Exhibit 1.1
Execution
Copy
$300,000,000
MAGELLAN MIDSTREAM PARTNERS,
L.P.
6.55% Senior Notes due
2019
UNDERWRITING
AGREEMENT
June 19, 2009
J.P. M ORGAN S ECURITIES I NC
.
B ANC OF A
MERICA S ECURITIES LLC
S UN
T RUST R OBINSON H UMPHREY ,
I NC .
as Representatives of the several
Underwriters
c/o J. P. Morgan Securities
Inc.
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Magellan Midstream Partners, L.P., a
Delaware limited partnership (the “ Partnership
”), proposes to issue and sell to the several underwriters
named in Schedule 1 hereto (collectively, the “
Underwriters ”) $300,000,000 aggregate principal
amount of its 6.55% Senior Notes due 2019 (the “ Notes
”) to be issued pursuant to the terms of an indenture (the
“ Original Indenture ”) between the Partnership
and U.S. Bank National Association, as trustee (the “
Trustee ”), dated as of April 19, 2007, as
supplemented by the Third Supplemental Indenture to be dated as of
the Delivery Date (as defined in Section 3 ) (the
“ Third Supplemental Indenture ”). The Original
Indenture, as so supplemented, is referred to herein as the “
Indenture .” J.P. Morgan Securities Inc., Banc of
America Securities LLC and SunTrust Robinson Humphrey, Inc. shall
act as representatives (the “ Representatives ”)
of the several Underwriters. Capitalized terms used but not defined
herein shall have the same meanings given them in the Partnership
Agreement (as defined herein).
Magellan GP, LLC, a Delaware limited
liability company, serves as the general partner (the “
General Partner ”) of the Partnership. The Partnership
is the sole limited partner of Magellan OLP, L.P., a Delaware
limited partnership (the “ Operating Partnership
”), and the sole member of Magellan Operating GP, LLC, a
Delaware limited liability company (“ OLP GP ”),
which serves as the general partner of the Operating Partnership.
The Partnership is also the sole limited partner of Magellan
Pipeline Company, L.P., a Delaware limited partnership
(“ MPL LP ”), and Magellan Pipeline Terminals,
L.P., a Delaware limited partnership (“ MPT LP
”), and the sole member of Magellan Pipeline GP, LLC, a
Delaware limited liability company (“ MPGP LLC
”), which serves as the general partner of MPL LP and
MPT LP. Each of Magellan NGL, LLC, a Delaware limited
liability company (“ MNGL LLC ”), Magellan
Terminals Holdings, L.P., a Delaware limited partnership (“
MTH LP ”), Magellan Pipelines Holdings, L.P., a
Delaware limited partnership (“ MPH LP ”),
Magellan Ammonia Pipeline, L.P., a Delaware limited partnership
(“ MAP LP ”), and Magellan Asset Services,
L.P., a Delaware limited partnership (“ MAS LP
”), is a subsidiary of the Operating Partnership, and is
sometimes referred
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to herein individually as a “
Subsidiary ,” and they are sometimes referred to
herein collectively as the “ Subsidiaries .” The
Operating Partnership also owns a 50% limited liability company
interest in Osage Pipe Line Company, LLC, a Delaware limited
liability company (“ Osage ”).
The Partnership, the General
Partner, the Operating Partnership, OLP GP, MPL LP, MPT LP, MPGP
LLC and the Subsidiaries are sometimes referred to herein
individually as a “ Partnership Entity ” and
collectively as the “ Partnership Entities .”
The Partnership Entities, excluding the General Partner, are
sometimes referred to herein collectively as the “
Partnership Group .” The Partnership, the General
Partner, the Operating Partnership, OLP GP, MPL LP, MPT LP and
MPGP LLC are sometimes referred to herein collectively as the
“ Magellan Parties .”
This underwriting agreement (this
“ Agreement ”) is to confirm the agreement among
the Magellan Parties and the Underwriters concerning the purchase
of the Notes from the Partnership by the Underwriters.
Section 1. Representations,
Warranties and Agreements of the Partnership Entities
.
The Magellan Parties, jointly and
severally, represent, warrant and agree that:
(a) Registration . A
registration statement on Form S-3 (File No. 333-137166) with
respect to certain securities, including the Notes, 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. As used in this Agreement:
(i) “ Applicable Time
” means 1:20 p.m. (New York City time) on the date of this
Agreement, which the Underwriters have informed the Partnership is
a time prior to the time of the first sale of the Notes;
(ii) “ Effective Date
” means any date as of which any part of such registration
statement relating to the Notes became, or is deemed to have
become, effective under the Securities Act in accordance with the
Rules and Regulations;
(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 Notes, including the final term sheet prepared pursuant to
Section 4(b) hereof and attached to this Agreement in
Annex 1 hereto;
(iv) “ Preliminary
Prospectus ” means any preliminary prospectus relating to
the Notes included in such registration statement or filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations,
including any preliminary prospectus supplement thereto relating to
the Notes;
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(v) “ Pricing Disclosure
Package ” means, as of the Applicable Time, the most
recent Preliminary Prospectus, together with each Issuer Free
Writing Prospectus filed or used by the Partnership on or before
the Applicable Time, other than a road show that is an Issuer Free
Writing Prospectus under Rule 433 of the Rules and
Regulations;
(vi) “ Prospectus
” means the final prospectus relating to the Notes, including
any prospectus supplement thereto, as filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations;
and
(vii) “ Registration
Statement ” means, collectively, the various parts of the
registration statement on Form S-3 (File No. 333-137166), each
as amended as of the Effective Date for such part, including any
Preliminary Prospectus and the Prospectus and all exhibits to such
registration statement.
