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Exhibit 1.1
EXECUTION
VERSION
PENN VIRGINIA RESOURCE
PARTNERS, L.P.
4,750,000 Common
Units
Representing Limited
Partner Interests
UNDERWRITING
AGREEMENT
May 13, 2008
L EHMAN B
ROTHERS I NC .
U BS S
ECURITIES LLC
As Representatives of the
several
Underwriters named in Schedule 1
attached hereto,
c/o Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
c/o UBS Securities LLC
299 Park Avenue
New York, New York 10171
Ladies and Gentlemen:
Penn Virginia Resource
Partners, L.P., a Delaware limited partnership (the “
Partnership ”), proposes to sell to the underwriters
named in Schedule 1 (the “ Underwriters
”) attached to this underwriting agreement (this “
Agreement ”) 4,750,000 common units (the “
Firm Units ”) representing limited partner interests
in the Partnership (“ Common Units ”). In
addition, the Partnership proposes to grant to the Underwriters an
option to purchase up to 712,500 additional Common Units on the
terms 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 concerning
the purchase of the Units from the Partnership by the
Underwriters.
Penn Virginia Resource GP,
LLC, a Delaware limited liability company (the “ General
Partner ” ) and a wholly owned direct subsidiary of Penn
Virginia GP Holdings, L.P., a Delaware limited partnership (“
GP Holdings ”), is the sole general partner of the
Partnership. The Partnership 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
Loadout LLC, a Delaware limited liability company (“
Loadout 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 Loadout LLC, Toney Fork LLC and Midstream LLC is sometimes
referred to herein individually as an “ Operating
Subsidiary ” and collectively, as the “
Operating Subsidiaries .” The General Partner, the
Partnership, the Operating Company and the Operating Subsidiaries
are collectively referred to herein as the “ Partnership
Entities .” The General Partner, the Partnership and the
Operating Company are collectively referred to herein as the
“ Penn Virginia Parties. ”
1. Representations,
Warranties and Agreements of the Penn Virginia Parties. The
Penn Virginia Parties jointly and severally represent, warrant and
agree that:
(a) Registration;
Definitions; No Stop Order. A registration statement (No.
333-106195) on Form S-3 relating to the Units (i) has been
prepared by the Partnership in conformity with the requirements of
the Securities Act of 1933, as amended (the “ Securities
Act ”), and the rules and regulations (the “
Rules and Regulations ”) of the Securities and
Exchange Commission (the “ Commission ”)
thereunder; (ii) has been filed with the Commission under the
Securities Act; and (iii) is effective under the Securities
Act. Copies of such registration statement and any amendment
thereto have been delivered by the Partnership to you as the
representatives of the Underwriters (the “
Representatives ”). As used in this
Agreement:
(i) “ Applicable
Time ” means 6:30 p.m., New York City time, on
May 13, 2008;
(ii) “ Effective
Date ” means any date as of which any part of such
registration statement relating to the Units became, or is deemed
to have become, effective under the Securities Act in accordance
with the Rules and Regulations;
(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,
including any preliminary prospectus supplement thereto relating to
the Units;
(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 on or before the
Applicable Time, as set forth on Schedule 2 , other than a
road show that is an Issuer Free Writing Prospectus under Rule 433
of the Rules and Regulations;
(vi) “
Prospectus ” means the final prospectus relating to
the Units, including any prospectus supplement thereto relating to
the Units, as filed with the Commission pursuant to Rule 424(b) of
the Rules and Regulations; and
(vii) “ Registration
Statement ” means the registration statement on Form S-3
(File No. 333-106195), as amended as of the Effective Date,
including any Preliminary Prospectus or the Prospectus and all
exhibits to such registration statement.
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Any reference to any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include any documents incorporated by reference therein
pursuant to Form S-3 under the Securities Act as of the date of
such Preliminary Prospectus or the Prospectus, as the case may be.
