PLAINS ALL AMERICAN PIPELINE,
L.P.
PAA FINANCE CORP.
$350,000,000 8.75% Senior Notes due
2019
Banc of America
Securities LLC
BNP Paribas Securities Corp.
J.P. Morgan Securities Inc.
Wachovia Capital Markets, LLC
DnB NOR Markets, Inc.
Fortis Securities LLC
SG Americas Securities, LLC
ING Financial Markets LLC
Mitsubishi UFJ Securities (USA), Inc.
Scotia Capital (USA) Inc.
c/o J.P. Morgan
Securities Inc.
270 Park Avenue
New York, New York, 10017
Plains
All American Pipeline, L.P., a Delaware limited partnership (the
“ Partnership ”), and PAA Finance Corp., a
Delaware corporation (“ PAA Finance ,” and
together with the Partnership, the “ Issuers ”),
propose to issue and sell to the several underwriters named in
Schedule I hereto (the “ Underwriters
”) $350,000,000 aggregate principal amount of 8.75% Senior
Notes due May 1, 2019 (the “ Notes ”). The Notes
are to be issued under an indenture dated as of September 25,
2002 (the “ Base Indenture ”), among the Issuers
and U.S. Bank National Association, as successor trustee (the
“ Trustee ”), as amended by the Fifteenth
Supplemental Indenture, to be dated as of April 20, 2009,
among the Issuers, the Subsidiary Guarantors (as defined herein)
and the Trustee (the Base Indenture, as so amended, the “
Indenture ”), and will be guaranteed on an unsecured
basis by each of the Subsidiary Guarantors (the “
Guarantees ”).
PAA
GP LLC, a Delaware limited liability company (the “
General Partner ”), is the general partner of the
Partnership. Plains AAP, L.P., a Delaware limited partnership
(“ Plains AAP ”), owns a 100% membership
interest in the General Partner. Plains All American GP LLC, a
Delaware limited liability company (“ GP LLC ”),
is the general partner of Plains AAP.
Plains
Marketing GP Inc., a Delaware corporation (“ GP Inc.
”); Plains Marketing, L.P., a Texas limited partnership
(“ Plains Marketing ”); Plains Pipeline, L.P., a
Texas limited partnership (“ Plains Pipeline ”);
Pacific Energy Group LLC, a Delaware limited liability company
(“ Pacific Energy Group ”); Pacific L.A. Marine
Terminal LLC, a Delaware limited liability company (“
Pacific LA ”); Rocky Mountain Pipeline System LLC, a
Delaware limited liability company (“ Rocky Mountain
”); Plains Products Terminals LLC, a Delaware limited
liability company (“ Plains Products ”); Plains
Towing LLC, a Delaware limited liability company (“ Plains
Towing ”); Plains Marketing Canada LLC, a Delaware
limited liability company (“ PMC LLC ”); Plains
LPG Services GP LLC, a Delaware limited liability company (“
LPG LLC ”); PICSCO LLC, a Delaware limited liability
company (“ PICSCO ”); Plains LPG Services, L.P.,
a Delaware limited partnership (“ LPG Services LP
”); Plains Midstream GP LLC, a Delaware limited liability
company (“ Plains Midstream GP ”); Plains
Midstream, L.P., a Delaware limited partnership (“ Plains
Midstream LP ”); Lone Star Trucking, LLC, a California
limited liability company (“ Lone Star ”); and
Rancho LPG Holdings LLC, a Delaware limited liability company
(“ Rancho LLC ”), are collectively referred to
herein as the “ Domestic Subsidiary Guarantors
.”
Aurora
Pipeline Company Ltd., a corporation incorporated under the laws of
Canada ( “Aurora ”); Plains Midstream Canada
ULC, an Alberta unlimited liability company (“ Plains
Midstream Canada ”); Plains Marketing Canada, L.P., an
Alberta limited partnership (“ PMC LP ”); and
PMC (Nova Scotia) Company, a Nova Scotia unlimited liability
company (“ PMC NS ”), are collectively referred
to herein as the “ Canadian Subsidiary Guarantors
.”
Pacific
Energy GP, LP, a Delaware limited partnership; Pacific Energy
Management LLC, a Delaware limited liability company; Pacific
Pipeline System LLC, a Delaware limited liability company; Pacific
Terminals LLC, a Delaware limited liability company; and SLC
Pipeline LLC, a Delaware limited liability company, are
collectively referred to herein as the “ Non-Guarantor
Subsidiaries .”
The
Domestic Subsidiary Guarantors and the Canadian Subsidiary
Guarantors are collectively referred to herein as the
“Subsidiary Guarantors .” The Non-Guarantor
Subsidiaries, the Subsidiary Guarantors and PAA Finance are
collectively referred to herein as the “ Subsidiaries
.” The Issuers, the General Partner, Plains AAP, GP LLC and
the Subsidiary Guarantors are collectively referred to herein as
the “ Plains Parties .” The Plains Parties, the
Non-Guarantor Subsidiaries and PAA/Vulcan Gas Storage, LLC, a
Delaware limited liability company (the “ Joint
Venture ”), are collectively referred to herein as the
“ Plains Entities .”
The
Plains Parties wish to confirm as follows their agreement with the
Underwriters in connection with the several purchases of the Notes
by the Underwriters.
1.
Representations and Warranties of the Plains Parties . The
Plains Parties, jointly and severally, represent and warrant to the
Underwriters that:
(a) A registration
statement on Form S-3 relating to the Notes (File
No. 333-155671) (i) has been prepared by the Issuers 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
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(the “ Commission ”)
thereunder; (ii) has been filed with the Commission under the
Securities Act; and (iii) is effective under the Securities
Act. Copies of such registration statement and any amendment
thereto have been delivered by the Issuers to J.P. Morgan
Securities Inc. (the “ Representative ”). As
used in this Agreement:
(i) “
Applicable Time ” means 1:50 p.m., New York City time,
on April 15, 2009, which the Underwriters have informed the
Issuers and their counsel is a time prior to the first sale of the
Notes;
(ii) “
Base Prospectus ” means the base prospectus included
in the Registration Statement at the Applicable Time.
