Exhibit 1.1
EXECUTION COPY
BUCKEYE PARTNERS, L.P.
5,500,000 UNITS
REPRESENTING LIMITED PARTNER INTERESTS
UNDERWRITING AGREEMENT
New York, New York
October 13, 2004
CITIGROUP GLOBAL MARKETS INC.
▇▇▇▇▇▇ BROTHERS INC.
as Representatives of the several underwriters
listed on Schedule II
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Buckeye Partners, L.P., a Delaware limited partnership (the
"Partnership"), proposes to sell an aggregate of 5,500,000 units (the "Firm
Units") representing limited partner interests in the Partnership to the several
underwriters named in Schedule II hereto (the "Underwriters"), for whom
Citigroup Global Markets Inc. and ▇▇▇▇▇▇ Brothers Inc. (the "Representatives")
are acting as representatives. The Partnership also proposes to grant to the
Underwriters, upon the terms and conditions set forth in Section 2(b) hereof, an
option to purchase up to an additional 825,000 units (the "Option Units"). The
Firm Units and the Option Units are hereinafter collectively referred to as the
"Offered Units," and the Offered Units and each unit representing a limited
partner interest in the Partnership outstanding on the date hereof are
hereinafter collectively referred to as the "Units." To the extent there are no
additional Underwriters listed on Schedule II other than you, the term
Representatives as used herein shall mean you, as the Underwriters, and the
terms "Representatives" and "Underwriters" shall mean either the singular or the
plural as the context requires.
Buckeye Pipe Line Company LLC, a Delaware limited liability company
(the "General Partner"), serves as the general partner of the Partnership.
Buckeye Pipe Line Company, L.P., a Delaware limited partnership
("Buckeye Pipe Line"), Buckeye Pipe Line Holdings, L.P., a Delaware limited
partnership ("BPH"), Everglades Pipe Line Company, L.P., a Delaware limited
partnership ("Everglades"), Laurel Pipe Line Company, L.P., a Delaware limited
partnership ("Laurel"), and Wood River Pipe Lines LLC, a Delaware limited
liability company ("Wood River"), are herein sometimes referred
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to collectively as the "Operating Subsidiaries" and individually as an
"Operating Subsidiary." Buckeye, BPH, Everglades and Laurel are herein sometimes
referred to collectively as the "Operating Partnerships" and individually as an
"Operating Partnership."
Buckeye Terminals, LLC, a Delaware limited liability company ("BT"),
Norco Pipe Line Company, LLC, a Delaware limited liability company ("Norco"),
Buckeye Gulf Coast Holdings I, LLC, a Delaware limited liability company ("BGC
I"), Buckeye Gulf Coast Holdings II, LLC, a Delaware limited liability company
("BGC II") and Gulf Coast/Products GP Holding LLC, a Delaware limited liability
company ("Gulf Coast GP LLC") are herein sometimes referred to collectively as
the "LLC Subsidiaries."
Buckeye Gulf Coast Pipe Lines, L.P., a Delaware limited partnership
("BGC"), Buckeye Products Pipe Line, L.P., a Delaware limited partnership
("BPP"), Gulf Coast Pipe Line, L.P., a Delaware limited partnership ("GCP"),
Gulf Coast/Products Holding L.P., a Delaware limited partnership ("Gulf Coast
LP") and Buckeye Pipe Line Co. of Michigan, L.P., a Delaware limited partnership
("BPL MI"), are herein sometimes referred to collectively as the "LP
Subsidiaries."
The Operating Subsidiaries, the LLC Subsidiaries and the LP
Subsidiaries are herein sometimes referred to collectively as the
"Subsidiaries."
The Partnership, through its Operating Subsidiaries, owns a minority
interest in each of West Texas LPG Pipeline, L.P., a Texas limited partnership
("West TX LPG"), and West Shore Pipe Line Company, a Delaware corporation ("West
Shore"), and a majority interest in WesPac Pipelines-Reno LLC, a Nevada limited
liability company ("WesPac Reno"), WesPac Pipelines-San Diego LLC, a Nevada
limited liability company ("WesPac SD"), WesPac Pipelines-Austin, LLC, a Nevada
limited liability company ("WesPac Austin"), WesPac Pipelines-San ▇▇▇▇, LLC, a
Nevada limited liability company ("WesPac SJ") and WesPac Pipelines-Memphis LLC,
a Nevada limited liability company ("WesPac Memphis," and together with WesPac
Reno, WesPac SD, WesPac Austin, WesPac SJ, and WesPac Memphis, the "WesPac
Entities.")
The Partnership, the General Partner and the Subsidiaries are
sometimes referred to herein individually as a "Partnership Entity" and
collectively as the "Partnership Entities." The Partnership Entities, excluding
the General Partner, are sometimes referred to herein collectively as the
"Partnership Group." The Partnership, the General Partner and the Operating
Subsidiaries are sometimes referred to herein collectively as the "Buckeye
Parties."
Prior to the date hereof, the Partnership acquired five refined
petroleum products pipelines and twenty-four (24) terminals located in the
Midwestern United States (the "Shell Assets") pursuant to the Revised and
Restated Purchase and Sale Agreement, effective as of June 30, 2004 and amended
and restated as of September 30, 2004 (the "Shell PSA"), by and among the
Partnership and Shell Pipeline Company LP, a Delaware limited partnership, and
Equilon Enterprises LLC d/b/a Shell Oil Products US, a Delaware limited
liability company (collectively, "Shell"). In connection therewith, the
following ancillary agreements were entered into:
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(i) the Terminalling Agreement, effective as of October 1, 2004 (the
"Terminalling Agreement"), between BT and Equilon Enterprises LLC d/b/a Shell
Oil Products US;
(ii) the Transportation Agreement dated October 1, 2004 (the
"Transportation Agreement"), between Wood River and Equilon Enterprises LLC
d/b/a Shell Oil Products US;
(iii) the Transition Services Agreement entered into and effective
as of October 1, 2004 (the "Services Agreement"), between Wood River and Shell
Pipeline Company LP; and
(iv) various bills of sale, assignments, warranty deeds, conveyances
and related documents (collectively, the "Shell Conveyances").
In order to fund the acquisition of the Shell Assets, the
Partnership entered into the following:
(v) the Bridge Loan Agreement, dated October 1, 2004, with SunTrust
Bank, as administrative agent, and the lenders thereunder (the "Bridge Loan")
providing for short-term borrowings of up to $300 million; and
(vi) the Credit Agreement dated as of August 6, 2004, with SunTrust
Bank, as administrative agent, and the lenders thereunder (the "Credit
Facility") providing for long-term borrowings of up to $400 million.
The transactions contemplated under the Shell PSA, together with the
transactions listed in (i) through (vi) are collectively referred to herein as
the "Transactions." The Shell PSA, the Terminalling Agreement, the
Transportation Agreement, the Services Agreement, the Shell Conveyances, the
Bridge Loan and the Credit Facility are collectively referred to herein as the
"Transaction Documents."
Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the
case may be, deemed to be incorporated therein by reference. Any defined term
not otherwise defined within the text of this Agreement shall have the meaning
set forth in Section 17 hereof.
This underwriting agreement (the "Agreement") is to confirm the
agreement concerning the purchase of Offered Units from the Partnership by the
Underwriters.
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1. REPRESENTATIONS AND WARRANTIES. The General Partner and the
Partnership, jointly and severally, represent and warrant to, and agree with,
each Underwriter as set forth below in this Section 1.
(a) Compliance with Registration Requirements. The Partnership meets
the requirements for use of Form S-3 under the Act and has prepared and filed
with the Commission a registration statement (the file number of which is set
forth in Schedule I hereto) on Form S-3, including a related basic prospectus,
for registration under the Act of the offering and sale of the Offered Units.
The Registration Statement was declared effective by the Commission on July 28,
2004 and no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been instituted
or overtly threatened by the Commission. The Partnership has included in such
registration statement, as amended at the Effective Date, all information (other
than Rule 430A Information) required by the Act and the rules thereunder. As
filed, the Final Prospectus or any such supplement to the Final Prospectus shall
contain all Rule 430A Information, together with all other such required
information, and, except to the extent the Representatives shall agree in
writing to a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not completed at
the Execution Time, shall contain only such specific additional information and
other changes (beyond that contained in the Basic Prospectus and any Preliminary
Final Prospectus) as the Partnership has advised you, prior to the Execution
Time, will be included or made therein. The Registration Statement, at the
Execution Time, meets the requirements set forth in Rule 415(a)(1)(x). The
Partnership may have filed one or more amendments thereto, including a
Preliminary Final Prospectus, each of which has previously been furnished to
you. The Partnership will next file with the Commission a Final Prospectus
relating to the Securities in accordance with Rules 430A and 424(b).
(b) Compliance with Disclosure Requirements. On the Effective Date,
the Registration Statement did, and when the Final Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing Date (as defined
below) and on any date on which Option Units are purchased, if such date is not
the Closing Date (a "settlement date"), the Final Prospectus (and any supplement
thereto) will comply in all material respects with the applicable requirements
of the Act and the Exchange Act and the respective rules thereunder; on the
Effective Date and at the Execution Time, the Registration Statement did not or
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the Final
Prospectus, if not filed pursuant to Rule 424(b), will not, and on the date of
any filing pursuant to Rule 424(b) and on the Closing Date and any settlement
date, the Final Prospectus (together with any supplement thereto) will not,
include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the General Partner and the Partnership make no representations or
warranties as to the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing to the Partnership by or
on behalf of any Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Final Prospectus (or any
supplement thereto).
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(c) Formation, Good Standing and Qualification of the General
Partner and Wood River. Each of the General Partner and Wood River has been duly
formed and is validly existing as a limited liability company in good standing
under the laws of the jurisdiction in which it is organized, with full limited
liability company power and authority to own or lease, as the case may be, and
to operate its properties and conduct its business in each case, in all material
respects as described in the Final Prospectus, and, with respect to the General
Partner, to act as the general partner of the Partnership and each of the
Operating Partnerships and to execute and deliver this Agreement on behalf of
itself and on behalf of the Partnership, as the general partner thereof, and to
perform its obligations under the Agreement; and each is duly qualified or
registered to do business as a foreign limited liability company and is in good
standing under the laws of each jurisdiction listed across from each such
entity's name on Annex A, such jurisdictions being the only jurisdictions where
the ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so qualified and in
good standing would not, individually or in the aggregate, (i) have a material
adverse effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Partnership Entities, taken as a whole, whether or
not arising from transactions in the ordinary course of business or (ii) subject
the Partnership or the limited partners of the Partnership to any material
liability or disability, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto) ((i) or (ii) a "Material
Adverse Effect").
(d) Formation, Good Standing and Qualification of Services Company.
Buckeye Pipe Line Services Company, a Pennsylvania corporation ("Services
Company"), has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the jurisdiction in which it is chartered,
with full corporate power and authority to own or lease, as the case may be, and
to operate its properties and conduct its business in each case, in all material
respects as described in the Final Prospectus and is duly qualified to do
business as a foreign corporation and is in good standing under the laws of each
jurisdiction listed across from such entity's name on Annex A, such
jurisdictions being the only jurisdictions where the ownership or leasing of its
properties or the conduct of its business requires such qualification, except
where the failure to be so qualified and in good standing would not,
individually or in the aggregate, have a Material Adverse Effect.