Any reference in this Agreement or
the exhibits or annexes hereto to the Registration Statement, 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 the
Registration Statement, 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) 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; and any reference
to any amendment to the Registration Statement shall be deemed to
include any periodic or current 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, the Prospectus or any Issuer Free Writing
Prospectus or suspending the effectiveness of the Registration
Statement, and no proceeding for such purpose has been instituted
or 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) Well-Known Seasoned
Issuer . The Partnership was, (i) at the time of filing of
the Registration Statement and (ii) at the time of the most
recent amendment thereto (whether by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of
the Exchange Act, or form of prospectus) for purposes of complying
with Section 10(a)(3) of the Securities Act (or, if any such
amendment was not made within the time period required by
Section 10(a)(3) of the Securities Act, at the date on which
such amendment was required), a “well-known seasoned
issuer” (as defined in Rule 405 of the Rules and
Regulations). The Registration Statement is an “automatic
shelf registration statement” (as defined in Rule 405 of the
Rules and Regulations) and was filed not earlier than the date that
is three years prior to the Delivery Date. 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
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bona fide offer (within the meaning of Rule
164(h)(2) of the Rules and Regulations) of the Notes, and will not
be on the Delivery Date, an “ineligible issuer” (as
defined in Rule 405 of the Rules and Regulations).
(c) Form of Documents . The
Registration Statement conformed and will conform in all material
respects on the Effective Date and on the 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 Preliminary Prospectus conformed, and the Prospectus will
conform, in all material respects when filed with the Commission
pursuant to Rule 424(b) and on the Delivery Date to the
requirements of the Securities Act and the Rules and Regulations.
The documents incorporated by reference in any Preliminary
Prospectus or the Prospectus conformed, and any further documents
so incorporated will conform, when filed with the Commission, in
all material respects to the requirements of the Exchange Act or
the Securities Act, as applicable, and the rules and regulations of
the Commission thereunder.
(d) 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; and each of the statements
made by the Partnership in the Registration Statement and any
further amendments to the Registration Statement within the
coverage of Rule 175(b) of the Rules and Regulations, including
(but not limited to) any statements with respect to future cash
distributions of the Partnership or the anticipated ratio of
taxable income to distributions was made with a reasonable basis
and in good faith; 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 7(e) .
(e) Prospectus . The
Prospectus will not, as of its date or on the Delivery 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, in the light of the circumstances under
which they were made, not misleading; and each of the statements
made or to be made by the Partnership in the Preliminary Prospectus
or the Prospectus, as applicable, and any further supplements to
the Preliminary Prospectus or the Prospectus within the coverage of
Rule 175(b) of the Rules and Regulations, including (but not
limited to) any statements with respect to future cash
distributions of the Partnership or the anticipated ratio of
taxable income to distributions, was made with a reasonable basis
and in good faith; 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 7(e) .
(f) Documents Incorporated by
Reference . The documents incorporated by reference in the
Registration Statement, any Preliminary Prospectus or the
Prospectus, when they were filed with the Commission and on the
Delivery Date, conformed and will conform in all material respects
to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder and any further documents
filed with the Commission and incorporated
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by reference in the Registration Statement, any
Preliminary Prospectus or the Prospectus, when filed with the
Commission and on the Delivery Date, will conform in all material
respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder. The documents
incorporated by reference in the Registration Statement, any
Preliminary Prospectus or the Prospectus did not, and any further
documents filed and incorporated by reference therein will not,
when filed with the Commission and on the Delivery 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, in the light of the circumstances under which
they were made, not misleading.
(g) Pricing Disclosure
Package . The Pricing Disclosure Package will not, as of the
Applicable Time, 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, in the light of the
circumstances under which they were made, not misleading;
provided that no representation or warranty is made as to
information contained in or omitted from the Pricing Disclosure
Package in reliance upon and in conformity with written information
furnished to the Partnership through the Representatives by or on
behalf of any Underwriter specifically for inclusion therein, which
information is specified in Section 7(e) .
(h) Issuer Free Writing
Prospectus and Pricing Disclosure Package . Each Issuer Free
Writing Prospectus (including, without limitation, any road show
that is a free writing prospectus under Rule 433 of the Rules and
Regulations), when considered together with the Pricing Disclosure
Package as of the Applicable Time, will not 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, in the light of the circumstances under which they were
made, not misleading.
(i) Each Issuer Free Writing
Prospectus . Each Issuer Free Writing Prospectus conformed or
will conform in all material respects to the requirements of the
Securities Act and the Rules and Regulations on the date of first
use, and the Partnership has complied with any filing requirements
applicable to such Issuer Free Writing Prospectus pursuant to the
Rules and Regulations. The Partnership has not made any offer
relating to the Notes that would constitute an Issuer Free Writing
Prospectus without the prior written consent of the
Representatives, except as set forth on Annex 2 hereto.
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 (it
being understood that, as of the date hereof, the Partnership has
not retained any Issuer Free Writing Prospectus for the three year
period required thereby).
