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EXHIBIT 1.1
▇▇▇▇▇▇▇▇ ENERGY PARTNERS L.P.
3,750,000 COMMON UNITS
REPRESENTING LIMITED PARTNER INTERESTS
FORM OF UNDERWRITING AGREEMENT
, 2001
▇▇▇▇▇▇ Brothers Inc.
Banc of America Securities LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
UBS Warburg LLC
As the Representatives of the several
Underwriters named in Schedule 1
c/▇ ▇▇▇▇▇▇ Brothers Inc.
Three World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
▇▇▇▇▇▇▇▇ Energy Partners L.P., a Delaware limited partnership (the
"PARTNERSHIP"), proposes to issue and sell to the several Underwriters named in
Schedule 1 hereto (the "UNDERWRITERS") 3,600,000 common units (the "FIRM UNITS")
representing limited partner interests in the Partnership (the "COMMON UNITS").
▇▇▇▇▇▇ Brothers Inc., Banc of America Securities LLC, ▇▇▇▇ ▇▇▇▇▇▇▇▇
Incorporated, ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., and UBS Warburg LLC shall act as
representatives (the "REPRESENTATIVES") of the several Underwriters.
In addition, the Partnership proposes to grant to the Underwriters an
option to purchase up to an additional 540,000 Common Units on the terms and for
the purposes set forth in Section 2 (the "OPTION UNITS"). The Firm Units and the
Option Units, if purchased, are hereinafter collectively called the "UNITS."
Capitalized terms used but not defined herein shall have the same meanings given
them in the Partnership Agreement or the Prospectus (each as defined herein).
It is understood and agreed to by all parties that the Partnership was
formed to acquire, own and operate the ammonia pipeline and terminalling system
assets and business and certain of the marine and inland petroleum product
terminal assets and business held by various subsidiaries of The ▇▇▇▇▇▇▇▇
Companies, Inc., a Delaware corporation ("▇▇▇▇▇▇▇▇"), as described more
particularly in the Prospectus. ▇▇▇▇▇▇▇▇ ▇▇ LLC, a Delaware limited liability
company, will serve as the general partner (the "GENERAL PARTNER") of both the
Partnership and ▇▇▇▇▇▇▇▇ OLP L.P., a Delaware limited partnership (the
"OPERATING PARTNERSHIP"). ▇▇▇▇▇▇▇▇ Energy Services, LLC, a Delaware limited
liability company and a direct wholly owned subsidiary of ▇▇▇▇▇▇▇▇ ("▇▇▇") and
▇▇▇▇▇▇▇▇ Natural Gas Liquids, Inc., a Delaware
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corporation and a direct wholly owned subsidiary of ▇▇▇▇▇▇▇▇ ("WNGL") will serve
as the sole members of the General Partner and will be limited partners of the
Partnership.
Prior to the date hereof, the following transactions occurred:
(a) ▇▇▇ formed the General Partner to which it contributed $1,000 each
in exchange for all of the member interests in the General Partner.
(b) ▇▇▇ and the General Partner formed the Partnership to which ▇▇▇ and
the General Partner contributed $990 and $10, respectively, in exchange for a
99% limited partner and 1% general partner interest in the Partnership,
respectively.
(c) The General Partner and the Partnership formed the Operating
Partnership to which the General Partner and the Partnership contributed $10.10
and $989.90, respectively, in exchange for a 1.0101% general partner and
98.9899% limited partner interest in the Operating Partnership, respectively.
(d) ▇▇▇▇▇▇▇▇ Energy Ventures, Inc. ("WEV") formed ▇▇▇▇▇▇▇▇ Bio-Energy,
L.L.C., a Delaware limited liability company ("WBE") to which it contributed
$1,000 in exchange for all of the member interests in WBE.
(e) WNGL formed ▇▇▇▇▇▇▇▇ NGL LLC, a Delaware limited liability company
(the "WNGL LLC") to which it contributed $1,000 in exchange for all of the
member interests of WNGL LLC.
The transactions described in clauses (a) - (e) above are referred to
herein collectively as the "PRIOR TRANSACTIONS."
In addition, prior to or as of the date hereof, the Operating
Partnership will enter into a bank credit agreement providing for a $75 million
term loan and a $75 million revolving credit facility (the "BANK CREDIT
AGREEMENT").
On the First Delivery Date (as defined in Section 4), [▇▇▇▇▇▇▇▇, ▇▇▇,
WNGL, the General Partner, the Partnership and the Operating Partnership] will
enter into a Contribution [, Conveyance] and Assumption Agreement (the
"CONTRIBUTION AGREEMENT") pursuant to which the following transactions will
occur on the First Delivery Date, unless otherwise noted:
(a) ▇▇▇▇▇▇▇▇ will cancel the debt in excess of $167 million owed to it
by ▇▇▇▇▇▇▇▇ Terminals Holdings, L.L.C., a [Delaware] limited liability company
("WTH LLC") and ▇▇▇▇▇▇▇▇ Ammonia Pipeline, Inc., a [Delaware] corporation
("WAPI").
(b) ▇▇▇ will contribute 1% of the stock of WEV to the General Partner
as a capital contribution and WEV will convert into ▇▇▇▇▇▇▇▇ Terminals Holding,
L.P., a Delaware limited partnership ("WTH LP"), with the General Partner owning
a 1% general partner interest and ▇▇▇ owning a 99% limited partner interest.
(c) WTH LP will contribute certain of its assets to WBE, and WBE will
assume all of the liabilities associated with these assets.
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(d) WTH LP will distribute its interest in WBE pro rata to ▇▇▇ and the
General Partner, and the General Partner will distribute its interest in WBE to
▇▇▇.
(e) WNGL will contribute .001% of the stock of WAPI to WNGL LLC, and
WAPI will convert from a [Delaware] corporation to a Delaware limited
partnership to be named ▇▇▇▇▇▇▇▇ Ammonia Pipeline, L.P. ("WAP LP") with WNGL LLC
owning a .001% general partner interest and WNGL owning a 99.999% limited
partner interest.
(f) WNGL will contribute all of its interest in WNGL LLC and an __%
limited partner interest in WAP LP to the General Partner in exchange for an __%
interest in the General Partner.
(g) ▇▇▇ will contribute an __% interest in WTH LP to the General
Partner in exchange for an additional __% interest in the General Partner.
(h) WNGL will contribute the remainder of its limited partner interests
in WAP LP to the Operating Partnership; ▇▇▇ will contribute the remainder of its
interest in WTH LP, and the General Partner will contribute (i) a portion of its
interests in WAP LP and WTH LP and (ii) its interest in WNGL LLC to the
Operating Partnership in exchange for (i) an ___% limited partner interest in
the Operating Partnership, (ii) an ___% limited partner interest in the
Operating Partnership and (iii) a 1.0101% general partner interest in the
Operating Partnership, respectively.
(i) The Operating Partnership will contribute a .001% limited partner
interest in WTH LP to WNGL LLC as a capital contribution, which interest will
become a general partner interest in WTH LP.
(j) The Operating Partnership will borrow $90.1 million under the Bank
Credit Agreement.
(k) The public offering of the Firm Units contemplated hereby will be
consummated.
(l) The General Partner will contribute the remainder of its interest
in WAP LP and in WTH LP to the Partnership in exchange for a 1% general partner
interest in the Partnership; and WNGL and ▇▇▇ will contribute their remaining
limited partner interests in the Operating Partnership to the Partnership in
exchange for 1,931,002 Common Units and 5,681,002 units representing
subordinated limited partner interests in the Partnership ("SUBORDINATED
UNITS").
(m) The Partnership will contribute the net proceeds of the public
offering of the Firm Units and its interests in WAP LP and WTH LP to the
Operating Partnership as an additional capital contribution.
(n) The Operating Partnership will use the cash (i) to pay costs of the
public offering of the Firm Units and related transactions of approximately $8.6
million, and (ii) to make a contribution of approximately $___ million to WTH LP
which, in turn, will be contributed by WTH LP to WTH LLC, which will use such
funds to retire approximately $156.5 million of indebtedness owed to ▇▇▇▇▇▇▇▇.
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(o) WTH LP will distribute its interest in each of WPH LLC and WTH LLC
to the Operating Partnership which, in turn, will contribute a .001% interest in
each of WPH LLC and WTH LLC to WNGL LLC.
(p) ▇▇▇▇▇▇▇▇ Pipelines Holdings, L.L.C. ("WPH LLC") will convert from a
Delaware limited liability company into a Delaware limited partnership to be
named ▇▇▇▇▇▇▇▇ Pipelines Holdings L.P. ("WPH LP") with WNGL LLC as the general
partner and the Operating Partnership as a limited partner.
(q) WTH LLC will merge with and into WTH LP.
(r) If the Underwriters exercise their option to purchase any Option
Units within 30 days after the First Delivery Date as provided in Section 4, the
Partnership will contribute the net proceeds therefrom to the Operating
Partnership which, in turn, will contribute such net proceeds to WTH LP, which
will use such funds to retire up to an additional [$10.5 million] of
indebtedness owed to ▇▇▇▇▇▇▇▇. To the extent the Underwriters do not purchase
all of the Option Units, [▇▇▇ / WNGL] will purchase the unsold Option Units (the
"SPONSOR OPTION UNITS") at the same price at which the Firm Units and Option
Units are offered to the public. The Partnership will contribute the net
proceeds in same manner described in the two previous sentences, and WTH LP will
use such proceeds to retire the remaining indebtedness owed to ▇▇▇▇▇▇▇▇.
