GULF SOUTH PIPELINE COMPANY, LP Purchase Agreement
Exhibit
1.1
GULF
SOUTH PIPELINE COMPANY, LP
$225,000,000
5.75%
Notes due 2012
$275,000,000
6.30%
Notes due 2017
August
14, 2007
Citigroup
Global Markets Inc.
Xxxxxx
Xxxxxxx & Co. Incorporated
As
Representatives of the Initial Purchasers
c/o
Citigroup Global Markets Inc.
000
Xxxxxxxxx Xxxxxx
Ladies
and Gentlemen:
Gulf
South Pipeline Company, LP, a limited partnership organized under the laws
of
Delaware (the “Partnership”), together with its general partner, GS Pipeline
Company, LLC, a Delaware limited liability company (the “General Partner” and,
together with the Partnership, the “Partnership Parties”), proposes to issue and
sell to the several parties named in Schedule I hereto (the “Initial
Purchasers”), for whom you (the “Representatives”) are acting as
representatives, $225,000,000 principal amount of the Partnership’s 5.75% Notes
due 2012 (the “2012 Notes”) and $275,000,000 principal amount of the
Partnership’s 6.30% Notes due 2017 (the “2017 Notes” and, together with the 2012
Notes, the “Securities”). The 2012 Notes and the 2017 Notes are to be
issued under separate indentures (each an “Indenture,” and together, the
“Indentures”), to be dated as of the Closing Date, between the Partnership and
The Bank of New York, as trustee (the “Trustee”). To the extent there
are no additional parties listed on Schedule I other than you, the term
Representatives as used herein shall mean you as the Initial Purchasers,
and the
terms Representatives and Initial Purchasers shall mean either the singular
or
plural as the context requires. The use of the neuter in this
Agreement shall include the feminine and masculine wherever
appropriate. Certain terms used herein are defined in Section 21
hereof.
The
sale
of the Securities to the Initial Purchasers will be made without registration
of
the Securities under the Act in reliance upon exemptions from the registration
requirements of the Act.
In
connection with the sale of the Securities, the Partnership has prepared
a
preliminary offering memorandum, dated August 14, 2007 (as amended or
supplemented at the date thereof, including any and all exhibits thereto,
the
“Preliminary Memorandum”), and a final offering memorandum, dated August 14,
2007 (as amended or supplemented at the Execution Time, including any and
all
exhibits thereto, the “Final Memorandum”). Each of the Preliminary
Memorandum and the Final Memorandum sets forth certain information concerning
the Partnership and the Securities. The Partnership hereby confirms
that it has authorized the use of the Disclosure Package, the Preliminary
Memorandum and the Final Memorandum in connection with the offer and sale
of the
Securities by the Initial Purchasers.
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1. Representations
and Warranties. Each of the Partnership Parties, jointly and
severally, represents and warrants to, and agrees with, each Initial Purchaser
as set forth below in this Section 1.
(a) The
Preliminary Memorandum, at the date thereof, did 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. On the date thereof and on the
Closing Date, the Final Memorandum did not and will not (and any amendment
or
supplement thereto, at the date thereof and on the Closing Date, 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 representation or
warranty
as to the information contained in or omitted from the Preliminary Memorandum
or
the Final Memorandum in reliance upon and in conformity with information
furnished in writing to the Partnership by or on behalf of the Initial
Purchasers through the Representatives specifically for inclusion therein,
it
being understood and agreed that the only such information furnished by or
on
behalf of any Initial Purchaser consists of the information described as
such in
Section 8(b) hereof.
(b) The
Disclosure Package, as of the Execution Time, did 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. The preceding sentence does not
apply to statements in or omissions from the Disclosure Package based upon
and
in conformity with information furnished in writing to the Partnership by
or on
behalf of the Initial Purchasers through the Representatives specifically
for
use therein, it being understood and agreed that the only such information
furnished by or on behalf of any Initial Purchaser consists of the information
described as such in Section 8(b) hereof.
(c) No
order
or decree preventing the use of the Preliminary Memorandum or the Final
Memorandum, nor any order asserting that the transactions contemplated by
this
Agreement are subject to the registration requirements of the Act, has been
issued, and no proceeding for that purpose has commenced or is pending or,
to
the knowledge of the Partnership Parties, is contemplated.
(d) Except
as
contemplated by this Agreement, neither of the Partnership Parties, their
Affiliates, or any person acting on their behalf has, directly or
indirectly, made offers or sales of any Security, or solicited offers to
buy,
any Security under circumstances that would require the registration of the
Securities under the Act.
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(e) None
of
the Partnership Parties, their Affiliates, or any person acting on their
behalf
has: (i) engaged in any form of general solicitation or general advertising
(within the meaning of Regulation D) in connection with any offer or sale
of the Securities or (ii) engaged in any directed selling efforts (within
the
meaning of Regulation S) with respect to the Securities; and each of the
Partnership Parties, their Affiliates and the persons acting on their behalf
has
complied with the offering restrictions requirement of Regulation
S.
(f) The
Securities satisfy the eligibility requirements of Rule 144A(d)(3) under
the Act.
(g) Assuming
the completeness and accuracy of the representations and warranties of the
Initial Purchasers and their compliance with their agreements, in each case
contained in Section 4 hereof, no registration under the Act of the Securities
is required for the offer and sale of the Securities to or by the Initial
Purchasers in the manner contemplated herein, in the Disclosure Package and
the
Final Memorandum.
(h) The
Partnership Parties have not paid or agreed to pay to any person any
compensation for soliciting another to purchase any securities of the
Partnership (except as contemplated in this Agreement).
(i) The
Partnership has not offered, sold or issued any securities, or securities
that
are convertible into other securities, with terms that are substantially
similar
to the Securities during the six-month period preceding the date of the Final
Memorandum, including any sales pursuant to Section 4(2) under the Act,
Regulation D or Regulation S. No Partnership Party, or any Affiliate
of any Partnership Party, has sold or issued any securities that would be
integrated with the offering of the Securities contemplated by this Agreement
pursuant to the Act, the regulations promulgated thereunder or the
interpretations thereof by the Commission.
(j) Each
of
the Preliminary Memorandum and the Final Memorandum, as of its date, and
each
amendment or supplement thereto, as of its date, contained or contains the
information specified in, and meets the requirements of, Rule 144A(d)(4)
under
the Act.
(k) The
Partnership has been duly formed and is validly existing and in good standing
as
a limited partnership under the Delaware Revised Uniform Limited Partnership
Act
(the “Delaware LP Act”), has the full partnership power and authority necessary
to own or hold its properties and assets and to conduct the businesses in
which
it is engaged, and is duly registered or qualified to do business and in
good
standing as a foreign limited partnership in each jurisdiction listed opposite
its name in Schedule II attached hereto, such jurisdictions being the only
jurisdictions in which its ownership or lease of property or the conduct
of its
business requires such qualification, except where the failure to so register
or
qualify could not reasonably be expected to have a material adverse effect
on
the condition (financial or other), results of operations, securityholders’
equity, properties, business or prospects of the Partnership Parties, taken
as a
whole, whether or not arising in the ordinary course of business (a “Material
Adverse Effect”).
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(l) The
General Partner has been duly formed and is validly existing and in good
standing as a limited liability company under the Delaware Limited Liability
Company Act (the “Delaware LLC Act”), has the full limited liability company
power and authority necessary to own or hold its properties and assets and
to
conduct the businesses in which it is engaged, and is duly registered or
qualified to do business and in good standing as a foreign limited liability
company in each jurisdiction listed opposite its name in Schedule II attached
hereto, such jurisdictions being the only jurisdictions in which its ownership
or lease of property or the conduct of its business requires such qualification,
except where the failure to so register or qualify could not reasonably be
expected to have a Material Adverse Effect.
(m) Boardwalk
Pipelines, LP, a Delaware limited partnership (the “Operating Partnership”) owns
a 100% limited liability company interest in the General Partner; such limited
liability company interest has been duly and validly authorized and issued
in
accordance with the limited liability company agreement of the General Partner
(as the same may be amended and restated on or prior to the Closing Date,
the
“GP LLC Agreement”) and is fully paid (to the extent required under the GP LLC
Agreement) and non-assessable (except as such non-assessability may be affected
by Sections 18-607 and 18-804 of the Delaware LLC Act); and the Operating
Partnership owns such limited liability company interest free and clear of
all
liens, encumbrances, security interests, equities, charges or claims
(collectively, “Liens”).
(n) The
General Partner is the sole general partner of the Partnership, with a 1.0%
general partner interest in the Partnership; such general partner interest
has
been duly and validly authorized and issued in accordance with the agreement
of
limited partnership of the Partnership (as the same may be amended and restated
on or prior to the Closing Date, the “Partnership Agreement”); and the General
Partner owns such general partner interest free and clear of all
Liens. The Operating Partnership is the sole limited partner of the
Partnership, with a 99.0% limited partner interest in the Partnership; such
limited partner interest has been duly and validly authorized and issued
in
accordance with the Partnership Agreement and is fully paid (to the extent
required under the Partnership Agreement) and non-assessable (except as such
non-assessability may be affected by Sections 17-607 and 17-804 of the Delaware
LP Act); and the Operating Partnership owns such limited partner interest
free
and clear of all Liens.
(o) Other
than the General Partner’s 1.0% general partner interest in the Partnership, no
Partnership Party owns, directly or indirectly, any equity or short- or
long-term debt securities of any corporation, partnership, limited liability
company, joint venture, association or other entity (other than intercompany
advances), and the Partnership has no subsidiaries.
(p) On
the
Closing Date, the Partnership will have the requisite partnership power and
authority to issue, sell and deliver the Securities, in accordance with and
upon
the terms and conditions set forth in this Agreement, the Indentures, the
Partnership Agreement, the Preliminary Memorandum and the Final
Memorandum. On the Closing Date, all corporate, partnership or
limited liability company action, as the case may be, required to be taken
by
the Partnership Parties or any of their Affiliates, members or partners for
the
authorization, issuance, sale and delivery of the Securities, the execution
and
delivery by the Partnership Parties of this Agreement, the Indentures and
the
Securities and the consummation of the transactions contemplated by this
Agreement, the Indentures and the Securities shall have been validly
taken.