(j) Formation and Qualification
of the Magellan Partnerships . Each of the Partnership, the
Operating Partnership, MPL LP, MPT LP, MTH LP,
MPH LP, MAP LP, MAS LP and Magellan IDR, L.P., a
Delaware limited partnership (“ IDR LP ”), has
been duly formed and is validly existing in good standing as a
limited partnership under the Delaware Revised Uniform Limited
Partnership Act (the “ Delaware LP Act ”), has
full partnership power and authority necessary to own or hold its
properties and assets and to conduct the businesses in which it is
engaged, and is duly registered or qualified to do business as a
foreign limited partnership in each jurisdiction set forth opposite
its name on Annex 3 hereto, and such jurisdictions
constitute all of the jurisdictions, with respect to each of the
Partnership, the
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Operating Partnership, MPL LP, MPT LP,
MTH LP, MPH LP, MAP LP, MAS LP and IDR LP, in
which its ownership or lease of property or the conduct of its
business requires such registration or qualification, except where
the failure to so register or qualify would not (i) have a
material adverse effect on the condition (financial or other),
business, prospects, properties, securityholders’ equity or
results of operations of the Partnership Group, taken as a whole
(“ Material Adverse Effect ”), or
(ii) subject the limited partners of the Partnership to any
material liability or disability.
(k) Formation and Qualification
of the Magellan Limited Liability Companies . Each of the
General Partner, OLP GP, MPGP LLC, MNGL LLC, Magellan IDR LP,
LLC, a Delaware limited liability company (“ IDR LLC
”) and Osage has been duly formed and is validly existing in
good standing as a limited liability company under the Delaware
Limited Liability Company Act (the “ Delaware LLC Act
”), has full limited liability company power and authority
necessary to own or hold its properties and assets and to conduct
the businesses in which it is engaged, and is duly registered or
qualified to do business as a foreign limited liability company in
each jurisdiction set forth opposite its name on
Annex 3 hereto, and such jurisdictions constitute all
of the jurisdictions, with respect to each of the General Partner,
OLP GP, MPGP LLC, MNGL LLC, IDR LLC and Osage, in which its
ownership or lease of property or the conduct of its business
requires such registration or qualification, except where the
failure to so register or qualify would not (i) have a
Material Adverse Effect, or (ii) subject the limited partners
of the Partnership to any material liability or
disability.
(l) [Intentionally
Omitted.]
(m) Ownership of Interests;
Subsidiaries . Other than (i) the General Partner’s
ownership of the 1.983% general partner interest in the
Partnership, a 100% member interest in IDR LLC and a 0.001%
general partner interest in IDR LP, (ii) the
Partnership’s ownership of a 100% member interest in MPGP
LLC, a 100% member interest in OLP GP, a 99.999% limited partner
interest in the Operating Partnership and a 99.999% limited partner
interest in each of MPL LP and MPT LP, (iii) OLP
GP’s ownership of a 0.001% general partner interest in the
Operating Partnership, (iv) MPGP LLC’s ownership of a
0.001% general partner interest in each of MPL LP and
MPT LP, (v) the Operating Partnership’s ownership
of a 99.999% limited partner interest in each of MAP LP, MTH LP,
MPH LP and MAS LP, a 100% member interest in MNGL LLC and a 50%
member interest in Osage and (vi) MNGL LLC’s ownership
of a 0.001% general partner interest in each of MAP LP, MTH LP, MPH
LP and MAS LP, none of the Partnership Entities owns or, at the
Delivery Date, will own, directly or indirectly, any equity of any
corporation, partnership, limited liability company, joint venture,
association or other entity; and none of these entities, other than
the Operating Partnership, MPL LP, MPT LP and MTH LP, is a “
significant subsidiary ” of the Partnership as such
term is defined in Rule 405 of the Rules and
Regulations.
(n) Ownership of the General
Partner Interest in the Partnership . The General Partner is
the sole general partner of the Partnership with a 1.983% general
partner interest in the Partnership; such general partner interest
has been duly and validly authorized and issued in accordance with
the agreement of limited partnership of the Partnership (as the
same may be amended or restated on or prior to the Delivery Date,
the “ Partnership Agreement ”); and the General
Partner owns such general partner interest free and clear of all
liens, encumbrances, security interests, equities, charges or
claims (collectively, “ Liens ”).
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(o) Ownership of the Incentive
Distribution Rights and Outstanding Units . As of the
Applicable Time and the date of the Prospectus, the Partnership
will have no limited partner interests issued and outstanding other
than the following:
(i) the Incentive Distribution
Rights (as defined in the Partnership Agreement) held by IDR LP;
and
(ii) 66,953,879 common units
representing limited partner interests (“ Common Units
”) held by public unitholders;
all of such Incentive Distribution
Rights and 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
Section 17-607 of the Delaware LP Act); and IDR LP owns all of
such Incentive Distribution Rights free and clear of all
Liens.
(p) Authority. Each of the
Magellan Parties has full right, power and authority to execute and
deliver this Agreement and to perform its obligations hereunder;
the Partnership has full right, power and authority to execute and
deliver the Notes, the Original Indenture and the Third
Supplemental Indenture and to perform its obligations thereunder
(this Agreement, the Notes, the Original Indenture and the Third
Supplemental Indenture are each referred to herein individually as
a “ Debt Document ” and collectively as the
“ Debt Documents ”). On the Delivery Date, all
partnership or limited liability company action, as the case may
be, required to be taken by the Magellan Parties or any of their
securityholders, partners or members for (i) the
authorization, issuance, sale and delivery of the Notes,
(ii) the execution and delivery of the Debt Documents and
(iii) the consummation of the transactions contemplated by the
Debt Documents shall have been validly taken.
(q) Authorization and
Enforceability of the Indenture. The Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended (the
“ Trust Indenture Act ”), and as of the Delivery
Date, the Indenture will be duly authorized, executed and delivered
by the Partnership and will constitute a valid and legally binding
agreement of the Partnership enforceable against the Partnership in
accordance with its terms, except as enforceability may be limited
by the Enforceability Exceptions (as defined in
Section 1(cc) herein).
