American Midstream Partners, LP [•] Common Units Representing Limited Partner Interests Underwriting Agreement
Exhibit 1.1
[•] Common Units
Representing Limited Partner Interests
Representing Limited Partner Interests
Citigroup Global Markets Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
As Representatives of the several Underwriters,
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
American Midstream Partners, LP, a limited partnership organized under the laws of Delaware
(the “Partnership”), proposes to sell to the several underwriters named in Schedule I
hereto (the “Underwriters”), for whom you (the “Representatives”) are acting as representatives,
[•] common units (the “Firm Units”), each representing a limited partner interest in the
Partnership (the “Common Units”). The Partnership also proposes to grant to the Underwriters an
option to purchase up to [•] additional Common Units to cover over-allotments, if any (the “Option
Units”; the Option Units, together with the Firm Units, being hereinafter called the “Units”).
Certain terms used herein are defined in Section 20 hereof.
It is understood and agreed to by all parties that as of the date hereof:
(a) AIM Midstream Holdings, LLC, a Delaware limited liability company (“AIM Midstream
Holdings”), is the sole member of American Midstream GP, LLC, a Delaware limited liability
company and the sole general partner of the Partnership (the “General Partner”);
(b) The Partnership is the sole member of American Midstream, LLC, a Delaware limited
liability company (the “Operating Company”);
(c) The Operating Company owns, directly or indirectly, each of the entities listed on
Schedule III-A hereto (collectively, the “Delaware LLC Subsidiaries”), each of the
entities listed on Schedule III-B hereto (collectively, the “Alabama LLC
Subsidiaries,” and together with the Delaware LLC Subsidiaries, the “LLC Subsidiaries”), and
the entity listed on Schedule III-C hereto (the “LP Subsidiary,” and together with
the LLC Subsidiaries, the “Subsidiaries”).
It is further understood and agreed to by all parties that on the Closing Date (as defined in
Section 3 hereof), immediately prior to the closing of the offering of the Firm Units:
(a) each general partner unit held by the General Partner will automatically split into
[•] general partner units, with the result that the General Partner will be the record
holder of an aggregate of [•] general partner units, representing a 2.0% general partner
interest in the Partnership;
(b) each Common Unit held by the participants (the “LTIP Participants”) in the General
Partner’s Long-Term Incentive Plan (the “LTIP”) will automatically split into [•] Common
Units, with the result that the LTIP Participants will be the record holders of an aggregate
of [•] Common Units, representing an aggregate [•]% limited partner interest in the
Partnership;
(c) each outstanding phantom unit held by an LTIP Participant will automatically split
into [•] phantom units, with the result that the LTIP Participants will be the record
holders of an aggregate of [•] phantom units;
(d) each Common Unit held by AIM Midstream Holdings will automatically split into [•]
Common Units, with the result that AIM Midstream Holdings will be the record holder of an
aggregate of [•] Common Units, representing an aggregate [•]% limited partner interest in
the Partnership; and
(e) each Common Unit held by AIM Midstream Holdings will automatically convert into (i)
[•] Common Units, representing an aggregate [•]% limited partner interest in the
Partnership, and (ii) [•] subordinated units representing limited partner interests in the
Partnership (the “Subordinated Units”), representing an aggregate [•]% limited partner
interest in the Partnership.
The transactions contemplated in clauses (a) through (e) above are referred to herein as the
“Pre-Closing Transactions.”
Upon the closing of the offering of the Firm Units:
(a) AIM Midstream Holdings will contribute [•] Common Units to the General Partner as a
capital contribution;
(b) the General Partner will contribute the [•] Common Units contributed to it by AIM
Midstream Holdings to the Partnership in exchange for [•] general partner units in order to
maintain its 2.0% general partner interest in the Partnership;
(c) the Second Amended and Restated Agreement of Limited Partnership of the Partnership
(as the same may be amended and restated on or prior to the Closing Date, the “Partnership
Agreement”), will take effect;
(d) the Operating Company will enter into the Credit Agreement, dated [•], 2011 (the
“New Credit Agreement”), by and among the Operating Company, as borrower, and the lenders
named therein; and
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(e) the Partnership will use the net proceeds from the offering of the Firm Units and
concurrent borrowings under the New Credit Agreement as described under the heading “Use of
Proceeds” in the most recent Preliminary Prospectus (as defined below).
The transactions contemplated in clauses (a) through (e) above are referred to herein as the
“Concurrent Transactions” and, together with the Pre-Closing Transactions, are referred to herein
as the “Transactions.”
The “Organizational Documents” shall mean (i) the certificates of formation of each of the
Partnership Entities other than the Partnership and American Midstream Offshore (Seacrest), LP, a
Texas limited partnership and wholly owned subsidiary of the Operating Company (“Seacrest”), (ii)
the certificate of limited partnership of the Partnership and Seacrest, (iii) the Amended and
Restated Limited Liability Company Agreement of the General Partner, dated November 4, 2009 (as the
same may be amended and restated) (the “General Partner Agreement”), (iv) the Partnership
Agreement, (v) the Amended and Restated Limited Liability Company Agreement of the Operating
Company, dated November 4, 2009 (as the same may be amended and restated) (the “Operating Company
Operating Agreement”), and (vi) the limited liability company and limited partnership agreements,
as the case may be, of the Subsidiaries.
The Partnership, the General Partner, the Operating Company and the Subsidiaries are sometimes
referred to herein individually as a “Partnership Entity” and collectively as the “Partnership
Entities.” The Partnership, the General Partner and the Operating Company are sometimes referred to
herein collectively as the “Partnership Parties.”
1. Representations and Warranties. Each of the Partnership Parties, jointly and
severally, represents and warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) The Partnership has prepared and filed with the Commission a registration statement
(file number 333-173191) on Form S-1, including a related preliminary prospectus, for
registration under the Act of the offering and sale of the Units. Such Registration
Statement, including any amendments thereto filed prior to the Execution Time, has become
effective. The Partnership may have filed one or more amendments thereto, including a
related preliminary prospectus, each of which has previously been furnished to you. The
Partnership will file with the Commission a final prospectus in accordance with Rule 424(b).
As filed, such final prospectus shall contain all information required by the Act and the
rules thereunder 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 latest
Preliminary Prospectus) as the Partnership has advised you, prior to the Execution Time,
will be included or made therein. No stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto has been issued under the
Act, no order preventing or suspending the use of any preliminary prospectus or the
Prospectus has been issued and no proceedings for any of those purposes have been instituted
or are pending or, to the Partnership’s knowledge, contemplated.
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(b) On the Effective Date, the Registration Statement did, and when the Prospectus is
first filed in accordance with Rule 424(b) and on the Closing Date and on any date on which
Option Units are purchased, if such date is not the Closing Date (a “settlement date”), the
Prospectus (and any supplement thereto) will, comply in all material respects with the
applicable requirements of the Act and the rules thereunder; on the Effective Date and at
the Execution Time, the Registration Statement, including information deemed a part thereof
pursuant to Rule 430A, did 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 date of any filing pursuant to Rule 424(b) and
on the Closing Date and any settlement date, the 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 Partnership makes no representations or warranties as to the information contained
in or omitted from the Registration Statement or the 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 Prospectus (or any supplement thereto), it being
understood and agreed that the only such information furnished by any Underwriter consists
of the information described as such in Section 8 hereof.