Any reference to the “ most recent Preliminary
Prospectus ” shall be deemed to refer to the latest
Preliminary Prospectus included in the Registration Statement or
filed pursuant to Rule 424(b) of the Rules and Regulations prior to
or on the date hereof (including, for purposes hereof, any
documents incorporated by reference therein prior to or on the date
hereof). Any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include any document filed under the Securities Exchange Act
of 1934, as amended (the “ Exchange Act ”),
after the date of such Preliminary Prospectus or the Prospectus, as
the case may be, and incorporated by reference in such Preliminary
Prospectus or the Prospectus, as the case may be. Any reference to
any amendment to the Registration Statement shall be deemed to
include any periodic report of the Partnership filed with the
Commission pursuant to Section 13(a) or 15(d) of the Exchange
Act after the Effective Date that is incorporated by reference in
the Registration Statement. 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. The Commission has not notified the
Partnership of any objection to the use of the form of the
Registration Statement.
(b) Not an Ineligible
Issuer. At the earliest time after the initial filing of the
Registration Statement that the Partnership or another offering
participant made a bona fide offer (within the meaning of
Rule 164(h)(2) under the Act) of the Units, the Partnership was not
an “ineligible issuer,” as defined in Rule 405 under
the Act.
(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 in all material respects when
filed with the Commission, 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.
(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).
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(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 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 the Partnership. The Partnership has been duly
formed and is validly existing in good standing as a limited
partnership under the Delaware Revised Uniform Limited Partnership
Act (“ Delaware LP Act ”) with full partnership
power and authority to own or lease its properties and to conduct
its business in all material respects as described in the
Registration Statement. The Partnership is duly registered or
qualified as a foreign limited partnership for the transaction
of
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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 to so 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 (“ 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, the Operating Company and
Operating Subsidiaries . Each of the General Partner, the
Operating Company and each of the Operating Subsidiaries 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 ”) with full limited
liability company power and authority to own or lease its
properties and to conduct its business, and in the case of the
General Partner, to act as general partner of the Partnership. Each
of the General Partner, 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 General
Partner Interest . The General Partner is the sole general
partner of the Partnership with a 2.0% general partner interest in
the Partnership; such general partner interest has been duly
authorized and validly issued in accordance with the partnership
agreement of the Partnership (as the same has been and may be
amended or restated at or prior to the applicable Delivery Date,
the “ Partnership Agreement ”); and the General
Partner owns such general partner interest free and clear of all
liens, encumbrances, security interests, charges or claims (“
Liens ” ).
(l) Ownership of the
Incentive Distribution Rights . The General Partner owns all of
the Incentive Distribution Rights (as such term is defined in the
Partnership Agreement), and such Incentive Distribution Rights have
been duly authorized and validly issued in accordance with the
Partnership Agreement, and are 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); and the General Partner
owns the Incentive Distribution Rights free and clear of all Liens,
except restrictions on transferability as described in the
Prospectus.
(m) Capitalization .
As of May 9, 2008, the issued and outstanding limited partner
interests of the Partnership consist of 46,106,285 Common Units and
the Incentive Distribution Rights. All outstanding Common Units and
the limited partner interests represented thereby have been duly
authorized and validly issued in accordance with the Partnership
Agreement and are 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).
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(n) Valid Issuance of
Units . At the First Delivery Date or the Option Units Delivery
Date, as the case may be, the Firm Units or the Option Units, as
the case may be, and the limited partner interests represented
thereby, will be duly authorized by the Partnership Agreement and,
when issued and delivered to the Underwriters against payment
therefor in accordance with the terms hereof, will be validly
issued, fully paid and non-assessable (except as such
non-assessability may be affected by matters described in Sections
17-607 and 17-804 of the Delaware LP Act).
(o) Ownership of Operating
Company . The Partnership 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 (as the same
has been and may be amended or restated at or prior to the
applicable Delivery Date, 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, other than those pursuant to
the Amended and Restated Credit Agreement dated as of March 3,
2005, as amended, 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
” ).