(r) Valid Issuance of the
Notes . The Notes have been duly authorized by the Partnership
for issuance and sale to the Underwriters and, when duly executed,
authenticated, issued and delivered as provided in the Indenture
and paid for as provided herein, will be duly and validly issued
and outstanding and will constitute valid and legally binding
obligations of the Partnership enforceable against the Partnership
in accordance with their terms, subject to the Enforceability
Exceptions, and will be entitled to the benefits of the
Indenture.
(s) Descriptions . Each Debt
Document that is described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus conforms in all
material respects to the description thereof contained in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus.
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(t) Ownership of OLP GP . The
Partnership is the sole member of OLP GP with a 100% member
interest in OLP GP; such member interest has been duly
authorized and validly issued in accordance with the limited
liability company agreement of OLP GP (as the same may be
amended or restated on or prior to the Delivery Date, the “
OLP GP LLC Agreement ”), and is fully paid (to
the extent required under the OLP GP LLC Agreement) and
nonassessable (except as such nonassessability may be affected by
Section 18-607 of the Delaware LLC Act); and the Partnership
owns such member interest free and clear of all Liens.
(u) Ownership of MPGP LLC .
The Partnership is the sole member of MPGP LLC with a 100% member
interest in MPGP LLC; such member interest has been duly authorized
and validly issued in accordance with the limited liability company
agreement of MPGP LLC (as the same may be amended or restated on or
prior to the Delivery Date, the “ MPGP LLC Agreement
”), and is fully paid (to the extent required under the MPGP
LLC Agreement) and nonassessable (except as such nonassessability
may be affected by Section 18-607 of the Delaware LLC Act);
and the Partnership owns such member interest free and clear of all
Liens.
(v) Ownership of the Operating
Partnership .
(i) OLP GP is the sole general
partner of the Operating Partnership with a 0.001% general partner
interest in the Operating Partnership; such general partner
interest has been duly authorized and validly issued in accordance
with the agreement of limited partnership of the Operating
Partnership (as the same may be amended or restated on or prior to
the Delivery Date, the “ Operating Partnership
Agreement ”); and OLP GP owns such general partner
interest free and clear of all Liens.
(ii) The Partnership is the sole
limited partner of the Operating Partnership with a 99.999% limited
partner interest in the Operating Partnership; such limited partner
interest has been duly authorized and validly issued in accordance
with the Operating Partnership Agreement and is fully paid (to the
extent required under the Operating Partnership Agreement) and
nonassessable (except as such nonassessability may be affected by
Section 17-607 of the Delaware LP Act); and the Partnership
owns such limited partner interest free and clear of all
Liens.
(w) Ownership of MNGL LLC .
The Operating Partnership is the sole member of MNGL LLC with a
100% member interest in MNGL LLC; such member interest has been
duly authorized and validly issued in accordance with the limited
liability company agreement of MNGL LLC (as the same may be amended
or restated on or prior to the Delivery Date, the “ MNGL
LLC Agreement ”), and is fully paid (to the extent
required under the MNGL LLC Agreement) and nonassessable (except as
such nonassessability may be affected by Section 18-607 of the
Delaware LLC Act); and the Operating Partnership owns such member
interest free and clear of all Liens.
(x) Ownership of the LP
Subsidiaries .
(i) MNGL LLC is the sole general
partner of each of MAP LP, MAS LP, MPH LP and
MTH LP (the “ LP Subsidiaries ”) with a
0.001% general partner interest in each of the LP Subsidiaries;
each such general partner interest has been duly authorized and
validly issued in accordance with each of the respective agreements
of
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limited partnership of each of the
LP Subsidiaries (as each may be amended and restated on or prior to
the Delivery Date, the “ LP Subsidiary Partnership
Agreements ”); and MNGL LLC owns each such general
partner interest free and clear of all Liens.
(ii) The Operating Partnership is
the sole limited partner of each of the LP Subsidiaries with a
99.999% limited partner interest in each of the LP Subsidiaries;
each such limited partner interest has been duly authorized and
validly issued in accordance with each of the respective LP
Subsidiary Partnership Agreements and is fully paid (to the extent
required under each of the LP Subsidiary Partnership Agreements)
and nonassessable (except as such nonassessability may be affected
by Section 17-607 of the Delaware LP Act); and the Operating
Partnership owns each such limited partner interest free and clear
of all Liens.
(y) Ownership of the General
Partner . Magellan Midstream Holdings, L.P., a publicly traded
Delaware limited partnership (“ MGG ”), is the
sole member of the General Partner with a 100% member interest in
the General Partner; such member interest has been duly authorized
and validly issued in accordance with the limited liability company
agreement of the General Partner (as the same may be amended or
restated on or prior to the Delivery Date, the “ GP LLC
Agreement ”), and is fully paid (to the extent required
under the GP LLC Agreement) and nonassessable (except as such
nonassessability may be affected by Section 18-607 of the
Delaware LLC Act).
(z) Ownership of MPL LP and
MPT LP .
(i) MPGP LLC is the sole general
partner of each of MPL LP and MPT LP with a 0.001% general
partner interest in each of MPL LP and MPT LP; each such
general partner interest has been duly authorized and validly
issued in accordance with the respective agreements of limited
partnership of each of MPL LP and MPT LP (as each may be
amended or restated on or prior to the Delivery Date, the “
MPL LP Partnership Agreement ” and the “
MPT LP Partnership Agreement,” respectively); and
MPGP LLC owns each such general partner interest free and clear of
all Liens.
