Exhibit 1.1
Execution Copy
PENN VIRGINIA GP HOLDINGS,
L.P.
6,300,000 Common
Units
Representing Limited Partner
Interests
UNDERWRITING
AGREEMENT
|
Lehman Brothers Inc.
|
December 4, 2006
|
UBS Securities LLC
A.G. Edwards & Sons, Inc.
RBC Capital Markets Corporation
Wachovia Capital Markets, LLC
J.P. Morgan Securities Inc.
BMO Capital Markets Corp.
Stifel, Nicolaus & Company,
Incorporated
c/o L EHMAN B ROTHERS I NC
.
745 Seventh Avenue
New York, New York 10019
C / O
UBS S ECURITIES LLC
299 Park Avenue
New York, New York 10171
Ladies and Gentlemen:
Penn Virginia GP Holdings, L.P., a
Delaware limited partnership (the “ Partnership
”), proposes to sell to the several underwriters named in
Schedule I hereto (the “ Underwriters ”)
6,300,000 common units (the “ Firm Units ”)
representing limited partner interests in the Partnership (“
Common Units ”). Lehman Brothers Inc. and UBS
Securities LLC shall be the representatives of the Underwriters
(the “ Representatives ”). In addition, the
Partnership proposes to grant to the Underwriters an option to
purchase up to an additional 945,000 Common Units, on the terms and
for the purposes set forth in Section 2 (the “ Option
Units ”). The Firm Units and the Option Units, if
purchased, are hereinafter collectively called the “
Units .”
This is to confirm the agreement
among the Partnership and PVG GP, LLC, a Delaware limited liability
company and the general partner of the Partnership (the “
General Partner ,” and together with the Partnership,
the “ Partnership Parties ”), and the
Underwriters concerning the purchase of the Units from the
Partnership by the Underwriters.
Penn Virginia Resource GP, LLC, a
Delaware limited liability company (the “ PVR GP
”), is the sole general partner of Penn Virginia Resource
Partners, L.P., a publicly traded Delaware limited partnership
(“ PVR ”). PVR owns 100% of the membership
interest in Penn Virginia Operating Co., LLC, a Delaware limited
liability company (the “ Operating
Company ”). The Operating Company owns 100% of the
membership interest in each of K Rail LLC, a Delaware limited
liability company (“ K Rail LLC ”), Loadout
LLC, a Delaware limited liability company (“ Loadout
LLC ”), Wise LLC, a Delaware limited liability company
(“ Wise LLC ”), Fieldcrest Resources LLC, a
Delaware limited liability company (“ Fieldcrest LLC
”), Suncrest Resources LLC, a Delaware limited liability
company (“ Suncrest LLC ”), Toney Fork LLC, a
Delaware limited liability company (“ Toney Fork LLC
”), and PVR Midstream LLC, a Delaware limited liability
company (“ Midstream LLC ”). For purposes of
this Agreement, each of K Rail LLC, Loadout LLC, Wise LLC,
Fieldcrest LLC, Suncrest LLC, Toney Fork LLC and Midstream LLC is
sometimes referred to herein individually as an “
Operating Subsidiary ” and collectively, as the
“ Operating Subsidiaries .” PVR GP, PVR, the
Operating Company and the Operating Subsidiaries are collectively
referred to as the “ PVR Entities .” The
Partnership Parties and the PVR Entities are collectively referred
to as the “ Partnership Entities .”
A. It is understood and agreed to by
all parties hereto that the Partnership was initially formed to
acquire and own, directly or indirectly, as of each Delivery Date
(as defined in Section 4 hereof):
(i) a 2.0% general partner interest
in PVR and all of the incentive distribution rights in PVR (the
“ Incentive Distribution Rights ”), all of the
foregoing held through a 100% ownership interest in PVR
GP;
(ii) 416,444 common units of PVR
(“ PVR Common Units ”); and
(iii) 3,610,383 Class B Units of PVR
(the “ Class B Units ”), not including any Class
B Units that may be issued in the event Option Units are
sold.
each as more particularly described
in the most recent Preliminary Prospectus and as acquired pursuant
to the Contribution Agreement (as such terms are hereinafter
defined).
B. The Partnership, PVR GP, Kanawha
Rail Corp., a Virginia corporation (“ Kanawha
”), Penn Virginia Resource LP Corp., a Delaware corporation
(“ LP Corp ”), and Penn Virginia Resource GP
Corp., a Delaware corporation (“ GP Corp ”),
will enter into a Contribution Agreement (the “
Contribution Agreement ”) pursuant to which GP Corp,
LP Corp and Kanawha will contribute its interest in PVR GP to the
Partnership in exchange for an aggregate of 32,125,000 Common Units
on or prior to the Initial Delivery Date (as hereinafter
defined).
The transactions contemplated by the
Contribution Agreement are referred to herein as the “
Transactions .”
C. It is further understood and
agreed to by the parties hereto that the following additional
transactions will occur substantially contemporaneously with the
Initial Delivery Date:
(i) The Partnership shall have
amended and restated its agreement of limited partnership (as so
amended and restated, the “ Partnership Agreement
”);
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(ii) PVR shall have amended its
agreement of limited partnership (as so amended, the “ PVR
Partnership Agreement ”); and
(iii) PVR and the Partnership shall
have entered into a Units Purchase Agreement (the “ Units
Purchase Agreement ”) whereby the Partnership will buy
416,444 PVR Common Units and 3,610,383 Class B Units from PVR for
$25.45 per unit.
(iv) The Partnership and the General
Partner shall have become subject to the existing Omnibus Agreement
(the “ Omnibus Agreement ”) dated as of
October 30, 2001, as amended by Amendment No. 1 thereto,
currently among Penn Virginia Corporation, PVR GP, PVR and the
Operating Company, consistent with the description thereof set
forth in the Prospectus under the caption “Certain
Relationships and Related Transactions—Omnibus
Agreement.”
(v) The Partnership and PVR will
enter into a non-compete agreement (the “ Non-Compete
Agreement ”) consistent with the description thereof set
forth in the Prospectus under the caption “Certain
Relationships and Related Transactions — Non-Compete
Agreement.”