Each of WEV and WAPI is referred to herein, individually as a
"PREDECESSOR" and, collectively, as the "PREDECESSORS." Each of WNGL LLC, WTH
LP, WPH LP and WAP LP is referred to herein, individually as a "SUBSIDIARY" and,
collectively, as the "SUBSIDIARIES."
The merger described in clause (q) above is referred to herein as the
"MERGER." The conversions described in clauses (b) and (p) above are referred to
herein as the "CONVERSIONS." In connection with the consummation of the Merger
and the Conversions, the Predecessors and certain of the Subsidiaries entered
into merger agreements, articles and certificates of merger, articles and
certificates of conversion and related documents (the "MERGER AND CONVERSION
DOCUMENTS"). The transactions described above in clauses (a)-(r) are referred to
as the "SUBSEQUENT TRANSACTIONS" and, together with the Prior Transactions, are
referred to as the "TRANSACTIONS." [In connection with the Subsequent
Transactions, the parties to the Subsequent Transactions entered into various
bills of sale, assignments, conveyances, contribution agreements and related
documents (the "CONVEYANCES" and, collectively with the Contribution Agreement
and the Merger and Conversion Documents, the "MERGER, CONVERSION AND
CONTRIBUTION DOCUMENTS").
The Partnership, the General Partner, the Operating Partnership and the
Subsidiaries are sometimes referred to herein collectively as the "PARTNERSHIP
ENTITIES." ▇▇▇, WNGL, the General Partner, the Partnership and the Operating
Partnership are sometimes referred to herein collectively as the "▇▇▇▇▇▇▇▇
PARTIES". The ▇▇▇▇▇▇▇▇ Parties and the Predecessors are sometimes referred to
herein collectively as the "▇▇▇▇▇▇▇▇ ENTITIES."
This is to confirm the agreement concerning the purchase of the Firm
Units and the Option Units from the Partnership by the Underwriters.
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Section 1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE ▇▇▇▇▇▇▇▇
PARTIES.
The ▇▇▇▇▇▇▇▇ Parties jointly and severally represent, warrant and agree
that:
(a) A registration statement on Form S-1 (File No. 333-48866) with
respect to the Units has (i) 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) been
filed with the Commission under the Securities Act and (iii) become effective
under the Securities Act. The registration statement contains a prospectus, to
be used in connection with the offering and sale of Units in the United States
and to persons in the United States. Copies of such registration statement and
each of the amendments thereto have been delivered by the Partnership to you as
the Underwriters. As used in this Agreement, "EFFECTIVE TIME" means the date and
the time as of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission; "EFFECTIVE DATE" means the date of the Effective Time; "PRELIMINARY
PROSPECTUS" means each prospectus included in such registration statement, or
amendments thereof, before it became effective under the Securities Act and any
prospectus filed with the Commission by the Partnership with the consent of the
Representatives pursuant to Rule 424(a) of the Rules and Regulations;
"REGISTRATION STATEMENT" means such registration statement, as amended at the
Effective Time, including all information contained in the final prospectus
filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations
and deemed to be a part of the registration statement as of the Effective Time
pursuant to Rule 430A of the Rules and Regulations; and "PROSPECTUS" means the
prospectus in the form first used to confirm sales of Units. If the Partnership
has filed an abbreviated registration statement to register additional Common
Units pursuant to Rule 462(b) under the Securities Act (the "RULE 462
REGISTRATION STATEMENT"), then any reference herein to the term "REGISTRATION
STATEMENT" shall be deemed to include such Rule 462 Registration Statement. The
Commission has not issued any order preventing or suspending the use of any
Preliminary Prospectus.
(b) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the Commission, as
the case may be, conform in all respects to the requirements of the Securities
Act and the Rules and Regulations and do not and will not, as of the applicable
effective date (as to the Registration Statement and any amendment thereto) and
as of the applicable filing date (as to the Prospectus and any amendment or
supplement thereto) 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 or the Prospectus in reliance upon and in conformity with written
information furnished to the Partnership through the Representatives by or on
behalf of any Underwriter specifically for inclusion therein; and each of the
statements made by the Partnership in the Registration Statement, and to be made
in the Prospectus and any further amendments or supplements to the Registration
Statement or Prospectus within the coverage of Rule 175(b) of the rules and
regulations under the Act, including (but not limited to) any statements with
respect to future available cash or future cash distributions of the Partnership
or the anticipated ratio of taxable income to distributions was made or will be
made with a reasonable basis and in good faith.
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(c) Each of the Partnership, the Operating Partnership, WTH LP, WPH LP
and WAP LP has been duly formed and is validly existing in good standing as a
limited partnership under the Delaware Revised Uniform Limited Partnership Act
(the "DELAWARE LP ACT"), has full partnership power and authority necessary to
own or hold its properties and assets and to conduct the businesses in which it
is engaged, and is, or at each Delivery Date will be, duly registered or
qualified to do business as a foreign limited partnership in each jurisdiction
in which ownership or lease of property or the conduct of business requires such
qualification, except where the failure to so register or qualify would not (i)
have a material adverse effect on the condition (financial or other), business,
prospects, properties, net worth or results of operations of the Partnership and
the Operating Partnership, taken as a whole, or (ii) subject the limited
partners of the Partnership to any material liability or disability.
(d) Each of the General Partner, WNGL LLC and ▇▇▇ has been duly formed
and is validly existing in good standing as a limited liability company under
the Delaware Limited Liability Company Act (the "DELAWARE LLC ACT"), has full
limited liability company power and authority necessary to own or hold its
properties and to conduct the businesses in which it is engaged, and is, or at
each Delivery Date will be, duly registered or qualified to do business as a
foreign limited liability company in each jurisdiction in which ownership or
lease of property or the conduct of business requires such qualification, except
where the failure to so register or qualify would not (i) have a material
adverse effect on the condition (financial or other), business, prospects,
properties, net worth or results of operations of the Partnership and the
Operating Partnership, taken as a whole, or (ii) subject the limited partners of
the Partnership to any material liability or disability.
(e) Each of ▇▇▇▇▇▇▇▇ and WNGL has been duly incorporated and is validly
existing as a corporation in good standing under the Delaware General
Corporation Law of the State of Delaware ("DGCL"), has full corporate all power
and authority necessary to own or hold its properties and to conduct the
businesses in which it is engaged, and is, or at each Delivery Date will be,
duly qualified to do business as a foreign corporation in each jurisdiction in
which its ownership or lease of property or the conduct of its businesses
requires such qualification, except where the failure to so register or qualify
would not (i) have a material adverse effect on the condition (financial or
other), business, prospects, properties, net worth or results of operations of
the Partnership and the Operating Partnership, taken as a whole, or (ii) subject
the limited partners of the Partnership to any material liability or disability.
(f) The Operating Partnership and Subsidiaries constitute all of the
subsidiaries of the Partnership; and none of these entities, other than the
Operating Partnership, WTH LP and WAP LP is a "SIGNIFICANT SUBSIDIARY" as such
term is defined in Rule 405 of the Rules and Regulations.
(g) On each Delivery Date, after giving effect to the Transactions, the
General Partner will be the sole general partner of the Partnership with a 1.0%
general partner interest in the Partnership; such general partner interest will
be duly and validly authorized and issued in accordance with the Agreement of
Limited Partnership of the Partnership (as the same may be
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amended and restated on or prior to the First Delivery Date, the "PARTNERSHIP
AGREEMENT"); and the General Partner will own such general partner interest free
and clear of all liens, encumbrances, security interests, equities, charges or
claims.
(h) On the First Delivery Date, after giving effect to the
Transactions, ▇▇▇ and WNGL will own, in the aggregate, 2,079,694 Common Units
and 5,679,694 Subordinated Units (collectively, with any Sponsor Option Units,
the "SPONSOR UNITS") and the General Partner will own all of the Incentive
Distribution Rights (as defined in the Partnership Agreement); all of such
Sponsor Units, the limited partner interests represented thereby and the
Incentive Distribution Rights will be duly authorized and validly issued in
accordance with the Partnership Agreement, and will be fully paid (to the extent
required under the Partnership Agreement) and nonassessable (except as such
nonassessability may be affected by matters described in the Prospectus under
the caption "The Partnership Agreement--Limited Liability"); and ▇▇▇ and WNGL
will own such Sponsor Units, and the General Partner will own such Incentive
Distribution Rights, in each case, free and clear of all liens, encumbrances,
security interests, equities, charges or claims.