(iii) “
Effective Date ” means any date as of which any part
of such registration statement relating to the Notes became, or is
deemed to have become, effective under the Securities Act in
accordance with the Rules and Regulations;
(iv) “
Issuer Free Writing Prospectus ” means each
“free writing prospectus” (as defined in Rule 405
of the Rules and Regulations) or “issuer free writing
prospectus” (as defined in Rule 433 of the Rules and
Regulations) prepared by or on behalf of the Issuers or used or
referred to by the Issuers in connection with the offering of the
Notes;
(v) “
Preliminary Prospectus ” means any preliminary
prospectus relating to the Notes included in such registration
statement or filed with the Commission pursuant to Rule 424(b) of
the Rules and Regulations, including the Base Prospectus and any
preliminary prospectus supplement thereto relating to the
Notes;
(vi) “
Pricing Disclosure Package ” means, as of the
Applicable Time, the most recent Preliminary Prospectus, together
with (A) each Issuer Free Writing Prospectus filed or used by
the Issuers on or before the Applicable Time, other than a road
show that is an Issuer Free Writing Prospectus under Rule 433
of the Rules and Regulations, and (B) the final term sheet
attached as Schedule II ;
(vii) “
Prospectus ” means the final prospectus relating to
the Notes, including the Base Prospectus and any prospectus
supplement thereto relating to the Notes, as filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations;
and
(viii) “
Registration Statement ” means the registration
statement on Form S-3 (File No. 333-155671), as amended as of
the Effective Date, including any Preliminary Prospectus or the
Prospectus and all exhibits to such registration
statement.
Any reference to
any Preliminary Prospectus, the Pricing Disclosure Package or the
Prospectus shall be deemed to refer to and include any documents
incorporated by reference therein pursuant to Form S-3 under the
Securities Act as of the date of such Preliminary Prospectus or the
Prospectus, as the case may be. Any reference to the “
most recent
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Preliminary
Prospectus ” shall
be deemed to refer to the latest Preliminary Prospectus included in
the Registration Statement or filed pursuant to Rule 424(b) of the
Rules and Regulations prior to or on the date hereof (including,
for purposes hereof, any documents incorporated by reference
therein prior to or on the date hereof). Any reference to any
amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any document
filed under the Securities Exchange Act of 1934, as amended (the
“ Exchange Act ”), after the date of such
Preliminary Prospectus or the Prospectus, as the case may be, and
incorporated by reference in such Preliminary Prospectus or the
Prospectus, as the case may be. Any reference to any amendment to
the Registration Statement shall be deemed to include any periodic
report of the Partnership filed with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act after the Effective Date
that is incorporated by reference in the Registration Statement. As
used herein, the term “ Incorporated Documents ”
means the documents that at the time are incorporated by reference
in the Registration Statement, the Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto. The Commission
has not issued any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending the
effectiveness of the Registration Statement, and no proceeding for
such purpose has been instituted or, to the Plains Parties’
knowledge, threatened by the Commission. The Commission has not
notified the Issuers of any objection to the use of the form of the
Registration Statement.
(b)
Form of Documents. The Registration Statement conformed and
will conform in all material respects on the Effective Date and on
the Delivery Date (as defined herein), and any amendment to the
Registration Statement filed after the date hereof will conform in
all material respects when filed, to the applicable requirements of
the Securities Act and the Rules and Regulations. The most recent
Preliminary Prospectus conformed, and the Prospectus will conform,
in all material respects when filed with the Commission pursuant to
Rule 424(b) and on the Delivery Date to the requirements of the
Securities Act and the Rules and Regulations. The Incorporated
Documents conformed and will conform, when filed with the
Commission, in all material respects to the requirements of the
Exchange Act or the Securities Act, as applicable, and the rules
and regulations of the Commission thereunder. The Registration
Statement and the Prospectus conform in all material respects to
the requirements applicable to them under the Trust Indenture Act
of 1939, as amended (the “ Trust Indenture Act
”).
(c)
Registration Statement . The Registration Statement did not,
as of its most recent Effective Date, contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided that no representation or warranty is
made as to information contained in or omitted from the
Registration Statement in reliance upon and in conformity with
written information furnished to the Issuers through the
Representative by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in
Section 12.
(d)
Prospectus . The Prospectus will not, as of its date and on
the Delivery Date, contain an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided that no
representation or warranty is made as to information contained in
or omitted from the Prospectus in reliance upon and in conformity
with written information furnished to the Issuers through the
Representative by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in
Section 12.
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(e)
Documents Incorporated by Reference . The Incorporated
Documents, when filed with the Commission, did not and will not
contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
(f)
Pricing Disclosure Package . The Pricing Disclosure Package
did not, as of the Applicable Time, contain an untrue statement of
a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that no
representation or warranty is made as to information contained in
or omitted from the Pricing Disclosure Package in reliance upon and
in conformity with written information furnished to the Issuers
through the Representative by or on behalf of any Underwriter
specifically for inclusion therein, which information is specified
in Section 12.
(g)
Issuer Free Writing Prospectus and Pricing Disclosure
Package . Each Issuer Free Writing Prospectus (including,
without limitation, any road show that is a free writing prospectus
under Rule 433 of the Rules and Regulations), when considered
together with the Pricing Disclosure Package as of the Applicable
Time, did not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided that no
representation or warranty is made as to information contained in
or omitted from such Issuer Free Writing Prospectus in reliance
upon and in conformity with written information furnished to the
Issuers through the Representative by or on behalf of any
Underwriter specifically for inclusion therein, which information
is specified in Section 12.
(h)
Each Issuer Free Writing Prospectus . Each Issuer Free
Writing Prospectus conformed or will conform in all material
respects to the requirements of the Securities Act and the Rules
and Regulations on the date of first use, and the Issuers have
complied with any filing requirements applicable to such Issuer
Free Writing Prospectus pursuant to the Rules and Regulations. The
Issuers have not made any offer relating to the Notes that would
constitute an Issuer Free Writing Prospectus without the prior
written consent of the Representative. The Issuers have retained in
accordance with the Rules and Regulations all Issuer Free Writing
Prospectuses that were not required to be filed pursuant to the
Rules and Regulations. The Issuers have taken all actions necessary
so that any road show (as defined in Rule 433 of the Rules and
Regulations) in connection with the offering of the Notes will not
be required to be filed pursuant to the Rules and
Regulations.