The “ Transaction
Documents ” shall mean the Partnership Agreement, the
Contribution Agreement, the Units Purchase Agreement and the
Non-Compete Agreement.
The Partnership Parties wish to
confirm as follows their agreement with you in connection with the
purchase of the Units from the Partnership by the
Underwriters.
1. Representations, Warranties
and Agreements of the Partnership Parties . Each of the
Partnership Parties, jointly and severally, represents and warrants
to, and agrees with, each of the Underwriters that:
(a) Registration; Definitions; No
Stop Order . A registration statement (Registration
No. 333-135686) on Form S-1 relating to the Units has
(i) been prepared by the Partnership in conformity with the
requirements of the Securities Act of 1933, as amended (the “
Securities Act ”), and the rules and regulations (the
“ Rules and Regulations ”) of the Securities and
Exchange Commission (the “ Commission ”)
thereunder; (ii) been filed with the Commission under the
Securities Act; and (iii) become effective under the
Securities Act. Copies of such registration statement and any
amendment thereto have been delivered by the Partnership to the
representatives of the Underwriters. As used in this
Agreement:
(i) “ Applicable Time
” means 6:41 p.m. (New York City time) on December 4,
2006;
(ii) “ Effective Date
” means each date and time as of which such registration
statement, any post-effective amendment or amendments thereto and
any registration statement or amendments thereto filed pursuant to
Rule 462(b) relating to the offering of the Units was or is
declared effective by the Commission;
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(iii) “ Issuer Free Writing
Prospectus ” means each “free writing
prospectus” (as defined in Rule 405 of the Rules and
Regulations) prepared by or on behalf of the Partnership or used or
referred to by the Partnership in connection with the offering of
the Units;
(iv) “ Preliminary
Prospectus ” means any preliminary prospectus relating to
the Units included in such registration statement or filed with the
Commission pursuant to Rule 424(b) of the Rules and
Regulations;
(v) “ Pricing Disclosure
Package ” means, as of the Applicable Time, the most
recent Preliminary Prospectus, together with each Issuer Free
Writing Prospectus filed with the Commission by the Partnership on
or before the Applicable Time, other than a “road show”
that is an Issuer Free Writing Prospectus but is not required to be
filed under Rule 433 of the Rules and Regulations.
(vi) “ Prospectus
” means the final prospectus relating to the Units, as filed
with the Commission pursuant to Rule 424(b) of the Rules and
Regulations; and
(vii) “ Registration
Statement ” means the registration statement
(Registration No. 333-135686) on Form S-1 relating to the
Units, as amended as of the Effective Date, including any
Preliminary Prospectus or the Prospectus and all exhibits to such
registration statement.
Any reference to the “ most
recent Preliminary Prospectus ” shall be deemed to refer
to the latest Preliminary Prospectus included in the Registration
Statement or filed pursuant to Rule 424(b) on or prior to the date
hereof. 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 or examination for such purpose has been instituted
or, to the knowledge of the Partnership Parties, threatened by the
Commission.
(b) Partnership Not an
“ Ineligible Issuer .” The Partnership was not
at the time of initial filing of the Registration Statement and at
the earliest time thereafter that the Partnership or another
offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2) of the Rules and Regulations) of the
Units, is not on the date hereof and will not be on the applicable
Delivery Date an “ineligible issuer” (as defined in
Rule 405 of the Rules and Regulations).
(c) Registration Statement and
Prospectus Conform to the Requirements of the Securities Act.
The Registration Statement conformed in all material respects on
the Effective Date and will conform in all material respects on the
applicable Delivery Date, and any amendment to the Registration
Statement filed after the date hereof will conform in all material
respects when filed, to the requirements of the Securities Act and
the Rules and Regulations. The most recent Preliminary Prospectus
conformed when filed, and the Prospectus will conform, in all
material respects when filed with the Commission pursuant to Rule
424(b) of the Rules and Regulations and on the applicable Delivery
Date to the requirements of the Securities Act and the Rules and
Regulations.
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(d) No Material Misstatements or
Omissions in Registration Statement. The Registration Statement
did not, as of the Effective Date, contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided that no representation or warranty is
made as to information contained in or omitted from the
Registration Statement in reliance upon and in conformity with
written information furnished to the Partnership through the
Representatives by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in
Section 8(e).
(e) No Material Misstatements or
Omissions in Prospectus. The Prospectus will not, as of its
date and on the applicable 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
Partnership through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein, which information
is specified in Section 8(e).
(f) No Material Misstatements or
Omissions in 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.
Notwithstanding the foregoing, no representation or warranty is
made as to information contained in or omitted from the Pricing
Disclosure Package in reliance upon and in conformity with written
information furnished to the Partnership through the
Representatives by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in
Section 8(e).
(g) No Material Misstatements or
Omissions in Issuer Free Writing Prospectuses. Each Issuer Free
Writing Prospectus (including, without limitation, any road show
that is a free writing prospectus under Rule 433), 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.
(h) Issuer Free Writing
Prospectuses Conform to the Requirements of the Securities Act.
Each Issuer Free Writing Prospectus conformed or will conform in
all material respects to the requirements of the Securities Act and
the Rules and Regulations on the date of first use, and the
Partnership has complied with all prospectus delivery requirements,
any filing requirements and record keeping requirements applicable
to such Issuer Free Writing Prospectus pursuant to the Rules and
Regulations. The Partnership has not made any offer relating to the
Units that would constitute an Issuer Free Writing Prospectus
without the prior written consent of the Representatives. The
Partnership has retained in accordance with the Rules and
Regulations all Issuer Free Writing Prospectuses that were not
required to be filed
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pursuant to the Rules and Regulations. The
Partnership has 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 Units will not be required
to be filed pursuant to the Rules and Regulations.
