PLAINS ALL AMERICAN PIPELINE,
L.P.
Representing Limited Partner
Interests
New York, New York
September 9, 2009
Citigroup
Global Markets Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
J.P. Morgan Securities Inc.
UBS Securities LLC
Barclays Capital Inc.
Raymond James & Associates, Inc.
Wells Fargo Securities, LLC
c/o Citigroup
Global Markets Inc.
388 Greenwich St., 34th Floor
New York, New York 10013
Plains
All American Pipeline, L.P., a Delaware limited partnership (the
“ Partnership ”), proposes to issue and sell an
aggregate of 4,600,000 common units (the “ Firm Units
”) representing limited partner interests in the Partnership
(“ Common Units ”) to the several underwriters
named in Schedule I hereto (the “
Underwriters ”), for whom Citigroup Global Markets
Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P.
Morgan Securities Inc. and UBS Securities LLC are acting as the
representatives (the “ Representatives ”), upon
the terms and conditions set forth in Section 2 hereof. The
Partnership also proposes to grant to the Underwriters, upon the
terms and conditions set forth in Section 2 hereof, an option
to purchase up to an additional 690,000 Common Units (the “
Option Units ”). The Firm Units and the Option Units,
if purchased, are hereinafter collectively called the “
Units .”
PAA
GP LLC, a Delaware limited liability company (the “
General Partner ”), is the general partner of the
Partnership. Plains AAP, L.P., a Delaware limited partnership
(“ Plains AAP ”), owns a 100% membership
interest in the General Partner. Plains All American GP LLC, a
Delaware limited liability company (“ GP LLC ”
and collectively with the General Partner and Plains AAP, the
“ GP Entities ”), is the general partner of
Plains AAP.
The
subsidiaries of the Partnership listed on Schedule III
attached hereto are referred to herein as the “ Material
Subsidiaries, ” the Material Subsidiaries listed on
Schedule
IV attached
hereto are referred to herein as the “ Domestic
Subsidiaries ” and the Material Subsidiaries listed on
Schedule V attached hereto are referred to herein as the
“ Canadian Subsidiaries .”
This
is to confirm the agreement among the Partnership and the
Underwriters concerning the several purchases of the Units by the
Underwriters.
1.
Representations and Warranties of the Partnership . The
Partnership represents and warrants to the Underwriters
that:
(a) A
registration statement on Form S-3 relating to the Units (File
No. 333-155671) (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 the Representatives. As used in this
Agreement:
(i) “
Applicable Time ” means 8:35 a.m, New York City time,
on September 9, 2009, which the Underwriters have informed the
Partnership and its counsel is a time prior to the first sale of
the Units;
(ii) “
Base Prospectus ” means the base prospectus included
in the Registration Statement at the Applicable Time.
(iii) “
Effective Date ” means any date as of which any part
of such registration statement relating to the Units became, or is
deemed to have become, effective under the Securities Act in
accordance with the Rules and Regulations;
(iv) “
Issuer Free Writing Prospectus ” means each
“free writing prospectus” (as defined in Rule 405
of the Rules and Regulations) or “issuer free writing
prospectus” (as defined in Rule 433 of the Rules and
Regulations) prepared by or on behalf of the Partnership or used or
referred to by the Partnership in connection with the offering of
the Units;
(v) “
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 the Base Prospectus and any
preliminary prospectus supplement thereto relating to the
Units;
(vi) “
Pricing Disclosure Package ” means, as of the
Applicable Time, the most recent Preliminary Prospectus together
with (A) the Issuer Free Writing Prospectus attached as
Schedule II hereto and (B) any other Issuer Free
Writing Prospectuses 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;
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(vii) “
Prospectus ” means the final prospectus relating to
the Units, including the Base Prospectus and any prospectus
supplement thereto relating to the Units, as filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations;
and
(viii) “
Registration Statement ” means the registration
statement on Form S-3 (File No. 333-155671), as amended as of
the Effective Date, including any Preliminary Prospectus or the
Prospectus and all exhibits to such registration
statement.