(i)
Not an Ineligible Issuer . At (i) the time of initial
filing of the Registration Statement and (ii) the earliest
time after the initial filing of the Registration Statement that
the Issuers or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2) under the
Securities Act) of the Notes, neither of the Issuers was an
“ineligible issuer,” as defined in Rule 405 under
the Securities Act.
(j)
Formation and Qualification of the Plains Parties and Joint
Venture . Each of the Plains Parties and the Joint Venture has
been duly formed or incorporated and is validly existing in good
standing as a limited partnership, limited liability company,
corporation or unlimited liability company under the laws of its
respective jurisdiction of formation or
5
incorporation
with full corporate, partnership, limited liability company or
unlimited liability company power and authority, as the case may
be, to own or lease its properties and to conduct its business, in
each case in all material respects. Each of the Plains Parties and
the Joint Venture is duly registered or qualified as a foreign
corporation, limited partnership, limited liability company or
unlimited liability company, as the case may be, for the
transaction of business under the laws of each jurisdiction (as set
forth on Exhibit A to this Agreement) in which the
character of the business conducted by it or the nature or location
of the properties owned or leased by it makes such registration or
qualification necessary, except where the failure so to register or
qualify would not have a material adverse effect on the condition
(financial or other), business, prospects, properties, net worth or
results of operations of the Plains Entities, taken as a
whole.
(k)
General Partners . GP LLC has full limited liability company
power and authority to act as the general partner of Plains AAP;
the General Partner has full limited liability company power and
authority to act as the general partner of the Partnership; GP Inc.
has full corporate power and authority to act as the general
partner of Plains Marketing and Plains Pipeline; PMC NS has full
unlimited liability company power and authority to act as the
general partner of PMC LP; LPG LLC has full limited liability
company power and authority to act as the general partner of LPG
Services LP; and Plains Midstream GP has full limited liability
company power and authority to act as the general partner of Plains
Midstream LP, in each case in all material respects.
(l)
Ownership of the Partnership . The General Partner is the
sole general partner of the Partnership, with a 2.0% general
partner interest in the Partnership; such general partner interest
has been duly authorized and validly issued in accordance with the
Third Amended and Restated Agreement of Limited Partnership of the
Partnership (as the same may be amended or restated prior to the
Delivery Date, the “ Partnership Agreement ”);
and the General Partner owns such general partner interest free and
clear of all liens, encumbrances, security interests, equities,
charges or claims.
(m)
Ownership of the General Partner . Plains AAP is the sole
member of the General Partner, with a 100% membership interest in
the General Partner; such membership interest has been duly
authorized and validly issued in accordance with the Limited
Liability Company Agreement of the General Partner (as the same may
be amended or restated prior to the Delivery Date, such agreement
being referred to herein as the “ General Partner LLC
Agreement ”) and is fully paid (to the extent required
under the General Partner LLC Agreement) and nonassessable (except
as such nonassessability may be affected by matters described in
Section 18-607 and 18-804 of the Delaware Limited Liability
Company Act (the “ Delaware LLC Act ”)); and
Plains AAP owns such membership interest free and clear of all
liens, encumbrances, security interests, equities, charges or
claims, except as provided in the Credit Agreement dated
January 3, 2008 (as amended, the “ Plains AAP
Facility ”), by and among Plains AAP, the lenders party
thereto and Citibank, N.A., as Administrative Agent.
(n)
Ownership of Plains AAP . GP LLC is the sole general partner
of Plains AAP, with a 1.0% general partner interest in Plains AAP;
such general partner interest has been duly authorized and validly
issued in accordance with the Fifth Amended and Restated Limited
Partnership Agreement of Plains AAP (as the same may be amended or
restated prior to the
6
Delivery Date,
such agreement being referred to herein as the “ Plains
AAP Partnership Agreement ”); and GP LLC owns such
general partner interest free and clear of all liens, encumbrances,
security interests, equities, charges or claims.
(o)
Ownership of Plains Marketing and Plains Pipeline . GP Inc.
is the sole general partner of Plains Marketing, with a 0.001%
general partner interest in Plains Marketing, and the sole general
partner of Plains Pipeline, with a 0.001% general partner interest
in Plains Pipeline; such general partner interests have been duly
authorized and validly issued in accordance with the agreement of
limited partnership of Plains Marketing and the agreement of
limited partnership of Plains Pipeline, respectively (in each case,
as in effect on the date hereof and as the same may be amended or
restated prior to the Delivery Date, such agreements being referred
to herein as the “ Plains Marketing Partnership
Agreement ” and the “ Plains Pipeline
Partnership Agreement ,” respectively); and GP Inc. owns
such general partner interests free and clear of all liens,
encumbrances, security interests, equities, charges or
claims.
(p)
Ownership of Subsidiaries . All of the outstanding shares of
capital stock or other equity interests (other than general partner
interests) of each Subsidiary and the Joint Venture (a) have
been duly authorized and validly issued (in the case of an interest
in a limited partnership or limited liability company, in
accordance with the agreement or certificate of limited
partnership, limited liability company agreement, certificate of
formation, certificate or articles of incorporation, bylaws or
other similar organizational documents (in each case as in effect
on the date hereof and as the same may be amended or restated prior
to the Delivery Date) (the “ Organizational Documents
”) of such Subsidiary or the Joint Venture), are fully paid
(in the case of an interest in a limited partnership or limited
liability company, to the extent required under the Organizational
Documents of such Subsidiary or the Joint Venture) and
nonassessable (except (i) in the case of an interest in a Delaware
limited partnership or Delaware limited liability company, as such
nonassessability may be affected by Section 17-607 of the
Delaware Revised Uniform Limited Partnership Act (the “
Delaware LP Act ”) or Section 18-607 and 18-804
of the Delaware LLC Act), as applicable, (ii) in the case of
an interest in a limited partnership or limited liability company
formed under the laws of another domestic state, as such
nonassessability may be affected by similar provisions of such
state’s limited partnership or limited liability company
statute, as applicable, and (iii) in the case of an interest
in an entity formed under the laws of a foreign jurisdiction, as
such nonassessability may be affected by similar provisions of such
jurisdiction’s corporate, partnership or limited liability
company statute, if any, as applicable) and (b) except for a
50% membership interest in the Joint Venture owned by Vulcan Gas
Storage LLC, are owned, directly or indirectly, by the Partnership,
free and clear of all liens, encumbrances, security interests,
equities, charges or claims.