(p) 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, as the same has been and may be amended or
restated at or prior to the applicable Delivery Date, 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 interests free and
clear of all Liens, other than those pursuant to the Credit
Agreement and the Senior Notes.
(q) Ownership of General
Partner . GP Holdings 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 (as the same has been and may be
amended or restated at or prior to the applicable Delivery Date,
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 Holdings owns such membership interest free and clear of all
liens, encumbrances, security interests, charges or
claims
(r) 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
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CBC/Leon Limited Partnership
and Leon Limited Partnership I and Bright Star Partnership and the
25% interest in Thunder Creek Gas Services, L.L.C.) and the
Operating Company’s interests in its subsidiaries K Rail LLC,
Wise LLC, Fieldcrest Resources LLC and Suncrest Resources LLC, the
Partnership does not own, directly or indirectly, and at each
Delivery Date the Partnership 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
interests 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. K Rail LLC,
Wise LLC, Fieldcrest Resources LLC and Suncrest Resources LLC,
collectively, do not constitute a “significant
subsidiary” (as such term is defined in Rule 405 under the
Securities Act) of the Partnership.
(s) 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 limited partner interests or
membership interests of any of the Partnership Entities. 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 any of its
subsidiaries, other than as provided in the Partnership Agreement
or as have been waived. 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 or membership interests or capital stock
in any Partnership Entity.
(t) Authority and
Authorization. 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. At the applicable Delivery Date, all
partnership and limited liability company action, as the case may
be, required to be taken by the Partnership Entities or any of
their partners or members for the authorization, issuance and
delivery of the Units and the consummation of the transactions
contemplated hereby shall have been validly taken.
(u) Authorization of this
Agreement . This Agreement has been duly authorized and validly
executed and delivered by the Penn Virginia Parties.
(v) Enforceability of
Other Agreements .
(i) The Partnership Agreement
has been duly authorized, executed and delivered by the General
Partner and is a valid and legally binding agreement of the General
Partner, enforceable against the General Partner in accordance with
its terms;
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(ii) the General Partner LLC
Agreement has been duly authorized, executed and delivered by GP
Holdings and is a valid and legally binding agreement of GP
Holdings, enforceable against GP Holdings in accordance with its
terms;
(iii) the Operating Company
Agreement has been duly authorized, executed and delivered by the
Partnership and is a valid and legally binding agreement of the
Partnership, enforceable against the General Partner in accordance
with its terms; and
(iv) the Operating Subsidiary
LLC Agreements have been duly authorized, executed and delivered by
the Operating Company and are valid and legally binding agreements
of the Operating Company, enforceable against the Operating Company
in accordance with its terms;
provided that , with
respect to each agreement described in this Section 1(v), 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 Partnership Agreement,
the GP LLC Agreement, the Operating Company Agreement and the
Operating Subsidiary LLC Agreements are herein collectively
referred to as the “ Organizational Agreements
.”
(w) No Conflicts .
None of the offering, issuance and sale by the Partnership of the
Units, the execution, delivery and performance of this Agreement by
the Penn Virginia Parties or the consummation of the transactions
contemplated hereby (i) constitutes or will constitute a
violation of the Organizational Agreements or other organizational
documents of any of the Partnership Entities, (ii) constitutes
or will constitute a breach or violation of, or a default (or an
event which, 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 or 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 or was a party, or (iv) results or will result in the
creation or imposition of any Lien 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.
(x) 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 respective
8
properties is required in
connection with the offering, issuance and sale by the Partnership
of the Units, the execution, delivery and performance of this
Agreement, or the consummation by the Penn Virginia Parties of the
transactions contemplated by this Agreement, except for
(i) such consents required under the Securities Act, the
Exchange Act and state securities or “Blue Sky” laws
and (ii) such consents that have been, or prior to the
Delivery Date will be, obtained.
(y) No Default . None
of the Partnership Entities is (i) in violation of its
Organizational 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 Penn Virginia Parties to perform their obligations under
this Agreement.
(z) 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
(aa) Independent Public
Accountants . 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.