(i) The Units to be issued and sold by the Partnership to the
Underwriters hereunder have been duly authorized and, when issued and delivered
against payment therefor in accordance with this Agreement will be validly
issued, fully paid (to the extent required under the Partnership Agreement) and
non-assessable (except as such nonassessability may be affected by matters
described in the Prospectus under the caption "The Partnership
Agreement--Limited Liability"); the Partnership has an authorized capitalization
as set forth in the Prospectus; the Common Units, when issued and delivered
against payment therefor as provided herein, the Subordinated Units and the
Incentive Distribution Rights, when issued and delivered in accordance with the
terms of the Partnership Agreement, will conform to the descriptions thereof
contained in the Prospectus; and other than the Sponsor Units owned by ▇▇▇ and
WNGL and the Incentive Distribution Rights owned by the General Partner, the
Units will be the only limited partner interests of the Partnership issued and
outstanding at each Delivery Date.
(j) On each Delivery Date, after giving effect to the Transactions, the
General Partner will be the sole general partner of the Operating Partnership
with a 1.0101% general partner interest in the Operating Partnership; such
general partner interest will be duly authorized and validly 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 First
Delivery Date, the "OPERATING PARTNERSHIP AGREEMENT"); and the General Partner
will own such general partner interest free and clear of all liens,
encumbrances, security interests, equities, charges or claims.
(k) On each Delivery Date, after giving effect to the Transactions, the
Partnership will be the sole limited partner of the Operating Partnership with a
98.9899% limited partner interest in the Operating Partnership; such limited
partner interest will have been duly authorized and validly issued in accordance
with the Operating Partnership Agreement and will be fully paid (to the extent
required under the Operating Partnership Agreement) and nonassessable (except as
such nonassessability may be affected by matters described in the Prospectus
under the caption "The Partnership Agreement--Limited Liability"); and the
Partnership will own such limited partner interest free and clear of all liens,
encumbrances, security interests, equities, charges or claims, security
interests, equities, charges or claims.
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(l) On each Delivery Date, after giving effect to the Transactions, the
Operating Partnership will own a 100% member interest in WNGL LLC; such member
interest will be duly authorized and validly issued in accordance with the
limited liability company agreement of WNGL LLC (the "WNGL LLC AGREEMENT"), and
will be fully paid (to the extent required under the WNGL LLC Agreement) and
nonassessable (except as such nonassessability may be affected by Section 18-607
of the Delaware LLC Act); and the Operating Partnership will own such member
interest free and clear of all liens, encumbrances, security interests,
equities, charges or claims.
(m) On each Delivery Date, after giving effect to the Transactions,
WNGL LLC will be the sole general partner of each of WTH LP, WPH LP and WAP LP
(the "LP SUBSIDIARIES") with a .001% general partner interest in each of the LP
Subsidiaries; such general partner interests will be duly authorized and validly
issued in accordance with each of the respective partnership agreements of each
of the LP Subsidiaries (as each may be amended and restated at or prior to the
First Delivery Date, the "LP SUBSIDIARY PARTNERSHIP AGREEMENTS"); and WNGL LLC
will own such general partner interests free and clear of all liens,
encumbrances, security interests, equities, charges or claims.
(n) On each Delivery Date, after giving effect to the Transactions, the
Operating Partnership will be the sole limited partner of each of the LP
Subsidiaries with a 99.999% limited partner interest in each of the LP
Subsidiaries; such limited partner interests will have been duly authorized and
validly issued in accordance with each of the respective LP Subsidiary
Partnership Agreements and will be fully paid (to the extent required under each
of the LP Subsidiary Partnership Agreements and the Delaware LP Act) and
nonassessable (except as such nonassessability may be affected by Section 17-607
of the Delaware LP Act); and the Operating Partnership will own such limited
partner interests free and clear of all liens, encumbrances, security interests,
equities, charges or claims.
(o) On each Delivery Date, after giving effect to the Transactions, ▇▇▇
will own a 80.8% member interest in the General Partner and WNGL will own a
19.2% member interest in the General Partner; such member interests will have
been duly authorized and validly issued in accordance with the limited liability
agreement of the General Partner (as the same may be amended or restated at or
prior to the First Delivery Date, the "GP LLC AGREEMENT"), and will be fully
paid (to the extent required under the GP LLC Agreement) and nonassessable
(except as such nonassessability may be affected by Section 18-607 of the
Delaware LLC Act); and ▇▇▇ and WNGL will own such member interests are owned
free and clear of all liens, encumbrances, security interests, equities, charges
or claims.
(p) ▇▇▇▇▇▇▇▇ owns all of the outstanding capital stock of each of ▇▇▇
and WNGL; all of such capital stock has been duly and validly authorized and
issued and is fully paid and nonassessable; and such capital stock is owned free
and clear of all liens, encumbrances, security interests, equities, charges or
claims.
(q) Except as described in the Prospectus, there are no preemptive
rights or other rights to subscribe for or to purchase, nor any restriction upon
the voting or transfer of, (i) any limited partner interests in the Partnership
or the Operating Partnership, (ii) any member interests in the General Partner
or WNGL LLC or (iii) any partner interests in any LP Subsidiary, in each
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case pursuant to the Partnership Agreement, the Operating Partnership Agreement,
the GP LLC Agreement, the WNGL LLC Agreement or the LP Subsidiary Partnership
Agreements, each as amended or restated at or prior to the First Time of
Delivery (collectively, the "ORGANIZATIONAL DOCUMENTS") or any other agreement
or instrument to which any of such entities is a party or by which any one of
them may be bound. Except as described in the Prospectus, there are no
outstanding options or warrants to purchase (A) any Common Units or Subordinated
Units or other interests in the Partnership or the Operating Partnership or (B)
any interests in the General Partner, WNGL LLC or the LP Subsidiaries.
(r) The Partnership has all requisite power and authority to issue,
sell and deliver (i) the Units, in accordance with and upon the terms and
conditions set forth in this Agreement, the Partnership Agreement and the
Registration Statement and the Prospectus and (ii) the Sponsor Units and the
Incentive Distribution Rights, in accordance with and upon the terms and
conditions set forth in the Partnership Agreement. On each Delivery Date, all
corporate, partnership and limited liability company action, as the case may be,
required to be taken by the ▇▇▇▇▇▇▇▇ Entities or any of their stockholders,
members or partners for the authorization, issuance, sale and delivery of the
Units, the Sponsor Units and the Incentive Distribution Rights, the execution
and delivery by the ▇▇▇▇▇▇▇▇ Entities of the Operative Agreements (as defined in
Section 1(u)) and the consummation of the transactions (including the
Transactions) contemplated by this Agreement and the Operative Agreements, shall
have been validly taken.
(s) This Agreement has been duly authorized, executed and delivered by
each of the ▇▇▇▇▇▇▇▇ Parties, and constitutes the valid and legally binding
agreement of each of the ▇▇▇▇▇▇▇▇ Parties, enforceable against each of the
▇▇▇▇▇▇▇▇ Parties in accordance with its terms; provided that the enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws relating to or affecting creditors'
rights generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and except as
rights to indemnity and contribution hereunder may be limited by federal or
state securities laws.
(t) Prior to or as of the date hereof the Bank Credit Agreement will
have been duly authorized, executed and delivered by the Operating Partnership
and will be a valid and legally binding agreement of the Operating Partnership
enforceable against the Operating Partnership in accordance with its terms.
(u) On or before the First Delivery Date:
(i) The Partnership Agreement will have been duly authorized,
executed and delivered by the General Partner and the organizational
limited partner named therein (the "ORGANIZATIONAL LIMITED PARTNER")
and will be a valid and legally binding agreement of the General
Partner and the Organizational Limited Partner, enforceable against the
General Partner and the Organizational Limited Partner in accordance
with its terms;
(ii) The Merger, Conversion and Contribution Documents will
have been duly authorized, executed and delivered by each of the
▇▇▇▇▇▇▇▇ Entities party thereto, and
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will be valid and legally binding agreements of each of the ▇▇▇▇▇▇▇▇
Entities parties thereto, enforceable against such parties in
accordance with their respective terms;
(iii) The Operating Partnership Agreement will have been duly
authorized, executed and delivered by the General Partner and the
Partnership and will be a valid and legally binding agreement of the
General Partner and the Partnership, enforceable against the General
Partner and the Partnership in accordance with its terms;
(iv) The GP LLC Agreement will have been duly authorized,
executed and delivered by ▇▇▇ and WNGL, and will be a valid and legally
binding agreement of ▇▇▇ and WNGL, enforceable against each of them in
accordance with its terms;
(v) The WNGL LLC Agreement will have been duly authorized,
executed and delivered by the Operating Partnership, and will be a
valid and legally binding agreement of the Operating Partnership,
enforceable against the Operating Partnership in accordance with its
terms;
(vi) Each of the LP Subsidiary Partnership Agreements will
have been duly authorized, executed and delivered by the Operating
Partnership and WNGL LLC and will be a valid and legally binding
agreement of Operating Partnership and WNGL LLC, enforceable against
each of them in accordance with their terms;
(vii) An omnibus agreement (the "OMNIBUS AGREEMENT") will have
been duly authorized, executed and delivered by each of ▇▇▇▇▇▇▇▇, ▇▇▇,
WNGL, ▇▇▇▇▇▇▇▇ Pipe Line Company, ▇▇▇▇▇▇▇▇ Information Systems
Corporation, the General Partner, the Partnership and the Operating
Partnership and will be a valid and legally binding agreement of each
of them enforceable against each of them in accordance with its terms;
(viii) [A services agreement (the "PIPELINE SERVICES
AGREEMENT") will have been duly executed and delivered by each of [the
Partnership] and [ ] and will be a valid and legally binding agreement
of each of them enforceable against each of them in accordance with its
terms;]
provided that, with respect to the Bank Credit Agreement described in Section
1(t) and each agreement described in this Section 1(u), the enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws relating to or affecting creditors'
rights generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and provided,
further, that the indemnity, contribution and exoneration provisions contained
in any of such agreements may be limited by applicable laws and public policy.