(c) As of the Execution Time and each settlement date, (i) the Disclosure Package and
the price to the public, the number of Firm Units and the number of Option Units to be
included on the cover page of the Prospectus, when taken together as a whole and (ii) each
electronic road show, when taken together as a whole with the Disclosure Package and the
price to the public, the number of Firm Units and the number of Option Units to be included
on the cover page of the Prospectus, does not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from the Disclosure Package based upon
and in conformity with written information furnished to the Partnership by any Underwriter
through the Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by or on behalf of any Underwriter consists of the
information described as such in Section 8 hereof.
(d) (i) At the time of filing the Registration Statement and (ii) as of the Execution
Time (with such date being used as the determination date for purposes of this clause (ii)),
the Partnership was not and is not an Ineligible Issuer (as defined in Rule 405), without
taking account of any determination by the Commission pursuant to Rule 405 that it is not
necessary that the Partnership be considered an Ineligible Issuer.
(e) Each Issuer Free Writing Prospectus does not include any information that conflicts
with the information contained in the Registration Statement, any Preliminary Prospectus or
the Prospectus. The foregoing sentence does not apply to statements in or omissions from
any Issuer Free Writing Prospectus based upon and in conformity with
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written information furnished to the Partnership by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed that the only
such information furnished by or on behalf of any Underwriter consists of the information
described as such in Section 8 hereof.
(f) Except as otherwise stated therein, since the respective dates as of which
information is given in the Registration Statement, the Disclosure Package and the
Prospectus, (A) there has been no (i) material adverse change in 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)
change that 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 (together with (i) above, a “Material Adverse Effect”), (B) there have been no
transactions entered into by any of the Partnership Entities, other than those in the
ordinary course of business, which are material with respect to the Partnership Entities,
taken as a whole, and (C) except for regular distributions on its Common Units in amounts
per unit that are consistent with past practice, there has been no dividend or distribution
of any kind declared, paid or made by the Partnership on any class of its partnership
interests.
(g) Each of the Partnership Entities has been duly formed and is validly existing as a
limited partnership or limited liability company, as applicable, in good standing under the
laws of the jurisdiction in which it is organized with full limited partnership or limited
liability company, as applicable, power and authority to own or lease, as the case may be,
and to operate its properties and conduct its business, and in the case of the General
Partner, act as the General Partner of the Partnership, in each case as described in the
Disclosure Package and the Prospectus, and is duly qualified to do business as a foreign
limited partnership or limited liability company, as applicable, and is in good standing
under the laws of each jurisdiction that requires such qualification.
(h) AIM Midstream Holdings is the sole member of the General Partner and owns 100% of
the membership interests in the General Partner; such membership interests have been duly
authorized and validly issued in accordance with the General Partner Agreement and are fully
paid (to the extent required under the General Partner Agreement) and nonassessable (except
as such nonassessability may be affected by Sections 18-303, 18-607 and 18-804 of the
Delaware Limited Liability Company Act (the “Delaware LLC Act”)); and AIM Midstream Holdings
owns such membership interests free and clear of all liens, encumbrances, security
interests, charges or other claims (“Liens”), except as disclosed in the Registration
Statement, the Disclosure Package and the Prospectus.
(i) At the Closing Date and each settlement date, and after giving effect to the
Transactions, the General Partner will be the sole general partner of the Partnership and
will own a 2.0% general partner interest in the Partnership (the “GP Interest”), and all of
the incentive distribution rights, as such term is defined in the Partnership Agreement (the
“Incentive Distribution Rights”); the GP Interest will be duly authorized and validly issued
in accordance with the Partnership Agreement; the Incentive Distribution Rights
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will be duly authorized and validly issued in accordance with the Partnership Agreement
and will be fully paid (to the extent required under the Partnership Agreement) and
nonassessable (except as such nonassessability may be affected by matters described in
Sections 17-303, 17-607 and 17-804 of the Delaware Revised Uniform Limited Partnership Act
(the “Delaware LP Act”); and the General Partner will own such GP Interest and Incentive
Distribution Rights free and clear of all Liens (except restrictions on transferability as
described in the Disclosure Package and the Prospectus).
(j) Assuming no purchase by the Underwriters of any Option Units, at the Closing Date,
after giving effect to the Transactions, AIM Midstream Holdings will own [•] Common Units
and [•] Subordinated Units (collectively, the “Sponsor Units”); the Sponsor Units and the
limited partner interests represented thereby will be duly authorized and validly issued in
accordance with the Partnership Agreement and will be fully paid (to the extent required
under Partnership Agreement) and nonassessable (except as such nonassessability may be
affected by matters described in Sections 17-303, 17-607 and 17-804 of the Delaware LP Act);
and AIM Midstream Holdings will own the Sponsor Units free and clear of all Liens.
(k) At the Closing Date and each settlement date, the Firm Units or the Option Units,
as the case may be, and the limited partner interests represented thereby, will be duly
authorized in accordance with the Partnership Agreement and, when issued and delivered to
the Underwriters against payment therefor in accordance with this Agreement, will be validly
issued, fully paid (to the extent required under the Partnership Agreement) and
nonassessable (except as such nonassessability may be affected by matters described in
Sections 17-303, 17-607 and 17-804 of the Delaware LP Act).
(l) At the Closing Date, after giving effect to the Transactions, the issued and
outstanding partnership interests of the Partnership will consist of [•] Common Units, [•]
Subordinated Units, the GP Interest, the Incentive Distribution Rights and any Common Units,
phantom units or other interests issued pursuant to the LTIP; and other than the Sponsor
Units, the Incentive Distribution Rights and any Common Units, phantom units or other
interests issued pursuant to the LTIP, the Firm Units will be the only limited partner
interests in the Partnership issued and outstanding at the Closing Date and each settlement
date.
(m) The Partnership is the sole member of the Operating Company and owns 100% of the
membership interests in the Operating Company; such membership interests have been duly
authorized and validly issued in accordance with the Operating Company Operating Agreement
and are fully paid (to the extent required under the Operating Company Operating Agreement)
and nonassessable (except as such nonassessability may be affected by matters described in
Sections 18-303, 18-607 and 18-804 of the Delaware LLC Act); and the Partnership owns such
membership interests free and clear of all Liens, except for those Liens securing
obligations under the Partnership’s $85 million secured credit facility, dated November 4,
2009, by and among the Operating Company and the lenders party thereto (the “Existing Credit
Agreement”).
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(n) The Operating Company owns, directly or indirectly, 100% of the membership
interests or limited partner interests, as applicable, in each of the Subsidiaries; such
equity interests have been duly authorized and validly issued in accordance with the
Organizational Documents of each Subsidiary and are fully paid (to the extent required under
such Organizational Documents) and nonassessable (except as such nonassessability may be
affected by Sections 18-303, 18-607 and 18-804 of the Delaware LLC Act and Section 153.210
of the Texas Business Organizations Code); and the Operating Company owns, directly or
indirectly, such equity interests free and clear of all Liens, except for those Liens
securing obligations under the Existing Credit Agreement.
(o) Other than the GP Interest and the Incentive Distribution Rights, the General
Partner does not own, and at the Closing Date and each settlement date will not own,
directly or indirectly, any equity or long-term debt securities of any corporation,
partnership, limited liability company, joint venture, association or other entity. Other
than (i) the Partnership’s ownership of its 100% membership interest in the Operating
Company, (ii) the Operating Company’s ownership of its 100% membership interest in each of
the LLC Subsidiaries, and (iii) the Operating Company’s 0.001% general partner interest in
the LP Subsidiary, and Mid Louisiana Gas Transmission, LLC’s, a Delaware limited liability
company and wholly owned subsidiary of the Operating Company (“MLGT”), ownership of 100% of
the limited partner interests of the LP Subsidiary, none of the Partnership, the Operating
Company or MLGT owns, and at the Closing Date and each settlement date, none will own,
directly or indirectly, any equity or long-term debt securities of any corporation,
partnership, limited liability company, joint venture, association or other entity.