(e) Formation, Good Standing and Qualification of the Partnership,
Operating Partnerships and the LP Subsidiaries. Each of the Partnership, the
Operating Partnerships and the LP Subsidiaries has been duly formed and is
validly existing as a limited partnership in good standing under the Delaware
Revised Uniform Limited Partnership Act, as amended (the "DRULPA"), with full
partnership power and authority to own or lease, as the case may be, and to
operate its properties and conduct its business in each case, in all material
respects as described in the Final Prospectus, and, with respect to the
Partnership, to execute and deliver this Agreement and to perform its
obligations under the Agreement and, with respect to the Partnership, to issue,
sell and deliver the Offered Units as contemplated by this Agreement, and each
is duly qualified or registered to do business as a foreign limited partnership
and is in good standing under the laws of the each jurisdiction listed across
from each such entity's name on Annex A, such jurisdictions being the only
jurisdictions where the ownership or leasing of its properties or the conduct of
its business requires such qualification, except where the failure to
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be so qualified and in good standing would not, individually or in the
aggregate, have a Material Adverse Effect.
(f) Formation, Good Standing and Qualification of the LLC
Subsidiaries. Each of the LLC Subsidiaries has been duly formed and is validly
existing as a limited liability company in good standing under the laws of the
jurisdiction in which it is organized, with full limited liability company power
and authority to own or lease, as the case may be, and to operate its properties
and conduct its business in each case, in all material respects as described in
the Final Prospectus, and each is duly qualified or registered to do business as
a foreign limited liability company and is in good standing under the laws of
each jurisdiction listed across from each such entity's name on Annex A, such
jurisdictions being the only jurisdictions where the ownership or leasing of its
properties or the conduct of its business requires such qualification, except
where the failure to be so qualified and in good standing would not,
individually or in the aggregate, have a Material Adverse Effect.
(g) Existence, Good Standing and Qualification of the Joint
Ventures. To the knowledge of the General Partner and the Partnership, (i) West
Shore is validly existing in good standing as a corporation under the laws of
its jurisdiction of incorporation with full corporate power and authority
necessary to own or lease, as the case may be, its properties and to operate its
properties and conduct its business in each case, as described in the Final
Prospectus and (ii) West TX LPG is validly existing as a limited partnership in
good standing under the laws of its jurisdiction of formation with full
partnership power and authority necessary to own or lease, as the case may be,
its properties and to operate its properties and conduct its business in each
case, as described in the Final Prospectus; and each of West Shore and West TX
LPG is duly qualified to do business as a foreign entity and is in good standing
under the laws of each jurisdiction listed across from such entity's name on
Annex A, such jurisdictions being the only jurisdictions where the ownership or
leasing of its properties or the conduct of its business requires such
qualification, except where the failure to so qualified and in good standing
would not, individually or in the aggregate, have a Material Adverse Effect.
(h) Ownership of the General Partner. Buckeye Management Company
LLC, a Delaware limited liability company ("BMC"), is the sole member of the
General Partner, with a limited liability company interest in the General
Partner of 100%; such limited liability company interests are the only limited
liability company interests of the General Partner issued and outstanding; and
such limited liability company interests of the General Partner have been duly
authorized and validly issued and are fully paid and nonassessable.
(i) Ownership of Services Company. All the outstanding shares of
capital stock of Services Company are owned by Buckeye Pipe Line Employee Stock
Ownership Plan Trust free and clear of any perfected security interest or any
other security interest, claim, lien or encumbrance (collectively, "Liens"),
except for the pledge of such shares in connection with the Buckeye Pipe Line
Services Company Employee Stock Ownership Plan Trust's ("ESOP Trust") 3.60%
Senior Secured Notes due 2011 (the "ESOP Notes").
(j) Ownership of the Partnership.
(i) General Partner Interests. The General Partner is the sole
general partner of the Partnership, with an approximate 1% general partner
interest in the Partnership,
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which is represented by 243,914 units; such general partner interest of the
Partnership is the only general partner interest that is issued and outstanding;
such general partner interest has been duly and validly authorized and such
general partner interest of the Partnership is owned by the General Partner free
and clear of any Liens except for the pledge of such general partner interest in
connection with the Credit and Guaranty Agreement dated as of May 4, 2004, by
and among BPL Acquisition L.P., a Delaware limited partnership and indirect
owner of the General Partner ("BPLA"), Glenmoor LLC, a Delaware limited
liability company ("Glenmoor"), BMC, the General Partner and ▇▇▇▇▇▇▇ ▇▇▇▇▇
Credit Partners L.P. and the lenders thereunder, as amended further to the date
hereof (the "BPLA Loan").
(ii) Limited Partner Interests. The limited partners of the
Partnership hold Units in the Partnership aggregating an approximate 99% limited
partner interest in the Partnership, represented as of October 12, 2004 and
excluding the Offered Units, by (i) 26,302,860 publicly-traded Units
(representing an approximate 92.5% limited partner interest), (ii) 2,395,886
Units (representing an approximate 6.6% limited partner interest) owned by
Services Company (the "Service Company LP Units") and (iii) 80,000 Units
(representing an approximate 0.22% limited partner interest) owned by Glenmoor
(the "Glenmoor LP Units"); such Units are the only limited partner interests of
the Partnership that are issued and outstanding; all of such limited partner
interests of the Partnership have been duly authorized and validly issued
pursuant to the agreement of limited partnership of the Partnership, as amended
and restated to the date hereof (the "Partnership Agreement") and are fully paid
and nonassessable (except to the extent such nonassessability may be affected by
Section 17-607 of the DRULPA); and the Services Company LP Units are owned free
and clear of any Liens, except for the pledge of such Units in connection with
the ESOP Notes and the Glenmoor LP Units are owned free and clear of any Liens,
except for the pledge of such Units in connection with the BPLA Loan.
(k) Ownership of the Operating Partnerships.
(i) General Partner Interests. The General Partner is the sole
general partner of each of the Operating Partnerships, with a general partner
interest in each of the Operating Partnerships of 1% (other than BPH, which is
slightly less than 1%); such general partner interests are the only general
partner interests issued and outstanding; such general partner interests of each
of the Operating Partnerships have been duly authorized and validly issued, and
such general partner interests of the Operating Partnerships are owned by the
General Partner free and clear of any Liens, except for the pledge of such
general partner interests in connection with the BPLA Loan.
(ii) Limited Partner Interests. The Partnership is the sole
limited partner of each of the Operating Partnerships, with a limited partner
interest in each of the Operating Partnerships of 99% (other than BPH, which is
slightly more than 99%); such limited partner interests are the only limited
partner interests of the Operating Partnerships that are issued and outstanding;
such limited partner interests of each of the Operating Partnerships have been
duly authorized and validly issued pursuant to the respective entity's agreement
of limited partnership, as amended and restated to the date hereof, and are
fully paid and nonassessable (except to the extent such nonassessability may be
affected by Section 17-607 of the DRULPA), and such limited partner interests of
the Operating Partnerships are owned by the Partnership free and clear of any
Liens.
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(l) Ownership of Wood River. The Partnership is the sole member of
Wood River, with a limited liability company interest in Wood River of 100%;
such limited liability company interests are the only limited liability company
interests of Wood River issued and outstanding; all of the outstanding limited
liability company interests of Wood River have been duly authorized and validly
issued and are fully paid and nonassessable, and such limited liability company
interests of Wood River are owned by the Partnership free and clear of any
Liens.
(m) Ownership of the LP Subsidiaries.
(i) General Partner Interests. BGC I is the sole general
partner of BGC, with a general partner interest in BGC of 1%; the General
Partner is the sole general partner of BPL MI, with a general partner interest
of 1%; Gulf Coast GP LLC is the sole general partner of each of Gulf Coast LP,
GCP and BPP, with a general partner interest in each of Gulf Coast LP, GCP and
BPP of 1%; all of the outstanding general partner interests of each of BGC, BPL
MI, Gulf Coast LP, GCP and BPP have been duly authorized and validly issued and
such general partner interests of each of BGC, BPL MI, Gulf Coast LP, GCP and
BPP are owned free and clear of any Liens except, in respect of the General
Partner's interest in BPL MI, in connection with the BPLA Loan.
(ii) Limited Partner Interests. BGC II is the sole limited
partner of BGC, with a limited partner interest in BGC of 99%; BGC II is the
sole limited partner of Gulf Coast LP, with a limited partner interest in Gulf
Coast LP of 99%; Gulf Coast LP is a limited partner of each of BPP and GCP, with
a limited partner interest in each of BPP and GCP of 62.34%; Laurel and the
General Partner hold a 98.01% and 0.99% limited partner interest, respectively,
in BPL MI; such limited partner interests are the only limited partner interests
issued and outstanding of each of BGC, Gulf Coast LP, BPP, GCP and BPL MI; such
limited partner interests of each of BGC, Gulf Coast LP, BPP, GCP and BPL MI
held by affiliates of the Partnership have been duly and validly authorized and
issued pursuant to the respective agreement of limited partnership, as amended
and restated to the date hereof, and are fully paid and nonassessable (except to
the extent such nonassessability may be affected by Section 17-607 of the
DRULPA), and such limited partner interests of each of BGC, Gulf Coast LP, BPP,
GCP and BPL MI are owned free and clear of any Liens except, in respect of the
General Partner's interest in BPL MI, in connection with the BPLA Loan.
(n) Ownership of the LLC Subsidiaries and the WesPac Entities. BPH
is the sole member of each of the LLC Subsidiaries other than Gulf Coast GP LLC,
with a limited liability company interest in each of the LLC Subsidiaries other
than Gulf Coast GP LLC of 100%; BPH is a member of each WesPac Entity, with a
limited liability company interest in WesPac Reno of 75%, WesPac San Diego of
50%, WesPac Austin of 75%, WesPac SJ of 75% and WesPac Memphis of 75%; BGC II is
the sole member of Gulf Coast GP LLC, with a limited liability company interest
in Gulf Coast GP LLC of 100%; all of the outstanding limited liability company
interests of the LLC Subsidiaries have been duly and validly authorized and
issued and are fully paid and nonassessable, and such limited liability company
interests of the LLC Subsidiaries are owned by BPH or BGC II, as the case may
be, free and clear of any Liens.
(o) Ownership of Joint Venture Entities. (i) BPH owns approximately
24.99% of the outstanding capital stock of West Shore; such equity interests of
West Shore are owned by
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▇▇▇ free and clear of any Liens; and (ii) BPH owns an approximate 20% limited
partner interest in West TX LPG; such limited partner interests in West TX LPG
are owned by BPH free and clear of any Liens.
(p) Capitalization. The Partnership's capital as of June 30, 2004 is
as set forth in the Final Prospectus in the column entitled "Historical" under
the heading "Capitalization." The adjustments to the Partnership's capital as of
June 30, 2004, as set forth in the Final Prospectus under the column entitled
(i) "Pro Forma" under the heading "Capitalization" give effect on a pro forma
basis to the debt incurred under the Credit Facility in connection with the
acquisition of the Shell Assets and the sale of $275 million aggregate principal
amount of 5.30% senior notes and the application of the net proceeds from such
notes offering in the manner set forth in the Partnership's final prospectus
dated October 6, 2004, and (ii) "Pro Forma As Adjusted" under the heading
"Capitalization" represent the pro forma effects on the Partnership's capital of
the offer and sale of the Offered Units and the application of the estimated net
proceeds from such offer and sale in the manner set forth in the Final
Prospectus under the heading "Use of Proceeds" and the other transactions
described therein.
