Boardwalk Pipeline Partners, LP 10,000,000 Common Units Representing Limited Partner Interests UNDERWRITING AGREEMENT
Exhibit
1.1
10,000,000
Common Units
Representing
Limited Partner Interests
June 10,
2008
Citigroup
Global Markets Inc.
Xxxxxx
Brothers Inc.
Xxxxxx
Xxxxxxx & Co. Incorporated
UBS
Securities LLC
As
Representatives of the several Underwriters named in Schedule 1
hereto
c/o
Citigroup Global Markets Inc.
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
c/x
Xxxxxx Brothers Inc.
000
Xxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
c/o
Morgan Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
c/o UBS
Securities LLC
000 Xxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
Boardwalk
Pipeline Partners, LP, a Delaware limited partnership (the “Partnership”), proposes to
sell 10,000,000 common units (the “Firm Units”) representing
limited partner interests in the Partnership (the “Common Units”). In
addition, the Partnership proposes to grant to the underwriters named in Schedule 1 (the
“Underwriters”) attached
to this agreement (this “Agreement”) an option to
purchase up to an additional 1,500,000 Common Units on the terms and for the
purposes set forth in Section 2
hereof (the “Option
Units”). The Firm Units and the Option Units, if purchased,
are hereinafter collectively called the “Units.” This
Agreement is to confirm the agreement concerning the purchase of the Firm Units
and the Option Units, if purchased, from the Partnership by the
Underwriters. Capitalized terms used but not defined herein shall
have the same meanings given them in the Partnership Agreement or the Prospectus
(each as defined herein).
Boardwalk
GP, LP, a Delaware limited partnership (the “General Partner”), serves as
the sole general partner of the Partnership. Boardwalk GP, LLC, a
Delaware limited liability company (“BGL”), serves as the sole
general partner of the General Partner. Each of Boardwalk Operating
GP, LLC, a Delaware limited liability company (“Operating GP”), Boardwalk
Pipelines, LP, a Delaware limited partnership (the “Operating Partnership”), Texas
Gas Transmission, LLC, a Delaware limited liability company (“Texas Gas”), GS Pipeline
Company, LLC, a Delaware limited liability company (“Gulf South GP”), Gulf South
Pipeline Company, LP, a Delaware limited partnership (“Gulf South”), and Gulf
Crossing Pipeline Company, LLC, a Delaware limited liability company (“Gulf Crossing”), is sometimes
referred to herein as a “Subsidiary,” and they are
sometimes collectively referred to herein as the “Subsidiaries.” Each
of BGL, the General Partner and the Partnership is sometimes referred to herein
as a “Partnership
Party,” and they are sometimes collectively referred to herein as the
“Partnership
Parties.” Each of the Partnership Parties and each of the
Subsidiaries is sometimes referred to herein as a “Partnership Entity,” and they
are sometimes collectively referred to herein as the “Partnership
Entities.”
1. Representations,
Warranties and Agreements of the Partnership Parties»
. Each
Partnership Party jointly and severally represents, warrants and agrees
that:
(a) A
registration statement on Form S-3 relating to the Units (File No. 333-141058)
(i) has been prepared by the Partnership in conformity with the
requirements of the Securities Act of 1933, as amended (the “Securities Act”) and the rules
and regulations (the “Rules and
Regulations”) of the Securities and Exchange Commission (the “Commission”) thereunder; (ii)
has been filed with the Commission under the Securities Act; and (iii) is
effective under the Securities Act. Copies of such registration
statement and any amendment thereto (including all documents incorporated by
reference in each prospectus contained therein) have been delivered by the
Partnership to the Underwriters. As used in this
Agreement,
(i) “Applicable Time” means 6:00
p.m. (New York City time) on June 10, 2008;
(ii) “Base Prospectus” means the
base prospectus filed as part of the Registration Statement, in the form in
which it has most recently been amended on or prior to the date hereof, relating
to the Units;
(iii) “Effective Date” means any date
as of which any part of such registration statement relating to the Units
became, or is deemed to have become, effective under the Securities Act in
accordance with the Rules and Regulations;
(iv) “Issuer Free Writing
Prospectus” means each “free writing prospectus” (as defined in Rule 405
of the Rules and Regulations) prepared by or on behalf of the Partnership or
used or referred to by the Partnership in connection with the offering of the
Units;
(v) “Preliminary Prospectus” means
any preliminary prospectus included in such registration statement or filed with
the Commission by the Partnership pursuant to Rule 424(b) of the Rules and
Regulations, including any preliminary prospectus supplement thereto relating to
the Units;
(vi) “Pricing Disclosure Package”
means, as of the Applicable Time, the Base Prospectus and the most recent
Preliminary Prospectus, together with the information included in Schedule 4 hereto and
each Issuer Free Writing Prospectus identified on Schedule 5 hereto,
other than a road show that is an Issuer Free Writing Prospectus but is not
required to be filed under Rule 433 of the Rules and Regulations;
(vii) “Prospectus” means the final
prospectus relating to the Units, including the Base Prospectus and any
prospectus supplement thereto relating to the Units, as filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations;
and
(viii) “Registration Statement” means,
collectively, the various parts of such registration statement, including all
exhibits thereto, each as amended as of the Effective Date for such part,
including any Preliminary Prospectus or the Prospectus and all exhibits to such
registration statement.
Any
reference to the Registration Statement, Base Prospectus, the Pricing Disclosure
Package, any Preliminary Prospectus, or the Prospectus shall be deemed to refer
to and include any documents incorporated by reference therein pursuant to Form
S-3 under the Securities Act. Any reference to the “most recent Preliminary
Prospectus” shall be deemed to refer to the latest Preliminary Prospectus
included in the Registration Statement or filed pursuant to Rule 424(b) of the
Rules and Regulations prior to or on the date hereof (including, for purposes
hereof, any documents incorporated by reference therein prior to or on the date
hereof). Any reference to any amendment or supplement to the Pricing
Disclosure Package, any Preliminary Prospectus, or the Prospectus shall be
deemed to refer to and include any document filed under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), after the date
of the Pricing Disclosure Package, the Preliminary Prospectus, or the
Prospectus, as the case may be, and incorporated by reference in the Pricing
Disclosure Package or the Prospectus, as the case may be; and any reference to
any amendment to the Registration Statement shall be deemed to include any
periodic or current report of the Partnership filed with the Commission pursuant
to Section 13(a) or 15(d) of the Exchange Act after the Effective Date and that
is incorporated by reference in the Registration Statement. The
Commission has not issued any order preventing or suspending the use of the
Pricing Disclosure Package, any Preliminary Prospectus, or the Prospectus or
suspending the effectiveness of the Registration Statement, and no proceeding
for such purpose has been instituted or threatened by the
Commission, The Commission has not notified the Partnership of any
objection to the use of the form of the Registration Statement.
(b) The
Partnership was, (i) at the time of filing of the Registration Statement and
(ii) at the time of the most recent amendment thereto (whether by post-effective
amendment, incorporated report filed pursuant to Section 13 or 15(d) of the
Exchange Act, or form of prospectus) for purposes of complying with Section
10(a)(3) of the Securities Act (or, if any such amendment was not made within
the time period required by Section 10(a)(3) of the Securities Act, at the date
on which such amendment was required), a “well-known seasoned issuer” (as
defined in Rule 405 of the Rules and Regulations). The Partnership
was not, at the earliest time after the filing of the Registration Statement at
which the Partnership or another offering participant made a bona fide offer
(including without limitation through the use of a free writing prospectus)
relating to the Units, an “ineligible issuer” (as defined in Rule 405 of the
Rules and Regulations). The Registration Statement is an “automatic
shelf registration statement” (as defined in Rule 405 of the Rules and
Regulations) and was filed not earlier than the date that is three years prior
to the applicable Delivery Date (as defined in Section 4).
(c) The
Registration Statement conformed and will conform in all material respects on
the Effective Date and on the applicable Delivery Date, and any amendment to the
Registration Statement filed after the date hereof will conform in all material
respects when filed, to the requirements of the Securities Act and the Rules and
Regulations. The most recent Preliminary Prospectus conformed and the
Prospectus will conform in all material respects, when filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations and on the applicable
Delivery Date, to the requirements of the Securities Act and the Rules and
Regulations. The documents incorporated by reference into the Pricing
Disclosure Package, any Preliminary Prospectus, or the Prospectus conformed or
will conform, at the time they were or are filed with the Commission, in all
material respects to the requirements of the Exchange Act or the Securities Act,
as applicable, and the rules and regulations of the Commission
thereunder.
(d) The
Registration Statement did not, as of the Effective Date, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; provided that no
representation or warranty is made as to information contained in or omitted
from the Registration Statement in reliance upon and in conformity with written
information furnished to the Partnership by or on behalf of any Underwriter
specifically for inclusion therein, which information is specified in Section 8(e)
hereof.
(e) The
Prospectus and any amendment or supplement thereto did not, as of its date, and
will not, as of the applicable Delivery Date, contain an untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided
that no representation or warranty is made as to information contained in or
omitted from the Prospectus in reliance upon and in conformity with written
information furnished to the Partnership by or on behalf of any Underwriter
specifically for inclusion therein, which information is specified in Section 8(e)
hereof.
(f) The
documents incorporated by reference into the Registration Statement, the Pricing
Disclosure Package, any Preliminary Prospectus, or the Prospectus did not, and
any further documents filed and incorporated by reference will not, at the time
they were or are filed with the Commission, contain an untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein (and in the case of documents incorporated by reference into the Pricing
Disclosure Package or the Prospectus, in the light of the circumstances under
which they were made) not misleading.
(g) The
Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided that no
representation or warranty is made as to information contained in or omitted
from the Pricing Disclosure Package in reliance upon and in conformity with
written information furnished to the Partnership by or on behalf of any
Underwriter specifically for inclusion therein, which information is specified
in Section 8(e)
hereof.
(h) Each
Issuer Free Writing Prospectus (including, without limitation, any road show
that is a free writing prospectus under Rule 433 of the Rules and Regulations),
when considered together with the Pricing Disclosure Package as of the
Applicable Time, did not contain an untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(i) Each
Issuer Free Writing Prospectus conformed or will conform in all material
respects to the requirements of the Securities Act and the Rules and Regulations
on the date of first use, and the Partnership has complied with all prospectus
delivery and any filing requirements applicable to such Issuer Free Writing
Prospectus pursuant to the Rules and Regulations. The Partnership has
not made any offer relating to the Units that would constitute an Issuer Free
Writing Prospectus without the prior written consent of the
Representatives. The Partnership has retained in accordance with the
Rules and Regulations all Issuer Free Writing Prospectuses that were not
required to be filed pursuant to the Rules and Regulations.
(j) Each of
the General Partner, the Partnership, the Operating Partnership and Gulf South
has been duly formed and is validly existing and in good standing as a limited
partnership under the Delaware Revised Uniform Limited Partnership Act (the
“Delaware LP Act”), has
the full partnership power and authority necessary to own or hold its properties
and assets and to conduct the businesses in which it is engaged, and is, or at
each Delivery Date will be, duly registered or qualified to do business and in
good standing as a foreign limited partnership in each jurisdiction listed
opposite its name in Schedule 2
attached hereto, such jurisdictions being the only jurisdictions in which its
ownership or lease of property or the conduct of its business requires such
qualification, except where the failure to so register or qualify could not
reasonably be expected to (i) have a material adverse effect on the
condition (financial or other), results of operations, securityholders’ equity,
properties, business or prospects of the Partnership Entities (other than the
General Partner and BGL), taken as a whole (a “Material Adverse Effect”) or
(ii) subject the limited partners of the Partnership to any material
liability or disability.
