Exhibit 1.1
M AGELLAN M IDSTREAM H OLDINGS , L.P.
17,000,000 Common
Units 1
Representing Limited Partner
Interests
Underwriting
Agreement
New York, New York
, 2006
C ITIGROUP G LOBAL M ARKETS I NC
.
L EHMAN B ROTHERS I NC
.
As Representatives of the several
Underwriters
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
c/o Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Ladies and Gentlemen:
Magellan Midstream Holdings, L.P., a
limited partnership organized under the laws of Delaware (the
“ Partnership ”), proposes to sell to the
several underwriters named in Schedule I hereto (the
“ Underwriters ”), for whom you (the “
Representatives ”) are acting as representatives,
17,000,000 common units representing limited partner interests in
the Partnership (“ Common Units ”) (said Common
Units to be issued and sold by the Partnership being hereinafter
called the “ Underwritten Units ”). The
Partnership also proposes to grant to the Underwriters an option to
purchase up to 2,550,000 additional Common Units to cover
over-allotments (the “ Option Units ”; the
Option Units, together with the Underwritten Units, being
hereinafter called the “ Units ”). To the extent
there are no additional Underwriters listed on
Schedule I other than you, the term Representatives as
used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or
plural as the context requires. Certain terms used herein are
defined in Section 21 hereof.
This is to confirm the agreement
among the Partnership, Magellan Midstream Holdings GP, LLC, a
Delaware limited liability company and general partner of the
Partnership (the “ General Partner ”), and MGG
Midstream Holdings, L.P., a Delaware limited partnership and the
parent of the General Partner (“ MGG Midstream
Holdings ,” and together with the Partnership and the
General Partner, the “ Magellan Parties ”), and
the Underwriters concerning the purchase
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Plus an option to purchase from the
Partnership, up to 2,550,000 additional common units to cover
over-allotments.
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of the Units from the Partnership by the
Underwriters. It is understood and agreed to by all parties that
the Partnership directly or indirectly owns:
1. 100% of Magellan GP, LLC,
a Delaware limited liability company (“ MMP GP
”), which holds a 2% general partner interest in and is the
general partner of Magellan Midstream Partners, L.P.,
a Delaware limited partnership (“ MMP ”);
and
2. 100% the incentive distributions
rights in MMP (the “ Incentive Distribution Rights
”);
each as more particularly described
in the Prospectus.
A. It is further understood and
agreed to by all parties that on the date hereof the Partnership is
owned by (i) the General Partner, with a 0.01% general partner
interest and (ii) MGG Midstream Holdings, with a 99.99%
limited partner interest. The General Partner is wholly owned by
MGG Midstream Holdings, with a 100% membership interest.
B. The Partnership and MGG Midstream
Holdings have entered into a Reimbursement Agreement effective as
of December 21, 2005 (the “ Reimbursement
Agreement ”) pursuant to which:
1. MGG Midstream Holdings has agreed
to reimburse the Partnership for any amounts paid by the
Partnership under the Purchase and Sale Agreement dated
April 18, 2003, as amended, among Williams Energy Services,
LLC, Williams Natural Gas Liquids, Inc., Williams GP LLC and the
Partnership;
2. MGG Midstream Holdings has agreed
to reimburse the Partnership for any amounts paid by the
Partnership under the New Omnibus Agreement dated June 17,
2003, as amended, by and among the Partnership, Williams Energy
Services, LLC, Williams Natural Gas Liquids, Inc. and The Williams
Companies, Inc.;
3. MGG Midstream Holdings has agreed
to reimburse the Partnership, from and after the Closing Date (as
defined in Section 3 below), for any obligations or
expenses incurred by the Partnership or the General Partner prior
to the Closing Date that are not paid in full prior to such date;
and
4. The Partnership and MGG Midstream
Holdings have entered into an Escrow Agreement dated
December 21, 2005, with JPMorgan Chase Bank, N.A., as escrow
agent (the “ Escrow Agreement ”), pursuant to
which MGG Midstream Holdings has escrowed funds sufficient to
satisfy its obligations under the Reimbursement
Agreement.
C. MGG Midstream Holdings has
entered into a Third Amended and Restated Limited Liability Company
Agreement of the General Partner dated as of December 21, 2005
(as amended and/or restated as of the Closing Date, the “
GP LLC Agreement ”).
D. The General Partner has adopted a
Third Amended and Restated Agreement of Limited Partnership of the
Partnership dated as of December 21, 2005.
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E. MMP, MMP GP and the General
Partner have entered into a Services Agreement dated
December 24, 2005 (the “ Services Agreement
”) pursuant to which MMP GP has engaged the General Partner
to provide certain services and all employees, facilities and
equipment necessary to operate MMP’s pipeline and terminal
assets and otherwise conduct MMP’s business.
F. On the Closing Date, the
following additional transactions will occur:
1. The Partnership and MGG Midstream
Holdings will enter into a $5 million working capital loan
agreement (the “ Working Capital Loan Agreement
”);
2. The General Partner will adopt a
Fourth Amended and Restated Agreement of Limited Partnership of the
Partnership dated as of the Closing Date (as amended and/or
restated as of the Closing Date, the “ Partnership
Agreement ”);
3. The general partner interest in
the Partnership owned by the General Partner will be converted into
8,834 general partner units representing general partner interests
in the Partnership (the “ General Partner Units
” and, together with the Common Units, the “
Partnership Units ”) representing an approximate 0.01%
general partner interest in the Partnership;
4. The limited partner interest in
the Partnership owned by MGG Midstream Holdings will be converted
into 45,646,551 Common Units representing an approximate 72.9%
limited partner interest in the Partnership; and
5. The Partnership will use all of
the net proceeds from the offering of the Underwritten Units to
make a distribution to MGG Midstream Holdings (and will use any net
proceeds from exercise of the Underwriters’ option to
purchase the Option Units to redeem common units from MGG Midstream
Holdings equal to the number of Option Units issued).
The transactions described above in
clauses (C) through (G) together with the
issuance of the Units as described above, are referred to herein as
the “ Transactions .”
The “ Transaction
Documents ” shall mean the Reimbursement Agreement, the
Escrow Agreement, the Services Agreement and the Working Capital
Loan Agreement. The “ Organizational Documents ”
shall mean each of the Partnership Agreement, the GP LLC Agreement,
the MMP GP LLC Agreement (as defined below) and the MMP Partnership
Agreement (as defined below) and the certificates of limited
partnership or formation and other organizational documents of the
Partnership, General Partner, MMP GP and MMP. The “
Operative Documents ” shall mean the Transaction
Documents and the Organizational Documents collectively.