(i) Formation and Qualification
of Partnership and PVR. Each of the Partnership and PVR has
been duly formed and is validly existing as a limited partnership
under the Delaware Revised Uniform Limited Partnership Act (the
“ Delaware LP Act ”) in good standing with full
partnership power and authority to own or lease its properties, to
conduct its business and to consummate the transactions
contemplated by this Agreement, the Partnership Operative
Agreements and the PVR Partnership Agreement. Each of the
Partnership and PVR is, or at each Delivery Date (as defined below)
will be, duly registered or qualified as a foreign limited
partnership in good standing for the transaction of business under
the laws of each jurisdiction 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 (i) have a material adverse effect on the
condition (financial or otherwise), business, prospects, assets or
results of operations of the Partnership Entities taken as a whole
(a “ Material Adverse Effect ”), or
(ii) subject the limited partners of the Partnership to any
material liability or disability.
(j) Formation and Qualification
of the General Partner, PVR GP, the Operating Company and the
Operating Subsidiaries . Each of the General Partner, PVR GP,
the Operating Company and each of the Operating Subsidiaries has
been duly formed and is validly existing as a limited liability
company in good standing under the Delaware Limited Liability
Company Act (the “ Delaware LLC Act ”) with full
limited liability company power and authority to own or lease its
properties and to conduct its business and to consummate the
transactions contemplated by this Agreement, the Partnership
Operative Agreements and the PVR Partnership Agreement and, in the
case of PVR GP, to act as general partner of PVR and, in the case
of the General Partner, to act as general partner of the
Partnership. Each of the General Partner, PVR GP, the Operating
Company and each of the Operating Subsidiaries is, or at each
Delivery Date will be, duly registered or qualified as a foreign
limited liability company for the transaction of business under the
laws of each jurisdiction 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
(i) have a Material Adverse Effect or (ii) subject the
limited partners of the Partnership to any material liability or
disability.
(k) Ownership of the General
Partner . GP Corp owns 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 (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 Sections 18-607
and 18-804 of the Delaware LLC Act); and GP Corp owns such
membership interest free and clear of all liens, encumbrances,
security interests, charges or claims.
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(l) Ownership of the General
Partner Interest in the Partnership. At each Delivery Date, the
General Partner will be the sole general partner of the Partnership
and will own a noneconomic general partner interest in the
Partnership; such noneconomic general partner interest has been
duly authorized and validly issued in accordance with the
Partnership Agreement; and the General Partner owns such
noneconomic general partner interest free and clear of all liens,
encumbrances, security interests, charges or claims.
(m) Ownership of the Management
Units. At the Initial Delivery Date, after giving effect to the
Transactions and this offering of Units, GP Corp, LP Corp and
Kanawha will own an aggregate 32,125,000 Common Units
(collectively, the “ Management Units ”). Such
limited partner interests will be duly authorized and validly
issued in accordance with the Partnership Agreement, and are fully
paid (to the extent required under Partnership Agreement) and
nonassessable (except as such nonassessability may be affected by
matters described in Sections 18-607 and 18-804 of the Delaware LLC
Act) . GP Corp, LP Corp and Kanawha will own their
respective Management Units free and clear of all liens,
encumbrances, security interests, charges or claims.
(n) Valid Issuance of the
Units . At the Initial Delivery Date, there will be issued and
sold to the Underwriters the Firm Units (assuming no purchase by
the Underwriters of Option Units on the Initial Delivery Date); at
the Initial Delivery Date or the Option Unit Delivery Date (as
defined in Section 2 hereof), as the case may be, the Firm
Units or the Option Units, as the case may be, and the limited
partners interests represented thereby, will be duly and validly
authorized in accordance with the Partnership Agreement and, when
issued and delivered to the Underwriters against payment therefor
in accordance with this Agreement, will be duly and validly issued,
fully paid (to the extent required under the Partnership Agreement)
and nonassessable (except as such nonassessability may be affected
by matters described in Sections 17-607 and 17-804 of the Delaware
LP Act).
(o) Capitalization of the
Partnership . At the Initial Delivery Date, after giving effect
to the Offering, the issued and outstanding Common Units of the
Partnership will consist of 38,425,000 Common Units. Other than the
Management Units, the Units will be the only limited partner
interests of the Partnership issued or outstanding at each Delivery
Date.
(p) Ownership of PVR GP by the
Partnership. At each Delivery Date, the Partnership will be the
sole member of PVR GP with a 100% membership interest in PVR GP;
such membership interest has been duly authorized and validly
issued in accordance with the limited liability company agreement
of PVR GP (the “ PVR GP LLC Agreement ”), and is
fully paid (to the extent required under PVR GP LLC Agreement) and
nonassessable (except as such nonassessability may be affected by
matters described in Sections 18-607 and 18-804 of the Delaware LLC
Act); and the Partnership owns such membership interest free and
clear of all liens, encumbrances, security interests, charges or
claims.
(q) Ownership of the General
Partner Interest in PVR. PVR GP is the sole general partner of
PVR with a 2.0% general partner interest in PVR; such general
partner interest has been duly authorized and validly issued in
accordance with the Amended and Restated Agreement of Limited
Partnership of PVR (the “ PVR Partnership Agreement
”); and PVR GP owns such general partner interest free and
clear of all liens, encumbrances, security interests, charges or
claims.
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(r) Ownership of the Incentive
Distribution Rights in PVR . PVR GP owns all of the Incentive
Distribution Rights, and such Incentive Distribution Rights have
been duly authorized and validly issued in accordance with the PVR
Partnership Agreement, and are fully paid (to the extent required
under the PVR Partnership Agreement) and nonassessable (except as
such nonassessability may be affected by matters described in
Sections 17-607 and 17-804 of the Delaware LP Act); and PVR GP owns
the Incentive Distribution Rights free and clear of all liens,
encumbrances (except restrictions on transferability as described
in the Prospectus), security interests, charges or
claims.
(s) Ownership of PVR . At the
Initial Delivery Date, after giving effect to the Offering and
assuming no issuance of Option Units, the Partnership will own
416,444 PVR Common Units and 3,610,383 PVR Class B Units; such
limited partner interests have been duly authorized and validly
issued in accordance with the PVR Partnership Agreement, and are
fully paid (to the extent required under the PVR Partnership
Agreement) and nonassessable (except as such nonassessability may
be affected by matters described in Sections 17-607 and 17-804 of
the Delaware LP Act); and the Partnership will own such limited
partner interests free and clear of all liens, encumbrances,
security interests, charges or claims.