(k) Each of
BGL, Operating GP, Texas Gas, Gulf South GP and Gulf Crossing has been duly
formed and is validly existing and in good standing as a limited liability
company under the Delaware Limited Liability Company Act (the “Delaware LLC Act”), has the
full limited liability company power and authority necessary to own or hold its
properties and assets and to conduct the businesses in which it is engaged, and
is, or at each Delivery Date will be, duly registered or qualified to do
business and in good standing as a foreign limited liability company in each
jurisdiction listed opposite its name in Schedule 2
attached hereto, such jurisdictions being the only jurisdictions in which its
ownership or lease of property or the conduct of its business requires such
qualification, except where the failure to so register or qualify could not
reasonably be expected to (i) have a Material Adverse Effect or
(ii) subject the limited partners of the Partnership to any material
liability or disability.
(l) Relying
solely on documents filed by Loews Corporation, a Delaware corporation (“Loews”), under Section 13(d)
of the Exchange Act, Loews indirectly owns a 100% limited liability company
interest in BGL; such limited liability company interest has been duly and
validly authorized and issued in accordance with the limited liability company
agreement of BGL (as the same may be amended on or prior to the Initial Delivery
Date (as defined in Section 4 hereof), the “BGL LLC Agreement”) and is
fully paid (to the extent required under the BGL LLC Agreement) and
non-assessable (except as such non-assessability may be affected by Sections
18-607 and 18-804 of the Delaware LLC Act).
(m) BGL is
the sole general partner of the General Partner, with a 0.001% general partner
interest in the General Partner; such general partner interest has been duly and
validly authorized and issued in accordance with the agreement of limited
partnership of the General Partner (as the same may be amended on or prior to
the Initial Delivery Date, the “GP Partnership Agreement”);
and BGL owns such general partner interest free and clear of all liens,
encumbrances, security interests, equities, charges or claims (collectively,
“Liens”).
(n) The
General Partner is the sole general partner of the Partnership, with a 2.0%
general partner interest in the Partnership; such general partner interest has
been duly and validly authorized and issued in accordance with the Second
Amended and Restated Agreement of Limited Partnership of the Partnership (as the
same may be amended on or prior to the Initial Delivery Date and as may be
amended in connection with the issuance of the Class B Units as described in the
Pricing Disclosure Package, the “Partnership Agreement”); and
the General Partner owns such general partner interest free and clear of all
Liens. The General Partner owns all of the Incentive Distribution
Rights (as defined in the Partnership Agreement); all of such Incentive
Distribution Rights have been duly and validly authorized and issued in
accordance with the Partnership Agreement and are fully paid (to the extent
required under the Partnership Agreement) and non-assessable (except as such
non-assessability may be affected by matters described in the Base Prospectus
under the caption “The Partnership Agreement—Limited Liability”); the General
Partner owns all of such Incentive Distribution Rights free and clear of all
Liens; and such Incentive Distribution Rights conform to the descriptions
thereof contained in the Pricing Disclosure Package.
(o) Relying
solely on documents filed by Loews under Section 13(d) of the Exchange Act,
Loews indirectly owns all of the outstanding subordinated units (“Subordinated Units”) and
53,256,122 Common Units (such Subordinated Units and Common Units,
the “Sponsor Units”);
all of such Sponsor Units have been duly and validly authorized and issued in
accordance with the Partnership Agreement and are fully paid (to the extent
required under the Partnership Agreement) and non-assessable (except as such
non-assessability may be affected by matters described in the Base Prospectus
under the caption “The Partnership Agreement—Limited Liability”); and such
Sponsor Units conform to the descriptions thereof contained in each of the
Pricing Disclosure Package and the Prospectus.
(p) The Firm
Units and the Option Units, if any, to be issued and sold by the Partnership to
the Underwriters hereunder have been duly authorized in accordance with the
Partnership Agreement and, when issued and delivered against payment therefor
pursuant to this Agreement, will be validly issued in accordance with the
Partnership Agreement, fully paid (to the extent required under the Partnership
Agreement) and non-assessable (except as such non-assessability may be affected
by matters described in the Base Prospectus under the caption “The Partnership
Agreement—Limited Liability”); the Firm Units and the Option Units, if
any, when issued and delivered against payment therefor pursuant to this
Agreement, will conform to the descriptions thereof contained in Pricing
Disclosure Package.
(q) The
Partnership owns a 100% limited liability company interest in Operating GP; such
limited liability company interest has been duly and validly authorized and
issued in accordance with the limited liability company agreement of Operating
GP (as the same may be amended on or prior to each Delivery Date, the “Operating GP LLC Agreement”)
and is fully paid (to the extent required under the Operating GP LLC Agreement)
and non-assessable (except as such non-assessability may be affected by Sections
18-607 and 18-804 of the Delaware LLC Act); and the Partnership owns such
limited liability company interest free and clear of all Liens (except for such
Liens as are not individually or in the aggregate, material to such ownership or
as described in the Pricing Disclosure Package).
(r) Operating
GP is the sole general partner of the Operating Partnership, with a 0.001%
general partner interest in the Operating Partnership; such general partner
interest has been duly and validly authorized and issued in accordance with the
agreement of limited partnership of the Operating Partnership (as the same may
be amended on or prior to each Delivery Date, the “Operating Partnership
Agreement”); and Operating GP owns such general partner interest free and
clear of all Liens. The Partnership is the sole limited partner of
the Operating Partnership, with a 99.999% limited partner interest in the
Operating Partnership; such limited partner interest has been duly and validly
authorized and issued in accordance with the Operating Partnership Agreement and
is fully paid (to the extent required under the Operating Partnership Agreement)
and non-assessable (except as such non-assessability may be affected by Sections
17-607 and 17-804 of the Delaware LP Act); and the Partnership owns such limited
partner interest free and clear of all Liens (except for such Liens as are not
individually or in the aggregate, material to such ownership or as described in
the Pricing Disclosure Package).
(s) The
Operating Partnership owns a 100% limited liability company interest in Texas
Gas; such limited liability company interest has been duly and validly
authorized and issued in accordance with the limited liability company agreement
of Texas Gas (as the same may be amended on or prior to each Delivery Date, the
“Texas Gas LLC
Agreement”) and is fully paid (to the extent required under the Texas Gas
LLC Agreement) and non-assessable (except as such non-assessability may be
affected by Sections 18-607 and 18-804 of the Delaware LLC Act); and the
Operating Partnership owns such limited liability company interest free and
clear of all Liens (except for such Liens as are not individually or in the
aggregate, material to such ownership or as described in the Pricing Disclosure
Package).
(t) The
Operating Partnership owns a 100% limited liability company interest in Gulf
South GP; such limited liability company interest has been duly and validly
authorized and issued in accordance with the limited liability company agreement
of Gulf South GP (as the same may be amended on or prior to each Delivery Date,
the “Gulf South GP LLC
Agreement”) and is fully paid (to the extent required under the Gulf
South GP LLC Agreement) and non-assessable (except as such non-assessability may
be affected by Sections 18-607 and 18-804 of the Delaware LLC Act); and the
Operating Partnership owns such limited liability company interest free and
clear of all Liens (except for such Liens as are not individually or in the
aggregate, material to such ownership or as described in the Pricing Disclosure
Package).
(u) Gulf
South GP is the sole general partner of Gulf South, with a 1.0% general partner
interest in Gulf South; such general partner interest has been duly and validly
authorized and issued in accordance with the agreement of limited partnership of
Gulf South (as the same may be amended on or prior to each Delivery Date, the
“Gulf South Partnership
Agreement”); and Gulf South GP owns such general partner interest free
and clear of all Liens. The Operating Partnership is the sole limited
partner of Gulf South, with a 99.0% limited partner interest in Gulf South; such
limited partner interest has been duly and validly authorized and issued in
accordance with the Gulf South Partnership Agreement and is fully paid (to the
extent required under the Gulf South Partnership Agreement) and non-assessable
(except as such non-assessability may be affected by Sections 17-607 and 17-804
of the Delaware LP Act); and the Operating Partnership owns such limited partner
interest free and clear of all Liens (except for such Liens as are not
individually or in the aggregate, material to such ownership or as described in
the Pricing Disclosure Package).
(v) The
Operating Partnership owns a 100% limited liability company interest in Gulf
Crossing; such limited liability company interest has been duly and validly
authorized and issued in accordance with the limited liability company agreement
of Gulf Crossing (as the same may be amended on or prior to each Delivery Date,
the “Gulf Crossing LLC
Agreement”) and is fully paid (to the extent required under the Gulf
Crossing LLC Agreement) and non-assessable (except as such non-assessability may
be affected by Sections 18-607 and 18-804 of the Delaware LLC Act); and the
Operating Partnership owns such limited liability company interest free and
clear of all Liens (except for such Liens as are not individually or in the
aggregate, material to such ownership or as described in the Pricing Disclosure
Package).
(w) Other
than (i) BGL’s ownership of a 0.001% general partner interest in the
General Partner, (ii) the General Partner’s ownership of a 2% general
partner interest in the Partnership, (iii) the General Partner’s ownership
of all of the Incentive Distribution Rights, (iv) the Partnership’s
ownership of a 100% limited liability company interest in Operating GP,
(v) the Partnership’s ownership of a 99.999% limited partner interest in
the Operating Partnership, (vi) Operating GP’s ownership of a 0.001%
general partner interest in the Operating Partnership, (vii) the Operating
Partnership’s ownership of a 100% limited liability company interest in Texas
Gas, (viii) the Operating Partnership’s ownership of a 100% limited
liability company interest in Gulf South GP, (ix) the Operating
Partnership’s ownership of a 99% limited partner interest in Gulf South,
(x) Gulf South GP’s ownership of a 1% general partner interest in Gulf
South and (xi) the Operating Partnership’s ownership of a 100% limited liability
company interest in Gulf Crossing, no Partnership Entity owns, directly or
indirectly, any equity or short- or long-term debt securities (other than
intercompany advances and notes among the Partnership and the Subsidiaries) of
any corporation, partnership, limited liability company, joint venture,
association or other entity.
(x) Except as
described in the Pricing Disclosure Package or provided for in the Partnership
Agreement, there are no preemptive rights or other rights to subscribe for or to
purchase, nor any restriction upon the voting or transfer of, any limited
partner interests in the Partnership pursuant to any agreement or instrument to
which any of the Partnership Entities is a party or by which any one of them may
be bound. Except as described in the Pricing Disclosure Package or as
provided for in the applicable Organizational Documents, there are no
outstanding options or warrants to purchase (A) any Common Units,
Subordinated Units or other interests in the Partnership or (B) any
interests in BGL, the General Partner, or the Subsidiaries. “Organizational Documents”
means, collectively, the GP Partnership Agreement, the Partnership Agreement,
the Operating Partnership Agreement, the Gulf South Partnership Agreement, the
BGL LLC Agreement, the Operating GP LLC Agreement, the Texas Gas LLC Agreement,
the Gulf South GP LLC Agreement and the Gulf Crossing LLC
Agreement.
(y) Except as
described in the Pricing Disclosure Package or provided for in the Partnership
Agreement, there are no contracts, agreements or understandings between any
Partnership Party and any person granting such person the right to require the
Partnership to file a registration statement under the Securities Act with
respect to any securities of the Partnership owned or to be owned by such
person, or to require any Partnership to include such securities with the Units
registered pursuant to the Registration Statement or in any securities
registered or to be registered pursuant to any other registration statement
filed by or required to be filed by the Partnership under the Securities
Act.