Any reference to
the Registration Statement, any Preliminary Prospectus, the Pricing
Disclosure Package or the Prospectus shall be deemed to refer to
and include any documents incorporated by reference therein
pursuant to Form S-3 under the Securities Act as of the date of
such Registration Statement, Preliminary Prospectus or Prospectus,
as the case may be, or in the case of the Pricing Disclosure
Package, as of the Applicable Time. 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. As
used herein, the term “ Incorporated Documents ”
means the documents that at the time are incorporated by reference
in the Registration Statement, the Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto. The Commission
has not issued any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending the
effectiveness of the Registration Statement, and no proceeding for
such purpose has been instituted or, to the Partnership’s
knowledge, 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)
Form of Documents . The Registration Statement conformed and
will conform in all material respects on the Effective Date and on
each applicable Delivery Date (as defined herein), and any
amendment to the Registration Statement filed after the date hereof
will conform in all material respects when filed, to the applicable
requirements of the Securities Act and the Rules and Regulations.
The most recent Preliminary Prospectus conformed, and the
Prospectus will conform, in all material respects when filed with
the Commission pursuant to Rule 424(b) and on each applicable
Delivery Date to the requirements of the Securities Act and the
Rules and Regulations. The Incorporated Documents conformed and
will conform, when filed with the Commission, in all material
respects to the requirements of the Exchange Act or the Securities
Act, as applicable, and the rules and regulations of the Commission
thereunder.
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(c)
Registration Statement . The Registration Statement did not,
as of its most recent Effective Date, contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided that no representation or warranty is
made as to information contained in or omitted from the
Registration Statement in reliance upon and in conformity with
written information furnished to the Partnership through the
Representatives by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in
Section 12.
(d)
Prospectus . The Prospectus will not, as of its date and on
the applicable Delivery Date, include 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 12.
(e)
Documents Incorporated by Reference . The Incorporated
Documents, when filed with the Commission, did not and will not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
(f)
Pricing Disclosure Package . The Pricing Disclosure Package
did not, as of the Applicable Time, include an untrue statement of
a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that no
representation or warranty is made as to information contained in
or omitted from the Pricing Disclosure Package in reliance upon and
in conformity with written information furnished to the Partnership
through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein, which information is specified
in Section 12.
(g)
Issuer Free Writing Prospectus and Pricing Disclosure
Package . Each Issuer Free Writing Prospectus (including,
without limitation, any road show that is a free writing prospectus
under Rule 433 of the Rules and Regulations), when considered
together with the Pricing Disclosure Package as of the Applicable
Time, did not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided, that no
representation or warranty is made as to information contained in
or omitted from such Issuer Free Writing Prospectus in reliance
upon and in conformity with written information furnished to the
Partnership through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein, which information
is specified in Section 12.
(h)
Each Issuer Free Writing Prospectus . Each Issuer Free
Writing Prospectus conformed or will conform in all material
respects to the requirements of the Securities Act and the Rules
and Regulations on the date of first use, and the 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 Units that would
constitute an Issuer Free Writing Prospectus without the prior
written consent
4
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)
Well-Known Seasoned Issuer and Not an Ineligible Issuer .
The Partnership is a “well-known seasoned issuer” (as
defined in Rule 405 under the Securities Act). At the earliest
time after the initial filing of the Registration Statement that
the Partnership or another offering participant made a bona
fide offer of the Units, the Partnership was not an
“ineligible issuer” (as defined in Rule 405 under
the Securities Act).
(j)
Formation and Qualification of Certain Entities . Each of
the Partnership, the GP Entities and the Material Subsidiaries has
been duly formed or incorporated and is validly existing in good
standing as a limited partnership, limited liability company,
corporation or unlimited liability company under the laws of its
respective jurisdiction of formation or incorporation with full
corporate, partnership, limited liability company or unlimited
liability company power and authority, as the case may be, to own
or lease its properties and to conduct its business, in each case
in all material respects. Each of the Partnership, the GP Entities
and the Material Subsidiaries is duly registered or qualified as a
foreign corporation, limited partnership, limited liability company
or unlimited liability company, as the case may be, for the
transaction of business under the laws of each jurisdiction (as set
forth on Exhibit A to this Agreement) in which the
character of the business conducted by it or the nature or location
of the properties owned or leased by it makes such registration or
qualification necessary, except where the failure so to register or
qualify would not reasonably be expected to have a material adverse
effect upon the condition (financial or other), business,
prospects, properties, net worth or results of operations of the
Partnership’s direct or indirect majority owned subsidiaries
(collectively, the “ Subsidiaries ”) and the
Partnership (collectively, the “ Plains Entities
”), taken as a whole (a “ Material Adverse
Effect ”).