(q) Valid Issuance of Offered Units; No Options or Preemptive Rights
of Units. The authorized partnership interests of the Partnership, including the
Offered Units, and the limited partner interests represented thereby, conform in
all material respects to the description thereof contained in the Final
Prospectus; the Offered Units, and the limited partner interests represented
thereby, have been duly authorized, and, when issued and delivered to and paid
for by the Underwriters pursuant to this Agreement, will be validly issued,
fully paid (to the extent required under the Partnership Agreement) and
nonassessable (except to the extent such nonassessability may be affected by
Section 17-607 of the DRULPA); the Offered Units are duly listed, and admitted
and authorized for trading, subject to official notice of issuance, on the New
York Stock Exchange; and the holders of outstanding Units of the Partnership are
not entitled to statutory, preemptive or other similar contractual rights to
subscribe for the Offered Units; and, except as set forth in the Final
Prospectus, no options, warrants or other rights to purchase, agreements or
other obligations to issue, or rights to convert any obligations into or
exchange any securities for, partnership or ownership interests in the
Partnership are outstanding.
(r) Accuracy of Disclosure. There is no franchise, contract or other
document of a character required to be described in the Registration Statement
or Final Prospectus, or to be filed as an exhibit thereto, which is not
described or filed as required; and the statements in the Final Prospectus under
the headings "Description of Limited Partnership Units" and "Overview of Recent
Acquisition of Midwest Pipelines and Terminals," insofar as such statements
summarize agreements, documents or proceedings discussed therein, are in all
material respects accurate and fair; and the discussions under the headings
"Material Tax Consequences" and "Tax Considerations" in the Final Prospectus, to
the extent they relate to matters of United States federal income tax law, is
accurate in all material respects.
(s) Authority. The Partnership has all requisite limited partnership
power and authority to issue, sell and deliver the Offered Units in accordance
with and upon the terms and conditions set forth in this Agreement, the
Partnership Agreement, the Registration Statement and the Final Prospectus, and
each of the Partnership Entities have all requisite power and authority to enter
into the Transaction Documents to which it is a party and to consummate the
transactions contemplated under this Agreement and the Transaction Documents;
and at the
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Closing Date and any settlement date, all action required to be taken by the
Partnership, its unitholders or any of the Partnership Entities for (i) the
authorization, issuance, sale and delivery of the Offered Units, (ii) the
execution and delivery of this Agreement and the Transaction Documents and (iii)
the consummation of the transactions contemplated by this Agreement and the
Transaction Documents, shall have been validly taken.
(t) Authorization of the Underwriting Agreement. This Agreement has
been duly authorized, executed and delivered by each of the General Partner and
the Partnership.
(u) Authorization and Enforceability of Other Agreements.
(i) The Partnership Agreement has been duly authorized,
executed and delivered and is a valid and legally binding agreement of the
General Partner, enforceable against the General Partner in accordance with its
terms;
(ii) The limited liability company agreement, as amended and
restated to the date hereof, of the General Partner has been duly authorized,
executed and delivered by BMC, and is a valid and legally binding agreement of
BMC, enforceable against BMC in accordance with its terms;
(iii) Each of the agreements of limited partnership, as
amended and restated to the date hereof, of the Operating Partnerships has been
duly authorized, executed and delivered by the General Partner and the
Partnership, and is a valid and legally binding agreement of General Partner and
the Partnership, enforceable against the General Partner and the Partnership in
accordance with its terms;
(iv) The limited liability company agreement, as amended and
restated to the date hereof, of Wood River has been duly authorized, executed
and delivered by the Partnership, and is a valid and legally binding agreement
of the Partnership, enforceable against the Partnership in accordance with its
terms;
(v) Each of the limited liability company agreements, as
amended and restated to the date hereof, of each of the LLC Subsidiaries has
been duly authorized, executed and delivered by the respective parties thereto,
and is a valid and legally binding agreement of the parties thereto, enforceable
against it in accordance with its terms;
(vi) Each of the agreements of limited partnership, as amended
and restated to the date hereof, of the LP Subsidiaries has been duly
authorized, executed and delivered by the parties thereto and is a valid and
legally binding agreement of the parties thereto, enforceable against each of
them in accordance with its terms;
(vii) Each of the Transaction Documents has been duly
authorized, executed and delivered by the Partnership Entities that are parties
thereto and is a valid and legally binding agreement of such Partnership
Entities, enforceable against such Partnership Entities in accordance with its
terms;
provided that, with respect to each agreement described in clause (u) above, the
enforceability thereof may be affected by bankruptcy, insolvency, reorganization
and other laws of general
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applicability relating to or affecting creditors' rights and by general
equitable principles. The agreements described in clause (u)(i) through (vi)
above are sometimes referred to herein individually as an "Operative Document"
and collectively as the "Operative Documents."
(v) Investment Company Act. None of the Partnership Entities is, and
after giving effect to the offering and sale of the Offered Units and the
application of the proceeds thereof as described in the Final Prospectus, will
be an "investment company" as defined in the Investment Company Act of 1940, as
amended.
(w) Public Utility Holding Company Act. None of the Partnership
Entities is a "holding company" as such term is defined in the Public Utility
Holding Company Act of 1935, as amended ("PUHCA"); none of the Partnership
Entities nor the issue and sale of the Offered Units by the Partnership is
subject to regulation under PUHCA; and none of the Partnership Entities is a
"public utility" as such term is defined in the Federal Power Act, as amended.
(x) Absence of Further Requirements. No consent, approval,
authorization, filing with or order of any court or governmental agency or body
(a "Consent") is required in connection with the transactions contemplated in
this Agreement or in the Transaction Documents, except such as (i) have been
obtained under the Act and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of the Offered
Units by the Underwriters in the manner contemplated herein and in the Final
Prospectus, (ii) have been, or prior to the Closing Date will be, obtained
(other than such Consents (A) as may be required in connection with the
acquisition of the Shell Assets as contemplated under the Shell PSA, which
Consents have been obtained prior to the consummation of such transactions or
are expected, in the reasonable judgment of the General Partner, to be obtained
in the ordinary course of business subsequent to the consummation of the
acquisition of the Shell Assets and (B) would, if not obtained, individually or
in the aggregate, have a Material Adverse Effect) or (iii) have been disclosed
in the Final Prospectus.
(y) Absence of Defaults and Conflicts. None of (i) the offer, issue
and sale of the Offered Units, (ii) the execution, delivery and performance of
this Agreement by the General Partner and the Partnership or the Transaction
Documents by the parties thereto, (iii) the consummation of the transactions
contemplated by this Agreement or the Transaction Documents, or (iv) the
fulfillment of the terms hereof or thereof will conflict with, result in a
breach or violation or imposition of any lien, charge or encumbrance upon any
property or assets of the Partnership Entities pursuant to, (A) the formation or
governing documents of any of the Partnership Entities, (B) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument to
which any of the Partnership Entities is a party or bound or to which their
property is subject, or (C) any statute, law, rule, regulation, judgment, order
or decree applicable to any of the Partnership Entities of any court, regulatory
body, administrative agency, governmental body, arbitrator or other authority
having jurisdiction over any of the Partnership Entities or any of their
properties and, solely with respect to clauses (B) and (C), except for such
conflict, breach, violation or default that would not have a Material Adverse
Effect.
(z) Absence of Registration Rights. No holders of securities of
the Partnership have rights to the registration of such securities under the
Registration Statement.
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(aa) Adequacy of Financial Statements. The consolidated historical
financial statements and schedules of the Partnership and its consolidated
subsidiaries included in the Final Prospectus and the Registration Statement
present fairly in all material respects the financial condition, results of
operations and cash flows of the Partnership and its consolidated subsidiaries
as of the dates and for the periods indicated, comply as to form with the
applicable accounting requirements of the Act and have been prepared in
conformity with generally accepted accounting principles applied on a consistent
basis throughout the periods involved (except as otherwise noted therein). The
summary historical financial and operating data set forth under the caption
"Summary Historical Financial and Operating Information" in the Final Prospectus
fairly present in all material respects, on the basis stated in the Final
Prospectus, the information included therein.
(bb) Absence of Violations and Defaults. None of the Partnership
Entities is in violation or default of (i) any provision of its formation or
governing documents, (ii) the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which it is a party or bound or to which
its property is subject, or (iii) any statute, law, rule, regulation, judgment,
order or decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over the
Partnership Entities or any of their properties, as applicable.
(cc) Independent Accountants. Deloitte & Touche LLP, who have
certified certain financial statements of the Partnership and their consolidated
subsidiaries and delivered their report with respect to the audited consolidated
financial statements and schedules included in the Final Prospectus, are
independent public accountants with respect to the Partnership within the
meaning of the Act and the applicable published rules and regulations
thereunder.
(dd) Tax Returns and Payment. Each of the Partnership and the
Subsidiaries has filed all foreign, federal, state and local tax returns that
are required to be filed or has requested extensions thereof (except in any case
in which the failure so to file would not have a Material Adverse Effect) and
has paid all taxes required to be paid by it and any other assessment, fine or
penalty levied against it, to the extent that any of the foregoing is due and
payable, except for any such assessment, fine or penalty that is currently being
contested in good faith or as would not have a Material Adverse Effect.
(ee) Absence of Labor Disputes. No labor problem or dispute with the
employees of Services Company or the Partnership Entities exists or, to the
knowledge of the General Partner or the Partnership, is threatened or imminent,
and neither the General Partner nor the Partnership is aware of any existing or
imminent labor disturbance by the employees of any of its or its subsidiaries'
principal suppliers, contractors or customers, that could have a Material
Adverse Effect.
(ff) Adequacy of Insurance. Each of the Partnership Entities are
insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the businesses in
which they are engaged; all policies of insurance insuring any of the
Partnership Entities or their respective businesses, assets, employees, officers
and directors are in full force and effect; the Partnership Entities are in
compliance with the terms of such policies and instruments in all material
respects; and there are
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no claims by any of the Partnership Entities under any such policy or instrument
as to which any insurance company is denying liability or defending under a
reservation of rights clause; none of the Partnership Entities has been refused
any insurance coverage sought or applied for; and none of the Partnership
Entities has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect.
(gg) No Restrictions on Distributions. No Subsidiary of the
Partnership is currently prohibited, directly or indirectly, from paying any
dividends to the Partnership, from making any other distribution on such
subsidiary's equity, from repaying to the General Partner or the Partnership any
loans or advances to such subsidiary from the General Partner or the Partnership
or from transferring any of such subsidiary's property or assets to the General
Partner or the Partnership or any other subsidiary of the Partnership, except
(i) as described in or contemplated by the Final Prospectus and (ii) upon an
event of default under the Bridge Loan or the Credit Facility.
(hh) Possession of Licenses and Permits. Each of the Partnership
Entities possess all licenses, certificates, permits and other authorizations
issued by the appropriate federal, state or foreign regulatory authorities
necessary to conduct their respective businesses, except for such failures to
possess that would not have a Material Adverse Effect; and none of the
Partnership Entities has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or permit
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a Material Adverse Effect.
(ii) Adequacy of Internal Accounting Controls. Each of the
Partnership Entities maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(jj) Absence of Stabilization. None of the Partnership Entities has
taken, directly or indirectly, any action designed to or that would constitute
or that might reasonably be expected to cause or result in, under the Exchange
Act or otherwise, stabilization or manipulation of the price of any security of
the Partnership to facilitate the sale or resale of the Offered Units.
(kk) Compliance with Environmental Regulations.