(z) On each
Delivery Date, the Partnership will have all requisite power and authority to
issue, sell and deliver the Units, in accordance with and upon the terms and
conditions set forth in this Agreement, the Partnership Agreement, the
Registration Statement, the Pricing Disclosure Package and the
Prospectus. On each Delivery Date, all corporate, partnership or
limited liability company action, as the case may be, required to be taken by
the Partnership Parties or any of their stockholders, members or partners for
the authorization, issuance, sale and delivery of the Units, the execution and
delivery by the Partnership Parties of this Agreement and the consummation of
the transactions contemplated hereby shall have been validly taken.
(aa) This
Agreement has been duly and validly authorized, executed and delivered by the
Partnership Parties.
(bb) None of
the offering, issuance and sale by the Partnership of the Units and the
application of the proceeds therefrom as described under the caption “Use of
Proceeds” in each of the Pricing Disclosure Package and the Prospectus, the
execution, delivery and performance of this Agreement by the Partnership
Parties, or the consummation of the transactions contemplated hereby
(i) conflicts or will conflict with, or constitutes or will constitute a
violation of, the certificate or agreement of limited partnership, certificate
of formation, limited liability company agreement or other organizational
documents of any Partnership Party, (ii) conflicts or will conflict with,
or constitutes or will constitute a breach or violation of or a default under
(or an event that, with notice or lapse of time or both, would constitute such a
breach or violation of or default under), any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which any of
the Partnership Entities is a party, by which any of them is bound or to which
any of their respective properties or assets is subject, (iii) violates or
will violate any statute, law, ordinance, regulation, order, judgment, decree or
injunction of any court or governmental agency or body to which any of the
Partnership Entities or any of their respective properties or assets may be
subject or (iv) will result in the creation or imposition of any Lien upon
any property or assets of any Partnership Entity which conflicts, breaches,
violations, defaults or Liens, in the case of clauses (ii), (iii) or (iv),
would, individually or in the aggregate, have a Material Adverse
Effect.
(cc) Except
for the registration of the Units under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws in connection with
the purchase and sale of the Units by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any court or
governmental agency or body to which any of the Partnership Parties or any of
their respective properties or assets is subject is required for the execution,
delivery and performance of this Agreement by the Partnership Parties, the
consummation of the transactions contemplated hereby and the application of the
proceeds from the sale of the Units as described under the caption “Use of
Proceeds” in each of the Pricing Disclosure Package and the
Prospectus.
(dd) (i) The
Partnership Agreement has been duly authorized, executed and delivered by the
General Partner and is a valid and legally binding agreement of the General
Partner, enforceable against the General Partner in accordance with its terms;
and (ii) each of the Organizational Documents (other than the Partnership
Agreement) has been duly authorized, executed and delivered by the respective
Partnership Entity or Entities thereto and is a valid and legally binding
agreement of such Partnership Entity or Entities, enforceable against such
parties in accordance with the terms of each of such Organizational Documents;
provided that in each
case the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws related to or
affecting creditors’ rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and provided, further, that the
indemnity, contribution and exoneration provisions contained in any such
agreements may limited by applicable laws and public policy.
(ee) The
historical consolidated financial statements (including the related notes and
supporting schedules) included in, or incorporated by reference into, the
Registration Statement, the Pricing Disclosure Package and the Prospectus (and
any amendment or supplement thereto) comply as to form in all material respects
with the requirements of Regulation S-X of the Commission and present fairly in
all material respects the financial position, results of operations and cash
flows of the entities purported to be shown thereby on the basis stated therein
at the respective dates or for the respective periods to which they apply, and,
except as otherwise disclosed in the Pricing Disclosure Package and the
Prospectus, have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved. Any
summary historical information set forth in the Registration Statement, the
Pricing Disclosure Package and the Prospectus (and any amendment or supplement
thereto) is accurately presented in all material respects and prepared on a
basis consistent with the audited and unaudited historical consolidated
financial statements from which it has been derived.
(ff) Deloitte
& Touche LLP, who have certified certain financial statements of the
Partnership, whose reports are incorporated by reference in each of the
Registration Statement, the most recent Preliminary Prospectus and the
Prospectus and who have delivered the initial letter referred to in Section 7(g)
hereof, are an independent registered public accounting firm as required by the
Securities Act and the Rules and Regulations and were such during the periods
covered by the financial statements on which they reported.
(gg) Each
Partnership Entity has good and indefeasible title to all real property and good
title to all personal property contemplated as owned or to be owned by it in
each of the Pricing Disclosure Package and the Prospectus, in each case free and
clear of all Liens, except as described in the Pricing Disclosure Package or
that would not materially affect the value of such property and would not
materially interfere with the use made and proposed to be made of such property
as described in each of the Pricing Disclosure Package and the
Prospectus. With respect to title to pipeline rights-of-way, none of
the Partnership Entities has received any actual notice or claim from any owner
of land upon which any pipeline that is owned by any Subsidiary is located that
such entity does not have sufficient title to enable it to use and occupy the
pipeline rights-of-way as they have been used and occupied in the past and are
proposed to be used and occupied in the future as described in each of the
Pricing Disclosure Package and the Prospectus, except where such failure to have
sufficient title would not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect. All assets held under lease
or license by the Partnership Entities are held under valid, subsisting and
enforceable leases or licenses, with such exceptions as would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect or
materially interfere with the use made and proposed to be made of such assets as
they have been used in the past and are proposed to be used in the future as
described in each of the Pricing Disclosure Package and the
Prospectus.
(hh) Each
Partnership Entity carries or is covered by insurance from insurers of
recognized financial responsibility in such amounts and covering such risks as
is reasonably adequate for the conduct of its business and the value of its
properties and as is customary for companies engaged in similar businesses in
similar industries. All policies of insurance of each Partnership
Entity are in full force and effect, except as would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect; each
Partnership Entity is in compliance with the terms of such policies in all
material respects; and no Partnership Entity has received notice from any
insurer or agent of such insurer that any material capital improvements or other
expenditures are required or necessary to be made in order to continue such
insurance.
(ii) Except as
described in the Pricing Disclosure Package, there are no legal or governmental
proceedings pending to which any Partnership Entity is a party or to which any
property or asset of any Partnership Entity is subject that could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect or
a material adverse effect on the performance of this Agreement or the
consummation of the transactions contemplated hereby, and to the knowledge of
the Partnership Parties, no such proceedings are threatened by governmental
authorities or others. There are no legal or governmental proceedings
pending that are required to be described in the Pricing Disclosure Package and
the Prospectus that are not so described.
(jj) There are
no contracts or other documents that are required to be described in the
Registration Statement, the Pricing Disclosure Package or the Prospectus or
filed as exhibits to the Registration Statement or to a document incorporated by
reference into the Registration Statement, the Pricing Disclosure Package or the
Prospectus by the Securities Act or the Rules and Regulations that have not been
so described in the most Registration Statement and the Prospectus or filed as
exhibits to the Registration Statement or such incorporated
document.
(kk) The
statements set forth in each of the Registration Statement and the Prospectus
under the captions “How We Make Cash Distributions,” “Conflicts of Interest and
Fiduciary Duties,” “Description of the Common Units” and “The Partnership
Agreement,” (for the avoidance of doubt, in each case as modified or
supplemented by the documents incorporated by reference therein, including the
Partnership’s current report on Form 8-K filed April 25, 2008 and Exhibit 99.1
to such report) insofar as they purport to constitute a summary of the terms of
the Common Units and the Subordinated Units, and under the
caption “Material Tax Consequences,” insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate summaries
in all material respects.
(ll) Except as
described in the Pricing Disclosure Package, no labor disturbance by the
employees of any Partnership Entity exists or, to the knowledge of the
Partnership Parties, is imminent or threatened that could reasonably be expected
to have a Material Adverse Effect.
(mm) Since the
date of the latest audited financial statements included in or incorporated by
reference into the Pricing Disclosure Package, (i) no Partnership Entity
has sustained any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, any labor dispute
or any court or governmental action, order or decree, and (ii) there has
not been any adverse change in the partners’ capital, members’ equity or short-
or long-term debt of any Partnership Entity or any adverse change, or any
development involving a prospective adverse change, in or affecting the
condition (financial or otherwise), results of operations, securityholders’
equity, properties, management, business or prospects of any Partnership Entity,
in each case except as could not reasonably be expected to have a Material
Adverse Effect or as set forth or contemplated in the Pricing Disclosure
Package.
(nn) From the
date as of which information is given in the Pricing Disclosure Package through
the date hereof, and except as may be disclosed in the Pricing Disclosure
Package, none of the Partnership Entities has (i) issued or granted any
securities, (ii) incurred any liability or obligation, direct or
contingent, other than liabilities and obligations that were incurred in the
ordinary course of business, (iii) entered into any transaction not in the
ordinary course of business or (iv) declared or paid any dividend or
distribution on its capital stock or other equity interests.
(oo) Each
Partnership Entity (i) makes and keeps accurate books and records and
(ii) maintains a system of internal accounting controls sufficient to
provide reasonable assurance that (A) transactions are executed in
accordance with management’s general or specific authorizations,
(B) transactions are recorded as necessary to permit preparation of the
Partnership’s financial statements in conformity with accounting principles
generally accepted in the United States and to maintain accountability for its
assets, (C) access to the Partnership Entities’ assets is permitted only in
accordance with management’s general or specific authorization and (D) the
recorded accountability for the Partnership Entities’ assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(pp) The
Partnership has established and maintains disclosure controls and procedures (as
such term is defined in Rule 13a-15 under the Exchange Act), (ii) such
disclosure controls and procedures are designed to ensure that the information
required to be disclosed by the Partnership in the reports it files or submits
under the Exchange Act is accumulated and communicated to management of the
Partnership, including its principal executive officers and principal financial
officers, as appropriate, to allow timely decisions regarding required
disclosure to be made and (iii) such disclosure controls and procedures are
effective in all material respects to perform the functions for which they were
established.
(qq) Since the
date of the most recent balance sheet of the Partnership reviewed or audited by
Deloitte & Touche LLP and the audit committee of the board of directors of
BGL, (i) the Partnership Parties have not been advised of (A) any significant
deficiencies in the design or operation of internal controls that are reasonably
likely to adversely affect the ability of the Partnership Entities to record,
process, summarize and report financial data, or any material weaknesses in
internal controls (whether or not remediated) and (B) any fraud, whether or not
material, that involves management or other employees who have a significant
role in the internal controls of the Partnership Entities, and (ii) since that
date, there have been no changes in internal controls that have materially
affected, or are reasonably likely to materially affect, internal controls,
including any corrective actions with regard to significant deficiencies and
material weaknesses.
(rr) Each
Partnership Entity subject to the Xxxxxxxx-Xxxxx Act of 2002, and each of its
directors and officers in their capacities as such, is in compliance in all
material respects with such act.
(ss) None of
the Partnership Entities (i) is in violation of its certificate or
agreement of limited partnership, certificate of formation or limited liability
company agreement, certificate or articles of incorporation, bylaws or other
organizational documents, (ii) is in breach of or default under any term,
covenant or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party, by
which it is bound or to which any of its properties or assets is subject (and no
event has occurred that, with notice or lapse of time or both, would constitute
such a breach or default), (iii) is in violation of any statute, law,
ordinance, rule, regulation, order, judgment, decree or injunction of any court
or governmental agency or body to which it or its property or assets may be
subject or (iv) has failed to obtain any license, permit, certificate,
franchise or other governmental authorization or permit necessary to the
ownership of its property or to the conduct of its business, except, in the case
of clauses (ii) or (iv), as could not reasonably be expected to have a Material
Adverse Effect.