(t) Ownership of Operating
Company . PVR owns a 100% membership interest in the Operating
Company; such membership interest has been duly authorized and
validly issued in accordance with the limited liability company
agreement of the Operating Company (the “ Operating
Company Agreement ”) and is fully paid (to the extent
required under the Operating Company Agreement) and nonassessable
(except as such nonassessability may be affected by Sections 18-607
and 18-804 of the Delaware LLC Act); and the Partnership owns such
membership interest free and clear of all liens, encumbrances,
security interests, charges or claims, other than those pursuant to
the Amended and Restated Credit Agreement dated as of March 3,
2005 among the Operating Company, PNC Bank, National Association,
as agent, and the other financial institutions party thereto (the
“ Credit Agreement ”) and the Senior Notes due
March 2013 (the “ Senior Notes ”).
(u) Ownership of Operating
Subsidiaries . The Operating Company owns a 100% membership
interest in each Operating Subsidiary; such membership interests
have been duly authorized and validly issued in accordance with the
respective limited liability company agreement of each Operating
Subsidiary (together, the “ Operating Subsidiary LLC
Agreements ”) and are fully paid (to the extent required
under the Operating Subsidiary LLC Agreements) and nonassessable
(except as such nonassessability may be affected by Sections 18-607
and 18-804 of the Delaware LLC Act); and the Operating Company owns
such membership interest free and clear of all liens, encumbrances,
security interests, charges or claims, other than those pursuant to
the Credit Agreement and the Senior Notes.
(v) No Other Subsidiaries .
Except as disclosed above and other than (i) Loadout
LLC’s 50% interest in a joint venture with affiliates of
Massey Energy Company, (ii) PVR Midstream LLC’s
interests in its subsidiaries (including the interest in CBC/Leon
Limited Partnership, Leon Limited Partnership I and Bright Star
Partnership), the General Partner does
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not own, and at each Delivery Date will not own,
directly or indirectly, any equity or long-term debt securities of
any corporation, partnership, limited liability company, joint
venture, association or other entity. Other than its ownership of
its partnership interest in the Partnership, the General Partner
does not own, and at the Initial Delivery Date and Option Unit
Delivery Date will not own, directly or indirectly, any equity or
long-term debt securities of any corporation, partnership, limited
liability company, joint venture, association or other
entity.
(w) No Preemptive Rights,
Registration Rights or Options. Except as described in the most
recent Preliminary Prospectus, there are no preemptive rights or
other rights to subscribe for or to purchase, nor any restriction
upon the voting or transfer of, any capital stock, limited partner
interests or membership interests of the Partnership or PVR.
Neither the filing of the Registration Statement nor the offering
or sale of the Units by the Partnership as contemplated by this
Agreement gives rise to any rights for or relating to the
registration of any Units or other securities of the Partnership or
PVR. Except as described in the most recent Preliminary Prospectus
or 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 interest in the Partnership or PVR.
(x) Authority and
Authorization . The Partnership has all requisite partnership
power and authority to issue, sell and deliver (i) the Units,
in accordance with and upon the terms and conditions set forth in
this Agreement and the Partnership Agreement, and (ii) the
Management Units, in accordance with an upon the terms and
conditions set forth in the Partnership Agreement and the
Contribution Agreement. At each Delivery Date, all corporate,
partnership and limited liability company action, as the case may
be, required to be taken by any of the Partnership Entities or any
of their respective unitholders, stockholders, members or partners
for the authorization, issuance, sale and delivery of the Units and
the Management Units, the execution and delivery of the Partnership
Operative Agreements (as defined below) and the consummation of the
transactions (including the Transactions) contemplated by this
Agreement and the Partnership Operative Agreements, shall have been
validly taken.
(y) Authorization of this
Agreement . This Agreement has been duly authorized and validly
executed and delivered by the Partnership Parties.
(z) Partnership Operative
Agreements . At or before the First Delivery Date:
(i) each Transaction Document will
have been duly authorized, executed and delivered by the parties
thereto and each will be a valid and legally binding agreement of
the parties thereto, enforceable against such parties in accordance
with its terms;
(ii) the General Partner LLC
Agreement will have been duly authorized, executed and delivered by
the parties thereto and will be a valid and legally binding
agreement of the parties thereto, enforceable against such parties
in accordance with its terms;
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provided that
, with respect to each agreement
described in this Section 1(z), the enforceability thereof may
be limited by (i) applicable 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 at law or in equity),
and (ii) public policy, applicable law relating to fiduciary
duties and indemnification and an implied covenant of good faith
and fair dealing.
The Transaction Documents and the
General Partner LLC Agreement are herein collectively referred to
as the “ Partnership Operative Agreements
.”
(aa) PVR Operative Agreements
.
(i) the PVR GP LLC Agreement has
been duly authorized, executed and delivered by the parties thereto
and is a valid and legally binding agreement of the parties
thereto, enforceable against such parties in accordance with its
terms;
(ii) the PVR Partnership Agreement
will have been duly authorized, executed and delivered by the
parties thereto and will be a valid and legally binding agreement
of the parties thereto, enforceable against such parties in
accordance with its terms; and
(iii) the Operating Company
Agreement has been duly authorized, executed and delivered by PVR,
and is valid and legally binding agreement of PVR, enforceable
against PVR in accordance with its terms.
provided that
, with respect to each agreement
described in this Section 1(aa), the enforceability thereof
may be limited by (i) applicable 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 at law or in equity),
and (ii) public policy, applicable law relating to fiduciary
duties and indemnification and an implied covenant of good faith
and fair dealing.
(bb) Sufficiency of the
Contribution Agreement . The Contribution Agreement will be
legally sufficient to transfer or convey to the Partnership a 100%
ownership interest in PVR GP and the PVR Common Units owned by GP
Corp, LP Corp and Kanawha, as contemplated by the most recent
Preliminary Prospectus, subject to the conditions, reservations and
limitations contained in the Contribution Agreement and those set
forth in the most recent Preliminary Prospectus.