(bb) 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 condition, 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 indicated and have been prepared in
accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except to the
extent disclosed therein. The historical financial information
contained in the most recent Preliminary Prospectus (and any
amendment or supplement thereto) under the caption “Summary
Historical Financial and Operating Data” are derived from the
accounting records of the Partnership and its consolidated
subsidiaries taken as a whole and fairly present the information
purported to be shown thereby.
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(cc) Statistical and
Market-Related Data. The statistical and market-related data
included or incorporated by reference in the most recent
Preliminary Prospectus and the Prospectus are based on or derived
from sources that the Partnership believes to be reliable and
accurate in all material respects.
(dd) 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.
(ee) Legal Proceedings or
Contracts to be Described or Filed . There are no legal or
governmental proceedings pending or, to the knowledge of the Penn
Virginia 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.
(ff) Title to
Properties . 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 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.
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(gg) Rights-of-Way .
The Partnership Entities have such consents, easements,
rights-of-way or licenses from any person
(“rights-of-way”) as are necessary to conduct their
business in the manner described in the most recent Preliminary
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 material respects as currently conducted; the
Partnership Entities have fulfilled and performed all their
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 most recent Preliminary 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.
(hh) Permits . The
Partnership Entities have or operate pursuant to such permits,
consents, licenses, franchises, certificates and authorizations of
governmental or regulatory authorities (“permits”) as
are necessary to own or lease their properties and to conduct their
business in the manner described in the most recent Preliminary
Prospectus, subject to such qualifications as may be set forth in
the most recent Preliminary Prospectus or other securities filings
and except for such permits that, if not obtained, would not have,
individually or in the aggregate, a Material Adverse Effect; the
Partnership Entities have fulfilled and performed all their
material obligations with respect to such permits and, to the
knowledge of the Penn Virginia Parties, 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.
(ii) Books and Records
. The Partnership (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.
(jj) 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
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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 expected to
result in a Material Adverse Effect.
(kk) Investment
Company . No Partnership Entity is now, and after the 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.
(ll) 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 or operate pursuant to 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.
(mm) No Labor Dispute
. No labor dispute with the employees of any of the Partnership
Entities exists or, to the knowledge of the Penn Virginia Parties,
is imminent or threatened that would be reasonably be expected to
result in a Material Adverse Effect.
(nn) 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 material 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 Internal Revenue Code of 1986,
as amended (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 Code, whether or not waived, has
occurred or is reasonably expected to occur, (c) the fair
market value of the assets under each such Plan exceeds the present
value of all benefits accrued under such Plan (determined based on
those assumptions used to fund such Plan) and
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(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 would
reasonably be expected to cause the loss of such
qualification.
(oo) 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 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.
(pp) 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.
(qq) 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 Penn
Virginia Parties, threatened, to which any Partnership Entity is or
may be a party or to which the business or property of any
Partnership Entity 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 Partnership
Entity is or may be subject, that, in the case of clauses (i),
(ii) and (iii) above, is reasonably expected to
(A) individually 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.
(rr) 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, none of the
Partnership Entities will distribute any offering material in
connection with the offering and sale of the Units other than any
Preliminary Prospectus, the Prospectus or any Issuer Free Writing
Prospectus to which the Representatives have consented in
accordance with Section 1(h) of this Agreement.
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(ss) NYSE Listing .
The Units have been approved for listing on the New York Stock
Exchange (“NYSE”), subject only to official notice of
issuance.
(tt) Disclosure Controls
and Procedures. The Partnership has established and maintains
disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act) that (i) are designed to
ensure that material information relating to the Partnership,
including its consolidated subsidiaries, is made known to the
General Partner’s principal executive officer and its
principal financial officer by others within those entities;
(ii) have been evaluated for effectiveness and presented in
the Partnership’s Annual Report on Form 10-K for the year
ended December 31, 2007 (the “2007 Annual
Report”); and (iii) as of December 31, 2007, are
effective in all material respects to perform the functions for
which they were established.