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(q) This
Agreement has been duly and validly authorized, executed and delivered by
each
of the Partnership Parties.
(r) Each
Indenture has been duly authorized by the Partnership and, when duly executed
and delivered by the Partnership and the Trustee, will constitute a valid
and
binding agreement of the Partnership, enforceable against the Partnership
in
accordance with its terms, except as the enforcement thereof may be limited
by
bankruptcy, insolvency (including, without limitation, all laws relating
to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors’ rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement
is
considered in a proceeding in equity or at law). While the parties
hereto acknowledge that the Indentures will not be qualified under the Trust
Indenture Act, on the Closing Date, the Indentures will conform in all material
respects to the requirements of the Trust Indenture Act and the rules and
regulations of the Commission applicable to an indenture that is qualified
thereunder.
(s) The
Securities have been duly authorized and, on the Closing Date, will have
been
duly executed by the Partnership and, when authenticated, issued and delivered
in the manner provided for in the Indentures and delivered against payment
of
the purchase price therefor as provided in this Agreement, will constitute
valid
and binding obligations of the Partnership, enforceable against the Partnership
in accordance with their terms, except as the enforcement thereof may be
limited
by bankruptcy, insolvency (including, without limitation, all laws relating
to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors’ rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement
is
considered in a proceeding in equity or at law), and will be in the form
contemplated by, and entitled to the benefits of, the Indentures.
(t) The
Securities and the Indentures will conform in all material respects to the
respective statements relating thereto contained in the Preliminary Memorandum
and the Final Memorandum.
(u) None
of
the offering, issuance and sale by the Partnership of the Securities and
the
application of the proceeds therefrom as described under the caption “Use of
Proceeds” in each of the Preliminary Memorandum and the Final Memorandum, the
execution, delivery and performance of this Agreement, the Indentures and
the
Securities by the Partnership Parties that are parties thereto, or the
consummation of the transactions contemplated by this Agreement and the
Indentures (i) constitutes or will constitute a violation of the certificate
or
agreement of limited partnership, certificate of formation, limited liability
company agreement or other organizational documents of any Partnership Party
or,
to the knowledge of the Partnership Parties, any of their Affiliates, (ii)
constitutes or will constitute a breach or violation of or a default under
(or
an event that, with notice or lapse of time or both, would constitute such
a
breach or violation of or default under), any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which any
of
the Partnership Parties or, to the knowledge of the Partnership Parties,
any of
their Affiliates is a party, by which any of them is bound or to which any
of
their respective properties or assets is subject, (iii) violates or will
violate
any statute, law, ordinance, regulation, order, judgment, decree or injunction
of any court or governmental agency or body to which any of the Partnership
Parties or, to the knowledge of the Partnership Parties, any of their Affiliates
or any of their respective properties or assets may be subject or (iv) will
result in the creation or imposition of any Lien upon any property or assets
of
any Partnership Party or, to the knowledge of the Partnership Parties, any
of
their Affiliates, which conflicts, breaches, violations, defaults or Liens,
in
the case of clauses (ii), (iii) or (iv), would, individually or in the
aggregate, have a Material Adverse Effect.
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(v) Except
for such consents, approvals, authorizations, registrations or qualifications
as
may be required under applicable state securities laws in connection with
the
purchase and sale of the Securities by the Initial Purchasers, no consent,
approval, authorization or order of, or filing or registration with, any
court
or governmental agency or body to which any of the Partnership Parties or
any of
their respective properties or assets is subject is required for the execution,
delivery and performance of this Agreement, the Indentures and the Securities
by
the Partnership Parties, the consummation of the transactions contemplated
by
this Agreement and the Indentures and the application of the proceeds from
the
sale of the Securities as described under the caption “Use of Proceeds” in each
of the Preliminary Memorandum and the Final Memorandum.
(w) At
June
30, 2007, the Partnership would have had, on the as adjusted basis indicated
in
each of the Preliminary Memorandum and the Final Memorandum, a capitalization
as
set forth therein. The historical financial statements (including the
related notes and supporting schedules) included in the Preliminary Memorandum
and the Final Memorandum present fairly in all material respects the financial
position, results of operations and cash flows of the Partnership on the
basis
stated therein at the respective dates or for the respective periods to which
they apply, and have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods
involved. The summary historical information set forth in the
Preliminary Memorandum and the Final Memorandum under the caption “Summary
Historical Financial and Operating Data” is accurately presented in all material
respects and prepared on a basis consistent with the audited and unaudited
historical consolidated financial statements from which it has been
derived.
(x) Deloitte
& Touche LLP, who have certified certain financial statements of the
Partnership, whose report appears in each of the Preliminary Memorandum and
the
Final Memorandum and who have delivered the initial letter referred to in
Section 6(e) hereof, are independent certified public accountants with respect
to the Partnership under Rule 101 of the AICPA’s Code of Professional Conduct
and its interpretations and rulings and were such during the periods covered
by
the financial statements on which they reported.
6
(y) The
statistical and market-related data included in each of the Preliminary
Memorandum and the Final Memorandum are based on or derived from sources
that
the Partnership believes to be reliable and accurate in all material
respects.
(z) Each
Partnership Party has good and indefeasible title to all real property and
good
title to all personal property contemplated as owned by it in each of the
Preliminary Memorandum and the Final Memorandum, in each case free and clear
of
all Liens and other defects, except as described in the Disclosure Package
or
that would not materially affect the value of such property and would not
materially interfere with the use made and proposed to be made of such property
as described in each of the Preliminary Memorandum and the Final
Memorandum. With respect to title to pipeline rights-of-way, neither
of the Partnership Parties has received any actual notice or claim from any
owner of land upon which any pipeline that is owned by the Partnership is
located that the Partnership does not have sufficient title to enable it
to use
and occupy the pipeline rights-of-way as they have been used and occupied
in the
past and are proposed to be used and occupied in the future as described
in each
of the Preliminary Memorandum and the Final Memorandum, except where such
failure to have sufficient title would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. All assets
held under lease or license by the Partnership Parties are held under valid,
subsisting and enforceable leases or licenses, with such exceptions as would
not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect or materially interfere with the use made and proposed to
be made
of such assets as they have been used in the past and are proposed to be
used in
the future as described in each of the Preliminary Memorandum and the Final
Memorandum.
(aa) Each
Partnership Party carries or is covered by insurance from insurers of recognized
financial responsibility in such amounts and covering such risks as is
reasonably adequate for the conduct of its business and the value of its
properties and as is customary for companies engaged in similar businesses
in
similar industries. All policies of insurance of the Partnership
Parties are in full force and effect, except as would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect; the
Partnership Parties are in compliance with the terms of such policies in
all
material respects; and no Partnership Party has received notice from any
insurer
or agent of such insurer that any material capital improvements or other
expenditures are required or necessary to be made in order to continue such
insurance.
(bb) Each
Partnership Party owns or possesses adequate rights to use all material patents,
patent applications, trademarks, service marks, trade names, trademark
registrations, service mark registrations, copyrights, licenses and know-how
(including trade secrets and other unpatented and/or unpatentable proprietary
or
confidential information, systems or procedures) necessary for the conduct
of
its business, and no Partnership Party has any reason to believe that the
conduct by either Partnership Party of its business will conflict in any
material respect with, and no Partnership Party has received any notice or
claim
of conflict with, any such rights of any other person or party.
(cc) Except
as
described in the Disclosure Package, there are no legal or governmental
proceedings pending to which either Partnership Party is a party or to which
any
property or asset of the Partnership Parties is subject that could reasonably
be
expected to have, individually or in the aggregate, a Material Adverse Effect
or
a material adverse effect on the performance of this Agreement, the Indentures
and the Securities or the consummation of the transactions contemplated by
this
Agreement and the Indentures, and to the knowledge of the Partnership Parties,
no such proceedings are threatened or contemplated by governmental authorities
or others. There are no legal or governmental proceedings pending
that would be required by the Act to be described in the Preliminary Memorandum
and the Final Memorandum, if the Preliminary Memorandum and the Final Memorandum
were prospectuses included in a registration statement on Form S-1 filed
with
the Commission, that are not so described.
7
(dd) The
statements set forth in each of the Preliminary Memorandum and the Final
Memorandum under the caption “Description of the Notes,” insofar as they purport
to constitute a summary of the terms of the Indentures and the Securities
or a
summary of certain provisions of documents referred to therein, and under
the
caption “Certain United States Federal Tax Consequences,” insofar as they
purport to summarize the laws referred to therein, are accurate summaries
in all
material respects
(ee) Except
as
described in the Disclosure Package, no labor disturbance by the employees
of
any Partnership Party (and to the extent that they perform services on behalf
of
any Partnership Party, employees of any of their Affiliates) exists or, to
the
knowledge of the Partnership Parties, is imminent or threatened that could
reasonably be expected to have a Material Adverse Effect.
(ff) Since
the
date as of which information is given in the Preliminary Memorandum, except
as
otherwise stated in the Disclosure Package, (i) neither Partnership Party
has
sustained any loss or interference with its business from fire, explosion,
flood
or other calamity, whether or not covered by insurance, any labor dispute
or any
court or governmental action, order or decree, and (ii) there has not been
any
adverse change in the partners’ capital, members’ equity or short- or long-term
debt of any Partnership Party or any adverse change, or any development
involving a prospective adverse change, in or affecting the condition (financial
or otherwise), results of operations, securityholders’ equity, properties,
management, business or prospects of any Partnership Party, in each case
except
as could not reasonably be expected to have a Material Adverse Effect or
as set
forth or contemplated in the Disclosure Package.
