units have been duly authorized and when the Units have been issued
and duly delivered against payment therefor as contemplated by this Agreement, the
Units will be validly issued, and the holders of such Units will have no
obligations to make any further payment for the purchase of such Units or
contribution to the Partnership or General Partner solely by reason of the
ownership of such Units (except as may be affected by matters described in Sections
17-303, 17-607 and 17-804 of the Delaware LP Act), and the Underwriters will
acquire good and marketable title to the Units, free and clear of any pledge, lien,
encumbrance, security interest, or other claim pursuant to (A) any provisions of
the organizational documents, certificate of incorporation, charter or by-laws of
the Partnership Parties or any Subsidiary, including, without limitation, the
Operating Agreements or (B) any provision of any material license, indenture,
mortgage, deed of trust, loan, credit or other agreement or instrument to which the
Partnership Parties or any Subsidiary is a party or by which any of them or their
respective properties, rights or assets may be bound or affected;
(xviii) except as has been waived with respect to the offering contemplated by
this Agreement and as is described in the Prospectus and the Disclosure Package,
the issuance and sale of the Units by the Partnership is not subject to preemptive
or other similar rights arising by operation of law, under the organizational
documents of the Partnership Parties, including without limitation, the Operating
Agreements, or under any agreement filed as exhibits to the Registration Statement
or, to such counsel’s knowledge, otherwise;
(xix) to the knowledge of such counsel, there are no persons with registration
or other similar rights to have any equity or debt securities, including securities
that are convertible into or exchangeable for equity securities, registered
pursuant to the Registration Statement or otherwise registered by the Partnership
under the Securities Act, except for those registration or similar rights which
have been waived with respect to the offering contemplated by this Agreement;
(xx) the Units conform in all material respects to the descriptions thereof
contained or incorporated by reference in each of the Registration Statement, the
Prospectus and the Disclosure Package;
(xxi) based on a review of the Commission’s website, that the Registration
Statement has become effective under the Securities Act and no stop order
suspending the effectiveness of the Registration Statement
has been issued and, to the best of such counsel’s knowledge, no proceedings
with respect thereto have been commenced or threatened;
(xxii) as of each effective date of the Registration Statement, the
Registration Statement and the Prospectus (except as to the financial
-30-
statements,
notes and schedules thereto and other financial or accounting data contained
therein or any statistical data or information concerning coal reserves, as to
which such counsel need express no opinion) appear, on their face, to comply as to
form in all material respects with the requirements of the Securities Act, the
Exchange Act, the Securities Act Regulations and the Exchange Act Regulations;
(xxiii) the statements under the captions “Cash Distribution Policy and
Restrictions on Distributions”, “Business-Regulations and Laws”, “Conflicts of
Interest and Fiduciary Duties”, “Description the Common Units,” “The Partnership
Agreement”, “Units Eligible for Future Sale”, “Material Tax Consequences” and
“Certain ERISA Considerations” in both the Prospectus and the Disclosure Package,
insofar as such statements constitute a summary of the legal matters referred to
therein, constitute accurate summaries thereof in all material respects;
(xxiv) The opinion of Xxxxxxxxx Xxxxxxxx LLP 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.
(xxv) the 8-A Registration Statement, when filed with the Commission, complied
as to form in all material respects with the requirements of the Exchange Act; the
Form 8-A Registration Statement has become effective under the Exchange Act; and
the Initial Units and the Option Units have been validly registered under the
Securities Act, the Exchange Act and the Securities Act Regulations and the
Exchange Act Regulations;
(xxvi) there are no actions, suits or proceedings, inquiries, or
investigations pending or, to such counsel’s knowledge, threatened against the
Partnership Parties or any of the Subsidiaries or any of their respective executive
officers and directors, in such capacity, or to which the properties, assets or
rights of any such entity are subject, at law or in equity, before or by any
federal, state or foreign governmental or regulatory commission, board, body,
authority, arbitral panel or agency which are required to be described in the
Registration Statement, the Prospectus or the Disclosure Package but are not so
described; and
(xxvii) to such counsel’s knowledge, there are no contracts or documents of a
character which are required to be filed as exhibits to the Registration Statement
or required to be described or summarized in the Registration Statement, the
Prospectus or the Disclosure Package which
have not been so filed, summarized or described, and all such summaries and
descriptions, in all material respects, fairly and accurately set forth the
material provisions of such contracts and documents.
-31-
In rendering such opinion, Xxxxxxxxx Xxxxxxxx LLP may rely upon the opinion of Xxxxxx Xxxxx
PLLC with respect to the corporate status and capitalization of the Subsidiaries and may include
customary assumptions, qualifications and limitations.
In addition, such counsel shall state that they have participated in conferences with officers
and other representatives of the Partnership Parties, independent public accountants of the
Partnership, representatives of the Representatives, at which the contents of the Registration
Statement, the Prospectus and the documents constituting the Disclosure Package were discussed and,
although such counsel was not engaged to establish or confirm factual matters and has not
independently verified and is not passing upon and does not assume responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration Statement, the Prospectus
or the Disclosure Package (except as and to the extent stated in subparagraphs (xx), (xxii),
(xxiii), (xxv), (xxvi) and (xxvii) above), nothing has come to their attention which would lead
them to believe that (i) either the Registration Statement, at the time of any effective date
applicable thereto, contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements in the Registration
Statement not misleading; or (ii) the Prospectus, as of its date or at the Closing Time or any
Option Closing Time, as the case may be, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; or (iii) the Disclosure Package as of
the Initial Sale Time contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light of circumstances
under which they were made, not misleading (it being understood that such counsel need express no
belief as to the financial statements, notes or schedules or other financial or accounting data
derived therefrom, or any statistical data or any information concerning coal reserves, included in
the Registration Statement the Prospectus, the Disclosure Package or any amendments or supplements
thereto).