(ii) The Partnership is the sole
limited partner of each of MPL LP and MPT LP with a 99.999%
limited partner interest in each of MPL LP and MPT LP; each
such limited partner interest has been duly authorized and validly
issued in accordance with the MPL LP Partnership Agreement or the
MPT LP Partnership Agreement, as applicable, and is fully paid
(to the extent required under the MPL LP Partnership Agreement or
the MPT LP Partnership Agreement, as applicable) and
nonassessable (except as such nonassessability may be affected by
Section 17-607 of the Delaware LP Act); and the Partnership
owns each such limited partner interest free and clear of all
Liens.
(aa) Ownership of Osage . The
Operating Partnership owns a 50% member interest in Osage; such
member interest has been duly authorized and validly issued in
accordance with the limited liability company agreement of Osage
(as the same may be amended or restated on or prior to the Delivery
Date, the “ Osage LLC Agreement ”), and is fully
paid (to the extent required under the Osage LLC Agreement) and
nonassessable (except as such nonassessability may be affected by
Section 18-607 of the Delaware LLC Act); and the Operating
Partnership owns such member interest free and clear of all
Liens.
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(bb) Authorization of the
Agreement . This Agreement has been duly authorized, executed
and delivered by the Magellan Parties.
(cc) Authorization and
Enforceability of Other Agreements .
(i) The Partnership Agreement has
been duly authorized, executed and delivered and is a valid and
legally binding agreement of the General Partner, enforceable
against the General Partner in accordance with its
terms.
(ii) The Operating Partnership
Agreement has been duly authorized, executed and delivered by OLP
GP and the Partnership, and is a valid and legally binding
agreement of OLP GP and the Partnership, enforceable against OLP GP
and the Partnership in accordance with its terms.
(iii) The GP LLC Agreement has been
duly authorized, executed and delivered by MGG, and is a valid and
legally binding agreement of MGG, enforceable against MGG in
accordance with its terms.
(iv) The MPL LP Partnership
Agreement has been duly authorized, executed and delivered by MPGP
LLC and the Partnership, and is a valid and legally binding
agreement of MPGP LLC and the Partnership, enforceable against MPGP
LLC and the Partnership in accordance with its terms.
(v) The MNGL LLC Agreement has been
duly authorized, executed and delivered by the Operating
Partnership, and is a valid and legally binding agreement of the
Operating Partnership, enforceable against the Operating
Partnership in accordance with its terms.
(vi) Each of the LP Subsidiary
Partnership Agreements has been duly authorized, executed and
delivered by the Operating Partnership and MNGL LLC, and is a valid
and legally binding agreement of the Operating Partnership and MNGL
LLC, enforceable against the Operating Partnership and MNGL LLC in
accordance with its terms.
(vii) The MPGP LLC 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 Partnership in accordance with its
terms.
(viii) The Osage LLC Agreement has
been duly authorized, executed and delivered by the Operating
Partnership, and is a valid and legally binding agreement of the
Operating Partnership, enforceable against the Operating
Partnership in accordance with its terms.
(ix) The MPT LP Partnership
Agreement has been duly authorized, executed and delivered by the
Partnership and MPGP LLC, and is a valid and legally binding
agreement of the Partnership and MPGP LLC, enforceable against
the Partnership and MPGP LLC in accordance with its
terms.
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(x) The OLP GP LLC 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 Partnership in accordance with
its terms.
provided that, with respect to each agreement described
in Section 1(cc) above, the enforceability thereof may
be limited by applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws relating to
or affecting the enforcement of creditors’ rights generally
and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law)
(the “ Enforceability Exceptions ”); and
provided further , that the indemnity, contribution and
exoneration provisions contained in any of such agreements may be
limited by applicable laws.
(dd) No Conflicts or
Violations . None of the (i) offering, issuance and sale
by the Partnership of the Notes, (ii) execution, delivery and
performance of the Debt Documents by the Magellan Parties,
(iii) consummation of the transactions contemplated by the
Debt Documents, or (iv) application of the proceeds from the
sale of the Notes as described under “Use of Proceeds”
in each of the Pricing Disclosure Package and the Prospectus
(A) conflicts or will conflict with or constitutes or will
constitute a breach or violation of any provision of the
certificate of limited partnership or agreement of limited
partnership, certificate of formation or limited liability company
agreement or operating agreement, or any other organizational
documents of any of the Partnership Entities, (B) conflicts or
will conflict with or constitutes or will constitute a breach or
violation of, or a default under (or an event which, with notice or
lapse of time or both, would constitute such an event), any
indenture, mortgage, deed of trust, guarantee, 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, (C) violates or will
violate any statute, law or regulation or any order, judgment,
decree or injunction of any court or governmental agency or body
having jurisdiction over any of the Partnership Entities or any of
their assets or properties or to which any of them or any of their
respective properties is subject or (D) will result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of any of the Partnership Entities, except in
the case of clauses (B) , (C) or (D)
for any such conflicts, breaches, violations or defaults that
would not have a Material Adverse Effect and would not adversely
affect the ability of the Magellan Parties to perform their
obligations under, and consummate the transactions contemplated by,
the Debt Documents.
(ee) No Consents . No permit,
consent, approval, authorization, order, registration, filing or
qualification of or with any court or arbitrator or governmental or
regulatory authority (a “ Consent ”) is required
for (i) the execution, delivery and performance of each of the
Debt Documents, and compliance with the terms thereof, by each of
the parties thereto, (ii) the issuance and sale of the Notes,
(iii) the consummation of the transactions contemplated by the
Debt Documents (including the issuance and sale of the Notes), or
(iv) the application of the proceeds from the sale of the
Notes as described under “Use of Proceeds” in each of
the Pricing Disclosure Package and the Prospectus, except for such
Consents (A) as have been, or will be prior to the Delivery
Date, obtained under the Securities Act, the Exchange Act and the
Trust Indenture Act, (B) as may be required under applicable
state securities or “blue sky” laws in
11
connection with the purchase and distribution of
the Notes by the Underwriters, and (C) that, if not obtained
or made, would not, individually or in the aggregate, have a
Material Adverse Effect and would not adversely affect the ability
of the Magellan Parties to perform their obligations under, and
consummate the transactions contemplated by, the Debt
Documents.
(ff) No Sales . No
Partnership Entity has sold or issued any securities of the same
class as the Notes during the six-month period preceding the date
of the Prospectus, including any sales pursuant to Rule 144A under,
or Regulations D or S of, the Securities Act other than Notes sold
pursuant to the Registration Statement.
(gg) No Material Adverse
Change . Neither the General Partner nor any member of the
Partnership Group has sustained, since the date of the latest
audited financial statements included or incorporated by reference
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, order or decree, otherwise
than as set forth or contemplated in the Pricing Disclosure Package
and the Prospectus; and, since such date, (i) there has not
been any change in the capitalization or long-term debt of the
General Partner or the capitalization or consolidated long-term
debt of the Partnership Group, taken as a whole, or (ii) any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, consolidated financial position, securityholders’
equity, capitalization, results of operations, business or
prospects of the Partnership Group, taken as a whole, otherwise
than as set forth or contemplated in the Pricing Disclosure Package
and the Prospectus.
(hh) Financial Statements .
The historical financial statements (including the related notes
and supporting schedules) included or incorporated by reference in
the Registration Statement, the Pricing Disclosure Package, and the
Prospectus (and any amendment or supplement thereto) comply as to
form in all material respects with the requirements of Regulation
S-X under the Securities Act and the Exchange Act 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 to which they apply, and have been prepared
in accordance with generally accepted accounting principles
consistently applied throughout the periods involved. Any summary
selected historical financial information set forth in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus (and any amendment or supplement thereto) is accurately
presented in all material respects and prepared on a basis
consistent with the audited and unaudited historical consolidated
financial statements from which it has been derived.
(ii) Independent Registered
Public Accounting Firm . Ernst & Young LLP, which has
certified certain financial statements of the General Partner and
the Partnership Group, the reports of which are incorporated by
reference in the Registration Statement, the Pricing Disclosure
Package and the Prospectus (and any amendment or supplement
thereto) and which has delivered the letter referred to in
Section 6(g) hereof, is and has been, during the
periods covered by the financial statements on which it reported,
an independent registered public accounting firm with respect to
the General Partner and the Partnership Group as required by the
Securities Act and the Rules and Regulations and the Public Company
Accounting Oversight Board (United States) (the “
PCAOB ”).
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(jj) Title to Properties .
The General Partner and each member of the Partnership Group have
good and indefeasible title to all real property and good title to
all personal property owned by them, in each case free and clear of
all liens, claims, security interests, encumbrances and other
defects, except (i) such as are described in the Pricing
Disclosure Package and the Prospectus or (ii) such as do not
materially affect the value of such property taken as a whole and
do not materially interfere with the use made and proposed to be
made of such property taken as a whole as described in the Pricing
Disclosure Package and the Prospectus; provided that, with
respect to title to pipeline rights-of-way, the Magellan Parties
represent only that none of MPH LP, MAP LP, MPL LP or, to
their knowledge, Osage, has received any actual notice or claim
from any owner of land upon which its pipeline is located that any
of such entities, as applicable, does not have sufficient title to
enable it to use and occupy the pipeline rights-of-way as they are
used and occupied as described in the Pricing Disclosure Package
and the Prospectus and which constitute valid claims or which have
not been satisfied by the applicable parties that will have a
Material Adverse Effect. All assets held under lease or license by
the members of the Partnership Group are held under valid,
subsisting and enforceable leases or licenses, with such exceptions
(i) as are not material and do not interfere with the use made
and proposed to be made of such assets as they have been used as
described in the Pricing Disclosure Package and the Prospectus or
(ii) that would not have a Material Adverse Effect.
(kk) Insurance . Each of the
Partnership Entities carries, or is covered by, insurance in such
amounts and covering such risks as is adequate for the conduct of
its business and the value of its properties and as is customary
for businesses engaged in similar businesses in similar industries,
and none of the Partnership Entities has received notice of
cancellation or non-renewal of such insurance.
(ll) Intellectual Property .
Each of the Partnership Entities owns or possesses adequate rights
to use all patents, patent applications, trademarks, service marks,
trade names, trademark registrations, service mark registrations,
copyrights and licenses necessary for the conduct of its business
and none of the Partnership Entities is aware of any claim to the
contrary or any challenge by any other person to the rights of any
of the Partnership Entities with respect to the
foregoing.
(mm) No Legal Proceedings .
Except as described in the Pricing Disclosure Package and the
Prospectus, there are no legal or governmental proceedings pending
to which any of the Partnership Entities is a party or of which any
property or assets of any of the Partnership Entities is the
subject that are required to be described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus and
that are not described as required; and to the best knowledge of
the Partnership Entities, no such proceedings are threatened by
governmental authorities or by others.
(nn) Adequate Disclosure.
There are no agreements, contracts or other documents which are
required to be described in the Pricing Disclosure Package and the
Prospectus or filed as exhibits to the Registration Statement by
the Securities Act or by the Rules and Regulations thereunder which
have not been so described or filed.
(oo) Related Party
Transactions . No relationship, direct or indirect, exists
between or among any member of the Partnership Group, on the one
hand, and the securityholders, customers or suppliers of any member
of the Partnership Group, the directors or officers of
the
13
General Partner, or any affiliate of a member of
the Partnership Group, on the other hand, which is required to be
described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, which is not so described; and no
Partnership Entity has, in violation of the Sarbanes-Oxley Act of
2002, directly or indirectly, extended or maintained credit,
arranged for the extension of credit, or renewed an extension of
credit, in the form of a personal loan to or for any director or
executive officer of any Partnership Entity.
(pp) No Labor Disputes .
Except as described in the Pricing Disclosure Package and the
Prospectus, no labor disturbance by the employees of any member of
the Partnership Group (and to the extent they perform services on
behalf of any of any member of the Partnership Group, employees of
the general partner of MGG), exists or, to the knowledge of the
Partnership Entities, is imminent or threatened, which might be
expected to have a Material Adverse Effect.
(qq) Employee Benefit Matters
. The Partnership and the General Partner are in compliance in all
material respects with all presently applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder
(“ ERISA ”); no “reportable event”
(as defined in ERISA) has occurred with respect to any
“pension plan” (as defined in ERISA) for which the
General Partner or the Partnership would have any liability;
neither the Partnership nor the General Partner has incurred nor
does either expect to incur liability under (i) Title IV of
ERISA with respect to termination of, or withdrawal from, any
“pension plan” or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the “
Code ”); and each “pension plan” for which
the General Partner or the Partnership would have any liability
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.
(rr) Tax Returns . Each of
the Partnership Entities has filed (or has obtained extensions with
respect to) all material tax returns required to be filed through
the date hereof, which returns are complete and correct in all
material respects, and has paid all taxes shown to be due pursuant
to such returns, other than those which (i) if not paid, would
not have a Material Adverse Effect, or (ii) are being
contested in good faith. No tax deficiency has been determined
adversely to any Partnership Entity which has had (nor does the
Partnership have any knowledge of any tax deficiency which, if
determined adversely to any Partnership Entity, might have) a
Material Adverse Effect.
(ss) No Changes . Since the
date as of which information is given in the most recent
Preliminary Prospectus through the date hereof, and except as may
otherwise be disclosed in the Pricing Disclosure Package, neither
the General Partner nor any member of the Partnership Group has
(i) issued or granted any securities, (ii) incurred any
material liability or obligation, direct or contingent, other than
liabilities and obligations which were incurred in the ordinary
course of business, (iii) entered into any transaction not in
the ordinary course of business or (iv) declared or paid any
distributions other than to another member of the Partnership
Group.
(tt) Books and Records . The
Partnership Entities (i) make and keep accurate books and
records and (ii) maintain internal accounting controls which
provide reasonable assurance
14
that (A) transactions are executed in
accordance with management’s authorization,
(B) transactions are recorded as necessary to permit
preparation of the Partnership’s consolidated financial
statements and to maintain accountability for the
Partnership’s consolidated assets, (C) access to its
assets is permitted only in accordance with management’s
authorization and (D) the reported accountability for its
assets is compared with existing assets at reasonable
intervals.
(uu) No Violations or
Defaults . None of the Partnership Entities (i) is in
violation of its certificate of limited partnership or agreement of
limited partnership, certificate of formation or limited liability
company agreement, certificate of incorporation or bylaws or other
organizational or governing documents; (ii) is in breach or
default in any respect, and no event has occurred which, with
notice or lapse of time or both, would constitute such a breach or
default, in the due performance or observance of any term, covenant
or condition contained in any material indenture, mortgage, deed of
trust, guarantee, loan agreement or other agreement or instrument
to which it is a party or by which it is bound or to which any of
its properties or assets is subject, (iii) is in violation of
any law, ordinance, governmental rule, regulation or court decree
to which it or its property or assets may be subject or
(iv) has failed to obtain any license, permit, certificate,
franchise or other governmental authorization or permit necessary
to the ownership of its property or to the conduct of its business,
except in the case of clauses (ii) , (iii) and
(iv) for any such breaches, defaults, violations or
failures that would not have a Material Adverse Effect, or could
not materially impair the ability of any of the Magellan Parties to
perform their respective obligations, if any, under this
Agreement.
(vv) FCPA . No Partnership
Entity, nor any director, officer, agent, employee or other person
associated with or acting on behalf of any Partnership Entity, has
used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political
activity, has made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate
funds, has violated or is in violation of any provision of the
Foreign Corrupt Practices Act of 1977, as amended, or has made any
bribe, rebate, payoff, influence payment, kickback or other
unlawful payment.
(ww) Environmental Compliance
. Except as described in the Pricing Disclosure Package and the
Prospectus or as would not have a Material Adverse Effect, none of
the Partnership Entities (i) has violated any environmental,
safety, health or similar law or regulation applicable to its
business relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants
or contaminants (“ Environmental Laws ”),
(ii) lacks any permits, licenses or other approvals required
of it under applicable Environmental Laws to own, lease or operate
its properties and conduct its business as described in the Pricing
Disclosure Package and the Prospectus or (iii) is violating
any terms and conditions of any such permit, license or
approval.
(xx) Investment Company .
Neither the General Partner nor any member of the Partnership Group
is, or, as of the Delivery Date after giving effect to the offer
and sale of the Notes by the Partnership and the application of the
net proceeds as described in the Pricing Disclosure Package and the
Prospectus, will be, an “investment company” as defined
in the Investment Company Act of 1940, as amended.
(yy) Certificates . Each
certificate signed by or on behalf of any Partnership Entity and
delivered to the Underwriters or counsel for the Underwriters
pursuant to this Agreement shall be deemed to be a representation
and warranty by such Partnership Entity to the Underwriters as to
the matters covered thereby.
15
(zz) Compliance with
Sarbanes-Oxley . The Partnership is in compliance in all
material respects with all provisions of the Sarbanes-Oxley Act of
2002.
(aaa) Statistical Data . The
statistical and market-related data included in the Pricing
Disclosure Package and the Prospectus are based on or derived from
sources which the Partnership Entities believe to be reliable and
accurate.
(bbb) Disclosure Controls and
Procedures . The Partnership has established and maintains
disclosure controls and procedures (as such term is defined in rule
13a-15 under the Exchange Act), which (i) are designed to
ensure that material information relating to the Partnership,
including its consolidated subsidiaries, is made known to the
Partnership’s principal executive officer and principal
financial officer by others within those entities, particularly
during the periods in which the periodic reports required under the
Exchange Act are being prepared, (ii) have been evaluated for
effectiveness as of December 31, 2008, and (iii) are
effective in all material respects to perform the functions for
which they were established.
(ccc) Internal Control Over
Financial Reporting . Since the date of the most recent audited
balance sheet of the Partnership and its consolidated subsidiaries
reviewed or audited by Ernst & Young LLP and the audit
committee of the board of directors of the General Partner,
(i) the Partnership has not been advised of (A) any
significant deficiencies in the design or operation of internal
control over financial reporting that could adversely affect the
ability of the Partnership and each of its subsidiaries to record,
process, summarize and report financial data, or any material
weaknesses in internal control over financial reporting and
(B) any fraud, whether or not material, that involves
management or other employees who have a significant role in the
internal control over financial reporting of the Partnership and
each of its subsidiaries, and (ii) since that date, there have
been no changes in internal control over financial reporting,
including any corrective actions with regard to significant
deficiencies and material weaknesses, that has materially affected,
or is reasonably likely to materially affect, the
Partnership’s internal control over financial
reporting.
(ddd) No Distribution of Offering
Materials . None of the Partnership Entities has distributed
or, prior to the later to occur of the Delivery Date and completion
of the distribution of the Notes, will distribute any offering
material in connection with the offering and sale of the Notes
other than any Preliminary Prospectus, the Prospectus, any Issuer
Free Writing Prospectus to which the Representatives have consented
in accordance with Section 1(i) or 4(f) and any
Issuer Free Writing Prospectus set forth in Annex 2
hereto.
Section 2. Purchase of the
Notes 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 issue and
sell the Notes to the several Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase from
the Partnership the principal amount of Notes set forth opposite
that Underwriter’s name in Schedule 1 hereto at a
price equal to 99.003% of the principal amount thereof plus accrued
interest, if any, from June 26, 2009 to the Delivery Date. The
Partnership shall not be obligated to deliver any of the Notes
except upon payment for all the Notes to be purchased as provided
herein.
16
The Partnership understands that the
Underwriters intend to make a public offering of the Notes as soon
after the effectiveness of this Underwriting Agreement as in the
judgment of the Representatives is advisable, and initially to
offer the Notes on the terms and conditions set forth in the
Prospectus. The Partnership acknowledges and agrees that the
Underwriters may offer and sell Notes to or through any affiliate
of an Underwriter and that any such affiliate may offer and sell
Notes purchased by it to or through any Underwriter.
Section 3. Delivery of and
Payment for the Notes .
Delivery of and payment for the
Notes shall be made at the offices of Andrews Kurth LLP in Houston,
Texas beginning at 9:00 a.m. Houston, Texas time, on June 26,
2009, the fifth full business day following the date of this
Agreement, or at such other time, date or place as the
Representatives and the Partnership may agree upon in writing. The
time and date of such payment and delivery is referred to herein as
the “ Delivery Date .”
Payment for the Notes shall be made
by wire transfer in immediately available funds to the account(s)
specified by the Partnership to the Representatives against
delivery to the nominee of The Depository Trust Company, for the
account of the Underwriters, of one or more global notes
representing the Notes (collectively, the “ Global
Note ”), with any transfer taxes payable in connection
with the sale of the Notes duly paid by the Partnership. The Global
Note will be made available for inspection by the Representatives
not later than 1:00 P.M., New York City time, on the business day
prior to the Delivery Date.
Section 4. Further
Agreements of the Magellan Parties .
Each of the Magellan Parties,
jointly and separately, covenants and agrees with each
Underwriter:
(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 not later than
Commission’s close of business on the second business day
following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule 424(b)
under the Securities Act; (ii) to make no further amendment or
any supplement to the Registration Statement or to the Prospectus
prior to the Delivery Date except as permitted herein;
(iii) to advise the Representatives, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been
filed and to furnish the Representatives with copies thereof;
(iv) to file promptly all reports and other documents 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
subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the
offering and sale of the Notes; (v) 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, or notice objecting to the use
of, the Registration Statement, any Preliminary Prospectus, the
Prospectus or any Issuer Free Writing Prospectus, of the
suspension
17
of the qualification of the Notes for offering
or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration
Statement, the Prospectus or any Issuer Free Writing Prospectus or
for additional information; and (vi) in the event of the
issuance of any stop order or of any order preventing or suspending
the use of, or any notice objecting to the use of, the Registration
Statement, any Preliminary Prospectus, the Prospectus or any Issuer
Free Writing Prospectus or suspending any such qualification, to
use promptly its best efforts to obtain its withdrawal;
(b) Term Sheet . To prepare a
final term sheet containing solely