(gg) Each
Partnership Party has filed all tax returns required to be filed through
the
date hereof, which returns are complete and correct in all material respects,
and has paid all taxes shown to be due pursuant to such returns, other than
those that (i) if not paid, could not reasonably be expected to have a Material
Adverse Effect or (ii) are being contested in good faith and for which adequate
reserves have been established in accordance with generally accepted accounting
principles.
(hh) Since
the
date as of which information is given in the Preliminary Memorandum, except
as
otherwise stated in the Disclosure Package, neither Partnership Party has
(i)
issued or granted any securities, (ii) incurred any liability or obligation,
direct or contingent, other than liabilities and obligations that were incurred
in the ordinary course of business, (iii) entered into any transaction not
in
the ordinary course of business or (iv) declared or paid any dividend or
distribution on its equity interests.
8
(ii) Each
Partnership Party (i) makes and keeps accurate books and records and (ii)
maintains a system of internal accounting controls sufficient to provide
reasonable assurance that (A) transactions are executed in accordance with
management’s general or specific authorizations, (B) transactions are recorded
as necessary to permit preparation of such Partnership Party’s financial
statements in conformity with accounting principles generally accepted in
the
United States and to maintain accountability for its assets, (C) access to
such
Partnership Party’s assets is permitted only in accordance with management’s
general or specific authorization and (D) the recorded accountability for
such
Partnership Party’s assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences. The Partnership Parties’ internal controls over
financial reporting are effective and the Partnership Parties are not aware
of
any material weakness in their internal control over financial
reporting.
(jj) Since
the
date of the most recent balance sheet of the Partnership reviewed or audited
by
Deloitte & Touche LLP, (i) the Partnership Parties have not been advised of
(A) any significant deficiencies in the design or operation of internal controls
that are reasonably likely to adversely affect the ability of the Partnership
to
record, process, summarize and report financial data, or any material weaknesses
in internal controls (whether or not remediated) and (B) any fraud, whether
or
not material, that involves management or other employees who have a significant
role in the internal controls of the Partnership, and (ii) since that date,
there have been no changes in internal controls that have materially affected,
or are reasonably likely to materially affect, internal controls, including
any
corrective actions with regard to significant deficiencies and material
weaknesses.
(kk) There
is
no relationship, direct or indirect, between or among the Partnership Parties,
on the one hand, and the directors, officers, securityholders, customers
or
suppliers of the Partnership Parties, on the other hand, that would be required
by the Act to be described in the Preliminary Memorandum and the Final
Memorandum, if the Preliminary Memorandum and the Final Memorandum were
prospectuses included in a registration statement on Form S-1 filed with
the
Commission, that is not so described.
(ll) Neither
of the Partnership Parties (i) is in violation of its certificate or agreement
of limited partnership, certificate of formation or limited liability company
agreement or other organizational documents, (ii) is in breach of or default
under any term, covenant or condition contained in any indenture, mortgage,
deed
of trust, loan agreement, lease or other agreement or instrument to which
it is
a party, by which it is bound or to which any of its properties or assets
is
subject (and no event has occurred that, with notice or lapse of time or
both,
would constitute such a breach or default), (iii) is in violation of any
statute, law, ordinance, rule, regulation, order, judgment, decree or injunction
of any court or governmental agency or body to which it or its property or
assets may be subject or (iv) has failed to obtain any license, permit,
certificate, franchise or other governmental authorization or permit necessary
to the ownership of its property or to the conduct of its business, except,
in
the case of clauses (ii) or (iv), as could not reasonably be expected to
have a
Material Adverse Effect.
9
(mm) Except
as
described in the Disclosure Package, the Partnership Parties (i) are in
compliance with any and all applicable federal, state and local laws,
regulations, ordinances, rules, orders, judgments, decrees or other legal
requirements relating to the protection of human health and safety, the
environment or natural resources or imposing liability or standards of conduct
concerning any Hazardous Materials (as defined below) (“Environmental Laws”),
(ii) have received, and as necessary maintained, all permits required of
them
under applicable Environmental Laws to conduct their respective businesses,
(iii) are in compliance with all terms and conditions of any such permits
and
(iv) do not have any liability in connection with the release into the
environment of any Hazardous Material, except where such noncompliance with
Environmental Laws, failure to receive and maintain required permits, failure
to
comply with the terms and conditions of such permits or liability in connection
with such releases could not, individually or in the aggregate, reasonably
be
expected to have a Material Adverse Effect. The term “Hazardous
Material” means (1) any “hazardous substance” as defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
(“CERCLA”), (2) any “hazardous waste” as defined in the Resource Conservation
and Recovery Act, as amended, (3) petroleum or any petroleum product, (4)
any
polychlorinated biphenyl and (5) any pollutant, contaminant or hazardous,
dangerous or toxic chemical, material, waste or substance regulated under
or
within the meaning of any other Environmental Law. No Partnership
Party has been named as a “potentially responsible party” under CERCLA or any
other similar Environmental Law, except with respect to any matters that,
individually or in the aggregate, could not reasonably be expected to have
a
Material Adverse Effect. Except as described in the Disclosure
Package, no Partnership Party (A) is a party to any proceeding under
Environmental Laws in which a governmental authority is also a party, other
than
proceedings regarding which it is believed that no monetary penalties in
excess
of $100,000 will be imposed, (B) has received notice of any potential liability
for the disposal or release of any Hazardous Material, except where such
liability could not reasonably be expected to have a Material Adverse Effect
or
(C) anticipates any material capital expenditures relating to Environmental
Laws.
(nn) Each
Partnership Party is in compliance in all material respects with all presently
applicable provisions of the Employee Retirement Income Security Act of 1974,
as
amended, including the regulations and published interpretations thereunder
(“ERISA”); no “reportable event” (as defined in ERISA) has occurred with respect
to any “pension plan” (as defined in ERISA) for which any Partnership Party
would have any liability; no Partnership Party has incurred or expects to
incur
liability under (i) Title IV of ERISA with respect to the termination of,
or
withdrawal from, any “pension plan” or (ii) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder (the “Code”); and each “pension plan” that is
intended to be qualified under Section 401(a) of the Code and for which any
Partnership Party would have any liability is so qualified and nothing has
occurred, whether by action or by failure to act, that would cause the loss
of
such qualification.
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(oo) Each
Partnership Party has, or on the Closing Date will have, such permits, consents,
licenses, franchises, certificates and other approvals or authorizations
of
governmental or regulatory authorities (“Permits”) as are necessary to own or
lease its properties and to conduct its business in the manner described
in each
of the Preliminary Memorandum and the Final Memorandum, except as disclosed
in
or specifically contemplated by the Disclosure Package or except for any
failure
to have any such Permit that could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. Except
as described in the Disclosure Package, each Partnership Party has fulfilled and
performed all of its material obligations with respect to all such Permits,
and
no event has occurred that would prevent any such Permit from being renewed
or
reissued, that allows, or after notice or lapse of time would allow, revocation
or termination of any such Permit or that would result in any other impairment
of the rights of the holder of any such Permit, except for any such non-renewal,
revocation, termination or impairment that could not reasonably be expected
to
have a Material Adverse Effect.
(pp) The
Partnership is not, and as of the Closing Date and after giving effect to
the
application of the net proceeds of the offering as described under the caption
“Use of Proceeds” in the Disclosure Package and the Final Memorandum, the
Partnership will not be, an “investment company” as defined in the Investment
Company Act of 1940, as amended (the “Investment Company Act”).
(qq) Neither
of the Partnership Parties or, to the knowledge of the Partnership Parties,
any
of their Affiliates, has distributed, and prior to the later to occur of
the
Closing Date and completion of the distribution of the Securities, neither
of
the Partnership Parties or, to the knowledge of the Partnership Parties,
any of
their affiliates, will distribute, any offering material in connection with
the
offering and sale of the Securities other than the Disclosure Package and
the
Final Memorandum.
(rr) Neither
of the Partnership Parties or,
to the knowledge of the Partnership Parties, any of their affiliates has
taken,
nor will either of the Partnership Parties or, to the knowledge of the
Partnership Parties, any of their affiliates take, directly or indirectly,
any
action that has constituted, that was designed to cause or result in, or
that
could reasonably be expected to cause or result in, the stabilization or
manipulation of the price of any security of any Partnership Party to facilitate
the sale or resale of the Securities.
(ss) Except
for this Agreement, there are no contracts, agreements or understandings
between
the Partnership and any person that would give rise to a valid claim against
the
Partnership Parties or any Initial Purchaser for a brokerage commission,
finder’s fee or other like payment in connection with the offering and sale of
the Securities contemplated by this Agreement.
(tt) Except
as disclosed in the Preliminary
Memorandum and the Final Memorandum, the Partnership (i) does not have any
material lending or other relationship with any Initial Purchaser or affiliate
of any Initial Purchaser and (ii) does not intend to use any of the proceeds
from the sale of the Securities hereunder to repay any outstanding debt owed
to
any affiliate of any Initial Purchaser.
11
Any
certificate signed by or on behalf of any Partnership Party and delivered
to the
Representatives or counsel for the Initial Purchasers in connection with
the
offering of the Securities shall be deemed a representation and warranty
by each
such Partnership Party, as to matters covered thereby, to each Initial
Purchaser.
2. Purchase
and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Partnership
agrees
to sell to each Initial Purchaser, and each Initial Purchaser agrees, severally
and not jointly, to purchase from the Partnership: (a) at a purchase price
of
99.216% of the principal amount thereof, plus accrued interest, if any, from
August 17, 2007 to the Closing Date, the principal amount of 2012 Notes set
forth opposite such Initial Purchaser’s name in Schedule I hereto, and (b)
at a purchase price of 99.131% of the principal amount thereof, plus accrued
interest, if any, from August 17, 2007 to the Closing Date, the principal
amount
of 2017 Notes set forth opposite such Initial Purchaser’s name in
Schedule I hereto.