The Organizational Documents, the Bank Credit Agreement, the Merger, Conversion
and Contribution Documents, the Omnibus Agreement [and the Pipeline Services
Agreement] are herein collectively referred to as the "OPERATIVE AGREEMENTS."
(v) Prior to or on the First Delivery Date, the Merger and the
Conversions will become effective under the laws of the State of Delaware.
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(w) None of the offering, issuance and sale by the Partnership of the
Units, the execution, delivery and performance of this Agreement or the
Operative Agreements by the ▇▇▇▇▇▇▇▇ Entities which are parties thereto, or the
consummation of the transactions contemplated hereby and thereby (including the
Transactions) (i) conflicts or will conflict with or constitutes or will
constitute a violation of the agreement of limited partnership, limited
liability company agreement, certificate or articles of incorporation or bylaws
or other organizational documents of any of the ▇▇▇▇▇▇▇▇ Entities, (ii)
conflicts or will conflict with or constitutes or will constitute a breach or
violation of, or a default under (or an event which, with notice or lapse of
time or both, would constitute such an event), any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which any of
the ▇▇▇▇▇▇▇▇ Entities is a party or by which any of them or any of their
respective properties may be bound, (iii) violates or will violate any statute,
law or regulation or any order, judgment, decree or injunction of any court or
governmental agency or body directed to any of the ▇▇▇▇▇▇▇▇ Entities or any of
their properties in a proceeding to which any of them or other property is a
party or (iv) will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of any of the ▇▇▇▇▇▇▇▇ Entities, in the
case of clauses (ii), (iii) or (iv), which conflicts, breaches, violations or
defaults would have a material adverse effect upon the condition (financial or
other), business, prospects, properties, net worth or results of operations of
the ▇▇▇▇▇▇▇▇ Parties, taken as a whole.
(x) Except as described in the Prospectus, there are no contracts,
agreements or understandings between the any of the ▇▇▇▇▇▇▇▇ Entities 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 Entities owned or to be owned by such person or to require
the Partnership to include such securities in the Units registered pursuant to
the Registration Statement or in any securities being registered pursuant to any
other registration statement filed by any of the Partnership Entities under the
Securities Act.
(y) None of the Partnership Entities has sustained, since the date of
the latest audited financial statements included in the Prospectus, any material
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since such date, there has not been any
change in the capitalization or long-term debt of any of the Partnership
Entities or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, consolidated financial position, partners' capital, members' equity,
results of operations, business or prospects of any of the Partnership Entities,
otherwise than as set forth or contemplated in the Prospectus.
(z) At September 30, 2000, the Partnership would have had, on the
consolidated pro forma basis indicated in the Prospectus (and any amendment or
supplement thereto), a capitalization as set forth therein. The historical
financial statements (including the related notes and supporting schedules)
included in the Registration Statement, the Preliminary Prospectus dated January
__, 2001, and the Prospectus (and any amendment or supplement thereto) 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 have been prepared in accordance with generally
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accepted accounting principles consistently applied throughout the periods
involved. The selected historical and pro forma information set forth in the
Registration Statement, the Preliminary Prospectus dated January __, 2001, and
the Prospectus (and any amendment or supplement thereto) under the caption
"Selected Historical and Pro Forma Financial and Operating Data" is accurately
presented in all material respects and prepared on a basis consistent with the
audited and unaudited historical consolidated financial statements and pro forma
financial statements from which it has been derived. The pro forma financial
statements of the Partnership included in the Registration Statement, the
Preliminary Prospectus dated January __, 2001, and the Prospectus (and any
amendment or supplement thereto) have been prepared in all material respects in
accordance with the applicable accounting requirements of Article 11 of
Regulation S-X of the Commission; the assumptions used in the preparation of
such pro forma financial statements are, in the opinion of the management of the
Partnership Entities, reasonable; and the pro forma adjustments reflected in
such pro forma financial statements have been properly applied to the historical
amounts in compilation of such pro forma financial statements.
(aa) Ernst & Young, who have certified certain financial statements of
the Partnership, the General Partner, the ▇▇▇▇▇▇▇▇ Energy Partners Predecessor
(as defined therein) and the Marine Terminals Predecessor (as defined therein),
whose report appears in the Prospectus and who have delivered the initial
letter(s) referred to in Section 7(e) hereof, are independent public accountants
as required by the Securities Act and the Rules and Regulations during the
periods covered by the financial statements on which they reported.
(bb) On each Delivery Date, after giving effect to the Transactions,
each of the Partnership Entities will have good and indefeasible title to all
real property and good title to all personal property owned by them, in each
case free and clear of all liens, claims, security interests, encumbrances and
other defects, except (i) such as are described in the Prospectus or (ii) such
as do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property as
described in the Prospectus; provided, that, with respect to title to pipeline
rights-of-way, the ▇▇▇▇▇▇▇▇ Parties represent that (A) WPH LP has not received
any actual notice or claim from any owner of land upon which its pipeline is
located that WPH LP 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 the
Prospectus and (B) any lack of title to the pipeline rights-of-way that will not
have a material adverse effect on the ability of WPH LP 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 the Prospectus
will be subject to the indemnification provisions of Section 3.3 of the Omnibus
Agreement. 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 are not material and do not 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 the Prospectus. The Merger,
Conversion and Contribution Documents were, or as of each Delivery Date will be,
legally sufficient to transfer to or vest in the Operating Partnership and its
Subsidiaries all properties that are, individually or in the aggregate, required
to enable the Operating Partnership and its Subsidiaries to conduct their
operations (in all material respects as contemplated by the Prospectus), subject
to the conditions, reservations and limitations contained in the Merger,
Conversion and Contribution Documents,
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which are described in the Prospectus. The Operating Partnership and its
Subsidiaries, upon execution and delivery of the Merger, Conversion and
Contribution Documents, succeeded or will succeed in all material respects to
the business, assets, properties, liabilities and operations reflected by the
pro forma financial statements of the Partnership, except as disclosed in the
Prospectus and in such Merger, Conversion and Contribution Documents.
(cc) Each of the Partnership Entities carries, or is covered by,
insurance in such amounts and covering such risks as is adequate for the conduct
of their respective businesses and the value of their respective properties and
as is customary for businesses engaged in similar businesses in similar
industries.
(dd) Each of the Partnership Entities owns or possesses adequate rights
to use all patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service ▇▇▇▇ registrations, copyrights and licenses
necessary for the conduct of their respective businesses and have no reason to
believe that the conduct of their respective businesses will conflict with, and
have not received any notice of any claim of conflict with, any such rights of
others.
(ee) Except as described in the Prospectus, there are no legal or
governmental proceedings pending to which any of the Partnership Entities is a
party or of which any property or assets of any of the Partnership Entities is
the subject that are required to be described in the Registration Statement or
Prospectus but are not described as required; and to the best of the ▇▇▇▇▇▇▇▇
Parties' knowledge, no such proceedings are threatened by governmental
authorities by others.
(ff) There are no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the Registration Statement
by the Securities Act or by the Rules and Regulations which have not been
described in the Prospectus or filed as exhibits to the Registration Statement.
(gg) No relationship, direct or indirect, exists between or among any
of the Partnership Entities on the one hand, and the directors, officers,
stockholders, customers or suppliers of any the Partnership Entities on the
other hand, which is required to be described in the Prospectus which is not so
described.
(hh) Except as described in the Prospectus, no labor disturbance by the
employees of any of the Partnership Entities (and to the extent they perform
services on behalf of any of the Partnership Entities, employees of any of the
▇▇▇▇▇▇▇▇ Entities), exists or, to the knowledge of the ▇▇▇▇▇▇▇▇ Parties, is
imminent or threatened, which might be expected to have a material adverse
effect on the general affairs, management, consolidated financial position,
stockholders' equity, results of operations, business or prospects of the
Partnership Entities.
(ii) Each of the Partnership Entities and Predecessors has filed (or
has obtained extensions with respect to) all federal, state and local income and
franchise tax returns required to be filed through the date hereof, which
returns are complete and correct in all material respects, and has paid all
taxes shown to be due pursuant to such returns, other than those (i) which, if
not paid, would not have a material adverse effect on the condition (financial
or other),
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business, prospects, properties, net worth or results of operations of the
Partnership Entities, taken as a whole, or (ii) which are being contested in
good faith.
(jj) Since the date as of which information is given in the Prospectus
through the date hereof, and except as may otherwise be disclosed in the
Prospectus, none of the Partnership Entities have (i) issued or granted any
securities, other than issuance in the Prior Transactions, (ii) incurred any
liability or obligation, direct or contingent, other than liabilities and
obligations which 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 on its capital stock.