(b) On the date of this Agreement and at the Closing Time and each Option Closing Time (if
applicable), the Representatives shall have received from Ernst & Young LLP letters dated the
respective dates of delivery thereof and addressed to the Underwriters, in form and substance
satisfactory to the Representatives, containing statements and information of the type specified in
AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the
American Institute of Certified Public Accountants with respect to the financial statements,
including any pro forma financial statements, and certain financial information of the Partnership
and the Subsidiaries included in the Registration Statement, the Prospectus and the Disclosure
Package, and such other matters customarily covered by comfort letters issued in connection with
registered public offerings; provided, that the letters delivered at the Closing Time and each
Option Closing Time (if applicable) shall use a “cut-off” date no
more than three business days prior to such Closing Time or such Option Closing Time, as the
case may be.
In the event that the letters referred to above set forth any changes in indebtedness,
decreases in total assets or retained earnings or increases in borrowings, it
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shall be a further
condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a
written explanation of the Partnership as to the significance thereof, unless the Representatives
deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the
sole judgment of the Representatives, make it impractical or inadvisable to proceed with the
purchase and delivery of the Units as contemplated by the Registration Statement.
(c) The Representatives shall have received at the Closing Time and on each Option Closing
Time an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, dated the Closing Time or such Option Closing
Time, addressed to the Underwriters and in form and substance satisfactory to the Representatives.
(d) The Registration Statement shall have become effective not later than 5:00 p.m., New York
City time, on the date of this Agreement, or such later time and date as the Representatives shall
approve.
(e) No amendment or supplement to the Registration Statement, the Prospectus or any document
in the Disclosure Package shall have been filed to which the Underwriters shall have objected in
writing.
(f) Prior to the Closing Time and each Option Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement or any order preventing or suspending the use of the
Prospectus or any document in the Disclosure Package shall have been issued, and no proceedings for
such purpose shall have been initiated or threatened, by the Commission, and no suspension of the
qualification of the Units for offering or sale in any jurisdiction, or the initiation or
threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for
additional information on the part of the Commission shall have been complied with to the
reasonable satisfaction of the Representatives; (iii) the Registration Statement shall not contain
an untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the
Disclosure Package shall not contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(g) All filings with the Commission required by Rule 424 under the Securities Act to have been
filed by the Closing Time shall have been made within the applicable time period prescribed for
such filing by such Rule.
(h) Between the time of execution of this Agreement and the Closing Time or the relevant
Option Closing Time (i) there shall not have been any Material Adverse Change or any development
involving any prospective Material Adverse Change, and
(ii) no transaction which is material and unfavorable to the Partnership Parties shall have
been entered into by the Partnership Parties or any of the Subsidiaries, in each case, which in the
Representatives’ sole judgment, makes it impracticable or inadvisable to proceed with the public
offering of the Units as contemplated by the Registration Statement.
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(i) The Units shall have been approved for inclusion in the Nasdaq.
(j) FINRA shall not have raised any objection with respect to the fairness and reasonableness
of the underwriting terms and arrangements.
(k) The Representatives shall have received lock-up agreements from each officer, director of
the General Partnership, Xxxxxxxxx Energy, Inc. and 1% or greater unitholder of the Partnership, in
the form of Exhibit A attached hereto, and such letter agreements shall be in full force and
effect.
(l) The Partnership will, at the Closing Time and on each Option Closing Time, deliver to the
Underwriters a certificate of the Chief Executive Officer, President, Chief Operating Officer or
Vice President and Chief Accounting Officer or Chief Financial Officer of the General Partner, to
the effect that:
(i) the representations and warranties of the Partnership Parties and any
affiliate in this Agreement are true and correct, as if made on and as of the
Closing Time or any Option Closing Time, as applicable, and the Partnership Parties
have complied with all the agreements and satisfied all the conditions on its part
to be performed or satisfied at or prior to the Closing Time or any Option Closing
Time, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement
or any post-effective amendment thereto has been issued and no proceedings for that
purpose have been instituted or are pending or threatened under the Securities Act;
(iii) the signers of such certificate have carefully examined the Registration
Statement, the Prospectus, the Disclosure Package, any amendment or supplement
thereto, and this Agreement, and that when the Registration Statement became
effective and at all times subsequent thereto up to the Closing Time or any Option
Closing Time, as applicable, the Registration Statement and the Prospectus and the
Preliminary Prospectus, and any amendments or supplements thereto, contained all
material information required to be included therein by the Securities Act or the
Exchange Act and the applicable rules and regulations of the Commission thereunder,
as the case may be, and in all material respects conformed to the requirements of
the Securities Act or the Exchange Act and the applicable rules and regulations of
the Commission thereunder, as the case may be; the Registration Statement and any
amendments thereto, did not and, as of the Closing Time or any Option Closing Time,
as applicable, does not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
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statements therein not misleading and the Prospectus and the Disclosure Package,
and any amendments or supplements thereto, did not and as of the Closing Time or
any Option Closing Time, as applicable, do not include any 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, in the light of the circumstances under
which they were made, not misleading; and, since the effective date of the
Registration Statement, there has occurred no event required to be set forth in an
amendment or supplement to the Prospectus or the Disclosure Package which has not
been so set forth; and
(iv) subsequent to the respective dates as of which information is given in
the Registration Statement, the Prospectus and the Disclosure Package, there has
not been (a) any Material Adverse Change, (b) any transaction that is material to
the Partnership Parties and the Subsidiaries considered as one enterprise, except
transactions entered into in the ordinary course of business, (c) any obligation,
direct or contingent, that is material to the Partnership Parties and the
Subsidiaries considered as one enterprise, incurred by the Partnership Parties or
the Subsidiaries, except obligations incurred in the ordinary course of business,
(d) any change in the capital stock or other equity interests or outstanding
indebtedness of the Partnership Parties or any Subsidiary that is material to the
Partnership Parties and the Subsidiaries considered as one enterprise, (e) any
dividend or distribution of any kind declared, paid or made on the capital stock or
other equity interests of the Partnership Parties or any Subsidiary, or (f) any
loss or damage (whether or not insured) to the property of the Partnership Parties
or any subsidiary which has been sustained or will have been sustained which has a
Material Adverse Effect.
(m) On the date of this Agreement and on the Closing Date, Xxxx International, Inc. shall have
furnished to the Representatives, at the request of the Partnership, letters, dated the respective
dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably
satisfactory to the Representatives, containing statements and information with respect to the
estimated coal reserves of the Partnership and its subsidiaries contained in the Registration
Statement, the Disclosure Package and the Prospectus.