3. Delivery
and Payment. Delivery of and payment for the Securities shall be
made at 10:00 A.M., New York City time, on August 17,
2007, or at such time on such later date not more than three Business Days
after
the foregoing date as the Representatives shall designate, which date and
time
may be postponed by agreement between the Representatives and the Partnership
or
as provided in Section 9 hereof (such date and time of delivery and payment
for the Securities being herein called the “Closing Date”). Delivery
of the Securities shall be made to the Representatives for the respective
accounts of the several Initial Purchasers against payment by the several
Initial Purchasers through the Representatives of the purchase price thereof
to
or upon the order of the Partnership by wire transfer payable in same-day
funds
to the account specified by the Partnership. Delivery of the
Securities shall be made through the facilities of The Depository Trust Company
unless the Representatives shall otherwise instruct.
4. Offering,
Representations and Warranties by Initial Purchasers.
(a) Each
Initial Purchaser acknowledges that the Securities have not been and will
not be
registered under the Act and may not be offered or sold within the United
States
or to, or for the account or benefit of, U.S. persons (as defined in Regulation
S) except pursuant to an exemption from, or in a transaction not subject
to, the
registration requirements of the Act.
(b) Each
Initial Purchaser, severally and not jointly, represents and warrants to
and
agrees with the Partnership Parties that:
(i) it
has
not offered or sold, and will not offer or sell, any Securities as part of
their distribution at any time except:
(A) within
the United States to persons, or to, or for the account of benefit of, U.S.
persons, in each case whom it reasonably believes to be “qualified institutional
buyers” (as defined in Rule 144A under the Act) or
(B) to
persons other than U.S. persons outside the United States in accordance with
Rule 903 of Regulation S;
12
(ii) neither
it nor any person acting on its behalf has made or will make offers or sales
of
the Securities in the United States by means of any form of general solicitation
or general advertising (within the meaning of Regulation D) in the United
States;
(iii) in
connection with each sale pursuant to Section 4(b)(i)(A), it has taken or
will take reasonable steps to ensure that the purchaser of such Securities
is
aware that such sale may be made in reliance on Rule 144A;
(iv) neither
it, nor any of its Affiliates nor any person acting on its or their behalf
has
engaged or will engage in any directed selling efforts (within the meaning
of
Regulation S) with respect to the Securities; and
(v) it
is an
“accredited investor” (as defined in Rule 501(a) of Regulation D);
(vi) without
the prior written consent of the Partnership, it has not given and will not
give
to any prospective purchaser of the Securities any written information
concerning the offering of the Securities (“Written Information”) other than
materials contained in the Disclosure Package, the Final Memorandum or any
other
offering materials prepared by or with the prior written consent of the
Partnership; provided that the prior written consent of the Partnership shall
be
deemed to have been given in respect of (x) preliminary and final term sheets
relating to the offer and sale of the Securities containing customary terms
and
(y) material relating to the offer and sale of the Securities prepared by
the
Initial Purchasers that does not contain information provided by or on behalf
of
the Partnership specifically for use in such material;
(vii) at
or
prior to the confirmation of any sale of Securities pursuant to Regulation
S, it
will have sent to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases Securities from it or
through it during the distribution compliance period (as defined in Regulation
S) a confirmation or notice to substantially the following effect:
“The
Securities covered hereby have not been registered under the U.S. Securities
Act
of 1933, as amended (the “Act”), and may not be offered or sold within the
United States or to, or for the account or benefit of, U.S. persons (i) as
part
of their distribution at any time or (ii) otherwise until 40 days after the
later of the commencement of the offering and the date of closing of the
offering, except in either case in accordance with Regulation S or Rule 144A
under the Act. Terms used in this paragraph have the meanings given to them
by
Regulation S;” and
(viii) it
has
only communicated or caused to be communicated and will only communicate
or
cause to be communicated any invitation or inducement to engage in investment
activity (within the meaning of Section 21 of the Financial Services and
Markets
Act 2000 (the “FSMA”)) received by it in connection with the issue or sale of
any Securities, in circumstances in which Section 21(1) of the FSMA does
not
apply to the Partnership Parties;
13
(ix) it
has
complied and will comply with all applicable provisions of the FMSA with
respect
to anything done by it in relation to the Securities in, from and otherwise
involving the United Kingdom; and
(x) in
relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (each, a “Relevant Member State”), it has
not made and will not make an offer to the public of any Securities which
are
the subject of the offering contemplated by this Agreement in that Relevant
Member State, except that it may make an offer to the public in that Relevant
Member State of any Securities at any time under the following exemptions
under
the Prospectus Directive, if they have been implemented in that Relevant
Member
State:
(A)
|
to
legal entities which are authorized or regulated to operate in
the
financial markets or, if not so authorized or regulated, whose
corporate
purpose is solely to invest in
securities;
|
(B)
|
to
any legal entity which has two or more of (i) an average of at
least 250
employees during the last financial year, (ii) a total balance
sheet of
more than €43,000,000 and (iii) an annual turnover of more than
€50,000,000, as shown in its last annual or consolidated
accounts;
|
(C)
|
to
fewer than 100 natural or legal persons (other than qualified investors
as
defined in the Prospectus Directive) subject to obtaining the prior
written consent of the Representatives for any such offer;
or
|
(D)
|
in
any other circumstances falling within Article 3(2) of the Prospectus
Directive;
|
provided
that no such offer of Securities shall result in a requirement for the
publication by the Partnership Parties or any Initial Purchaser of a prospectus
pursuant to Article 3 of the Prospectus Directive.
For
the
purposes of this provision, the expression an “offer to the public” in relation
to any Securities in any Relevant Member State means the communication in
any
form and by any means of sufficient information on the terms of the offer
and
the Securities to be offered so as to enable an investor to decide to purchase
any Securities, as the same may be varied in that Member State by any measure
implementing the Prospectus Directive in that Member State and the expression
“Prospectus Directive” means Directive 2003/71/EC and includes any relevant
implementing measure in each Relevant Member State.
14
5. Agreements. The
Partnership Parties agree with each Initial Purchaser that:
(a) The
Partnership will furnish to each Initial Purchaser and to counsel for the
Initial Purchasers, without charge, during the period referred to in Section
5(d) below, as many copies of the Disclosure Package, the
Final Memorandum, each amendment or supplement thereto, and the materials
contained therein as they may reasonably request.
(b) The
Partnership will prepare a final term sheet, containing solely a description
of
final terms of the Securities and the offering thereof, in the form approved
by
you and attached as Schedule III hereto.
(c) The
Partnership will not amend or supplement the Disclosure Package or the Final
Memorandum without the prior written consent of the
Representatives.
(d) If
at any
time prior to the completion of the sale of the Securities by the Initial
Purchasers (as determined by the Representatives), any event occurs as a
result
of which the Disclosure Package or the Final Memorandum, as then amended
or
supplemented, would include 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 or the circumstances
then prevailing, not misleading, or if it should be necessary to amend or
supplement the Disclosure Package or the Final Memorandum to comply with
applicable law, the Partnership will promptly (i) notify the Representatives
of
any such event; (ii) subject to the requirements of Section 5(c), prepare
an
amendment or supplement that will correct such statement or omission or effect
such compliance; and (iii) supply any supplemented or amended Disclosure
Package
or Final Memorandum to the several Initial Purchasers and counsel for the
Initial Purchasers without charge in such quantities as they may reasonably
request.
(e) Without
the prior written consent of the Representatives, the Partnership Parties
have
not given and will not give to any prospective purchaser of the Securities
any
Written Information other than materials contained in the Disclosure Package,
the Final Memorandum or any other offering materials prepared by or with
the
prior written consent of the Representatives.
(f) The
Partnership will arrange, if necessary, for the qualification of the Securities
for sale by the Initial Purchasers under the laws of such jurisdictions as
the
Representatives may reasonably designate (including Japan and certain provinces
of Canada) and will maintain such qualifications in effect so long as reasonably
required for the sale of the Securities; provided that in no event shall
the Partnership be obligated to qualify to do business in any jurisdiction
where
it is not now so qualified or to take any action that would subject it to
service of process in suits in any jurisdiction where it is not now so
subject. The Partnership will promptly advise the Representatives of
the receipt by the Partnership of any notification with respect to the
suspension of the qualification of the Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such
purpose.
15
(g) During
the period of two years following the Closing Date, the Partnership Parties
will
not, and will not permit any of its Affiliates to, resell any Securities
that
have been acquired by any of them.
(h) None
of
the Partnership Parties, their Affiliates, or any person acting on their
behalf
will, directly or indirectly, make offers or sales of any security, or solicit
offers to buy any security, under circumstances that would require the
registration of the Securities under the Act.
(i) None
of
the Partnership Parties, their Affiliates, or any person acting on their
behalf
will engage in any directed selling efforts (within the meaning of Regulation
S)
with respect to the Securities.
(j) None
of
the Partnership Parties, their Affiliates, or any person acting on their
behalf
will engage in any form of general solicitation or general advertising (within
the meaning of Regulation D) in connection with any offer or sale of the
Securities in the United States.
(k) For
so
long as any of the Securities are outstanding and are “restricted securities”
within the meaning of Rule 144(a)(3) under the Act, the
Partnership, during any period in which it is not subject
to and in compliance with Section 13 or 15(d) of the Exchange Act or it is
not
exempt from such reporting requirements pursuant to and in compliance with
Rule
12g3-2(b) under the Exchange Act, will provide to each holder of such restricted
securities and to each prospective purchaser (as designated by such holder)
of
such restricted securities, upon the request of such holder or prospective
purchaser, any information required to be provided by Rule 144A(d)(4) under
the
Act. This covenant is intended to be for the benefit of the holders,
and the prospective purchasers designated by such holders, from time to time
of
such restricted securities.
(l) The
Partnership Parties will cooperate with the Representatives and use their
commercially reasonable efforts to permit the Securities to be eligible for
clearance and settlement through The Depository Trust Company.
(m) Each
of
the Securities will bear, to the extent applicable, the legend contained
in
“Notice to Investors” in the Preliminary Memorandum and the Final Offering
Memorandum for the time period and upon the other terms stated
therein.