The Magellan Parties and each of
their subsidiaries (including MMP GP, MMP, the Magellan
Partnerships (as defined herein), the Magellan Limited Liability
Companies (as defined herein)) are collectively referred to in this
Agreement as the “ Magellan Entities
.”
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1. Representations and
Warranties . Each of the Magellan Parties jointly and severally
represents and warrants to, and agrees with, each Underwriter as
set forth below in this Section 1 .
(a) Registration . The
Partnership has prepared and filed with the Commission a
registration statement (File No. 333-129623) on Form S-1,
including a related Preliminary Prospectus, for registration under
the Act of the offering and sale of the Units. Such Registration
Statement, including any amendments thereto filed prior to the
Execution Time, has become effective. The Partnership has filed one
or more amendments thereto, including a related Preliminary
Prospectus, each of which has previously been furnished to you. The
Partnership will file with the Commission a final prospectus in
accordance with Rule 424(b). As filed, such final prospectus shall
contain all information required by the Act and the rules
thereunder and, except to the extent the Representatives shall
agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes
(beyond that contained in the latest Preliminary Prospectus) as the
Partnership has advised you, prior to the Execution Time, will be
included or made therein.
(b) No Material Misstatements or
Omissions in Registration Statement and Prospectus . On the
Effective Date, the Registration Statement did, and when the
Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date and on any date on which
Option Units are purchased, if such date is not the Closing Date (a
“ settlement date ”), the Prospectus (and any
supplements thereto) will, comply in all material respects with the
applicable requirements of the Act and the rules thereunder; on the
Effective Date and at the Execution Time, the Registration
Statement did not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading;
and on the date of any filing pursuant to Rule 424(b) and on
the Closing Date and any settlement date, the Prospectus (together
with any supplement thereto) will not include any untrue statement
of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided , however , that the Magellan Parties make
no representations or warranties as to the information contained in
or omitted from the Registration Statement or the Prospectus (or
any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Partnership by or on behalf
of any Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Prospectus (or any
supplement thereto), it being understood and agreed that the only
such information furnished by any Underwriter consists of the
information described as such in Section 7(b)
hereof.
(c) No Material Misstatements or
Omissions in Disclosure Package or Electronic Roadshow . The
Disclosure Package and the price to the public, the number of
Underwritten Units, the number of Option Units and underwriting
discount on the cover page of the Prospectus, when taken together
as a whole, and each electronic roadshow when taken together with
the Disclosure Package, and the price to the public, the
number
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of Underwritten Units, the number of
Option Units and the underwriting discount on the cover page of the
Prospectus, do not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. The preceding sentence does not
apply to statements in or omissions from the Disclosure Package
based upon and in conformity with written information furnished to
the Partnership by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that
the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in
Section 7(b) hereof.
(d) Ineligible Issuer .
(i) At the time of filing the Registration Statement and
(ii) as of the Execution Time (with such date being used as
the determination date for purposes of this clause (ii)), the
Partnership was not and is not an Ineligible Issuer (as defined in
Rule 405), without taking account of any determination by the
Commission pursuant to Rule 405 that it is not necessary that the
Partnership be considered an Ineligible Issuer.
(e) Issuer Free Writing
Prospectuses . Each Issuer Free Writing Prospectus does not
include any information that conflicts with the information
contained in the Registration Statement. The foregoing sentence
does not apply to statements in or omissions from the Disclosure
Package based upon and in conformity with written information
furnished to the Partnership by any Underwriter through the
Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by any
Underwriter consists of the information described as such in
Section 7(b) hereof.
(f) Formation and Qualification
of the Magellan Partnerships . Each of MGG Midstream Holdings,
the Partnership and each of the other Magellan Entities that is a
limited partnership (collectively, the “ Magellan
Partnerships ”) 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 to own or lease, as the case may be, and to operate its
properties and conduct its business as described in the Disclosure
Package and the Prospectus, and is duly registered or qualified to
do business as a foreign limited partnership and is in good
standing under the laws of each jurisdiction, with respect to each
of the Magellan Partnerships, in which its ownership or lease of
property or the conduct of its business requires such registration
or qualification, except where the failure to so register or
qualify would not, individually or in the aggregate, (i) have
a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the
Magellan Entities, taken as a whole, whether or not arising from
transactions in the ordinary course of business (“
Material Adverse Effect ”), or (ii) subject the
limited partners of the Partnership to any material liability or
disability. With respect to the Magellan Partnerships listed on
Schedule III hereto, all of such jurisdictions are set forth
opposite its name on such Schedule III .
(g) Formation and Qualification
of the Magellan Limited Liability Companies . Each of the
General Partner and each of the other Magellan Entities that is
a
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limited liability company
(collectively, the “ Magellan Limited Liability
Companies ”) 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 to
own or lease, as the case may be, and to operate properties and
conduct its business as described in the Disclosure Package and the
Prospectus, and, in the case of the General Partner, MMP GP, IDR
LLC, MPGP LLC, OLP GP and MNGL LLC, to act as the general partner
of the Partnership, MMP, IDR LP, MPL LP, the Operating Partnership,
and each of MTH LP and MAS LP, respectively (each as hereinafter
defined). Each of the Magellan Limited Liability Companies is duly
registered or qualified to do business as a foreign limited
liability company and is in good standing in each jurisdiction,
with respect to each of the Magellan Limited Liability Companies,
in which its ownership or lease of property or the conduct of its
business requires such registration or qualification, except where
the failure to so register or qualify would not, individually or in
the aggregate, (i) have a Material Adverse Effect, or
(ii) subject the limited partners of the Partnership to any
material liability or disability. With respect to the Magellan
Limited Liability Companies listed on Schedule III
hereto, all of such jurisdictions are set forth opposite its name
on such Schedule III .
(h) Ownership of the General
Partner . MGG Midstream Holdings owns 100% of the issued and
outstanding membership interests in the General Partner; such
membership interests have been duly and validly authorized and
issued in accordance with the GP LLC Agreement, and MGG Midstream
Holdings owns such membership interests free and clear of all
liens, encumbrances, security interests, equities, charges or
claims (collectively, “ Liens ”).