(q)
General Partner Interests in Subsidiary Guarantors . All
outstanding general partner interests in each Subsidiary Guarantor
that is a partnership have been duly authorized and validly issued
in accordance with the Organizational Documents of such Subsidiary
Guarantor and are owned, directly or indirectly, by the
Partnership, free and clear of all liens, encumbrances, security
interests, equities, charges or claims.
(r)
Majority Owned Subsidiaries . The Partnership has no direct
or indirect majority owned subsidiaries other than (i) those
disclosed on Exhibit 21.1 on the Partnership’s Annual
Report on Form 10-K filed with the Commission on February 26,
2009 (the “Form 10-K”)
7
and
(ii) those who would not, considered in the aggregate as a
single subsidiary, constitute a significant subsidiary (as defined
in Rule 1-02(w) of Regulation S-X) as of the year end
covered by the Partnership’s Form 10-K. The Issuers have no
material independent assets or operations and the Guarantees of the
Subsidiary Guarantors are full and unconditional and joint and
several.
(s)
No Registration Rights . The offering and sale of the Notes
as contemplated by this Agreement do not give rise to any rights
for or relating to the registration of any other securities of the
Issuers, except such rights as have been waived or
satisfied.
(t)
Conformity to Description of Notes . The Notes, when issued
and delivered against payment therefor as provided herein and in
the Indenture, the Guarantees and the Indenture will conform in all
material respects to the descriptions thereof contained in the
Pricing Disclosure Package and the Prospectus (and any amendment or
supplement thereto).
(u)
Authority . Each of the Issuers has all requisite power and
authority to issue, sell and deliver the Notes, and each of the
Subsidiary Guarantors has all requisite power and authority to
issue and deliver the Guarantees, in accordance with and upon the
terms and conditions set forth in this Agreement, their respective
Organizational Documents, the Indenture, the Registration
Statement, the Pricing Disclosure Package and the Prospectus. All
action required to be taken by the Plains Parties or any of their
stockholders, partners or members for (i) the due and proper
authorization, execution and delivery of this Agreement and the
Indenture, (ii) the authorization, issuance, sale and delivery
of the Notes and the Guarantees and (iii) the consummation of
the transactions contemplated hereby and thereby shall have been
duly and validly taken.
(v)
Authorization, Execution and Delivery of Agreement . The
execution and delivery of, and the performance by each of the
Plains Parties of their respective obligations under, this
Agreement have been duly and validly authorized by each of the
Plains Parties, and this Agreement has been duly executed and
delivered by each of the Plains Parties, and constitutes the valid
and legally binding agreement of each of the Plains Parties,
enforceable against each of the Plains Parties in accordance with
its terms; provided that the enforceability hereof 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.
(w)
Enforceability of the Indenture . The execution and delivery
of, and the performance by each of the Plains Parties of their
respective obligations under, the Indenture have been duly and
validly authorized by each of the Plains Parties that are parties
thereto; the Indenture has been duly qualified under the Trust
Indenture Act and, assuming due authorization, execution and
delivery of the Base Indenture and the Fifteenth Supplemental
Indenture thereto by the Trustee, when such Fifteenth Supplemental
Indenture is executed and delivered by each of the Plains Parties
that are parties thereto, will constitute the valid and legally
binding agreement of each of the Plains Parties that are parties
thereto, enforceable against each of the Plains Parties that are
parties thereto in accordance with its terms; provided that
the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar
8
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 thereunder may be limited by
federal or state securities laws.
(x)
Valid Issuance of the Notes . The Notes have been duly
authorized, and, when executed and authenticated in accordance with
the provisions of the Indenture and delivered to and paid for by
the Underwriters, will have been duly executed and delivered by
each of the Issuers and will constitute the valid and legally
binding obligations of the Issuers, enforceable against the Issuers
in accordance with their terms and entitled to the benefits of the
Indenture; 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 thereunder may be limited by
federal or state securities laws.
(y)
Valid Issuance of the Guarantees . The Guarantees have been
duly authorized by each of the Subsidiary Guarantors and, when the
Notes have been duly executed, authenticated, issued and delivered
as provided in the Indenture and paid for as provided herein, will
be valid and legally binding obligations of each of the Subsidiary
Guarantors, enforceable against each of the Subsidiary Guarantors
in accordance with their terms and will be entitled to the benefits
of the Indenture, 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 thereunder may be limited by
federal or state securities laws.
(z)
Authorization, Execution and Enforceability of Formation
Agreements . Each limited liability company agreement or
limited partnership agreement, as applicable, of the Plains Parties
that is a limited liability company or a limited partnership has
been duly authorized, executed and delivered by the parties thereto
and is a valid and legally binding agreement of such parties,
enforceable against such parties in accordance with its terms;
provided that, with respect to each such agreement, 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).
(aa)
Authorization, Execution and Enforceability of Joint Venture
Agreement . The limited liability company agreement of the
Joint Venture has been duly authorized, executed and delivered by
the Partnership and, assuming due authorization, execution and
delivery by the other parties thereto, is a valid and legally
binding agreement of the Partnership, enforceable against it 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).
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(bb)
No Conflicts or Violations . None of the offering, issuance
and sale by the Issuers of the Notes or the Subsidiary Guarantors
of the Guarantees, the execution, delivery and performance of this
Agreement by the Plains Parties, the consummation of the
transactions contemplated hereby, the execution, delivery and
performance of the Indenture by the Plains Parties that are parties
thereto or the consummation of the transactions contemplated
thereby (i) conflicts or will conflict with or constitutes or
will constitute a violation of the Organizational Documents of any
of the Plains Parties, (ii) conflicts or will conflict with or
constitutes or will constitute a breach or violation of, a change
of control 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 Plains Parties 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 Plains
Parties or any of their properties in a proceeding to which any of
them or their 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 Plains Parties or the Joint
Venture, which conflicts, breaches, violations or defaults, in the
case of clauses (ii), (iii) or (iv), would have a material
adverse effect upon the condition (financial or other), business,
prospects, properties, net worth or results of operations of the
Plains Entities, taken as a whole.