(tt) Except as
described in the Pricing Disclosure Package, the Partnership Entities
(i) are in compliance with any and all applicable federal, state and local
laws, regulations, ordinances, rules, orders, judgments, decrees or other legal
requirements relating to the protection of human health and safety, the
environment or natural resources or imposing liability or standards of conduct
concerning any Hazardous Materials (as defined below) (“Environmental Laws”),
(ii) have received, and as necessary maintained, all permits required of
them under applicable Environmental Laws to conduct their respective businesses,
(iii) are in compliance with all terms and conditions of any such permits
and (iv) do not have any liability in connection with the release into the
environment of any Hazardous Material, except where such noncompliance with
Environmental Laws, failure to receive and maintain required permits, failure to
comply with the terms and conditions of such permits or liability in connection
with such releases could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The term “Hazardous Material” means
(1) any “hazardous substance” as defined in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (“CERCLA”), (2) any
“hazardous waste” as defined in the Resource Conservation and Recovery Act, as
amended, (3) petroleum or any petroleum product, (4) any
polychlorinated biphenyl and (5) any pollutant, contaminant or hazardous,
dangerous or toxic chemical, material, waste or substance regulated under or
within the meaning of any other Environmental Law. Except as
described in the Pricing Disclosure Package, no Partnership Entity has been
named as a “potentially responsible party” under CERCLA or any other similar
Environmental Law, except with respect to any matters that, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect. Except as described in the Pricing Disclosure Package, no
Partnership Entity (A) is a party to any proceeding under Environmental
Laws in which a governmental authority is also a party, other than proceedings
regarding which it is believed that no monetary penalties in excess of $100,000
will be imposed, (B) has received notice of any potential liability for the
disposal or release of any Hazardous Material, except where such liability could
not reasonably be expected to have a Material Adverse Effect or
(C) anticipates any material capital expenditures relating to Environmental
Laws.
(uu) Each
Partnership Entity is in compliance in all material respects with all presently
applicable provisions of the Employee Retirement Income Security Act of 1974, as
amended, including the regulations and published interpretations thereunder
(“ERISA”); no
“reportable event” (as defined in ERISA) has occurred with respect to any
“pension plan” (as defined in ERISA) for which any Partnership Entity would have
any liability; no Partnership Entity has incurred or expects to incur liability
under (i) Title IV of ERISA with respect to the termination of, or
withdrawal from, any “pension plan” or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the “Code”); and each “pension
plan” that is intended to be qualified under Section 401(a) of the Code and for
which any Partnership Entity would have any liability is so qualified and
nothing has occurred, whether by action or by failure to act, that would cause
the loss of such qualification.
(vv) Each
Partnership Entity has, or at each Delivery Date will have, such permits,
consents, licenses, franchises, certificates and other approvals or
authorizations of governmental or regulatory authorities (“Permits”) as are necessary to
own or lease its properties and to conduct its business in the manner described
in each of the Pricing Disclosure Package and the Prospectus, except as
disclosed in or specifically contemplated by the Pricing Disclosure Package or
except for any failure to have any such Permit that could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect. Except as described in the Pricing Disclosure Package, each
Partnership Entity has fulfilled and performed all of its material obligations
with respect to all such Permits, and no event has occurred that would prevent
any such Permit from being renewed or reissued, that allows, or after notice or
lapse of time would allow, revocation or termination of any such Permit or that
would result in any other impairment of the rights of the holder of any such
Permit, except for any such non-renewal, revocation, termination or impairment
that could not reasonably be expected to have a Material Adverse
Effect.
(ww) The
Partnership is not, and as of each Delivery Date and after giving effect to the
application of the net proceeds of the offering as described under the caption
“Use of Proceeds” in the Pricing Disclosure Package and the Prospectus, the
Partnership will not be, an “investment company” as defined in the Investment
Company Act of 1940, as amended (the “Investment Company
Act”).
(xx) None of
the Partnership Entities or, to the knowledge of the Partnership Parties, any of
their affiliates has distributed, and prior to the later to occur of any
Delivery Date and completion of the distribution of the Units, none of the
Partnership Entities or, to the knowledge of the Partnership Parties, any of
their affiliates will distribute, any offering material in connection with the
offering and sale of the Units other than the Pricing Disclosure Package, any
Preliminary Prospectus, the Prospectus, and any Issuer Free Writing Prospectus
to which the Representatives have consented pursuant to Section 1(i) or
5(a)(vi)
hereof.
(yy) None of
the Partnership Entities or, to the knowledge of the Partnership Parties, any of
their affiliates has taken, nor will any of the Partnership Entities or, to the
knowledge of the Partnership Parties, any of their affiliates take, directly or
indirectly, any action that has constituted, that was designed to cause or
result in, or that could reasonably be expected to cause or result in, the
stabilization or manipulation of the price of any security of any Partnership
Party to facilitate the sale or resale of the Units.
(zz) Except
for this Agreement, there are no contracts, agreements or understandings between
the Partnership and any person that would give rise to a valid claim against the
Partnership or any Underwriter for a brokerage commission, finder’s fee or other
like payment in connection with the offering and sale of the Units contemplated
by this Agreement.
Any
certificate signed by or on behalf of any Partnership Party and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Units shall be deemed a representation and warranty by each such
Partnership Party, as to matters covered thereby, to each
Underwriter.
2. Purchase
of the Units by the Underwriters»
. On
the basis of the representations and warranties contained in, and subject to the
terms and conditions of, this Agreement, the Partnership agrees to sell
10,000,000 Firm Units to the several Underwriters, and each of the Underwriters,
severally and not jointly, agrees to purchase the number of Firm Units set forth
opposite that Underwriter’s name in Schedule 1 attached
hereto. The respective purchase obligations of the Underwriters with
respect to the Firm Units shall be rounded among the Underwriters to avoid
fractional Units, as the Representatives may determine.
In
addition, the Partnership grants to the Underwriters an option to purchase up to
1,500,000 Option Units. Such option is exercisable in the event that
the Underwriters sell more Common Units than the number of Firm Units in the
offering and as set forth in Section 4 hereof. Each Underwriter
agrees, severally and not jointly, to purchase the number of Option Units
(subject to such adjustments to eliminate fractional Units as the
Representatives may determine) that bears the same proportion to the total
number of Option Units to be sold on such Delivery Date as the number of Firm
Units set forth in Schedule 1 attached
hereto opposite the name of such Underwriter bears to the total number of Firm
Units.
The price
of both the Firm Units and any Option Units purchased by the Underwriters shall
be $24.352 per Unit.
The
Partnership shall not be obligated to deliver any of the Units to be delivered
on any Delivery Date, except upon payment for all such Units to be purchased on
such Delivery Date as provided herein.
3. Offering
of Units by the Underwriters»
. Upon
authorization by the Representatives of the release of the Firm Units, the
Underwriters propose to offer the Units for sale upon the terms and conditions
to be set forth in the Prospectus.
4. Delivery
of and Payment for the Units»
. Delivery
of and payment for the Firm Units shall be made at the offices of Xxxxxxx Xxxxx
LLP at 10:00 A.M., Eastern time, on the fourth full business day following the
date of this Agreement or at such other date, time or place as shall be
determined by agreement between the Representatives and the
Partnership. This date and time are sometimes referred to as the
“Initial Delivery
Date.” On the Initial Delivery Date, the Partnership shall
deliver the Firm Units to the Representatives for the account of each
Underwriter against payment by the several Underwriters of the aggregate
purchase price of the Firm Units being sold by the Partnership to or upon the
order of the Partnership by wire transfer in immediately available funds to the
accounts specified by the Partnership. Time shall be of the essence,
and delivery of the Firm Units at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter
hereunder. The Partnership shall deliver the Firm Units through the
facilities of The Depository Trust Company, New York, New York (“DTC”) unless the
Representatives shall otherwise instruct.
The option granted in Section 2 will expire
30 days after the date of this Agreement and may be exercised in whole or in
part from time to time by written notice being given to the Partnership by the
Representatives; provided that if such date
falls on a day that is not a business day, the option granted in Section 2 will expire
on the next succeeding business day. Such notice shall set forth the
aggregate number of Option Units as to which the option is being exercised, the
names in which the Option Units are to be registered, the denominations in which
the Option Units are to be issued and the date and time, as determined by the
Representatives, when the Option Units are to be delivered; provided, however, that this
date and time shall not be earlier than the Initial Delivery Date nor earlier
than the second business day after the date on which the option shall have been
exercised nor later than the fifth business day after the date on which the
option shall have been exercised. Each date and time the Option Units
are delivered is sometimes referred to as an “Option Unit Delivery Date” and
the Initial Delivery Date and any Option Unit Delivery Date are sometimes each
referred to as a “Delivery
Date.”
Delivery
of and payment for the Option Units shall be made at the place specified in the
first sentence of the first paragraph of this Section 4 (or at such
other place as shall be determined by agreement among the Representatives and
the Partnership) at 10:00 A.M., Eastern time, on such Option Unit
Delivery Date. On such Option Unit Delivery Date, the Partnership
shall deliver or cause to be delivered the Option Units to the Representatives
for the account of each Underwriter in book entry form through the facilities of
DTC against payment to or upon the order of the Partnership of the purchase
price by wire transfer in immediately available funds to the account specified
by the Partnership. Time shall be of the essence, and delivery of the
Option Units at the time and place specified pursuant to this Agreement is a
further condition of the obligation of each Underwriter hereunder.
5. Further
Agreements of the Partnership Parties and the Underwriters»
.
(a) Each
Partnership Party jointly and severally agrees:
(i) To
prepare the Prospectus in a form approved by the Underwriters (such approval not
to be unreasonably withheld) and to file such Prospectus pursuant to Rule 424(b)
of the Rules and Regulations not later than the Commission’s close of business
on the second business day following the execution and delivery of this
Agreement or, if applicable, such earlier time as may be required by Rule
424(b); to make no further amendment or any supplement to the Registration
Statement or the Prospectus prior to the last Delivery Date except as provided
herein; to advise the Representatives, promptly after it receives notice
thereof, of the time when any amendment or supplement to the Registration
Statement or the Prospectus has been filed or has become effective and to
furnish the Underwriters with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by the
Partnership with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering or sale of
the Units; to advise the Underwriters, promptly after it receives notice
thereof, of the issuance by the Commission or any state or other regulatory body
of any stop order or of any order suspending the effectiveness of the
Registration Statement or preventing or suspending the use of any Preliminary
Prospectus, the Prospectus or any Issuer Free Writing Prospectus, of the
suspension of the qualification of the Units for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, of any notice from the Commission objecting to the use of the form of
the Registration Statement or any post-effective amendment thereto, or of any
request by the Commission for the amendment or supplement of the Registration
Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing
Prospectus or for additional information; to use its commercially reasonable
efforts to prevent the issuance of any such order or notice of objection, and,
in the event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer
Free Writing Prospectus or suspending any such qualification or such notice of
objection, to use promptly its commercially reasonable efforts to obtain its
withdrawal;
(ii) To pay
the required Commission filing fees relating to the Units within the time period
required by Rule 456(b)(1) of the Rules and Regulations without regard to the
proviso therein and otherwise in accordance with Rule 456(b) and 457(r) of the
Rules and Regulations.