(i) Ownership of the General
Partner Interest in the Partnership . On the Closing Date and
any settlement date, after giving effect to the Transactions, the
General Partner will be the sole general partner of the Partnership
and will own 8,834 General Partner Units representing an
approximate 0.01% general partner interest in the Partnership (the
“ GP Interest ”); on the Closing Date and any
settlement date, such GP Interest will have been duly and validly
authorized and issued in accordance with the Partnership Agreement,
and the General Partner will own such GP Interest free and
clear of all Liens.
(j) Ownership and Valid Issuance
of the Sponsor Units . On the Closing Date, after giving effect
to the Transactions and the offering of the Units as described in
the Prospectus, MGG Midstream Holdings will own an aggregate
45,646,551 Common Units representing an approximate 72.9% limited
partner interest in the Partnership (the “ Sponsor
Units ”). On the Closing Date and any settlement date,
all of the Sponsor Units and the limited partner interests
represented will have been duly and validly authorized and 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
Sections 17-303(a) and 17-607 of the Delaware LP Act); and MGG
Midstream Holdings will own the Sponsor Units, free and clear of
all Liens.
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(k) Valid Issuance of the
Units . At the time of purchase, the Units to be sold by the
Partnership and the limited partner interests represented thereby
have been duly and validly authorized in accordance with the
Partnership Agreement and, when issued and delivered to and paid
for by the Underwriters pursuant to this Agreement, will be fully
paid (to the extent required under the Partnership Agreement) and
nonassessable (except as such nonassessability may be affected by
Sections 17-303(a) and 17-607 of the Delaware LP Act and as
otherwise described in the Prospectus under the captions
“Material Provisions of the Partnership Agreement of Magellan
Midstream Holdings, L.P. – Limited Liability” and
“Risk Factors – Risks Inherent in an Investment in Us
– You may not have limited liability if a court finds that
unitholder action constitutes control of our business”); the
Units have been duly listed, and admitted and authorized for
trading, subject to official notice of issuance and evidence of
satisfactory distribution on the New York Stock Exchange (“
NYSE ”)[; and any certificates issued for the Units
will be issued in accordance with the Partnership
Agreement].
(l) Ownership of MMP GP . The
Partnership is the sole member of MMP GP with a 100% membership
interest in MMP GP; such membership interest has been duly and
validly authorized and issued in accordance with the limited
liability company agreement of MMP GP (as amended and/or restated
as of the Closing Date, the “ MMP GP LLC Agreement
”) and is fully paid (to the extent required under the MMP GP
LLC Agreement) and nonassessable (except as such nonassessability
may be affected by matters described in Section 18-607 of the
Delaware LLC Act); and the Partnership owns such membership
interest free and clear of all Liens.
(m) Ownership of the General
Partner Interest in MMP . MMP GP is the sole general partner of
MMP with a 2.0% general partner interest in MMP; such general
partner interest has been duly and validly authorized and issued in
accordance with the agreement of limited partnership of MMP (as
amended and/or restated as of the Closing Date, the “ MMP
Partnership Agreement ”); and MMP GP owns such general
partner interest free and clear of all Liens.
(n) Ownership of IDR LLC and IDR
LP. MMP GP owns 100% of the membership interest in Magellan IDR
LP, LLC, a Delaware limited liability company (“ IDR
LLC ”); such membership interest has been duly and
validly authorized and issued in accordance with the limited
liability agreement of IDR LLC (as amended and/or restated as of
the Closing Date, the “ IDR LLC Agreement ”);
and MMP GP owns such membership interest free and clear of all
Liens. MMP GP is the sole general partner of Magellan IDR, L.P., a
Delaware limited partnership (“ IDR LP ”), with
a 0.001% general partner interest in IDR LP; such general partner
interest has been duly and validly authorized and issued in
accordance with the limited partnership agreement of IDR LP (as
amended and/or restated as of the Closing Date, the “ IDR
LP Partnership Agreement ”); and MMP GP owns such general
partner interest free and clear of all Liens. IDR LLC is the sole
limited partner of IDR LP with a 99.999% limited partner interest
in IDR LP; such limited partner interest has been duly and validly
authorized and issued in accordance with the IDR LP Partnership
Agreement and is fully paid (to the extent required under the IDR
LP Partnership Agreement) and nonassessable (except as
such
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nonassessability may be affected by
Sections 17-303(a) and 17-607 of the Delaware LP Act); and IDR LLC
owns such limited partner interest free and clear of all
Liens.
(o) Valid Issuance and Ownership
of the Incentive Distribution Rights. The Incentive
Distribution Rights and the limited partner interests represented
thereby have been duly and validly authorized and issued in
accordance with the MMP Partnership Agreement, and are fully paid
(to the extent required under the MMP Partnership Agreement) and
nonassessable (except as such nonassessability may be affected by
Sections 17-303(a) and 17-607 of the Delaware LP Act); and IDR LP
owns all of the Incentive Distribution Rights free and clear of all
Liens.
(p) Ownership of Limited Partner
Interests in MMP . As of February 1, 2006, the issued and
outstanding limited partner interests of MMP consist of 66,360,624
common units representing limited partner interests in MMP and the
Incentive Distribution Rights; since February 1, 2006, there
have been no issuances of common units or other securities of MMP
other than pursuant to existing employee benefit plans and
exercises of existing options; and the outstanding MMP common units
and the limited partner interests represented thereby have been
duly and validly authorized and issued in accordance with the MMP
Partnership Agreement and are fully paid (to the extent required
under the MMP Partnership Agreement) and nonassessable (except as
such nonassessability may be affected by Sections 17-303(a) and
17-607 of the Delaware LP Act).
(q) Ownership of OLP GP . MMP
is the sole member of Magellan Operating GP, LLC, a Delaware
limited liability company (“ OLP GP ”), with a
100% membership interest in OLP GP; such membership interest has
been duly and validly authorized and issued in accordance with the
limited liability company agreement of OLP GP (as the same may be
amended and/or restated as of the Closing Date, the “ OLP
GP LLC Agreement ”), and is fully paid (to the extent
required under the OLP GP LLC Agreement) and nonassessable (except
as such nonassessability may be affected by Section 18-607 of
the Delaware LLC Act); and MMP owns such membership interest free
and clear of all Liens.
(r) Ownership of MPGP LLC .