(uu) No Changes in
Internal Controls. Since the date of the most recent balance
sheet of the Partnership reviewed or audited by KPMG LLP and the
audit committee of the board of directors of the General Partner,
(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.
(vv) 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 1 hereto.
In addition, the Partnership
grants to the Underwriters an option to purchase up to 712,500
Option Units 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 such adjustments to eliminate fractional Common 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
1 hereto opposite the name of such Underwriter (as such number
may be increased pursuant to Section 9) bears to the total
number of Firm Units.
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The price of both the Firm
Units and any Option Units purchased by the Underwriters shall be
$26.88 per Unit.
The Partnership shall not be
obligated to deliver any of the Firm Units or Option Units to be
delivered on the applicable Delivery Date, except upon payment for
all such Units to be purchased on such Delivery Date as provided
herein.
3. Offering of Units by
the Underwriters . Upon authorization by the Representatives of
the release of the Firm Units, the several Underwriters propose to
offer the Firm Units for sale upon the terms and conditions to be
set forth in the Prospectus.
4. Delivery of and Payment
for the Units. Delivery of and payment for the Firm Units shall
be made at the office of Vinson & Elkins L.L.P., 666 Fifth
Avenue, New York, New York 10103, at 10:00 A.M., New York City
time, on May 19, 2008 or at such other date or place as shall
be determined by agreement between the Representatives and the
Partnership. This date and time are sometimes referred to as the
“ 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 of the aggregate purchase price of the Firm Units
to or upon the order of the Partnership by wire transfer in
immediately available funds to the account or 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 from time to time in part 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 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 (unless such date is
postponed pursuant to Section 9). Each date and time that any
Option Units are delivered is sometimes referred to as an “
Option Units Delivery Date ,” and the Initial Delivery
Date and any Option Units Delivery Date are each sometimes 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
10:00 A.M., New York City time, on the date specified in the
corresponding notice described in the preceding paragraph or at
such other date or place as shall be determined by agreement
between the Representatives and the Partnership. On the Option
Units Delivery Date, the Partnership shall deliver or cause to be
delivered the Option Units to the Representatives for the account
of each Underwriter against payment by the several Underwriters
through the Representatives of the aggregate purchase prices of the
Option Units to or upon the order of the Partnership by wire
transfer in immediately available funds
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to the account or 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 Penn Virginia Parties and the Underwriters . Each of the
Penn Virginia Parties, jointly and severally, covenants and agrees
with the Underwriters:
(a) 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 supplement to a Registration Statement or
to the Prospectus prior to the last Delivery Date except as
provided herein; (iii) to advise the Representatives, promptly
after it receives notice thereof, of the time when any amendment or
supplement to a Registration Statement has been filed or any
supplement to the Prospectus or any amended Prospectus has been
filed and to furnish the Representatives with copies thereof;
(iv) to advise the Representatives, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order
or of any order preventing or suspending the use of the Prospectus
or any Issuer Free Writing Prospectus, of the suspension of the
qualification of the Units for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding or
examination for any such purpose or of any request by the
Commission for the amending or supplementing of a Registration
Statement, the Prospectus or any Issuer Free Writing Prospectus or
for additional information; and (v) in the event of the
issuance of any stop order or of any order preventing or suspending
the use of the Prospectus or Issuer Free Writing Prospectus or
suspending any such qualification, to use promptly its best efforts
to obtain its withdrawal.
(b) Exchange Act
Reports . To file promptly all reports and any definitive proxy
or information statements required to be filed by the Partnership
with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act (“Exchange Act Reports”)
subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the
offering or sale of the Units.
(c) Copies of Documents to
the Underwriters. To deliver promptly to the Underwriters such
number of the following documents as the Underwriters shall
reasonably request: (i) conformed copies of the Registration
Statement as originally filed with the Commission and each
amendment thereto (in each case excluding exhibits); (ii) each
Preliminary Prospectus, the Prospectus and any amended or
supplemented Prospectus; (iii) each Is
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