(cc) No Conflicts . None of
the offering, issuance and sale by the Partnership of the Units,
the execution, delivery and performance of this Agreement, the
Partnership Operative Agreements or the PVR Partnership Agreement
and the transactions contemplated thereby by the applicable
Partnership Entities party hereto or thereto (i) conflicts or
will conflict with or constitutes or will constitute a violation of
the partnership agreement, limited liability company agreement,
certificate of formation, certificate or articles of incorporation,
bylaws or other constituent document of any of the Partnership
Entities, (ii) conflicts or will
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conflict with or constitutes or will constitute
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 any indenture, mortgage, deed of trust, loan agreement, lease
or other agreement or instrument to which any of the Partnership
Entities is a party or by which any of them or any of their
respective properties may be bound, (iii) violates or will
violate any statute, law or regulation or any order, judgment,
decree or injunction of any court or governmental agency, body
directed to any of the Partnership Entities or any of their
properties in a proceeding to which any of them or their property
is a party or (iv) results or will result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of any of the Partnership Entities, which conflicts,
breaches, violations, defaults or liens, in the case of clauses
(ii), (iii) or (iv), would, individually or in the aggregate,
have a Material Adverse Effect or would materially impair the
ability of any of the Partnership Entities to consummate the
transactions (including the Transactions) provided for in this
Agreement, the Partnership Operative Agreements or the PVR
Partnership Agreement.
(dd) No Consents . No permit,
consent, approval, authorization, order, registration, filing or
qualification (“consent”) of or with any court,
governmental agency or body having jurisdiction over the
Partnership Entities or any of their properties is required in
connection with the execution, delivery and performance of
Agreement, the Partnership Operative Agreements or the PVR
Partnership Agreement by the Partnership Entities party thereto, or
the consummation of the transactions contemplated by this Agreement
or the offering, except for (i) such consents required under
the Securities Act, the Exchange Act and state securities or
“Blue Sky” laws (ii) such consents that have been,
or prior to the Delivery Date will be, obtained and (iii) such
consents that, if not obtained, would not have a Material Adverse
Effect.
(ee) No Default . None of the
Partnership Entities is (i) in violation of its certificate or
agreement of limited partnership, limited liability company
agreement or other organizational documents, (ii) in violation
of any law, statute, ordinance, administrative or governmental rule
or regulation applicable to it or of any order, judgment, decree or
injunction of any court or governmental agency or body having
jurisdiction over it, or (iii) in breach, default (or an event
which, with notice or lapse of time or both, would constitute such
a default) 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, in the case of clause (ii) or (iii), would, if
continued, have a Material Adverse Effect, or would materially
impair the ability of any of the Partnership Parties to perform
their obligations under Agreement, the Partnership Operative
Agreements or the PVR Partnership Agreement.
(ff) Conformity of Units to
Description in the Most Recent Preliminary Prospectus. The
Units when issued and delivered in accordance with the terms of the
Partnership Agreement and this Agreement against payment therefor
as provided herein, will conform in all material respects to the
description thereof contained in the most recent Preliminary
Prospectus.
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(gg) Independent Registered
Public Accounting Firm . KPMG LLP, who has certified the
audited financial statements included in the most recent
Preliminary Prospectus and the Prospectus (or any amendment or
supplement thereto), is an independent registered public accounting
firm as required by the Securities Act and the Rules and
Regulations during the periods covered by the financial statements
on which it reported contained in the most recent Preliminary
Prospectus.
(hh) Financial Statements .
The historical financial statements (including the related notes
and supporting schedules) contained in the most recent Preliminary
Prospectus (and any amendment or supplement thereto) comply in all
material respects with the applicable requirements under the
Securities Act and the Exchange Act (except that certain supporting
schedules are omitted) and present fairly in all material respects
the financial position, results of operations and cash flows of the
entities purported to be shown thereby on the basis stated therein
at the respective dates or for the respective periods and have been
prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved,
except to the extent disclosed therein; provided, however ,
that as to the financial statements of Cantera Natural Gas -
Mid-Continent Division, such foregoing representation is made as to
the best knowledge of the executive officers of the General
Partner. The historical financial information contained in the most
recent Preliminary Prospectus (and any amendment or supplement
thereto) under the caption “Summary Historical and Pro Forma
Financial Data” are derived from the accounting records of
the Partnership and PVR and their consolidated subsidiaries taken
as a whole and fairly present the information purported to be shown
thereby.
(ii) Pro Forma Financial
Statements . The pro forma financial statements included in the
most recent Preliminary Prospectus (and any amendment or supplement
thereto) comply as to form in all material respects with the
applicable requirements of Regulation S-X and have been prepared in
accordance with the Commission’s rules and guidelines with
respect to pro forma financial statements and have been properly
computed on the bases described therein. The assumptions used in
the preparation of such pro forma financial statements are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions or circumstances referred to therein.
The other historical financial and statistical information and data
included in the most recent Preliminary Prospectus are, in all
material respects, fairly presented.
(jj) Statistical and
Market-Related Data . The statistical and market-related data
included under the captions “Prospectus Summary—Penn
Virginia Resource Partners, L.P.,” “Management’s
Discussion and Analysis of Financial Condition and Results of
Operations” and “Business of Penn Virginia Resource
Partners, L.P.” in the most recent Preliminary Prospectus and
the consolidated financial statements of the Partnership, the
General Partner, PVR GP and their respective consolidated
subsidiaries included in the most recent Preliminary Prospectus are
based on or derived from sources that the Partnership Parties
believe to be reliable and accurate in all material
respects.
(kk) No Integration . The
Partnership has not sold or issued any securities that would be
integrated with the offering of the Units contemplated by this
Agreement pursuant to the Securities Act, the Rules and Regulations
or the interpretations thereof by the Commission.