MMP is the sole member of Magellan Pipeline GP, LLC,
a Delaware limited liability company (“ MPGP LLC
”), with a 100% membership interest in MPGP LLC; such
membership interest has been duly and validly authorized and issued
in accordance with the limited liability company agreement of MPGP
LLC (as the same may be amended and/or restated as of the Closing
Date, the “ MPGP LLC Agreement ”), and is fully
paid (to the extent required under the MPGP LLC Agreement) and
nonassessable (except as such nonassessability may be affected by
Section 18-607 of the Delaware LLC Act); and MMP owns such
membership interest free and clear of all Liens.
(s) Ownership of the Operating
Partnership . (i) OLP GP is the sole general partner of
Magellan OLP, L.P., a Delaware limited partnership (the “
Operating Partnership ”), with a 0.001% general
partner interest in the Operating Partnership; such general partner
interest has been duly and validly authorized and issued in
accordance
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with the agreement of limited
partnership of the Operating Partnership (as amended and/or
restated as of the Closing Date, the “ Operating
Partnership Agreement ”); and OLP GP owns such general
partner interest free and clear of all Liens; and (ii) MMP is
the sole limited partner of the Operating Partnership with a
99.999% limited partner interest in the Operating Partnership; such
limited partner interest has been duly and validly authorized and
issued in accordance with the Operating Partnership Agreement and
is fully paid (to the extent required under the Operating
Partnership Agreement) and nonassessable (except as such
nonassessability may be affected by Sections 17-303(a) and 17-607
of the Delaware LP Act); and MMP owns such limited partner interest
free and clear of all Liens.
(t) Ownership of Magellan MNGL
LLC. The Operating Partnership is the sole member of Magellan
NGL, LLC, a Delaware limited liability company (“ MNGL
LLC ”), with a 100% membership interest in MNGL LLC; such
membership interest has been duly and validly authorized and issued
in accordance with the limited liability company agreement of MNGL
LLC (as the same may be amended and/or restated as of the Closing
Date, the “ MNGL LLC Agreement ”) and is fully
paid (to the extent required under the MNGL LLC Agreement) and is
nonassessable (except as such nonassessability may be affected by
Section 18-607 of the Delaware LLC Act); and the Operating
Partnership owns such membership interest free and clear of all
Liens.
(u) Ownership of MTH LP and MAS
LP.
(i) MNGL LLC is the sole general
partner of each of Magellan Terminals Holdings, L.P. (“
MTH LP ”) and Magellan Asset Services, L.P. (“
MAS LP ”), each a Delaware limited partnership,
with a 0.001% general partner interest in each of MTH LP and MAS
LP; each such general partner interest has been duly and validly
authorized and issued in accordance with the agreement of limited
partnership of MTH LP or MAS LP, as applicable (as such may be
amended and restated as of the Closing Date, the “ MTH LP
Partnership Agreement ” and the “ MAS LP
Partnership Agreement ”, respectively); and MNGL LLC owns
each such general partner interest free and clear of all
Liens.
(ii) The Operating Partnership is
the sole limited partner of each of MTH LP and MAS LP with a
99.999% limited partner interest in each of MTH LP and MAS LP; each
such limited partner interest has been duly and validly authorized
and issued in accordance with the MTH LP Partnership Agreement or
the MAS LP Partnership Agreement, as applicable, and is fully paid
(to the extent required under the MTH LP Partnership Agreement and
the MAS LP Partnership Agreement, as applicable) and nonassessable
(except as such nonassessability may be affected by Sections
17-303(a) and 17-607 of the Delaware LP Act); and the Operating
Partnership owns each such limited partner interest free and clear
of all Liens.
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(v) Ownership of MPL LP
.
(i) MPGP LLC is the sole general
partner of Magellan Pipeline Company, L.P., a Delaware limited
partnership (“ MPL LP ”), with a 0.001% general
partner interest in MPL LP; such general partner interest has been
duly and validly authorized and issued in accordance with the
agreement of limited partnership of MPL LP (as the same may be
amended and/or restated as of the Closing Date, the “ MPL
LP Partnership Agreement ”); and MPGP LLC owns such
general partner interest free and clear of all Liens.
(ii) MMP is the sole limited partner
of MPL LP with a 99.999% limited partner interest in MPL LP; such
limited partner interest has been duly and validly authorized and
issued in accordance with the MPL LP Partnership Agreement and is
fully paid (to the extent required under the MPL LP Partnership
Agreement) and nonassessable (except as such nonassessability may
be affected by Sections 17-303(a) and 17-607 of the Delaware LP
Act); and the Partnership owns such limited partner interest free
and clear of all Liens.
(w) Subsidiaries . None of
the Magellan Entities, other than MNGL LLC, MTH LP and MAS LP, is a
“significant subsidiary” of the Partnership as such
term is defined in Rule 1-02 of Regulation S-X.
(x) No Preemptive Rights,
Registration Rights or Options . Except for any such rights
that have been effectively complied with or waived, there are no
preemptive rights or other rights to subscribe for or to purchase,
nor any restriction upon the voting or transfer of, any partnership
or membership interests or any shares of capital stock of any of
the Magellan Entities, in each case, pursuant to the organizational
documents or any agreement or other instrument to which any of the
Magellan Entities is a party or by which any of them is bound.
Neither (i) the filing of the Registration Statement or
(ii) the offering, issuance or sale of the Units as
contemplated by this Agreement, gives rise to any rights for or
relating to the registration of any Common Units or other
securities of any of the Magellan Entities. Except for options
granted pursuant to employee benefits plans, qualified unit option
plans or other employee compensation plans, there are no
outstanding options or warrants to purchase any partnership or
membership interests or capital stock in any of the Magellan
Entities.
(y) Authority . Each of the
Magellan Parties has all requisite power and authority to execute
and deliver this Agreement and perform its respective obligations
hereunder. The Partnership has all requisite power and authority to
issue, sell and deliver the Units in accordance with and upon the
terms and conditions set forth in this Agreement and the
Partnership Agreement and as described in the Registration
Statement, the Prospectus and the Disclosure Package. On the
Closing Date and any settlement date, all actions required to be
taken by the Magellan Entities and any of their securityholders,
partners or members for (i) the authorization, issuance, sale
and delivery of the Units, (ii) the authorization, execution
and delivery of this Agreement and the Operative Documents and
(iii) the consummation of the transactions contemplated by
this
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Agreement and the Operative
Documents (including the Transactions), shall have been validly
taken.