(cc)
No Consents . No permit, consent, approval, authorization,
order, registration, filing or qualification of or with any court,
governmental agency or body (a “governmental consent”)
is required in connection with the offering, issuance and sale by
the Issuers of the Notes or the Subsidiary Guarantors of the
Guarantees, the execution, delivery and performance of, or the
consummation by the Plains Parties of the transactions contemplated
by, this Agreement, the execution, delivery and performance of the
Indenture by the Plains Parties that are parties thereto or the
consummation of the transactions contemplated thereby, except for
such governmental consents required under the Securities Act, the
Exchange Act, the Trust Indenture Act and state securities or
“Blue Sky” laws.
(dd)
No Default . None of the Plains Parties is in
(i) violation of its Organizational Documents, or of any law,
statute, ordinance, administrative or governmental rule or
regulation applicable to it or of any decree of any court or
governmental agency or body having jurisdiction over it or
(ii) breach, default (or an event that, with notice or lapse
of time or both, would constitute such an event) or violation in
the performance of any obligation, agreement or condition contained
in any bond, debenture, note or any other evidence of indebtedness
or in any agreement, indenture, lease or other instrument to which
it is a party or by which it or any of its properties may be bound,
which breach, default or violation would, if continued, have a
material adverse effect on the condition (financial or other),
business, prospects, properties, net worth or results of operations
of the Plains Entities, taken as a whole, or could materially
impair the ability of any of the Plains Parties to perform its
obligations under this Agreement. To the knowledge of the Plains
Parties, no third party to any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which any of the
Plains Parties is a party or by which any of them is bound or to
which any of their properties are subject, is in default under any
such agreement, which breach, default or violation would, if
continued, have a material adverse effect on the condition
(financial or other), business, prospects, properties, net worth or
results of operations of the Plains Entities, taken as a
whole.
10
(ee)
Independent Registered Public Accounting Firm . The
accountants, PricewaterhouseCoopers LLP, who have certified or
shall certify the audited financial statements included or
incorporated by reference in the Registration Statement, the most
recent Preliminary Prospectus and the Prospectus (and any amendment
or supplement thereto), are independent registered public
accountants with respect to the Plains Parties as required by the
Securities Act and the Rules and Regulations.
(ff)
Financial Statements . At December 31, 2008, the
Partnership would have had, on an as adjusted basis as indicated in
the Prospectus (and any amendment or supplement thereto), a total
capitalization as set forth therein. The financial statements
(including the related notes and supporting schedules) and other
financial information included or incorporated by reference in the
Registration Statement, the most recent Preliminary Prospectus 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, at the dates and for the periods indicated, and have been
prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
indicated, except to the extent disclosed therein. The summary and
selected historical financial information included or incorporated
by reference in the Registration Statement, the most recent
Preliminary Prospectus and the Prospectus (and any amendment or
supplement thereto) is accurately presented in all material
respects and prepared on a basis consistent with the audited and
unaudited historical consolidated financial statements from which
it has been derived, except as described therein. The pro forma
financial statements and other pro forma financial information, if
any, included or incorporated by reference in the Registration
Statement, the most recent Preliminary Prospectus and the
Prospectus (and any amendment or supplement thereto)
(i) present fairly in all material respects the information
shown therein, (ii) have been prepared in accordance with the
Commission’s rules and guidelines with respect to pro forma
financial statements and (iii) have been properly computed on
the bases described therein. The assumptions used in the
preparation of the pro forma financial statements and other pro
forma financial information, if any, included or incorporated by
reference in the Registration Statement, the most recent
Preliminary Prospectus and the Prospectus (and any amendment or
supplement thereto) are reasonable, and the adjustments used
therein are appropriate to give effect to the transactions or
circumstances referred to therein. No other financial statements or
schedules of the Issuers are required by the Securities Act or the
Exchange Act to be included in the Registration Statement, the most
recent Preliminary Prospectus or the Prospectus.
(gg)
Certain Transactions . Except as disclosed in the Pricing
Disclosure Package and the Prospectus, subsequent to the respective
dates as of which such information is given in the Pricing
Disclosure Package and the Prospectus, (i) none of the Plains
Parties has incurred any liability or obligation, indirect, direct
or contingent, or entered into any transactions, not in the
ordinary course of business, that, singly or in the aggregate, is
material to the Plains Entities, taken as a whole, (ii) there
has not been any material change in the capitalization, or material
increase in the short-term debt or long-term debt, of the Plains
Parties and (iii) there has not been any material adverse
change, or any development involving or that may reasonably be
expected to involve, singly or in the aggregate, a prospective
material adverse change in the condition (financial or other),
business, prospects, properties, net worth or results of operations
of the Plains Entities, taken as a whole.
11
(hh)
Litigation . There are no legal or governmental proceedings
pending or, to the knowledge of the Plains Parties, threatened,
against any of the Plains Parties, or to which any of the Plains
Parties is a party, or to which any of their respective properties
is subject, that are required to be described in the Registration
Statement, the Pricing Disclosure Package or the Prospectus but are
not described as required, and there are no agreements, contracts,
indentures, leases or other instruments that are required to be
described in the Registration Statement, the Pricing Disclosure
Package or the Prospectus or to be filed as an exhibit to the
Registration Statement that are not described or filed as required
by the Securities Act or the Exchange Act.
(ii)
Title to Properties . The Plains Parties have good and
indefeasible title to all real property and good title to all
personal property described in the Pricing Disclosure Package and
the Prospectus as being owned by them, free and clear of all liens,
claims, security interests or other encumbrances except (i) as
provided in the Second Restated Credit Agreement dated
November 6, 2008 (as amended, the “ Restated
Facility ”) among Plains Marketing, Bank of America,
N.A., as administrative agent thereunder and the lenders from time
to time party thereto, described in the Pricing Disclosure Package
and the Prospectus, (ii) as provided in the Plains AAP
Facility, and (iii) such as do not materially interfere with
the use of such properties taken as a whole as described in the
Pricing Disclosure Package and the Prospectus; and all real
property and buildings held under lease by any of the Plains
Parties are held under valid and subsisting and enforceable leases
with such exceptions as do not materially interfere with the use of
such properties taken as a whole as described in the Pricing
Disclosure Package and the Prospectus.