(p) Each of the Partnership Parties has all requisite power and authority to execute
and deliver this Agreement and perform its respective obligations hereunder. The Partnership
has all requisite power and authority to issue, sell and deliver the Units in accordance
with and upon the terms and conditions set forth in this Agreement, the Partnership
Agreement, the Registration Statement, the Disclosure Package and the Prospectus. At the
Closing Date and each settlement date, all limited partner and limited liability company
action, as the case may be, required to be taken by any of the Partnership Entities or any
of their members or partners for the authorization, issuance, sale and delivery of the Units
and the consummation of the transactions (including the Transactions) contemplated by this
Agreement shall have been validly taken.
(q) At or before the Closing Date:
(1) the Partnership Agreement will have been duly authorized, executed and
delivered by the General Partner and will be a valid and legally binding agreement
of the partners in the Partnership, enforceable against the partners in the
Partnership in accordance with its terms;
(2) the General Partner Agreement will have been duly authorized, executed and
delivered by AIM Midstream Holdings and will be a valid and
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legally binding agreement of AIM Midstream Holdings, enforceable against AIM
Midstream Holdings in accordance with its terms;
(3) the Operating Company Operating Agreement 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;
(4) the limited liability company agreements of the LLC Subsidiaries have been
duly authorized, executed and delivered by the Operating Company and are valid and
legally binding agreements of the Operating Company, enforceable against the
Operating Company in accordance with their respective terms;
(5) the agreement of limited partnership of LP Subsidiary has been duly
authorized, executed and delivered by the Operating Company and MLGT, and is a valid
and legally binding agreement of the Operating Company and MLGT, enforceable against
the Operating Company and MLGT in accordance with their respective terms; and
(6) the New Credit Agreement will have been duly authorized, executed and
delivered by the Operating Company and will be a valid and legally binding agreement
of the Operating Company, enforceable against the Operating Company in accordance
with its terms.
provided, that with respect to each such agreement described in this Section 1(q), the
enforceability thereof may be limited by (i) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally
and by general principles of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and (ii) public policy, any applicable law relating to fiduciary
duties and indemnification and an implied covenant of good faith and fair dealing.
(r) There is no franchise, contract or other document of a character required to be
described in the Registration Statement, the Disclosure Package or Prospectus, or to be
filed as an exhibit to the Registration Statement, which is not described or filed as
required (and the Preliminary Prospectus contains in all material respects the same
description of the foregoing matters contained in the Prospectus).
(s) Each of the statements made by the Partnership in the Registration Statement and
the Disclosure Package and to be made in the Prospectus (and any supplements thereto) within
the coverage of Rule 175(b) under the Securities Act, including (but not limited to) any
statements with respect to projected results of operations, estimated available cash and
future cash distributions of the Partnership, and any statements made in support thereof or
related thereto under the heading “Cash Distribution Policy and Restrictions on
Distributions” or the anticipated ratio of taxable income to distributions, was made or will
be made with a reasonable basis and in good faith.
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(t) This Agreement has been duly authorized, executed and delivered by the Partnership
Parties.
(u) Each of the Partnership Entities is not and, after giving effect to the offering
and sale of the Units and the application of the proceeds thereof as described in the
Disclosure Package and the Prospectus under the caption “Use of Proceeds,” will not be an
“investment company” as defined in the Investment Company Act of 1940, as amended.
(v) No consent, permit, approval, authorization, filing with or order of any court or
governmental agency or body having jurisdiction over any of the Partnership Entities or any
of their properties or assets is required in connection with (i) the offering, issuance or
sale by the Partnership of the Units, (ii) the application of the proceeds therefrom as
described in the Disclosure Package and the Prospectus under the caption “Use of Proceeds,”
(iii) the execution and delivery of this Agreement by the Partnership Parties or (iv)
consummation of the transactions (including the Transactions) contemplated hereby, except
for (x) registration of the Units under the Act, which has been effected (or, with respect
to any Rule 462(b) Registration Statement, will be effected in accordance herewith), any
necessary qualification under the securities or blue sky laws of the various jurisdictions
in which the Units are being offered by the Underwriters, under the rules and regulations of
the Financial Industry Regulatory Authority (“FINRA”), (y) such consents that have been, or
prior to the Closing Date will be, obtained and (z) such consents that, if not obtained,
would not reasonably be expected to have a Material Adverse Effect or materially impair the
ability of any of the Partnership Parties to consummate the transactions (including the
Transactions) contemplated under this Agreement.
(w) Neither the issuance and sale of the Units nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms hereof will conflict with,
result in a breach or violation of, or imposition of any lien, charge or encumbrance upon
any property or assets of the Partnership Entities pursuant to, (i) the Organizational
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 any of the Partnership Entities is a party or bound or to which its or their
property is subject, or (iii) 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 in a proceeding to which any of them or
their property is a party, except in the case of clause (ii), Liens securing obligations
under the Existing Credit Agreement and except in the case of clause (iii), where such
breach or violation would not have a Material Adverse Effect.
(x) The historical consolidated financial statements and schedules of the Partnership
and its consolidated subsidiaries included in the Disclosure Package, the Prospectus and the
Registration Statement present fairly the financial condition, results of operations and
cash flows of such entity as of the dates and for the periods indicated, comply as to form
with the applicable accounting requirements of the Act and have been
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prepared in conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except as otherwise noted therein). The
historical combined financial statements and schedules of American Midstream Partners
Predecessor, the accounting predecessor to the Partnership (the “Predecessor”), included in
the Disclosure Package, the Prospectus and the Registration Statement present fairly the
financial condition, results of operations and cash flows of the Predecessor 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 selected financial data set forth under the caption “Selected
Historical Financial and Operating Data” in the Disclosure Package, the Prospectus and the
Registration Statement fairly present, on the basis stated in the Disclosure Package, the
Prospectus and the Registration Statement, the information included therein.
(y) 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 or its or
their property is pending or, to the knowledge of the General Partner or the Partnership,
threatened that would have a Material Adverse Effect, except as set forth in or contemplated
in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(z) None of the Partnership Entities is in violation or default of (i) any provision of
its Organizational 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 any of the Partnership Entities or any of such Partnership
Entities’ properties, as applicable, except in the cases of clauses (ii) and (iii) where
such violation or default would not have a Material Adverse Effect.
(aa) PricewaterhouseCoopers LLP, who has certified certain financial statements of the
Partnership and its consolidated subsidiaries and the combined financial statements for the
Predecessor included in the Disclosure Package and delivered its reports with respect to the
audited financial statements and schedules included in the Disclosure Package and the
Prospectus, is an independent public accounting firm with respect to the Partnership within
the meaning of the Act and the applicable published rules and regulations thereunder.
(bb) There are no transfer taxes or other similar fees or charges under federal law or
the laws of any state, or any political subdivision thereof, required to be paid in
connection with the execution and delivery of this Agreement or the issuance by the
Partnership or sale by the Partnership of the Units.
(cc) The Partnership Entities have filed all tax returns that are required to be filed
or has requested extensions thereof except (i) in any case in which the failure so to
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file would not have a Material Adverse Effect or (ii) as set forth in or contemplated
in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), 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, except as set forth in or contemplated in the Disclosure
Package and the Prospectus (exclusive of any supplement thereto).
(dd) No labor problem or dispute with the employees of any of the Partnership Entities
exists or is threatened or imminent, and the General Partner and the Partnership are not
aware of any existing or imminent labor disturbance by the employees of any of the
Partnership Entities’ principal suppliers, contractors or customers, that could have a
Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package
and the Prospectus (exclusive of any supplement thereto).