(n) The Representatives shall have received on the date of this Agreement a certificate of the
Chief Financial Officer of the General Partner, substantially in the form of Exhibit D hereto.
(o) The Partnership Parties shall have furnished to the Underwriters such other documents and
certificates as to the accuracy and completeness of any statement in the Registration Statement,
the Prospectus and the Disclosure Package, the representations, warranties and statements of the
Partnership Parties contained herein, and the
performance by the Partnership Parties of their covenants contained herein, and the
fulfillment of any conditions contained herein, as of the Closing Time or any Option Closing Time,
as the Underwriters may reasonably request.
7. Termination:
The obligations of the several Underwriters hereunder shall be subject to termination in the
absolute discretion of the Representatives, at any time prior to the
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Closing Time or any Option
Closing Time, (i) if any of the conditions specified in Section 6 shall not have been fulfilled
when and as required by this Agreement to be fulfilled, or (ii) if there has been since the
respective dates as of which information is given in the Registration Statement, the Prospectus or
the Disclosure Package, any Material Adverse Change, or any development involving a prospective
Material Adverse Change, or material change in management of the Partnership Parties or any
Subsidiary, whether or not arising in the ordinary course of business, or (iii) if there has
occurred any outbreak or escalation of hostilities or other national or international calamity or
crisis or change in economic, political or other conditions, the effect of which on the United
States or international financial markets is such as to make it, in the judgment of the
Representatives, impracticable to market the Units or enforce contracts for the sale of the Units,
or (iv) if trading in any securities of the Partnership has been suspended by the Commission or by
the Nasdaq, or if trading generally on the New York Stock Exchange or in the over-the-counter
market has been suspended (including an automatic halt in trading pursuant to market-decline
triggers, other than those in which solely program trading is temporarily halted), or limitations
on prices for trading (other than limitations on hours or numbers of days of trading) have been
fixed, or maximum ranges for prices for securities have been required, by such exchange or FINRA or
the over-the-counter market or by order of the Commission or any other governmental authority, or
(v) any action has been taken by any federal, state, local or foreign government or agency in
respect of its monetary or fiscal affairs which, in the reasonable opinion of the Representatives,
could reasonably be expected to have a material adverse effect on the securities markets in the
United States.
If the Representatives elects to terminate this Agreement as provided in this Section 7, the
Partnership and the Underwriters shall be notified promptly by telephone, promptly confirmed by
facsimile.
If the sale to the Underwriters of the Units, as contemplated by this Agreement, is not
carried out by the Underwriters for any reason permitted under this Agreement or if such sale is
not carried out because the Partnership Parties shall be unable to comply in all material respects
with any of the terms of this Agreement, the Partnership shall not be under any obligation or
liability under this Agreement (except to the extent provided in Sections 5 and 9 hereof) and the
Underwriters shall be under no obligation or liability to the Partnership Parties under this
Agreement (except to the extent provided in Section 9 hereof) or to one another hereunder.
8. Increase in Underwriters’ Commitments:
If any Underwriter shall default at the Closing Time or on any Option Closing Time in its
obligation to take up and pay for the Units to be purchased by it under this Agreement on such
date, the Representatives shall have the right, within 36 hours after such default, to make
arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Units which such Underwriter shall have agreed but
failed to take up and pay for (the “Defaulted Units”). Absent the completion of such arrangements
within such 36-hour period, (i) if the total number of Defaulted Units does not exceed 10% of the
total number of Units to be
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purchased on such date, each non-defaulting Underwriter shall take up
and pay for (in addition to the number of Units which it is otherwise obligated to purchase on such
date pursuant to this Agreement) the portion of the total number of Units agreed to be purchased by
the defaulting Underwriter on such date in the proportion that its underwriting obligations
hereunder bears to the underwriting obligations of all non-defaulting Underwriters; and (ii) if the
total number of Defaulted Units exceeds 10% of such total, the Representatives may terminate this
Agreement by notice to the Partnership, without liability of any party to any other party except
that the provisions of Sections 5 and 9 hereof shall at all times be effective and shall survive
such termination.
Without relieving any defaulting Underwriter from its obligations hereunder, the Partnership
agrees with the non-defaulting Underwriters that it will not sell any Units hereunder on such date
unless all of the Units to be purchased on such date are purchased on such date by the Underwriters
(or by substituted Underwriters selected by the Representatives with the approval of the
Partnership or selected by the Partnership with the approval of the Representatives).
If a new Underwriter or Underwriters are substituted for a defaulting Underwriter in
accordance with the foregoing provision, the Partnership or the non-defaulting Underwriters shall
have the right to postpone the Closing Time or the relevant Option Closing Time for a period not
exceeding five business days in order that any necessary changes in the Registration Statement and
Prospectus and other documents may be effected.
The term “Underwriter” as used in this Agreement shall refer to and include any Underwriter
substituted under this Section 8 with the same effect as if such substituted Underwriter had
originally been named in this Agreement.