(jj)
Permits . Each of the Plains Parties has such permits,
consents, licenses, franchises, certificates and authorizations of
governmental or regulatory authorities (“ permits
”) as are necessary to own its properties and to conduct its
business in the manner described in the Pricing Disclosure Package
and the Prospectus, subject to such qualifications as may be set
forth in the Pricing Disclosure Package and the Prospectus and
except for such permits the failure of which to have obtained would
not have, individually or in the aggregate, a material adverse
effect upon the ability of the Plains Entities considered as a
whole to conduct their businesses in all material respects as
currently conducted and as contemplated by the Pricing Disclosure
Package and the Prospectus to be conducted; each of the Plains
Parties has fulfilled and performed all of its material obligations
with respect to such permits and no event has occurred that allows,
or after notice or lapse of time would allow, revocation or
termination thereof or results in any impairment of the rights of
the holder of any such permit, except for such failures to perform,
revocations, terminations and impairments that would not have a
material adverse effect upon the ability of the Plains Entities
considered as a whole to conduct their businesses in all material
respects as currently conducted and as contemplated by the Pricing
Disclosure Package and the Prospectus to be conducted, subject in
each case to such qualification as may be set forth in the Pricing
Disclosure Package and the Prospectus; and, except as described in
the Pricing Disclosure Package and the Prospectus, none of such
permits contains any restriction that is materially burdensome to
the Plains Entities, considered as a whole.
(kk)
Rights-of-Way . Each of the Plains Parties has such
consents, easements, rights-of-way or licenses from any person
(“ rights-of-way ”) as are necessary to conduct
its business in the manner described in the Pricing Disclosure
Package and the Prospectus, subject to such qualifications as may
be set forth in the Pricing Disclosure Package and the
Prospectus
12
and except for
such rights-of-way the failure of which to have obtained would not
have, individually or in the aggregate, a material adverse effect
upon the ability of the Plains Entities considered as a whole to
conduct their businesses in all material respects as currently
conducted and as contemplated by the Pricing Disclosure Package and
the Prospectus to be conducted; each of the Plains Parties has
fulfilled and performed all its material obligations with respect
to such rights-of-way and no event has occurred that allows, or
after notice or lapse of time would allow, revocation or
termination thereof or would result in any impairment of the rights
of the holder of any such rights-of-way, except for such failures
to perform, revocations, terminations and impairments that will not
have a material adverse effect upon the ability of the Plains
Entities considered as a whole to conduct their businesses in all
material respects as currently conducted and as contemplated by the
Pricing Disclosure Package and the Prospectus to be conducted,
subject in each case to such qualification as may be set forth in
the Prospectus; and, except as described in the Pricing Disclosure
Package and the Prospectus, none of such rights-of-way contains any
restriction that is materially burdensome to the Plains Entities,
considered as a whole.
(ll)
Investment Company . None of the Plains Parties is now, and
after sale of the Notes to be sold by the Issuers hereunder and
application of the net proceeds from such sale as described in the
Pricing Disclosure Package and the Prospectus under the caption
“Use of Proceeds,” none of the Plains Parties will be,
(i) an “investment company” within the meaning of
the Investment Company Act of 1940, as amended, (ii) a
“gas utility,” within the meaning of Tex. Util. Code
§ 121.001 or (iii) a “public utility” or
“utility” within the meaning of the Public Utility
Regulatory Act of Texas or under similar laws of any state in which
any such Plains Party does business; other than in respect of any
subsidiary of Pacific Energy Group that is under the jurisdiction
of the California Public Utility Commission.
(mm)
No Material Losses or Interference . None of the Plains
Parties has sustained since the date of the latest audited
financial statements included in the Pricing Disclosure Package and
the Prospectus (and any amendment or supplement thereto) 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, investigation, order or decree, otherwise than as set forth
or contemplated in the Pricing Disclosure Package and the
Prospectus (and any amendment or supplement thereto), which in each
case would have a material adverse effect on the condition
(financial or other), business, prospects, properties, net worth or
results of operations of the Plains Entities, taken as a
whole.
(nn)
Environmental Compliance . Except as described in the
Pricing Disclosure Package and the Prospectus, none of the Plains
Parties 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 Pricing Disclosure Package and 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 other),
business, prospects, properties, net worth or results of operations
of the Plains Entities, taken as a whole.
13
(oo)
No Labor Disputes . No labor dispute by the employees of any
of the Plains Parties exists or, to the knowledge of the Plains
Parties, is imminent, which might reasonably be expected to have a
material adverse effect on the condition (financial or other),
business, prospects, properties, net worth or results of operations
of the Plains Entities, taken as a whole.
(pp)
Insurance . The Plains Parties maintain insurance covering
their properties, operations, personnel and businesses against such
losses and risks as are reasonably adequate to protect them and
their businesses in a manner consistent with other businesses
similarly situated. None of the Plains Parties has received notice
from any insurer or agent of such insurer that substantial capital
improvements or other expenditures will have to be made in order to
continue such insurance, and all such insurance is outstanding and
duly in force on the date hereof and will be outstanding and duly
in force on the Delivery Date.
(qq)
Absence of Certain Actions . Except as described in the
Pricing Disclosure Package and the Prospectus, there is (i) no
action, suit or proceeding before or by any court, arbitrator or
governmental agency, body or official, domestic or foreign, now
pending or, to the knowledge of the Plains Parties, threatened, to
which any of the Plains Parties, or any of their respective
subsidiaries, is or may be a party or to which the business or
property of any of the Plains Parties, or any of their respective
subsidiaries, is or may be subject, (ii) no statute, rule,
regulation or order that has been enacted, adopted or issued by any
governmental agency or, to the knowledge of the Plains Parties,
that has been proposed by any governmental body and (iii) no
injunction, restraining order or order of any nature issued by a
federal or state court or foreign court of competent jurisdiction
to which any of the Plains Parties, or any of their respective
subsidiaries, is or may be subject, that, in the case of clauses
(i), (ii) and (iii) above, is reasonably expected to
(A) singly or in the aggregate have a material adverse effect
on the condition (financial or other), business, prospects,
properties, net worth or results of operations of the Plains
Entities, taken as a whole, (B) prevent or result in the
suspension of the offering and issuance of the Notes or (C) in
any manner draw into question the validity of this Agreement, the
Indenture or the Notes.