(kk) The sale and issuance of the Sponsor Units to ▇▇▇ and WNGL and the
sale of the Incentive Distribution Rights to the General Partner pursuant to the
Partnership Agreement are exempt from the registration requirements of the Act
and the securities laws of any state having jurisdiction with respect thereto,
and none of the Partnership Entities has taken or will take any action that
would cause the loss of such exemption.
(ll) The Partnership (i) makes and keeps accurate books and records and
(ii) maintains internal accounting controls which provide reasonable assurance
that (A) transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit preparation
of its financial statements and to maintain accountability for its assets, (C)
access to its assets is permitted only in accordance with management's
authorization and (D) the reported accountability for its assets is compared
with existing assets at reasonable intervals.
(mm) None of the Partnership Entities ▇▇▇, WNGL and the General Partner
(i) is in violation of its certificate or agreement of limited partnership,
limited liability company agreement, certificate or articles of incorporation or
bylaws or other organizational documents; (ii) is in breach or default in any
material respect, and no event has occurred which, with notice or lapse of time
or both, would constitute such a breach or default, in the due performance or
observance of any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which any of its
properties or assets is subject, (iii) is in violation in any material respect
of any law, ordinance, governmental rule, regulation or court decree to which it
or its property or assets may be subject or (iv) has failed to obtain any
material 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) and (iv) as would
not have a material adverse effect on the condition (financial or other),
business, assets, results of operations of the Partnership Entities taken as a
whole.
(nn) None of the General Partner or Partnership Entities, nor any
director, officer, agent, employee or other person associated with or acting on
behalf of any of the Partnership Entities or, to the knowledge of the
Partnership Entities and the General Partner, the Predecessors, has used any
corporate funds for any unlawful contribution, gift, entertainment or other
unlawful expense relating to political activity; made any direct or indirect
unlawful payment to any foreign or domestic government official or employee from
corporate funds; violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977; or made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
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(oo) Except as described in the Prospectus, none of the Partnership
Entities, the General Partner, ▇▇▇ or WNGL or the Predecessors has violated any
environmental, safety, health or similar law or regulation applicable to its
business relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), or lacks any permits, licenses or other approvals
required of them under applicable Environmental Laws to own, lease or operate
their properties and conduct their business as described in the Prospectus or is
violating any terms and conditions of any such permit, license or approval,
which in each case would have a material adverse effect on the condition
(financial or otherwise), business, assets or results of operations of the
Partnership Entities, taken as a whole.
(pp) None of the ▇▇▇▇▇▇▇▇ Parties are or, as of each Delivery Date
after giving effect to the Transactions and the application of the net proceeds
therefrom as described in the Prospectus, will be, an "investment company" as
defined in the Investment Company Act of 1940, as amended.
(qq) [None of the Directed Units (as defined below) distributed in
connection with the Directed Units Program will be offered or sold outside of
the United States.]
Section 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 3,750,000 Firm Units to the several Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase the number of Firm
Units set forth opposite that Underwriter's name in Schedule 1 hereto. The
respective purchase obligations of the Underwriters with respect to the Firm
Units shall be rounded among the Underwriters to avoid fractional units, as the
Representatives may determine.
In addition, the Partnership grants to the Underwriters an option to
purchase up to an aggregate of 562,500 Option Units. Such option (the "OPTION")
is granted for the purpose of covering over-allotments in the sale of Firm Units
and is exercisable as provided in Section 4 hereof. Option Units shall be
purchased severally for the account of the Underwriters in proportion to the
number of Firm Units set forth opposite the name of such Underwriters in
Schedule 1 hereto. The respective purchase obligations of each Underwriter with
respect to the Option shall be adjusted by the Representatives so that no
Underwriter shall be obligated to purchase Option Units other than in 100 unit
amounts.
[It is also understood that approximately [ ] Firm Units ("DIRECTED
UNITS") will initially be reserved by the Underwriters for offer and sale to
employees and persons having business relationships with the [Partnership]
("PARTICIPANTS") upon the terms and conditions set forth in the Prospectus and
in accordance with the rules and regulations of the National Association of
Securities Dealers, Inc. Under no circumstances will ▇▇▇▇▇▇ Brothers Inc. or any
Underwriter be liable to the Partnership or to any Participant for any action
taken or omitted to be taken in good faith in connection with such Directed
Units Program. To the extent that any Directed Units are not affirmatively
reconfirmed for purchase by any Participant on or immediately after the date of
this Agreement, such Directed Units may be offered to the public as part of the
public offering contemplated hereby.]
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The price of both the Firm Units and any Option Units shall be $______
per Unit.
The Partnership shall not be obligated to deliver any of the Units to
be delivered on any Delivery Date (as hereinafter defined), except upon payment
for all the Units to be purchased on such Delivery Date as provided herein.
Section 3. OFFERING OF UNITS BY THE UNDERWRITERS.
Upon authorization by the Representatives of the release of the Firm
Units, the several Underwriters propose to offer the Firm Units for sale upon
the terms and conditions set forth in the Prospectus.
Section 4. DELIVERY OF AND PAYMENT FOR THE UNITS.
Delivery of and payment for the Firm Units shall be made at the offices
of [▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.] at 9:00 A.M., Houston, Texas time, on the fourth
full business day following the date of this Agreement or at such other date or
place as shall be determined by agreement between the Representatives and the
Partnership. This date and time are sometimes referred to as the "FIRST DELIVERY
DATE." On the First Delivery Date, the Partnership shall deliver or cause to be
delivered the Firm Units to the Representatives for the account of each
Underwriter in book entry form through the facilities of the Depository Trust
Company against payment to or upon the order of the Partnership of the purchase
price by wire transfer in immediately available funds. Time shall be of the
essence, and delivery at the time and place specified pursuant to this Agreement
is a further condition of the obligation of each Underwriter hereunder.
The Option granted in Section 2 will expire 30 days after the date of
this Agreement and may be exercised in whole or in part from time to time by
written notice being given to the Partnership by the Representatives. Such
notice shall set forth the aggregate number of Option Units as to which the
Option is being exercised, the names in which the Option Units are to be
registered, the denominations in which the Option Units are to be issued and the
date and time, as determined by the Representatives, when the Option Units are
to be delivered; provided, however, that this date and time shall not be earlier
than the First Delivery Date nor earlier than the second business day after the
date on which the Option shall have been exercised nor later than the fifth
business day after the date on which the Option shall have been exercised. The
date and time the Option Units are delivered are sometimes referred to as a
"SECOND DELIVERY DATE" and the First Delivery Date and any Second Delivery Date
are sometimes each referred to as a "DELIVERY DATE".
Delivery of and payment for the Option Units shall be made at the place
specified in the first sentence of the first paragraph of this Section 4 (or at
such other place as shall be determined by agreement between the Representatives
and the Partnership) at 9:00 A.M., Houston, Texas time, on such Second Delivery
Date. On such Second Delivery Date, the Partnership shall deliver or cause to be
delivered the Option Units to the Representatives for the account of each
Underwriter in book entry form through the facilities of the Depository Trust
Company against payment to or upon the order of the Partnership of the purchase
price by wire transfer in immediately available funds. Time shall be of the
essence, and delivery at the time and place specified pursuant to this Agreement
is a further condition of the obligation of each Underwriter hereunder.
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Section 5. FURTHER AGREEMENTS OF THE ▇▇▇▇▇▇▇▇ PARTIES.