9. Indemnity and Contribution by the Partnership Parties and the Underwriters:
(a) The Partnership Parties agree to indemnify, defend and hold harmless each Underwriter and
any person who controls any Underwriter within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, and the respective directors, officers, employees and agents of
each Underwriter from and against any loss, expense, liability, damage or claim (including the
reasonable cost of investigation) which, jointly or severally, any such Underwriter or controlling
person may incur under the Securities
Act, the Exchange Act or otherwise, insofar as such loss, expense, liability, damage or claim
arises out of or is based upon (A) any breach of any representation, warranty or covenant of the
Partnership Parties contained herein, (B) any failure on the part of the Partnership Parties to
comply with any applicable law, rule or regulation relating to the offering of securities being
made pursuant to the Prospectus, (C) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment), any Issuer Free Writing Prospectus
that either of the Partnership Parties has filed or was required to file with the Commission or is
otherwise required retain, or the Prospectus (the term Prospectus for the purpose of this Section 9
being deemed to include any Preliminary Prospectus, the Prospectus and
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the Prospectus as amended or
supplemented by the Partnership), or any written Section 5(d) Communication, (D) any application or
other document, or any amendment or supplement thereto, executed by the Partnership Parties or
based upon written information furnished by or on behalf of the Partnership Parties filed in any
jurisdiction (domestic or foreign) in order to qualify the Units under the securities or blue sky
laws thereof or filed with the Commission or any securities association or securities exchange
(each an “Application”), (E) any omission or alleged omission to state a material fact required to
be stated in any such Registration Statement, or necessary to make the statements made therein not
misleading, (F) any omission or alleged omission from any such Issuer Free Writing Prospectus,
Prospectus, any written Section 5(d) Communication or any Application of a material fact necessary
to make the statements made therein, in the light of the circumstances under which they were made,
not misleading, (G) any untrue statement or alleged untrue statement of any material fact contained
in any audio or visual materials used in connection with the marketing of the Units, including,
without limitation, slides, videos, films and tape recordings, provided that in each case such
materials shall have been prepared or reviewed by and not objected to by the Partnership Parties;
except, in the case of (C), (E) and (F) above only, insofar as any such loss, expense, liability,
damage or claim arises out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in and in conformity with information
furnished in writing by the Underwriters through the Representatives to the Partnership expressly
for use in such Registration Statement, Prospectus, any written Section 5(d) Communication or
Application. The indemnity agreement set forth in this Section 9(a) shall be in addition to any
liability which the Partnership Parties may otherwise have.
The Partnership
Parties agree to indemnify, defend and hold harmless each Underwriter and any person who controls any
Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
and the respective directors, officers, employees and agents of each
Underwriter (the “Entities”) from and against any loss, expense, liability, damage or claim (including
the reasonable cost of investigation) which, jointly or severally, any such Underwriter or controlling person may
incur under the Securities Act, the Exchange Act or otherwise, insofar as such loss, expense, liability,
damage or claim (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 either of the Partnership Parties
for distribution to Directed Share Participants in connection with the Directed Share 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, or is based upon, the failure of the Directed Share Participant to
pay for and accept delivery of Directed Shares that the Directed Share Participant agreed to purchase or (iii)
is otherwise related to the Directed Share Program; provided that the Partnership Parties shall
not be liable under this clause (iii) for any loss, claim, damage, liability or action that is determined
in a final judgment by a court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of the Entities. The Partnership shall reimburse the Entities promptly upon demand for
any legal or other expenses reasonably incurred by them in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred.
If any action is brought against an Underwriter or controlling person in respect of which
indemnity may be sought against the Partnership Parties pursuant to subsection (a) above, such
Underwriter shall promptly notify the Partnership Parties in writing of the institution of such
action, and the Partnership shall assume the defense of such action, including the employment of
counsel and payment of expenses; provided, however that any failure or delay to so notify the
Partnership Parties will not relieve the Partnership Parties of any obligation hereunder, except to
the extent that its ability to defend is actually impaired by such failure or delay. Such
Underwriter or controlling person shall have the right to employ its or their own counsel in any
such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter or
such controlling person unless the employment of such counsel shall have been authorized in writing
by the Partnership Parties in connection with the defense of such action, or the Partnership
Parties shall not have employed counsel to have charge of the defense of such action within a
reasonable time or such indemnified party or parties shall have reasonably concluded (based on the
advice of counsel) that there may be defenses available to it or them which are different from or
additional to those available to the Partnership Parties (in which case the Partnership Parties
shall not have the right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the Partnership Parties
and paid as incurred (it being understood, however, that the Partnership Parties shall not be
liable for the expenses of more than one separate firm of attorneys for the Underwriters or
controlling persons in any one action or series of related actions in the same jurisdiction (other
than local
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counsel in any such jurisdiction) representing the indemnified parties who are parties
to such action). Anything in this paragraph to the contrary notwithstanding, the Partnership
Parties shall not be liable for any settlement of any such claim or action effected without its
consent, which consent shall not be unreasonably withheld or delayed.
(b) Each Underwriter agrees, severally and not jointly, to indemnify, defend and hold harmless
the Partnership Parties, the General Partner’s directors, the General Partner’s officers that
signed the Registration Statement, and any person who controls the Partnership Parties within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any
loss, expense, liability, damage or claim (including the reasonable cost of investigation) which
the Partnership Parties or any such person may incur under the Securities Act, the Exchange Act or
otherwise, insofar as such loss, expense, liability, damage or claim arises out of or is based upon
(A) any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment), any Issuer Free Writing Prospectus that the Partnership
has filed or was required to file with the Commission, or the Prospectus, or any written Section
5(d) Communication or any Application, (B) any omission or alleged omission to state a material
fact required to be stated in any such Registration Statement, or necessary to make the statements
made therein not misleading, or (C) any omission or alleged omission from any such Issuer Free
Writing Prospectus, Prospectus, any written Section 5(d) Communication or any Application of a
material fact necessary to make the statements made therein, in the light of the circumstances
under which they were made, not misleading, but in each case only insofar as such untrue statement
or alleged untrue statement or omission or alleged omission was made in such Registration
Statement, Issuer Free Writing Prospectus, Prospectus, any written Section 5(d) Communication or
Application in reliance upon and in conformity with information furnished in writing by the
Underwriters through the Representatives to the Partnership expressly for use therein. The
statements set forth in the paragraphs identified by “Stabilization” under the caption
“Underwriting” and the fourth paragraph under the caption “Underwriting” in the Preliminary
Prospectus, the Disclosure Package and the Prospectus (to the extent such statements relate to the
Underwriters) constitute the only information furnished by or on behalf of any Underwriter through
the Representatives to the Partnership for purposes of Section 3(l) and Section 3(m) and this
Section 9.