(k)
General Partners . Each Plains Entity or GP Entity that
serves as a general partner of another Plains Entity or GP Entity
has full corporate or limited liability company power and
authority, as the case may be, to serve as general partner of such
Plains Entity or GP Entity, in each case in all material
respects.
(l)
Ownership of Interests in the Partnership, the General Partner
and Plains AAP . The GP Entities hold the general partner and
membership interests described in the Registration Statement; all
of such interests have been duly authorized and validly issued in
accordance with their respective limited partnership or limited
liability company agreement, as applicable, and all the membership
interests in the General Partner are fully paid (to the extent
required under the Limited Liability Company Agreement of the
General Partner (as the same may be amended or restated prior to
the Delivery Date, such agreement being referred to herein as the
“ General Partner LLC Agreement ”)) and
nonassessable (except as such nonassessability may be affected by
Section 18-607 and 18-804 of the Delaware Limited Liability
Company Act (the “ Delaware LLC Act ”)); and
such general partner and membership interests held by the GP
Entities are owned free and clear of all liens, encumbrances,
security interests, equities, charges or claims (“
Liens ”), except as disclosed in the Pricing
Disclosure
5
Package and the
Prospectus and except such as would not reasonably be expected to
result in a change of control of the Partnership or reasonably be
expected to have a material adverse effect upon the ability of the
Plains Entities considered as a whole to conduct their businesses
as currently conducted and as contemplated by the Pricing
Disclosure Package and the Prospectus to be conducted.
(m)
Ownership of Material Subsidiaries . All of the outstanding
shares of capital stock or other equity interests of each Material
Subsidiary (a) have been duly authorized and validly issued
(in accordance with the agreement or certificate of limited
partnership, limited liability company agreement, certificate of
formation, certificate or articles of incorporation, bylaws or
other similar organizational documents (in each case as in effect
on the date hereof and as the same may be amended or restated prior
to the Delivery Date) (the “ Organizational Documents
”) of such Material Subsidiary), are fully paid (in the case
of an interest in a limited partnership or limited liability
company, to the extent required under the Organizational Documents
of such Material Subsidiary) and nonassessable (except (i) in
the case of an interest in a Delaware limited partnership or
Delaware limited liability company, as such nonassessability may be
affected by Sections 17-607 and 17-804 of the Delaware Revised
Uniform Limited Partnership Act (the “ Delaware LP Act
”) or Sections 18-607 and 18-804 of the Delaware LLC
Act, as applicable, (ii) in the case of an interest in a
limited partnership or limited liability company formed under the
laws of another domestic state, as such nonassessability may be
affected by similar provisions of such state’s limited
partnership or limited liability company statute, as applicable,
and (iii) in the case of an interest in an entity formed under
the laws of a foreign jurisdiction, as such nonassessability may be
affected by similar provisions of such jurisdiction’s
corporate, partnership or limited liability company statute, if
any, as applicable) and (b) are owned, directly or indirectly,
by the Partnership, free and clear of all Liens. The Subsidiaries
other than the Material Subsidiaries did not, individually or in
the aggregate, account for (i) more than 10% of the total
assets of the Plains Entities, taken as a whole, as of
June 30, 2009 or (ii) more than 10% of the net income of
the Plains Entities, taken as a whole, for the six months ended
June 30, 2009.