Each of the ▇▇▇▇▇▇▇▇ Parties, jointly and separately, covenants and
agrees with each Underwriter:
(a) (i) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than 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 430A(a)(3) under the
Securities Act; (ii) to make no further amendment or any supplement to the
Registration Statement or to the Prospectus except as permitted herein; (iii) to
advise the Representatives, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has been
filed and to furnish the Representatives with copies thereof; (iv) to advise the
Representatives, promptly after it receives notice thereof, of the issuance by
the Commission of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or the 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, or of any
request by the Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information; and, (v) in the event
of the issuance of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives 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;
(c) To deliver promptly to the Representatives such number of the
following documents as the Representatives shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits) and (ii)
each Preliminary Prospectus, the Prospectus and any amended or supplemented
Prospectus; and, if the delivery of a prospectus is required at any time after
the Effective Time 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 when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary to amend or
supplement the Prospectus in order to comply with the Securities Act, to notify
the Representatives and, upon their request, to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended or
supplemented Prospectus which will correct such statement or omission or effect
such compliance;
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(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the reasonable judgment of the Partnership or the Representatives,
be required by the Securities Act or requested by the Commission;
(e) The Partnership will not (i) file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus of which ▇▇▇▇▇▇
Brothers Inc. shall not previously have been advised or to which the
Representatives or their counsel shall reasonably object in writing after being
so advised or (ii) so long as, in the opinion of counsel for the Underwriters, a
Prospectus is required to be delivered in connection with sales by any
Underwriter or dealer, file any information, documents or reports pursuant to
the Exchange Act without delivering a copy of such information, documents or
reports to ▇▇▇▇▇▇ Brothers Inc. prior to or concurrently with such filing;
(f) As soon as practicable after the Effective Date, to make generally
available to the Partnership's security holders and to deliver to the
Representatives an earnings statement of the Partnership and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Securities Act
and the Rules and Regulations (including, at the option of the Partnership, Rule
158);
(g) For a period of two years following the Effective Date, to furnish
to the Representatives copies of all materials furnished by the Partnership to
its Unitholders and all public reports and all reports and financial statements
furnished by the Partnership to the principal national securities exchange or
automated quotation system upon which the Units may be listed pursuant to
requirements of or agreements with such exchange or system or to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder;
(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Units for offering and
sale under the securities laws of such jurisdictions as the Representatives may
request and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Units; provided that in connection therewith
the Partnership shall not be required to qualify as a foreign limited
partnership or to file a general consent to service of process in any
jurisdiction;
(i) For a period of 180 days from the date of the Prospectus, not to,
directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of
(or enter into any transaction or device which is designed to, or could be
expected to, result in the disposition by any person at any time in the future
of) any Common Units or securities convertible into or exchangeable for Common
Units (other than Units issued pursuant to employee benefit plans, qualified
stock option plans or other employee compensation plans existing on the date
hereof or pursuant to currently outstanding options, warrants or rights), or
sell or grant options, rights or warrants with respect to any Common Units or
securities convertible into or exchangeable for Common ▇▇▇▇▇
▇▇
▇▇
(▇▇▇▇▇ ▇▇▇▇ the grant of options pursuant to option plans existing on the date
hereof), or (2) 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 such Common Units, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Units or other
securities, in cash or otherwise, in each case without the prior written consent
of ▇▇▇▇▇▇ Brothers Inc. on behalf of the Underwriters; and to cause each
securityholder, executive officer and director of the General Partner to furnish
to the Representatives, prior to the First Delivery Date, a letter or letters,
substantially in the form of Exhibit A hereto, pursuant to which each such
person shall agree not to, directly or indirectly, (1) offer for sale, sell,
pledge or otherwise dispose of (or enter into any transaction or device which is
designed to, or could be expected to, result in the disposition by any person at
any time in the future of) any Common Units or securities convertible into or
exchangeable for Common Units or (2) 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 such Common Units, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of
Common Units or other securities, in cash or otherwise, in each case for a
period of 180 days from the date of the Prospectus, without the prior written
consent of ▇▇▇▇▇▇ Brothers Inc. on behalf of the Underwriters;
(j) To apply for the listing of the Units on the New York Stock
Exchange, and to use its best efforts to complete that listing, subject only to
official notice of issuance, prior to the First Delivery Date;
(k) To apply the net proceeds from the offering of the Units and
borrowings under the Bank Credit Agreement as set forth in the Prospectus; and
(l) To take such steps as shall be necessary to ensure that none of the
Partnership Entities shall become an "investment company" as defined in the
Investment Company Act of 1940, as amended.
(m) [In connection with the Directed Units Program, to ensure that the
Directed Units will be restricted to the extent required by the National
Association of Securities Dealers, Inc. or the rules of such association from
sale, transfer, assignment, pledge or hypothecation for a period of three months
following the date of the effectiveness of the Registration Statement, and
▇▇▇▇▇▇ Brothers Inc. will notify the Partnership as to which Participants will
need to be so restricted. At the request of ▇▇▇▇▇▇ Brothers Inc., the
Partnership will direct the transfer agent to place stop transfer restrictions
upon such securities for such period of time.]
Section 6. EXPENSES.
The ▇▇▇▇▇▇▇▇ Parties agree to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Units and any taxes payable in
that connection; (b) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement and any amendments and
exhibits thereto; (c) the costs of distributing the Registration Statement as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), any Preliminary Prospectus, the
Prospectus and any amendment or supplement to the Prospectus, all as provided in
this Agreement; (d) the costs of producing and distributing this Agreement, any
supplemental agreement among Underwriters
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and any other related documents in connection with the offering, purchase, sale
and delivery of the Units; (e) the filing fees incident to securing the review
by the National Association of Securities Dealers, Inc. of the terms of sale of
the Units; (f) any applicable listing or other fees; (g) the fees and expenses
of qualifying the Units under the securities laws of the several jurisdictions
as provided in Section 5(h) and of preparing, printing and distributing a Blue
Sky Memorandum (including related fees and expenses of counsel to the
Underwriters); (h) the cost of printing certificates representing the Units and
the costs and charges of any transfer agent or registrar; (i) the costs and
expenses of the Partnership relating to investor presentations on any "road
show" undertaken in connection with the marketing of the offering of the Units,
including, without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval of the
Partnership, travel and lodging expenses of the representatives and officers of
the Partnership and any such consultants, and the cost of any aircraft chartered
in connection with the road show and (j) all other costs and expenses incident
to the performance of the obligations of the Partnership under this Agreement;
provided that, except as provided in this Section 6 and in Section 11 the
Underwriters shall pay their own costs and expenses, including the costs and
expenses of their counsel, any transfer taxes on the Units which they may sell
and the expenses of advertising any offering of the Units made by the
Underwriters.
[The ▇▇▇▇▇▇▇▇ Parties further agree to pay all fees and disbursements
incurred by the Underwriters in connection with the Directed Units Program,
including counsel fees and any stamp duties or other taxes incurred by the
Underwriters in connection with the Directed Units Program.]
Section 7. CONDITIONS OF UNDERWRITERS' OBLIGATIONS.
The respective obligations of the Underwriters hereunder are subject to
the accuracy, when made and on each Delivery Date, of the representations and
warranties of the ▇▇▇▇▇▇▇▇ Parties contained herein, to the performance by the
▇▇▇▇▇▇▇▇ 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); no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus or otherwise shall
have been disclosed to the Representatives and complied with to their
satisfaction.
(b) 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 and the
Prospectus, and all other legal matters relating to this Agreement, the
transactions contemplated hereby and the Transactions shall be reasonably
satisfactory in all material respects to counsel for the Underwriters, and the
Partnership shall have furnished to such counsel all documents and information
that they may reasonably request to enable them to pass upon such matters.
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(c) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall have furnished to the Representatives
their written opinion, as counsel to the ▇▇▇▇▇▇▇▇ Entities, addressed to the
Underwriters and dated such Delivery Date, in form and substance reasonably
satisfactory to the Representatives with respect to the matters set forth in
Exhibit B to this Agreement.
(d) The Representatives shall have received from [▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇],
General Counsel of the Company, [her] written opinion, addressed to the
Underwriters and dated such Delivery Date, in form and substance satisfactory to
the Representatives, with respect to the matters set forth in Exhibit C to this
Agreement.
(e) The Representatives shall have received from each of: (i) Capel &
▇▇▇▇▇▇, P.C. with respect to the State of Alabama, (ii) Day, ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
with respect to the State of Connecticut, (iii) Hunton & ▇▇▇▇▇▇▇▇ with respect
to the States of Georgia, North Carolina and Virginia, (iv) Dickinson, Mackaman,
Tyler & ▇▇▇▇▇, P.C. with respect to the State of Iowa, (v) Wallace, Saunders,
Austin, ▇▇▇▇▇ & ▇▇▇▇▇▇, Chartered with respect to the State of Kansas, (vi)
Kean, Miller, Hawthorne, ▇'▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P. with respect to the
State of Louisiana, (vii) ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L.P. with respect to the State
of Minnesota, (viii) Brunini, Grantham, Grower & ▇▇▇▇▇, PLLC with respect to the
State of Mississippi, (ix) ▇▇▇▇▇▇▇ & ▇▇▇▇ ▇.▇. with respect to the State of
Missouri, (x) Cline, Williams, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, L.L.P. with respect
to the State of Nebraska, (xi) Hall, Estill, Hardwick, Gable, Golden & ▇▇▇▇▇▇, a
Professional Corporation with respect to the State of Oklahoma, (xii) Nexen
▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP with respect to the State of South Carolina, (xiii)
J. ▇▇▇▇▇▇ ▇▇▇▇▇ with respect to the State of Tennessee, and (xiv) ▇▇▇▇▇▇ &
▇▇▇▇▇▇ L.L.P. with respect to the State of Texas, each of which is acting as
special local counsel for the [▇▇▇▇▇▇▇▇ Entities], an opinion or opinions,
addressed to the Underwriters and dated such Delivery Date, in the form and
substance satisfactory to the Representatives, with respect to the matters set
forth in Exhibit D to this Agreement.
(f) The Representatives shall have received from ▇▇▇▇▇▇▇ & ▇▇▇▇▇
L.L.P., counsel for the Underwriters, such opinion or opinions, dated such
Delivery Date, with respect to the issuance and sale of the Units, the
Registration Statement, the Prospectus and other related matters as the
Representatives may reasonably require, and the ▇▇▇▇▇▇▇▇ 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) At the time of execution of this Agreement, the Representatives
shall have received from Ernst & Young LLP a letter or letters, in form and
substance satisfactory to the Representatives, addressed to the Underwriters and
dated the date hereof (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance with
the applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission and (ii) stating, as of the date
hereof (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than five 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.