(rr)
Subsidiary Guarantor Actions . No Subsidiary Guarantor is
currently prohibited, directly or indirectly, from paying any
dividends to the Partnership, from making any other distribution on
such Subsidiary Guarantor’s capital stock or partnership or
limited liability company interests, from repaying to the
Partnership any loans or advances to such Subsidiary Guarantor from
the Partnership or from transferring any of such Subsidiary
Guarantor’s property or assets to the Partnership or any
other Subsidiary Guarantor of the Partnership, except as described
in or contemplated by the Pricing Disclosure Package and the
Prospectus (exclusive of any amendment or supplement
thereto).
(ss)
No Distribution of Other Offering Materials . None of the
Plains Parties has distributed and, prior to the later to occur of
(i) the Delivery Date and (ii) completion of the
distribution of the Notes, as the case may be, will not distribute,
any prospectus (as defined under the Securities Act) in connection
with the offering and sale of the Notes other than any Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus,
subject to the conditions in Section 1(h) of this Agreement, or
other materials, if any, permitted by the Securities Act, including
Rule 134 of the Rules and Regulations.
14
(tt)
Books and Records; Accounting Controls . The Partnership
maintains a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific
authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted
only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets
is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
(uu)
Sarbanes-Oxley Act . The Partnership and, to the knowledge
of the Plains Parties, the directors and officers of GP LLC in
their capacities as such, are in compliance in all material
respects with all applicable and effective provisions of the
Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated thereunder.
(vv)
Disclosure Controls . The Partnership maintains disclosure
controls and procedures (as such term is defined in
Rules 13a-15 and 15d-15 under the Exchange Act), that
(i) are designed to provide reasonable assurance that material
information relating to the Partnership, including its consolidated
subsidiaries, is recorded, processed, summarized and communicated
to the principal executive officer, the principal financial officer
and other appropriate officers of GP LLC to allow for timely
decisions regarding required disclosure, particularly during the
periods in which the periodic reports required under the Exchange
Act are being prepared; (ii) have been evaluated for
effectiveness as of the end of the Partnership’s most recent
fiscal quarter; and (iii) are effective in all material
respects to perform the functions for which they are
established.
(ww)
No Deficiency in Internal Controls . Based on the evaluation
of its disclosure controls and procedures conducted in connection
with the preparation and filing of the Partnership’s Annual
Report on Form 10-K for the period ended December 31, 2008,
the Partnership is not aware of (i) any significant deficiency
or material weakness in the design or operation of internal
controls over financial reporting that are likely to adversely
affect its ability to record, process, summarize and report
financial data; or (ii) any fraud, whether or not material,
that involves management or other employees who have a significant
role in the internal controls over financial reporting of the
Partnership.
(xx)
FCPA . None of the Plains Entities nor, to the knowledge of
the Plains Parties, any director, officer, agent, employee or
affiliate of the Plains Entities is aware of or has taken any
action, directly or indirectly, that would result in a violation by
such persons of the Foreign Corrupt Practices Act of 1977, as
amended, and the rules and regulations thereunder.
(yy)
Money Laundering Laws . No action, suit or proceeding by or
before any court or governmental agency, authority or body or any
arbitrator involving the Plains Entities that involve allegations
of money laundering is pending or, to the knowledge of the Plains
Parties, threatened.
(zz)
OFAC . None of the Plains Entities nor, to the knowledge of
the Plains Parties, any director, officer or employee of the Plains
Entities has received notice that it is
15
subject to any
sanctions administered by the Office of Foreign Assets Control of
the U.S. Treasury Department.
(aaa)
Rating of Notes . In accordance with Rule 2720(c)(3)(C)
of the Conduct Rules of the National Association of Securities
Dealers, Inc., the Notes have been rated in an investment grade
category by Moody’s Investors Service Inc. (“
Moody’s ”) and Standard & Poor’s
Ratings Services, a division of The McGraw-Hill Companies, Inc.
(“ S&P ”).
Any
certificate signed by any officer of the Plains Parties and
delivered to the Underwriters or counsel for the Underwriters in
connection with the offering of the Notes shall be deemed a
representation and warranty by the Plains Parties, as to matters
covered thereby, to the Underwriters.
2. Purchase
and Sale . Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the
Issuers agree to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Issuers the
principal amount of Notes set forth opposite such
Underwriter’s name on Schedule I hereto at a
purchase price of 99.344% of the principal amount thereof, plus
accrued interest, if any, from the Delivery Date.
3. Delivery
and Payment . Delivery of and payment for the Notes shall be
made at the office of Vinson & Elkins L.L.P., 1001 Fannin,
Houston, Texas 77002 at 9:00 a.m., Houston time, on April 20, 2009,
or at such time on such later date not more than three business
days after the foregoing date as the Representative shall
designate, which date and time may be postponed by agreement
between the Representative and the Issuers or as provided in
Section 9 hereof (such date and time of delivery and payment
for the Notes being herein called the “ Delivery Date
”). Payment for the Notes shall be made by wire transfer in
immediately available funds to the account(s) specified by the
Issuers to the Representative against delivery to the nominee of
The Depository Trust Company (“ DTC ”), for the
account of the Underwriters, of one or more global notes
representing the Notes (collectively, the “ Global
Note ”).
4. Offering
by the Underwriters . It is understood that the several
Underwriters propose to offer the Notes for sale to the public as
set forth in the Prospectus.
5.
Agreements of the Plains Parties . Each of the Plains
Parties, jointly and severally, acknowledges and agrees with the
Underwriters that:
(a)
Post-effective Amendments . If, at the Applicable Time, it
is necessary for a post-effective amendment to the Registration
Statement to be declared effective before the offering of the Notes
may commence, the Plains Parties will endeavor to cause such
post-effective amendment to become effective as soon as possible
and will advise the Representative promptly and, if requested by
the Representative, will confirm such advice in writing when such
post-effective amendment has become effective.