(n)
Capitalization . As of the date hereof, the issued and
outstanding limited partner interests of the Partnership consist of
130,845,988 Common Units and the Incentive Distribution Rights (as
such capitalized term is defined in the Partnership Agreement). All
outstanding Common Units and Incentive Distribution Rights 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 Sections 17-607 and 17-804
of the Delaware LP Act). The limited partner interests of the
Partnership conform as to legal matters to the descriptions thereof
contained in the Pricing Disclosure Package and the
Prospectus.
(o)
Duly Authorized and Validly Issued Units . At the applicable
Delivery Date, the Units to be sold by the Partnership and the
limited partner interests represented thereby will be duly
authorized in accordance with 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 (to the extent required under the Partnership Agreement)
and
6
nonassessable
(except as such nonassessability may be affected by
Section 17-607 and 17-804 of the Delaware LP Act).
(p)
No Preemptive or Other Rights . Except as described in the
Pricing Disclosure Package and the Prospectus or as provided in the
Organizational Documents, there are no preemptive rights or other
rights to subscribe for or to purchase, nor any restriction upon
the voting or transfer of, any interests in the Partnership
pursuant to any agreement or other instrument to which the
Partnership is a party or by which the Partnership may be bound.
Neither the filing of the Registration Statement nor the offering
or sale of the Units 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, except such rights as have
been waived or satisfied. Except as described in the Pricing
Disclosure Package and the Prospectus, there are no outstanding
options or warrants to purchase any Common Units or other equity
interests in the Partnership.
(q)
Authority . 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, the
Partnership Agreement, the Registration Statement, the Pricing
Disclosure Package and the Prospectus. At the applicable Delivery
Date, all action required to be taken by the Partnership or its
partners for (i) the due and proper authorization, execution
and delivery of this Agreement, (ii) the authorization,
issuance, sale and delivery of the Units and (iii) the
consummation of the other transactions contemplated hereby shall
have been duly and validly taken.
(r)
Authorization, Execution and Delivery of this Agreement .
This Agreement has been duly and validly authorized, executed and
delivered by or on behalf of the Partnership.
(s)
Authorization, Execution and Enforceability of the Operating
Agreements . The partnership agreement or limited liability
company agreement, as applicable, of each of the Partnership, the
GP Entities and the Material Subsidiaries has been duly authorized,
executed and delivered by the parties thereto and is a valid and
legally binding agreement of such parties thereto, enforceable
against the parties thereto in accordance with their respective
terms; provided , that , with respect to each such
agreement, the enforceability thereof may be limited by applicable
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or similar laws from time to time in effect affecting
creditors’ rights and remedies generally and by general
principles of equity (regardless of whether such principles are
considered in a proceeding in equity or at law).
(t)
No Conflicts or Violations . None of the offering, issuance
and sale by the Partnership of the Units, the execution, delivery
and performance of this Agreement by the Partnership, or the
consummation of the transactions contemplated by this Agreement
(i) conflicts or will conflict with or constitutes or will
constitute a violation of the Organizational Documents of the
Partnership, any of the GP Entities or any of the Material
Subsidiaries, (ii) conflicts or will conflict with or
constitutes or will constitute a breach or violation of, a change
of control or a default under (or an event that, with notice or
lapse of time or both, would constitute such an event), any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which the Partnership, any of the GP
Entities or any of the Material Subsidiaries
7
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 the Partnership,
any of the GP Entities or any of the Material Subsidiaries or any
of their properties in a proceeding to which any of them or their
property is a party or (iv) will result in the creation or
imposition of any Lien upon any property or assets of the
Partnership, any of the GP Entities or any of the Material
Subsidiaries, which conflicts, breaches, violations or defaults, in
the case of clauses (ii), (iii) or (iv), would reasonably be
expected to have a Material Adverse Effect or materially impair the
ability of the Partnership to consummate the transactions
contemplated by this Agreement.