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(h) With respect to the letter or letters of Ernst & Young LLP referred
to in the preceding paragraph and delivered to the Representatives concurrently
with the execution of this Agreement (the "INITIAL LETTERS"), the Partnership
shall have furnished to the Representatives a letter (the "BRING-DOWN LETTER")
of such accountants, addressed to the Underwriters and dated such Delivery Date
(i) confirming that they are independent public accountants within the meaning
of the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation S-X
of the Commission, (ii) stating, as of the date of the bring-down letter (or,
with respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the Prospectus, as
of a date not more than five 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 letters and (iii)
confirming in all material respects the conclusions and findings set forth in
the initial letters.
(i) On each Delivery Date, the General Partner shall have furnished to
the Representatives a certificate, dated such Delivery Date, of its Chairman of
the Board, its President or a Vice President and its chief financial officer
stating that:
(i) the representations, warranties and agreements of the
▇▇▇▇▇▇▇▇ Parties contained in this Agreement are true and correct as of
such Delivery Date; the ▇▇▇▇▇▇▇▇ Parties have complied with all its
agreements and satisfied all the conditions contained herein; and the
conditions set forth in Sections 7(a), 7(k) and 7(l) have been
fulfilled; and
(ii) they have carefully examined the Registration Statement
and the Prospectus and (A) the Registration Statement and Prospectus do
not include any untrue statement of a material fact and do not omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (B) since the Effective
Date no event has occurred which is required to be set forth in a
supplement or amendment to the Registration Statement or the
Prospectus.
(j) None of the ▇▇▇▇▇▇▇▇ Entities shall have sustained since the date
of the latest audited financial statements included in the Prospectus (A) any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus or shall have become a party to or the subject of
any litigation, court or governmental action, investigation, order or decree
which is materially adverse to the Partnership Entities or (B) since such date
there shall not have been any change in the partners' capital, capital stock or
short-term or long-term debt of the Partnership Entities or any change, or any
development involving a prospective change, in or affecting the general affairs,
operations, business, prospects, capitalization, management, financial position,
net worth or results of operations of the Partnership Entities, otherwise than
as set forth or contemplated in the Prospectus, the effect of which, in any such
case described in clause (A) or (B), makes it in the judgment of the
Representatives, impracticable or inadvisable to proceed with the public
offering or the delivery of the Units being delivered on such Delivery Date on
the terms and in the manner contemplated in the Prospectus.
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(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 ▇▇▇▇▇▇▇▇ 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 securities of any of the ▇▇▇▇▇▇▇▇
Entities.
(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 New York Stock Exchange or the American Stock Exchange or in
the over-the-counter market, or trading in any securities of any of the ▇▇▇▇▇▇▇▇
Entities on any exchange or in the over-the-counter market, shall have been
suspended 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) a banking moratorium shall
have been declared by Federal or state authorities, (iii) 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 (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment of
the Representatives, impracticable or inadvisable to proceed with the public
offering or delivery of the Units being delivered on such Delivery Date on the
terms and in the manner contemplated in the Prospectus.
(m) The New York Stock Exchange, Inc. shall have approved the Units for
listing, subject only to official notice of issuance.
(n) On or prior to the First Delivery Date, pursuant to Section 5(i)
hereof, the General Partner shall have furnished to you a letter substantially
in the form of Exhibit A hereto from each of its securityholders, executive
officers and directors.
(o) The ▇▇▇▇▇▇▇▇ Entities shall have furnished the Representatives such
additional documents and certificates as the Representatives or counsel for the
Underwriters may reasonably request.
(p) You shall have received evidence satisfactory to you that each of
the Transactions (other than the offering of the Units) shall have occurred or
will occur as of the First Delivery Date, including the closing of the
borrowings under the Bank Credit Agreement, the consummation of the Merger and
Conversions, in each case, on substantially the terms as described in the
Prospectus.
All opinions, letters, documents, evidence and certificates mentioned
above or elsewhere in this Agreement shall be in compliance with the provisions
hereof only if they are in form and substance reasonably satisfactory to counsel
for the Underwriters.
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Section 8. INDEMNIFICATION AND CONTRIBUTION.
(a) The ▇▇▇▇▇▇▇▇ Parties, jointly and severally, shall indemnify and
hold harmless each Underwriter, its officers and employees and each person, if
any, who controls any Underwriter within the meaning of the Securities Act, from
and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of Units), to which
that Underwriter, 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 (A) in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto, or (B) in any materials or information provided to investors
by, or with the approval of, the Company in connection with the marketing of the
offering of the Stock ("Marketing Materials"), including any roadshow or
investor presentations made to investors by the Company (whether in person or
electronically), (ii) the omission or alleged omission to state in the
Registration Statement, or in any amendment or supplement thereto, any material
fact required to be stated therein or necessary to make the statements therein
not misleading, (iii) the omission or alleged omission to state in any
Preliminary Prospectus, the Prospectus or in any amendment or supplement thereto
any material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or (iv) 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 which 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 ▇▇▇▇▇▇▇▇ 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 Underwriter and each
such officer, employee or controlling person promptly upon demand for any legal
or other expenses reasonably incurred by that Underwriter, 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 ▇▇▇▇▇▇▇▇ Parties shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any such
amendment or supplement, in reliance upon and in conformity with written
information concerning such Underwriter furnished to the Partnership through the
Representatives by or on behalf of any Underwriter specifically for inclusion
therein which information consists solely of the information specified in
Section 8(e). The foregoing indemnity agreement is in addition to any liability
which the Partnership may otherwise have to any Underwriter or to any officer,
employee or controlling person of that Underwriter.
(b) [The ▇▇▇▇▇▇▇▇ Parties further agree to indemnify and hold harmless
▇▇▇▇▇▇ Brothers Inc. (including its officers and employees) and each person, if
any, who controls ▇▇▇▇▇▇ Brothers Inc. within the meaning of the Securities Act
("▇▇▇▇▇▇ Brothers Entities"), from and against any loss, claim, damage or
liability or any action in respect thereof to which any of the ▇▇▇▇▇▇ Brothers
Entities 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) the failure of any participant to pay for and accept delivery of the
Directed Units sold pursuant to the
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Directed Units Program which, immediately following the effectiveness of the
Registration Statement, were subject to a properly confirmed agreement to
purchase or (ii) the Directed Units Program, provided that, the Partnership
shall not be responsible under this subparagraph (ii) for any loss, claim,
damage, liability or action that is finally judicially determined to have
resulted from the gross negligence or willful misconduct of the ▇▇▇▇▇▇ Brothers
Entities. The Partnership shall reimburse the ▇▇▇▇▇▇ Brothers Entities promptly
upon demand for any legal or other expenses reasonably incurred by them in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred.]
(c) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the ▇▇▇▇▇▇▇▇ Parties, their officers and employees, each of their
directors, and each person, if any, who controls the ▇▇▇▇▇▇▇▇ Parties within the
meaning of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
▇▇▇▇▇▇▇▇ Parties or any such director, officer or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus or in any
amendment or supplement thereto, (ii) the omission or alleged omission to state
in the Registration Statement, or in any amendment or supplement thereto, any
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (iii) the omission or alleged omission to state in
any Preliminary Prospectus, the Prospectus or in any amendment or supplement
thereto any material fact necessary to make the statement therein, in light of
the circumstances under which they were made, not misleading, 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 ▇▇▇▇▇▇▇▇
Parties through the Representatives by or on behalf of that Underwriter
specifically for inclusion therein, and shall reimburse the ▇▇▇▇▇▇▇▇ Parties and
any such director, officer or controlling person for any legal or other expenses
reasonably incurred by the ▇▇▇▇▇▇▇▇ Parties or any such director, officer 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. The foregoing indemnity agreement is in addition to any
liability which any Underwriter may otherwise have to the Partnership or any
such director, officer, employee or controlling person.
(d) 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 which 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 it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified
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party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation; provided,
however, that the Representatives shall have the right to employ counsel to
represent jointly the Representatives and those other Underwriters and their
respective 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 under this Section 8 if, in the
reasonable judgment of the Representatives, it is advisable for the
Representatives and those Underwriters, officers, employees and controlling
persons to be jointly represented by separate counsel, and in that event the
fees and expenses of such separate counsel shall be paid by the Partnership. No
indemnifying party shall (i) 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, or (ii) be liable for any settlement of any such action
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 of the plaintiff in any such action, 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.
(e) 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) 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
▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ Parties on the one hand, and the Underwriters on
the other, with respect to the statements or omissions which 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
▇▇▇▇▇▇▇▇ 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, on the one hand, and
the total underwriting discounts and commissions received by the Underwriters
with respect to the Units purchased under this Agreement, on the other hand,
bear to the total gross proceeds from the offering of the Units under this
Agreement, in each case as set forth in the table on the cover page of the
Prospectus. 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
▇▇▇▇▇▇▇▇ Parties or the Underwriters, the intent of the parties and
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their relative knowledge, access to information and opportunity to correct or
prevent such statement or omission. The ▇▇▇▇▇▇▇▇ Parties and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
Section 8 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 which 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 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 or defending 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
total price at which the Units underwritten by it and distributed to the public
was offered to the public exceeds the amount of any damages which 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.
(f) The Underwriters severally confirm and the ▇▇▇▇▇▇▇▇ Parties
acknowledge [that the table of underwriters, the fourth full paragraph on page
113 and the second and third full paragraphs on page 114, appearing under the
caption "Underwriting"] in the Prospectus are correct and constitute the only
information concerning such Underwriters furnished in writing to the Partnership
by or on behalf of the Underwriters specifically for inclusion in the
Registration Statement and the Prospectus.