(iii) To
furnish promptly to the Underwriters and to counsel for the Underwriters a
signed copy of the Registration Statement as originally filed with the
Commission, and each amendment thereto filed with the Commission, including all
consents and exhibits filed therewith;
(iv) To
deliver promptly to the Underwriters such number of the following documents as
the Underwriters shall reasonably request: (A) conformed copies of the
Registration Statement as originally filed with the Commission and each
amendment thereto (in each case excluding exhibits other than this Agreement),
(B) each Preliminary Prospectus, the Prospectus and any amended or
supplemented Prospectus, (C) each Issuer Free Writing Prospectus and
(D) any document incorporated by reference in the Registration Statement or
the Prospectus; and, if the delivery of a Prospectus (or in lieu thereof the
notice referred to in Rule 173(a) under the Securities Act) is required at any
time after the date hereof in connection with the offering or sale of the Units
or any other securities relating thereto and if at such time any events shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, or,
if for any other reason it shall be necessary to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in order to comply with the Securities Act or the Exchange Act, to
notify the Representatives and, upon their request, to prepare and file such
document that will correct such statement or omission or effect such compliance
and furnish without charge to each Underwriter and to any dealer in securities
as many copies as the Underwriters may from time to time reasonably request of
such amended or supplemented Prospectus or other documents;
(v) To file
promptly with the Commission any amendment or supplement to the Registration
Statement or the Prospectus that may, in the reasonable judgment of the
Partnership or the Representatives, be required by the Securities Act or
requested by the Commission;
(vi) Prior to
filing with the Commission any amendment or supplement to the Registration
Statement or the Prospectus, or any document incorporated by reference in the
Prospectus or any amendment to any document incorporated by reference in the
Prospectus, to furnish a copy thereof to the Representatives and counsel for the
Underwriters and obtain the consent of the Representatives to the filing, which
consent shall not be unreasonably withheld and which shall be provided to the
Partnership promptly after having been given notice of the proposed filing;
provided that the
foregoing provision shall not apply if such filing is, in the judgment of
counsel to the Partnership Parties, required by law;
(vii) Not to
make any offer relating to the Units that would constitute an Issuer Free
Writing Prospectus without the prior written consent of the
Representatives;
(viii) To retain
in accordance with the Rules and Regulations all Issuer Free Writing
Prospectuses not required to be filed pursuant to the Rules and Regulations; and
if at any time after the date hereof any events shall have occurred as a result
of which any Issuer Free Writing Prospectus, as then amended or supplemented,
would conflict with the information in the Registration Statement, the Pricing
Disclosure Package or the Prospectus or would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or, if for any other reason it shall be necessary to amend
or supplement any Issuer Free Writing Prospectus, to notify the Representatives
and, upon their request, to prepare and file an amended or supplemented Issuer
Free Writing Prospectus that will correct such conflict, statement or omission
or effect such compliance and furnish without charge to each Underwriter as many
copies as the Underwriters may from time to time reasonably request of such
amended or supplemented Issuer Free Writing Prospectus;
(ix) As soon
as practicable after the Effective Date and in any event not later than 16
months after the date hereof, to make generally available to the Partnership’s
security holders and the Underwriters an earnings statement of the Partnership
Entities (which need not be audited) complying with Section 11(a) of the
Securities Act and the Rules and Regulations;
(x) Promptly
from time to time to take such action as the Underwriters may reasonably request
to qualify the Units for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with such laws so
as to permit the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of the Units; provided that in connection
therewith the Partnership shall not be required to (A) qualify as a foreign
limited partnership in any jurisdiction in which it would not otherwise be
required to so qualify, (B) file a general consent to service of process in
any such jurisdiction or (C) subject itself to taxation in any jurisdiction
in which it would not otherwise be subject;
(xi) For a
period commencing on the date hereof and ending on the 45th day
after the date of the Prospectus (the “Lock-Up Period”), not to, directly or
indirectly, without the prior written consent of the Representatives, on
behalf of the Underwriters: (A) offer for sale, sell, pledge, transfer or
otherwise dispose of (or enter into any transaction or device that is designed
to, or could be expected to, result in the disposition by any individual or
entity at any time in the future of) any Common Units or securities convertible
into or exchangeable or exercisable for Common Units (other than the Units and
Common Units issued (1) pursuant to employee benefit plans, qualified unit
option plans or other employee compensation plans existing on the date hereof,
(2) pursuant to currently outstanding options, warrants or rights or (3) by the
Partnership to sellers in connection with acquisitions of assets or entities by
the Partnership or any of the Subsidiaries, provided that any recipients of such
Common Units in any such acquisitions enter into Lock-Up Agreements (as defined
below) for the remainder of the Lock-Up Period, and other than Class B Units to
be issued to BPHC as described in the Pricing Disclosure Package); (B) sell
or grant any options, rights or warrants with respect to any Common Units or
securities convertible into or exchangeable or exercisable for Common Units
(other than the grant of options pursuant to option plans existing on the date
hereof); (C) enter into any swap or other derivatives transaction that
transfers to another, in whole or in part, any of the economic benefits or risks
of ownership of any Common Units, whether any such transaction described in
clause (A), (B) or (C) above is to be settled by delivery of Common Units or
other securities, in cash or otherwise; (D) file or cause to be filed a
registration statement, including any amendments thereto, with respect to the
registration of any equity securities or any securities convertible into or
exchangeable or exercisable for equity securities of the Partnership; or
(E) publicly disclose the intention to do any of the foregoing; and to
cause each officer, director and/or securityholder of the Partnership Entities
set forth on Schedule 3
attached hereto to furnish to the Representatives, prior to the Initial Delivery
Date, a letter or letters, substantially in the form of Exhibit A hereto
(the “Lock-Up
Agreements”);
Notwithstanding
the foregoing paragraph, if (X) during the last 17 days of the Lock-Up Period,
the Partnership issues an earnings release or material news or a material event
relating to the Partnership occurs or (Y) prior to the expiration of the Lock-Up
Period, the Partnership announces that it will release earnings results during
the 16-day period beginning on the last day of the Lock-Up Period, then the
restrictions imposed in the foregoing paragraph shall continue to apply until
the expiration of the 18-day period beginning on the issuance of the earnings
release, the announcement of the material news or the occurrence of the material
event, unless the Representatives, on behalf of the Underwriters, waive such
extension in writing;
(xii) To apply
the net proceeds from the sale of the Units being sold by the Partnership as set
forth in the Prospectus;
(b) Each
Underwriter severally agrees that such Underwriter shall not include any “issuer
information” (as defined in Rule 433 of the Rules and Regulations) in any “free
writing prospectus” (as defined in Rule 405 of the Rules and Regulations) used
or referred to by such Underwriter without the prior consent of the Partnership
(any such issuer information with respect to the use of which the Partnership
has given its consent, “Permitted Issuer
Information”); provided that (i) no
such consent shall be required with respect to any such issuer information
contained in any document filed by the Partnership Parties with the Commission
prior to the use of such free writing prospectus and (ii) “issuer
information,” as used in this Section 5(b),
shall not be deemed to include information prepared by or on behalf of such
Underwriter on the basis of or derived from issuer information.
6. Expenses»
. The
Partnership agrees, whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, to pay all costs,
expenses, fees and taxes incident to and in connection with (a) the
authorization, issuance, sale and delivery of the Units, any stamp duties or
other taxes payable in that connection and the preparation and printing of
certificates for the Units; (b) the preparation, printing and filing under
the Securities Act of the Registration Statement (including any exhibits
thereto), the Prospectus, any Issuer Free Writing Prospectus and any amendment
or supplement thereto; (c) the distribution of the Registration Statement
(including any exhibits thereto), the Prospectus, any Issuer Free Writing
Prospectus and any amendment or supplement thereto, and any document
incorporated by reference in any of the foregoing, all as provided in this
Agreement; (d) the production and distribution of this Agreement, any
supplemental agreement among Underwriters, and any other related documents in
connection with the offering, purchase, sale and delivery of the Units;
(e) any required review by the National Association of Securities Dealers,
Inc. (the “NASD”) of the
terms of sale of the Units (including related fees and expenses of counsel to
the Underwriters); (f) the listing of the Units on the New York Stock
Exchange (the “NYSE”);
(g) the qualification of the Units under the securities laws of the several
jurisdictions as provided in Section 5(a)(x)
hereof; and (h) the performance of the obligations of the Partnership
Parties under this Agreement; provided that, except as
provided in this Section 6 and in
Sections 8 and
11 hereof, the
Underwriters shall pay their own costs and expenses, including the costs and
expenses of their counsel, and the expenses of advertising any offering of the
Units made by the Underwriters; and provided further that the
Underwriters agree to reimburse the Partnership for certain of the Partnership’s
actual bona fide expenses in an amount up to the sum of (i) $316,250 and (ii)
0.00125 times the initial price to the public per Common Unit as set forth on
the cover page of the Prospectus times the number of Option Units sold pursuant
to this Agreement.
7. Conditions
of Underwriters’ Obligations»
. The
respective obligations of the Underwriters hereunder are subject to the
accuracy, when made and on each Delivery Date, of the representations and
warranties of the Partnership Parties contained herein, to the performance by
the Partnership Parties of their respective obligations hereunder, and to each
of the following additional terms and conditions:
(a) The
Prospectus shall have been timely filed with the Commission in accordance with
Section 5(a)(i)
hereof; the Partnership shall have complied with all filing requirements
applicable to any Issuer Free Writing Prospectus used or referred to after the
date hereof; no stop order suspending the effectiveness of the Registration
Statement or preventing or suspending the use of any Preliminary Prospectus, the
Prospectus or any Issuer Free Writing Prospectus shall have been issued and no
proceeding for such purpose shall have been initiated or threatened by the
Commission; any request of the Commission for inclusion of additional
information in the Registration Statement, any Preliminary Prospectus, or the
Prospectus or otherwise shall have been complied with; and the Commission shall
not have notified the Partnership of any objection to the use of the form of the
Registration Statement.
(b) No
Underwriter shall have discovered and disclosed to the Partnership on or prior
to such Delivery Date that the Registration Statement as of the Effective Date,
any Preliminary Prospectus or the Prospectus as of its respective date and on
the applicable Delivery Date, or the Pricing Disclosure Package as of the
Applicable Time, in each case including any amendment or supplement thereto,
contains an untrue statement of a fact that, in the reasonable opinion of
Xxxxxxx Xxxxx LLP, counsel for the Underwriters, is material or omits to state a
fact that, in the reasonable opinion of such counsel, is material and is
required to be stated therein or is necessary to make the statements therein not
misleading (in the case of any Preliminary Prospectus, the Prospectus or the
Pricing Disclosure Package, in the light of the circumstances under which such
statements were made).
(c) All
corporate, partnership and limited liability company proceedings and other legal
matters incident to the authorization, form and validity of this Agreement, the
Units, the Registration Statement, any Preliminary Prospectus, the Prospectus
and any Issuer Free Writing Prospectus, and all other legal matters relating to
this Agreement and the transactions contemplated hereby, shall be reasonably
satisfactory in all material respects to counsel for the Underwriters, and the
Partnership Parties shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass upon such
matters.
(d) Xxxxxx
& Xxxxxx L.L.P. shall have furnished to the Representatives its written
opinion, as counsel to the Partnership Parties, addressed to the Underwriters
and dated such Delivery Date, in form and substance reasonably satisfactory to
the Representatives, with respect to the matters set forth in Exhibit B to
this Agreement.
(e) The
General Counsel of BGL shall have furnished to the Representatives his written
opinion, as counsel to the Partnership, addressed to the Underwriters and dated
such Delivery Date, in form and substance reasonably satisfactory to the
Representatives, with respect to the matters set forth in Exhibit C to
this Agreement.