If any action is brought against the Partnership Parties, or any such person in respect of
which indemnity may be sought against any Underwriter pursuant to the foregoing paragraph, the
Partnership Parties or such person shall promptly notify the Representatives in writing of the
institution of such action and the Representatives, on behalf of the Underwriters, shall assume the
defense of such action, including the employment of counsel and payment of expenses. The
Partnership Parties or such person shall have the right to employ its own counsel in any such case,
but the fees and expenses of such counsel shall be at the expense of the Partnership or such person
unless the employment of such counsel shall have been authorized in writing by the Representatives
in connection with the defense of such action or the Representatives shall not have employed
counsel to have charge of the defense of such action within a reasonable time or such indemnified
party or parties shall have reasonably concluded (based on the advice of counsel) that there may be
defenses available to it or them which are different
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from or additional to those available to the
Underwriters (in which case the Representatives shall not have the right to direct the defense of
such action on behalf of the indemnified party or parties), in any of which events such fees and
expenses shall be borne by such Underwriter and paid as incurred (it being understood, however,
that the Underwriters shall not be liable for the expenses of more than one separate firm of
attorneys in any one action or series of related actions in the same jurisdiction (other than local
counsel in any such jurisdiction) representing the indemnified parties who are parties to such
action). Anything in this paragraph to the contrary notwithstanding, no Underwriter shall be
liable for any settlement of any such claim or action effected without the written consent of the
Representatives, which consent shall not be unreasonably withheld or delayed.
(c) If the indemnification provided for in this Section 9 is unavailable or insufficient to
hold harmless an indemnified party under subsections (a) and (b) of this Section 9 in respect of
any losses, expenses, liabilities, damages or claims referred to therein, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, expenses, liabilities,
damages or claims (i) in such proportion as is appropriate to reflect the relative benefits
received by the Partnership Parties on the one hand, and the Underwriters on the other hand from
the offering of the Units or (ii) if (but only if) the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of the Partnership
Parties on the one hand, and of the Underwriters on the other hand, in connection with the
statements or omissions which resulted in such losses, expenses, liabilities, damages or claims, as
well as any other relevant equitable considerations. The relative benefits received by the
Partnership Parties on the one hand, and the Underwriters on the other hand shall be deemed to be
in the same proportion as the total proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Partnership bear to the underwriting
discounts and commissions received by the Underwriters. The relative fault of the Partnership
Parties on the one hand, and of the Underwriters on the other hand, shall be determined by
reference to, among other things, whether the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission relates to information supplied by the Partnership
Parties or by the
Underwriters and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid or payable by a
party as a result of the losses, claims, damages and liabilities referred to above shall be deemed
to include any legal or other fees or expenses reasonably incurred by such party in connection with
investigating or defending any claim or action.
(d) The Partnership Parties and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in subsection (c)(i) and,
if applicable (ii), above. Notwithstanding the provisions of this Section 9, no Underwriter shall
be required to
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contribute any amount in excess of the underwriting discounts and commissions
applicable to the Units purchased by such Underwriter. 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 pursuant to this Section 9 are several in proportion to
their respective underwriting commitments and not joint.
10. Survival:
The respective indemnity and contribution agreements and the covenants, warranties and
representations of the Partnership Parties and the Underwriters contained in this Agreement shall
remain in full force and effect regardless of any investigation made by or on behalf of any
Underwriter, or any person who controls any Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, and the respective directors, officers, employees
and agents of each Underwriter or by or on behalf of the Partnership Parties, the General Partners
directors and officers, or any person who controls the Partnership Parties within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, and shall survive any
termination of this Agreement or the sale and delivery of the Units. The Partnership Parties and
each Underwriter agree promptly to notify the others of the commencement of any litigation or
proceeding against it and, in the case of the Partnership Parties, against any of the General
Partner’s officers and directors, in connection with the sale and delivery of the Units, or in
connection with the Registration Statement or Prospectus.
11. Duties:
Nothing in this Agreement shall be deemed to create a partnership, joint venture or agency
relationship between the parties. The Underwriters undertake to perform such duties and
obligations only as expressly set forth herein. Such duties and obligations of the Underwriters
with respect to the Units shall be determined solely by the express provisions of this Agreement,
and the Underwriters shall not be liable except for the performance of such duties and obligations
with respect to the Units as are specifically set forth in this Agreement. The Partnership Parties
acknowledge and agree that: (i) the purchase and sale of the Units pursuant to this Agreement,
including the determination of the public offering price of the Units and any related discounts and
commissions, is an
arm’s-length commercial transaction between the Partnership Parties, on the one hand, and the
several Underwriters, on the other hand, and the Partnership Parties are capable of evaluating and
understanding and understands and accepts the terms, risks and conditions of the transactions
contemplated by this Agreement; (ii) in connection with each transaction contemplated hereby and
the process leading to such transaction each Underwriter is and has been acting solely as a
principal and is not the financial advisor, agent or fiduciary of the Partnership Parties or their
affiliates, unitholders, creditors or employees or any other party; (iii) no Underwriter has
assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Partnership
Parties with respect to any of the transactions contemplated hereby or the process leading thereto
(irrespective of whether such Underwriter has advised or is currently advising the Partnership
Parties on other matters); and (iv) the several Underwriters and their
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respective affiliates may be
engaged in a broad range of transactions that involve interests that differ from those of the
Partnership Parties and that the several Underwriters have no obligation to disclose any of such
interests. The Partnership Parties acknowledge that the Underwriters disclaim any implied duties
(including any fiduciary duty), covenants or obligations arising from the Underwriters’ performance
of the duties and obligations expressly set forth herein. The Partnership Parties hereby waive and
release, to the fullest extent permitted by law, any claims that the Partnership Parties may have
against the several Underwriters with respect to any breach or alleged breach of agency or
fiduciary duty.
12. Research Analyst Independence:
The Partnership Parties acknowledge that (a) the Underwriters’ research analysts and research
departments are required to be independent from their respective investment banking divisions and
are subject to certain regulations and internal policies and (b) the Underwriters’ research
analysts may hold views and make statements or investment recommendations and/or publish research
reports with respect to the Partnership Parties, the value of the Common Units and/or the offering
that differ from the views of their respective investment banking divisions. The Partnership
Parties hereby waive and release, to the fullest extent permitted by law, any claims that it may
have against the Underwriters with respect to any conflict of interest that may arise from the fact
that the views expressed by the Underwriters’ independent research analysts and research
departments may be different from or inconsistent with the views or advice communicated to the
Partnership Parties by any Underwriter’s investment banking division. The Partnership Parties
acknowledge that each of the Underwriters is a full service securities firm and as such, from time
to time, subject to applicable securities laws, may effect transactions for its own account or the
account of its customers and hold long or short positions in debt or equity securities of the
companies that are the subject of the transactions contemplated by this Agreement.