(n) The
Partnership Parties will not take, directly or indirectly, any action designed
to, or that has constituted or that might reasonably be expected to, cause
or
result, under the Exchange Act or otherwise, in stabilization or manipulation
of
the price of any security of the Partnership to facilitate the sale or resale
of
the Securities.
(o) The
Partnership will, for a period of twelve months following the Execution Time,
furnish to the Representatives (i) all reports or other communications
(financial or other) generally made available to the unitholders of Boardwalk
Pipelines Partners, LP, and deliver such reports and communications to the
Representatives as soon as they are available, unless such documents are
furnished to or filed with the Commission or any securities exchange on which
any class of securities of the Partnership is listed and generally made
available to the public, and (ii) such additional information concerning
the business and financial condition of the Partnership as the Representatives
may from time to time reasonably request.
16
(p) The
Partnership will comply with all applicable securities and other laws, rules
and
regulations, and use its best efforts to cause the Partnership Parties’
directors and officers, in their capacities as such, to comply with such
laws,
rules and regulations.
(q) The
Partnership agrees to pay the costs and expenses relating to the following
matters: (i) the issuance of the Securities and the fees of the
Trustee; (ii) the preparation, printing or reproduction of the Disclosure
Package, the Final Memorandum, each amendment or supplement thereto, and
the
materials contained therein; (iii) the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting and packaging)
of such copies of the Disclosure Package, the Final Memorandum, each amendment
or supplement thereto, and the materials contained therein, as may, in each
case, be reasonably requested for use in connection with the offering and
sale
of the Securities; (iv) the authentication, issuance and delivery of the
Securities; (v) any stamp or transfer taxes in connection with the original
issuance and sale of the Securities; (vi) the preparation and delivery of
any
blue sky memorandum; (vii) any registration or qualification of the Securities
for offer and sale under the securities or blue sky laws of the several states,
Japan, the provinces of Canada and any other jurisdictions specified pursuant
to
Section 5(f) (including filing fees and the reasonable fees and expenses of
counsel for the Initial Purchasers relating to such registration and
qualification); (viii) the transportation and other expenses incurred by
or on
behalf of Partnership representatives in connection with presentations to
prospective purchasers of the Securities; (ix) the fees and expenses of the
Partnership’s accountants and the fees and expenses of counsel (including local
and special counsel) for the Partnership; and (x) all other costs and expenses
incident to the performance by the Partnership of its obligations hereunder;
provided that, except as provided in this Section 5 and in Section 7
hereof, the Initial Purchasers shall pay their own costs and expenses, including
the costs and expenses of their counsel, any transfer taxes on the Securities
that they may sell and the expenses of advertising any offering of the
Securities made by the Initial Purchasers.
6. Conditions
to the Obligations of the Initial Purchasers. The obligations of
the Initial Purchasers to purchase the Securities shall be subject to the
accuracy of the representations and warranties of the Partnership Parties
contained herein at the Execution Time and on the Closing Date, to the accuracy
of the statements of the Partnership Parties made in any certificates pursuant
to the provisions hereof, to the performance by the Partnership Parties of
their
obligations hereunder and to the following additional conditions:
(a) The
Partnership shall have requested and caused Xxxxxx & Xxxxxx L.L.P., counsel
for the Partnership, to furnish to the Representatives its opinion, dated
the
Closing Date and addressed to the Representatives, to the effect
that:
(i) Assuming
the accuracy of the representations and warranties and compliance with the
agreements contained herein (without regard to the representation found in
Section 1(g)), no registration under the Act of the Securities is required
for
the sale and delivery of the Securities by the Partnership to the Initial
Purchasers or the offer and sale by the Initial Purchasers of the Securities
solely in the manner contemplated herein, in the Disclosure Package and in
the
Final Memorandum and no qualification of an indenture under the Trust Indenture
Act is required; provided, however, that such counsel expresses no
opinion as to any subsequent resale of any Security;
17
(ii) The
Partnership has been duly formed and is validly existing and in good standing
as
a limited partnership under the Delaware LP Act, has the full partnership
power
and authority necessary to own or hold its properties and assets and to conduct
the businesses in which it is engaged, and is duly registered or qualified
to do
business and is in good standing as a foreign limited partnership in each
jurisdiction listed opposite its name in Schedule II hereto;
(iii) The
General Partner has been duly formed and is validly existing and in good
standing as a limited liability company under the Delaware LLC Act, has the
full
limited liability company power and authority necessary to own or hold its
properties and assets and to conduct the businesses in which it is engaged,
and
is duly registered or qualified to do business and is in good standing as
a
foreign limited liability company in each jurisdiction listed opposite its
name
in Schedule II hereto;
(iv) The
Operating Partnership owns a 100% limited liability company interest in the
General Partner; such limited liability company interest has been duly and
validly authorized and issued in accordance with the GP LLC Agreement and
is
fully paid (to the extent required under the GP LLC Agreement) and
non-assessable (except as such non-assessability may be affected by Sections
18-607 and 18-804 of the Delaware LLC Act); and the Operating Partnership
owns
such limited liability company interest free and clear of all Liens (except
restrictions on transferability contained in the GP LLC Agreement, as described
in the Preliminary Memorandum or created or arising under the Delaware LLC
Act)
(i) in respect of which a financing statement under the Uniform Commercial
Code
of the State of Delaware naming the Operating Partnership as debtor is on
file
with the Secretary of State of the State of Delaware or (ii) otherwise known
to
such counsel, without independent investigation, other than those created
by or
arising under the Delaware LLC Act or the GP LLC Agreement;
(v) The
General Partner is the sole general partner of the Partnership, with a 1.0%
general partner interest in the Partnership; such general partner interest
has
been duly and validly authorized and issued in accordance with the Partnership
Agreement; and the General Partner owns such general partner interest free
and
clear of all Liens (except restrictions on transferability contained in the
Partnership Agreement, as described in the Preliminary Memorandum or created
or
arising under the Delaware LP Act) (A) in respect of which a financing statement
under the Uniform Commercial Code of the State of Delaware naming the General
Partner as debtor is on file with the Secretary of State of the State of
Delaware or (B) otherwise known to such counsel, without independent
investigation, other than those created by or arising under the Delaware
LP Act
or the Partnership Agreement. The Operating Partnership is the sole
limited partner of the Partnership, with a 99.0% limited partner interest
in the
Partnership; such limited partner interest has been duly and validly authorized
and issued in accordance with the Partnership Agreement and is fully paid
(to
the extent required under the Partnership Agreement) and non-assessable (except
as such non-assessability may be affected by Sections 17-303, 17-607 and
17-804
of the Delaware LP Act); and the Operating Partnership owns such limited
partner
interest free and clear of all Liens (except restrictions on transferability
contained in the Partnership Agreement, as described in the Preliminary
Memorandum or created or arising under the Delaware LP Act) (A) in respect
of
which a financing statement under the Uniform Commercial Code of the State
of
Delaware naming the Operating Partnership as debtor is on file with the
Secretary of State of the State of Delaware or (B) otherwise known to such
counsel, without independent investigation, other than those created by or
arising under the Delaware LP Act or the Partnership Agreement;
18
(vi) The
Purchase Agreement has been duly and validly authorized, executed and delivered
by each of the Partnership Parties;
(vii) Each
Indenture has been duly and validly authorized, executed and delivered by
the
Partnership and (assuming the due authorization, execution and delivery thereof
by the Trustee) constitutes a valid and binding agreement of the Partnership,
enforceable against the Partnership in accordance with its terms, except
as the
enforcement thereof may be limited by bankruptcy, insolvency (including,
without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors’ rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity
or at
law) and an implied covenant of good faith and fair dealing;
(viii) The
Securities have been duly and validly authorized by the Partnership and,
assuming that the Securities have been duly authenticated by the Trustee
in the
manner described in its certificate delivered to you today (which fact such
counsel need not determine by an inspection of the Securities) and have been
delivered against payment of the purchase price therefor as provided in the
Purchase Agreement, have been duly executed, issued and delivered by the
Partnership and constitute valid and binding obligations of the Partnership,
enforceable against the Partnership in accordance with their terms, except
as
the enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors’ rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity
or at
law) and an implied covenant of good faith and fair dealing, and will be
in the
form contemplated by, and entitled to the benefits of, the
Indentures;
19
(ix) None
of
the offering, issuance and sale by the Partnership of the Securities, the
execution, delivery and performance of the Purchase Agreement, the Indentures
and the Securities by the Partnership Parties that are parties thereto, or
the
consummation of the transactions contemplated thereby (i) constitutes or
will
constitute a violation of the certificate or agreement of limited partnership,
certificate of formation, limited liability company agreement or other
organizational documents of either of the Partnership Parties, (ii) constitutes
or will constitute a breach or violation of or a default under (or an event
that, with notice or lapse of time or both, would constitute such a breach
or
violation of or default under), any agreement filed as an exhibit to Boardwalk
Pipeline Partners, LP’s Form 10-K for the year ended December 31, 2006 or any
subsequent reports filed by Boardwalk Pipeline Partners, LP under the Exchange
Act or (iii) violates or will violate any applicable law of the United States
of
America or the State of New York, the Delaware LP Act or the Delaware LLC
Act,
excluding in the case of clauses (ii) and (iii) any such breaches, violations
and defaults that would not have a Material Adverse Effect;
(x) No
Governmental Approval is required for the execution, delivery and performance
of
the Purchase Agreement, the Indentures and the Securities by the Partnership
Parties that are parties thereto, the consummation of the transactions
contemplated thereby and the application of the proceeds from the sale of
the
Securities as described under the caption “Use of Proceeds” in each of the
Preliminary Memorandum and the Final Memorandum, except for such Governmental
Approvals (i) as have been obtained or made or (ii) would not have a Material
Adverse Effect if not obtained or made;
(xi) The
statements set forth in each of the Preliminary Memorandum and the Final
Memorandum under the caption “Description of the Notes,” insofar as they purport
to constitute a summary of the terms of the Indentures and the Securities
or a
summary of certain provisions of documents referred to therein, and under
the
caption “Certain United States Federal Tax Consequences,” insofar as they
purport to summarize the laws referred to therein, are accurate summaries
in all
material respects, subject to the qualifications and assumptions therein;
and
the Securities and the Indentures conform in all material respects to the
descriptions thereof contained in the Preliminary Memorandum and the Final
Memorandum under the caption “Description of the Notes;” and
(xii) The
Partnership is not, and after giving effect to the application of the net
proceeds from the offering as described under the caption “Use of Proceeds” in
each of the Preliminary Memorandum and the Final Memorandum, the Partnership
will not be, an “investment company” as defined in the Investment Company
Act.