(ee) The Partnership Entities carry or are entitled to the benefits of, insurance
relating to the business of the Partnership Entities, with reputable insurers, in such
amounts and covering such risks as is commercially reasonable, and all such insurance is 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 no claims by the 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. The
Partnership Parties have received no notice from such insurers that the Partnership Entities
will not be able to (i) renew their existing insurance coverage relating to the business of
the Partnership Entities as and when such policies expire or (ii) obtain comparable coverage
relating to the business of the Partnership Entities as may be necessary or appropriate to
conduct such business as now conducted and at a cost that would not have a Material Adverse
Effect.
(ff) 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 interests, from repaying to the Partnership any loans or advances to
such subsidiary from the Partnership or from transferring any of such subsidiary’s property
or assets to the Partnership or any other subsidiary of the Partnership, except as described
in or contemplated by the Disclosure Package and the Prospectus (exclusive of any supplement
thereto).
(gg) The Partnership Entities possess all licenses, certificates, permits and other
authorizations issued by all applicable authorities necessary to conduct their respective
businesses, except to the extent that failure to possess any of the foregoing, individually
or in the aggregate, 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 license, certificate, authorization or permit, which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package
and the Prospectus (exclusive of any supplement thereto).
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(hh) 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. The
Partnership Entities’ internal controls over financial reporting are effective and the
Partnership Entities are not aware of any material weakness in their internal controls over
financial reporting.
(ii) The Partnership Entities maintain “disclosure controls and procedures” (as such
term is defined in Rule 13a-15(e) under the Exchange Act) and (i) such disclosure controls
and procedures are designed to ensure that the information required to be disclosed by the
Partnership in the reports it files or will file or submit under the Exchange Act, as
applicable, is accumulated and communicated to management of the General Partner and each
other Partnership Entity, including their respective principal executive officers and
principal financial officers, as appropriate, to allow timely decisions regarding required
disclosure to be made and (ii) such disclosure controls and procedures are effective in all
material respects to perform the functions for which they were established to the extent
required by Rule 13a-15 of the Exchange Act.
(jj) Neither the General Partner nor the Partnership 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 Units.
(kk) The Partnership Entities are (i) 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”), (ii) have received and are in compliance with all
permits, licenses or other approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) have not received notice of any actual or
potential liability under any environmental law, 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,
except as set forth in or contemplated in the Disclosure Package and the Prospectus
(exclusive of any supplement thereto). Except as set forth in the Disclosure Package and
the Prospectus, 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.
(ll) In the ordinary course of its business, the General Partner periodically reviews
the effect of Environmental Laws on the business, operations and properties of the
Partnership Entities, in the course of which it identifies and evaluates associated costs
12
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
has concluded that such associated costs and liabilities would not, singly or in the
aggregate, have a Material Adverse Effect, except as set forth in or contemplated in the
Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(mm) Except as would not reasonably be expected to result in a Material Adverse Effect,
(i) the Partnership Entities are in compliance in all material respects with all presently
applicable provisions of the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published governmental interpretations thereunder (“ERISA”);
(ii) no “reportable event” (as defined in Section 4043(c) ERISA) has occurred with respect
to any “pension plan” (as defined in Section 3(2) of ERISA) for which any Partnership Entity
would have any liability, excluding any reportable event for which a waiver could apply;
(iii) no Partnership Entity has incurred, nor does any such entity expect to incur,
liability under (a) Title IV of ERISA with respect to termination of, or withdrawal from,
any “pension plan” or (b) Sections 412 or 4971 of the Internal Revenue Code of 1986, as
amended, including the regulations and published governmental interpretations thereunder
(the “Code”) with respect to any “pension plan”; (iv) each “pension plan” for which the any
Partnership Entity would have any liability that is intended to be qualified under Section
401(a) of the Code is the subject of a favorable determination or opinion letter from the
Internal Revenue Service to the effect that it is so qualified and, to the knowledge of the
Partnership Entities, nothing has occurred, whether by action or by failure to act, which
could reasonably be expected to cause the loss of such qualification; and (v) no Partnership
Entity has incurred any unpaid liability to the Pension Benefit Guaranty Corporation (other
than for payment of premiums in the ordinary course of business).
(nn) At the Effective Date, the Partnership and, to the knowledge of the Partnership
Parties, the officers and directors of the General Partner, in their capacities as such
were, and on the Closing Date, will be, in compliance in all material respects with the
applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations
promulgated in connection therewith (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), including Section 402
relating to loans and Sections 302 and 906 relating to certifications.
(oo) None of the Partnership Entities nor, to the knowledge of the General Partner and
the Partnership, any director, officer, agent, employee or affiliate 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 Foreign Corrupt Practices Act of 1977, as amended,
and the rules and regulations thereunder (the “FCPA”), including, without limitation, making
use of the mails or any means or instrumentality of interstate commerce corruptly in
furtherance of an offer, payment, promise to pay or authorization of the payment of any
money, or other property, gift, promise to give, or authorization of the giving of anything
of value to any “foreign official” (as such term is defined in the FCPA) or any foreign
political party or official thereof or any candidate for foreign political office, in
contravention of the FCPA; and the Partnership Entities and, to the
13
knowledge of the General Partner and the Partnership, their affiliates have conducted
their businesses in compliance with the FCPA and have instituted and maintain policies and
procedures designed to ensure, and which are reasonably expected to continue to ensure,
continued compliance therewith.
(pp) 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 applicable jurisdictions, and 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 the any of the Partnership Entities with respect to the Money
Laundering Laws is pending or, to the knowledge of the General Partner and the Partnership,
threatened.
(qq) None of the Partnership Entities nor, to the knowledge of the General Partner and
the Partnership, any director, officer, agent, employee or affiliate of the Partnership
Entities, is currently subject to any sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department (“OFAC”); and the General Partner and the
Partnership 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.
(rr) Except as disclosed in the Registration Statement, the Disclosure Package and the
Prospectus, the Partnership (i) does not have any material lending or other relationship
with any bank or lending affiliate of any Underwriter and (ii) does not intend to use any of
the proceeds from the sale of the Units to repay any outstanding debt owed to any affiliate
of any Underwriter.
(ss) Any statistical and market-related data included in the Registration Statement,
the Disclosure Package or the Prospectus are based on or derived from sources that the
Partnership Parties believe to be reliable and accurate and, to the extent required, the
Partnership Parties have obtained the written consent to the use of such data from such
sources.
(tt) The Subsidiaries listed on Schedule V hereto are the only significant
subsidiaries of the Partnership as defined by Rule 1-02 of Regulation S-X.
(uu) The Partnership Entities own, possess, license or have other rights to use, on
reasonable terms, all patents, patent 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 Entities’ business as now conducted
or as proposed in the Disclosure Package and the Prospectus to be conducted and there is no
pending or, to the knowledge of each Partnership Party, threatened action,
14
suit, proceeding or claim by others challenging the Partnership Entities’ rights in or
to any such Intellectual Property, and each of the Partnership Parties is unaware of any
facts which would form a reasonable basis for any such claim.