13. Notices:
Except as otherwise herein provided, all statements, requests, notices and agreements shall be
in writing or by telegram and, if to the Underwriters, shall be sufficient in all respects if
delivered to Xxxxxxx Xxxxx & Associates, Inc., 000 Xxxxxxxx
Xxxxxxx, Xxxxx Xxxxxxxxxx, XX 00000, Attention: ECM Counsel, and to FBR Capital Markets & Co.,
0000 00xx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Syndicate Department; if to the
Partnership Parties, shall be sufficient in all respects if delivered to the Partnership at the
offices of the Partnership at 0000 Xxxxxxx Xxxxxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000,
Attention: Xxxxxx X. Xxxxxx..
14. Governing Law; Headings:
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. The section headings in this
Agreement have been inserted as a matter of convenience of reference and are not a part of this
Agreement.
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15. Parties at Interest:
The Agreement herein set forth has been and is made solely for the benefit of the
Underwriters, the Partnership Parties and the controlling persons, directors and officers referred
to in Sections 9 and 10 hereof, and their respective successors, assigns, executors and
administrators. No other person, partnership, association or corporation (including a purchaser,
as such purchaser, from any of the Underwriters) shall acquire or have any right under or by virtue
of this Agreement.
16. Counterparts and Facsimile Signatures:
This Agreement may be signed by the parties in counterparts which together shall constitute
one and the same agreement among the parties. A facsimile signature shall constitute an original
signature for all purposes.
-43-
If the foregoing correctly sets forth the understanding among the Partnership Parties and the
Underwriters, please so indicate in the space provided below for the purpose, whereupon this
Agreement shall constitute a binding agreement among the Partnership Parties and the Underwriters.
| Very truly yours, | ||||||
| XXXXXXXXX RESOURCE PARTNERS, L.P. | ||||||
| By: | Elk Creek GP, LLC, is General Partner | |||||
| By: | ||||||
| Title: | ||||||
| ELK CREEK GP, LLC | ||||||
| By: | ||||||
| Title: | ||||||
Accepted and agreed to as
of the date first above written:
of the date first above written:
XXXXXXX XXXXX & ASSOCIATES, INC.
By: |
||||
| Title: |
For itself and as Representative of the other
Underwriters named on Schedule II hereto.
Underwriters named on Schedule II hereto.
FBR CAPITAL MARKETS & CO.
By: |
||||
| Title: |
For itself and as Representative of the other
Underwriters named on Schedule II hereto.
Underwriters named on Schedule II hereto.
[Signature Page to the Underwriting Agreement]
Schedule I
| Number of Initial | Number of Option | |||
| Name of Party Selling Units | Units to be Sold | Units to be Sold | ||
Xxxxxxxxx Resource Partners, L.P.
|
[ ] | [ ] | ||
Total
|
[ ] | [ ] | ||
Schedule II
| Number of Initial | |||
| Underwriter | Units to be Purchased | ||
Xxxxxxx Xxxxx & Associates, Inc.
|
[ | ] | |
FBR Capital Markets & Co.
|
[ | ] | |
Xxxxxx, Xxxxxxxx & Company, Incorporated
|
[ | ] | |
Total
|
[ | ] | |
Schedule III
(a) Issuer Free Writing Prospectuses:
Free Writing Prospectus of the Partnership filed with the Securities and Exchange Commission
4/17/12
(b) Section 5(d) Communications
None
Schedule IV
Subsidiaries of the Partnership
Exhibit A
Form of Lock-Up Letter
Form of Lock-Up Letter
[ ], 2012
XXXXXXX XXXXX & ASSOCIATES, INC.
FBR CAPITAL MARKETS & CO.
as Representatives of the several Underwriters
c/o Raymond Xxxxx & Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxx Xxxxxxxxxx, XX 00000
FBR CAPITAL MARKETS & CO.
as Representatives of the several Underwriters
c/o Raymond Xxxxx & Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxx Xxxxxxxxxx, XX 00000
Dear Sirs:
The undersigned understands that Xxxxxxx Xxxxx & Associates, Inc. (“Xxxxxxx Xxxxx”) and FBR
Capital Markets & Co. (“FBRC”, and together with Xxxxxxx Xxxxx, the “Representatives”) and
potentially other underwriters (together with the Representatives, the “Underwriters”) propose to
enter into an Underwriting Agreement (the “Underwriting Agreement”) with Xxxxxxxxx Resource
Partners, L.P., a Delaware limited partnership (the “Partnership”), providing for the public
offering (the “Public Offering”) by the Underwriters of common units representing limited partner
interests in the Partnership (“Common Units”).
To induce the Underwriters to continue their efforts in connection with the Public Offering,
the undersigned hereby irrevocably agrees that, without the prior written consent of the
Representatives on behalf of the Underwriters, the undersigned will not, directly or indirectly,
during the period commencing on the date hereof and ending on the day that is 180 days after the
date of the final prospectus relating to the Public Offering (the “Prospectus”), (i) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase or otherwise dispose of or transfer (or enter
into any transaction or device which is designed to, or would be expected to, result in the
disposition by any person at any time in the future of) any Common Units or any security
convertible into, exercisable for or exchangeable for Common Units (collectively, “Other
Securities”) (whether any such share or any such security is now owned by the undersigned or is
hereafter acquired) or (ii) enter into any swap or any other arrangement or transaction that
transfers to another person, in whole or in part, any of the economic consequences of ownership of
Common Units, whether any such swap or transaction described in clause (i) or (ii) above is to be
settled by delivery of Common Units or Other Securities, in cash or otherwise, or (iii) make any
demand for or exercise any right or cause to be filed a registration statement under the Securities
Act of 1933, as amended, including any amendment thereto, with respect to the registration of any
Common Units or securities convertible into, exercisable for or exchangeable for Common Units or
any other security of the Partnership or (iv) publicly disclose the intention to do any of the
foregoing.