(z) Authorization, Execution and
Delivery of Agreement . This Agreement has been duly
authorized, executed and delivered by each of the Magellan Parties,
and constitutes the valid and legally binding agreement of each of
the Magellan Parties enforceable against each of the Magellan
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 provided further , that the indemnity, contribution and
exoneration provisions contained therein may be limited by
applicable laws and public policy.
(aa) Authorization, Execution,
Delivery and Enforceability of Certain Agreements . On the
Closing Date:
(i) the Partnership Agreement will
be duly authorized, executed and delivered by the General Partner
and will be a valid and legally binding agreement of the General
Partner, enforceable against the General Partner in accordance with
its terms;
(ii) the GP LLC Agreement will be
duly authorized, executed and delivered by MGG Midstream Holdings
and will be a valid and legally binding agreement of MGG Midstream
Holdings, enforceable against MGG Midstream Holdings in accordance
with its terms; and
(iii) each of the Transaction
Documents will be duly authorized, executed and delivered by the
parties thereto and will be a valid and legally binding agreement
of each of them, enforceable against each of them in accordance
with its terms.
except , with respect to each agreement described in
this Section 1(cc) , as the enforceability thereof may
be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other 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).
(bb) Authorization, Execution and
Enforceability of Certain MMP Agreements . (i) The MMP GP
LLC Agreement has been duly authorized, executed and delivered by
the Partnership as the sole member of MMP GP, and is a valid and
legally binding agreement of the Partnership, enforceable against
the Partnership in accordance with its terms; (ii) the MMP
Partnership Agreement has been duly authorized, executed and
delivered by MMP GP and is a valid and legally binding agreement of
MMP GP, enforceable against MMP GP in accordance with its terms;
(iii) the OLP GP LLC Agreement has been duly authorized,
executed and delivered by MMP as the sole member of OLP GP, and is
a valid and legally binding agreement of MMP,
enforceable
11
against MMP in accordance with its
terms; (iv) the Operating Partnership Agreement has been duly
authorized, executed and delivered by each of OLP GP and MMP and is
a valid and legally binding agreement of each of OLP GP and
MMP, enforceable against each of OLP GP and MMP in accordance
with its terms; (v) the MPGP LLC Agreement has been duly
authorized, executed and delivered by MMP and is a valid and
legally binding agreement of MMP, enforceable against MMP in
accordance with its terms; and (vi) the MPL LP Partnership
Agreement has been duly authorized, executed and delivered by MPGP
LLC and MMP and is a valid and legally binding agreement of each of
MPGP LLC and MMP, enforceable against each of MPGP LLC and MMP in
accordance with its terms; except , with respect to each
agreement described in clauses (i) , (ii) ,
(iv) , (v) and (vi) as the
enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other 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).
(cc) No Conflicts or
Violations . None of the (i) offering, issuance and sale
of the Units, (ii) the execution, delivery and performance of
this Agreement by the Magellan Parties and the Operative Documents
by the Magellan Entities that are parties thereto, or
(iii) the consummation of any other transactions contemplated
by this Agreement or the Operative Documents (including the
Transactions) or the fulfillment of the terms hereof or thereof,
conflicts or will conflict with, result in a breach or violation
of, or a default (or an event that, with notice or lapse of time or
both, would constitute such a default) under, or imposition of any
Lien upon any property or assets of the Magellan Entities pursuant
to (i) the certificate of limited partnership or agreement of
limited partnership, certificate of formation or limited liability
company agreement, or other organizational documents of any of the
Magellan Entities, (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to
which any of the Magellan Entities is a party or by which any of
them are bound or to which any of their respective properties is
subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to any of the Magellan
Entities of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having
jurisdiction over any of the Magellan Entities or any of their
properties or assets, except, in the case of clauses (ii) and
(iii), for such conflicts, breaches, violations, defaults or Liens
as would not, individually or in the aggregate, have a Material
Adverse Effect, or would not materially impair the ability of any
of the Magellan Parties to perform their obligations under this
Agreement or the ability of any of the Magellan Entities to perform
their obligations any of the Operative Documents to which they may
be a party.
(dd) No Consents Regarding the
Offering . No consent, approval, authorization, filing with or
order of any court or governmental agency or body is required in
connection with (i) the offering, issuance and sale by the
Partnership of the Units, (ii) the execution, delivery and
performance of this Agreement or any of the Operative Documents by
the Magellan Parties, or (iii) the transactions contemplated
by this Agreement or any of the Operative Documents, except for
(A) such consents that have been obtained or will be obtained
prior to the Closing Date and (B) such consents that may be
required under the Act, the Exchange Act and the Blue Sky laws of
any
12
jurisdiction in connection with the
purchase and distribution of the Units by the Underwriters in the
manner contemplated herein and in the Prospectus and (C) such
consents that, if not obtained, would not, individually or in the
aggregate, have a Material Adverse Effect or would not materially
impair the ability of any of the Magellan Parties to perform their
obligations under this Agreement or the ability of any of the
Magellan Entities to perform their obligations any of the Operative
Documents to which they may be a party.
(ee) No Default . None of the
Magellan Entities (i) is in violation of any provision of its
certificate of limited partnership or agreement of limited
partnership, certificate of formation or limited liability company
agreement, or other organizational documents, (ii) is in
breach, default (and no event that, with notice or lapse of time or
both, would constitute such a default has occurred or is
continuing) or violation in the performance of any obligation,
agreement or condition contained in any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which
it is a party or bound or to which its property is subject, or
(iii) is in violation of any statute, law, rule, regulation,
judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over such Magellan Entity or any of
its properties or has failed to obtain any license, permit,
certificate, franchise or other governmental authorization or
permit necessary to the ownership of its property or to the conduct
of its business, except in the case of clauses (ii)
and (iii) , as would not have a Material Adverse
Effect or could materially impair the ability of any of the
Magellan Parties to perform their obligations under this Agreement
or the ability of any of the Magellan Entities to perform their
obligations any of the Operative Documents to which they may be a
party.
(ff) Independent Public
Accountants . Ernst & Young LLP, who have certified
certain financial statements of the General Partner and of the
Partnership and its consolidated subsidiaries and delivered their
report with respect to the audited consolidated financial
statements and schedules included in the Prospectus, are
independent public accountants with respect to the Partnership, the
General Partner, MMP and MMP GP, within the meaning of the Act and
the applicable rules and regulations thereunder.