In
rendering such opinion, such counsel may state that its opinion is limited
to
matters governed by the federal laws of the United States of America, the
laws
of the State of New York, the Delaware LP Act and the Delaware LLC
Act. Such counsel need not express any opinion with respect to the
title of any of the Partnership Parties to any of their respective real or
personal property, and need not express any opinion with respect to state
or
local taxes or tax statutes to which any of the Partnership Parties may be
subject.
20
In
addition, such counsel shall state that it has participated in conferences
with
officers and other representatives of the Partnership Parties, representatives
of the independent registered public accounting firm of the Partnership and
representatives of the Initial Purchasers, at which the contents of the
Disclosure Package and the Final Memorandum and related matters were discussed,
and although such counsel did not independently investigate or verify the
information set forth in the Disclosure Package and the Final Memorandum,
and
such counsel is not passing upon and does not assume any responsibility for,
the
accuracy, completeness or fairness of the statements contained in the Disclosure
Package and the Final Memorandum (except to the extent specified in paragraph
(xii) above), based on the foregoing (relying as to factual matters in respect
of the determination of materiality to the extent such counsel deems reasonable
and appropriate upon the statements of fact made by officers and other
representatives of the Partnership Parties), no facts have come to such
counsel’s attention that have led such counsel to believe that:
(A) the
Final Memorandum, as of its date and as of the Closing Date, contained or
contains any untrue statement of a material fact or omitted or omits to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
or
(B) the
Disclosure Package, as of the Execution Time, contained any untrue statement
of
a material fact or omitted to state any material fact necessary in order
to make
the statements therein, in the light of the circumstances under which they
were
made, not misleading;
except
that in each case such counsel need express no opinion with respect to the
financial statements and notes and schedules thereto or other related financial,
accounting and statistical data contained in or omitted from the Disclosure
Package or the Final Memorandum or any further amendment or supplement
thereto.
“Applicable
law” means those laws, rules and regulations that, in such counsel’s experience,
are normally applicable to transactions of the type contemplated by the Purchase
Agreement, the Indentures and the Securities without such counsel’s having made
any special investigation as to the applicability of any specific law, rule
or
regulation, and that are not the subject of a specific opinion herein referring
expressly to a particular law or laws; provided however, that such references
do
not include any municipal or other local laws, rules or regulations, any
antifraud, environmental, labor, tax, state securities or Blue Sky, insurance
or
antitrust laws, rules or regulations, the Natural Gas Act, as amended, the
rules
and regulations promulgated thereunder by the Federal Energy Regulatory
Commission, and the rules and regulations of the National Association of
Securities Dealers, Inc.
21
“Governmental
Approval” means any consent, approval, license, authorization or validation of,
or filing, recording or registration with, any executive, legislative, judicial,
administrative or regulatory authority of the State of New York, the State
of
Delaware or the United States of America, pursuant to (a) applicable
laws of the State of New York, (b) applicable laws of the United
States of America, (c) the Delaware LP Act or (d) the Delaware LLC
Act.
(b) The
Partnership shall have requested and caused Xxxxxxx X. XxXxxxx, General Counsel
for the General Partner, to furnish to the Representatives his opinion, dated
the Closing Date and addressed to the Representatives, to the effect
that:
(i) Except
as
described in the Disclosure Package, there are no legal or governmental
proceedings pending to which either Partnership Party is a party or to which
any
property or asset of either Partnership Party is subject that, if determined
adversely to such Partnership Party, could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect or an adverse
effect
on the performance of the Purchase Agreement or the consummation of the
transactions contemplated thereby, and, to his knowledge, no such proceedings
are threatened or contemplated by governmental authorities or others; and
to his
knowledge, there are no statutes or pending or threatened legal or governmental
proceedings that would be required by the Act to be described in the Preliminary
Memorandum and the Final Memorandum, if the Preliminary Memorandum and the
Final
Memorandum were prospectuses included in a registration statement on Form
S-1
filed with the Commission, that are not so described;
(ii) The
statements made in each of the Preliminary Memorandum and the Final Memorandum
under the captions “Risk Factors—Risks Related to Our Business—Our natural gas
transportation, gathering and storage operations are subject to FERC rate-making
and accounting policies that could have an adverse impact on our ability
to
establish rates that would allow us to recover the full cost of operating
our
pipelines including a reasonable return and our ability to service our debt,”
“Risk Factors—Our natural gas transportation and storage operations are subject
to extensive regulation by FERC in addition to FERC rules and regulations
related to the rates we can charge for our services,” “Risk Factors—We are
subject to laws and regulations relating to the environment which may expose
us
to significant costs, liabilities and loss of revenues,” “Risk Factors—Pipeline
safety integrity programs and repairs may impose significant costs and
liabilities on us,” “Risk Factors—We are subject to strict regulations at many
of our facilities regarding employee safety” and “Business—Regulatory and
Environmental,” insofar as they refer to statements of law or legal conclusions,
fairly summarize the matters referred to therein in all material respects,
subject to the qualifications and assumptions therein; and
(iii) None
of
the offering, issuance and sale by the Partnership of the Securities and
the
application of the proceeds therefrom as described under the caption “Use of
Proceeds” in the Preliminary Memorandum and the Final Memorandum, the execution,
delivery and performance of the Purchase Agreement, the Indentures and the
Securities by the Partnership Parties, or the consummation of the transactions
contemplated thereby violates or will violate the Natural Gas Act, as amended,
or the rules and regulations promulgated thereunder by the Federal Energy
Regulatory Commission.
22
In
addition, he shall state that he has participated in conferences with officers
and other representatives of the Partnership Parties, representatives of
the
independent registered public accounting firm of the Partnership and
representatives of the Initial Purchasers, at which the contents of the
Disclosure Package and Final Memorandum and related matters were discussed,
and
although he did not independently investigate or verify the information set
forth in the Disclosure Package and Final Memorandum, and he is not passing
upon
and does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Disclosure Package and Final
Memorandum (except to the extent specified in paragraphs (i), (ii) and (iv)
above), based on the foregoing (relying as to factual matters in respect
of the
determination of materiality to the extent he deems reasonable and appropriate
upon the statements of fact made by officers and other representatives of
the
Partnership Parties), no facts have come to hisattention that have led such
counsel to believe that:
(A) the
Final Memorandum, as of its date and as of the Closing Date, contained or
contains any untrue statement of a material fact or omitted or omits to state
any material fact necessary in order to make the statements therein, in light
of
the circumstances under which they were made, not misleading; or
(B) the
Disclosure Package, as of the Execution Time, contained any untrue statement
of
a material fact or omitted to state any material fact necessary in order
to make
the statements therein, in the light of the circumstances under which they
were
made, not misleading;
except
that in each case he need express no opinion with respect to the financial
statements and notes and schedules thereto or other related financial,
accounting and statistical data contained in or omitted from the Disclosure
Package or the Final Memorandum or any further amendment or supplement
thereto.
(c) The
Representatives shall have received from Xxxxxxx Xxxxx LLP, counsel for the
Initial Purchasers, such opinion or opinions, dated the Closing Date and
addressed to the Representatives, with respect to the issuance and sale of
the
Securities, the Indentures, the Disclosure Package, the Final Memorandum
(as
amended or supplemented at the Closing Date) and other related matters as
the
Representatives may reasonably require, and the Partnership shall have furnished
to such counsel such documents as they request for the purpose of enabling
them
to pass upon such matters.
(d) The
General Partner shall have furnished to the Representatives a certificate
of the
General Partner, on behalf of the Partnership, signed by (x) the President
of
the General Partner and (y) the principal financial or accounting officer
of the
General Partner, dated the Closing Date, to the effect that the signers of
such
certificate have carefully examined the Disclosure Package and the Final
Memorandum, any supplements or amendments thereto, and this Agreement and
that:
23
(i) the
representations and warranties of the Partnership Parties in this Agreement
are
true and correct on and as of the Closing Date with the same effect as if
made
on the Closing Date, and each of the Partnership Parties has complied with
all
the agreements and satisfied all the conditions on its part to be performed
or
satisfied hereunder at or prior to the Closing Date; and
(ii) since
the
date of the most recent financial statements included in
the Disclosure Package and the Final Memorandum (exclusive of any amendment
or
supplement thereto), there has been no material adverse change in the condition
(financial or otherwise), prospects, earnings, business or properties of
the
Partnership Parties, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Disclosure
Package and the Final Memorandum (exclusive of any amendment or supplement
thereto).