(i) Each of the Partnership Entities (A) is in compliance with
any and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (B) has received and is in compliance with all permits,
licenses or other approvals required of them under applicable Environmental Laws
to conduct its respective businesses and (C) has not received notice of any
actual or potential liability for the
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investigation or remediation of any disposal or release of hazardous or toxic
substances or wastes, pollutants or contaminants, except where such
non-compliance with Environmental Laws, failure to receive required permits,
licenses or other approvals, or liability would not, individually or in the
aggregate, have a Material Adverse Effect; and except as set forth in the Final
Prospectus and for the Quanta Resources Edgewater Superfund site in Edgewater,
N.J., the Borne Chemical Company Superfund site located in Elizabeth, N.J. and
the Sealand Superfund site located in the Town of Lisbon, St. ▇▇▇▇▇▇▇▇ County,
N.Y., none of the Partnership Entities has been named as a "potentially
responsible party" under the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended.
(ii) In the ordinary course of its business, the General
Partner, on behalf of the Partnership, periodically reviews the effect of
Environmental Laws on the business, operations and properties of the Partnership
and the Subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws, or any permit, license or approval, any
related constraints on operating activities and any potential liabilities to
third parties). On the basis of such review, the General Partner and the
Partnership have reasonably concluded that such associated costs and liabilities
would not, singly or in the aggregate, have a Material Adverse Effect, other
than as disclosed in the Final Prospectus.
(ll) Compliance with ERISA. Each of the Services Company, and the
General Partner, the Partnership and the Subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ Employee Retirement Income Security Act of 1974 ("ERISA") and the
regulations and published interpretations thereunder with respect to each "plan"
(as defined in Section 3(3) of ERISA and such regulations and published
interpretations) in which the employees of Services Company, the General
Partner, the Partnership and the Subsidiaries are eligible to participate and
each such plan (excluding any multiemployer plan, as defined in section 3(37) of
ERISA, that is not sponsored or maintained by Services Company, the General
Partner, the Partnership or the Subsidiaries) is in compliance in all material
respects with the presently applicable provisions of ERISA and such regulations
and published interpretations. Services Company, the General Partner, the
Partnership and their subsidiaries have not incurred any unpaid liability to the
Pension Benefit Guaranty Corporation (other than for the payment of premiums in
the ordinary course) or to any such plan under Title IV of ERISA.
(mm) Compliance with Sarbanes Oxley. The General Partner and the
Partnership and all of the General Partner's directors or officers, in their
capacities as such, are in compliance in all material respects with all
provisions of the Sarbanes Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith (the "Sarbanes Oxley Act"), including
Section 402 related to loans and Sections 302 and 906 related to certifications.
(nn) Significant Subsidiaries. The subsidiaries listed on Annex B
attached hereto are the only significant subsidiaries of the General Partner or
the Partnership as defined by Rule 1-02 of Regulation S-X.
(oo) Possession of Intellectual Property. The Partnership Entities
own, possess, license or have other rights to use, on reasonable terms, all
material patents, patent
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applications, trade and service marks, trade and service ▇▇▇▇ registrations,
trade names, copyrights, licenses, inventions, trade secrets, technology,
know-how and other intellectual property (collectively, the "Intellectual
Property") necessary for the conduct of the Partnership's business as now
conducted or as proposed in the Final Prospectus to be conducted.
(pp) Absence of Conflict of Interest. Except as disclosed in the
Registration Statement and the Final Prospectus, none of the Partnership
Entities (i) has any material lending or other relationship with any bank or
lending affiliate of Citigroup Global Markets Holdings Inc. or any other
Underwriter and (ii) intends to use any of the proceeds from the sale of the
Offered Units hereunder to repay any outstanding debt owed to any affiliate of
Citigroup Global Markets Holdings Inc. or any other Underwriter.
(qq) Related Party Transactions. No relationship, direct or
indirect, exists between or among any Partnership Group on the one hand, and the
securityholders, customers or suppliers of any of the Partnership Group, the
directors or officers of the General Partner, or any affiliate of a member of
the Partnership Group, on the other hand, which is required to be described in
the Final Prospectus and which is not so described.
(rr) No Material Adverse Change; No Business Interruptions. Except
as described in the Final Prospectus, since the respective dates as of which
information is given in the Registration Statement and the Final Prospectus, (i)
none of the Partnership Entities has incurred any liability or obligation,
direct or contingent, or entered into any transaction, not in the ordinary
course of business, that is material to the Partnership Entities, taken as a
whole; (ii) none of the Partnership Entities has sustained any loss or
interference with its business from fire, explosion, flood or other calamity,
not covered by insurance, or from any labor dispute or court or governmental
action, order or decree that is material to the Partnership Entities, taken as a
whole; (iii) there has not been any material change in the partners' equity or
capital stock or long-term debt of the Partnership, the Subsidiaries or the
General Partner; and (iv) there has not been any material adverse change in or
affecting the financial condition, business, properties, results of operations
or prospects of the Partnership Entities, taken as a whole.
(ss) Validity of Data. Any statistical and market-related data
included in the Final Prospectus are based on or derived from sources that the
Partnership believes to be reliable and accurate, and the Partnership has
obtained the written consent to the use of such data from such sources to the
extent the General Partner believes is required.
(tt) Title to Property. Each of the Partnership Entities has good
and marketable title to all property (real and personal) described the
Registration Statement and in the Final Prospectus as being owned by each of
them, free and clear of all liens, claims, security interests or other
encumbrances, except for failures to have good and marketable title that would
not have a Material Adverse Effect; all the property described in the
Registration Statement and the Final Prospectus as being held under lease by the
Partnership Entities is held thereby under valid, subsisting and enforceable
leases with only such exceptions with respect to any particular lease as do not
interfere in any material respect with the conduct of the businesses of the
Partnership Entities.
(uu) Rights-of-Way. Each of the Partnership Entities has such
consents, easements, rights-of-way or licenses from any person ("rights-of-way")
as are necessary to
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conduct its business in the manner described in the Final Prospectus, subject to
such qualifications as may be set forth in the Final Prospectus and except for
such rights-of-way the failure of which to have obtained would not have,
individually or in the aggregate, a Material Adverse Effect; each of the
Partnership Entities has fulfilled and performed all its material obligations
with respect to such rights-of-way and no event has occurred which allows, or
after notice or lapse of time would allow, revocation or termination thereof or
would result in any impairment of the rights of the holder of any such
rights-of-way, except for such revocations, terminations and impairments that
will not have a Material Adverse Effect, subject in each case to such
qualification as may be set forth in the Final Prospectus; and, except as
described in the Final Prospectus, none of such rights-of-way contains any
restriction that would materially interfere with the conduct of the business or
use of the properties of the Partnership Entities, taken as a whole.
(vv) No Legal Actions or Violations. Except as described in the
Final Prospectus, there is (i) no action, suit or proceeding before or by any
court, arbitrator or governmental agency, body or official, domestic or foreign,
now pending or, to the knowledge of the General Partner or the Partnership,
threatened, to which any of the Partnership Entities is or may be a party or to
which the business or property of any of the Partnership Entities is or may be
subject, (ii) no statute, rule, regulation or order that has been enacted,
adopted or issued by any governmental agency or that has been proposed by any
governmental agency, and (iii) no injunction, restraining order or order of any
nature issued by a federal or state court or foreign court of competent
jurisdiction to which any of the Partnership Entities is or may be subject,
that, in the case of clauses (i), (ii) and (iii) above, could reasonably be
expected to (A) have a Material Adverse Effect, (B) prevent or result in the
suspension of the offering and issuance of the Units, (C) could reasonably be
expected to have a material adverse effect on the performance of this Agreement
or the consummation of any of the transactions contemplated hereby, or (D) in
any manner draw into question the validity of this Agreement or any of the
Transaction Documents.
(ww) Lock-Up Agreements. The Partnership has obtained for the
benefit of the Underwriters the agreement, in the form set forth as Exhibit A
hereto (the "Lock-Up Agreements"), of each of the Partnership's significant
unitholders and the General Partner's directors and officers as set forth on
Annex C; the Partnership will not release or purport to release any person from
any Lock-Up Agreement without the prior written consent of Citigroup Global
Markets Inc. and ▇▇▇▇▇▇ Brothers Inc.
(xx) FCPA. None of the Partnership Entities nor, to the knowledge of
the General Partner or the Partnership, any director, officer, agent or employee
of the Partnership Entities is aware of or has taken any action, directly or
indirectly, that would result in a violation by such persons of the FCPA,
including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of
value to any "foreign official" (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA.
"FCPA" means Foreign Corrupt Practices Act of 1977, as amended, and
the rules and regulations thereunder.
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(yy) Money Laundering. The operations of the Partnership Entities
are and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of
all jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by
any governmental agency (collectively, the "Money Laundering Laws") and no
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving any of the Partnership Entities
with respect to the Money Laundering Laws is pending or, to the best knowledge
of the General Partner and the Partnership, threatened.
(zz) OFAC. Neither the Company nor any of its subsidiaries nor, to
the knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is currently subject to any
U.S. sanctions administered by the Office of Foreign Assets Control of the U.S.
Treasury Department ("OFAC"); and the Company will not directly or indirectly
use the proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other person
or entity, for the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC.
Any certificate signed by any officer of the General Partner and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Offered Units shall be deemed a representation and
warranty by the General Partner and the Partnership, as to matters covered
thereby, to each Underwriter.
2. PURCHASE AND SALE; OVER-ALLOTMENT OPTION.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Partnership agrees to sell
to each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Partnership, at a purchase price of $40.694 per unit, the
amount of the Firm Units set forth opposite such Underwriter's name in Schedule
II hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Partnership hereby grants
an option to the several Underwriters to purchase, severally and not jointly, up
to 825,000 Option Units at the same purchase price per unit as the Underwriters
shall pay for the Firm Units. Such option may be exercised solely to cover
over-allotments in the sale of the Firm Units by the Underwriters. Such option
may be exercised in whole or in part at any time on or before the 30th day after
the date of the Final Prospectus upon written or telegraphic notice by the
Representatives to the Partnership setting forth the number of Option Units as
to which the several Underwriters are exercising the option and the settlement
date. The number of Option Units to be purchased by each Underwriter shall be in
the same percentage of the total number of Option Units to be purchased by the
several Underwriters as such Underwriter is purchasing of the Firm Units,
subject to such adjustments as you in your absolute discretion shall make to
eliminate any fractional units.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Firm Units and
the Option Units (if the option provided for in Section 2(b) hereof shall have
been exercised on or
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before the third Business Day prior to the Closing Date) shall be made on the
date and at the time specified in Schedule I hereto or at such time on such
later date not more than three Business Days after the foregoing date as the
Representatives shall designate, which date and time may be determined by
agreement between the Representatives and the Partnership or as provided in
Section 9 hereof (such date and time of delivery and payment for the Offered
Units being herein called the "Closing Date"). Delivery of the Offered Units
shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Partnership by wire transfer payable in same-day funds to accounts specified by
the General Partner. Delivery of the Firm Units and the Option Units shall be
made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Partnership will deliver
the Option Units (at the expense of the Partnership) to the Representatives,
through the system of The Depository Trust Company (the "DTC") on the date
specified by the Representatives (which shall be no earlier than three Business
Days after exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Partnership by wire transfer payable in same-day funds to an account specified
by the Partnership. If settlement for the Option Units occurs after the Closing
Date, the Partnership will deliver to the Representatives on the settlement date
for the Option Units, and the obligation of the Underwriters to purchase the
Option Units shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 6 hereof.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Offered Units for sale to the public as set
forth in the Final Prospectus.