(f) Xxxxxxx
Xxxxx LLP shall have furnished to the Representatives its written opinion or
opinions, as counsel for the Underwriters, addressed to the Underwriters and
dated such Delivery Date, with respect to the issuance and sale of the Units,
the Registration Statement, the Prospectus, the Pricing Disclosure Package and
such other related matters as the Representatives may reasonably require, and
the Partnership Parties shall have furnished to such counsel such documents as
they reasonably request for the purpose of enabling them to pass upon such
matters.
(g) Promptly
after the execution of this Agreement, the Representatives shall have received
from Deloitte & Touche LLP a letter (the “initial letter”), in form and
substance satisfactory to the Representatives, addressed to the Underwriters and
dated the date hereof (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance with
the applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission and (ii) stating, as of the
date hereof (or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is given in the
Pricing Disclosure Package, as of a date not more than three days prior to the
date hereof), the conclusions and findings of such firm with respect to the
financial information and other matters ordinarily covered by accountants’
“comfort letters” to underwriters in connection with registered public
offerings.
(h) The
Representatives shall have received from Deloitte & Touche LLP a letter (the
“bring-down letter”), in
form and substance satisfactory to the Representatives, addressed to the
Underwriters and dated such Delivery Date (i) confirming that they are
independent public accountants within the meaning of the Securities Act and are
in compliance with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission,
(ii) stating, as of the date of the bring-down letter (or, with respect to
matters involving changes or developments since the respective dates as of which
specified financial information is given in the Prospectus, as of a date not
more than three days prior to the date of the bring-down letter), the
conclusions and findings of such firm with respect to the financial information
and other matters covered by the initial letter and (iii) confirming in all
material respects the conclusions and findings set forth in the initial
letter.
(i) BGL shall
have furnished to the Representatives a certificate, dated such Delivery Date,
of its Chairman of the Board, its Chief Executive Officer, its President or any
of its Vice Presidents and its Chief Financial Officer stating
that:
(i) The
representations, warranties and agreements of the Partnership Parties in Section 1 hereof
are true and correct on and as of such Delivery Date, and the Partnership
Parties have complied with all their agreements contained herein and satisfied
all the conditions on their part to be performed or satisfied hereunder at or
prior to such Delivery Date;
(ii) No stop
order suspending the effectiveness of the Registration Statement has been
issued; no proceedings for that purpose have been instituted or, to the
knowledge of such officers, threatened; and the Commission has not notified the
Partnership of any objection to the use of the form of the Registration
Statement or any post-effective amendment thereto; and
(iii) They have
carefully examined the Registration Statement, the Prospectus and the Pricing
Disclosure Package and, in their opinion, (A) (1) the Registration
Statement, as of the Effective Date, (2) the Prospectus, as of its date and
on the applicable Delivery Date, and (3) the Pricing Disclosure Package, as
of the Applicable Time, did not and do not contain any untrue statement of a
material fact and did not and do not omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading (in
the case of the Registration Statement) or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (in the case of the Pricing Disclosure Package and the Prospectus),
and (B) since the Effective Date, no event has occurred that should have been
set forth in a supplement or amendment to the Registration Statement, the most
recent Preliminary Prospectus, the Prospectus or any Issuer Free Writing
Prospectus that has not been so set forth.
(j) Subsequent
to the execution and delivery of this Agreement, (i) no Partnership Entity
shall have sustained any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, any
labor dispute or any court or governmental action, order or decree, (ii) no
Partnership Entity shall have become a party to or the subject of any litigation
or court or government action, investigation, order or decree that is adverse to
any Partnership Entity and (iii) there shall not have been any adverse
change in the partners’ capital, members’ equity or short- or long-term debt of
any Partnership Entity or any adverse change, or any development involving a
prospective adverse change, in or affecting the condition (financial or
otherwise), results of operations, securityholders’ equity, properties,
management, business or prospects of any Partnership Entity, in each case the
effect of which in any such case is, in the judgment of the Representatives, so
material and adverse as to make it impracticable or inadvisable to proceed with
the public offering or the delivery of the Units being delivered on such
Delivery Date on the terms and in the manner contemplated herein and in the
Prospectus.
(k) Subsequent
to the execution and delivery of this Agreement (i) no downgrading shall
have occurred in the rating accorded the debt securities of any Partnership
Entity by any “nationally recognized statistical rating organization” (as that
term is defined by the Commission for purposes of Rule 436(g)(2) of the Rules
and Regulations) and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any debt securities of any Partnership Entity; provided, however, that this
paragraph (k) shall not apply to any downgrade of not more than one ratings
notch or level contemplated by an existing notice of surveillance or
review.
(l) Subsequent
to the execution and delivery of this Agreement there shall not have occurred
any of the following: (i) trading in securities generally on the
NYSE shall have been suspended or materially limited, the settlement of such
trading generally shall have been materially disrupted or minimum prices shall
have been established on any such exchange or such market by the Commission, by
such exchange or by any other regulatory body or governmental authority having
jurisdiction, (ii) trading in any securities of any Partnership Entity on
any exchange or in the over-the-counter market shall have been suspended or
materially limited, the settlement of such trading generally shall have been
materially disrupted or minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (iii) a banking
moratorium shall have been declared by federal or New York or Kentucky state
authorities, (iv) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving the
United States or there shall have been a declaration of a national emergency or
war by the United States or (v) a material adverse change in general economic,
political or financial conditions, including, without limitation, as a result of
terrorist activities or any other calamity or crisis after the date hereof, or
the effect of international conditions on the financial markets in the United
States, that in any such case would make it, in the judgment of the
Representatives, impracticable or inadvisable to proceed with the public
offering or delivery of the Units being delivered on such Delivery Date on the
terms and in the manner contemplated herein and in the Prospectus.
(m) The NYSE
shall have approved the Units for listing, subject only to official notice of
issuance.
(n) The
Lock-Up Agreements between the Underwriters and the securityholders, officers
and directors of the Partnership Parties listed on Schedule 3
attached hereto, delivered to the Representatives on or before the date of this
Agreement, shall be in full force and effect on such Delivery Date.
(o) The
Underwriters shall have received from the Partnership Parties such additional
documents and certificates as the Representatives or counsel for the
Underwriters may reasonably request.
All
opinions, letters, evidence and certificates mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel for
the Underwriters.
8. Indemnification
and Contribution»
.
(a) The
Partnership Parties, jointly and severally, shall indemnify and hold harmless
each Underwriter, its directors, officers and employees and each person, if any,
who controls such Underwriter within the meaning of Section 15 of the Securities
Act from and against any loss, claim, damage or liability, joint or several, or
any action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of Units) to which
that Underwriter, director, officer, employee or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in
(A) any Preliminary Prospectus, the Pricing Disclosure Package, the
Registration Statement, the Prospectus, any Issuer Free Writing Prospectus, or
in any amendment or supplement thereto, (B) any Permitted Issuer
Information used or referred to in any “free writing prospectus” (as defined in
Rule 405 of the Rules and Regulations) used or referred to by any Underwriter,
or (C) any “road show” (as defined in Rule 433 of the Rules and
Regulations) not constituting an Issuer Free Writing Prospectus (a “Non-Prospectus Road
Show”), (ii) the omission or alleged omission to state in
any Preliminary Prospectus, the Pricing Disclosure Package, the Registration
Statement, the Prospectus, any Issuer Free Writing Prospectus or in any
amendment or supplement thereto, or in any Permitted Issuer Information, any
Non-Prospectus Road Show or any Blue Sky Application, any material fact required
to be stated therein or necessary to make the statements therein not misleading
(in the case of the Registration Statement) or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (in the case of the Pricing Disclosure Package, the Prospectus or any
Issuer Free Writing Prospectus) or (iii) any act or failure to act or any
alleged act or failure to act by any Underwriter in connection with, or relating
in any manner to, the Units or the offering contemplated hereby, and that is
included as part of or referred to in any loss, claim, damage, liability or
action arising out of or based upon matters covered by clause (i) or (ii) above
(provided that the Partnership Parties shall not be liable under this clause
(iii) to the extent that it is determined in a final judgment by a court of
competent jurisdiction that such loss, claim, damage, liability or action
resulted directly from any such acts or failures to act undertaken or omitted to
be taken by such Underwriter through its gross negligence or willful
misconduct), and shall reimburse each such Underwriter and each such director,
officer, employee or controlling person promptly upon demand for any legal or
other expenses reasonably incurred by such Underwriter, director, officer,
employee or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Partnership
Parties shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Pricing Disclosure Package, the Registration
Statement, the Prospectus, any Issuer Free Writing Prospectus or in any such
amendment or supplement thereto, or in any Permitted Issuer Information, any
Non-Prospectus Road Show or any Blue Sky Application, in reliance upon and in
conformity with written information concerning any Underwriter furnished to the
Partnership through the Representatives by or on behalf of such Underwriter
specifically for inclusion therein, which information consists solely of the
information specified in Section 8(e)
hereof. The foregoing indemnity agreement is in addition to any
liability which the Partnership Parties may otherwise have to any Underwriter or
to any director, officer, employee or controlling person of such
Underwriter.
(b) Each
Underwriter, severally and not jointly, shall indemnify and hold harmless each
Partnership Party, its directors, officers, managers who are natural persons and
employees and each person, if any, who controls such Partnership Party within
the meaning of Section 15 of the Securities Act from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which such Partnership Party or any such director, officer, employee, manager
who is a natural person or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Pricing Disclosure Package, the Registration Statement, the Prospectus, any
Issuer Free Writing Prospectus or in any amendment or supplement thereto, or in
any Non-Prospectus Road Show, or (ii) the omission or alleged omission to
state in any Preliminary Prospectus, the Pricing Disclosure Package, the
Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in
any amendment or supplement thereto, or in any Non-Prospectus Road Show, any
material fact required to be stated therein or necessary to make the statements
therein not misleading (in the case of the Pricing Disclosure Package, the
Prospectus or any Issuer Free Writing Prospectus, in the light of the
circumstances under which any such statements were made), but in each case only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information concerning such Underwriter furnished to the Partnership through the
Representatives by or on behalf of that Underwriter specifically for inclusion
therein, which information is limited to the information set forth in Section 8(e)
hereof. The foregoing indemnity agreement is in addition to any
liability that any Underwriter may otherwise have to any Partnership Party or
any director, officer, employee, manager who is a natural person or controlling
person of such Partnership Party.