(e) At
the
Execution Time and on the Closing Date, the Partnership shall have requested
and
caused Deloitte & Touche LLP to furnish to the Representatives letters,
dated as of the Execution Time and as of the Closing Date, respectively,
in form
and substance satisfactory to the Representatives and confirming that they
are
independent certified public accountants with respect to the Partnership
under
Rule 101 of the AICPA’s Code of Professional Conduct and its interpretations and
rulings and stating in effect that:
(i) on
the
basis of a reading of the latest unaudited financial statements made available
by the Partnership; their limited review in accordance with the standards
established under Statement on Auditing Standards No. 100 of the unaudited
interim financial information for the six-month periods ended June 30, 2007
and
2006, and as of June 30, 2007; carrying out certain specified procedures
(but
not an examination in accordance with generally accepted auditing standards)
which would not necessarily reveal matters of significance with respect to
the
comments set forth in such letter; a reading of the minutes of the meetings
of
the unitholders, directors and audit committee of the General Partner; and
inquiries of certain officials of the Partnership who have responsibility
for
financial and accounting matters of the Partnership as to transactions and
events subsequent to December 31, 2006, nothing came to their
attention which caused them to believe that:
(A) any
unaudited financial statements included in the Preliminary Memorandum or
the
Final Memorandum do not comply as to form with generally accepted accounting
principles applied on a basis substantially consistent with that of the audited
financial statements included in the Preliminary
Memorandum and the Final Memorandum; or
24
(B) with
respect to the period subsequent to June 30, 2007, there were, at a specified
date not more than five days prior to the date of the letter, any changes
in the
long-term debt of the Partnership or decreases in net current assets or total
partners’ capital of the Partnership as compared with the amounts shown on the
June 30, 2007 balance sheet included in the Preliminary Memorandum and the
Final
Memorandum, or for the period from July 1, 2007 to such specified date there
were any decreases, as compared with the corresponding period in the preceding
year, in revenues, operating income or net income of the
Partnership, except in all instances for changes or decreases set forth in
such
letter, in which case the letter shall be accompanied by an explanation by
the
Partnership as to the significance thereof unless said explanation is not
deemed
necessary by the Representatives; and
(ii) they
have
performed certain other specified procedures as a result of which they
determined that certain information of an accounting, financial or statistical
nature (which is limited to accounting, financial or statistical information
derived from the general accounting records of the Partnership) set forth
in the
Preliminary Memorandum and the Final Memorandum, including the information
set
forth under the captions “Summary Historical Financial and Operating Data” and
“Management’s Discussion and Analysis of Results of Operation and Financial
Condition” in the Preliminary Memorandum and the Final Memorandum, agrees with
the accounting records of the Partnership, excluding any questions of legal
interpretation.
(f) Subsequent
to the Execution Time or, if earlier, the date of the most recent financial
statements included in the Disclosure Package (exclusive of any amendment
or
supplement thereto) and the Final Memorandum (exclusive of any amendment
or
supplement thereto), there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (e) of this Section
6; or (ii) any adverse change, or any development involving a prospective
adverse change, in or affecting the condition (financial or otherwise),
prospects, earnings, business or properties of the Partnership Parties taken
as
a whole, whether or not arising from transactions in the ordinary course
of
business, except as set forth in or contemplated in the Disclosure Package
and
the Final Memorandum (exclusive of any amendment or supplement thereto),
the
effect of which, in any case referred to in clause (i) or (ii) above, is,
in the
judgment of the Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the offering or delivery of
the
Securities as contemplated in the Disclosure Package and the Final Memorandum
(exclusive of any amendment or supplement thereto).
(g) The
Securities shall be eligible for clearance and settlement through The Depository
Trust Company.
(h) Subsequent
to the Execution Time, there shall not have been any downgrading in the rating
of any debt securities of the Partnership or any of its Affiliates by any
“nationally recognized statistical rating organization” (as defined for purposes
of Rule 436(g) under the Act) or any notice given of any intended or
potential decrease in any such rating or of a possible change in any such
rating
that does not indicate the direction of the possible change.
25
(i) Prior
to
the Closing Date, the Partnership shall have furnished to the Representatives
such further information, certificates and documents as the Representatives
may
reasonably request.
If
any of
the conditions specified in this Section 6 shall not have been fulfilled in
all material respects when and as provided in this Agreement, or if any of
the
opinions and certificates mentioned above or elsewhere in this Agreement
shall
not be in all material respects reasonably satisfactory in form and substance
to
the Representatives and counsel for the Initial Purchasers, this Agreement
and
all obligations of the Initial Purchasers hereunder may be cancelled at,
or at
any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Partnership in writing or by telephone
or facsimile confirmed in writing.
The
documents required to be delivered by this Section 6 will be delivered at
the office of counsel for the Initial Purchasers, at 000 Xxxxxxxxx Xxx.,
00xx Xxxxx,
Xxx Xxxx,
Xxx Xxxx 00000, on the Closing Date.
7. Reimbursement
of Expenses. If the sale of the Securities provided for herein is
not consummated because any condition to the obligations of the Initial
Purchasers set forth in Section 6 hereof is not satisfied or because of any
refusal, inability or failure on the part of either of the Partnership Parties
to perform any agreement herein or comply with any provision hereof other
than
by reason of a default by any of the Initial Purchasers, the Partnership
Parties
will reimburse the Initial Purchasers severally through Citi on demand for
all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities.
8. Indemnification
and Contribution.
(a) The
Partnership Parties, jointly and severally, agree to indemnify and hold harmless
each Initial Purchaser, the directors, officers, employees, Affiliates and
agents of each Initial Purchaser and each person who controls any Initial
Purchaser within the meaning of either the Act or the Exchange Act against
any
and all losses, claims, damages or liabilities, joint or several, to which
they
or any of them may become subject under the Act, the Exchange Act or other
U.S.
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities or actions in respect
thereof arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Preliminary Memorandum, the
Final
Memorandum, any Issuer Written Information or any other written information
used
by or on behalf of the Partnership in connection with the offer or sale of
the
Securities, or in any amendment or supplement thereto, or arise out of or
are
based upon the omission or alleged omission to state therein 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
agrees to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by it, as incurred, in connection with investigating
or
defending any such loss, claim, damage, liability or action; provided,
however, that the Partnership Parties will not be liable in any
such case
to the extent that any such loss, claim, damage or liability arises out of
or is
based upon any such untrue statement or alleged untrue statement or omission
or
alleged omission made in the Preliminary Memorandum or the Final Memorandum,
or
in any amendment thereof or supplement thereto, in reliance upon and in
conformity with information furnished in writing to the Partnership by or
on
behalf of the Initial Purchasers through the Representatives specifically
for
inclusion therein. This indemnity agreement will be in addition to
any liability that the Partnership Parties may otherwise have.
26
(b) Each
Initial Purchaser severally, and not jointly, agrees to indemnify and hold
harmless the Partnership Parties, each of their directors and officers, and
each
person who controls the Partnership Parties within the meaning of either
the Act
or the Exchange Act, to the same extent as the foregoing indemnity to each
Initial Purchaser, but only with reference to information relating to such
Initial Purchaser furnished in writing to the Partnership by or on behalf
of
such Initial Purchaser through the Representatives specifically for inclusion
in
the Preliminary Memorandum or the Final Memorandum. This indemnity
agreement will be in addition to any liability that any Initial Purchaser
may
otherwise have. The Partnership Parties acknowledge that the
statements set forth (i) in the last paragraph of the cover page (regarding
delivery of the Securities) and (ii) under the heading
“Plan of Distribution,” in (A) the table of Initial Purchasers (including
the principal amount of Securities to be purchased by such Initial Purchasers)
and (B) the 7th and 8th paragraphs (related to stabilization and syndicate
covering transactions) in the Preliminary Memorandum and the Final Memorandum
constitute the only information furnished in writing by or on behalf of the
Initial Purchasers for inclusion in the Preliminary Memorandum or the Final
Memorandum. This indemnity agreement will be in addition to any
liability that the Initial Purchaser may otherwise have.
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 8,
notify the indemnifying party in writing of the commencement thereof; but
the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did
not otherwise learn of such action and such failure results in the forfeiture
by
the indemnifying party of substantial rights and defenses and (ii) will
not, in any event, relieve the indemnifying party from any obligations to
any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be
entitled to appoint counsel (including local counsel) of the indemnifying
party’s choice at the indemnifying party’s expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses
of any separate counsel, other than local counsel if not appointed by the
indemnifying party, retained by the indemnified party or parties except as
set
forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party’s election to appoint counsel (including local counsel) to
represent the indemnified party in an action, the indemnified party shall
have
the right to employ one separate counsel (in addition to local counsel),
and the
indemnifying party shall bear the reasonable fees, costs and expenses of
such
separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict
of
interest; (ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the indemnifying party
and
the indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties that are different
from or additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory
to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action; or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying
party will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect
to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
27
(d) In
the
event that the indemnity provided in paragraph (a) or (b) of this
Section 8 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Partnership Parties and the Initial Purchasers
severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending any loss, claim, damage, liability or action)
(collectively “Losses”) to which the Partnership Parties and one or more of the
Initial Purchasers may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Partnership Parties on the
one
hand and by the Initial Purchasers on the other from the offering of the
Securities; provided, however, that in no case shall any Initial
Purchaser be responsible for any amount in excess of the purchase discount
or
commission applicable to the Securities purchased by such Initial Purchaser
hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Partnership Parties and the Initial
Purchasers severally shall contribute in such proportion as is appropriate
to
reflect not only such relative benefits but also the relative fault of the
Partnership Parties on the one hand and the Initial Purchasers on the other
in
connection with the statements or omissions that resulted in such Losses,
as
well as any other relevant equitable considerations. Benefits
received by the Partnership Parties shall be deemed to be equal to the total
net
proceeds from the offering (before deducting expenses) received by it, and
benefits received by the Initial Purchasers shall be deemed to be equal to
the
total purchase discounts and commissions. Relative fault shall be
determined by reference to, among other things, whether any untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state
a material fact relates to information provided by the Partnership Parties
on
the one hand or the Initial Purchasers on the other, the intent of the parties
and their relative knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The Partnership Parties
and the Initial Purchasers agree that it would not be just and equitable
if
contribution were determined by pro rata allocation or any other method of
allocation that does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d),
no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 8, each person who controls an Initial Purchaser within the
meaning of either the Act or the Exchange Act and each director, officer,
employee, Affiliate and agent of an Initial Purchaser shall have the same
rights
to contribution as such Initial Purchaser, and each person who controls the
Partnership Parties within the meaning of either the Act or the Exchange
Act and
each officer and director of the Partnership Parties shall have the same
rights
to contribution as the Partnership Parties, subject in each case to the
applicable terms and conditions of this paragraph (d).