5. AGREEMENTS. The General Partner and the Partnership agree with the
several Underwriters that:
(a) Prior to the termination of the offering of the Offered Units,
the Partnership will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus or any Preliminary Final Prospectus)
to the Basic Prospectus or any Rule 462(b) Registration Statement unless the
Partnership has furnished you a copy for your review prior to filing and will
not file any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, the Partnership will cause the Final
Prospectus, properly completed, and any supplement thereto to be filed in a form
approved by the Representatives with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to the Representatives of such timely filing. The
Partnership will promptly advise the Representatives (1) when the Final
Prospectus, and any supplement thereto, shall have been filed (if required) with
the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration
Statement shall have been filed with the Commission, (2) when, prior to
termination of the offering of the Offered Units, any amendment to the
Registration Statement shall have been filed or become effective, (3) of any
request by the Commission or its staff for any amendment of the Registration
Statement, or any Rule 462(b) Registration Statement, or for any supplement to
the Final Prospectus or for any
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additional information, (4) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (5) of the receipt by the
Partnership of any notification with respect to the suspension of the
qualification of the Offered Units for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The Partnership
will use its best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Offered Units
is required to be delivered under the Act, any event occurs as a result of which
the Final Prospectus as then supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading, or if it shall be necessary to amend the Registration Statement
or supplement the Final Prospectus to comply with the Act or the Exchange Act or
the respective rules thereunder, the Partnership promptly will (1) notify the
Representatives of such event, (2) prepare and file with the Commission, subject
to the second sentence of paragraph (a) of this Section 5, an amendment or
supplement which will correct such statement or omission or effect such
compliance and (3) supply any supplemented Final Prospectus to you in such
quantities as you may reasonably request.
(c) As soon as practicable, the Partnership will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Partnership and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Partnership will furnish to the Representatives and counsel
for the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a copy of
the Registration Statement (without exhibits thereto) and, so long as delivery
of a prospectus by an Underwriter or dealer may be required by the Act, as many
copies of each Preliminary Final Prospectus and the Final Prospectus and any
supplement thereto as the Representatives may reasonably request. The
Partnership will pay the expenses of printing or other production of all
documents relating to the offering.
(e) The Partnership will arrange, if necessary, for the
qualification of the Offered Units for sale under the laws of such jurisdictions
as the Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Offered Units and will
pay any fee of the National Association of Securities Dealers, Inc. (the "NASD")
in connection with its review of the offering; provided, that in no event shall
the Partnership be obligated to qualify to do business in any jurisdiction where
it is not now so qualified or to take any action that would subject it to
service of process in suits, other than those arising out of the offering or
sale of the Offered Units, in any jurisdiction where it is not now so subject.
The Partnership acknowledges that the offer or sale of the Offered Units in any
jurisdiction may subject it to service of process in suits arising out of the
offer or sale of the Offered Units in such jurisdiction.
(f) Neither the General Partner nor the Partnership shall, without
the prior written consent of Citigroup Global Markets Inc. and ▇▇▇▇▇▇ Brothers
Inc., offer, sell, contract to sell, pledge, grant any options or warrants to
purchase units or otherwise dispose of, (or enter
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into any transaction which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Partnership or any
affiliate of the Partnership or any person in privity with the Partnership or
any affiliate of the Partnership) directly or indirectly, including the filing
(or participation in the filing) of a registration statement with the Commission
in respect of, or establish or increase a put equivalent position or liquidate
or decrease a call equivalent position within the meaning of Section 16 of the
Exchange Act, any other Units or any securities convertible into, or
exercisable, or exchangeable for, Units; or publicly announce an intention to
effect any such transaction until the Business Day set forth on Schedule I
hereto, provided, however, that the Partnership may (i) issue Units to sellers
of terminalling facilities or pipelines in connection with acquisitions by the
Partnership, provided that Citigroup Global Markets Inc. and ▇▇▇▇▇▇ Brothers
Inc. have received similar lock-up agreements from such sellers, (ii) issue
Units to the Partnership's option holders upon exercise of options granted under
the Partnership's Amended and Restated Unit Option and Distribution Equivalent
Plan, provided that Citigroup Global Markets Inc. and ▇▇▇▇▇▇ Brothers Inc.
receive notice prior to any such issuance of Units, and (iii) issue options
pursuant to the Partnership's Amended and Restated Unit Option and Distribution
Equivalent Plan not exercisable during the lock-up period.
(g) None of the Partnership Entities shall take, directly or
indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security of the
Partnership to facilitate the sale or resale of the Offered Units.
(h) The Partnership shall apply for the supplemental listing of the
Offered Units on the New York Stock Exchange, and to use its best efforts to
complete that listing, subject only to official notice of issuance, prior to the
Closing Date.
(i) The Partnership shall apply the net proceeds from the sale of
the Offered Units as set forth in the Final Prospectus.
(j) The General Partner and the Partnership agree to pay the costs
and expenses relating to the following matters: (i) the preparation, printing or
reproduction and filing with the Commission of the Registration Statement
(including financial statements and exhibits thereto), each Preliminary Final
Prospectus, the Final Prospectus, and each amendment or supplement to any of
them; (ii) the printing (or reproduction) and delivery (including postage, air
freight charges and charges for counting and packaging) of such copies of the
Registration Statement, each Preliminary Final Prospectus, the Final Prospectus,
and all amendments or supplements to any of them, as may, in each case, be
reasonably requested for use in connection with the offering and sale of the
Offered Units; (iii) the preparation, printing, authentication, issuance and
delivery of certificates for the Offered Units, including any stamp or transfer
taxes in connection with the original issuance and sale of the Offered Units;
(iv) the printing (or reproduction) and delivery of this Agreement, any blue sky
memorandum and all other agreements or documents printed (or reproduced) and
delivered in connection with the offering of the Offered Units; (v) the
registration of the Offered Units under the Exchange Act and the listing of the
Offered Units on the New York Stock Exchange; (vi) any registration or
qualification of the Offered Units for offer and sale under the securities or
blue sky laws of the several states (including filing fees and the reasonable
fees and expenses of counsel for the Underwriters relating to such registration
and qualification); (vii) any filings required to be made
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with the National Association of Securities Dealers, Inc. (including filing fees
and the reasonable fees and expenses of counsel for the Underwriters relating to
such filings); (viii) the transportation and other expenses incurred by or on
behalf of General Partner representatives in connection with presentations to
prospective purchasers of the Offered Units; (ix) the fees and expenses of the
Partnership's accountants and the fees and expenses of counsel (including local
and special counsel) for the General Partner and the Partnership; and (x) all
other costs and expenses incident to the performance by the General Partner and
the Partnership of their respective obligations hereunder.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the Underwriters to purchase the Firm Units and the Option Units, as the case
may be, shall be subject to the accuracy of the representations and warranties
on the part of each of the General Partner and the Partnership contained herein
as of the Execution Time, the Closing Date and any settlement date pursuant to
Section 3 hereof, to the accuracy of each of the statements of the General
Partner and the Partnership made in any certificates pursuant to the provisions
hereof, to the performance by each of the General Partner and the Partnership of
their obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, will be filed
in the manner and within the time period required by Rule 424(b); and no stop
order suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or
threatened.
(b) The Partnership shall have requested and caused ▇▇▇▇▇▇ & ▇▇▇▇▇▇
L.L.P. and ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, counsel for the Partnership, to have
furnished to the Representatives their respective opinions, dated the Closing
Date and any settlement date, and addressed to the Representatives, which
opinions when taken together shall be to the effect of the following:
(i) Each of the General Partner and Wood River has been duly
formed, and each of Glenmoor, BMC, the General Partner and Wood River is validly
existing as a limited liability company in good standing under the laws of the
jurisdiction in which it is organized, with full limited liability company power
and authority to own or lease, as the case may be, and to operate its properties
and conduct its business in each case, as described in the Final Prospectus,
and, with respect to the General Partner, to act as the general partner of the
Partnership and each of the Operating Partnerships and to execute and deliver
this Agreement on behalf of itself and on behalf of the Partnership as the
general partner thereof and to perform its obligations under this Agreement; and
each is duly qualified or registered to do business as a foreign limited
liability company and is in good standing under the laws of each jurisdiction
listed across from each such entity's name on Annex A of this Agreement.
(ii) Services Company is validly existing as a corporation in
good standing under the laws of the Commonwealth of Pennsylvania, with full
corporate power and authority to own or lease, as the case may be, and to
operate its properties and conduct its business in each case, as described in
the Final Prospectus and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction listed
across from such entity's name on Annex A of this Agreement.
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(iii) The Partnership has been duly formed, and each of the
Partnership, the Operating Partnerships and the LP Subsidiaries is validly
existing as a limited partnership in good standing under the DRULPA, with full
partnership power and authority to own or lease, as the case may be, and to
operate its properties and conduct its business in each case, as described in
the Final Prospectus, and, with respect to the Partnership, to execute and
deliver this Agreement and to incur and perform its obligations under this
Agreement and, with respect to the Partnership, to issue, sell and deliver the
Offered Units as contemplated by this Agreement, and each is duly qualified or
registered to do business as a foreign limited partnership and is in good
standing under the laws of the each jurisdiction listed across from each such
entity's name on Annex A of this Agreement.
(iv) Each of the LLC Subsidiaries is validly existing as a
limited liability company in good standing under the laws of the jurisdiction in
which it is organized, with full limited liability company power and authority
to own or lease, as the case may be, and to operate its properties and conduct
its business in each case, as described in the Final Prospectus, and each is
duly qualified or registered to do business as a foreign limited liability
company and is in good standing under the laws of each jurisdiction listed
across from each such entity's name on Annex A of this Agreement.
(v) All of the outstanding membership interests of the General
Partner are owned by BMC; to such counsel's knowledge, such membership interests
of the General Partner are owned by BMC free and clear of any Liens, except for
the pledge of such membership interests in connection with the BPLA Loan; all of
the outstanding membership interests in BMC are owned by Glenmoor, to such
counsel's knowledge, such membership interests of BMC are owned by Glenmoor free
and clear of any Liens, except for the pledge of such membership interests in
connection with the BPLA Loan; all of the outstanding membership interests in
Glenmoor are owned by BPLA, to such counsel's knowledge, such membership
interests of Glenmoor are owned by BPLA free and clear of any Liens, except for
the pledge of such membership interests in connection with the BPLA Loan; 16.75%
of the outstanding limited partner interests in BPLA are owned by certain
members of senior management of the General Partner and 83.25% of the
outstanding limited partner interests are owned by Carlyle/Riverstone BPL
Holdings II, L.P., a Delaware limited partnership; to such counsel's knowledge,
such limited partner interests of BPLA are owned by such limited partners free
and clear of any Liens; BPL Management LLC, a Delaware limited liability company
("BPL Management") is the sole general partner of BPLA and all of the
outstanding membership interests of BPL Management are owned by affiliates and
subsidiaries of Carlyle/Riverstone, to such counsel's knowledge, such membership
interests in BPL Management are owned by such members free and clear of any
Liens.
(vi) The General Partner is the sole general partner of the
Partnership, with a general partner interest in the Partnership of approximately
1%, which is represented by 243,914 units representing general partner
interests; such general partner interest of the Partnership is the only general
partner interest that is issued and outstanding; such general partner interest
has been duly and validly authorized and, to such counsel's knowledge, such
general partner interest of the Partnership is owned by the General Partner free
and clear of any Liens, except for the pledge of such general partner interest
in connection with the BPLA Loan.