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(ll) No Material Adverse
Change . No Partnership Entity has sustained since the date of
the latest audited financial statements included in the most recent
Preliminary Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, investigation, order or decree, otherwise than
as set forth or contemplated in the Registration Statement, the
Prospectus or the most recent Preliminary Prospectus. Except as
disclosed in the Registration Statement, the Prospectus and the
most recent Preliminary Prospectus (or any amendment or supplement
thereto), subsequent to the respective dates as of which such
information is given in the Registration Statement, the Prospectus
and the most recent Preliminary Prospectus (or any amendment or
supplement thereto), (i) no Partnership Entity 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
Partnership 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
Partnership Entities and (iii) there has not been any material
adverse change, or any development involving or which may
reasonably be expected to involve, singly or in the aggregate, a
prospective material adverse change, in or affecting the condition
(financial or otherwise), results of operations, partners’
equity, properties, management, business or prospects of the
Partnership Entities taken as a whole, in each case except as would
not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(mm) Legal Proceedings or
Contracts to be Described or Filed . There are no legal or
governmental proceedings pending or, to the knowledge of the
Partnership Parties, threatened, against any Partnership Entity, or
to which any Partnership Entity is a party, or to which any of
their respective properties is subject, that are required to be
described in the Registration Statement, the Prospectus or the most
recent Preliminary 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 Prospectus or the most recent Preliminary Prospectus
or to be filed as exhibits to the Registration Statement that are
not described or filed as required by the Securities
Act.
(nn) Title to Properties . At
each Delivery Date, the Partnership Entities have good and
indefeasible title to all real property and good title to all
personal property described in the most recent Preliminary
Prospectus as being owned by the Partnership Entities, free and
clear of all liens, claims, security interests or other
encumbrances except (i) as described in the most recent
Preliminary Prospectus or (ii) such as do not materially
interfere with the use of such properties taken as a whole;
provided that, with respect to any real property and buildings held
under lease by the Partnership Entities, such real property and
buildings 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.
(oo) Rights-of-Way . Each of
the Partnership Entities 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 Prospectus, subject to such
qualifications as may be set forth in the most recent Preliminary
Prospectus and except for such rights-of-way that, if not obtained,
would not have, individually or in the aggregate, a material
adverse effect upon the ability of the Partnership Entities, taken
as a whole, to conduct their businesses in all
13
material respects as currently conducted; each
of the Partnership Entities has, or at each Delivery Date will
have, 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
revocations, terminations and impairments that would not have a
material adverse effect upon the ability of the Partnership
Entities, taken as a whole, to conduct their businesses in all
material respects as currently conducted, subject in each case to
such qualification as may be set forth in the Prospectus; and,
except as described in the most recent Preliminary Prospectus, none
of such rights-of-way contains any restriction that is materially
burdensome to the Partnership Entities, taken as a
whole.
(pp) Permits . Each of the
Partnership Entities has such permits, consents, licenses,
franchises, certificates and authorizations of governmental or
regulatory authorities (“permits”) as are necessary to
own or lease its properties and to conduct its business in the
manner described in the most recent Preliminary Prospectus, subject
to such qualifications as may be set forth in the Prospectus and
except for such permits that, if not obtained, would not have,
individually or in the aggregate, a Material Adverse Effect; each
of the Partnership Entities has fulfilled and performed all its
material obligations with respect to such permits and no event has
occurred that would prevent the permits from being renewed or
reissued or which allows, or after notice or lapse of time would
allow, revocation or termination thereof or results or would result
in any impairment of the rights of the holder of any such permit,
except for such non-renewals, non-issues, revocations, terminations
and impairments that would not, individually or in the aggregate,
have a Material Adverse Effect.
(qq) Books and Records . Each
of the Partnership Entities (i) makes and keeps books, records
and accounts that, in reasonable detail, accurately and fairly
reflect the transactions and dispositions of assets and
(ii) maintains systems of internal accounting controls
sufficient to provide reasonable assurances that
(A) transactions are executed in accordance with
management’s general or specific authorization;
(B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (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.
(rr) Tax Returns . Each of
the Partnership Entities has filed (or has obtained extensions with
respect to) all material federal, state and foreign income and
franchise tax returns required to be filed through the date hereof,
which returns are complete and correct in all material respects,
and has timely paid all taxes shown to be due pursuant to such
returns, other than those (i) that are being contested in good
faith and for which adequate reserves have been established in
accordance with generally accepted accounting principles or
(ii) which, if not paid, would not reasonably be likely to
result in a Material Adverse Effect.
(ss) Investment Company .
None of the Partnership Entities is now, and after sale of the
Units to be sold by the Partnership hereunder will be, an
“investment company” or a company “controlled
by” an “investment company” within the meaning of
the Investment Company Act of 1940, as amended.
14
(tt) Environmental Compliance
. Except as disclosed in the most recent Preliminary Prospectus,
and except as would not, individually or in the aggregate, have a
Material Adverse Effect, the Partnership Entities (i) are in
compliance with any and all applicable federal, state and local
laws and regulations relating to the protection of human health and
safety and the environment or imposing liability or standards of
conduct concerning any Hazardous Materials (as defined below)
(“ Environmental Laws ”), (ii) have
received all permits required of them under applicable
Environmental Laws to conduct their respective businesses as they
are currently being conducted, (iii) are in compliance with
all terms and conditions of any such permits and (iv) have not
received any written notice of any actual or potential liability
for the investigation or remediation of any disposal or release of
Hazardous Material. The term “ Hazardous Material
” means (A) any “hazardous substance” as
defined in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, (B) any
“hazardous waste” as defined in the Resource
Conservation and Recovery Act, as amended, (C) any petroleum
or petroleum product, (D) any polychlorinated biphenyl and
(E) any pollutant or contaminant or hazardous, dangerous or
toxic chemical, material, waste or substance regulated under or
within the meaning of any other Environmental Law.
(uu) No Labor Dispute . No
labor dispute with the employees of any of the Partnership Entities
exists or, to the knowledge of the Partnership Parties, is imminent
or threatened that would be reasonably expected to have a Material
Adverse Effect.