(vv) At the Closing Date, each Subsidiary will have indefeasible title to all real
property (excluding easements or rights-of-way) and good and marketable title to all
personal property described in the Disclosure Package and the Prospectus, if any, as being
owned by each of them, which real and personal property shall be free and clear of all
Liens, except (i) as described, and subject to the limitations contained, in the Disclosure
Package and the Prospectus, if any, (ii) that arise under or are expressly permitted by the
Existing Credit Agreement or the New Credit Agreement, or (iii) as do not materially
interfere with the use of such properties taken as a whole as they have been used in the
past and are proposed to be used in the future as described in the Disclosure Package and
the Prospectus, if any. All the real and personal property described in the Disclosure
Package and the Prospectus, if any, as being held under lease by any of the Partnership
Entities is held thereby under valid, subsisting and enforceable leases and with such
exceptions as do not materially interfere with the use of such properties in the manner in
which such properties are used in the business of the Partnership as described in the
Disclosure Package and the Prospectus, if any.
(ww) At the Closing Date, each of the Partnership Entities will have such consents,
easements, rights-of-way, permits or licenses from each person (collectively,
“rights-of-way”) as are necessary to conduct its business in the manner described, and
subject to the limitations contained, in the Disclosure Package and the Prospectus, if any,
except for (i) qualifications, reservations and encumbrances that would not have a Material
Adverse Effect and (ii) such rights-of-way that, if not obtained, would not have,
individually or in the aggregate, a Material Adverse Effect; other than as set forth, and
subject to the limitations contained, in the Disclosure Package and the Prospectus, if any,
each of the Partnership Entities has, or at the Closing Date, following consummation of the
transactions contemplated hereby will have, fulfilled and performed, in all material
respects, its obligations with respect to such rights-of-way and no event has occurred that
allows, or after notice or lapse of time would allow, revocation or termination thereof or
would result in any impairment of the rights of the holder of any such rights-of-way, except
for such revocations, terminations and impairments that individually or in the aggregate,
would not have a Material Adverse Effect; and, except as described in the Disclosure Package
and the Prospectus, if any, none of such rights-of-way contains any restriction that is
materially burdensome to the Partnership Entities, taken as a whole.
(xx) Except as identified in the Disclosure Package, the Prospectus or as set forth in
the Partnership Agreement, the General Partner Agreement, the unitholder agreements with
LTIP Participants or the Bamagas Agreements, there are no (i) preemptive rights or other
rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of,
any equity interests in any of the Partnership Entities, or (ii) outstanding options or
warrants to purchase any securities of any of the Partnership Entities. Except for such
rights that have been waived or complied with, none of (i) the filing of the Registration
Statement, (ii) the consummation of the transactions (including the Transactions)
contemplated by this Agreement or (iii) the offering or sale of the Units
15
as contemplated by this Agreement gives rise to any rights for or relating to the
registration of any Common Units or other securities of any of the Partnership Entities.
(yy) The Units, when issued and delivered in accordance with the terms of the
Partnership Agreement and this Agreement against payment therefor as provided therein and
herein, will conform in all material respects to the description thereof contained in the
Registration Statement, the Disclosure Package and the Prospectus.
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 Units shall
be deemed a representation and warranty by the Partnership Parties, as to matters covered thereby,
to each Underwriter.
2. Purchase and Sale. (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 $[•] per common unit, the amount of the Firm Units set forth
opposite such Underwriter’s name in Schedule I 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 [•] Option Units at the same
purchase price per common unit as the Underwriters shall pay for the Firm Units, less an
amount per common unit equal to any dividends or distributions declared by the Partnership
and payable on the Firm Units but not payable on the Option Units. Said option may be
exercised only to cover over-allotments in the sale of the Firm Units by the Underwriters.
Said option may be exercised in whole or in part at any time on or before the 30th day after
the date of the 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 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 the Representatives in their 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
before the third Business Day immediately preceding the Closing Date) shall be made at 10:00 AM,
New York City time, on [•], 2011, or at such time on such later date not more than three Business
Days after the foregoing date as the Representatives shall designate, which date and time may be
postponed by agreement between the Representatives and the Partnership or as provided in
Section 9 hereof (such date and time of delivery and payment for the Units being herein
called the “Closing Date”). Delivery of the 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 an account specified by the Partnership. Delivery
16
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 immediately preceding the Closing Date, the Partnership will deliver the Option Units
(at the expense of the Partnership) to the Representatives, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ the date specified by the Representatives (which shall be within 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 Units for sale to the public as set forth in the Prospectus.
5. Agreements. Each of the Partnership Parties, jointly and severally, agrees with
the several Underwriters that:
(a) Prior to the termination of the offering of the Units, the Partnership will not
file any amendment of the Registration Statement or supplement to the Prospectus or any Rule
462(b) Registration Statement unless the Partnership has furnished the Representatives a
copy for their review prior to filing and will not file any such proposed amendment or
supplement to which the Representatives reasonably object. The Partnership will cause the
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 (i) when the 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, (ii) when, prior to
termination of the offering of the Units, any amendment to the Registration Statement shall
have been filed or become effective, (iii) 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 Prospectus or for any additional information, (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of the Registration
Statement or of any notice objecting to its use or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the Partnership of any notification
with respect to the suspension of the qualification of the 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
occurrence of any such suspension or objection to the use of the Registration Statement and,
upon such issuance, occurrence or notice of
17
objection, to obtain as soon as possible the withdrawal of such stop order or relief
from such occurrence or objection, including, if necessary, by filing an amendment to the
Registration Statement or a new registration statement and using its best efforts to have
such amendment or new registration statement declared effective as soon as practicable.
(b) If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any
event occurs as a result of which the Disclosure Package 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 at such time not
misleading, the Partnership will (i) notify promptly the Representatives so that any use of
the Disclosure Package may cease until it is amended or supplemented; (ii) amend or
supplement the Disclosure Package to correct such statement or omission; and (iii) supply
any amendment or supplement to the Representatives in such quantities as they may reasonably
request.
(c) If, at any time when a prospectus relating to the Units is required to be delivered
under the Act (including in circumstances where such requirement may be satisfied pursuant
to Rule 172), any event occurs as a result of which the 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 or the circumstances then prevailing not misleading, or if it shall be necessary
to amend the Registration Statement or supplement the Prospectus to comply with the Act or
the rules thereunder, the Partnership promptly will (i) notify the Representatives of any
such event; (ii) 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 (iii) supply any supplemented
Prospectus to the Representatives in such quantities as they may reasonably request.
(d) As soon as practicable, the Partnership will make generally available to its
unitholders 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.
(e) 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 (including in circumstances where such requirement may be
satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the
Prospectus and each Issuer Free Writing 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.
(f) The Partnership will arrange, if necessary, for the qualification of the Units for
sale under the laws of such jurisdictions as the Representatives may designate and will
maintain such qualifications in effect so long as required for the distribution of
18
the Units; 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 Units, in any jurisdiction where it is not now so subject.