(u)
No Consents . No consent, approval, authorization, filing
with or order of any court or governmental agency or body is
required in connection with the offering, issuance and sale by the
Partnership of the Units, the execution, delivery and performance
of, or the consummation by the Partnership of the transactions
contemplated by this Agreement, except (i) such as have been
obtained under the Securities Act, (ii) such as may be
required under the blue sky laws of any jurisdiction or the by-laws
and rules of the Financial Industry Regulatory Authority, Inc. in
connection with the purchase and distribution by the Underwriters
of the Units in the manner contemplated herein and in the Pricing
Disclosure Package and the Prospectus, and (iii) such that the
failure to obtain or make would not reasonably be expected to have
a Material Adverse Effect or materially impair the ability of the
Partnership to consummate the transactions contemplated by this
Agreement.
(v)
No Default . None of the Partnership, the GP Entities or the
Material Subsidiaries is in (i) violation of its
Organizational Documents, or of any law, statute, ordinance,
administrative or governmental rule or regulation applicable to it
or of any decree of any court or governmental agency or body having
jurisdiction over it or (ii) breach, default (or an event
that, with notice or lapse of time or both, would constitute such
an event) or violation in the performance of any obligation,
covenant or condition contained in any bond, debenture, note or any
other evidence of indebtedness or in any agreement, indenture,
lease or other instrument to which it is a party or by which it or
any of its properties may be bound, which breach, default or
violation would, if continued, reasonably be expected to have a
Material Adverse Effect or materially impair the ability of the
Partnership to perform its obligations under this
Agreement.
(w)
Independent Registered Public Accounting Firm .
PricewaterhouseCoopers LLP, who have certified the audited
financial statements included or incorporated by reference in the
Registration Statement, the most recent Preliminary Prospectus and
the Prospectus (and any amendment or supplement thereto), are an
independent registered public accounting firm with respect to the
GP Entities and the Partnership and its consolidated subsidiaries
as required by the Securities Act and the Rules and Regulations and
the Public Company Accounting Oversight Board.
(x)
Financial Statements . At June 30, 2009, the
Partnership would have had, on a pro forma as adjusted basis as
indicated in the Prospectus (and any amendment or supplement
thereto), a total capitalization as set forth therein. The
financial statements (including the related notes and supporting
schedules) and other financial information included or incorporated
by reference in the Registration Statement, the most recent
Preliminary Prospectus and the Prospectus (and any amendment or
supplement thereto) present fairly in all
8
material
respects the financial position, results of operations and cash
flows of the entities purported to be shown thereby, at the dates
and for the periods indicated, and have been prepared in conformity
with generally accepted accounting principles applied on a
consistent basis throughout the periods indicated, except to the
extent disclosed therein. The summary and selected historical
financial information included or incorporated by reference in the
Registration Statement, the most recent Preliminary Prospectus and
the Prospectus (and any amendment or supplement thereto) is
accurately presented in all material respects and prepared on a
basis consistent with the audited and unaudited historical
consolidated financial statements from which it has been derived,
except as described therein. The pro forma financial statements and
other pro forma financial information, if any, included or
incorporated by reference in the Registration Statement, the most
recent Preliminary Prospectus and the Prospectus (and any amendment
or supplement thereto) (i) present fairly in all material
respects the information shown therein, (ii) have been prepared in
accordance with the Commission’s rules and guidelines with
respect to pro forma financial statements and (iii) have been
properly computed on the bases described therein. The assumptions
used in the preparation of the pro forma financial statements and
other pro forma financial information, if any, included or
incorporated by reference in the Registration Statement, the most
recent Preliminary Prospectus and the Prospectus (and any amendment
or supplement thereto) are reasonable, and the adjustments used
therein are appropriate to give effect to the transactions or
circumstances referred to therein. No other financial statements or
schedules of the Partnership are required by the Securities Act or
the Exchange Act to be included in the Registration Statement, the
most recent Preliminary Prospectus or the Prospectus.
(y)
No Material Adverse Change . Except as disclosed in the
Pricing Disclosure Package and the Prospectus, subsequent to the
respective dates as of which such information is given in the
Pricing Disclosure Package and the Prospectus, (i) none of the
Plains Entities has incurred any liability or obligation, indirect,
direct or contingent, or entered into any transactions, not in the
ordinary course of business, that, singly or in the aggregate, is
material to the Plains Entities, taken as a whole, (ii) there
has not been any material change in the capitalization, or material
increase in the short-term debt or long-term debt, of the Plains
Entities and (iii) there has not been any material adverse
change, or any development involving or that would reasonably be
expected to involve, singly or in the aggregate, a prospective
material adverse change in the condition (financial or other),
business, prospects, properties, net worth or results of operations
of the Plains Entities, taken as a whole.