(b) Preparation
of Prospectus and Registration Statement . The Issuers will
advise the Representative promptly and, if requested by the
Representative, will confirm such advice in writing: (i) of
any request by the Commission for amendment of or a supplement to
the Registration Statement, the Preliminary Prospectus or the
Prospectus or
16
for additional
information; (ii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement or of the suspension of qualification of the Notes for
offering or sale in any jurisdiction or the initiation of any
proceeding for such purpose; and (iii) within the period of
time referred to in paragraph (e) below, of any change in the
condition (financial or other), business, prospects, properties,
net worth or results of operations of the Plains Entities, taken as
a whole, or of the happening of any event that makes any statement
of a material fact made in the Registration Statement, the Pricing
Disclosure Package or the Prospectus (as then amended or
supplemented) untrue or that requires the making of any additions
to or changes in the Registration Statement, the Pricing Disclosure
Package or the Prospectus (as then amended or supplemented) in
order to state a material fact required by the Securities Act or
the regulations thereunder to be stated therein or necessary in
order to make the statements therein (in the case of any
Preliminary Prospectus or the Prospectus, in the light of the
circumstances under which any such statements were made) not
misleading, or of the necessity to amend or supplement the
Prospectus (as then amended or supplemented) to comply with the
Securities Act or any other applicable law. If at any time the
Commission shall issue any stop order suspending the effectiveness
of the Registration Statement, the Issuers, the General Partner,
Plains AAP and GP LLC will make every commercially reasonable
effort to obtain the withdrawal of such order at the earliest
possible time.
(c) Final Term
Sheet and Issuer Free Writing Prospectuses . The Issuers agree
to (i) prepare a final term sheet, containing solely a description
of the final terms of the Notes and the offering thereof, in the
form approved by the Representative and attached as
Schedule II hereto, and to file such term sheet
pursuant to Rule 433 under the Securities Act within the time
required by such Rule and (ii) not to make any offer relating
to the Notes that would constitute an Issuer Free Writing
Prospectus without the prior written consent of the
Representative.
(d) Copies of
Registration Statement . The Issuers will furnish to the
Underwriters, without charge, (i) one copy of the manually
signed copy of the registration statement corresponding to the
Commission’s electronic data gathering, analysis and
retrieval system (“ EDGAR ”) or interactive data
electronic applications (“ IDEA ”) version filed
with the Commission and of each amendment thereto, including
financial statements and all exhibits to the registration
statement, (ii) such number of conformed copies of the
registration statement as originally filed and of each amendment
thereto, but without exhibits, as the Underwriters or counsel for
the Underwriters may reasonably request, (iii) such number of
copies of the Incorporated Documents, without exhibits, as the
Underwriters may request, and (iv) such number of copies of
the exhibits to the Incorporated Documents as the Underwriters may
request.
(e) Filing of
Amendment or Supplement . For such period as in the opinion of
counsel for the Underwriters a prospectus is required by the
Securities Act to be delivered in connection with sales by any
Underwriter or dealer, the Issuers will not file any amendment to
the Registration Statement, supplement to the Prospectus (or any
other prospectus relating to the Notes filed pursuant to
Rule 424(b) of the Rules and Regulations that differs from the
Prospectus as filed pursuant to such Rule 424(b)),
or
17
any Preliminary
Prospectus or Issuer Free Writing Prospectus of which the
Underwriters shall not previously have been advised or to which the
Underwriters shall have reasonably objected in writing after being
so advised unless the Issuers shall have determined based upon the
advice of counsel that such amendment, supplement or other filing
is required by law; and the Issuers will promptly notify the
Representative after they shall have received notice thereof of the
time when any amendment to the Registration Statement becomes
effective or when any supplement to the Prospectus has been
filed.
(f) Copies of
Documents to the Underwriters . As soon after the Applicable
Time as possible and thereafter from time to time for such period
as in the opinion of counsel for the Underwriters a prospectus is
required by the Securities Act to be delivered in connection with
sales by any Underwriter or dealer, the Issuers will expeditiously
deliver to each Underwriter and each dealer that the Underwriters
may specify, without charge, as many copies of the Prospectus (and
of any amendment or supplement thereto) as the Underwriters may
reasonably request. At any time after nine months after the time of
issuance of the Prospectus, upon request and without charge, the
Issuers will deliver as many copies of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Securities
Act as the Underwriters may reasonably request, provided that a
prospectus is required by the Securities Act to be delivered in
connection with sales of Notes by any Underwriter or dealer. The
Issuers consent to the use of the Prospectus (and of any amendment
or supplement thereto) in accordance with the provisions of the
Securities Act and with the securities or Blue Sky laws of the
jurisdictions in which the Notes are offered by the Underwriters
and by all dealers to whom Notes may be sold, both in connection
with the offering and sale of the Notes and for such period of time
thereafter as the Prospectus is required by the Securities Act to
be delivered in connection with sales by any Underwriter or dealer.
If during such period of time any event shall occur that in the
judgment of the Issuers or in the opinion of counsel for the
Underwriters and the Issuers is required to be set forth in the
Prospectus (as then amended or supplemented) or should be set forth
therein in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if
it is necessary to supplement or amend the Prospectus (or to file
under the Exchange Act any document which, upon filing, becomes an
Incorporated Document) to comply with the Securities Act or any
other law, the Issuers will forthwith prepare and, subject to the
provisions of paragraph (e) above, file with the Commission an
appropriate supplement or amendment thereto (or to such document),
and will expeditiously furnish to the Underwriters and dealers a
reasonable number of copies thereof; provided that, if any such
event necessitating a supplement or amendment to the Prospectus
occurs at any time after nine months after the time of issuance of
the Prospectus, such supplement or amendment shall be prepared at
the Underwriters’ expense. In the event that the Issuers and
the Underwriters agree that the Prospectus should be amended or
supplemented, the Issuers, if requested by the Underwriters, will
promptly issue a press release announcing or disclosing the matters
to be covered by the proposed amendment or supplement unless the
Issuers shall have determined, based on the advice of counsel, that
the issuance of such press release would not be required by
law.
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