(c) Promptly
after receipt by an indemnified party under this Section 8 of
notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8,
notify the indemnifying party in writing of the claim or the commencement of
that action; provided,
however, that the
failure to notify the indemnifying party shall not relieve it from any liability
that it may have under this Section 8,
except to the extent it has been materially prejudiced by such failure; and
provided, further, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 8. If
any such claim or action shall be brought against an indemnified party, and the
indemnified party shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it wishes
to assume, jointly with any other similarly notified indemnifying party, the
defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified
party of the indemnifying party’s election to assume the defense of such claim
or action, the indemnifying party shall not be liable to the indemnified party
under this Section 8 for
any legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that the
Representatives shall have the right to employ counsel to represent jointly the
Representatives and those other Underwriters and their respective directors,
officers, employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Underwriters against the Partnership Parties under this Section 8 if
(i) the Partnership Parties and the Underwriters shall have so mutually
agreed; (ii) the Partnership Parties have failed within a reasonable time
to retain counsel reasonably satisfactory to the Underwriters; (iii) the
Underwriters and their respective directors, officers, employees and controlling
persons shall have reasonably concluded that there may be legal defenses
available to them that are different from or in addition to those available to
the Partnership Parties; or (iv) the named parties in any such proceeding
(including any impleaded parties) include both the Underwriters or their
respective directors, officers, employees or controlling persons, on the one
hand, and the Partnership Parties or their respective directors, officer,
employees, managers who are natural persons or controlling persons, on the other
hand, and representation of both sets of parties by the same counsel would be
inappropriate due to actual or potential differing interests between them, and
in any such event the fees and expenses of such separate counsel shall be paid
by the Partnership Parties. No indemnifying party shall
(X) without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld) settle, or compromise or consent to
the entry of any judgment with respect to, any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and does not
include any findings of fact or admissions of fault or culpability as to the
indemnified party or (Y) be liable for any settlement of any such claim,
action, suit or proceedings effected without its written consent (which consent
shall not be unreasonably withheld), but if settled with the consent of the
indemnifying party or if there be a final judgment for the plaintiff in any such
claim, action, suit or proceeding, the indemnifying party agrees to indemnify
and hold harmless any indemnified party from and against any loss or liability
by reason of such settlement or judgment.
(d) If the
indemnification provided for in this Section 8 shall
for any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or
8(b) hereof in
respect of any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate
to reflect the relative benefits received by the Partnership Parties, on the one
hand, and the Underwriters, on the other, from the offering of the Units or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Partnership Parties, on the one hand, and the Underwriters, on the other,
with respect to the statements or omissions that resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the
Partnership Parties, on the one hand, and the Underwriters, on the other, with
respect to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Units purchased under this Agreement
(before deducting expenses) received by the Partnership, as set forth in the
table on the cover page of the Prospectus, on the one hand, and the total
underwriting discounts and commissions received by the Underwriters with respect
to the Units purchased under this Agreement, as set forth in the table on the
cover page of the Prospectus, on the other hand, bear to the total gross
proceeds from the offering of the Units purchased under this
Agreement. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Partnership Parties or the Underwriters, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Partnership Parties and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 8(d)
were to be determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 8(d)
shall be deemed to include, for purposes of this Section 8(d),
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating, defending or preparing to defend any such action
or claim. Notwithstanding the provisions of this Section 8(d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the net proceeds from the sale of the Units underwritten by it exceeds
the amount of any damages that such Underwriter has otherwise paid or become
liable to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations to contribute as
provided in this Section 8(d) are
several in proportion to their respective underwriting obligations and not
joint.
(e) The
Underwriters severally confirm and the Partnership Parties acknowledge and agree
that the table of the names of, and the number of Firm Units to be purchased by,
each of the Underwriters, the public offering price and the statements regarding
delivery of shares by the Underwriters set forth on the cover page of, and the
concession and reallowance figures and the paragraph relating to stabilization
by the Underwriters appearing under the caption “Underwriting” in, the most
recent Preliminary Prospectus and the Prospectus are correct and constitute the
only information concerning the Underwriters furnished in writing to the
Partnership by or on behalf of the Underwriters specifically for inclusion in
any Preliminary Prospectus, the Registration Statement, the Prospectus, any
Issuer Free Writing Prospectus or in any amendment or supplement
thereto.
9. Defaulting
Underwriters»
. If,
on any Delivery Date, any Underwriter defaults in the performance of its
obligations under this Agreement, the remaining non-defaulting Underwriter(s)
shall be obligated to purchase the Units that the defaulting Underwriter(s)
agreed but failed to purchase on such Delivery Date in the respective
proportions which the number of Firm Units set forth opposite the name of each
remaining non-defaulting Underwriter in Schedule 1
attached hereto bears to the total number of Firm Units set forth opposite the
names of all the remaining non-defaulting Underwriters in Schedule 1
attached hereto; provided, however, that the remaining
non-defaulting Underwriter(s) shall not be obligated to purchase any of the
Units on such Delivery Date if the total number of Units that the defaulting
Underwriter(s) agreed but failed to purchase on such Delivery Date exceeds 9.09%
of the total number of Units to be purchased on such Delivery Date, and any
remaining non-defaulting Underwriter shall not be obligated to purchase more
than 110% of the number of Units that it agreed to purchase on such Delivery
Date pursuant to the terms of Section 2
hereof. If the foregoing maximums are exceeded, the remaining
non-defaulting Underwriter(s), or those other underwriters satisfactory to the
Representatives who so agree, shall have the right, but shall not be obligated,
to purchase, in such proportion as may be agreed upon among them, all the Units
to be purchased on such Delivery Date. If the remaining
non-defaulting Underwriter(s) or other underwriters satisfactory to the
Underwriters do not elect to purchase the Units that the defaulting
Underwriter(s) agreed but failed to purchase on such Delivery Date, this
Agreement (or, with respect to any Option Unit Delivery Date, the obligation of
the Underwriters to purchase, and of the Partnership to sell, the Option Units)
shall terminate without liability on the part of any non-defaulting Underwriter
or the Partnership Parties, except that the Partnership Parties will continue to
be liable for the payment of expenses to the extent set forth in Sections 6 and
11
hereof. As used in this Agreement, the term “Underwriter” includes, for all
purposes of this Agreement unless the context requires otherwise, any party not
listed in Schedule 1
attached hereto that, pursuant to this Section 9,
purchases Firm Units that a defaulting Underwriter agreed but failed to
purchase.
Nothing
contained herein shall relieve a defaulting Underwriter of any liability it may
have to any Partnership Party for damages caused by its default. If
other Underwriters are obligated or agree to purchase the Units of a defaulting
or withdrawing Underwriter, either the Representatives or the Partnership may
postpone the Delivery Date for up to seven full business days in order to effect
any changes that in the opinion of counsel for the Partnership Parties or
counsel for the Underwriters may be necessary in the Registration Statement, any
Preliminary Prospectus, the Prospectus or in any other document or
arrangement.
10. Termination»
. The
obligations of the Underwriters hereunder may be terminated by the
Representatives by notice given to and received by the Partnership prior to
delivery of and payment for the Firm Units if, prior to that time, any of the
events described in Sections 7(j),
7(k) and 7(l) hereof shall
have occurred or if the Underwriters shall decline to purchase the Units for any
reason permitted under this Agreement.
11. Reimbursement
of Underwriters’ Expenses»
. If the
sale of the Units provided for herein is not consummated (i) because any
condition of the Underwriters’ obligations set forth in Section 7 hereof
(other than Sections
7(l)(i), (iii), (iv) or (v)) is not satisfied
or (ii) because of any refusal, inability or failure on the part of any
Partnership Party to perform any agreement herein or comply with any provision
hereof other than by reason of a default by any Underwriter, the Partnership
Parties will reimburse the Underwriters on demand for all reasonable
out-of-pocket expenses (including fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Units.
12. Research
Analyst Independence»
. The
Partnership Parties acknowledge that (a) the Underwriters’ research
analysts and research departments are required to be independent from their
respective investment banking divisions and are subject to certain regulations
and internal policies and (b) the Underwriters’ research analysts may hold
views and make statements or investment recommendations and/or publish research
reports with respect to the Partnership, the value of the Common Units and/or
the offering that differ from the views of their respective investment banking
divisions. The Partnership Parties hereby waive and release, to the
fullest extent permitted by law, any claims that the Partnership Parties may
have against the Underwriters with respect to any conflict of interest that may
arise from the fact that the views expressed by their independent research
analysts and research departments may be different from or inconsistent with the
views or advice communicated to the Partnership Parties or their affiliates by
any Underwriter’s investment banking division. The Partnership
Parties acknowledge that each of the Underwriters is a full service securities
firm and as such, from time to time, subject to applicable securities laws, may
effect transactions for its own account or the account of its customers and hold
long or short positions in debt or equity securities of the companies that are
the subject of the transactions contemplated by this Agreement.
13. No
Fiduciary Duty»
. The
Partnership Parties acknowledge and agree that in connection with this offering,
sale of the Units or any other services the Underwriters may be deemed to be
providing hereunder, notwithstanding any preexisting relationship, advisory or
otherwise, between the parties or any oral representations or assurances
previously or subsequently made by the Underwriters: (a) no
fiduciary or agency relationship between any Partnership Party, any affiliate of
a Partnership Party or any other person, on the one hand, and the Underwriters,
on the other, exists; (b) the Underwriters are not acting as advisors,
expert or otherwise, to the Partnership Parties or any of their affiliates,
including, without limitation, with respect to the determination of the public
offering price of the Units, and such relationship between the Partnership
Parties or any of their affiliates, on the one hand, and the Underwriters, on
the other, is entirely and solely commercial, based on arms-length negotiations;
(c) any duties and obligations that the Underwriters may have to the
Partnership Parties or their affiliates shall be limited to those duties and
obligations specifically stated herein; and (d) the Underwriters and their
respective affiliates may have interests that differ from those of the
Partnership Parties and their affiliates. Each Partnership Party
hereby waives, on its own behalf and on behalf of its affiliates, any claims
that the Partnership Parties or any of their affiliates may have against any
Underwriter with respect to any breach or alleged breach of fiduciary duty in
connection with this offering.
14. Notices,
Etc.»
All
statements, requests, notices and agreements hereunder shall be in writing,
and:
(a) if to the
Underwriters, shall be delivered or sent by mail or facsimile transmission to
(i) Citigroup Global Markets Inc., General Counsel (fax no.: (000) 000-0000) and
confirmed to Citigroup Global Markets Inc. at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: General Counsel, (ii) Xxxxxx Brothers Inc., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate Registration
(Fax: (000) 000-0000), with a copy, in the case of any notice pursuant to
Section 10(d) hereof, to the Director of Litigation, Office of the General
Counsel, Xxxxxx Brothers Inc., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000 (Fax: (000) 000-0000), (iii) Xxxxxx Xxxxxxx & Co. Incorporated, 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Finance Execution, Fax:
(000) 000-0000 and (iv) UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Syndicate Department,
Fax: (000) 000-0000; and
(b) if to the
Partnership Parties, shall be delivered or sent by mail or facsimile
transmission to the address of the Partnership set forth in the Registration
Statement, Attention: Chief Financial Officer.
Any such
statements, requests, notices or agreements shall take effect at the time of
receipt thereof. The Partnership shall be entitled to act and rely
upon any request, consent, notice or agreement given or made by the
Representatives on behalf of the Underwriters.
15. Persons
Entitled to Benefit of Agreement»
. This
Agreement shall inure to the benefit of and be binding upon the Underwriters,
the Partnership Parties and their respective successors. This
Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except that (a) the representations, warranties, indemnities
and agreements of the Partnership Parties contained in this Agreement shall also
be deemed to be for the benefit of the directors, officers and employees of the
Underwriters and each person or persons, if any, who control any Underwriter
within the meaning of Section 15 of the Securities Act and (b) the
indemnity agreement of the Underwriters contained in Section 8(b)
hereof shall be deemed to be for the benefit of the directors of BGL, the
officers of BGL who have signed the Registration Statement and any person
controlling BGL within the meaning of Section 15 of the Securities
Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 15, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein. Notwithstanding anything in this
Agreement to the contrary, all liabilities and obligations of the Partnership
Parties hereunder shall be non-recourse against Loews or any limited partner,
stockholder, member, officer, manager, director or employee of any of the
Partnership Parties who is a natural person. In that connection,
neither Loews nor any such limited partner, stockholder, member, officer,
manager, director or employee who is a natural person shall be bound by this
Agreement, or be obligated by virtue of this Agreement or the obligations of any
party created hereunder to (y) provide funds to any of the Partnership Parties,
whether by contributions to capital, loans, returns of monies, securities or
other property, or (z) assume any liabilities of any of the Partnership Parties.