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(vii) The limited partners of the Partnership hold Units,
including the Offered Units, in the Partnership aggregating an approximate 99%
limited partner interest in the Partnership, represented by 31,302,860
publicly-traded Units and 2,395,886 Units owned by Services Company and 80,000
Units owned by Glenmoor; such Units are the only limited partner interests of
the Partnership that are issued and outstanding; all of such limited partner
interests of the Partnership have been duly authorized and validly issued and
are fully paid and nonassessable (except to the extent such nonassessability may
be affected by Section 17-607 of the DRULPA) and, to the knowledge of such
counsel, the Units owned by Services Company are owned free and clear of any
Liens, except for the pledge of such Units in connection with the ESOP Notes
and, to the knowledge of such counsel, the Units owned by Glenmoor are owned
free and clear of any Liens, except for the pledge of such Units in connection
with the BPLA Loan.
(viii) The General Partner is the sole general partner of each
of the Operating Partnerships, with a general partner interest in each of the
Operating Partnerships of approximately 1%; such general partner interests are
the only general partner interests issued and outstanding; such general partner
interests of each of the Operating Partnerships have been duly authorized and
validly issued and, to such counsel's knowledge, such general partner interests
of the Operating Partnerships are owned by the General Partner free and clear of
any Liens, except for the pledge of such general partner interests in connection
with the BPLA Loan.
(ix) The Partnership is the sole limited partner of each of
the Operating Partnerships, with a limited partner interest in each of the
Operating Partnerships of 99%; such limited partner interests are the only
limited partner interests of the Operating Partnerships that are issued and
outstanding; such limited partner interests of each of the Operating
Partnerships have been duly authorized and validly issued and are fully paid and
nonassessable (except to the extent such nonassessability may be affected by
Section 17-607 of the DRULPA), and, to such counsel's knowledge, such limited
partner interests of the Operating Partnerships are owned by the Partnership
free and clear of any Liens.
(x) The Partnership is the sole member of Wood River, with a
limited liability company interest in Wood River of 100%; all of the outstanding
limited liability company interests of Wood River have been duly authorized and
validly issued and are fully paid and nonassessable (except to the extent such
nonassessability may be affected by Section 18-607 of the Delaware Limited
Liability Act (the "DLLCA") and, to such counsel's knowledge, such limited
liability company interests of Wood River are owned by the Partnership free and
clear of any Liens.
(xi) BGC I is the sole general partner of BGC, with a general
partner interest in BGC of 1%; the General Partner is the sole general partner
of BPL MI, with a general partner interest of 1%; Gulf Coast GP LLC is the sole
general partner of each of Gulf Coast LP, GCP and BPP, with a general partner
interest in each of Gulf Coast LP, GCP and BPP of 1%; all of the outstanding
general partner interests of each of BGC, BPL MI, Gulf Coast LP, GCP and BPP
have been duly authorized and validly issued and, to such counsel's knowledge,
such general partner interests of each of BGC, BPL MI, Gulf Coast LP, GCP and
BPP are owned free and clear of any Liens.
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(xii) BGC II is the sole limited partner of BGC, with a
limited partner interest in BGC of 99%; BGC II is the sole limited partner of
Gulf Coast LP, with a limited partner interest in Gulf Coast LP of 99%; Gulf
Coast LP is the sole limited partner of each of BPP and GCP, with a limited
partner interest in each of BPP and GCP of 62.34%; Laurel and the General
Partner hold a 98.01% and 0.99% limited partner interest, respectively, in BPL
MI; such limited partner interests are the only limited partner interests issued
and outstanding of each of BGC, Gulf Coast LP, BPP, GCP and BPL MI; such limited
partner interests of each of BGC, Gulf Coast LP, BPP, GCP and BPL MI held by
affiliates of the Partnership have been duly and validly authorized and issued
and are fully paid and nonassessable (except to the extent such nonassessability
may be affected by Section 17-607 of the DRULPA) and, to such counsel's
knowledge, all such limited partner interests of each of BGC, Gulf Coast LP,
BPP, GCP and BPL MI are owned free and clear of any Liens.
(xiii) BPH is the sole member of each of the LLC Subsidiaries
other than Gulf Coast GP LLC, with a limited liability company interest in each
of the LLC Subsidiaries other than Gulf Coast GP LLC of 100%; BGC II is the sole
member of Gulf Coast GP LLC, with a limited liability company interest in Gulf
Coast GP LLC of 100%; all of the outstanding limited liability company interests
of the LLC Subsidiaries have been duly and validly authorized and issued and are
fully paid and nonassessable (except to the extent such nonassessability may be
affected by Section 18-607 of the DLLCA), and such limited liability company
interests of the LLC Subsidiaries are owned by BPH or BGC II, as the case may
be, free and clear of any Liens.
(xiv) The authorized partnership interests of the Partnership,
including the Offered Units, conform in all material respects to the description
thereof contained in the Final Prospectus.
(xv) The Offered Units have been duly and validly authorized,
and, when issued and delivered to and paid for by the Underwriters pursuant to
this Agreement, will be fully paid and nonassessable (except to the extent such
nonassessability may be affected by Section 17-607 of the DRULPA); the Offered
Units are free of statutory preemptive rights and, to such counsel's knowledge,
contractual preemptive rights, resale rights, rights of first refusal and
similar rights except as provided in Section 18.1 of the Partnership Agreement;
the Offered Units are duly listed, and admitted and authorized for trading,
subject to official notice of issuance, on the New York Stock Exchange; the form
of the certificates for the Offered Units conforms in all material respects to
the requirements of the Partnership Agreement; and the holders of outstanding
Units of the Partnership are not entitled to statutory, preemptive or, to such
counsel's knowledge, other similar contractual rights to subscribe for the
Offered Units; and, except as set forth in the Final Prospectus, to such
counsel's knowledge, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any obligations
into or exchange any securities for, partnership or ownership interests in the
Partnership are outstanding, except as provided in Section 18.1 of the
Partnership Agreement.
(xvi) To the knowledge of such counsel, there are no actions,
suits or proceedings pending, threatened or contemplated by or before any court
or governmental agency, authority or body or any arbitrator involving any of the
Partnership Entities or to which any of their respective directors or officers
is a party or any of their respective properties is subject, at law or in
equity, of a character required to be disclosed in the Registration Statement
which is
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not adequately disclosed in the Final Prospectus, and to such counsel's
knowledge, there are no franchises, contracts, licenses, agreements, leases or
other documents of a character required to be described in the Registration
Statement or Final Prospectus, or to be filed as an exhibit thereto, which are
not described or filed as required.
(xvii) The statements included or incorporated by reference in
the Final Prospectus under the headings "Description of Limited Partnership
Units," "Overview of Recent Acquisition of Midwest Pipelines and Terminals --
Acquisition Financing" and the first and third paragraphs under the heading
"Overview of Recent Acquisition of Midwest Pipelines and Terminals -- Regulatory
and Environmental Matters" insofar as such statements summarize legal matters,
agreements, documents or proceedings discussed therein, are accurate and
complete in all material respects; and the discussions under the headings
"Material Tax Consequences" and "Tax Considerations" in the Final Prospectus, to
the extent they relate to matters of United States federal income tax law, are
accurate in all material respects.
(xviii) The Registration Statement has become effective under
the Act; any required filing of any Preliminary Final Prospectus and the Final
Prospectus, and any supplements thereto, pursuant to Rule 424(b) of the Act has
been made in the manner and within the time period required by Rule 424(b); to
the knowledge of such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or threatened.
(xix) The Registration Statement and the Final Prospectus
(other than the financial statements (and notes thereto) and other financial
information contained therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the applicable requirements of
the Act and the Exchange Act and the respective rules thereunder and although
such counsel is not passing upon and does not assume responsibility for the
accuracy, completeness or fairness contained therein, such counsel has no reason
to believe that on the Effective Date or the date the Registration Statement was
last deemed amended the Registration Statement contained any untrue statement of
a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Final Prospectus as of its date and on the Closing Date included or includes any
untrue statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (in each case, other than the
financial statements (and notes thereto) and other financial information
contained therein, as to which such counsel need express no opinion).
(xx) The conditions to the use of Form S-3 by the Partnership
have been satisfied.
(xxi) The Agreement has been duly authorized, executed and
delivered by each of the General Partner, individually, and the General Partner,
on behalf of the Partnership.
(xxii) None of the Partnership Entities is, and after giving
effect to the offering and sale of the Offered Units and the application of the
proceeds thereof as described in the Final Prospectus, will be, an "investment
company," as such term is defined in the Investment Company Act of 1940, as
amended, or a "public utility company" or a "holding
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company," as such terms are defined in the Public Utility Holding Company Act of
1935, as amended ("PUHCA"); none of the Partnership Entities is subject to
regulation under PUHCA.
(xxiii) No consent, waiver, notice, approval, authorization,
filing with or order of, or any other action by, any federal, state or local
governmental or regulatory commission, board, body, authority, agency or court
is required in connection with the issuance and sale of the Offered Units or
consummation of the transactions contemplated in this Agreement, except such as
(A) have been obtained under the Act and such as may be required under the blue
sky laws of any jurisdiction in connection with the purchase and distribution of
the Offered Units by the Underwriters in the manner contemplated in this
Agreement and in the Final Prospectus or (B) have been, or prior to the Closing
Date will be, obtained (other than such consents, approvals, authorizations,
filings or orders that would, if not obtained, individually or in the aggregate,
have a material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the General Partner, the
Partnership and their subsidiaries, taken as a whole).
(xxiv) None of (A) the offer, issue or sale of the Offered
Units, nor the consummation of any other of the transactions contemplated in
this Agreement, (B) the execution, delivery or performance of the Agreement by
the General Partner or the Partnership or the Bridge Loan or the Credit Facility
by the parties thereto or the consummation of the transactions contemplated by
this Agreement or the Bridge Loan or the Credit Facility, or (C) the fulfillment
of the terms hereof or thereof will conflict with, result in a breach or
violation of or event of default under (or constitute any event which with
notice, lapse of time or both would result in any breach of or constitute a
default under), or imposition of any lien, charge or encumbrance upon any
property or assets of any of the Partnership Entities pursuant to, (1) the
formation, organizational or governing documents of any of the Partnership
Entities, (2) to such counsel's knowledge, the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which any of the
Partnership Entities is a party or bound or to which their property is subject,
or the ESOP Notes (in each case, excluding any financial tests) or (3) any
statute, law, rule, regulation, and, to such counsel's knowledge, judgment,
order or decree applicable to any of the Partnership Entities of any court,
regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over any of the Partnership Entities or any of
their properties which violation or default would have a Material Adverse
Effect.
(xxv) None of the execution, delivery or performance of the
Shell PSA, the Terminalling Agreement or the Transportation Agreement by the
Partnership Entities party thereto or the consummation of the transactions
contemplated therein, will conflict with, result in a breach or violation of,
event of default under (or constitute any event which with notice, lapse of time
or both would result in any breach of or constitute a default under), or
imposition of any lien, charge or encumbrance upon any property or assets of any
of the Partnership, Wood River or BT pursuant to, (1) the formation,
organizational or governing documents of the Partnership, Wood River or BT, or
(2) to such counsel's knowledge, the terms of the Credit Facility, the Bridge
Loan, the Partnership's outstanding $300 million of 4-5/8% notes due 2013 or the
Partnership's outstanding $150 million of 6-3/4% notes due 2033 (in each case
excluding any financial tests), in each case, which violation or default would
have a Material Adverse Effect.
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(xxvi) To such counsel's knowledge, no person has the right to
require the registration under the Act of any securities of the Partnership or
to include any such securities in the Registration Statement or the offering
contemplated hereby, whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Offered Units as contemplated hereby
or otherwise.