The 180-day restricted period described in the preceding paragraph will be extended if:
E-A-1
| • | during the last 17 days of the 180-day restricted period the Partnership issues an earnings release or material news or a material event relating to the Partnership occurs or | ||
| • | prior to the expiration of the 180-day restricted period, the Partnership announces that it will release earnings results during the 16-day period beginning on the last day of the 180-day restricted period; |
in which case the restrictions described in the preceding paragraph will continue to apply until
the expiration of the 18-day period beginning on the issuance of the earnings release or the
announcement of the material news or material event, unless such extension is waived in writing by
the Representatives.
In furtherance of the foregoing, the Partnership and its transfer agent are hereby authorized
to decline to make any transfer of securities owned or held by the undersigned if such transfer
would constitute a violation or breach of this Lock-Up Agreement.
Notwithstanding the foregoing, the undersigned may transfer Common Units or Other Securities
of the Partnership without the prior written consent of the Representatives on behalf of the
Underwriters (i) as a bona fide gift or gifts, provided that prior to such transfer the donee or
donees thereof agree in writing to be bound by the restrictions set forth herein, (ii) to any
trust, partnership, corporation or other entity formed for the direct or indirect benefit of the
undersigned or the immediate family of the undersigned, provided that prior to such transfer a duly
authorized officer, representative or trustee of such transferee agrees in writing to be bound by
the restrictions set forth herein, and provided further that any such transfer shall not involve a
disposition for value or (iii) if such transfer occurs by operation of law (e.g., pursuant to the
rules of descent and distribution, statutes governing the effects of a merger or a qualified
domestic relations order), provided that prior to such transfer the transferee executes an
agreement stating that the transferee is receiving and holding the Common Units subject to the
provisions of this Lock-Up Agreement; [(iv) in connection with the tender to Yorktown Partners LLC
of any Common Units granted pursuant to Unit Grants for the purpose of satisfying a tax liability
incurred as a result of such Unit Grants]; and provided, further, that in the case of any transfer
or distribution pursuant to clause (i), (ii) or (iii) that no filing by the undersigned or any
recipient of the Common Units transferred, in each case, under Section 16(a) of the Exchange Act,
or other public announcement shall be required or shall be made voluntarily in connection with such
transfer or distribution during the 180-day period referred to above (as such period may be
extended). For purposes hereof, “immediate family” shall mean any relationship by blood, marriage
or adoption, not more remote than first cousin.
No provision in this Lock-Up Agreement shall be deemed to restrict or prohibit the exercise or
exchange by the undersigned of any option or warrant to acquire the Common Units, or securities
exchangeable or exercisable for or convertible into Common Units, provided that the undersigned
does not transfer the Common Units acquired on such exercise or exchange during the 180-day
restricted period unless otherwise permitted pursuant to this Lock-Up Agreement. In addition, no
provision herein shall be deemed to restrict or prohibit the establishment or modification of a
so-called “10b5-1” plan at any time (other than the entry into
or modification of such a plan in such manner as to cause the sale of any Common Units or any
E-A-2
securities convertible into or exercisable or exchangeable for Common Units within such 180-day
restricted period; provided, that no filing by the undersigned or any recipient of the Common Units
transferred, in each case, under Section 16(a) of the Exchange Act, or other public announcement
shall be required or shall be made voluntarily in connection with such transfer or distribution
during the 180-day period referred to above (as such period may be extended).
The undersigned understands that the Partnership and the Underwriters will proceed with the
Public Offering in reliance on this Lock-Up Agreement.
Whether or not the Public Offering actually occurs depends on a number of factors, including
market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the
terms of which are subject to agreement between the Partnership, its general partner and the
Underwriters. The terms of this Lock-Up Agreement shall expire in the event the Public Offering of
the Common Units is not consummated on or before [ ], 2012.
If the undersigned is an officer or director of the general partner of Partnership, (i) each
of Xxxxxxx Xxxxx & Associates, Inc. and FBR Capital Markets & Co., on behalf of the Underwriters
agrees that, at least three business days before the effective date of any release or waiver of the
foregoing restrictions in connection with a transfer of Common Units, each of Xxxxxxx Xxxxx &
Associates, Inc. and FBR Capital Markets & Co., on behalf of the Underwriters will notify the
Partnership of the impending release or waiver, and (ii) the Partnership has agreed in the
Underwriting Agreement to announce the impending release or waiver by press release through a major
news service at least two business days before the effective date of the release or waiver. Any
release or waiver granted by each of Xxxxxxx Xxxxx & Associates, Inc. and FBR Capital Markets & Co.
on behalf of the Underwriters hereunder to any such officer or director shall only be effective two
business days after the publication date of such press release. The provisions of this paragraph
will not apply if (a) the release or waiver is effected solely to permit a transfer not for
consideration and (b) the transferee has agreed in writing to be bound by the same terms described
in this letter to the extent and for the duration that such terms remain in effect at the time of
the transfer.
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this Lock-Up 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.
This Lock-up Agreement shall be governed by and construed in accordance with the laws of the
State of New York without regard to principles of conflict of laws.
This Lock-up Agreement may be executed in one or more counterparts and delivered by facsimile,
each of which shall be deemed to be an original but all of which shall constitute one and the same
agreement.
[Signature Page Follows]
E-A-3
IN WITNESS WHEREOF, the undersigned has executed this Lock-up Agreement, or caused this
Lock-up Agreement to be executed, as of the date first written above.
| Very truly yours, | ||||
| Title: | ||||
| (Address) |
Accepted and agreed to as
of the date first above written:
of the date first above written:
XXXXXXX XXXXX & ASSOCIATES, INC.
By: |
||||
Title:
|
For itself and as Representative of the other Underwriters
FBR CAPITAL MARKETS & CO.
By: |
||||
Title:
|
For itself and as Representative of the other Underwriters
[Signature Page to the Lock-Up Agreement]
Exhibit B
Form of Waiver of Lock-up
Form of Waiver of Lock-up
XXXXXXX XXXXX & ASSOCIATES, INC.
FBR CAPITAL MARKETS & CO.
FBR CAPITAL MARKETS & CO.
Xxxxxxxxx Resource Partners, L.P.
Public Offering of Common Units
, 20__
Public Offering of Common Units
, 20__
[Name and Address of
Officer or Director
Requesting Waiver]
Officer or Director
Requesting Waiver]
Dear Mr./Ms. [Name]:
This letter is being delivered to you in connection with the offering by Xxxxxxxxx Resource
Partners, L.P. (the “Partnership”) of common units representing limited partner interests (the
“Common Units”) in the Partnership and the lock-up letter dated , 2012 (the
“Lock-up Letter”), executed by you in connection with such offering, and your request for a
[waiver] [release] dated , 20 , with respect to Common Units (the “Units”).
Xxxxxxx Xxxxx & Associates, Inc. and FBR Capital Markets & Co. hereby agree to [waive] [release]
the transfer restrictions set forth in the Lock-up Letter, but only with respect to the Units,
effective , 20[ ]; provided, however, that such [waiver] [release] is conditioned on
the Partnership announcing the impending [waiver] [release] by press release through a major news
service at least two business days before effectiveness of such [waiver] [release]. This letter
will serve as notice to the Partnership of the impending [waiver] [release].
Except as expressly [waived] [released] hereby, the Lock-up Letter shall remain in full force and
effect.
| Yours very truly, | ||||||
| XXXXXXX XXXXX & ASSOCIATES, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| FBR CAPITAL MARKETS & CO. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
cc: Xxxxxxxxx Resource Partners, L.P.
E-B-5
Exhibit C
Form of Press Release
Form of Press Release
Xxxxxxxxx Resource Partners, L.P.
[Date]
[Date]
Xxxxxxxxx Resource Partners, L.P. (the “Partnership”) announced today that Xxxxxxx Xxxxx &
Associates, Inc. and FBR Capital Markets & Co., the lead book-running managers in the
Partnership’s recent public sale of Common Units, is [waiving] [releasing] a lock-up restriction
with respect to Common Units of the Partnership held by [certain officers or directors] [an officer
or director] of the Partnership. The [waiver] [release] will take effect on , 20 , and the common
units may be sold on or after such date.
This press release is not an offer for sale of the securities in the United States or in any other
jurisdiction where such offer is prohibited, and such securities may not be offered or sold in the
United States absent registration or an exemption from registration under the United States
Securities Act of 1933, as amended.
E-C-6
Exhibit D
Form of CFO Certificate
Form of CFO Certificate
CHIEF FINANCIAL OFFICER’S CERTIFICATE
[ ], 2012
[ ], 2012
The undersigned, J. Xxxxxxx Xxxx, the duly appointed Senior Vice President, Finance and
Administration and Chief Financial Officer of Elk Creek GP, LLC, a Delaware limited liability
company (the “General Partner”), the general partner of Xxxxxxxxx Resource Partners, L.P., a
Delaware limited partnership (the “Partnership”, together with the General Partner, the
“Partnership Parties”), in connection with the initial public offering of the common units
representing limited partner interest (the “Common Units”) in the Partnership, and pursuant to
Section 6([n]) of the Underwriting Agreement (the “Underwriting Agreement”), dated [ ],
2012, among the Partnership, and Xxxxxxx Xxxxx & Associates, Inc. and FBR Capital Markets & Co.
(the “Representatives”), as representatives of the several underwriters named in Schedule II
thereto (the “Underwriters”), hereby certifies in his capacity as the chief financial officer of
the General Partner, on behalf of the Partnership Parties, that, as of the date hereof, the
undersigned has specific knowledge of the Partnership Parties’ financial matters, and, based on his
examination of the Partnership Parties’ financial records and schedules undertaken by himself or
members of his staff who are responsible for the Partnership Parties’ financial accounting matters,
hereby further certifies that:
| 1. | The undersigned has (i) reviewed the Preliminary Prospectus dated [ ], 2012 (the “Preliminary Prospectus”) relating to the offering of the Common Units and the Prospectus dated [ ], 2012 (the “Prospectus”) relating to the offering of the Common Units, (ii) supervised the compilation of the financial data and information included in the Preliminary Prospectus and the Prospectus and (iii) read the Partnership’s financial statements, books and records or schedules or analyses derived therefrom that the undersigned has deemed necessary to make the certifications and to perform the procedures set forth herein. | ||
| 2. | The financial and statistical data and information contained in the Preliminary Prospectus and the Prospectus (the “Financial Data”) (a) are derived from the internal accounting records of the Partnership, (b) are prepared on a basis substantially consistent with the audited financial statements of the Partnership included in the Preliminary Prospectus and the Prospectus, and (c) present fairly, in all material respects, the financial position, results of operations and operational performance of the Partnership as of and for the periods presented. | ||
| 3. | There were no changes in the Partnership Parties’ internal control over financial reporting subsequent to the fiscal quarter and year ended December 31, 2010 that have materially affected, or are reasonably likely |
E-D-7
| to materially affect, the Partnership Parties’ internal control over financial reporting. | |||
| 4. | The undersigned has read the items identified on the attached selected pages of the Preliminary Prospectus attached hereto as Annex A, and has performed the following procedures which were applied as indicated with respect to the letters explained below: |
| A. | Compared the ranges or numbers identified to the amounts included in the Partnership’s accounting records and found such amounts to be in agreement. | ||
| B. | Compared the ranges or numbers identified to the amounts included in a schedule prepared by the Partnership based on its accounting records and found such amounts to be in agreement. |
Capitalized terms not defined in this certificate have the meaning ascribed to them in the
Underwriting Agreement.
| Each of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP and Xxxxxxxxx Xxxxxxxx LLP is entitled to rely on this certificate in connection with the opinion it is rendering pursuant to the Underwriting Agreement and this certificate is being delivered to the Representatives to assist them and the Underwriters in conducting and documenting their investigation of the affairs of the Partnership Parties and the Partnership’s subsidiaries in connection with the offering of the Common Units. |
All capitalized terms used but not defined herein shall have the meanings set forth in the
Underwriting Agreement.
[Signature Page Follows]
E-D-8
IN WITNESS WHEREOF, the undersigned has signed his name as of the date first written above.
| By: | ||||||
| Title: Senior Vice President, Finance and | ||||||
| Administration and Chief Financial | ||||||
| Officer |
[Signature Page to CFO Certificate]
Annex A
[Circle-up to be attached]
E-D-10