(gg) Financial Statements .
At September 30, 2005, the Partnership would have had, on the
consolidated pro forma basis indicated in the Disclosure Package
and the Prospectus (and any amendment or supplement thereto), a
capitalization as set forth therein. The historical financial
statements and schedules included in the Disclosure Package, the
Prospectus and the Registration Statement present fairly in all
material respects the financial condition, results of operations
and cash flows of the entities purported to be shown thereby as of
the dates and for the periods indicated, comply as to form with the
applicable accounting requirements of the Act and have been
prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved (except as otherwise noted therein). The summary and
selected financial data set forth under the captions “Summary
Historical Consolidated and Pro Forma Financial Data” and
“Selected Consolidated Financial Data” in
the
13
Disclosure Package, the Prospectus
and the Registration Statement fairly present, on the basis stated
in the Disclosure Package, the Prospectus and the Registration
Statement, the information included therein and is accurately
presented in all material respects and prepared on a basis
consistent with the audited and unaudited historical consolidated
financial statements from which they have been derived. The
“capsule” financial information of the Partnership for
the year ended December 31, 2005 set forth under the caption
“Summary—Recent Developments—2005 Financial
Results (Unaudited)” and the other financial information of
the General Partner, the Partnership, MMP GP, and MMP, including
non-GAAP financial measures, contained in the Registration
Statement, the Disclosure Package and the Prospectus (and any
amendment or supplement thereto) has been derived from the
accounting records of the General Partner, the Partnership, MMP GP,
MMP and its subsidiaries, and fairly presents the information
purported to be shown thereby. The pro forma financial statements
and the related notes thereto contained in the Disclosure Package,
the Prospectus and the Registration Statement include assumptions
that provide a reasonable basis for presenting the significant
effects directly attributable to the transactions and events
described therein, the related pro forma adjustments give
appropriate effect to those assumptions, and the pro forma
adjustments reflect the proper application of those adjustments to
the historical financial statement amounts in the pro forma
information included in the Disclosure Package, the Prospectus and
the Registration Statement. The pro forma financial statements
included in the Disclosure Package, the Prospectus and the
Registration Statement comply as to form in all material respects
with the applicable accounting requirements of Regulation S-X under
the Act and the pro forma adjustments have been properly applied to
the historical amounts in the compilation of that
information.
(hh) Absence of Certain
Changes . Except as disclosed in the Registration Statement,
the Disclosure Package and the Prospectus (exclusive of any
amendment or supplement thereto), subsequent to the respective
dates as of which such information is given in the Registration
Statement, the Disclosure Package and the Prospectus (exclusive of
any amendment or supplement thereto), (i) none of the Magellan
Entities has incurred any liability or obligation, indirect, direct
or contingent, or entered into any transactions, not in the
ordinary course of business, that, individually or in the
aggregate, is material to the Magellan Entities, taken as a whole,
and (ii) there has not been any material change in the
capitalization or material increase in the long-term debt of any of
the Magellan Entities, or any dividend or distribution of any kind
declared, paid or made by the Partnership or MMP on any class of
their partnership interests.
(ii) Conformity to Description of
the Units . The Units, when issued and delivered in accordance
with the Partnership Agreement against payment therefor as provided
herein, will conform in all material respects to the descriptions
thereof contained in the Disclosure Package and the
Prospectus.
(jj) No Omitted Descriptions;
Legal Descriptions . There is no legal or governmental
proceeding pending or, to the knowledge of the Magellan Parties,
threatened or contemplated, against any of the Magellan Entities,
or to which any of the Magellan Entities is a party, or to which
any of their respective properties or assets is subject, that is
required to be described in the Registration Statement, the
Disclosure
14
Package and the Prospectus, which
are not described as required, and there is no franchise, contract,
or other document of a character required to be described in the
Registration Statement, the Disclosure Package and the Prospectus,
or to be filed as an exhibit to the Registration Statement, which
is not described or filed as required. The statements in the
Statutory Prospectus and the Prospectus under the headings
“How We Make Cash Distributions,”
“Management’s Discussion and Analysis of Financial
Condition and Results of Operations—Liquidity and Capital
Resources—Debt of Magellan Midstream Holdings, L.P.”
and “—Debt of Magellan Midstream Partners, L.P.,”
“Management,” “Certain Relationships and Related
Transactions,” “Conflicts of Interest and Fiduciary
Responsibilities,” “Description of the Common
Units,” “Material Provisions of the Partnership
Agreement of Magellan Midstream Holdings, L.P.,”
“Material Provisions of the Partnership Agreement of Magellan
Midstream Partners, L.P.” and “Material Tax
Consequences,” insofar as such statements summarize legal
matters, agreements, documents or proceedings discussed therein,
are accurate and fair summaries of such legal matters, agreements,
documents or proceedings.
(kk) Title to Properties .
Each of the Magellan Entities has 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 and other defects,
except (i) such as are described in the Disclosure Package and
the Prospectus (exclusive of any supplement thereto) or
(ii) such as do not materially affect the value of such
property taken as a whole and do not materially interfere with the
use made and proposed to be made of such property taken as a whole
as described in the Disclosure Package and the Prospectus
(exclusive of any supplement thereto); provided that, with respect
to title to pipeline rights-of-way, the Magellan Parties represent
only that no Magellan Entity has received any actual notice or
claim from any owner of land upon which its pipeline is located
that any of such entities, as applicable, does not have sufficient
title to enable it to use and occupy the pipeline rights-of-way as
they are used and occupied as described in the Disclosure Package
and the Prospectus (exclusive of any supplement thereto) and which
constitute valid claims or which have not been satisfied by the
applicable parties that will have, individually or in the
aggregate, a Material Adverse Effect. All assets held under lease
or license by the Magellan Entities are held under valid,
subsisting and enforceable leases or licenses, with such exceptions
(i) 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 as
described in the Disclosure Package and the Prospectus (exclusive
of any supplement thereto) or (ii) that would not have,
individually or in the aggregate, a Material Adverse
Effect.
(ll) Permits . Each of the
Magellan Entities possesses all licenses, certificates, permits and
other authorizations issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct their
respective businesses and none of the Magellan Entities has
received any notice of proceedings relating to the revocation or
modification of any such license, certificate, authorization or
permit which, if the subject of an unfavorable decision, ruling or
finding, would have, individually or in the aggregate, a Material
Adverse Effect, except as set forth in or contemplated in the
Disclosure Package and the Prospectus (exclusive of any supplement
thereto).