(g) The Partnership will not, without the prior written consent of 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 Partnership Parties, 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
Common Units or any securities convertible into, or exercisable, or exchangeable for, Common
Units; or publicly announce an intention to effect any such transaction, for a period of 180
days (the “Lock-up Period”) after the date of the Underwriting Agreement, provided, however,
that the Partnership may, without the prior written consent of the Representatives, (A)
effect the registration of the offer and sale of the Units as contemplated by this
Agreement; (B) issue and sell Common Units pursuant to the Partnership’s long-term incentive
plan described in the Registration Statement, the Disclosure Package and the Prospectus and
the Partnership may issue Common Units issuable upon the conversion of securities or the
exercise of warrants outstanding at the Execution Time; (C) issue Common Units and other
securities pursuant to the Transactions as described in the Registration Statement, the
Disclosure Package and the Prospectus; (D) issue Common Units or any securities convertible
or exchangeable into Common Units as payment of any part of the purchase price for any
businesses that are acquired by the Partnership or its subsidiaries, provided that any
recipient of such Common Units must agree in writing to be bound by the terms of this
Section 5(g) for the remaining term of the Lock-Up Period; (E) file (or participate
in the filing of) a registration statement solely relating to the entrance by the
Partnership into a definitive agreement related to such an acquisition by the Partnership or
its subsidiaries, provided that, notwithstanding anything in this Agreement to the contrary,
the prior approval of the Representatives shall be required in the event that the
Partnership files (or participates in the filing of) a registration statement during the
Lock-Up Period prior to the entrance by the Partnership into a definitive agreement related
to such acquisition; and (F) issue Common Units or any securities that are convertible or
exchangeable into Common Units pursuant to an effective registration statement that is filed
pursuant to clause (E). Notwithstanding the foregoing, if (x) during the last 17 days of
the Lock-Up Period the Partnership issues an earnings release or announces material news or
a material event relating to the Partnership occurs, or (y) prior to the expiration of the
Lock-Up Period, the Partnership announces that it will release earnings results during the
16-day period beginning on the last day of the Lock-Up Period, the restrictions imposed in
this clause shall continue to apply until the expiration of the 18-day period beginning on
the issuance of the earnings release or the announcement of the material news or the
occurrence of the material event. The Partnership will provide the Representatives and any
co-managers and each individual subject to the restricted period pursuant to the lock-up
letters
19
described in Section 6(j) hereof with prior notice of any such announcement
that gives rise to an extension of the Lock-Up Period.
(h) The Partnership will not 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 Units.
(i) The Partnership Parties 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 Prospectus, the Prospectus and each Issuer Free Writing
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 Prospectus,
the Prospectus and each Issuer Free Writing 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 Units; (iii) the preparation, printing, authentication, issuance
and delivery of certificates for the Units, including any stamp or transfer taxes in
connection with the original issuance and sale of the 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 Units; (v) the registration of the Units under the Exchange Act and the
listing of the Units on the New York Stock Exchange; (vi) any registration or qualification
of the 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 with
FINRA (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 Partnership representatives in connection with presentations to
prospective purchasers of the 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 Partnership; and (x) all other costs and expenses incident to the performance by the
Partnership of its obligations hereunder, provided that except as provided in this
Section 5 and in Section 7 hereof, the Underwriters shall pay their own
costs and expenses, including, without limitation, the costs and expenses of their counsel,
any transfer taxes on the Units that they may sell. The Partnership agrees to pay to
Citigroup Global Markets Inc. and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated an
aggregate structuring fee in an amount equal to 0.75% of the gross proceeds from the sale of
the Units for providing advice regarding the capital structure of the Partnership, the terms
of the offering of the Units, the terms of the Partnership Agreement and the terms of
certain other agreements between the Partnership and its affiliates.
(j) The Partnership agrees that, unless it has or shall have obtained the prior written
consent of the Representatives, and each Underwriter, severally and not jointly, agrees with
the Partnership that, unless it has or shall have obtained, as the case may be, the prior
written consent of the Partnership, it has not made and will not make any offer
20
relating to the Units that would constitute an Issuer Free Writing Prospectus or that
would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to
be filed by the Partnership with the Commission or retained by the Partnership under Rule
433; provided that the prior written consent of the parties hereto shall be deemed to have
been given in respect of the Free Writing Prospectuses included in Schedule II
hereto and any electronic road show. Any such free writing prospectus consented to by the
Representatives or the Partnership is hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Partnership agrees that (x) it has treated and will treat, as the case may
be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it
has complied and will comply, as the case may be, with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including in respect of timely filing
with the Commission, legending and record keeping.
(k) The Partnership Parties agree to apply the net proceeds from the sale of the Units
being sold by the Partnership as set forth in the Prospectus.
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 the Partnership Parties
contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to
Section 3 hereof, to the accuracy of the statements of the General Partner or the
Partnership made in any certificates pursuant to the provisions hereof, to the performance by the
Partnership Parties of their obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and
within the time period required by Rule 424(b); any material required to be filed by the
Partnership pursuant to Rule 433(d) under the Act shall have been filed with the Commission
within the applicable time periods prescribed for such filings by Rule 433; and no stop
order suspending the effectiveness of the Registration Statement or any notice objecting to
its use shall have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Partnership shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
& Finger P.A. and ▇▇▇▇▇ and ▇▇▇▇▇ LLP, special counsel for the Partnership, and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, general counsel to the General Partner, to have furnished to the Representatives
their respective legal opinions, dated the Closing Date and addressed to the
Representatives, in form and substance reasonably satisfactory to the Representatives,
substantially in the form set forth on Exhibits ▇-▇, ▇-▇, ▇-▇ and B-4 hereto.
(c) In rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the State of New York or the State of
Texas, the Delaware Limited Liability Company Act or the Delaware Revised Uniform Limited
Partnership Act or the federal laws of the United States, to the extent they deem proper and
specified in such opinion, upon the opinion of other counsel of good standing whom they
believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as
to matters of fact, to the extent they deem proper, on
21
certificates of responsible officers of the General Partner and public officials.
References to the Prospectus in this paragraph (b) shall also include any supplements
thereto at the Closing Date.
(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 Units, the Registration
Statement, the Disclosure Package, the 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 officers of the General Partner, signed by the Chairman of the Board or the President
and the principal financial or accounting officer of the General Partner, dated the Closing
Date, to the effect that the signers of such certificate have carefully examined the
Registration Statement, the Disclosure Package, the Prospectus and any amendment or
supplement thereto, as well as each electronic road show used in connection with the
offering of the Units, and this Agreement and that:
(i) the representations and warranties of the Partnership Parties in
this Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date and the Partnership Parties have
complied with all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement or any notice objecting to its use has been issued and no
proceedings for that purpose have been instituted or, to the Partnership’s
knowledge, threatened; and
(iii) since the date of the most recent financial statements included
in the Disclosure Package and the Prospectus (exclusive of any supplement
thereto), there has been no Material Adverse Effect, except as set forth in
or contemplated in the Disclosure Package and the Prospectus (exclusive of
any supplement thereto).
(f) The Representatives shall have received from PricewaterhouseCoopers LLP customary
comfort letters dated respectively as of the Execution Time and as of the Closing Date, and
addressed to the Underwriters (with executed copies for each of the Underwriters) in the
forms satisfactory to the Representatives, which letters shall cover, without limitation,
the various financial disclosures contained in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and each Permitted Free Writing Prospectus.
22
References to the Prospectus in this paragraph (e) 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
Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to in paragraph (e) of
this Section 6 or (ii) any change, or any development involving a prospective
change, in or affecting the condition (financial or otherwise), 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 Disclosure Package and the 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 Units as contemplated by the Registration
Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus
(exclusive of any amendment or supplement thereto).
(h) Prior to the Closing Date, the Partnership shall have furnished to the
Representatives such further information, certificates and documents as the Representatives
may reasonably request.
(i) Subsequent to the Execution Time, there shall not have been any decrease in the
rating of any of the Partnership’s debt securities by any “nationally recognized statistical
rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice
given of any intended or potential decrease in any such rating or of a possible change in
any such rating that does not indicate the direction of the possible change.
(j) The Units shall have been approved for listing and admitted and authorized for
trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have
been provided to the Representatives.
(k) At the Execution Time, the parties set forth on Schedule IV hereto shall
have furnished to the Representatives a letter substantially in the form of Exhibit A
hereto.
(l) On the Closing Date, the Partnership shall have furnished to the Representatives
evidence satisfactory to the Representatives that the payment of at least $[•] million of
the principal amount outstanding under the Existing Credit Facility has occurred or will
occur as of the Closing Date.