(vv) ERISA . (i) Each
“employee benefit plan” (within the meaning of
Section 3(3) of the Employee Retirement Security Act of 1974,
as amended (“ ERISA ”)) for which any of the
Partnership Entities would have any liability, excluding any
multiemployer plan (within the meaning of Section 4001(a)(3)
of ERISA) (each a “ Plan ”) has been maintained
in material compliance with its terms and with the requirements of
all applicable statutes, rules and regulations including ERISA and
the Code; (ii) with respect to each Plan subject to Title IV
of ERISA (a) no “reportable event” (within the
meaning of Section 4043(c) of ERISA) has occurred or is
reasonably expected to occur, (b) no “accumulated
funding deficiency” (within the meaning of Section 302
of ERISA or Section 412 of the Internal Revenue Code of 1986,
as amended (the “ Code ”)), whether or not
waived, has occurred or is reasonably expected to occur,
(c) the fair market value of the assets under each Plan
exceeds the present value of all benefits accrued under such Plan
(determined based on those assumptions used to fund such Plan) and
(d) none of the Partnership Entities has incurred, or
reasonably expects to incur, any liability under Title IV of ERISA
(other than contributions to the Plan or premiums to the PBGC in
the ordinary course and without default) in respect of a Plan
(including a “multiemployer plan”, within the meaning
of Section 4001(a)(3) of ERISA); and (iii) each Plan that
is intended to be qualified under Section 401(a) of the Code
has been determined by the Internal Revenue Service to be so
qualified and nothing has occurred, whether by action or by failure
to act, which could reasonably be expected to cause the loss of
such qualification.
(ww) Certain Relationships and
Related Transactions . Except as described in the most recent
Preliminary Prospectus, no relationship, direct or indirect, exists
between any of the Partnership Parties, on the one hand, and any of
the PVR Entities, on the other hand, or among any of the
Partnership Entities, on the one hand, and the directors, officers,
unitholders, customers or suppliers of any of the Partnership
Entities, on the other hand, that is required to be described in
the most recent Preliminary Prospectus or the Prospectus which is
not so described.
15
(xx) Insurance . The
Partnership Entities 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 Partnership Entities has received notice from any insurer or
agent of such insurer that material capital improvements or other
expenditures will have to be made in order to continue such
insurance; all such insurance is outstanding and duly in force on
the date hereof and will be outstanding and duly in force on each
Delivery Date.
(yy) Litigation . Except as
described in the most recent Preliminary 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 Partnership
Parties, threatened, to which any of the Partnership Entities is or
may be a party or to which the business or property of any of the
Partnership Entities is or may be subject, (ii) no statute,
rule, regulation or order that has been enacted, adopted or issued
by any governmental agency or that has been proposed by any
governmental agency, 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
Partnership Entities is or may be subject, that, in the case of
clauses (i), (ii) and (iii) above, would reasonably be
expected to (A) singly or in the aggregate have a Material
Adverse Effect, (B) prevent or result in the suspension of the
offering and issuance of the Units, or (C) in any manner draw
into question the validity of this Agreement, the Partnership
Operative Agreements or the PVR Partnership Agreement.
(zz) Directed Unit Sales .
None of the Directed Units distributed in connection with the
Directed Unit Program (each as defined in Section 3) will be
offered or sold outside of the United States. The Partnership has
not offered, or caused Lehman Brothers Inc. to offer, Units to any
person pursuant to the Directed Unit Program with the specific
intent to unlawfully influence (i) a customer or supplier of
the Partnership Entities to alter the customer’s or
supplier’s level or type of business with the Partnership
Entities or (ii) a trade journalist or publication to write or
publish favorable information about the Partnership Entities, its
business or its products.
(aaa) No Distribution of Other
Offering Materials . None of the Partnership Entities has
distributed and, prior to the later to occur of any Delivery Date
and completion of the distribution of the Units, will not
distribute any offering material in connection with the offering
and sale of the Units other than any Preliminary Prospectus, the
Prospectus, any Issuer Free Writing Prospectus to which the
Representatives have consented in accordance with Section 1(h)
or 5(a)(vi) or as set forth on Schedule III hereto and, in
connection with the Directed Unit Program described in
Section 3, the enrollment materials prepared by Lehman
Brothers Inc.
(bbb) NYSE Listing . The
Units have been approved for listing on the New York Stock Exchange
(“ NYSE ”), subject only to official notice of
issuance.
16
(ccc) Disclosure Controls and
Procedures. Each of the Partnership and PVR has established and
maintains disclosure controls and procedures (as such term is
defined in Rule 13a-15(e) under the Exchange Act), which
(i) are designed to ensure that information required to be
disclosed by each of the Partnership and PVR, including its
consolidated subsidiaries in the reports each will file or submit
under the Exchange Act is accumulated and communicated to
management of the General Partner’s or PVR GP’s, as
applicable, principal executive officer and its principal financial
officer to allow timely decision regarding required disclosure to
be made; and (ii) such disclosure controls are effective in
all material respects to perform the functions for which they were
established.
(ddd) No Changes in Internal
Controls . Since the date of the most recent balance sheet of
PVR GP reviewed or audited by KPMG LLP and the audit committee of
the board of directors of PVR GP, (i) none of the Partnership
Entities has been advised of (A) any significant deficiencies
in the design or operation of internal controls that could
adversely affect the ability of any such entities to record,
process, summarize and report financial data, or any material
weaknesses in internal controls or (B) any fraud, whether or
not material, that involves management or other employees who have
a significant role in the internal controls of any such entity, and
(ii) since that date, there have been no significant changes
in internal controls or in other factors that could significantly
affect internal controls, including any corrective actions with
regard to significant deficiencies and material
weaknesses.
(eee) Sarbanes-Oxley Act of
2002 . Except as described in the most recent Preliminary
Prospectus, there is and has been no failure on the part of any of
the Partnership Entities or any of their respective directors or
officers, in their capacities as such, to comply with the
provisions of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith applicable to such
Partnership Entities.