15
(mm) Books and Records;
Accounting Controls . The Magellan Entities (i) make and
keep books, records and accounts that, in reasonable detail,
accurately and fairly reflect the transactions and dispositions of
assets, and (ii) maintain a system of internal accounting
controls sufficient to provide reasonable assurance that
(A) transactions are executed in accordance with
management’s general or specific authorizations;
(B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with U.S.
generally accepted accounting principles and to maintain asset
accountability; (C) access to assets is permitted only in
accordance with management’s general or specific
authorization; and (D) the recorded accountability for assets
is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
(nn) Related Party
Transactions . No relationship, direct or indirect, exists
between or among any of the Magellan Entities on the one hand, and
the directors, officers, partners, security holders, customers or
suppliers of the Magellan Entities on the other hand, which is
required to be described in the Disclosure Package and the
Prospectus and which is not so described.
(oo) Environmental Compliance
. The Magellan Entities are (i) in compliance with any and all
applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants
or contaminants (“ Environmental Laws ”),
(ii) have received and are in compliance with all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and
(iii) have not received notice of any actual or potential
liability under any environmental law, except where such
non-compliance with Environmental Laws, failure to receive required
permits, licenses or other approvals, or liability would not,
individually or in the aggregate, have a Material Adverse Effect,
except as set forth in or contemplated in the Disclosure Package
and the Prospectus (exclusive of any supplement thereto). Except as
set forth in the Disclosure Package and the Prospectus, none of the
Magellan Entities has been named as a “potentially
responsible party” under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as
amended.
(pp) Effect of Environmental
Laws . In the ordinary course of its business, the Magellan
Parties periodically review the effect of Environmental Laws on the
business, operations and properties of the Magellan Entities, in
the course of which they identify and evaluate associated costs and
liabilities (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties
or compliance with Environmental Laws, or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such
review, the Magellan Parties have reasonably concluded that such
associated costs and liabilities would not, individually or in the
aggregate, have a Material Adverse Effect, except as set forth in
or contemplated in the Disclosure Package and the Prospectus
(exclusive of any supplement thereto).
(qq) Insurance . Each of the
Magellan Entities carries, or is covered by, insurance in such
amounts and covering such risks as is adequate for the conduct of
its
16
business and the value of their
respective properties and as is customary for businesses engaged in
similar businesses in similar industries, and none of the Magellan
Entities has received notice of cancellation or non-renewal of such
insurance.
(rr) Litigation . No action,
suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving any of the Magellan
Entities or their property is pending or, to the best knowledge of
the Magellan Parties, threatened that (i) could reasonably be
expected to have, individually or in the aggregate, a material
adverse effect on the performance of this Agreement or any of the
Transaction Documents or the consummation of any of the
transactions (including the Transactions) contemplated hereby or
thereby or (ii) could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect, except
as set forth in or contemplated in the Disclosure Package and the
Prospectus (exclusive of any supplement thereto).
(ss) No Labor Disputes . No
labor problem or dispute with the employees of any of the Magellan
Entities exists or, to the knowledge of the Magellan Parties, is
threatened or imminent, and the Magellan Parties are not aware of
any existing or imminent labor disturbance by the employees of any
of the Magellan Entities’ principal suppliers, contractors or
customers, that could have, individually or in the aggregate, a
Material Adverse Effect, except as set forth in or contemplated in
the Disclosure Package and the Prospectus (exclusive of any
supplement thereto).
(tt) Intellectual Property .
Each of the Magellan Entities owns or possesses adequate rights to
use all patents, patent applications, trademarks, service marks,
trade names, trademark registrations, service mark registrations,
copyrights and licenses necessary for the conduct of its business
and none of the Magellan Entities is aware of any claim to the
contrary or any challenge by any other person to the rights of any
of the Magellan Entities with respect to the foregoing.
(uu) Investment Company/Public
Utility Holding Company . None of the Magellan Parties is or,
after giving effect to the offering and sale of the Units and the
application of the proceeds thereof as described in the Prospectus,
will be (i) an “investment company” or a company
“controlled by” an “investment company” as
defined in the Investment Company Act of 1940, as amended (the
“ Investment Company Act ”), or (ii) a
“holding company” or a “subsidiary company”
or “affiliate” of a “holding company” under
the Public Utility Holding Company Act of 1935, as amended (the
“ Public Utility Holding Company Act
”).
(vv) Absence of Certain
Actions . No action has been taken and no statute, rule,
regulation or order has been enacted, adopted or issued by any
governmental agency or body which prevents the issuance or sale of
the Units in any jurisdiction; no injunction, restraining order or
order of any nature by any federal or state court of competent
jurisdiction has been issued with respect to any of the Magellan
Parties which would prevent or suspend the issuance or sale of the
Units or the use of the Preliminary Prospectus or the Prospectus in
any jurisdiction; no action, suit or proceeding is pending against
or, to the knowledge of the Magellan Parties, threatened against or
affecting any of the Magellan Parties before any court or
arbitrator or any governmental agency, body
17
or official, domestic or foreign,
which could reasonably be expected to interfere with or adversely
affect the issuance of the Units or in any manner draw into
question the validity or enforceability of this Agreement or any
action taken or to be taken pursuant hereto; and the Partnership
has complied with any and all requests by any securities authority
in any jurisdiction for additional information to be included in
the Preliminary Prospectus and the Prospectus.
(ww) No Stabilizing
Transactions . None of the Magellan Parties or any of their
Affiliates has taken, directly or indirectly, any action designed
to or that would constitute or that might reasonably be expected to
cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the
Partnership to facilitate the sale or resale of the
Units.
(xx) No Prohibition on Dividends
or Distribution . None of the Magellan Entities is currently
prohibited, directly or indirectly, from (i) paying any
dividends to the Partnership or MMP, (ii) making any other
distribution on such entity’s capital stock or partnership or
limited liability company interests, (iii) repaying to the
Partnership or MMP any loans or advances to such entity or
(iv) transferring any of such entity’s property or
assets to the Partnership or any other Magellan Entity, except as
described in or contemplated by the Disclosure Package and the
Prospectus (exclusive of any supplement thereto).