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
23
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
office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, on the Closing Date.
7. Reimbursement of Underwriters’ Expenses. If the sale of the 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(i) hereof or because of any refusal, inability or failure on the part of the Partnership
Parties to perform any agreement herein or comply with any provision hereof other than by reason of
a default by any of the Underwriters, the Partnership will reimburse the Underwriters severally
through Citigroup Global Markets Inc. on demand for all reasonable 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 Units.
8. Indemnification and Contribution. (a) The Partnership Parties, jointly and
severally, agree to indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter, its affiliates (as such term is defined in Rule 501(b)
under the Act (each, an “Affiliate”)), its selling agent and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act (i) 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 (A) in the registration statement for the registration of the Units as
originally filed or in any amendment thereof, or in any Preliminary Prospectus, the Disclosure
Package, the Prospectus or any Issuer Free Writing Prospectus, or in any amendment thereof or
supplement thereto, or (B) in any materials or information that does not constitute an Issuer Free
Writing Prospectus and that is provided to investors by, or with the approval of, the Partnership
in connection with the marketing of the offering of the Units including any roadshow or investor
presentations made to investors by the Partnership (whether in person or electronically), 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 agrees 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, (ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any
litigation, investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim by a governmental agency or body, in each case, based upon any such
untrue statement or omission, or any such alleged untrue statement or omission; provided that
(subject to Section 8(d) below) any such settlement is effected with the prior written
consent of the Partnership Parties, and (iii) against any and all expense whatsoever, as incurred
(including the reasonable fees and disbursements of counsel chosen by such Underwriter, subject to
the limitations set forth in Section 8(c)), reasonably incurred in investigating, preparing
or defending against any litigation, investigation or proceeding by any governmental agency or
body,
24
commenced or threatened, or any claim by a governmental agency or body, in each case, based
upon any such untrue statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above; provided, however, that the
Partnership Parties will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in conformity with
written information furnished to the Partnership Parties 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 Partnership Parties may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless
the Partnership Parties, each of the General Partner’s directors and officers who signs the
Registration Statement, and each person who controls the General Partner within the meaning
of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Partnership Parties to each Underwriter, but only with reference to written information
furnished to the Partnership Parties 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 Partnership Parties acknowledge that the statements set
forth (i) in the last paragraph of the cover page regarding delivery of the Units and, under
the heading “Underwriting”, (ii) the list of Underwriters and their respective participation
in the sale of the Units, (iii) the sentences related to concessions and reallowances and
(iv) the paragraph related to stabilization, syndicate covering transactions and penalty
bids and the information regarding the limitations on sales to discretionary accounts in the
Preliminary Prospectus, the Disclosure Package, any Issuer Free Writing Prospectus and the
Prospectus constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in the Preliminary Prospectus, the Disclosure Package,
the Prospectus or any Issuer Free Writing 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 paragraph (a) or (b)
above unless and to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and defenses and
(ii) will not, in any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel 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
25
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 includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and does not include a
statement as to an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) If at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as permitted by and
pursuant to the terms of this Agreement (each a “Request”), such indemnifying party agrees
that it shall be liable for any settlement of the nature contemplated by Section
8(a)(ii) effected without its written consent if (i) such settlement is entered into
more than 45 days after receipt by such indemnifying party of the Request, (ii) such
indemnifying party shall have received written notice of the terms of such settlement not
less than 30 days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such Request prior
to the date of such settlement.
(e) In the event that the indemnity provided in paragraph (a), (b) or (c) of this
Section 8 is unavailable to or insufficient to hold harmless an indemnified party
for any reason, the Partnership Parties, jointly and severally, 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 the same) (collectively “Losses”) to which the Partnership Parties and one or more
of the Underwriters may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Partnership Parties on the one hand and by the
Underwriters on the other from the offering of the 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 Units) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Units purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding sentence is unavailable
for any reason, the Partnership Parties, jointly and severally, and the Underwriters
severally shall contribute in such proportion as is appropriate to reflect not
26
only such relative benefits but also the relative fault of the Partnership Parties 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 Partnership Parties shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received by the
Partnership, and benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set forth on the cover page of
the 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
Parties 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 Partnership Parties 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 any of the Partnership Parties within the
meaning of either the Act or the Exchange Act, each officer of any of the Partnership
Parties who shall have signed the Registration Statement and each director of any of the
Partnership Parties shall have the same rights to contribution as the Partnership Parties,
subject in each case to the applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall fail to purchase
and pay for any of the 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 Units set forth opposite their
names in Schedule I hereto bears to the aggregate amount of Units set forth opposite the
names of all the remaining Underwriters) the Units which the defaulting Underwriter or Underwriters
agreed but failed to purchase; provided, however, that in the event that the aggregate amount of
Units which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed
10% of the aggregate amount of Units set forth in Schedule I hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the Units, and if such nondefaulting Underwriters do not purchase all the Units,
this Agreement will terminate without liability to any nondefaulting Underwriter or the Partnership
Parties. 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 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
27
Partnership Parties 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 prior to delivery of and
payment for the Units, if at any time prior to such delivery and payment (i) trading in the
Partnership’s Common 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 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 Units as contemplated by the Preliminary Prospectus,
the Disclosure Package or the Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Partnership Parties or their
officers and of the 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 Partnership Parties 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 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 (i)
Citigroup Global Markets Inc. General Counsel (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the
General Counsel, Citigroup Global Markets Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇,
Attention: General Counsel; and (ii) ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Syndicate Department and confirmed to ECM Legal; or, if sent
to the Partnership Parties, will be mailed, delivered or telefaxed to American Midstream Partners,
LP, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: General Counsel (fax no. (▇▇▇)
▇▇▇-▇▇▇▇).
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. No fiduciary duty. Each of the Partnership Parties hereby acknowledges that (a)
the purchase and sale of the Units pursuant to this Agreement is an arm’s-length commercial
transaction between the Partnership, on the one hand, and the Underwriters and any affiliate
through which it may be acting, on the other, (b) the Underwriters are acting as principal and not
as an agent or fiduciary of the Partnership Parties and (c) the Partnership’s engagement of the
Underwriters in connection with the offering and the process leading up to the offering is
28
as independent contractors and not in any other capacity. Furthermore, the Partnership agrees
that it is solely responsible for making its own judgments in connection with the offering
(irrespective of whether any of the Underwriters has advised or is currently advising the
Partnership on related or other matters). Each of the Partnership Parties agrees that it will not
claim that the Underwriters have rendered advisory services of any nature or respect, or that any
of the Underwriters owe an agency, fiduciary or similar duty to the Partnership Parties, in
connection with such transaction or the process leading thereto.
15. Research Analyst Independence. Each of the Partnership Parties acknowledges that
the Underwriters’ research analysts and research departments are required to be independent from
their respective investment banking divisions and are subject to certain regulations and internal
policies, and that such Underwriters’ research analysts may hold views and make statements or
investment recommendations and/or publish research reports with respect to the Partnership and/or
the offering of the Units that differ from the views of their respective investment banking
divisions. Each of the Partnership Parties hereby waives and releases, to the fullest extent
permitted by law, any claims that the Partnership Parties may have against the Underwriters with
respect to any conflict of interest that may arise from the fact that the views expressed by their
independent research analysts and research departments may be different from or inconsistent with
the views or advice communicated to the Partnership Parties by such Underwriters’ investment
banking divisions. Each of the Partnership Parties acknowledges that each of the Underwriters is a
full service securities firm and as such from time to time, subject to applicable securities laws,
may effect transactions for its own account or the account of its customers and hold long or short
positions in debt or equity securities of the companies that may be the subject of the transactions
contemplated by this Agreement.