(xxvii) The Partnership has all requisite power and authority
to issue, sell and deliver the Offered Units in accordance with and upon the
terms and conditions set forth in this Agreement, the Partnership Agreement, the
Registration Statement and the Final Prospectus, and each of the Partnership
Entities has all requisite power and authority to enter into the Transaction
Documents to which it is a party and to consummate the transactions contemplated
under this Agreement and the Transaction Documents; and at the Closing Date and
any settlement date, all partnership action required to be taken by the
Partnership or any of its unitholders for (i) the authorization, issuance, sale
and delivery of the Offered Units, (ii) the execution and delivery of this
Agreement and the Transaction Documents and (iii) the consummation of the
transactions contemplated by this Agreement and the Transaction Documents shall
have been validly taken.
(xxviii) Each of the Transaction Documents has been duly
authorized, executed and delivered by each of the Partnership Entities parties
thereto.
(xxix) Each of the Operative Documents set forth in Section
1(u)(i)-(iv) has been duly authorized, executed and delivered by the parties
thereto and is a valid and legally binding agreement of the parties thereto,
enforceable against the parties thereto in accordance with its terms, except as
such enforceability may be affected by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or transfer or other similar
laws 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 an implied covenant of good faith and fair dealing.
In rendering such opinion, such counsel may rely as to matters of fact, to the
extent they deem proper, on certificates of responsible officers of the General
Partner and public officials. References to the Final Prospectus in this
paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) Intentionally omitted.
(d) The Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date
and addressed to the Representatives, with respect to the issuance and sale of
the Offered Units, the Registration Statement, the Final Prospectus (together
with any supplement thereto) and other related matters as the Representatives
may reasonably require, and the Partnership shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass upon
such matters.
(e) The General Partner shall have furnished to the Representatives
a certificate of the General Partner, signed by the chief executive officer and
the chief financial officer of the General Partner, dated the Closing Date, to
the effect that the signers of such
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certificate have carefully examined the Registration Statement, the Final
Prospectus, any supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of each of the General
Partner and the Partnership contained in this Agreement are true and correct on
and as of the Closing Date with the same effect as if made on the Closing Date;
(ii) each of the General Partner and the Partnership has
complied with all the agreements and satisfied all the conditions on its or
their part to be performed or satisfied at or prior to the Closing Date;
(iii) the Registration Statement has become effective and no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or, to the
General Partner's or the Partnership's knowledge, threatened by the Commission,
and all requests for information from the Commission have been complied with or
otherwise satisfied;
(iv) the Offered Units have been duly listed, subject to
official notice of issuance, on the New York Stock Exchange; and
(v) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of the
Partnership Entities, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated in
the Final Prospectus (exclusive of any supplement thereto).
(f) The Partnership shall have requested and caused Deloitte &
Touche LLP to have furnished to the Representatives, at the Execution Time and
at the Closing Date, letters dated respectively as of the Execution Time and as
of the Closing Date, in form and substance satisfactory to the Representatives,
confirming that they are independent accountants within the meaning of the Act
and the Exchange Act and the respective applicable rules and regulations adopted
by the Commission thereunder and that they have performed a review of the
unaudited interim financial information of the Partnership for the three-month
and six-month periods ended June 30, 2003 and 2004, and as at June 30, 2004, in
accordance with Statement on Auditing Standards No. 100, and stating in effect,
except as provided in Schedule I hereto, that:
(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated by reference in the
Registration Statement and the Final Prospectus and reported on by them comply
as to form in all material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related rules and regulations adopted by
the Commission;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Partnership; their limited review, in
accordance with standards established under Statement on Auditing Standards No.
100, of the unaudited interim financial information for the three-month period
ended June 30, 2004 and as at June 30, 2004, incorporated by reference in the
Registration Statement and the Final Prospectus; carrying out
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certain specified procedures (but not an examination in accordance with
generally accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set forth in such letter; a
reading of the minutes of the meetings of the stockholders, directors and
committees of the board of directors, committees of the General Partner; and
inquiries of certain officials of the General Partner who have responsibility
for financial and accounting matters of the Partnership Entities as to
transactions and events subsequent to June 30, 2004, nothing came to their
attention which caused them to believe that:
(1) any unaudited financial statements included or
incorporated by reference in the Registration Statement and the Final Prospectus
do not comply as to form in all material respects with applicable accounting
requirements of the Act and with the related rules and regulations adopted by
the Commission with respect to financial statements included or incorporated by
reference in quarterly reports on Form 10-Q under the Exchange Act; and said
unaudited financial statements are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent with that of
the audited financial statements included or incorporated by reference in the
Registration Statement and the Final Prospectus;
(2) with respect to the period subsequent to August 31,
2004, there were any changes, at a specified date not more than five (5) days
prior to the date of the letter, in the partnership interests, long-term debt of
the Partnership and its subsidiaries decreases in consolidated net current
assets or partners' capital of the Partnership as compared with the amounts
shown on the June 30, 2004 consolidated balance sheet included or incorporated
by reference in the Registration Statement and the Final Prospectus, or for the
period from July 1, 2004, to October 11, 2004 there were any decreases, as
compared with the corresponding period in the preceding year in consolidated
transportation revenue or the total or per-unit amounts of income before
extraordinary items or of net income, except in all instances for changes,
increases or decreases set forth in such letter, in which case the letter shall
be accompanied by an explanation by the Partnership as to the significance
thereof unless said explanation is not deemed necessary by the Representatives;
and
(3) the information included or incorporated by
reference in the Registration Statement and Final Prospectus in response to
Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary
Financial Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio
of Earnings to Fixed Charges) is not in conformity with the applicable
disclosure requirements of Regulation S-K;
(iii) they have performed certain other specified procedures
as a result of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records of the
Partnership and its subsidiaries) set forth in the Registration Statement and
the Final Prospectus and in Exhibit 12 to the Registration Statement, including
the information set forth under the captions "Summary," "Use of Proceeds," and
"Capitalization," in the Final Prospectus, the information included or
incorporated by reference in Items 1, 2, 6, 7 and 11 of the Partnership's Annual
Report on Form 10-K, incorporated by reference in the Registration Statement and
the Final Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
included or incorporated by reference in the Partnership's Quarterly Reports on
Form 10-Q, incorporated by reference in the Registration Statement and the Final
Prospectus in the
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Partnership's Current Reports on Form 8-K, incorporated by reference in the
Registration Statement and Final Prospectus, agrees with the accounting records
of the Partnership and its subsidiaries, excluding any questions of legal
interpretation.
References to the Final Prospectus in this paragraph (f) include any supplement
thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any material change or decrease
specified in the letter or letters referred to in paragraph (f) of this Section
6 or (ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), results of operations,
prospects, earnings, business or properties of the Partnership Entities, taken
as a whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto) the effect of which, in any case referred
to in clause (i) or (ii) above, is, in the sole judgment of the Representatives,
so material and adverse as to make it impractical or inadvisable to proceed with
the offering or delivery of the Offered Units as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date, the General Partner and the
Partnership shall have furnished to the Representatives such further
information, certificates and documents as the Representatives may reasonably
request.
(i) Intentionally omitted.
(j) At the Execution Time, the Partnership shall have furnished to
the Representatives a letter substantially in the form of Exhibit A hereto from
each officer and director of the General Partner, Buckeye Services and Glenmoor
addressed to the Representatives.
(k) Subsequent to the Effective Time, there shall not have occurred
any event or development relating to or involving the Partnership Entities which
makes any statement of material fact made in the Final Prospectus untrue or
which, in the opinion of the Partnership and its counsel or the Underwriters and
their counsel, requires the making of any addition to or change in the Final
Prospectus in order to state a material fact required by the Act or any other
applicable law to be stated therein or necessary in order to make the statements
therein not misleading, if amending or supplementing the Final Prospectus to
reflect such event or development would, in your opinion, as Representatives of
the several Underwriters, materially adversely affect the market for the Units.
(l) All corporate, partnership and limited liability company
proceedings and other legal matters incident to the authorization, form and
validity of this Agreement, the Transaction Documents and the Registration
Statement and the Final Prospectus, and all other legal matters relating to this
Agreement, the Transaction Documents and the transactions contemplated by this
Agreement and the Transaction Documents shall be reasonably satisfactory in all
material respects to counsel for the Underwriters, and the Partnership Entities
shall have
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furnished to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(m) Subsequent to the Execution Time there shall not have been any
decrease in the rating of any of the debt securities of any Partnership Entity
by any "nationally recognized statistical rating organization," as defined for
purposes of Rule 436(g) under the Act or any notice given of any intended or
potential decrease in any such rating or of a possible change in any such rating
that does not indicate the direction of possible change.
(n) The New York Stock Exchange, Inc. shall have approved the
Offered Units for supplemental listing, subject only to official notice of
issuance.
All such opinions, certificates, letters and other documents
referred to in this Section 6 will be in compliance with the provisions hereof
only if they are reasonably satisfactory in form and substance to you and your
counsel. Any certificate or document signed by any officer of the General
Partner and delivered to you, as Representatives of the Underwriters, or to
counsel for the Underwriters, shall be deemed a representation and warranty by
each of the General Partner and the Partnership to each Underwriter as to the
statements made therein.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Partnership
in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the Offered
Units provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of any of the General Partner and the
Partnership to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the General
Partner and the Partnership will reimburse the Underwriters severally through
Citigroup Global Markets Inc. on demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Offered Units.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) Each of the General Partner and the Partnership, jointly and
severally, agree to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls
any Underwriter within the meaning of
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either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the Offered
Units as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agree to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the General Partner and the Partnership will not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Partnership by or on behalf of any Underwriter
through the Representatives specifically for inclusion therein. This indemnity
agreement will be in addition to any liability which the General Partner and the
Partnership may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the General Partner and the Partnership, each of the General
Partner's directors, each of the General Partner's officers who signs the
Registration Statement, and each person who controls the Partnership within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the General Partner and the Partnership to each
Underwriter, but only with reference to written information relating to such
Underwriter furnished to the Partnership by or on behalf of such Underwriter
through the Representatives specifically for inclusion in the documents referred
to in the foregoing indemnity. This indemnity agreement will be in addition to
any liability which any Underwriter may otherwise have. The General Partner and
the Partnership acknowledge that the statements set forth in the last paragraph
of the cover page regarding delivery of the Offered Units and, under the heading
"Underwriting" (i) the list of Underwriters and their respective participation
in the sale of the Offered Units, (ii) the sentences related to concessions and
reallowances and (iii) the paragraph related to stabilization, syndicate
covering transactions and penalty bids in any Preliminary Final Prospectus and
the Final Prospectus constitute the only information furnished in writing by or
on behalf of the several Underwriters for inclusion in any Preliminary Final
Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraphs (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall
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be entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the General Partner and the Partnership and
the Underwriters severally agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) (collectively "Losses") to
which the General Partner and the Partnership and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect the
relative benefits received by the General Partner and the Partnership on the one
hand and by the Underwriters on the other from the offering of the Offered
Units; provided, however, that in no case shall any Underwriter (except as may
be provided in any agreement among underwriters relating to the offering of the
Offered Units) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Offered Units purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the General Partner and the Partnership
and the Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Partnership on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. Benefits received by the
General Partner and the Partnership shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses) received by it, and
benefits received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions,
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in each case as set forth on the cover page of the Final Prospectus. Relative
fault shall be determined by reference to, among other things, whether any
untrue or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information provided by the
Partnership on the one hand or the Underwriters on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The General Partner and
the Partnership and the Underwriters agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person who controls an Underwriter within the meaning of either the Act or
the Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such Underwriter, and
each person who controls the Partnership within the meaning of either the Act or
the Exchange Act, each officer of the General Partner who shall have signed the
Registration Statement and each director of the General Partner shall have the
same rights to contribution as the Partnership, subject in each case to the
applicable terms and conditions of this paragraph (d).
9. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall fail
to purchase and pay for any of the Offered Units agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Offered Units set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Offered Units set forth opposite the names of all the remaining Underwriters)
the Offered Units which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Offered Units which the defaulting Underwriter or Underwriters agreed
but failed to purchase shall exceed 10% of the aggregate amount of Offered Units
set forth in Schedule II hereto, the remaining Underwriters shall have the right
to purchase all, but shall not be under any obligation to purchase any, of the
Offered Units, and if such nondefaulting Underwriters do not purchase all the
Offered Units, this Agreement will terminate without liability to any
nondefaulting Underwriter or the General Partner and the Partnership. In the
event of a default by any Underwriter as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding five Business
Days, as the Representatives shall determine in order that the required changes
in the Registration Statement and the Final Prospectus or in any other documents
or arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to the General
Partner and the Partnership and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
10. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Partnership
and General Partner prior to delivery of and payment for the Offered Units, if
at any time prior to such time (i) trading in the Partnership's Units shall have
been suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange, (ii) a
-34-
banking moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Representatives, impractical or inadvisable
to proceed with the offering or delivery of the Offered Units as contemplated by
the Final Prospectus (exclusive of any supplement thereto).
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective agreements,
representations, warranties, indemnities and other statements of the General
Partner and the Partnership or the General Partner's officers and of the
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter or the General Partner and the Partnership or any of the officers,
directors, employees, agents or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Offered Units. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. NOTICES. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telefaxed to the Citigroup Global Markets Inc. General Counsel (fax no.:
(▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel, Citigroup Global Markets
Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: General
Counsel; or, if sent to the General Partner and the Partnership, will be mailed,
delivered or telefaxed to Buckeye Partners, L.P. (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and
confirmed to the General Counsel, Buckeye Pipe Line Company LLC, at ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
13. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers,
directors, employees, agents and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder.
14. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
15. COUNTERPARTS. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. HEADINGS. The section headings used herein are for convenience only
and shall not affect the construction hereof.
17. DEFINITIONS. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
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"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the Effective
Date including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Offered Units that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Offered Units and the
offering thereof and is used prior to filing of the Final Prospectus, together
with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration Statement,
as the case may be. Such term shall include any Rule 430A Information deemed to
be included therein at the Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such
rules under the Act.
"Rule 430A Information" shall mean information with respect to the
Offered Units and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating to
the offering covered by the registration statement referred to in Section 1(a)
hereof.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
General Partner and the Partnership and the several Underwriters.
[Signature Pages to Follow]
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Very truly yours,
"General Partner"
BUCKEYE PIPE LINE COMPANY LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President --
Administration, General Counsel
and Secretary
"Partnership"
BUCKEYE PARTNERS, L.P.
By: Buckeye Pipe Line Company LLC,
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
__________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President -
Administration, General Counsel
and Secretary
Signature Page to Buckeye Partners, L.P. Underwriting Agreement
dated October 13, 2004
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
CITIGROUP GLOBAL MARKETS INC.
By: Citigroup Global Markets Inc.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
______________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ BROTHERS INC.
By: ▇▇▇▇▇▇ Brothers Inc.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
______________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
For themselves and the other
several Underwriters, named
in Schedule II to the foregoing
Agreement.
Signature Page to Buckeye Partners, L.P. Underwriting Agreement
dated October 13, 2004
SCHEDULE I
1. Underwriting Agreement, dated October 13, 2004
2. Registration Statement No. 333-116540
3. Representatives: Citigroup Global Markets Inc.
▇▇▇▇▇▇ Brothers Inc.
4. Title, Purchase Price and Description of Offered Units:
a. Title: units representing limited partner interests
b. Number of Units to be sold by the Partnership: 5,500,000
c. Price to Public per Unit (include accrued dividends, if any):
$42.500
d. Price to Public -- total: $233,750,000
e. Underwriting Discount per Unit: $1.806
f. Underwriting Discount -- total: $9,934,375
g. Proceeds to Partnership per Unit: $40.694
h. Proceeds to Partnership -- total: $223,815,625
i. Other provisions: N/A
5. Closing Date, Time and Location: October 19, 2004 at 9:00 a.m. at ▇▇▇▇▇▇ &
▇▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
6. Type of Offering: Non-Delayed
7. Date referred to in Section 5(f) after which the Partnership may offer or
sell securities issued or guaranteed by the Partnership without the
consent of the Representatives: January 11, 2005
8. Modification of items to be covered by the letter from Deloitte & Touche
LLP delivered pursuant to Section 6(f) at the Execution Time: None
SCHEDULE II
NUMBER OF
LIMITED PARTNER
UNDERWRITERS UNITS
------------ -----
Citigroup Global Markets Inc. .................................... 1,063,334
▇▇▇▇▇▇ Brothers Inc. ............................................. 1,063,333
▇▇▇▇▇▇▇, Sachs & Co. ............................................. 1,063,333
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated .......................................... 550,000
UBS Securities LLC ............................................... 550,000
Wachovia Capital Markets, LLC .................................... 550,000
RBC Capital Markets Corporation .................................. 330,000
KeyBanc Capital Markets, A Division of McDonald
Investments, Inc. ............................................. 165,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ....................................... 165,000
---------
Total .............................................. 5,500,000
=========
EXHIBIT A
FORM OF LOCK-UP AGREEMENT
October 13, 2004
Citigroup Global Markets Inc.
▇▇▇▇▇▇ Brothers Inc.
As Representatives of the several Underwriters
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed underwriting agreement (the "Underwriting Agreement"), among Buckeye
Pipe Line Company LCC, a Delaware limited liability company ("the General
Partner"), Buckeye Partners, L.P., a Delaware limited partnership (the
"Partnership"), and each of you as representatives of a group of underwriters
named therein (the "Underwriters"), relating to an underwritten public offering
of units representing limited partner interests (the "Units") of the
Partnership.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior written
consent of Citigroup Global Markets Inc. and ▇▇▇▇▇▇ Brothers Inc. (the
"Representatives"), offer, sell, contract to sell, pledge or otherwise dispose
of, (or enter into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by the
undersigned or any affiliate of the undersigned or any person in privity with
the undersigned or any affiliate of the undersigned), directly or indirectly,
including the filing (or participation in the filing) of a registration
statement with the Securities and Exchange Commission in respect of, or
establish or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder with respect to, any securities of
the Partnership or any securities convertible into or exercisable or
exchangeable for such securities, or publicly announce an intention to effect
any such transaction, for a period of ninety (90) days after the date of the
Underwriting Agreement, other than securities disposed of as bona fide gifts
approved by the Representatives provided that the Representatives receive a
similar lock-up agreement from the recipient of the bona fide gift and, with
respect to Buckeye Pipe Line Services Company, a Pennsylvania corporation
("Services Company") units representing limited partner interests in the
Partnership sold in connection with the liquidation of employee accounts in the
Buckeye Pipe Line Services Company Employee Stock Ownership Plan at or about the
time such person ceases to be an Employee of Services Company.
If for any reason the Underwriting Agreement has been executed and
the obligations set forth in the second paragraph hereof have become effective,
and the Underwriting Agreement is thereafter terminated by the Underwriters
prior to the Closing Date (as defined in the Underwriting Agreement), the
agreement set forth above shall likewise be terminated.
Yours very truly,
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
Address: ___________________________________
____________________________________________
Dated: October ___, 2004
ANNEX A
JURISDICTIONS
JURISDICTION JURISDICTIONS OF
ENTITY OF FORMATION FOREIGN QUALIFICATION
------ ------------ ---------------------
Buckeye Partners, L.P. Delaware None
(the "Partnership")
Buckeye Pipe Line Company LLC Delaware Connecticut
(the "General Partner") Florida
Illinois
Indiana
Massachusetts
Michigan
New Jersey
New York
Ohio (pending)
Pennsylvania
Buckeye Pipe Line Company, L.P. Delaware Connecticut
("Buckeye Pipe Line") Illinois
Indiana
Massachusetts
Michigan
New Jersey
New York
Ohio
Pennsylvania
Washington
Buckeye Pipe Line Holdings, L.P. Delaware Illinois
("BPH")
Everglades Pipe Line Company, L.P.
("Everglades") Delaware Florida
Laurel Pipe Line Company, L.P. Delaware New Jersey
("Laurel") Pennsylvania
Wood River Pipe Lines LLC Delaware Illinois
("Wood River") Indiana
Missouri
Ohio
JURISDICTION JURISDICTIONS OF
ENTITY OF FORMATION FOREIGN QUALIFICATION
------ ------------ ---------------------
Buckeye Terminals, LLC Delaware Illinois
("BT") Indiana
Michigan (pending)
Missouri (pending)
New York
Ohio
Pennsylvania
Norco Pipe Line Company, LLC Delaware Illinois
("Norco") Indiana
Iowa
Ohio
Buckeye Gulf Coast Holdings I, LLC Delaware Texas
("BGC I") Louisiana
Buckeye Gulf Coast Holdings II, LLC Delaware None
("BGC II")
Gulf Coast/Products GP Holding LLC Delaware Texas
("Gulf Coast GP LLC")
Buckeye Gulf Coast Pipe Lines, L.P. Delaware New York
("BGC") Louisiana
Texas
Buckeye Products Pipe Line, L.P. Delaware Texas
("BPP")
Gulf Coast Pipe Line, L.P. Delaware Texas
("GCP")
Gulf Coast/Products Holding L.P. Delaware Texas
("Gulf Coast LP")
Buckeye Pipe Line Co. of Michigan, L.P. Delaware Michigan
("BPL MI")
West Texas LPG Pipeline, L.P. Texas None
("West TX LPG")
West Shore Pipe Line Company Delaware Illinois
("West Shore") Indiana
Oklahoma
Wisconsin
JURISDICTION JURISDICTIONS OF
ENTITY OF FORMATION FOREIGN QUALIFICATION
------ ------------ ---------------------
Glenmoor LLC Delaware Pennsylvania
("Glenmoor")
Buckeye Management Company LLC Delaware Pennsylvania
("BMC")
Buckeye Pipe Line Services Company Pennsylvania Connecticut
("Services Company") Florida
Illinois
Indiana
Massachusetts
Michigan
Missouri (pending)
New Jersey
New York
Ohio
ANNEX B
SIGNIFICANT SUBSIDIARIES
Buckeye Pipe Line Company, L.P.
Laurel Pipe Line Company, L.P.
Buckeye Pipe Line Holdings, L.P.
Everglades Pipe Line Company, ▇.▇.
▇▇▇▇ River Pipe Lines, LLC
ANNEX C
LIST OF BUCKEYE OFFICERS, DIRECTORS AND
SIGNIFICANT UNITHOLDERS SUBJECT TO LOCK UP AGREEMENTS
Buckeye Partners, L.P. (pursuant to Underwriting Agreement)
Buckeye Pipe Line Company LLC (pursuant to Underwriting Agreement)
Buckeye Pipe Line Services Company -- Significant Unitholder
Glenmoor LLC -- Affiliate Unitholder
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇. -- Chairman of the Board, President and Chief Executive
Officer
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ -- Director
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ -- Director
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ -- Director
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. -- Director
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ -- Director
▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇ -- Director
▇▇▇▇▇ ▇. Sowinksi -- Director
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ -- Senior VP -- Administration, General Counsel and Secretary
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ -- Senior VP -- Finance and Chief Financial Officer
▇▇▇▇▇▇ ▇. ▇▇▇▇ -- Director