Section 9. DEFAULTING UNDERWRITERS.
If, on either Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Underwriters shall be obligated to purchase the Units which the
defaulting Underwriter agreed but failed to purchase on such Delivery Date in
the respective proportions which the number of the Firm Units set opposite the
name of each remaining non-defaulting Underwriter in Schedule 1 hereto bears to
the total number of Firm Units set opposite the names of all the remaining
non-defaulting Underwriters in Schedule 1 hereto; provided, however, that the
remaining non-defaulting Underwriters shall not be obligated to purchase any of
the Units on such Delivery Date if the total number of the Units which the
defaulting Underwriter or Underwriters agreed but failed to purchase on such
date exceeds 9.09% of the total number of Units to be purchased on such Delivery
Date, and any remaining non-defaulting Underwriter shall not be obligated to
purchase more than 110% of the number of Units which it agreed to purchase on
such Delivery Date pursuant to the terms of Section 2. If the foregoing maximums
are exceeded, the remaining non-defaulting Underwriters, or those other
underwriters satisfactory to the Representatives who so agree, shall have the
right, but shall not be obligated, to purchase, in such proportion as may be
agreed upon among them, all the Units to be purchased on such Delivery Date. If
the remaining Underwriters or other underwriters satisfactory to the
Representatives do not elect to purchase the Units which the defaulting
Underwriter or Underwriters agreed but failed to purchase on such Delivery Date,
this Agreement (or, with respect to the Second Delivery Date, the obligation of
the Underwriters to
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purchase, and of the Partnership to sell, the Option Units) shall terminate
without liability on the part of any non-defaulting Underwriter or the ▇▇▇▇▇▇▇▇
Parties, except that the ▇▇▇▇▇▇▇▇ Parties will continue to be liable for the
payment of expenses to the extent set forth in Sections 6 and 11. 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 hereto who, pursuant to this Section 9, purchases Firm Units which a
defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the ▇▇▇▇▇▇▇▇ Parties for damages, including expenses
paid by the ▇▇▇▇▇▇▇▇ Parties pursuant to Sections 6 and 11, caused by its
default. If other underwriters are obligated or agree to purchase the Units of a
defaulting or withdrawing Underwriter, either the Representatives or the
Partnership may postpone the Delivery Date for up to seven full business days in
order to effect any changes that in the opinion of counsel for the Partnership
or counsel for the Underwriters may be necessary in the Registration Statement,
the Prospectus or in any other document or arrangement.
Section 10. TERMINATION.
The obligations of the Underwriters hereunder may be terminated by the
Representatives by notice given to and received by the Partnership prior to
delivery of and payment for the Firm Units if, prior to that time, any of the
events described in Sections 7(h), 7(k) or 7(l), shall have occurred or if the
Underwriters shall decline to purchase the Units for any reason permitted under
this Agreement.
Section 11. REIMBURSEMENT OF UNDERWRITERS' EXPENSE.
If the Partnership shall fail to tender the Units for delivery to the
Underwriters by reason of any failure, refusal or inability on the part of any
of the ▇▇▇▇▇▇▇▇ Entities to perform any agreement on its part to be performed,
or because any other condition of the Underwriters' obligations hereunder
required to be fulfilled by any of the ▇▇▇▇▇▇▇▇ Entities (including, without
limitation, with respect to the Transactions) is not fulfilled, the ▇▇▇▇▇▇▇▇
Parties will reimburse the Underwriters for all reasonable out-of-pocket
expenses (including fees and disbursements of counsel) incurred by the
Underwriters in connection with this Agreement and the proposed purchase of the
Units, and upon demand the ▇▇▇▇▇▇▇▇ Parties shall pay the full amount thereof to
the Representatives. If this Agreement is terminated pursuant to Section 9 by
reason of the default of one or more Underwriters, the ▇▇▇▇▇▇▇▇ Parties shall
not be obligated to reimburse any defaulting Underwriter on account of those
expenses.
Section 12. NOTICES.
All statements, requests, notices and agreements hereunder shall be in
writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission to ▇▇▇▇▇▇ Brothers Inc., Three World Financial Center,
New York, New York 10285, Attention: Syndicate Department (Fax: ▇▇▇-▇▇▇-▇▇▇▇),
with a copy, in the case of any
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notice pursuant to Section 8(c), to the Director of Litigation, Office of the
General Counsel, ▇▇▇▇▇▇ Brothers Inc., ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇;
(b) if to the Partnership, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Partnership set forth in the
Registration Statement, Attention: ▇▇▇▇▇▇▇▇ Energy Partners, L.P., ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Fax: [(918) - - ]);
provided, however, that any notice to an Underwriter pursuant to Section 8(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. 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 by ▇▇▇▇▇▇ Brothers Inc. on behalf of
the Representatives.
Section 13. PERSONS ENTITLED TO BENEFIT OF AGREEMENT.
This Agreement shall inure to the benefit of and be binding upon the
Underwriters, the ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ Parties contained in this Agreement shall also be
deemed to be for the benefit of the 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) of this
Agreement shall be deemed to be for the benefit of directors of the General
Partner, the officers of the General Partner who have signed the Registration
Statement and any person controlling the General Partner 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 13, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision contained herein.
Section 14. SURVIVAL.
The respective indemnities, representations, warranties and agreements
of the ▇▇▇▇▇▇▇▇ Parties and the Underwriters contained in this Agreement or made
by or on behalf on 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.
Section 15. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY".
For purposes of this Agreement, (a) "BUSINESS DAY" means each Monday,
Tuesday, Wednesday, Thursday or Friday which 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.
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Section 16. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Section 17. 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.
Section 18. 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.
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If the foregoing correctly sets forth the agreement between the ▇▇▇▇▇▇▇▇ Parties
and the Underwriters, please indicate your acceptance in the space provided for
that purpose below.
Very truly yours,
▇▇▇▇▇▇▇▇ ENERGY SERVICES, LLC
By:
Name:
Title:
▇▇▇▇▇▇▇▇ NATURAL GAS LIQUIDS, INC.
By:
Name:
Title:
▇▇▇▇▇▇▇▇ ▇▇ LLC
By:
Name:
Title:
▇▇▇▇▇▇▇▇ ENERGY PARTNERS L.P.
By: ▇▇▇▇▇▇▇▇ ▇▇ LLC, its General Partner
By:
Name:
Title:
▇▇▇▇▇▇▇▇ OLP, L.P.
By: ▇▇▇▇▇▇▇▇ ▇▇ LLC, its General Partner
By:
Name:
Title:
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Accepted:
▇▇▇▇▇▇ BROTHERS INC.
BANC OF AMERICA SECURITIES LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇ INCORPORATED
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
UBS WARBURG LLC
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By: ▇▇▇▇▇▇ BROTHERS INC.
By:
---------------------------------------
Authorized Representative
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SCHEDULE 1
Number of Firm
UNDERWRITERS Units to be Purchased
▇▇▇▇▇▇ BROTHERS INC.
BANC OF AMERICA SECURITIES LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇ INCORPORATED
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
UBS WARBURG LLC
[Names of other Underwriters]
Total.................................. 3,750,000
Schedule 1-1
34
ANNEX A
JURISDICTIONS OF QUALIFICATION
Annex A-1
35
EXHIBIT A
LOCK-UP LETTER AGREEMENT
▇▇▇▇▇▇ BROTHERS INC.
BANC OF AMERICA SECURITIES LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇ INCORPORATED
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
UBS WARBURG LLC
As Representatives of the several
Underwriters named in Schedule 1,
c/▇ ▇▇▇▇▇▇ Brothers Inc.
Three World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
The undersigned understands that you and certain other firms propose to
enter into an Underwriting Agreement (the "UNDERWRITING AGREEMENT") providing
for the purchase by you and such other firms (the "UNDERWRITERS") of the common
units representing limited partner interests (the "COMMON UNITS") of ▇▇▇▇▇▇▇▇
Energy Partners, L.P., 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, without the prior written consent of ▇▇▇▇▇▇
Brothers Inc., on behalf of the Underwriters, the undersigned will not, directly
or indirectly, (1) offer for sale, sell, pledge, 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 person at any time in the future of) any
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 option or warrant) or securities convertible into
or exchangeable for Common Units owned by the undersigned on the date of
execution of this Lock-Up Letter Agreement or on the date of the completion of
the Offering, or (2) 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 such Common Units, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Units or other
securities, in cash or otherwise, for a period of 180 days after the date of the
final Prospectus relating to the Offering.
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.
Exhibit A-1
36
It is understood that, if the Partnership notifies you 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 which survive termination) shall terminate or be terminated prior to
payment for and delivery of the Common Units, we will be released from our
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.
Very truly yours,
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
Dated:
-------------------------
Exhibit A-2
37
EXHIBIT B
OPINION OF ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.
Exhibit B-1
38
EXHIBIT C
OPINION OF [▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇]
Exhibit C-1
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EXHIBIT D
FORM OF OPINION OF LOCAL COUNSEL
Exhibit D-1