(yy) Statistical Data . The
statistical and market-related data included in the Disclosure
Package, Prospectus and the Registration Statement are based on or
derived from sources which the Magellan Parties believe to be
reliable and accurate.
(zz) Sarbanes Oxley Act.
There is and has been no failure on the part of the Partnership or
any of the directors or officers of the General Partner and MMP GP,
respectively, in their capacities as such, to comply with any
provision of the Sarbanes Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith (the “
Sarbanes Oxley Act ”), including Section 402
related to loans and Sections 302 and 906 related to
certifications.
(aaa) No Deficiency in Internal
Controls . Based on the evaluation of its disclosure controls
and procedures conducted in connection with the preparation and
filing of MMP’s Quarterly Report on Form 10-Q for the period
ended September 30, 2005, none of the General Partner, the
Partnership, MMP GP or MMP is aware of (i) any significant
deficiencies or material weaknesses in the design or operation of
the MMP’s internal control over financial reporting that are
likely to adversely affect the MMP’s 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 role in the MMP’s internal control over
financial reporting.
(bbb) No Changes in
MMP’s Internal Controls . Since the date of the most
recent evaluation of such disclosure controls and procedures, there
have been no significant changes in MMP’s internal controls
that materially affected or are reasonably likely to materially
affect MMP’s internal controls over financial
reporting.
18
(ccc) ERISA Matters. The
minimum funding standard under Section 302 of the Employee
Retirement Income Security Act of 1974, as amended, and the
regulations and published interpretations thereunder (“
ERISA ”), has been satisfied by each “pension
plan” (as defined in Section 3(2) of ERISA) which has
been established or maintained by one or more of the Magellan
Entities, and the trust forming part of each such plan which is
intended to be qualified under Section 401 of the Code is so
qualified; each of the Magellan Entities has fulfilled its
obligations, if any, under Section 515 of ERISA; none of the
Magellan Entities subsidiaries maintains or is required to
contribute to a “welfare plan” (as defined in
Section 3(1) of ERISA) which provides retiree or other
post-employment welfare benefits or insurance coverage (other than
“continuation coverage” (as defined in Section 602
of ERISA)); each pension plan and welfare plan established or
maintained by the one or more of the Magellan Entities is in
compliance in all material respects with the currently applicable
provisions of ERISA; and none of the Magellan Entities has incurred
or could reasonably be expected to incur any withdrawal liability
under Section 4201 of ERISA, any liability under
Section 4062, 4063, or 4064 of ERISA, or any other liability
under Title IV of ERISA.
(ddd) Tax Matters. Each of
the Magellan Entities has filed all foreign, federal, state and
local tax returns that are required to be filed or have requested
extensions thereof (except in any case in which the failure so to
file would not have, individually or in the aggregate, a Material
Adverse Effect, except as set forth in or contemplated in the
Disclosure Package and the Prospectus (exclusive of any supplement
thereto) and have paid all taxes required to be paid by them and
any other assessment, fine or penalty levied against them, to the
extent that any of the foregoing is due and payable, except for any
such assessment, fine or penalty that is currently being contested
in good faith or as would not have, individually or in the
aggregate, a Material Adverse Effect, except as set forth in or
contemplated in the Disclosure Package and the Prospectus
(exclusive of any supplement thereto).
(eee) Office of Foreign
Assets. None of the Magellan Entities nor, to the knowledge of
the Magellan Parties, any director, officer, agent, employee or
affiliate of any of the Magellan Entities is currently subject to
any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department (“ OFAC
”); and the Magellan Entities will not directly or indirectly
use the proceeds of the offering, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture
partner or other person or entity, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions
administered by OFAC.
Any certificate signed by any
officer of any of the Magellan Parties and delivered to the
Representatives or counsel for the Underwriters in connection with
the offering of the Units shall be deemed a representation and
warranty by such entity, as to matters covered thereby, to each
Underwriter.
2. Purchase and Sale
.
(a) Subject to the terms and
conditions and in reliance upon the representations and warranties
herein set forth, the Partnership agrees to sell to each
19
Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the
Partnership, at a purchase price of $
per share, the amount of the Underwritten Units set forth opposite
such Underwriter’s name in Schedule I
hereto.
(b) Subject to the terms and
conditions and in reliance upon the representations and warranties
herein set forth, the Partnership hereby grants an option to the
several Underwriters to purchase, severally and not jointly, up to
2,550,000 Option Units at the same purchase price per unit as the
Underwriters shall pay for the Underwritten Units. Said option may
be exercised only to cover over-allotments in the sale of the
Underwritten Units by the Underwriters. Said option may be
exercised in whole or in part at any time on or before the 30th day
after the date of the Prospectus upon written or telegraphic notice
by the Representatives to the Partnership setting forth the number
of Option Units as to which the several Underwriters are exercising
the option and the settlement date. The number of Option Units to
be purchased by each Underwriter shall be the same percentage of
the total number of Option Units to be purchased by the several
Underwriters as such Underwriter is purchasing of the Underwritten
Units, subject to such adjustments as you in your absolute
discretion shall make to eliminate any fractional units.
3. Delivery and Payment .
Delivery of and payment for the Underwritten Units and the Option
Units (if the option provided for in Section 2(b)
hereof shall have been exercised on or before the third Business
Day prior to the Closing Date) shall be made at 10:00 a.m.,
New York City time, on
, 2006 or at such time on such later date not more than three
Business Days after the foregoing date as the Representatives shall
designate, which date and time may be postponed by agreement
between the Representatives and the Partnership or as provided in
Section 8 hereof (such date and time of delivery and
payment for the Units being herein called the “ Closing
Date ”). Delivery of the Units shall be made to the
Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through
the Representatives of the purchase price thereof to or upon the
order of the Partnership by wire transfer payable in same-day funds
to an account specified by the Partnership. Delivery of the
Underwritten Units and the Option Units shall be made through the
facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
If the option provided for in
Section 2(b) hereof is exercised after the third
Business Day prior to the Closing Date, the Partnership will
deliver the Option Units (at the expense of the Partnership) to the
Representatives, at 388 Greenwich Street, New York,
New York, on the date specified by the Representatives (which
shall be within three Business Days after exercise of said option)
for the respective accounts of the several Underwriters, against
payment by the several Underwriters through the Representatives of
the purchase price thereof to or upon the order of the Partnership
by wire transfer payable in same-day funds to an account specified
by the Partnership. If settlement for the Option Units occurs after
the