16. Integration. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Partnership Parties and the Underwriters, or any of them,
with respect to the subject matter hereof.
17. 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.
18. Waiver of Jury Trial. Each of the Partnership Parties hereby irrevocably waives,
to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
19. Counterparts. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
agreement.
20. Headings. The section headings used herein are for convenience only and shall not
affect the construction hereof.
21. Definitions. The terms that follow, when used in this Agreement, shall have the
meanings indicated.
29
“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder.
“Bamagas Agreements” shall mean the (i) Natural Gas Pipeline Construction and Transportation
Agreement, dated effective as of June 28, 2000, by and between Bamagas Company and Calpine Energy
Services, L.P., as amended, and (ii) Natural Gas Pipeline Construction and Transportation
Agreement, dated effective as of June 28, 2000, by and between Bamagas Company and Calpine Energy
Services, L.P., as amended.
“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.
“Disclosure Package” shall mean (i) the Preliminary Prospectus that is generally distributed
to investors and used to offer the Units, (ii) the Issuer Free Writing Prospectuses, if any,
identified in Schedule II hereto and (iii) any other Free Writing Prospectus that the
parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure
Package.
“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 or
becomes 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.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in
Rule 433.
“Preliminary Prospectus” shall mean any preliminary prospectus referred to in paragraph 1(a)
above and any preliminary prospectus included in the Registration Statement at the Effective Date
that omits Rule 430A Information.
“Prospectus” shall mean the prospectus relating to the Units that is first filed pursuant to
Rule 424(b) after the Execution Time.
“Registration Statement” shall mean the registration statement referred to in paragraph 1(a)
above, including exhibits and financial statements and any prospectus supplement relating to the
Units that is filed with the Commission pursuant to Rule 424(b) and deemed part of such
registration statement pursuant to Rule 430A, as amended at the Execution Time and, in the event
any post-effective amendment thereto or any Rule 462(b) Registration Statement
30
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.
“Rule 158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”, “Rule
430A” and “Rule 433” refer to such rules under the Act.
“Rule 430A Information” shall mean information with respect to the 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
31
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 Partnership Parties and the several Underwriters.
| Very truly yours, AMERICAN MIDSTREAM PARTNERS, LP |
||||
| By: | American Midstream GP, LLC, its general partner |
|||
| By: | ||||
| Name: | ||||
| Title: | ||||
AMERICAN MIDSTREAM GP, LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
AMERICAN MIDSTREAM, LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
32
| The foregoing Agreement is hereby confirmed and accepted as of the date first above written. Citigroup Global Markets Inc. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated |
||||
| By: | CITIGROUP GLOBAL MARKETS INC. | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| For themselves and the other several Underwriters named in Schedule I to the foregoing Agreement. |
||||
33
SCHEDULE I
| Number of Firm | ||||
| Units to be | ||||
| Underwriters | Purchased | |||
Citigroup Global Markets Inc. |
||||
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated |
||||
Barclays Capital Inc. |
||||
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. |
||||
▇▇▇▇▇ Fargo Securities, LLC |
||||
Total |
||||
SCHEDULE II
Schedule of Free Writing Prospectuses included in the Disclosure Package
[TO COME]
SCHEDULE III-A
Schedule of Delaware LLC Subsidiaries of the Operating Company
| • | American Midstream (Bamagas Intrastate), LLC, a Delaware limited liability company | ||
| • | American Midstream (Mississippi), LLC, a Delaware limited liability company | ||
| • | American Midstream (SIGCO Intrastate), LLC, a Delaware limited liability company | ||
| • | American Midstream (Louisiana Intrastate), LLC, a Delaware limited liability company | ||
| • | American Midstream Onshore Pipelines, LLC, a Delaware limited liability company | ||
| • | American Midstream (Midla), LLC, a Delaware limited liability company | ||
| • | American Midstream Marketing, LLC, a Delaware limited liability company | ||
| • | Mid Louisiana Gas Transmission, LLC, a Delaware limited liability company |
SCHEDULE III-B
Schedule of Alabama LLC Subsidiaries of the Operating Company
| • | American Midstream (AlaTenn), LLC, an Alabama limited liability company | ||
| • | American Midstream (Alabama Gathering), LLC, an Alabama limited liability company | ||
| • | American Midstream (Alabama Intrastate), LLC, an Alabama limited liability company | ||
| • | American Midstream (Tennessee River), LLC, an Alabama limited liability company |
SCHEDULE III-C
Schedule of LP Subsidiaries of the Operating Company
| • | American Midstream Offshore (Seacrest), LP, a Texas limited partnership |
SCHEDULE IV
Parties to Deliver Lock-up Letters
AIM Midstream Holdings, LLC
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SCHEDULE V
Significant Subsidiaries
Exhibit A
[Letterhead of officer, director or major shareholder of
American Midstream GP, LLC]
American Midstream GP, LLC]
American Midstream Partners, LP
Public Offering of Common Units
Public Offering of Common Units
[•] , 2011
Citigroup Global Markets Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
As Representatives of the several Underwriters,
c/o Citigroup Global Markets Inc.
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▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
As Representatives of the several Underwriters,
c/o Citigroup Global Markets Inc.
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Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed Underwriting Agreement
(the “Underwriting Agreement”) among American Midstream Partners, LP, a Delaware limited
partnership (the “Partnership”), American Midstream GP, LLC, a Delaware limited liability company,
and American Midstream, LLC, a Delaware limited liability company, and each of you as
representatives (the “Representatives”) of a group of Underwriters named therein, relating to an
underwritten public offering (the “Offering”) of common units representing limited partner
interests in the Partnership (the “Common Units”).
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 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
Common Units of the Partnership or any securities convertible into, or exercisable or exchangeable
for such Common Units, or publicly announce an intention to effect any such transaction, for a
period of 180 days (the “Lock-Up Period”) after the date of the Underwriting Agreement, other than
Common Units transferred (i) to an affiliate or (ii) as bona fide gifts; provided that in the case
of any such transfer (A) each transferee or donee shall sign and deliver to the Representatives a
lock-up letter substantially in the form of this letter and (B) no filing under Section 16(a) of
the Exchange Act, reporting a reduction in beneficial ownership of
Common Units, shall be required or voluntarily made during the restricted period referred to
above.
If (i) the Partnership issues an earnings release or announces material news, or a material
event relating to the Partnership occurs, during the last 17 days of the Lock-Up Period, or (ii)
prior to the expiration of the Lock-Up Period, the Partnership announces that it will release
earnings results during the 16-day period beginning on the last day of the Lock-Up Period, the
restrictions imposed by this agreement shall continue to apply until the expiration of the 18-day
period beginning on the issuance of the earnings release or the announcement of the material news
or occurrence of the material event, unless the Representatives waive, in writing, such extension.
The undersigned hereby acknowledges that the Partnership has agreed in the Underwriting Agreement
to provide written notice of any event that would result in an extension of the Lock-Up Period and
agrees that any such notice properly delivered will be deemed to have given to, and received by,
the undersigned.
If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as
defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated.
| Yours very truly, [Signature of officer, director or major stockholder] [Name and address of officer, director or major stockholder] |
||||
Exhibit B-1
Form of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP Opinion
[To come]
Exhibit B-2
Form of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A. Opinion
[To come]
Exhibit B-3
Form of ▇▇▇▇▇ and ▇▇▇▇▇ Opinion
[To come]
Exhibit B-4
Form of General Counsel Opinion
[To come]