For the avoidance of doubt, nothing in this Section 15 shall preclude recourse,
to the extent permitted by applicable law, against any such limited partner,
stockholder, member, officer, manager, director or employee of any of the
Partnership Parties who is a natural person in the event of fraud, gross
negligence or willful misconduct.
16. Survival»
. The
respective indemnities, representations, warranties and agreements of the
Partnership Parties and the Underwriters contained in this Agreement or made by
or on behalf of them, respectively, pursuant to this Agreement, shall survive
the delivery of and payment for the Units and shall remain in full force and
effect, regardless of any investigation made by or on behalf of any of them or
any person controlling any of them.
17. Definition
of the Terms “Business Day” and “Subsidiary»
.” For
purposes of this Agreement, (a) “business day” means each
Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close and (b) “subsidiary” has the meaning
set forth in Rule 405 of the Rules and Regulations.
18. Governing
Law»
. This Agreement shall be governed by
and construed in accordance with the laws of the State of New
York.
19. Counterparts»
. This
Agreement may be executed in one or more counterparts and, if executed in more
than one counterpart, the executed counterparts shall each be deemed to be an
original but all such counterparts shall together constitute one and the same
instrument.
20. Headings»
. The
headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this
Agreement.
[Remainder of page intentionally left
blank.]
If the
foregoing correctly sets forth the agreement among the Partnership Parties and
the Underwriters, please indicate your acceptance in the space provided for that
purpose below.
Very
truly yours,
Boardwalk
GP, LLC
By: /s/
Name: Xxxxx
X. Xxxxxxx
Title: Chief
Financial Officer
Boardwalk
GP, LP
By:
Boardwalk GP, LLC, its general partner
By: /s/
Name: Xxxxx
X. Xxxxxxx
Title: Chief
Financial Officer
By:
Boardwalk GP, LP, its general partner
By:
Boardwalk GP, LLC, its general partner
By: /s/
Name: Xxxxx
X. Xxxxxxx
Title: Chief
Financial Officer
Accepted:
Citigroup
Global Markets Inc.
Xxxxxx
Brothers Inc.
Xxxxxx
Xxxxxxx & Co. Incorporated
UBS
Securities LLC
For
themselves and as Representatives
of the
several Underwriters named
in Schedule 1
hereto
Citigroup
Global Markets Inc.
By: /s/
Name:
Title:
Xxxxxx
Brothers Inc.
By: /s/
Name:
Title:
Xxxxxx
Xxxxxxx & Co. Incorporated
By: /s/
Name:
Title:
UBS
Securities LLC
By: /s/
Name:
Title:
By: /s/
Name:
Title:
SCHEDULE
1
|
Underwriters
|
Number
of Firm Units
|
|
Citigroup
Global Markets Inc.
|
1,900,000
|
|
Xxxxxx
Brothers Inc.
|
1,900,000
|
|
Xxxxxx
Xxxxxxx & Co. Incorporated
|
1,900,000
|
|
UBS
Securities LLC
|
1,900,000
|
|
Wachovia
Capital Markets, LLC
|
1,050,000
|
|
Credit
Suisse Securities (USA) LLC
|
450,000
|
|
Xxxxxx
Xxxxxx & Company, Inc.
|
450,000
|
|
RBC
Capital Markets Corporation
|
450,000
|
|
Total
|
10,000,000
|
Schedule
1 – Page
SCHEDULE
2
JURISDICTIONS
OF QUALIFICATION
|
Name
of Entity
|
Jurisdiction
of
Formation
|
Jurisdictions
of
Qualification
|
|
Boardwalk
GP, LLC
|
Delaware
|
Kentucky
|
|
Boardwalk
GP, LP
|
Delaware
|
Kentucky
|
|
Delaware
|
Kentucky
|
|
|
Boardwalk
Operating GP, LLC
|
Delaware
|
None
|
|
Boardwalk
Pipelines, LP
|
Delaware
|
Kentucky
|
|
Texas
Gas Transmission, LLC
|
Delaware
|
Louisiana,
Texas, Arkansas, Mississippi, Tennessee, Kentucky, Indiana, Ohio and
Illinois
|
|
GS
Pipeline Company, LLC
|
Delaware
|
Texas,
Mississippi and Florida
|
|
Gulf
South Pipeline Company, LP
|
Delaware
|
Texas,
Louisiana, Mississippi, Alabama, Florida and Kansas
|
|
Gulf
Crossing Pipeline Company, LLC
|
Delaware
|
Oklahoma,
Texas, Louisiana
|
Schedule
2 – Page
SCHEDULE
3
PERSONS
DELIVERING LOCK-UP AGREEMENTS
Xxxx X.
Xxxxxxx
Xxxxx X.
Xxxxxxx
Xxxxxx X.
Xxxxxx
Xxxxxx X.
Xxxxxx
Xxxxxxxx
X. Xxxxxxxxx
Xxxx X.
Xxxxxxx
Xxxxxx X.
Xxxxx
Xxxxxxx
X. Xxxxxx
Boardwalk
Pipelines Holding Corp.
Loews
Corporation
Schedule
3 – Page
SCHEDULE
4
PRICING
INFORMATION
Public
Offering Price: $25.30
Number of
Units Offered: 10,000,000
Schedule
4 – Page
SCHEDULE
5
ISSUER
FREE WRITING PROSPECTUSES
Issuer
Free Writing Prospectus dated June 10, 2008
Schedule
5 – Page
EXHIBIT
A
LOCK-UP LETTER
AGREEMENT
Citigroup
Global Markets Inc.
Xxxxxx
Brothers Inc.
Xxxxxx
Xxxxxxx & Co. Incorporated
UBS
Securities LLC
As
Representatives of the several Underwriters
c/o
Citigroup Global Markets Inc.
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
c/x
Xxxxxx Brothers Inc.
000
Xxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
c/o
Morgan Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
c/o UBS
Securities LLC
000 Xxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
The
undersigned understands that you and several other firms (the “Underwriters”) propose to
enter into an Underwriting Agreement (the “Underwriting Agreement”)
providing for the purchase by the Underwriters of common units representing
limited partner interests (the “Common Units”) of Boardwalk
Pipeline Partners, LP, a Delaware limited partnership (the “Partnership”), and that the
Underwriters propose to reoffer the Common Units to the public (the “Offering”).
In
consideration of the execution of the Underwriting Agreement by the
Underwriters, and for other good and valuable consideration, the undersigned
hereby irrevocably agrees that the undersigned will not, for a period of 45 days
after the date of the final Prospectus relating to the Offering (the “Lock-Up Period”), without the
prior written consent of Citigroup Global Markets Inc., Xxxxxx Brothers Inc.,
Xxxxxx Xxxxxxx & Co. Incorporated and UBS Securities LLC (collectively, the
“Representatives”),
directly or indirectly, (i) offer for sale, sell, pledge, transfer or
otherwise dispose of (or enter into any transaction or device that is designed
to, or could be expected to, result in the disposition by any individual or
entity at any time in the future of) any Common Units or securities convertible
into or exchangeable or exercisable for Common Units (including, without
limitation, Common Units that may be deemed to be beneficially owned by the
undersigned in accordance with the rules and regulations of the Securities and
Exchange Commission and Common Units that may be issued upon exercise of any
options or warrants), (ii) sell or grant any options, rights or warrants
with respect to any Common Units or securities convertible into or exchangeable
or exercisable for Common Units, (iii) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part, any of
the economic benefits or risks of ownership of any Common Units, whether any
such transaction described in clause (i), (ii) or (iii) above is to be settled
by delivery of Common Units or other securities, in cash or otherwise,
(iv) make any demand for, exercise any right with respect to or cause to be
filed a registration statement, including any amendments thereto, with respect
to the registration of any Common Units, any securities convertible into or
exchangeable or exercisable for Common Units, or any other securities of the
Partnership or (v) publicly disclose the intention to do any of the
foregoing. The foregoing sentence shall not apply to bona fide gifts, sales or
other dispositions of any Common Units that are made exclusively between and
among the undersigned or members of the undersigned’s family, or affiliates of
the undersigned, including its partners (if a partnership) or members (if a
limited liability company); provided that it shall be a
condition to any such transfer that (A) the transferee/donee agrees to be bound
by the terms of the lock-up agreement (including, without limitation, the
restrictions set forth in the preceding sentence) to the same extent as if the
transferee/donee were a party hereto, (B) no filing by any party (donor, donee,
transferor or transferee) under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”),
shall be required or shall be voluntarily made in connection with such transfer
or distribution (other than a filing on Form 5, Schedule 13D or Schedule 13G (or
13D/A or 13G/A) made after the expiration of the 45-day period referred to
above), (C) each party (donor, donee, transferor or transferee) shall not be
required by law (including without limitation the disclosure requirements of the
Securities Act of 1933, as amended, and the Exchange Act) to make, and shall
agree to not voluntarily make, any public announcement of the transfer or
disposition, and (D) the undersigned notifies the Representatives at least two
business days prior to the proposed transfer or disposition.
Notwithstanding
the foregoing, if (i) during the last 17 days of the Lock-Up Period, the
Partnership issues an earnings release or material news or a material event
relating to the Partnership Parties (as defined in the Underwriting Agreement)
occurs or (ii) prior to the expiration of the Lock-Up Period, the
Partnership announces that it will release earnings results during the 16-day
period beginning on the last day of the Lock-Up Period, then the restrictions
imposed by this Lock-Up Letter Agreement shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings
release, the announcement of the material news or the occurrence of the material
event, unless the Representatives waive such extension in
writing. The undersigned hereby further agrees that, prior to
engaging in any transaction or taking any other action that is subject to the
terms of this Lock-Up Letter Agreement during the period from the date of this
Lock-Up Letter Agreement to and including the 34th day following the expiration
of the Lock-Up Period, the undersigned will give notice thereof to the
Partnership and will not consummate such transaction or take any such action
unless it has received written confirmation from the Partnership that the
Lock-Up Period (as such may have been extended pursuant to this paragraph) has
expired.
In
furtherance of the foregoing, the Partnership and its transfer agent are hereby
authorized to decline to make any transfer of securities if such transfer would
constitute a violation or breach of this Lock-Up Letter Agreement.
It is
understood that, if the Partnership notifies the Underwriters that it does not
intend to proceed with the Offering, if the Underwriting Agreement does not
become effective, or if the Underwriting Agreement (other than the provisions
thereof that survive termination) shall terminate or be terminated prior to
payment for and delivery of the Common Units, the undersigned will be released
from the undersigned’s obligations under this Lock-Up Letter
Agreement.
The
undersigned understands that the Partnership and the Underwriters will proceed
with the Offering in reliance on this Lock-Up Letter Agreement.
Whether
or not the Offering actually occurs depends on a number of factors, including
market conditions. Any Offering will only be made pursuant to an
Underwriting Agreement, the terms of which are subject to negotiation between
the Partnership and the Underwriters.
The
undersigned hereby represents and warrants that the undersigned has full power
and authority to enter into this Lock-Up Letter Agreement and that, upon
request, the undersigned will execute any additional documents necessary in
connection with the enforcement hereof. Any obligations of the
undersigned shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
A-
Very
truly yours,
By:
Name:
Title:
Dated:
A-
EXHIBIT
B
FORM
OF OPINION OF ISSUER’S COUNSEL
B-
EXHIBIT
C
FORM
OF OPINION OF IN-HOUSE COUNSEL
C-