28
9. Default
by an Initial Purchaser. If any one or more Initial Purchasers
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Initial Purchaser hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under
this
Agreement, the remaining Initial Purchasers shall be obligated severally
to take
up and pay for (in the respective proportions which the principal amount
of
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate principal amount of Securities set forth opposite the names of
all the
remaining Initial Purchasers) the Securities which the defaulting Initial
Purchaser or Initial Purchasers agreed but failed to purchase; provided,
however, that in the event that the aggregate principal amount of
Securities which the defaulting Initial Purchaser or Initial Purchasers agreed
but failed to purchase shall exceed 10% of the aggregate principal amount
of
Securities set forth in Schedule I hereto, the remaining Initial Purchasers
shall have the right to purchase all, but shall not be under any obligation
to
purchase any, of the Securities, and if such nondefaulting Initial Purchasers
do
not purchase all the Securities, this Agreement will terminate without liability
to any nondefaulting Initial Purchaser or the Partnership Parties. In
the event of a default by any Initial Purchaser as set forth in this
Section 9, the Closing Date shall be postponed for such period, not
exceeding five Business Days, as the Representatives shall determine in order
that the required changes in the Final Memorandum or in any other documents
or
arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Initial Purchaser of its liability, if any,
to the
Partnership Parties or any nondefaulting Initial Purchaser for damages
occasioned by its default hereunder.
10. Termination. This
Agreement shall be subject to termination in the absolute discretion of the
Representatives, by notice given to the Partnership prior to delivery of
and
payment for the Securities, if at any time prior to such time (i) trading
in securities generally on the New York Stock Exchange, the American Stock
Exchange or the Nasdaq Stock Market shall have been suspended or limited
or
minimum prices shall have been established on such exchange; (ii) a banking
moratorium shall have been declared either by U.S. federal or New York State
authorities; or (iii) there shall have occurred any
outbreak or escalation of hostilities, declaration by the United States of
a
national emergency or war or other calamity or crisis the effect of which
on
financial markets is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to proceed with the offering or delivery of
the
Securities as contemplated in the Disclosure Package and the Final Memorandum
(exclusive of any amendment or supplement thereto).
29
11. Representations
and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Partnership
Parties or their officers and of the Initial Purchasers set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless
of
any investigation made by or on behalf of the Initial Purchasers or the
Partnership Parties or any of the indemnified persons referred to in
Section 8 hereof, and will survive delivery of and payment for the
Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this Agreement.
12. Notices. All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to the Representatives, will be mailed, delivered or telefaxed to
the
Citi General Counsel (fax no.: (000) 000-0000) and confirmed to
Citi at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: General Counsel; or, if sent to the Partnership Parties,
will be mailed, delivered or telefaxed to (000) 000-0000 and confirmed to
it at
the Partnership’s address set forth in the Final Memorandum, attention of the
Chief Financial Officer.
13. Successors. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the indemnified persons referred to in
Section 8 hereof and their respective successors, and, except as expressly
set forth in Section 5(k) hereof, no other person will have any right or
obligation hereunder.
14. Jurisdiction. The
Partnership Parties hereby submit to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York
in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
15. Integration. This
Agreement supersedes all prior agreements and understandings (whether written
or
oral) between the Partnership Parties and the Initial Purchasers, or any
of
them, with respect to the subject matter hereof.
16. Applicable
Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
17. Waiver
of Jury Trial. Each of the Partnership Parties hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all right
to
trial by jury in any legal proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
18. No
Fiduciary Duty. The Partnership Parties hereby acknowledge that
(a) the purchase and sale of the Securities pursuant to this Agreement is
an
arm’s-length commercial transaction between the Partnership, on the one hand,
and the Initial Purchasers and any Affiliate through which it may be acting,
on
the other, (b) the Initial Purchasers are acting as principal and not as
an
agent or fiduciary of the Partnership and (c) the Partnership’s engagement of
the Initial Purchasers in connection with the offering and the
process leading up to the offering is as independent contractors and not
in any
other capacity. Furthermore, the Partnership agrees that it is solely
responsible for making its own judgments in connection with the offering
(irrespective of whether any of the Initial Purchasers has advised or is
currently advising the Partnership on related or other matters). The
Partnership Parties agree that they will not claim that the Initial Purchasers
have rendered advisory services of any nature or respect, or owe an agency,
fiduciary or similar duty to the Partnership Parties, in connection with
such
transaction or the process leading thereto.
30
19. Counterparts. This
Agreement may be signed in one or more counterparts, each of which shall
constitute an original and all of which together shall constitute one and
the
same agreement.
20. Headings. The
section headings used herein are for convenience only and shall not affect
the
construction hereof.
21. Definitions. The
terms that follow, when used in this Agreement, shall have the meanings
indicated.
“Act”
shall mean the Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.
“Affiliate”
shall have the meaning specified in Rule 501(b) of
Regulation D.
“Agreement”
shall mean this Purchase Agreement.
“Business
Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or
a
day on which banking institutions or trust companies are authorized or obligated
by law to close in The City of New York.
“Citi”
shall mean Citigroup Global Markets Inc.
“Code”
shall mean the Internal Revenue Code of 1986, as amended.
“Commission”
shall mean the Securities and Exchange Commission.
“Disclosure
Package” shall mean (i) the Preliminary Memorandum, as amended or supplemented
at the Execution Time, (ii) the final term sheet prepared pursuant to Section
5(b) hereto and in the form attached as Schedule III hereto and (iii) any
Issuer
Written Information.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder.
“Execution
Time” shall mean the date and time that this Agreement is executed and delivered
by the parties hereto.
“Investment
Company Act” shall mean the Investment Company Act of 1940, as amended, and the
rules and regulations of the Commission promulgated thereunder.
31
“Issuer
Written Information” shall mean any writings in addition to the Preliminary
Memorandum that the parties expressly agree in writing to treat as part of
the
Disclosure Package.
“NASD”
shall mean the National Association of Securities Dealers, Inc.
“Regulation D”
shall mean Regulation D under the Act.
“Regulation S”
shall mean Regulation S under the Act.
“Trust
Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission promulgated thereunder.
[Signature
page follows]
32
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to us the enclosed duplicate hereof, whereupon this letter and
your
acceptance shall represent a binding agreement between the Partnership Parties
and the several Initial Purchasers.
Very
truly yours,
GS
Pipeline Company,
LLC
By:
/s/ Xxxxx X.
Xxxxxxx
Name: Xxxxx
X. Xxxxxxx
Title: Chief
Financial Officer
|
Gulf
South Pipeline Company, LP
|
|
By:
GS Pipeline Company, LLC, its general
partner
|
By:
/s/ Xxxxx X.
Xxxxxxx
Name: Xxxxx
X. Xxxxxxx
Title: Chief
Financial Officer
The
foregoing Agreement is hereby
confirmed
and accepted as of the
date
first above written.
|
Citigroup
Global Markets Inc.
|
By:
|
/s/
Xxxxx Xxxxxxxxx
|
|
Name:
Xxxxx Xxxxxxxxx
|
|
Title: Director
|
|
Xxxxxx
Xxxxxxx & Co.
Incorporated
|
By:
|
/s/
Xxxxx Xxxx
|
|
Name:
Xxxxx Xxxx
|
|
Title: VP
|
For
themselves and the other several Initial
Purchasers
named in Schedule I to the
foregoing
Agreement.
Signature
Page to Purchase
Agreement |
SCHEDULE I
Initial
Purchasers
|
Principal
Amount of 2012 Notes to be Purchased
|
Principal
Amount of 2017 Notes to be Purchased
|
Citigroup
Global Markets Inc.
|
U.S.$112,500,000.00
|
U.S.$137,500,000.00
|
Xxxxxx
Xxxxxxx & Co. Incorporated
|
U.S.$112,500,000.00
|
U.S.$137,500,000.00
|
Total
|
U.S.$225,000,000.00
|
U.S.$275,000,000.00
|
Signature
Page to Purchase
Agreement |
SCHEDULE
II
JURISDICTIONS
OF QUALIFICATION
Name
of Entity
|
Jurisdiction
of
Formation
|
Jurisdictions
of
Qualification
|
GS
Pipeline Company, LLC
|
Delaware
|
Texas,
Mississippi and Florida
|
Gulf
South Pipeline Company, LP
|
Delaware
|
Texas,
Louisiana, Mississippi, Alabama, Florida and
Kansas
|
SCHEDULE
III
ISSUER:
Gulf South Pipeline Company, LP
SECURITY:
RANKING:
SIZE:
MATURITY:
PRICE
TO
PUBLIC:
PAYMENT
DATES:
SPREAD
TO
BENCHMARK TREASURY:
BENCHMARK
TREASURY:
BENCHMARK
TREASURY YIELD:
MAKE-WHOLE
CALL:
EXPECTED
SETTLEMENT DATE:
USE
OF
PROCEEDS:
RATING:
CUSIP/ISIN:
JOINT
BOOK-RUNNING MANAGERS: Citigroup Global Markets Inc. and Xxxxxx Xxxxxxx &
Co. Incorporated
CO-MANAGERS:
This
communication is intended for the sole use of the person to whom it is provided
by the sender.
These
securities have not been registered under the Securities Act of 1933, as
amended, and may only be sold to qualified institutional buyers pursuant
to Rule
144A or pursuant to another applicable exemption from registration.
The
information in this term sheet supplements the Partnership’s preliminary
offering memorandum, dated
(the “Preliminary Memorandum”) and supercedes the information in the Preliminary
Memorandum to the extent inconsistent with the information in the Preliminary
Memorandum. This term sheet is qualified in its entirety by
reference to the Preliminary Memorandum. Terms used herein but not
defined herein shall have the respective meanings as set forth in the
Preliminary Memorandum.
A
securities rating is not a recommendation to buy, sell or hold securities
and
may be subject to revision or withdrawal at any time.
ANY
DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO
THIS
COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER
NOTICES WERE AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION BEING
SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM.