Boardwalk Pipeline Partners, LP 7,500,000 Common Units Representing Limited Partner Interests UNDERWRITING AGREEMENT
Exhibit
1.1 Execution
Copy
7,500,000
Common Units
Representing
Limited Partner Interests
November
1, 2007
Citigroup
Global Markets Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
Brothers Inc.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
Boardwalk
Pipeline Partners, LP, a Delaware limited partnership (the
“Partnership”), proposes to sell 7,500,000 common units (the
“Units”) representing limited partner interests
in the
Partnership (the “Common Units”). This agreement
(this “Agreement”) is to confirm the agreement concerning the
purchase of the Units from the Partnership by Citigroup Global Markets Inc.,
▇▇▇▇▇▇ Brothers Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated (the
“Underwriters”). It is understood and agreed that
this Agreement amends, restates and replaces in its entirety the Underwriting
Agreement, dated November 1, 2007, among the parties hereto for the purchase
of
6,000,000 Common Units.
Boardwalk
GP, LP, a Delaware limited partnership (the “General Partner”),
serves as the sole general partner of the Partnership. Boardwalk GP,
LLC, a Delaware limited liability company (“BGL”), serves as
the sole general partner of the General Partner. Each of Boardwalk
Operating GP, LLC, a Delaware limited liability company (“Operating
GP”), Boardwalk Pipelines, LP, a Delaware limited partnership (the
“Operating Partnership”), Texas Gas Transmission, LLC, a
Delaware limited liability company (“Texas Gas”), GS Pipeline
Company, LLC, a Delaware limited liability company (“Gulf South
GP”), Gulf South Pipeline Company, LP, a Delaware limited partnership
(“Gulf South”), and Gulf Crossing Pipeline Company, LLC, a
Delaware limited liability company
(“GulfCrossing”), is sometimes referred to
herein as a “Subsidiary,” and they are sometimes collectively
referred to herein as the “Subsidiaries.” Each of
BGL, the General Partner and the Partnership is sometimes referred to herein
as
a “Partnership Party,” and they are sometimes collectively
referred to herein as the “Partnership
Parties.” Each of the Partnership Parties and each of the
Subsidiaries is sometimes referred to herein as a “Partnership
Entity,” and they are sometimes collectively referred to herein as the
“Partnership Entities.”
1. Representations,
Warranties and Agreements of the Partnership Parties
. Each
Partnership Party jointly and severally represents, warrants and agrees
that:
(a) A
registration statement on Form S-3 relating to the Units (File No. 333-141058)
(i) has been prepared by the Partnership in conformity with the
requirements of the Securities Act of 1933, as amended (the “Securities
Act”) and the rules and regulations (the “Rules and
Regulations”) of the Securities and Exchange Commission (the
“Commission”) thereunder; (ii) has been filed with the
Commission under the Securities Act; and (iii) is effective under the
Securities Act. Copies of such registration statement and any
amendment thereto (including all documents incorporated by reference in each
prospectus contained therein) have been delivered by the Partnership to the
Underwriters. As used in this Agreement,
(i) “Applicable
Time” means 8:30 a.m. (New York City time) on November 2,
2007;
(ii) “Base
Prospectus” means the base prospectus filed as part of the Registration
Statement, in the form in which it has most recently been amended on or prior
to
the date hereof, relating to the Units;
(iii) “Effective
Date” means any date as of which any part of such registration
statement relating to the Units became, or is deemed to have become, effective
under the Securities Act in accordance with the Rules and
Regulations;
(iv) “Issuer
Free Writing Prospectus” means each “free writing prospectus” (as
defined in Rule 405 of the Rules and Regulations) prepared by or on behalf
of
the Partnership or used or referred to by the Partnership in connection with
the
offering of the Units;
(v) “Pricing
Disclosure Package” means, as of the Applicable Time, the Base
Prospectus, together with the information included in Schedule 4 hereto and
each
Issuer Free Writing Prospectus identified on Schedule 5 hereto, other than
a
road show that is an Issuer Free Writing Prospectus but is not required to
be
filed under Rule 433 of the Rules and Regulations;
(vi) “Prospectus”
means the final prospectus relating to the Units, including the Base Prospectus
and any prospectus supplement thereto relating to the Units, as filed with
the
Commission pursuant to Rule 424(b) of the Rules and Regulations;
and
(vii) “Registration
Statement” means, collectively, the various parts of such registration
statement, including all exhibits thereto, each as amended as of the Effective
Date for such part, including the Prospectus and all exhibits to such
registration statement.
Any
reference to the Registration Statement, Base Prospectus, the Pricing Disclosure
Package or the Prospectus shall be deemed to refer to and include any documents
incorporated by reference therein pursuant to Form S-3 under the Securities
Act. Any reference to any amendment or supplement to the Pricing
Disclosure Package or the Prospectus shall be deemed to refer to and include
any
document filed under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), after the date of the Pricing Disclosure
Package or the Prospectus, as the case may be, and incorporated by reference
in
the Pricing Disclosure Package or the Prospectus, as the case may be; and
any
reference to any amendment to the Registration Statement shall be deemed
to
include any periodic or current report of the Partnership filed with the
Commission pursuant to Section 13(a) or 15(d) of the Exchange Act after the
Effective Date and that is incorporated by reference in the Registration
Statement. The Commission has not issued any order preventing or
suspending the use of the Pricing Disclosure Package or the Prospectus or
suspending the effectiveness of the Registration Statement, and no proceeding
for such purpose has been instituted or threatened by the
Commission, The Commission has not notified the Partnership of any
objection to the use of the form of the Registration Statement.
(b) The
Partnership was, (i) at the time of filing of the Registration Statement
and
(ii) at the time of the most recent amendment thereto (whether by post-effective
amendment, incorporated report filed pursuant to Section 13 or 15(d) of the
Exchange Act, or form of prospectus) for purposes of complying with Section
10(a)(3) of the Securities Act (or, if any such amendment was not made within
the time period required by Section 10(a)(3) of the Securities Act, at the
date
on which such amendment was required), a “well-known seasoned issuer” (as
defined in Rule 405 of the Rules and Regulations). The Partnership
was not, at the earliest time after the filing of the Registration Statement
at
which the Partnership or another offering participant made a bona fide offer
(including without limitation through the use of a free writing prospectus)
relating to the Units, an “ineligible issuer” (as defined in Rule 405 of the
Rules and Regulations). The Registration Statement is an “automatic
shelf registration statement” (as defined in Rule 405 of the Rules and
Regulations) and was filed not earlier than the date that is three years
prior
to the Delivery Date (as defined in Section 4).
(c) The
Registration Statement conformed and will conform in all material respects
on
the Effective Date and on the Delivery Date, and any amendment to the
Registration Statement filed after the date hereof will conform in all material
respects when filed, to the requirements of the Securities Act and the Rules
and
Regulations. The Prospectus will conform in all material respects,
when filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations and on the Delivery Date, to the requirements of the Securities
Act
and the Rules and Regulations. The documents incorporated by
reference into the Pricing Disclosure Package or the Prospectus conformed
or
will conform, at the time they were or are filed with the Commission, in
all
material respects to the requirements of the Exchange Act or the Securities
Act,
as applicable, and the rules and regulations of the Commission
thereunder.
(d) The
Registration Statement did not, as of the Effective Date, contain an untrue
statement of a material fact or omit to state a material fact required to
be
stated therein or necessary to make the statements therein not misleading;
provided that no representation or warranty is made as to information
contained in or omitted from the Registration Statement in reliance upon
and in
conformity with written information furnished to the Partnership by or on
behalf
of any Underwriter specifically for inclusion therein, which information
is
specified in Section 8(e) hereof.
(e) The
Prospectus and any amendment or supplement thereto did not, as of its date,
and
will not, as of the Delivery Date, contain an untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided that no representation or warranty is made as to information
contained in or omitted from the Prospectus in reliance upon and in conformity
with written information furnished to the Partnership by or on behalf of
any
Underwriter specifically for inclusion therein, which information is specified
in Section 8(e) hereof.
(f) The
documents incorporated by reference into the Registration Statement, the
Pricing
Disclosure Package and the Prospectus did not, and any further documents
filed
and incorporated by reference will not, at the time they were or are filed
with
the Commission, contain an untrue statement of a material fact or omit to
state
a material fact necessary to make the statements therein (and in the case
of
documents incorporated by reference into the Pricing Disclosure Package or
the
Prospectus, in the light of the circumstances under which they were made)
not
misleading.
(g) The
Pricing Disclosure Package did not, as of the Applicable Time, contain an
untrue
statement of a material fact or omit to state a material fact necessary to
make
the statements therein, in the light of the circumstances under which they
were
made, not misleading; provided that no representation or warranty is
made as to information contained in or omitted from the Pricing Disclosure
Package in reliance upon and in conformity with written information furnished
to
the Partnership by or on behalf of any Underwriter specifically for inclusion
therein, which information is specified in Section 8(e)
hereof.
(h) Each
Issuer Free Writing Prospectus (including, without limitation, any road show
that is a free writing prospectus under Rule 433 of the Rules and Regulations),
when considered together with the Pricing Disclosure Package as of the
Applicable Time, did not contain an untrue statement of a material fact or
omit
to state a material fact necessary to make the statements therein, in the
light
of the circumstances under which they were made, not misleading.
(i) Each
Issuer Free Writing Prospectus conformed or will conform in all material
respects to the requirements of the Securities Act and the Rules and Regulations
on the date of first use, and the Partnership has complied with all prospectus
delivery and any filing requirements applicable to such Issuer Free Writing
Prospectus pursuant to the Rules and Regulations. The Partnership has
not made any offer relating to the Units that would constitute an Issuer
Free
Writing Prospectus without the prior written consent of the
Underwriters. The Partnership has retained in accordance with the
Rules and Regulations all Issuer Free Writing Prospectuses that were not
required to be filed pursuant to the Rules and Regulations.
(j) Each
of
the General Partner, the Partnership, the Operating Partnership and Gulf
South
has been duly formed and is validly existing and in good standing as a limited
partnership under the Delaware Revised Uniform Limited Partnership Act (the
“Delaware LP Act”), has the full partnership power and
authority necessary to own or hold its properties and assets and to conduct
the
businesses in which it is engaged, and is, or at the Delivery Date will be,
duly
registered or qualified to do business and in good standing as a foreign
limited
partnership in each jurisdiction listed opposite its name in
Schedule 2 attached hereto, such jurisdictions being the only
jurisdictions in which its ownership or lease of property or the conduct
of its
business requires such qualification, except where the failure to so register
or
qualify could not reasonably be expected to (i) have a material adverse
effect on the condition (financial or other), results of operations,
securityholders’ equity, properties, business or prospects of the Partnership
Entities (other than the General Partner and BGL), taken as a whole (a
“Material Adverse Effect”) or (ii) subject the limited
partners of the Partnership to any material liability or
disability.
(k) Each
of
BGL, Operating GP, Texas Gas, Gulf South GP and Gulf Crossing has been duly
formed and is validly existing and in good standing as a limited liability
company under the Delaware Limited Liability Company Act (the “Delaware
LLC Act”), has the full limited liability company power and authority
necessary to own or hold its properties and assets and to conduct the businesses
in which it is engaged, and is, or at the Delivery Date will be, duly registered
or qualified to do business and in good standing as a foreign limited liability
company in each jurisdiction listed opposite its name in Schedule 2
attached hereto, such jurisdictions being the only jurisdictions in which
its
ownership or lease of property or the conduct of its business requires such
qualification, except where the failure to so register or qualify could not
reasonably be expected to (i) have a Material Adverse Effect or
(ii) subject the limited partners of the Partnership to any material
liability or disability.
(l) (l) Relying
solely on documents filed by Loews Corporation, a Delaware corporation
(“Loews”), under Section 13(d) of the Exchange Act, Loews
indirectly owns a 100% limited liability company interest in BGL; such limited
liability company interest has been duly and validly authorized and issued
in
accordance with the limited liability company agreement of BGL (as the same
may
be amended and restated on or prior to the Delivery Date, the “BGL LLC
Agreement”) and is fully paid (to the extent required under the BGL LLC
Agreement) and non-assessable (except as such non-assessability may be affected
by Sections 18-607 and 18-804 of the Delaware LLC Act).
(m) BGL
is
the sole general partner of the General Partner, with a 0.001% general partner
interest in the General Partner; such general partner interest has been duly
and
validly authorized and issued in accordance with the agreement of limited
partnership of the General Partner (as the same may be amended and restated
on
or prior to the Delivery Date, the “GP Partnership Agreement”);
and BGL owns such general partner interest free and clear of all liens,
encumbrances, security interests, equities, charges or claims (collectively,
“Liens”).
(n) The
General Partner is the sole general partner of the Partnership, with a 2.0%
general partner interest in the Partnership; such general partner interest
has
been duly and validly authorized and issued in accordance with the Second
Amended and Restated Agreement of Limited Partnership of the Partnership
(as the
same may be amended and restated on or prior to the Delivery Date, the
“Partnership Agreement”); and the General Partner owns such
general partner interest free and clear of all Liens. The General
Partner owns all of the Incentive Distribution Rights (as defined in the
Partnership Agreement); all of such Incentive Distribution Rights have been
duly
and validly authorized and issued in accordance with the Partnership Agreement
and are fully paid (to the extent required under the Partnership Agreement)
and
non-assessable (except as such non-assessability may be affected by matters
described in the Base Prospectus under the caption “The Partnership
Agreement—Limited Liability”); the General Partner owns all of such Incentive
Distribution Rights free and clear of all Liens; and such Incentive Distribution
Rights conform to the descriptions thereof contained in the Pricing Disclosure
Package.
(o) (o) Relying
solely on documents filed by Loews under Section 13(d) of the Exchange Act,
Loews indirectly owns all of the outstanding subordinated units
(“Subordinated Units”) and 53,256,122 Common Units (such
Subordinated Units and Common Units, the “Sponsor Units”); all
of such Sponsor Units have been duly and validly authorized and issued in
accordance with the Partnership Agreement and are fully paid (to the extent
required under the Partnership Agreement) and non-assessable (except as such
non-assessability may be affected by matters described in the Base Prospectus
under the caption “The Partnership Agreement—Limited Liability”); and such
Sponsor Units conform to the descriptions thereof contained in each of the
Pricing Disclosure Package and the Prospectus.
(p) The
Units
to be issued and sold by the Partnership to the Underwriters hereunder have
been
duly authorized in accordance with the Partnership Agreement and, when issued
and delivered against payment therefor pursuant to this Agreement, will be
validly issued in accordance with the Partnership Agreement, fully paid (to
the
extent required under the Partnership Agreement) and non-assessable (except
as
such non-assessability may be affected by matters described in the Base
Prospectus under the caption “The Partnership Agreement—Limited Liability”); the
Units, when issued and delivered against payment therefor pursuant to this
Agreement, will conform to the descriptions thereof contained in Pricing
Disclosure Package.
(q) The
Partnership owns a 100% limited liability company interest in Operating GP;
such
limited liability company interest has been duly and validly authorized and
issued in accordance with the limited liability company agreement of Operating
GP (as the same may be amended and restated on or prior to the Delivery Date,
the “Operating GP LLC Agreement”) and is fully paid (to the
extent required under the Operating GP LLC Agreement) and non-assessable
(except
as such non-assessability may be affected by Sections 18-607 and 18-804 of
the
Delaware LLC Act); and the Partnership owns such limited liability company
interest free and clear of all Liens (except for such Liens as are not
individually or in the aggregate, material to such ownership or as described
in
the Pricing Disclosure Package).
(r) Operating
GP is the sole general partner of the Operating Partnership, with a 0.001%
general partner interest in the Operating Partnership; such general partner
interest has been duly and validly authorized and issued in accordance with
the
agreement of limited partnership of the Operating Partnership (as the same
may
be amended and restated on or prior to the Delivery Date, the “Operating
Partnership Agreement”); and Operating GP owns such general partner
interest free and clear of all Liens. The Partnership is the sole
limited partner of the Operating Partnership, with a 99.999% limited partner
interest in the Operating Partnership; such limited partner interest has
been
duly and validly authorized and issued in accordance with the Operating
Partnership Agreement and is fully paid (to the extent required under the
Operating Partnership Agreement) and non-assessable (except as such
non-assessability may be affected by Sections 17-607 and 17-804 of the Delaware
LP Act); and the Partnership owns such limited partner interest free and
clear
of all Liens (except for such Liens as are not individually or in the aggregate,
material to such ownership or as described in the Pricing Disclosure
Package).
(s) The
Operating Partnership owns a 100% limited liability company interest in Texas
Gas; such limited liability company interest has been duly and validly
authorized and issued in accordance with the limited liability company agreement
of Texas Gas (as the same may be amended and restated on or prior to the
Delivery Date, the “Texas Gas LLC Agreement”) and is fully paid
(to the extent required under the Texas Gas LLC Agreement) and non-assessable
(except as such non-assessability may be affected by Sections 18-607 and
18-804
of the Delaware LLC Act); and the Operating Partnership owns such limited
liability company interest free and clear of all Liens (except for such Liens
as
are not individually or in the aggregate, material to such ownership or as
described in the Pricing Disclosure Package).
(t) The
Operating Partnership owns a 100% limited liability company interest in Gulf
South GP; such limited liability company interest has been duly and validly
authorized and issued in accordance with the limited liability company agreement
of Gulf South GP (as the same may be amended and restated on or prior to
the
Delivery Date, the “Gulf South GP LLC Agreement”) and is fully
paid (to the extent required under the Gulf South GP LLC Agreement) and
non-assessable (except as such non-assessability may be affected by Sections
18-607 and 18-804 of the Delaware LLC Act); and the Operating Partnership
owns
such limited liability company interest free and clear of all Liens (except
for
such Liens as are not individually or in the aggregate, material to such
ownership or as described in the Pricing Disclosure Package).
(u) Gulf
South GP is the sole general partner of Gulf South, with a 1.0% general partner
interest in Gulf South; such general partner interest has been duly and validly
authorized and issued in accordance with the agreement of limited partnership
of
Gulf South (as the same may be amended and restated on or prior to the Delivery
Date, the “Gulf South Partnership Agreement”); and Gulf South
GP owns such general partner interest free and clear of all
Liens. The Operating Partnership is the sole limited partner of Gulf
South, with a 99.0% limited partner interest in Gulf South; such limited
partner
interest has been duly and validly authorized and issued in accordance with
the
Gulf South Partnership Agreement and is fully paid (to the extent required
under
the Gulf South Partnership Agreement) and non-assessable (except as such
non-assessability may be affected by Sections 17-607 and 17-804 of the Delaware
LP Act); and the Operating Partnership owns such limited partner interest
free
and clear of all Liens (except for such Liens as are not individually or
in the
aggregate, material to such ownership or as described in the Pricing Disclosure
Package).
(v) The
Operating Partnership owns a 100% limited liability company interest in Gulf
Crossing; such limited liability company interest has been duly and validly
authorized and issued in accordance with the limited liability company agreement
of Gulf Crossing (as the same may be amended and restated on or prior to
the
Delivery Date, the “Gulf Crossing LLC Agreement”) and is fully
paid (to the extent required under the Gulf Crossing LLC Agreement) and
non-assessable (except as such non-assessability may be affected by Sections
18-607 and 18-804 of the Delaware LLC Act); and the Operating Partnership
owns
such limited liability company interest free and clear of all Liens (except
for
such Liens as are not individually or in the aggregate, material to such
ownership or as described in the Pricing Disclosure Package).
(w) Other
than (i) BGL’s ownership of a 0.001% general partner interest in the
General Partner, (ii) the General Partner’s ownership of a 2% general
partner interest in the Partnership, (iii) the General Partner’s ownership
of all of the Incentive Distribution Rights, (iv) the Partnership’s
ownership of a 100% limited liability company interest in Operating GP,
(v) the Partnership’s ownership of a 99.999% limited partner interest in
the Operating Partnership, (vi) Operating GP’s ownership of a 0.001%
general partner interest in the Operating Partnership, (vii) the Operating
Partnership’s ownership of a 100% limited liability company interest in Texas
Gas, (viii) the Operating Partnership’s ownership of a 100% limited
liability company interest in Gulf South GP, (ix) the Operating
Partnership’s ownership of a 99% limited partner interest in Gulf South,
(x) Gulf South GP’s ownership of a 1% general partner interest in Gulf
South and (xi) the Operating Partneship’s ownership of a 100% limited liability
company interest in Gulf Crossing, no Partnership Entity owns, directly or
indirectly, any equity or short- or long-term debt securities (other than
intercompany advances and notes among the Partnership and the Subsidiaries)
of
any corporation, partnership, limited liability company, joint venture,
association or other entity.
(x) Except
as
described in the Pricing Disclosure Package or provided for in the Partnership
Agreement, there are no preemptive rights or other rights to subscribe for
or to
purchase, nor any restriction upon the voting or transfer of, any limited
partner interests in the Partnership pursuant to any agreement or instrument
to
which any of the Partnership Entities is a party or by which any one of them
may
be bound. Except as described in the Pricing Disclosure Package or as
provided for in the applicable Organizational Documents, there are no
outstanding options or warrants to purchase (A) any Common Units,
Subordinated Units or other interests in the Partnership or (B) any
interests in BGL, the General Partner, or the Subsidiaries.
“Organizational Documents” means, collectively, the GP
Partnership Agreement, the Partnership Agreement, the Operating Partnership
Agreement, the Gulf South Partnership Agreement, the BGL LLC Agreement, the
Operating GP LLC Agreement, the Texas Gas LLC Agreement, the Gulf South GP
LLC
Agreement and the Gulf Crossing LLC Agreement, each as amended or restated
at or
prior to the Delivery Date.
(y) Except
as
described in the Pricing Disclosure Package or provided for in the Partnership
Agreement, there are no contracts, agreements or understandings between any
Partnership Party and any person granting such person the right to require
the
Partnership to file a registration statement under the Securities Act with
respect to any securities of the Partnership owned or to be owned by such
person, or to require any Partnership to include such securities with the
Units
registered pursuant to the Registration Statement or in any securities
registered or to be registered pursuant to any other registration statement
filed by or required to be filed by the Partnership under the Securities
Act.
(z) On
the
Delivery Date, the Partnership will have all requisite power and authority
to
issue, sell and deliver the Units, in accordance with and upon the terms
and
conditions set forth in this Agreement, the Partnership Agreement, the
Registration Statement, the Pricing Disclosure Package and the
Prospectus. On the Delivery Date, all corporate, partnership or
limited liability company action, as the case may be, required to be taken
by
the Partnership Parties or any of their stockholders, members or partners
for
the authorization, issuance, sale and delivery of the Units, the execution
and
delivery by the Partnership Parties of this Agreement and the consummation
of
the transactions contemplated hereby shall have been validly taken.
(aa) This
Agreement has been duly and validly authorized, executed and delivered by
the
Partnership Parties.
(bb) None
of
the offering, issuance and sale by the Partnership of the Units and the
application of the proceeds therefrom as described under the caption “Use of
Proceeds” in each of the Pricing Disclosure Package and the Prospectus, the
execution, delivery and performance of this Agreement by the Partnership
Parties, or the consummation of the transactions contemplated hereby
(i) conflicts or will conflict with, or constitutes or will constitute a
violation of, the certificate or agreement of limited partnership, certificate
of formation, limited liability company agreement or other organizational
documents of any Partnership Party, (ii) conflicts or will conflict with,
or constitutes or will constitute a breach or violation of or a default under
(or an event that, with notice or lapse of time or both, would constitute
such a
breach or violation of or default under), any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which any
of
the Partnership Entities is a party, by which any of them is bound or to
which
any of their respective properties or assets is subject, (iii) violates or
will violate any statute, law, ordinance, regulation, order, judgment, decree
or
injunction of any court or governmental agency or body to which any of the
Partnership Entities or any of their respective properties or assets may
be
subject or (iv) will result in the creation or imposition of any Lien upon
any property or assets of any Partnership Entity which conflicts, breaches,
violations, defaults or Liens, in the case of clauses (ii), (iii) or (iv),
would, individually or in the aggregate, have a Material Adverse
Effect.
(cc) Except
for the registration of the Units under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws in connection
with
the purchase and sale of the Units by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any court or
governmental agency or body to which any of the Partnership Parties or any
of
their respective properties or assets is subject is required for the execution,
delivery and performance of this Agreement by the Partnership Parties, the
consummation of the transactions contemplated hereby and the application
of the
proceeds from the sale of the Units as described under the caption “Use of
Proceeds” in each of the Pricing Disclosure Package and the
Prospectus.
(dd) (i)
The
Partnership Agreement has been duly authorized, executed and delivered by
the
General Partner and is a valid and legally binding agreement of the General
Partner, enforceable against the General Partner in accordance with its terms;
and (ii) each of the Organizational Documents (other than the Partnership
Agreement) has been duly authorized, executed and delivered by the respective
Partnership Entity or Entities thereto and is a valid and legally binding
agreement of such Partnership Entity or Entities, enforceable against such
parties in accordance with the terms of each of such Organizational Documents;
provided that in each case the enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws related to or affecting creditors’ rights generally and by general
principles of equity (regardless of whether such enforceability is considered
in
a proceeding in equity or at law); and provided, further, that the
indemnity, contribution and exoneration provisions contained in any such
agreements may limited by applicable laws and public policy.
(ee) The
historical consolidated financial statements (including the related notes
and
supporting schedules) included in, or incorporated by reference into, the
Registration Statement, the Pricing Disclosure Package and the Prospectus
(and
any amendment or supplement thereto) comply as to form in all material respects
with the requirements of Regulation S-X of the Commission and present fairly
in
all material respects the financial position, results of operations and cash
flows of the entities purported to be shown thereby on the basis stated therein
at the respective dates or for the respective periods to which they apply,
and,
except as otherwise disclosed in the Pricing Disclosure Package and the
Prospectus, have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved. Any
summary historical information set forth in the Registration Statement, the
Pricing Disclosure Package and the Prospectus (and any amendment or supplement
thereto) is accurately presented in all material respects and prepared on
a
basis consistent with the audited and unaudited historical consolidated
financial statements from which it has been derived.
(ff) Deloitte
& Touche LLP, who have certified certain financial statements of the
Partnership, whose reports are incorporated by reference in each of the
Registration Statement and the Prospectus and who have delivered the initial
letter referred to in Section 7(g) hereof, are an independent
registered public accounting firm as required by the Securities Act and the
Rules and Regulations and were such during the periods covered by the financial
statements on which they reported.
(gg) Each
Partnership Entity has good and indefeasible title to all real property and
good
title to all personal property contemplated as owned or to be owned by it
in
each of the Pricing Disclosure Package and the Prospectus, in each case free
and
clear of all Liens, except as described in the Pricing Disclosure Package
or
that would not materially affect the value of such property and would not
materially interfere with the use made and proposed to be made of such property
as described in each of the Pricing Disclosure Package and the
Prospectus. With respect to title to pipeline rights-of-way, none of
the Partnership Entities has received any actual notice or claim from any
owner
of land upon which any pipeline that is owned by any Subsidiary is located
that
such entity does not have sufficient title to enable it to use and occupy
the
pipeline rights-of-way as they have been used and occupied in the past and
are
proposed to be used and occupied in the future as described in each of the
Pricing Disclosure Package and the Prospectus, except where such failure
to have
sufficient title would not reasonably be expected to have, individually or
in
the aggregate, a Material Adverse Effect. All assets held under lease
or license by the Partnership Entities are held under valid, subsisting and
enforceable leases or licenses, with such exceptions as would not reasonably
be
expected to have, individually or in the aggregate, a Material Adverse Effect
or
materially interfere with the use made and proposed to be made of such assets
as
they have been used in the past and are proposed to be used in the future
as
described in each of the Pricing Disclosure Package and the
Prospectus.
(hh) Each
Partnership Entity carries or is covered by insurance from insurers of
recognized financial responsibility in such amounts and covering such risks
as
is reasonably adequate for the conduct of its business and the value of its
properties and as is customary for companies engaged in similar businesses
in
similar industries. All policies of insurance of each Partnership
Entity are in full force and effect, except as would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect; each
Partnership Entity is in compliance with the terms of such policies in all
material respects; and no Partnership Entity has received notice from any
insurer or agent of such insurer that any material capital improvements or
other
expenditures are required or necessary to be made in order to continue such
insurance.
(ii) Except
as
described in the Pricing Disclosure Package, there are no legal or governmental
proceedings pending to which any Partnership Entity is a party or to which
any
property or asset of any Partnership Entity is subject that could reasonably
be
expected to have, individually or in the aggregate, a Material Adverse Effect
or
a material adverse effect on the performance of this Agreement or the
consummation of the transactions contemplated hereby, and to the knowledge
of
the Partnership Parties, no such proceedings are threatened by governmental
authorities or others. There are no legal or governmental proceedings
pending that are required to be described in the Pricing Disclosure Package
and
the Prospectus that are not so described.
(jj) There
are
no contracts or other documents that are required to be described in the
Registration Statement, the Pricing Disclosure Package or the Prospectus
or
filed as exhibits to the Registration Statement or to a document incorporated
by
reference into the Registration Statement, the Pricing Disclosure Package
or the
Prospectus by the Securities Act or the Rules and Regulations that have not
been
so described in the most Registration Statement and the Prospectus or filed
as
exhibits to the Registration Statement or such incorporated
document.
(kk) The
statements set forth in each of the Registration Statement and the Prospectus
under the captions “How We Make Cash Distributions,” “Conflicts of Interest and
Fiduciary Duties,” “Description of the Common Units” and “The Partnership
Agreement,” insofar as they purport to constitute a summary of the terms of the
Common Units and the Subordinated Units, and under the caption “Material Tax
Consequences,” insofar as they purport to describe the provisions of the laws
and documents referred to therein, are accurate summaries in all material
respects.
(ll) Except
as
described in the Pricing Disclosure Package, no labor disturbance by the
employees of any Partnership Entity exists or, to the knowledge of the
Partnership Parties, is imminent or threatened that could reasonably be expected
to have a Material Adverse Effect.
(mm) Since
the
date of the latest audited financial statements included in or incorporated
by
reference into the Pricing Disclosure Package, (i) no Partnership Entity
has sustained any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, any labor dispute
or any court or governmental action, order or decree, and (ii) there has
not been any adverse change in the partners’ capital, members’ equity or short-
or long-term debt of any Partnership Entity or any adverse change, or any
development involving a prospective adverse change, in or affecting the
condition (financial or otherwise), results of operations, securityholders’
equity, properties, management, business or prospects of any Partnership
Entity,
in each case except as could not reasonably be expected to have a Material
Adverse Effect or as set forth or contemplated in the Pricing Disclosure
Package.
(nn) From
the
date as of which information is given in the Pricing Disclosure Package through
the date hereof, and except as may be disclosed in the Pricing Disclosure
Package, none of the Partnership Entities has (i) issued or granted any
securities, (ii) incurred any liability or obligation, direct or
contingent, other than liabilities and obligations that were incurred in
the
ordinary course of business, (iii) entered into any transaction not in the
ordinary course of business or (iv) declared or paid any dividend or
distribution on its capital stock or other equity interests.
(oo) Each
Partnership Entity (i) makes and keeps accurate books and records and
(ii) maintains a system of internal accounting controls sufficient to
provide reasonable assurance that (A) transactions are executed in
accordance with management’s general or specific authorizations,
(B) transactions are recorded as necessary to permit preparation of the
Partnership’s financial statements in conformity with accounting principles
generally accepted in the United States and to maintain accountability for
its
assets, (C) access to the Partnership Entities’ assets is permitted only in
accordance with management’s general or specific authorization and (D) the
recorded accountability for the Partnership Entities’ assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(pp) The
Partnership has established and maintains disclosure controls and procedures
(as
such term is defined in Rule 13a-15 under the Exchange Act), (ii) such
disclosure controls and procedures are designed to ensure that the information
required to be disclosed by the Partnership in the reports it files or submits
under the Exchange Act is accumulated and communicated to management of the
Partnership, including its principal executive officers and principal financial
officers, as appropriate, to allow timely decisions regarding required
disclosure to be made and (iii) such disclosure controls and procedures are
effective in all material respects to perform the functions for which they
were
established.
(qq) Since
the
date of the most recent balance sheet of the Partnership reviewed or audited
by
Deloitte & Touche LLP and the audit committee of the board of directors of
BGL, (i) the Partnership Parties have not been advised of (A) any significant
deficiencies in the design or operation of internal controls that are reasonably
likely to adversely affect the ability of the Partnership Entities to record,
process, summarize and report financial data, or any material weaknesses
in
internal controls (whether or not remediated) and (B) any fraud, whether
or not
material, that involves management or other employees who have a significant
role in the internal controls of the Partnership Entities, and (ii) since
that
date, there have been no changes in internal controls that have materially
affected, or are reasonably likely to materially affect, internal controls,
including any corrective actions with regard to significant deficiencies
and
material weaknesses.
(rr) Each
Partnership Entity subject to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, and each of
its
directors and officers in their capacities as such, is in compliance in all
material respects with such act.
(ss) None
of
the Partnership Entities (i) is in violation of its certificate or
agreement of limited partnership, certificate of formation or limited liability
company agreement, certificate or articles of incorporation, bylaws or other
organizational documents, (ii) is in breach of or default under any term,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan
agreement, lease or other agreement or instrument to which it is a party,
by
which it is bound or to which any of its properties or assets is subject
(and no
event has occurred that, with notice or lapse of time or both, would constitute
such a breach or default), (iii) is in violation of any statute, law,
ordinance, rule, regulation, order, judgment, decree or injunction of any
court
or governmental agency or body to which it or its property or assets may
be
subject or (iv) has failed to obtain any license, permit, certificate,
franchise or other governmental authorization or permit necessary to the
ownership of its property or to the conduct of its business, except, in the
case
of clauses (ii) or (iv), as could not reasonably be expected to have a Material
Adverse Effect.
(tt) Except
as
described in the Pricing Disclosure Package, the Partnership Entities
(i) are in compliance with any and all applicable federal, state and local
laws, regulations, ordinances, rules, orders, judgments, decrees or other
legal
requirements relating to the protection of human health and safety, the
environment or natural resources or imposing liability or standards of conduct
concerning any Hazardous Materials (as defined below) (“Environmental
Laws”), (ii) have received, and as necessary maintained, all
permits required of them under applicable Environmental Laws to conduct their
respective businesses, (iii) are in compliance with all terms and
conditions of any such permits and (iv) do not have any liability in
connection with the release into the environment of any Hazardous Material,
except where such noncompliance with Environmental Laws, failure to receive
and
maintain required permits, failure to comply with the terms and conditions
of
such permits or liability in connection with such releases could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The term “Hazardous Material” means
(1) any “hazardous substance” as defined in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended
(“CERCLA”), (2) any “hazardous waste” as defined in the
Resource Conservation and Recovery Act, as amended, (3) petroleum or any
petroleum product, (4) any polychlorinated biphenyl and (5) any
pollutant, contaminant or hazardous, dangerous or toxic chemical, material,
waste or substance regulated under or within the meaning of any other
Environmental Law. Except as described in the Pricing Disclosure
Package, no Partnership Entity has been named as a “potentially responsible
party” under CERCLA or any other similar Environmental Law, except with respect
to any matters that, individually or in the aggregate, could not reasonably
be
expected to have a Material Adverse Effect. Except as described in
the Pricing Disclosure Package, no Partnership Entity (A) is a party to any
proceeding under Environmental Laws in which a governmental authority is
also a
party, other than proceedings regarding which it is believed that no monetary
penalties in excess of $100,000 will be imposed, (B) has received notice of
any potential liability for the disposal or release of any Hazardous Material,
except where such liability could not reasonably be expected to have a Material
Adverse Effect or (C) anticipates any material capital expenditures
relating to Environmental Laws.
(uu) Each
Partnership Entity is in compliance in all material respects with all presently
applicable provisions of the Employee Retirement Income Security Act of 1974,
as
amended, including the regulations and published interpretations thereunder
(“ERISA”); no “reportable event” (as defined in ERISA) has
occurred with respect to any “pension plan” (as defined in ERISA) for which any
Partnership Entity would have any liability; no Partnership Entity has incurred
or expects to incur liability under (i) Title IV of ERISA with respect
to the termination of, or withdrawal from, any “pension plan” or
(ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the
“Code”); and each “pension plan” that is intended to be
qualified under Section 401(a) of the Code and for which any Partnership
Entity
would have any liability is so qualified and nothing has occurred, whether
by
action or by failure to act, that would cause the loss of such
qualification.
(vv) Each
Partnership Entity has, or at the Delivery Date will have, such permits,
consents, licenses, franchises, certificates and other approvals or
authorizations of governmental or regulatory authorities
(“Permits”) as are necessary to own or lease its properties and
to conduct its business in the manner described in each of the Pricing
Disclosure Package and the Prospectus, except as disclosed in or specifically
contemplated by the Pricing Disclosure Package or except for any failure
to have
any such Permit that could not reasonably be expected to have, individually
or
in the aggregate, a Material Adverse Effect. Except as described in
the Pricing Disclosure Package, each Partnership Entity has fulfilled and
performed all of its material obligations with respect to all such Permits,
and
no event has occurred that would prevent any such Permit from being renewed
or
reissued, that allows, or after notice or lapse of time would allow, revocation
or termination of any such Permit or that would result in any other impairment
of the rights of the holder of any such Permit, except for any such non-renewal,
revocation, termination or impairment that could not reasonably be expected
to
have a Material Adverse Effect.
(ww) The
Partnership is not, and as of the Delivery Date and after giving effect to
the
application of the net proceeds of the offering as described under the caption
“Use of Proceeds” in the Pricing Disclosure Package and the Prospectus, the
Partnership will not be, an “investment company” as defined in the Investment
Company Act of 1940, as amended (the “Investment Company
Act”).
(xx) None
of
the Partnership Entities or, to the knowledge of the Partnership Parties,
any of
their affiliates has distributed, and prior to the later to occur of the
Delivery Date and completion of the distribution of the Units, none of the
Partnership Entities or, to the knowledge of the Partnership Parties, any
of
their affiliates will distribute, any offering material in connection with
the
offering and sale of the Units other than the Pricing Disclosure Package,
the
Prospectus, and any Issuer Free Writing Prospectus to which the Underwriters
have consented pursuant to Section 1(i) or 5(a)(vi)
hereof.
(yy) None
of
the Partnership Entities or, to the knowledge of the Partnership Parties,
any of
their affiliates has taken, nor will any of the Partnership Entities or,
to the
knowledge of the Partnership Parties, any of their affiliates take, directly
or
indirectly, any action that has constituted, that was designed to cause or
result in, or that could reasonably be expected to cause or result in, the
stabilization or manipulation of the price of any security of any Partnership
Party to facilitate the sale or resale of the Units.
(zz) Except
for this Agreement, there are no contracts, agreements or understandings
between
the Partnership and any person that would give rise to a valid claim against
the
Partnership or any Underwriter for a brokerage commission, finder’s fee or other
like payment in connection with the offering and sale of the Units contemplated
by this Agreement.
Any
certificate signed by or on behalf of any Partnership Party and delivered
to the
Underwriters or counsel for the Underwriters in connection with the offering
of
the Units shall be deemed a representation and warranty by each such Partnership
Party, as to matters covered thereby, to each Underwriter.
2. Purchase
of the Units by the Underwriters
. On
the basis of the representations and warranties contained in, and subject
to the
terms and conditions of, this Agreement, the Partnership agrees to sell
7,500,000 Units to the several Underwriters, and each of the Underwriters,
severally and not jointly, agrees to purchase the number of Units set forth
opposite that Underwriter’s name in Schedule 1 attached
hereto. The respective purchase obligations of the Underwriters with
respect to the Units shall be rounded among the Underwriters to avoid fractional
Units, as the Underwriters may determine.
The
price
of the Units purchased by the Underwriters shall be $30.42 per
Unit.
The
Partnership shall not be obligated to deliver any of the Units to be delivered
on the Delivery Date, except upon payment for all such Units as provided
herein.
3. Offering
of Units by the Underwriters
. The
Underwriters propose to offer the Units for sale upon the terms and conditions
to be set forth in the Prospectus.
4. Delivery
of and Payment for the Units
. Delivery
of and payment for the Units shall be made at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇
LLP
at 10:00 A.M., Eastern time, on the fourth full business day following the
date
of this Agreement or at such other date, time or place as shall be determined
by
agreement between the Underwriters and the Partnership. This date and
time are sometimes referred to as the “Delivery
Date.” Delivery of the Units shall be made to the
Underwriters for the account of each Underwriter against payment by the several
Underwriters of the aggregate purchase price of the Units being sold by the
Partnership to or upon the order of the Partnership by wire transfer in
immediately available funds to the accounts specified by the
Partnership. Time shall be of the essence, and delivery of the Units
at the time and place specified pursuant to this Agreement is a further
condition of the obligation of each Underwriter hereunder. The
Partnership shall deliver the Units through the facilities of The Depository
Trust Company, New York, New York (“DTC”) unless the
Underwriters shall otherwise instruct.
5. Further
Agreements of the Partnership Parties and the Underwriters
.
(a) Each
Partnership Party jointly and severally agrees:
(i) To
prepare the Prospectus in a form approved by the Underwriters (such approval
not
to be unreasonably withheld) and to file such Prospectus pursuant to Rule
424(b)
of the Rules and Regulations not later than the Commission’s close of business
on the second business day following the execution and delivery of this
Agreement or, if applicable, such earlier time as may be required by Rule
424(b); to make no further amendment or any supplement to the Registration
Statement or the Prospectus prior to the Delivery Date except as provided
herein; to advise the Underwriters, promptly after it receives notice thereof,
of the time when any amendment or supplement to the Registration Statement
or
the Prospectus has been filed or has become effective and to furnish the
Underwriters with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Partnership with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of
the Exchange Act subsequent to the date of the Prospectus and for so long
as the
delivery of a prospectus is required in connection with the offering or sale
of
the Units; to advise the Underwriters, promptly after it receives notice
thereof, of the issuance by the Commission or any state or other regulatory
body
of any stop order or of any order suspending the effectiveness of the
Registration Statement or preventing or suspending the use of the Prospectus
or
any Issuer Free Writing Prospectus, of the suspension of the qualification
of
the Units for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, of any notice from the
Commission objecting to the use of the form of the Registration Statement
or any
post-effective amendment thereto, or of any request by the Commission for
the
amendment or supplement of the Registration Statement, the Prospectus or
any
Issuer Free Writing Prospectus or for additional information; to use its
commercially reasonable efforts to prevent the issuance of any such order
or
notice of objection, and, in the event of the issuance of any stop order
or of
any order preventing or suspending the use of the Prospectus or any Issuer
Free
Writing Prospectus or suspending any such qualification or such notice of
objection, to use promptly its commercially reasonable efforts to obtain
its
withdrawal;
(ii) To
pay
the required Commission filing fees relating to the Units within the time
period
required by Rule 456(b)(1) of the Rules and Regulations without regard to
the
proviso therein and otherwise in accordance with Rule 456(b) and 457(r) of
the
Rules and Regulations.
(iii) To
furnish promptly to the Underwriters and to counsel for the Underwriters
a
signed copy of the Registration Statement as originally filed with the
Commission, and each amendment thereto filed with the Commission, including
all
consents and exhibits filed therewith;
(iv) To
deliver promptly to the Underwriters such number of the following documents
as
the Underwriters shall reasonably request: (A) conformed copies of the
Registration Statement as originally filed with the Commission and each
amendment thereto (in each case excluding exhibits other than this Agreement),
(B) the Prospectus and any amended or supplemented Prospectus,
(C) each Issuer Free Writing Prospectus and (D) any document
incorporated by reference in the Registration Statement or the Prospectus;
and,
if the delivery of a Prospectus (or in lieu thereof the notice referred to
in
Rule 173(a) under the Securities Act) is required at any time after the date
hereof in connection with the offering or sale of the Units or any other
securities relating thereto and if at such time any events shall have occurred
as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or, if for any
other
reason it shall be necessary to amend or supplement the Prospectus or to
file
under the Exchange Act any document incorporated by reference in order to
comply
with the Securities Act or the Exchange Act, to notify the Underwriters and,
upon its request, to prepare and file such document that will correct such
statement or omission or effect such compliance and furnish without charge
to
each Underwriter and to any dealer in securities as many copies as the
Underwriters may from time to time reasonably request of such amended or
supplemented Prospectus or other documents;
(v) To
file
promptly with the Commission any amendment or supplement to the Registration
Statement or the Prospectus that may, in the reasonable judgment of the
Partnership or the Underwriters, be required by the Securities Act or requested
by the Commission;
(vi) Prior
to
filing with the Commission any amendment or supplement to the Registration
Statement or the Prospectus, or any document incorporated by reference in
the
Prospectus or any amendment to any document incorporated by reference in
the
Prospectus, to furnish a copy thereof to the Underwriters and counsel for
the
Underwriters and obtain the consent of the Underwriters to the filing, which
consent shall not be unreasonably withheld and which shall be provided to
the
Partnership promptly after having been given notice of the proposed filing;
provided that the foregoing provision shall not apply if such filing
is, in the judgment of counsel to the Partnership Parties, required by
law;
(vii) Not
to
make any offer relating to the Units that would constitute an Issuer Free
Writing Prospectus without the prior written consent of the
Underwriters;
(viii) To
retain
in accordance with the Rules and Regulations all Issuer Free Writing
Prospectuses not required to be filed pursuant to the Rules and Regulations;
and
if at any time after the date hereof any events shall have occurred as a
result
of which any Issuer Free Writing Prospectus, as then amended or supplemented,
would conflict with the information in the Registration Statement, the Pricing
Disclosure Package or the Prospectus or would include an untrue statement
of a
material fact or omit to state any material fact necessary in order to make
the
statements therein, in the light of the circumstances under which they were
made, not misleading, or, if for any other reason it shall be necessary to
amend
or supplement any Issuer Free Writing Prospectus, to notify the Underwriters
and, upon their request, to prepare and file an amended or supplemented Issuer
Free Writing Prospectus that will correct such conflict, statement or omission
or effect such compliance and furnish without charge to each Underwriter
as many
copies as the Underwriters may from time to time reasonably request of such
amended or supplemented Issuer Free Writing Prospectus;
(ix) As
soon
as practicable after the Effective Date and in any event not later than 16
months after the date hereof, to make generally available to the Partnership’s
security holders and the Underwriters an earnings statement of the Partnership
Entities (which need not be audited) complying with Section 11(a) of the
Securities Act and the Rules and Regulations;
(x) Promptly
from time to time to take such action as the Underwriters may reasonably
request
to qualify the Units for offering and sale under the securities laws of such
jurisdictions as the Underwriters may request and to comply with such laws
so as
to permit the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of the Units;
provided that in connection therewith the Partnership shall not be
required to (A) qualify as a foreign limited partnership in any
jurisdiction in which it would not otherwise be required to so qualify,
(B) file a general consent to service of process in any such jurisdiction
or (C) subject itself to taxation in any jurisdiction in which it would not
otherwise be subject;
(xi) For
a
period commencing on the date hereof and ending on the 60th day after
the date
of the Prospectus (the “Lock-UpPeriod”), not
to, directly or indirectly, without the prior written consent of the
Underwriters: (A) offer for sale, sell, pledge, transfer or otherwise
dispose of (or enter into any transaction or device that is designed to,
or
could be expected to, result in the disposition by any individual or entity
at
any time in the future of) any Common Units or securities convertible into
or
exchangeable or exercisable for Common Units (other than the Units and Common
Units issued (1) pursuant to employee benefit plans, qualified unit option
plans
or other employee compensation plans existing on the date hereof, (2) pursuant
to currently outstanding options, warrants or rights, or (3) by the Partnership
to sellers in connection with acquisitions of assets or entities by the
Partnership or any of the Subsidiaries, provided that any recipients of such
Common Units in any such acquisitions enter into Lock-Up Agreements (as defined
below) for the remainder of the Lock-Up Period); (B) sell or grant any
options, rights or warrants with respect to any Common Units or securities
convertible into or exchangeable or exercisable for Common Units (other than
the
grant of options pursuant to option plans existing on the date hereof);
(C) enter into any swap or other derivatives transaction that transfers to
another, in whole or in part, any of the economic benefits or risks of ownership
of any Common Units, whether any such transaction described in clause (A),
(B)
or (C) above is to be settled by delivery of Common Units or other securities,
in cash or otherwise; (D) file or cause to be filed a registration
statement, including any amendments thereto, with respect to the registration
of
any equity securities or any securities convertible into or exchangeable
or
exercisable for equity securities of the Partnership; or (E) publicly
disclose the intention to do any of the foregoing; and to cause each officer,
director and/or securityholder of the Partnership Entities set forth on
Schedule 3 attached hereto to furnish to the Underwriters, prior to
the Delivery Date, a letter or letters, substantially in the form of
Exhibit A hereto (the “Lock-Up
Agreements”);
Notwithstanding
the foregoing paragraph, if (X) during the last 17 days of the Lock-Up Period,
the Partnership issues an earnings release or material news or a material
event
relating to the Partnership occurs or (Y) prior to the expiration of the
Lock-Up
Period, the Partnership announces that it will release earnings results during
the 16-day period beginning on the last day of the Lock-Up Period, then the
restrictions imposed in the foregoing paragraph shall continue to apply until
the expiration of the 18-day period beginning on the issuance of the earnings
release, the announcement of the material news or the occurrence of the material
event, unless the Underwriters waive such extension in writing;
(xii) To
apply
the net proceeds from the sale of the Units being sold by the Partnership
as set
forth in the Prospectus;
(b) Each
Underwriter severally agrees that such Underwriter shall not include any
“issuer
information” (as defined in Rule 433 of the Rules and Regulations) in any “free
writing prospectus” (as defined in Rule 405 of the Rules and Regulations) used
or referred to by such Underwriter without the prior consent of the Partnership
(any such issuer information with respect to the use of which the Partnership
has given its consent, “Permitted Issuer Information”);
provided that (i) no such consent shall be required with respect
to any such issuer information contained in any document filed by the
Partnership Parties with the Commission prior to the use of such free writing
prospectus and (ii) “issuer information,” as used in this
Section 5(b), shall not be deemed to include information prepared by
or on behalf of such Underwriter on the basis of or derived from issuer
information.
6. Expenses
. The
Partnership agrees, whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, to pay all costs,
expenses, fees and taxes incident to and in connection with (a) the
authorization, issuance, sale and delivery of the Units, any stamp duties
or
other taxes payable in that connection and the preparation and printing of
certificates for the Units; (b) the preparation, printing and filing under
the Securities Act of the Registration Statement (including any exhibits
thereto), the Prospectus, any Issuer Free Writing Prospectus and any amendment
or supplement thereto; (c) the distribution of the Registration Statement
(including any exhibits thereto), the Prospectus, any Issuer Free Writing
Prospectus and any amendment or supplement thereto, and any document
incorporated by reference in any of the foregoing, all as provided in this
Agreement; (d) the production and distribution of this Agreement, any
supplemental agreement among Underwriters, and any other related documents
in
connection with the offering, purchase, sale and delivery of the Units;
(e) any required review by the National Association of Securities Dealers,
Inc. (the “NASD”) of the terms of sale of the Units (including
related fees and expenses of counsel to the Underwriters); (f) the listing
of the Units on the New York Stock Exchange (the “NYSE”);
(g) the qualification of the Units under the securities laws of the several
jurisdictions as provided in Section 5(a)(x) hereof; and
(h) the performance of the obligations of the Partnership Parties under
this Agreement; provided that, except as provided in this
Section 6 and in Sections 8 and 11 hereof, the
Underwriters shall pay their own costs and expenses, including the costs
and
expenses of their counsel, and the expenses of advertising any offering of
the
Units made by the Underwriters.
7. Conditions
of Underwriters’ Obligations
. The
respective obligations of the Underwriters hereunder are subject to the
accuracy, when made and on the Delivery Date, of the representations and
warranties of the Partnership Parties contained herein, to the performance
by
the Partnership Parties of their respective obligations hereunder, and to
each
of the following additional terms and conditions:
(a) The
Prospectus shall have been timely filed with the Commission in accordance
with
Section 5(a)(i) hereof; the Partnership shall have complied with all
filing requirements applicable to any Issuer Free Writing Prospectus used
or
referred to after the date hereof; no stop order suspending the effectiveness
of
the Registration Statement or preventing or suspending the use of the Prospectus
or any Issuer Free Writing Prospectus shall have been issued and no proceeding
for such purpose shall have been initiated or threatened by the Commission;
any
request of the Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall have been complied
with; and the Commission shall not have notified the Partnership of any
objection to the use of the form of the Registration Statement.
(b) No
Underwriter shall have discovered and disclosed to the Partnership on or
prior
to the Delivery Date that the Registration Statement as of the Effective
Date,
the Prospectus as of its date and on the Delivery Date, or the Pricing
Disclosure Package as of the Applicable Time, in each case including any
amendment or supplement thereto, contains an untrue statement of a fact that,
in
the reasonable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Underwriters,
is
material or omits to state a fact that, in the reasonable opinion of such
counsel, is material and is required to be stated therein or is necessary
to
make the statements therein not misleading (in the case of the Prospectus
or the
Pricing Disclosure Package, in the light of the circumstances under which
such
statements were made).
(c) All
corporate, partnership and limited liability company proceedings and other
legal
matters incident to the authorization, form and validity of this Agreement,
the
Units, the Registration Statement, the Prospectus and any Issuer Free Writing
Prospectus, and all other legal matters relating to this Agreement and the
transactions contemplated hereby, shall be reasonably satisfactory in all
material respects to counsel for the Underwriters, and the Partnership Parties
shall have furnished to such counsel all documents and information that they
may
reasonably request to enable them to pass upon such matters.
(d) ▇▇▇▇▇▇
& ▇▇▇▇▇▇ L.L.P. shall have furnished to the Underwriters its written
opinion, as counsel to the Partnership Parties, addressed to the Underwriters
and dated the Delivery Date, in form and substance reasonably satisfactory
to
the Underwriters, with respect to the matters set forth in Exhibit B
to this Agreement.
(e) The
General Counsel of BGL shall have furnished to the Underwriters his written
opinion, as counsel to the Partnership, addressed to the Underwriters and
dated
the Delivery Date, in form and substance reasonably satisfactory to the
Underwriters, with respect to the matters set forth in Exhibit C to
this Agreement.
(f) ▇▇▇▇▇▇▇
▇▇▇▇▇ LLP shall have furnished to the Underwriters its written opinion or
opinions, as counsel for the Underwriters, addressed to the Underwriters
and
dated the Delivery Date, with respect to the issuance and sale of the Units,
the
Registration Statement, the Prospectus, the Pricing Disclosure Package and
such
other related matters as the Underwriters may reasonably require, and the
Partnership Parties shall have furnished to such counsel such documents as
they
reasonably request for the purpose of enabling them to pass upon such
matters.
(g) Promptly
after the execution of this Agreement, the Underwriters shall have received
from
Deloitte & Touche LLP a letter (the “initial letter”), in
form and substance satisfactory to the Underwriters, addressed to the
Underwriters and dated the date hereof (i) confirming that they are
independent public accountants within the meaning of the Securities Act and
are
in compliance with the applicable requirements relating to the qualification
of
accountants under Rule 2-01 of Regulation S-X of the Commission and
(ii) stating, as of the date hereof (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in the Pricing Disclosure Package, as of a
date
not more than three days prior to the date hereof), the conclusions and findings
of such firm with respect to the financial information and other matters
ordinarily covered by accountants’ “comfort letters” to underwriters in
connection with registered public offerings.
(h) The
Underwriters shall have received from Deloitte & Touche LLP a letter (the
“bring-down letter”), in form and substance satisfactory to the
Underwriters, addressed to the Underwriters and dated the Delivery Date
(i) confirming that they are independent public accountants within the
meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01
of
Regulation S-X of the Commission, (ii) stating, as of the date of the
bring-down letter (or, with respect to matters involving changes or developments
since the respective dates as of which specified financial information is
given
in the Prospectus, as of a date not more than three days prior to the date
of
the bring-down letter), the conclusions and findings of such firm with respect
to the financial information and other matters covered by the initial letter
and
(iii) confirming in all material respects the conclusions and findings set
forth in the initial letter.
(i) BGL
shall
have furnished to the Underwriters a certificate, dated the Delivery Date,
of
its Chairman of the Board, its Chief Executive Officer, its President or
any of
its Vice Presidents and its Chief Financial Officer stating that:
(i) The
representations, warranties and agreements of the Partnership Parties in
Section 1 hereof are true and correct on and as of the Delivery
Date, and the Partnership Parties have complied with all their agreements
contained herein and satisfied all the conditions on their part to be performed
or satisfied hereunder at or prior to the Delivery Date;
(ii) No
stop
order suspending the effectiveness of the Registration Statement has been
issued; no proceedings for that purpose have been instituted or, to the
knowledge of such officers, threatened; and the Commission has not notified
the
Partnership of any objection to the use of the form of the Registration
Statement or any post-effective amendment thereto; and
(iii) They
have
carefully examined the Registration Statement, the Prospectus and the Pricing
Disclosure Package and, in their opinion, (A) (1) the Registration
Statement, as of the Effective Date, (2) the Prospectus, as of its date and
on the Delivery Date, and (3) the Pricing Disclosure Package, as of the
Applicable Time, did not and do not contain any untrue statement of a material
fact and did not and do not omit to state a material fact required to be
stated
therein or necessary to make the statements therein not misleading (in the
case
of the Registration Statement) or necessary to make the statements therein,
in
the light of the circumstances under which they were made, not misleading
(in
the case of the Pricing Disclosure Package and the Prospectus), and (B) since
the Effective Date, no event has occurred that should have been set forth
in a
supplement or amendment to the Registration Statement, the Prospectus or
any
Issuer Free Writing Prospectus that has not been so set forth.
(j) Subsequent
to the execution and delivery of this Agreement, (i) no Partnership Entity
shall have sustained any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance,
any
labor dispute or any court or governmental action, order or decree, (ii) no
Partnership Entity shall have become a party to or the subject of any litigation
or court or government action, investigation, order or decree that is adverse
to
any Partnership Entity and (iii) there shall not have been any adverse
change in the partners’ capital, members’ equity or short- or long-term debt of
any Partnership Entity or any adverse change, or any development involving
a
prospective adverse change, in or affecting the condition (financial or
otherwise), results of operations, securityholders’ equity, properties,
management, business or prospects of any Partnership Entity, in each case
the
effect of which in any such case is, in the judgment of the Underwriters,
so
material and adverse as to make it impracticable or inadvisable to proceed
with
the public offering or the delivery of the Units being delivered on the Delivery
Date on the terms and in the manner contemplated herein and in the
Prospectus.
(k) Subsequent
to the execution and delivery of this Agreement (i) no downgrading shall
have occurred in the rating accorded the debt securities of any Partnership
Entity by any “nationally recognized statistical rating organization” (as that
term is defined by the Commission for purposes of Rule 436(g)(2) of the Rules
and Regulations) and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any debt securities of any Partnership Entity;
provided, however, that this paragraph (k) shall not apply to any
downgrade of not more than one ratings notch or level contemplated by an
existing notice of surveillance or review.
(l) Subsequent
to the execution and delivery of this Agreement there shall not have occurred
any of the following: (i) trading in securities generally on the
NYSE shall have been suspended or materially limited, the settlement of such
trading generally shall have been materially disrupted or minimum prices
shall
have been established on any such exchange or such market by the Commission,
by
such exchange or by any other regulatory body or governmental authority having
jurisdiction, (ii) trading in any securities of any Partnership Entity on
any exchange or in the over-the-counter market shall have been suspended
or
materially limited, the settlement of such trading generally shall have been
materially disrupted or minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (iii) a banking
moratorium shall have been declared by federal or New York or Kentucky state
authorities, (iv) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving
the
United States or there shall have been a declaration of a national emergency
or
war by the United States or (v) a material adverse change in general economic,
political or financial conditions, including, without limitation, as a result
of
terrorist activities or any other calamity or crisis after the date hereof,
or
the effect of international conditions on the financial markets in the United
States, that in any such case would make it, in the judgment of the
Underwriters, impracticable or inadvisable to proceed with the public offering
or delivery of the Units being delivered on the Delivery Date on the terms
and
in the manner contemplated herein and in the Prospectus.
(m) The
NYSE
shall have approved the Units for listing, subject only to official notice
of
issuance.
(n) The
Lock-Up Agreements between the Underwriters and the securityholders, officers
and directors of the Partnership Parties listed on Schedule 3
attached hereto, delivered to the Underwriters on or before the date of this
Agreement, shall be in full force and effect on the Delivery Date.
(o) The
Underwriters shall have received from the Partnership Parties such additional
documents and certificates as the Underwriters or counsel for the Underwriters
may reasonably request.
All
opinions, letters, evidence and certificates mentioned above or elsewhere
in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel
for
the Underwriters.
8. Indemnification
and Contribution
.
(a) The
Partnership Parties, jointly and severally, shall indemnify and hold harmless
each Underwriter, its directors, officers and employees and each person,
if any,
who controls such Underwriter within the meaning of Section 15 of the Securities
Act from and against any loss, claim, damage or liability, joint or several,
or
any action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of Units) to
which
that Underwriters, director, officer, employee or controlling person may
become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in
(A) the Pricing Disclosure Package, the Registration Statement, the
Prospectus, any Issuer Free Writing Prospectus, or in any amendment or
supplement thereto, (B) any Permitted Issuer Information used or referred
to in any “free writing prospectus” (as defined in Rule 405 of the Rules and
Regulations) used or referred to by any Underwriter, or (C) any “road show”
(as defined in Rule 433 of the Rules and Regulations) not constituting an
Issuer
Free Writing Prospectus (a “Non-Prospectus Road
Show”), (ii) the omission or alleged omission to state
in Pricing Disclosure Package, the Registration Statement, the Prospectus,
any
Issuer Free Writing Prospectus or in any amendment or supplement thereto,
or in
any Permitted Issuer Information, any Non-Prospectus Road Show or any Blue
Sky
Application, any material fact required to be stated therein or necessary
to
make the statements therein not misleading (in the case of the Registration
Statement) or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (in the case of
the
Pricing Disclosure Package, the Prospectus or any Issuer Free Writing
Prospectus) or (iii) any act or failure to act or any alleged act or failure
to
act by any Underwriter in connection with, or relating in any manner to,
the
Units or the offering contemplated hereby, and that is included as part of
or
referred to in any loss, claim, damage, liability or action arising out of
or
based upon matters covered by clause (i) or (ii) above (provided that the
Partnership Parties shall not be liable under this clause (iii) to the extent
that it is determined in a final judgment by a court of competent jurisdiction
that such loss, claim, damage, liability or action resulted directly from
any
such acts or failures to act undertaken or omitted to be taken by such
Underwriter through its gross negligence or willful misconduct), and shall
reimburse each such Underwriter and each such director, officer, employee
or
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by such Underwriter, director, officer, employee or
controlling person in connection with investigating or defending or preparing
to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Partnership
Parties shall not be liable in any such case to the extent that any such
loss,
claim, damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made
in
the Pricing Disclosure Package, the Registration Statement, the Prospectus,
any
Issuer Free Writing Prospectus or in any such amendment or supplement thereto,
or in any Permitted Issuer Information, any Non-Prospectus Road Show or any
Blue
Sky Application, in reliance upon and in conformity with written information
concerning any Underwriter furnished to the Partnership by or on behalf of
such
Underwriter specifically for inclusion therein, which information consists
solely of the information specified in Section 8(e)
hereof. The foregoing indemnity agreement is in addition to any
liability which the Partnership Parties may otherwise have to any Underwriter
or
to any director, officer, employee or controlling person of such
Underwriter.
(b) Each
Underwriter, severally and not jointly, shall indemnify and hold harmless
each
Partnership Party, its directors, officers, managers who are natural persons
and
employees and each person, if any, who controls such Partnership Party within
the meaning of Section 15 of the Securities Act from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which such Partnership Party or any such director, officer, employee,
manager
who is a natural person or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability
or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in the Pricing Disclosure Package,
the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus
or in any amendment or supplement thereto, or in any Non-Prospectus Road
Show,
or (ii) the omission or alleged omission to state in the Pricing Disclosure
Package, the Registration Statement, the Prospectus, any Issuer Free Writing
Prospectus or in any amendment or supplement thereto, or in any Non-Prospectus
Road Show, any material fact required to be stated therein or necessary to
make
the statements therein not misleading (in the case of the Pricing Disclosure
Package, the Prospectus or any Issuer Free Writing Prospectus, in the light
of
the circumstances under which any such statements were made), but in each
case
only to the extent that the untrue statement or alleged untrue statement
or
omission or alleged omission was made in reliance upon and in conformity
with
written information concerning such Underwriter furnished to the Partnership
by
or on behalf of that Underwriter specifically for inclusion therein, which
information is limited to the information set forth in Section 8(e)
hereof. The foregoing indemnity agreement is in addition to any
liability that any Underwriter may otherwise have to any Partnership Party
or
any director, officer, employee, manager who is a natural person or controlling
person of such Partnership Party.
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice
of any claim or the commencement of any action, the indemnified party shall,
if
a claim in respect thereof is to be made against the indemnifying party under
this Section 8, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from
any
liability that it may have under this Section 8, except to the
extent it has been materially prejudiced by such failure; and provided,
further, that the failure to notify the indemnifying party shall
not
relieve it from any liability which it may have to an indemnified party
otherwise than under this Section 8. If any such claim or
action shall be brought against an indemnified party, and the indemnified
party
shall notify the indemnifying party thereof, the indemnifying party shall
be
entitled to participate therein and, to the extent that it wishes to assume,
jointly with any other similarly notified indemnifying party, the defense
thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified
party of the indemnifying party’s election to assume the defense of such claim
or action, the indemnifying party shall not be liable to the indemnified
party
under this Section 8 for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense thereof
other
than reasonable costs of investigation; provided, however,
that the Underwriters shall have the right to employ counsel to represent
jointly the Underwriters and their respective directors, officers, employees
and
controlling persons who may be subject to liability arising out of any claim
in
respect of which indemnity may be sought by the Underwriters against the
Partnership Parties under this Section 8 if (i) the Partnership
Parties and the Underwriters shall have so mutually agreed; (ii) the
Partnership Parties have failed within a reasonable time to retain counsel
reasonably satisfactory to the Underwriters; (iii) the Underwriters and
their respective directors, officers, employees and controlling persons shall
have reasonably concluded that there may be legal defenses available to them
that are different from or in addition to those available to the Partnership
Parties; or (iv) the named parties in any such proceeding (including any
impleaded parties) include both the Underwriters or their respective directors,
officers, employees or controlling persons, on the one hand, and the Partnership
Parties or their respective directors, officer, employees, managers who are
natural persons or controlling persons, on the other hand, and representation
of
both sets of parties by the same counsel would be inappropriate due to actual
or
potential differing interests between them, and in any such event the fees
and
expenses of such separate counsel shall be paid by the Partnership
Parties. No indemnifying party shall (X) without the prior
written consent of the indemnified parties (which consent shall not be
unreasonably withheld) settle, or compromise or consent to the entry of any
judgment with respect to, any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding and does not include
any
findings of fact or admissions of fault or culpability as to the indemnified
party or (Y) be liable for any settlement of any such claim, action, suit
or proceedings effected without its written consent (which consent shall
not be
unreasonably withheld), but if settled with the consent of the indemnifying
party or if there be a final judgment for the plaintiff in any such claim,
action, suit or proceeding, the indemnifying party agrees to indemnify and
hold
harmless any indemnified party from and against any loss or liability by
reason
of such settlement or judgment.
(d) If
the
indemnification provided for in this Section 8 shall for any reason
be unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a) or 8(b) hereof in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein,
then
each indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof,
(i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Partnership Parties, on the one hand, and the
Underwriters, on the other, from the offering of the Units or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Partnership
Parties, on the one hand, and the Underwriters, on the other, with respect
to
the statements or omissions that resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Partnership
Parties, on the one hand, and the Underwriters, on the other, with respect
to
such offering shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Units purchased under this Agreement (before
deducting expenses) received by the Partnership, as set forth in the table
on
the cover page of the Prospectus, on the one hand, and the total underwriting
discounts and commissions received by the Underwriters with respect to the
Units
purchased under this Agreement, as set forth in the table on the cover page
of
the Prospectus, on the other hand, bear to the total gross proceeds from
the
offering of the Units purchased under this Agreement. The relative
fault shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Partnership Parties or the
Underwriters, the intent of the parties and their relative knowledge, access
to
information and opportunity to correct or prevent such statement or
omission. The Partnership Parties and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this
Section 8(d) were to be determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability, or
action
in respect thereof, referred to above in this Section 8(d) shall be
deemed to include, for purposes of this Section 8(d), any legal or
other expenses reasonably incurred by such indemnified party in connection
with
investigating, defending or preparing to defend any such action or
claim. Notwithstanding the provisions of this
Section 8(d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the net proceeds from the sale of
the
Units underwritten by it exceeds the amount of any damages that such Underwriter
has otherwise paid or become liable to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was
not
guilty of such fraudulent misrepresentation. The Underwriters’
obligations to contribute as provided in this Section 8(d) are
several in proportion to their respective underwriting obligations and not
joint.
(e) The
Underwriters severally confirm and the Partnership Parties acknowledge and
agree
that the table of the names of, and the number of Units to be purchased by,
each
of the Underwriters, the public offering price and the statements regarding
delivery of shares by the Underwriters set forth on the cover page of, and
the
concession and reallowance figures and the paragraph relating to stabilization
by the Underwriters appearing under the caption “Underwriting” in, the
Prospectus are correct and constitute the only information concerning the
Underwriters furnished in writing to the Partnership by or on behalf of the
Underwriters specifically for inclusion in the Registration Statement, the
Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement
thereto.
9. Defaulting
Underwriters
. If,
on the Delivery Date, any Underwriter defaults in the performance of its
obligations under this Agreement, the remaining non-defaulting Underwriter(s)
shall be obligated to purchase the Units that the defaulting Underwriter(s)
agreed but failed to purchase on the Delivery Date in the respective proportions
which the number of Units set forth opposite the name of each remaining
non-defaulting Underwriter in Schedule 1 attached hereto bears to
the total number of Units set forth opposite the names of all the remaining
non-defaulting Underwriters in Schedule 1 attached hereto;
provided, however, that the remaining non-defaulting
Underwriter(s) shall not be obligated to purchase any of the Units on the
Delivery Date if the total number of Units that the defaulting Underwriter(s)
agreed but failed to purchase on the Delivery Date exceeds 9.09% of the total
number of Units to be purchased on the Delivery Date, and any remaining
non-defaulting Underwriter shall not be obligated to purchase more than 110%
of
the number of Units that it agreed to purchase on the Delivery Date pursuant
to
the terms of Section 2 hereof. If the foregoing maximums
are exceeded, the remaining non-defaulting Underwriter(s), or those other
underwriters satisfactory to the Underwriters who so agree, shall have the
right, but shall not be obligated, to purchase, in such proportion as may
be
agreed upon among them, all the Units to be purchased on the Delivery
Date. If the remaining non-defaulting Underwriter(s) or other
underwriters satisfactory to the Underwriters do not elect to purchase the
Units
that the defaulting Underwriter(s) agreed but failed to purchase on the Delivery
Date, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Partnership Parties, except that the
Partnership Parties will continue to be liable for the payment of expenses
to
the extent set forth in Sections 6 and 11
hereof. As used in this Agreement, the term
“Underwriter” includes, for all purposes of this Agreement
unless the context requires otherwise, any party not listed in
Schedule 1 attached hereto that, pursuant to this
Section 9, purchases Units that a defaulting Underwriter agreed but
failed to purchase.
Nothing
contained herein shall relieve a defaulting Underwriter of any liability
it may
have to any Partnership Party for damages caused by its default. If
other Underwriters are obligated or agree to purchase the Units of a defaulting
or withdrawing Underwriter, either the Underwriters or the Partnership may
postpone the Delivery Date for up to seven full business days in order to
effect
any changes that in the opinion of counsel for the Partnership Parties or
counsel for the Underwriters may be necessary in the Registration Statement,
the
Prospectus or in any other document or arrangement.
10. Termination
. The
obligations of the Underwriters hereunder may be terminated by the Underwriters
by notice given to and received by the Partnership prior to delivery of and
payment for the Units if, prior to that time, any of the events described
in
Sections 7(j), 7(k) and 7(l) hereof shall have
occurred or if the Underwriters shall decline to purchase the Units for any
reason permitted under this Agreement.
11. Reimbursement
of Underwriters’ Expenses
. If the
sale of the Units provided for herein is not consummated (i) because any
condition of the Underwriters’ obligations set forth in Section 7 hereof
(other than Sections 7(l)(i), (iii), (iv) or (v)) is
not satisfied or (ii) because of any refusal, inability or failure on the
part
of any Partnership Party to perform any agreement herein or comply with any
provision hereof other than by reason of a default by any Underwriter, the
Partnership Parties will reimburse the Underwriters on demand for all reasonable
out-of-pocket expenses (including fees and disbursements of counsel) that
shall
have been incurred by them in connection with the proposed purchase and sale
of
the Units.
12. Research
Analyst Independence
. The
Partnership Parties acknowledge that (a) the Underwriters’ research
analysts and research departments are required to be independent from their
respective investment banking divisions and are subject to certain regulations
and internal policies and (b) the Underwriters’ research analysts may hold
views and make statements or investment recommendations and/or publish research
reports with respect to the Partnership, the value of the Common Units and/or
the offering that differ from the views of their respective investment banking
divisions. The Partnership Parties hereby waive and release, to the
fullest extent permitted by law, any claims that the Partnership Parties
may
have against the Underwriters with respect to any conflict of interest that
may
arise from the fact that the views expressed by their independent research
analysts and research departments may be different from or inconsistent with
the
views or advice communicated to the Partnership Parties or their affiliates
by
any Underwriter’s investment banking division. The Partnership
Parties acknowledge that each of the Underwriters is a full service securities
firm and as such, from time to time, subject to applicable securities laws,
may
effect transactions for its own account or the account of its customers and
hold
long or short positions in debt or equity securities of the companies that
are
the subject of the transactions contemplated by this Agreement.
13. No
Fiduciary Duty
. The
Partnership Parties acknowledge and agree that in connection with this offering,
sale of the Units or any other services the Underwriters may be deemed to
be
providing hereunder, notwithstanding any preexisting relationship, advisory
or
otherwise, between the parties or any oral representations or assurances
previously or subsequently made by the Underwriters: (a) no
fiduciary or agency relationship between any Partnership Party, any affiliate
of
a Partnership Party or any other person, on the one hand, and the Underwriters,
on the other, exists; (b) the Underwriters are not acting as advisors,
expert or otherwise, to the Partnership Parties or any of their affiliates,
including, without limitation, with respect to the determination of the public
offering price of the Units, and such relationship between the Partnership
Parties or any of their affiliates, on the one hand, and the Underwriters,
on
the other, is entirely and solely commercial, based on arms-length negotiations;
(c) any duties and obligations that the Underwriters may have to the
Partnership Parties or their affiliates shall be limited to those duties
and
obligations specifically stated herein; and (d) the Underwriters and their
respective affiliates may have interests that differ from those of the
Partnership Parties and their affiliates. Each Partnership Party
hereby waives, on its own behalf and on behalf of its affiliates, any claims
that the Partnership Parties or any of their affiliates may have against
any
Underwriter with respect to any breach or alleged breach of fiduciary duty
in
connection with this offering.
14. Notices,
Etc.
All
statements, requests, notices and agreements hereunder shall be in writing,
and:
(a) if
to the
Underwriters, shall be delivered or sent by mail or facsimile transmission
to
(i) Citigroup Global Markets Inc., General Counsel (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇)
and
confirmed to Citigroup Global Markets Inc. at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel, (ii) ▇▇▇▇▇▇ Brothers Inc., ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Syndicate Registration
(Fax: (▇▇▇) ▇▇▇-▇▇▇▇), with a copy, in the case of any notice pursuant to
Section 10(d) hereof, to the Director of Litigation, Office of the General
Counsel, ▇▇▇▇▇▇ Brothers Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇
▇▇▇▇▇ (Fax: (▇▇▇) ▇▇▇-▇▇▇▇) and (iii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Finance Execution,
Fax: (▇▇▇) ▇▇▇-▇▇▇▇; and
(b) if
to the
Partnership Parties, shall be delivered or sent by mail or facsimile
transmission to the address of the Partnership set forth in the Registration
Statement, Attention: Chief Financial Officer.
Any
such
statements, requests, notices or agreements shall take effect at the time
of
receipt thereof. The Partnership shall be entitled to act and rely
upon any request, consent, notice or agreement given or made on behalf of
the
Underwriters.
15. Persons
Entitled to Benefit of Agreement
. This
Agreement shall inure to the benefit of and be binding upon the Underwriters,
the Partnership Parties and their respective successors. This
Agreement and the terms and provisions hereof are for the sole benefit of
only
those persons, except that (a) the representations, warranties, indemnities
and agreements of the Partnership Parties contained in this Agreement shall
also
be deemed to be for the benefit of the directors, officers and employees
of the
Underwriters and each person or persons, if any, who control any Underwriter
within the meaning of Section 15 of the Securities Act and (b) the
indemnity agreement of the Underwriters contained in Section 8(b)
hereof shall be deemed to be for the benefit of the directors of BGL, the
officers of BGL who have signed the Registration Statement and any person
controlling BGL within the meaning of Section 15 of the Securities
Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this
Section 15, any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision contained
herein. Notwithstanding anything in this Agreement to the contrary,
all liabilities and obligations of the Partnership Parties hereunder shall
be
non-recourse against Loews or any limited partner, stockholder, member, officer,
manager, director or employee of any of the Partnership Parties who is a
natural
person. In that connection, neither Loews nor any such limited
partner, stockholder, member, officer, manager, director or employee who
is a
natural person shall be bound by this Agreement, or be obligated by virtue
of
this Agreement or the obligations of any party created hereunder to (y) provide
funds to any of the Partnership Parties, whether by contributions to capital,
loans, returns of monies, securities or other property, or (z) assume any
liabilities of any of the Partnership Parties. For the avoidance of doubt,
nothing in this Section 15 shall preclude recourse, to the extent permitted
by
applicable law, against any such limited partner, stockholder, member, officer,
manager, director or employee of any of the Partnership Parties who is a
natural
person in the event of fraud, gross negligence or willful
misconduct.
16. Survival
. The
respective indemnities, representations, warranties and agreements of the
Partnership Parties and the Underwriters contained in this Agreement or made
by
or on behalf of them, respectively, pursuant to this Agreement, shall survive
the delivery of and payment for the Units and shall remain in full force
and
effect, regardless of any investigation made by or on behalf of any of them
or
any person controlling any of them.
17. Definition
of the Terms “Business Day” and “Subsidiary
.” For
purposes of this Agreement, (a) “business day” means each
Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which
banking institutions in New York are generally authorized or obligated by
law or
executive order to close and (b) “subsidiary” has the
meaning set forth in Rule 405 of the Rules and Regulations.
18. Governing
Law
. This
Agreement shall be governed by and construed in accordance with the laws
of the
State of New York.
19. Counterparts
. This
Agreement may be executed in one or more counterparts and, if executed in
more
than one counterpart, the executed counterparts shall each be deemed to be
an
original but all such counterparts shall together constitute one and the
same
instrument.
20. Headings
. The
headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this
Agreement.
[Remainder
of page intentionally left blank.]
If
the
foregoing correctly sets forth the agreement among the Partnership Parties
and
the Underwriters, please indicate your acceptance in the space provided for
that
purpose below.
Very
truly yours,
Boardwalk
GP, LLC
By:
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Title: Chief
Financial Officer
Boardwalk
GP, LP
By:
Boardwalk GP, LLC, its general partner
By:
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Title: Chief
Financial Officer
By:
Boardwalk GP, LP, its general partner
By:
Boardwalk GP, LLC, its general partner
By:
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Title: Chief
Financial Officer
Accepted:
Citigroup
Global Markets Inc.
By:
Name:
Title:
▇▇▇▇▇▇
Brothers Inc.
By:
Name:
Title:
▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated
By:
Name:
Title:
SCHEDULE
1
|
Underwriters
|
Number
of Units
|
|||
|
Citigroup
Global Markets Inc.
|
2,500,000
|
|||
|
▇▇▇▇▇▇
Brothers Inc.
|
2,500,000
|
|||
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated
|
2,500,000
|
|||
|
Total
|
7,500,000
|
|||
Schedule
1 – Page
SCHEDULE
2
JURISDICTIONS
OF QUALIFICATION
|
Name
of Entity
|
Jurisdiction
of
Formation
|
Jurisdictions
of
Qualification
|
|
Boardwalk
GP, LLC
|
Delaware
|
Kentucky
|
|
Boardwalk
GP, LP
|
Delaware
|
Kentucky
|
|
Delaware
|
Kentucky
|
|
|
Boardwalk
Operating GP, LLC
|
Delaware
|
Kentucky
|
|
Boardwalk
Pipelines, LP
|
Delaware
|
Kentucky
|
|
Texas
Gas Transmission, LLC
|
Delaware
|
Louisiana,
Texas, Arkansas, Mississippi, Tennessee, Kentucky, Indiana, Ohio
and
Illinois
|
|
GS
Pipeline Company, LLC
|
Delaware
|
Texas,
Mississippi and Florida
|
|
Gulf
South Pipeline Company, LP
|
Delaware
|
Texas,
Louisiana, Mississippi, Alabama, Florida and Kansas
|
|
Gulf
Crossing Pipeline Company, LLC
|
Delaware
|
Oklahoma,
Texas, Louisiana
|
Schedule
2 – Page
SCHEDULE
3
PERSONS
DELIVERING LOCK-UP AGREEMENTS
▇▇▇▇
▇.
▇▇▇▇▇▇▇
H.
▇▇▇▇
▇▇▇▇▇ II
▇▇▇▇▇
▇.
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇.
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇.
▇▇▇▇▇
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
Boardwalk
Pipelines Holding Corp.
Loews
Corporation
Schedule
3 – Page
SCHEDULE
4
PRICING
INFORMATION
Public
Offering Price: $30.90
Number
of
Units Offered: 7,500,000
Schedule
4 – Page
SCHEDULE
5
ISSUER
FREE WRITING PROSPECTUSES
None.
Schedule
5 – Page
EXHIBIT
A
LOCK-UP
LETTER AGREEMENT
Citigroup
Global Markets Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
Brothers Inc.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
The
undersigned understands that you (the “Underwriters”) propose
to enter into an Underwriting Agreement (the “Underwriting
Agreement”) providing for the purchase by the Underwriters of common
units representing limited partner interests (the “Common
Units”) of Boardwalk Pipeline Partners, LP, a Delaware limited
partnership (the “Partnership”), and that the Underwriters
propose to reoffer the Common Units to the public (the
“Offering”).
In
consideration of the execution of the Underwriting Agreement by the
Underwriters, and for other good and valuable consideration, the undersigned
hereby irrevocably agrees that the undersigned will not, for a period of
60 days
after the date of the final Prospectus relating to the Offering (the
“Lock-Up Period”), without the prior written consent of
Citigroup Global Markets Inc., ▇▇▇▇▇▇ Brothers Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, directly or indirectly, (i) offer for sale, sell, pledge,
transfer or otherwise dispose of (or enter into any transaction or device
that
is designed to, or could be expected to, result in the disposition by any
individual or entity at any time in the future of) any Common Units or
securities convertible into or exchangeable or exercisable for Common Units
(including, without limitation, Common Units that may be deemed to be
beneficially owned by the undersigned in accordance with the rules and
regulations of the Securities and Exchange Commission and Common Units that
may
be issued upon exercise of any options or warrants), (ii) sell or grant any
options, rights or warrants with respect to any Common Units or securities
convertible into or exchangeable or exercisable for Common Units,
(iii) enter into any swap or other derivatives transaction that transfers
to another, in whole or in part, any of the economic benefits or risks of
ownership of any Common Units, whether any such transaction described in
clause
(i), (ii) or (iii) above is to be settled by delivery of Common Units or
other
securities, in cash or otherwise, (iv) make any demand for, exercise any
right with respect to or cause to be filed a registration statement, including
any amendments thereto, with respect to the registration of any Common Units,
any securities convertible into or exchangeable or exercisable for Common
Units,
or any other securities of the Partnership or (v) publicly disclose the
intention to do any of the foregoing. The foregoing sentence shall not apply
to
bona fide gifts, sales or other dispositions of any Common Units that
are made exclusively between and among the undersigned or members of the
undersigned’s family, or affiliates of the undersigned, including its partners
(if a partnership) or members (if a limited liability company); provided
that it shall be a condition to any such transfer that (A) the
transferee/donee agrees to be bound by the terms of the lock-up agreement
(including, without limitation, the restrictions set forth in the preceding
sentence) to the same extent as if the transferee/donee were a party hereto,
(B)
no filing by any party (donor, donee, transferor or transferee) under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), shall be required or shall be voluntarily made in connection
with such transfer or distribution (other than a filing on Form 5, Schedule
13D
or Schedule 13G (or 13D/A or 13G/A) made after the expiration of the 60-day
period referred to above), (C) each party (donor, donee, transferor or
transferee) shall not be required by law (including without limitation the
disclosure requirements of the Securities Act of 1933, as amended, and the
Exchange Act) to make, and shall agree to not voluntarily make, any public
announcement of the transfer or disposition, and (D) the undersigned notifies
the Underwriters at least two business days prior to the proposed transfer
or
disposition.
Notwithstanding
the foregoing, if (i) during the last 17 days of the Lock-Up Period, the
Partnership issues an earnings release or material news or a material event
relating to the Partnership Parties (as defined in the Underwriting Agreement)
occurs or (ii) prior to the expiration of the Lock-Up Period, the
Partnership announces that it will release earnings results during the 16-day
period beginning on the last day of the Lock-Up Period, then the restrictions
imposed by this Lock-Up Letter Agreement shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings
release, the announcement of the material news or the occurrence of the material
event, unless the Underwriters waive such extension in writing. The
undersigned hereby further agrees that, prior to engaging in any transaction
or
taking any other action that is subject to the terms of this Lock-Up Letter
Agreement during the period from the date of this Lock-Up Letter Agreement
to
and including the 34th day following the expiration of the Lock-Up Period,
the
undersigned will give notice thereof to the Partnership and will not consummate
such transaction or take any such action unless it has received written
confirmation from the Partnership that the Lock-Up Period (as such may have
been
extended pursuant to this paragraph) has expired.
In
furtherance of the foregoing, the Partnership and its transfer agent are
hereby
authorized to decline to make any transfer of securities if such transfer
would
constitute a violation or breach of this Lock-Up Letter Agreement.
It
is
understood that, if the Partnership notifies the Underwriters that it does
not
intend to proceed with the Offering, if the Underwriting Agreement does not
become effective, or if the Underwriting Agreement (other than the provisions
thereof that survive termination) shall terminate or be terminated prior
to
payment for and delivery of the Common Units, the undersigned will be released
from the undersigned’s obligations under this Lock-Up Letter
Agreement.
The
undersigned understands that the Partnership and the Underwriters will proceed
with the Offering in reliance on this Lock-Up Letter Agreement.
Whether
or not the Offering actually occurs depends on a number of factors, including
market conditions. Any Offering will only be made pursuant to an
Underwriting Agreement, the terms of which are subject to negotiation between
the Partnership and the Underwriters.
The
undersigned hereby represents and warrants that the undersigned has full
power
and authority to enter into this Lock-Up Letter Agreement and that, upon
request, the undersigned will execute any additional documents necessary
in
connection with the enforcement hereof. Any obligations of the
undersigned shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
A-
Very
truly yours,
By:
Name:
Title:
Dated:
A-
EXHIBIT
B
FORM
OF OPINION OF ISSUER’S COUNSEL
(a) Each
of the General Partner, the Partnership, the Operating Partnership and Gulf
South has been duly formed and is validly existing and in good standing as
a
limited partnership under the Delaware LP Act, has the full partnership power
and authority necessary to own or hold its properties and assets and to conduct
the businesses in which it is engaged, and is duly registered or qualified
to do
business and is in good standing as a foreign limited partnership in each
jurisdiction listed opposite its name in Schedule 2
hereto;
(b) Each
of BGL, Operating GP, Texas Gas, Gulf South GP and Gulf Crossing has been
duly
formed and is validly existing and in good standing as a limited liability
company under the Delaware LLC Act, has the full limited liability company
power
and authority necessary to own or hold its properties and assets and to conduct
the businesses in which it is engaged, and is duly registered or qualified
to do
business and is in good standing as a foreign limited liability company in
each
jurisdiction listed opposite its name in Schedule 2
hereto;
(c) BGL
is the sole general partner of the General Partner, with a 0.01% general
partner
interest in the General Partner; such general partner interest has been duly
and
validly authorized and issued in accordance with the GP Partnership Agreement;
and BGL owns such general partner interest free and clear of all liens,
encumbrances, security interests or claims (except restrictions on
transferability contained in the GP Partnership Agreement, as described in
the
Pricing Disclosure Package or created or arising under the Delaware LP Act)
(i) in respect of which a financing statement under the Uniform Commercial
Code of the State of Delaware naming BGL as debtor is on file with the Secretary
of State of the State of Delaware or (ii) otherwise known to such counsel,
without independent investigation, other than those created by or arising
under
the Delaware LP Act or the GP Partnership Agreement. BPHC is the sole
limited partner of the General Partner, with a 99.99% limited partner interest
in the General Partner; such limited partner interest has been duly and validly
authorized and issued in accordance with the GP Partnership Agreement and
is
fully paid (to the extent required under the GP Partnership Agreement) and
non-assessable (except as such non-assessability may be affected by Sections
17-303, 17-607 and 17-804 of the Delaware LP Act);
(d) The
General Partner is the sole general partner of the Partnership, with a 2.0%
general partner interest in the Partnership; such general partner interest
has
been duly and validly authorized and issued in accordance with the Partnership
Agreement; and the General Partner owns such general partner interest free
and
clear of all liens, encumbrances, security interests or claims (except
restrictions on transferability contained in the Partnership Agreement, as
described in the Pricing Disclosure Package or created or arising under the
Delaware LP Act) (i) in respect of which a financing statement under the
Uniform Commercial Code of the State of Delaware naming the General Partner
as
debtor is on file with the Secretary of State of the State of Delaware or
(ii) otherwise known to such counsel, without independent investigation,
other than those created by or arising under the Delaware LP Act or the
Partnership Agreement. The General Partner owns all of the Incentive
Distribution Rights (as defined in the Partnership Agreement); all of such
Incentive Distribution Rights have been duly and validly authorized and issued
in accordance with the Partnership Agreement and are fully paid (to the extent
required under the Partnership Agreement) and non-assessable (except as such
non-assessability may be affected by matters described in the Pricing Disclosure
Package; and the General Partner owns all of such Incentive Distribution
Rights
free and clear of all liens, encumbrances, security interests or claims (except
restrictions on transferability contained in the Partnership Agreement, as
described in the Pricing Disclosure Package or created or arising under the
Delaware LP Act) (i) in respect of which a financing statement under the
Uniform Commercial Code of the State of Delaware naming the General Partner
as
debtor is on file with the Secretary of State of the State of Delaware or
(ii) otherwise known to such counsel, without independent investigation,
other than those created by or arising under the Delaware LP Act or the
Partnership Agreement;
(e) The
Units to be issued and sold by the Partnership to the Underwriters have been
duly authorized in accordance with the Partnership Agreement and, when issued
and delivered against payment therefor pursuant to the Underwriting Agreement,
will be validly issued in accordance with the Partnership Agreement, fully
paid
(to the extent required under the Partnership Agreement) and non-assessable
(except as such non-assessability may be affected by (i) matters described
in the Pricing Disclosure Package and (ii) Sections 17-303, 17-607 and
17-804 of the Delaware LP Act); the Units, when issued and delivered against
payment therefor pursuant to the Underwriting Agreement, will conform to
the
descriptions thereof contained in each of the Pricing Disclosure Package
and the
Prospectus; and other than the Sponsor Units, the Incentive Distribution
Rights
and the Common Units issued in the Partnership’s initial public offering and in
its November 2006 follow-on public offering, the Units to be issued and sold
by
the Partnership to the Underwriters will be the only limited partner interests
in the Partnership issued and outstanding as of the date hereof;
(f) The
Partnership owns a 100% limited liability company interest in Operating GP;
such
limited liability company interest has been duly and validly authorized and
issued in accordance with the Operating GP LLC Agreement and is fully paid
(to
the extent required under the Operating GP LLC Agreement) and non-assessable
(except as such non-assessability may be affected by Sections 18-607 and
18-804
of the Delaware LLC Act); and the Partnership owns such limited liability
company interest free and clear of all liens, encumbrances, security interests
or claims (except restrictions on transferability contained in the Operating
GP
LLC Agreement, as described in the Pricing Disclosure Package or created
or
arising under the Delaware LLC Act) (i) in respect of which a financing
statement under the Uniform Commercial Code of the State of Delaware naming
the
Partnership as debtor is on file with the Secretary of State of the State
of
Delaware or (ii) otherwise known to such counsel, without independent
investigation, other than those created by or arising under the Delaware
LLC Act
or the Operating GP LLC Agreement;
(g) Operating
GP is the sole general partner of the Operating Partnership, with a 0.001%
general partner interest in the Operating Partnership; such general partner
interest has been duly and validly authorized and issued in accordance with
the
Operating Partnership Agreement; and Operating GP owns such general partner
interest free and clear of all liens, encumbrances, security interests or
claims
(except restrictions on transferability contained in the Operating Partnership
Agreement, as described in the Pricing Disclosure Package or created or arising
under the Delaware LP Act) (A) in respect of which a financing statement
under the Uniform Commercial Code of the State of Delaware naming Operating
GP
as debtor is on file with the Secretary of State of the State of Delaware
or
(B) otherwise known to such counsel, without independent investigation,
other than those created by or arising under the Delaware LP Act or the
Operating Partnership Agreement. The Partnership is the sole limited
partner of the Operating Partnership, with a 99.999% limited partner interest
in
the Operating Partnership; such limited partner interest has been duly and
validly authorized and issued in accordance with the Operating Partnership
Agreement and is fully paid (to the extent required under the Operating
Partnership Agreement) and non-assessable (except as such non-assessability
may
be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act);
and
the Partnership owns such limited partner interest free and clear of all
liens,
encumbrances, security interests or claims (except restrictions on
transferability contained in the Operating Partnership Agreement, as described
in the Pricing Disclosure Package or created or arising under the Delaware
LP
Act) (A) in respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware naming the Partnership as debtor
is on
file with the Secretary of State of the State of Delaware or (B) otherwise
known to such counsel, without independent investigation, other than those
created by or arising under the Delaware LP Act or the Operating Partnership
Agreement;
(h) The
Operating Partnership owns a 100% limited liability company interest in Gulf
Crossing; such limited liability company interest has been duly and validly
authorized and issued in accordance with the Gulf Crossing LLC Agreement
and is
fully paid (to the extent required under the Gulf Crossing LLC Agreement)
and
non-assessable (except as such non-assessability may be affected by Sections
18-607 and 18-804 of the Delaware LLC Act); and the Operating Partnership
owns
such limited liability company interest free and clear of all liens,
encumbrances, security interests or claims (except restrictions on
transferability contained in the Gulf Crossing LLC Agreement, as described
in
the Pricing Disclosure Package or created or arising under the Delaware LLC
Act)
(i) in respect of which a financing statement under the Uniform Commercial
Code of the State of Delaware naming the Operating Partnership as debtor
is on
file with the Secretary of State of the State of Delaware or (ii) otherwise
known to such counsel, without independent investigation, other than those
created by or arising under the Delaware LLC Act or the Gulf South GP LLC
Agreement;
(i) Except
as described in the Pricing Disclosure Package or provided for in the
Partnership Agreement, there are no preemptive rights or other rights to
subscribe for or to purchase, nor any restriction upon the voting or transfer
of, any limited partner interests in the Partnership pursuant to federal
or
Delaware law or any agreement or instrument known to such counsel to which
any
of the Partnership Entities is a party or by which any one of them may be
bound. Except as described in the Pricing Disclosure Package, to such
counsel’s knowledge, there are no outstanding options or warrants to purchase
(A) any Common Units, Subordinated Units or other interests in the
Partnership or (B) any interests in BGL, the General Partner, or the
Subsidiaries;
(j) Except
as described in the Pricing Disclosure Package, to such counsel’s knowledge,
there are no contracts, agreements or understandings between any Partnership
Party and any person granting such person the right to require the Partnership
to file a registration statement under the Securities Act with respect to
any
securities of the Partnership owned or to be owned by such person, or to
require
the Partnership to include such securities in any securities registered or
to be
registered pursuant to any registration statement filed by or required to
be
filed by the Partnership under the Securities Act.
(k) The
Underwriting Agreement has been duly and validly authorized, executed and
delivered by the Partnership Parties;
(l) The
Partnership Agreement has been duly and validly authorized, executed and
delivered by each Partnership Party party thereto. The Partnership
Agreement constitutes a valid and binding obligation of the Partnership Parties
party thereto, enforceable against each such Partnership Party in accordance
with its terms, subject to (i) applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws relating to or affecting
creditors’ rights generally and an implied covenant of good faith and fair
dealing, (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and (iii)
public policy considerations relating to rights to indemnification or
contribution.
(m) None
of the offering, issuance and sale by the Partnership of the Units, the
execution, delivery and performance of the Underwriting Agreement by the
Partnership Parties, or the consummation of the transactions contemplated
thereby (i) constitutes or will constitute a violation of the
Organizational Documents, (ii) constitutes or will constitute a breach or
violation of or a default under (or an event that, with notice or lapse of
time
or both, would constitute such a breach or violation of or default under),
any
agreement filed as an exhibit to the Registration Statement or as an exhibit
to
the Partnership’s Form 10-K for the year ended December 31, 2006 or any
subsequent reports filed under the Exchange Act by the Partnership or (iii)
violates or will violate any applicable law of the United States of America,
the
laws of the State of New York, the Delaware LP Act or the Delaware LLC Act,
excluding in the case of clauses (ii) and (iii) any such breaches,
violations and defaults that would not have a Material Adverse
Effect;
(n) Except
for the registration of the Units under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws in connection
with
the purchase and sale of the Units by the Underwriters, no Governmental Approval
is required for the execution, delivery and performance of the Underwriting
Agreement by the Partnership Parties, the consummation of the transactions
contemplated thereby and the application of the proceeds from the sale of
the
Units as described under the caption “Use of Proceeds” in each of the Pricing
Disclosure Package and the Prospectus, except for such Governmental Approvals
(i) as have been obtained or made or (ii) would not have a Material
Adverse Effect if not obtained or made;
(o) The
Registration Statement became effective under the Securities Act as of the
date
it was filed with the Commission, and the Prospectus was filed with the
Commission pursuant to subparagraph (2) of Rule 424(b) of the Rules and
Regulations on [________], 2007, no stop order suspending the effectiveness
of
the Registration Statement has been issued and, to such counsel’s knowledge, no
proceeding for that purpose is pending or threatened by the
Commission;
(p) Each
of (i) the Registration Statement, on the Effective Date, and (ii) the
Prospectus, as of its date and the date hereof, appear on their face to be
appropriately responsive, in all material respects, to the requirements of
the
Securities Act and the Securities Act Regulations (except that such counsel
express no statement or belief as to the Trustee statements of eligibility
on
Form T-1), except that such counsel need express no opinion with respect
to the
financial statements and the notes and financial schedules thereto and other
related financial, accounting and statistical data contained
therein;
(q) The
statements made in the Prospectus under the captions “How We Make Cash
Distributions,” “Conflicts of Interest and Fiduciary Duties,” “Description of
the Common Units,” and “The Partnership Agreement”, insofar as they purport to
summarize certain provisions of documents referred to therein or refer to
statements of law or legal conclusions, accurately summarize the matters
referred to therein in all material respects, subject to the qualifications
and
assumptions therein; and the Units, the Subordinated Units and the Incentive
Distribution Rights conform in all material respects to the descriptions
thereof
contained in the Prospectus under the captions “How We Make Cash Distributions,”
“Conflicts of Interest and Fiduciary Duties,” “Description of the Common Units”
and “The Partnership Agreement;”
(v) The
opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. that is filed as Exhibit 8.1 to the
Partnership’s Current Report on Form 8-K on November [__], 2007 and incorporated
by reference in the Registration Statement is confirmed and the Underwriters
may
rely upon such opinion as if it were addressed to them; and
(w) The
Partnership is not, and after giving effect to the application of the net
proceeds from the offering as described under the caption “Use of Proceeds” in
each of the Pricing Disclosure Package and the Prospectus, the Partnership
will
not be, an “investment company” as defined in the Investment Company
Act.
In
rendering such opinion, such counsel may state that its opinion is limited
to
matters governed by the federal laws of the United States of America, the
laws
of the State of New York, the Delaware LP Act and the Delaware LLC
Act. Such counsel need not express any opinion with respect to the
title of any of the Partnership Entities to any of their respective real
or
personal property or the accuracy of the descriptions or references in the
Registration Statement or the Organizational Documents to any real or personal
property, and need not express any opinion with respect to state or local
taxes
or tax statutes to which any of the limited partners of the Partnership or
any
of the Partnership Entities may be subject.
Such
counsel has participated in conferences with officers and other representatives
of the Partnership Parties and the independent public accountants of the
Partnership and the Underwriters’ representatives, at which the contents of the
Registration Statement, the Prospectus and the Pricing Disclosure Package
and
related matters were discussed, and although such counsel did not independently
investigate or verify the information set forth in the Registration Statement
or
the Prospectus, and such counsel is not passing upon and does not assume
any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus (except to the
extent
specified in paragraph (w) above), based on the foregoing (relying as to
factual
matters in respect of the determination of materiality to the extent such
counsel deems reasonable and appropriate upon the statements of fact made
by
officers and other representatives of the Partnership Parties), no facts
have
come to such counsel’s attention that have led such counsel to believe
that:
(a) the
Registration Statement, as of the Effective Time, contained any untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading;
(b) the
Prospectus, as of its date and as of the Delivery Date, contained or contains
any untrue statement of a material fact or omitted or omits to state any
material fact necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading; or
(c) the
Pricing Disclosure Package, as of the Applicable Time, contained any untrue
statement of a material fact or omitted to state any material fact necessary
in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading,
except
that in each case such counsel need express no opinion with respect to the
financial statements and notes and schedules thereto or other related financial
and accounting data contained in, incorporated by reference into or omitted
from
the Registration Statement, the Pricing Disclosure Package or the Prospectus,
any further amendment or supplement thereto or the exhibits to the Registration
Statement.
“applicable
law” means mean those laws, rules and regulations that, in such counsel’s
experience, are normally applicable to transactions of the type contemplated
by
the Underwriting Agreement, without such counsel’s having made any special
investigation as to the applicability of any specific law, rule or regulation,
and that are not the subject of a specific opinion herein referring expressly
to
a particular law or laws; provided, however, that such references do
not include any municipal or other local laws, rules or regulations, or any
antifraud, environmental, labor, state securities or blue sky, tax, insurance
or
antitrust, laws, rules or regulations, the Natural Gas Act, as amended, or
the
rules and regulations promulgated thereunder by the Federal Energy Regulatory
Commission, or the rules and regulations of the National Association of
Securities Dealers, Inc.
“Governmental
Approval” means any consent, approval, license, authorization or validation of,
or filing, recording or registration with, any executive, legislative, judicial,
administrative or regulatory authority of the State of New York, the State
of
Delaware or the United States of America, pursuant to (a) applicable laws
of the State of New York, (b) applicable laws of the United States of America,
(c) the Delaware LP Act or (d) the Delaware LLC Act.
B-
EXHIBIT
C
FORM
OF OPINION OF IN-HOUSE COUNSEL
(a) Except
as described in the Pricing Disclosure Package, there are no legal or
governmental proceedings pending to which any Partnership Entity is a party
or
to which any property or asset of any Partnership Entity is subject that
could
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect or an adverse effect on the performance of the Underwriting
Agreement by the Partnership Parties or the consummation of the transactions
contemplated thereby, and, to such counsel’s knowledge, no such proceedings are
threatened or contemplated by governmental authorities or others; and to
such
counsel’s knowledge, there are no statutes or pending or threatened legal or
governmental proceedings required to be described in the Pricing Disclosure
Package that are not so described;
(b) The
statements made in the Partnership’s annual report on Form 10-K for the year
ended December 31, 2006 under the captions “Business—Our Business—Government
Regulation,” insofar as they purport to summarize certain provisions of
documents referred to therein or refer to statements of law or legal
conclusions, fairly summarize the matters referred to therein in all material
respects, subject to the qualifications and assumptions therein;
(c) None
of the offering, issuance and sale by the Partnership of the Units and the
application of the proceeds therefrom as described under the caption “Use of
Proceeds” in the Pricing Disclosure Package and the Prospectus, the execution,
delivery and performance of the Underwriting Agreement by the Partnership
Parties, or the consummation of the transactions contemplated thereby violates
or will violate the Natural Gas Act, as amended, and the rules and regulations
promulgated thereunder by the Federal Energy Regulatory Commission;
and
(d) To
such counsel’s knowledge, there are no contracts or other documents that are
required to be described in the Pricing Disclosure Package and the Prospectus
or
filed as exhibits to the Registration Statement by the Securities Act or
the
Rules and Regulations, or that are required to be filed as exhibits to the
Registration Statement by the Exchange Act or the rules and regulations
promulgated thereunder, that have not been so described in the Pricing
Disclosure Package and the Prospectus or filed as exhibits to the Registration
Statement.
Such
counsel has participated in
conferences with officers and other representatives of the Partnership Parties,
representatives of the independent registered public accounting firm of the
Partnership and the Underwriters’ representatives, at which the contents of the
Registration Statement, the Prospectus and the Pricing Disclosure Package
and
related matters were discussed, and although such counsel did not independently
investigate or verify the information set forth in the Registration Statement,
the Prospectus or the Pricing Disclosure Package, and such counsel is not
passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the Prospectus and the Pricing Disclosure Package (except to the
extent specified in paragraphs (b) and (d) above), based on the foregoing
(relying as to factual matters in respect of the determination of materiality
to
the extent such counsel deems reasonable and appropriate upon the statements
of
fact made by officers and other representatives of the Partnership Parties),
no
facts have come to such counsel’s attention that have led such counsel to
believe that:
(a) the
Registration Statement, as of the Effective Date, contained any untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading;
(b) the
Prospectus, as of its date and as of the Delivery Date, contained or contains
any untrue statement of a material fact or omitted or omits to state any
material fact necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading; or
(c) the
Pricing Disclosure Package, as of the Applicable Time, contained any untrue
statement of a material fact or omitted to state any material fact necessary
in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading,
except
that in each case such counsel need express no opinion with respect to the
financial statements and notes and schedules thereto or other related financial,
accounting and statistical data contained in, incorporated by reference into
or
omitted from the Registration Statement, the Pricing Disclosure Package or
the
Prospectus, any further amendment or supplement thereto or the exhibits to
the
Registration Statement.
C-