2. Purchase of the Units by the
Underwriters . On the basis of the representations and
warranties contained in, and subject to the terms and conditions
of, this Agreement, the Partnership agrees to sell the Firm Units
to the several Underwriters, and each of the Underwriters,
severally and not jointly, agrees to purchase the number of Firm
Units set forth opposite that Underwriter’s name in Schedule
I hereto. The respective purchase obligations of the Underwriters
with respect to the Firm Units shall be rounded among the
Underwriters to avoid fractional units, as the Representatives may
determine.
In addition, the Partnership grants
to the Underwriters an option to purchase up to 945,000 Option
Units. Such option is exercisable in the event that the
Underwriters sell more Common Units than the number of Firm Units
in the offering and as set forth in Section 4 hereof. Each
Underwriter agrees, severally and not jointly, to purchase the
number of Option Units (subject to adjustments to eliminate
fractional units as the Representatives may determine) that bears
the same proportion to the total number of Option Units to be sold
on such Delivery Date as the number of Firm Units set forth in
Schedule I hereto opposite the name of such Underwriter bears to
the total number of Firm Units.
The price of both the Firm Units and
any Option Units purchased by the Underwriters shall be $17.39 per
Unit. The Partnership shall not be obligated to deliver any of the
Units to be delivered on the Initial Delivery Date or the Option
Unit Delivery Date (as hereinafter defined), as the case may be,
except upon payment for all the Units to be purchased on the
Delivery Date as provided herein.
17
3. Offering of Units by the
Underwriters . Upon authorization by the Representatives of the
release of the Firm Units, the Underwriters propose to offer the
Firm Units for sale upon the terms and conditions set forth in the
Prospectus.
It is understood that 600,000 Firm
Units (the “ Directed Units ”) initially will be
reserved by the several Underwriters for offer and sale upon the
terms and conditions to be set forth in the most recent Preliminary
Prospectus and in accordance with the rules and regulations of the
National Association of Securities Dealers, Inc. (the “
NASD ”) to employees of the General Partner and its
affiliates who have heretofore delivered to Lehman Brothers Inc.
offers to purchase Firm Units in form satisfactory to Lehman
Brothers Inc. (such program, the “ Directed Unit
Program ”) and that any allocation of such Firm Units
among such persons will be made in accordance with timely
directions received by Lehman Brothers Inc. from the Partnership;
provided that under no circumstances will Lehman Brothers
Inc. or any Underwriter be liable to the Partnership or to any such
person for any action taken or omitted in good faith in connection
with such Directed Unit Program. It is further understood that any
Directed Units not affirmatively reconfirmed for purchase by any
participant in the Directed Unit Program by 9:00 a.m., New York
City time, on the first business day following the date hereof or
otherwise are not purchased by such persons will be offered by the
Underwriters to the public upon the terms and conditions set forth
in the most recent Preliminary Prospectus.
The Partnership agrees to pay all
fees and disbursements incurred by the Underwriters in connection
with the Directed Unit Program and any stamp duties or other taxes
incurred by the Underwriters in connection with the Directed Unit
Program.
4. Delivery of and Payment for
the Units . Delivery of and payment for the Firm Units shall be
made at the offices of Vinson & Elkins L.L.P. at 10:00
A.M., New York City time, on December 8, 2006, or at such
other date or place as shall be determined by agreement between the
Underwriters and the Partnership. This date and time are sometimes
referred to as the “ Initial Delivery Date .”
Delivery of the Firm Units shall be made to the Representatives for
the account of each Underwriter against payment by the several
Underwriters through the Representatives and of the respective
aggregate purchase prices of the Firm Units being sold by the
Partnership to or upon the order of the Partnership of the purchase
price by wire transfer in immediately available funds to the
accounts specified by the Partnership. Time shall be of the
essence, and delivery at the time and place specified pursuant to
this Agreement is a further condition of the obligation of each
Underwriter hereunder. The Partnership shall deliver the Firm Units
through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
The option granted in Section 2
will expire 30 days after the date of this Agreement and may
be exercised in whole or in part from time to time by written
notice being given to the Partnership by the Representatives;
provided that if such date falls on a day that is not a
business day, the option granted in Section 2 will expire on
the next succeeding business day. Such notice shall set forth the
aggregate number of Option Units as to which the option is being
exercised, the names in which the Option Units are to be
registered, the denominations in
18
which the Option Units are to be issued and the
date and time, as determined by the Representatives, when the
Option Units are to be delivered; provided, however, that this date
and time shall not be earlier than the Initial Delivery Date nor
earlier than the second business day after the date on which the
option shall have been exercised nor later than the fifth business
day after the date on which the option shall have been exercised.
The date and time the Option Units are delivered are sometimes
referred to as the “ Option Unit Delivery Date
,” and the Initial Delivery Date and the Option Unit Delivery
Date are sometimes each referred to as a “ Delivery
Date .”
Delivery of the Option Units by the
Partnership and payment for the Option Units by the several
Underwriters through the Representatives shall be made at the place
specified in the first sentence of the first paragraph of this
Section 4 (or at such other place as shall be determined by
agreement between the Representatives and the Partnership) at 10:00
A.M., New York City time, on the Option Unit Delivery Date. On the
Option Unit Delivery Date, the Partnership shall deliver or cause
to be delivered the Option Units to the Representatives for the
account of each Underwriters against payment by the several
Underwriters through the Representatives and of the respective
aggregate purchase prices of the Option Units being sold by the
Partnership to or upon the order of the Partnership of the purchase
price by wire transfer in immediately available funds to the
accounts specified by the Partnership. Time shall be of the
essence, and delivery at the time and place specified pursuant to
this Agreement is a further condition of the obligation of each
Underwriter hereunder. The Partnership shall deliver the Option
Units through the facilities of The Depository Trust Company unless
the Representatives shall otherwise instruct.
5. Further Agreements of the
Partnership Parties .
(a) Each of the Partnership Parties,
jointly and severally, covenants and agrees with the
Underwriters:
(i) Preparation of Prospectus and
Registration Statement. (i) To prepare the Prospectus in a
form approved by the Representatives and to file such Prospectus
pursuant to Rule 424(b) under the Securities Act within the time
period described by the rule; (ii) to make no further
amendment or any suppleme