(z)
Required Disclosure and Descriptions . There are no legal or
governmental proceedings pending or, to the knowledge of the
Partnership, threatened, against any of the Plains Entities or the
GP Entities, or to which any of the Plains Entities or the GP
Entities is a party, or to which any of their respective properties
is subject, that are required to be described in the Registration
Statement, the Pricing Disclosure Package or the Prospectus but are
not described as required, and there are no agreements, contracts,
indentures, leases or other instruments that are required to be
described in the Registration Statement, the Pricing Disclosure
Package or the Prospectus or to be filed as an exhibit to the
Registration Statement that are not described or filed as required
by the Securities Act or the Exchange Act.
(aa)
Title to Properties . The Plains Entities, directly or
indirectly, have good and indefeasible title to all real property
and good title to all personal property described in the Pricing
Disclosure Package and the Prospectus as being owned by them, free
and clear of all
9
Liens except
(i) as provided in the Second Restated Credit Agreement dated
November 6, 2008 (as amended, the “ Restated
Facility ”) among Plains Marketing GP Inc., a Delaware
corporation (“ GP Inc. ”), Bank of America,
N.A., as administrative agent thereunder and the lenders from time
to time party thereto, described in the Pricing Disclosure Package
and the Prospectus, (ii) as provided in the Second Restated
Credit Agreement dated November 6, 2008 (as amended, the
“ Contango Facility ”) among Plains Marketing,
L.P., a Delaware limited partnership (“ Plains
Marketing ”), Bank of America, N.A., as administrative
agent thereunder and the lenders from time to time party thereto
and (iii) such as would not reasonably be expected to have a
material adverse effect upon the ability of the Plains Entities
considered as a whole to conduct their businesses as currently
conducted and as contemplated by the Pricing Disclosure Package and
the Prospectus to be conducted; and all real property and buildings
held under lease by any of the Plains Entities, directly or
indirectly, are held under valid and subsisting and enforceable
leases with such exceptions as do not materially interfere with the
use of such properties taken as a whole as described in the Pricing
Disclosure Package and the Prospectus.
(bb)
Permits . Each of the Plains Entities, directly or
indirectly, has such permits, consents, licenses, franchises,
certificates and authorizations of governmental or regulatory
authorities (“ permits ”) as are necessary to
own its properties and to conduct its business in the manner
described in the Pricing Disclosure Package and the Prospectus,
subject to such qualifications as may be set forth in the Pricing
Disclosure Package and the Prospectus and except for such permits
the failure of which to have obtained would not reasonably be
expected to have, individually or in the aggregate, a material
adverse effect upon the ability of the Plains Entities considered
as a whole to conduct their businesses in all material respects as
currently conducted and as contemplated by the Pricing Disclosure
Package and the Prospectus to be conducted; and none of the Plains
Entities, directly or indirectly, has received any notice of
proceedings relating to the revocation or modification of any such
permit which, individually or in the aggregate, if the subject of
an unfavorable decision, ruling or finding would reasonably be
expected to have a material adverse effect upon the ability of the
Plains Entities considered as a whole to conduct their businesses
in all material respects as currently conducted and as contemplated
by the Pricing Disclosure Package and the Prospectus to be
conducted, except as set forth in or contemplated in the Pricing
Disclosure Package and the Prospectus.
(cc)
Rights-of-Way . Each of the Plains Entities, directly or
indirectly, has such consents, easements, rights-of-way or licenses
from any person (“ rights-of-way ”) as are
necessary to conduct its business in the manner described in the
Pricing Disclosure Package and the Prospectus, subject to such
qualifications as may be set forth in the Pricing Disclosure
Package and the Prospectus and except for such rights-of-way the
failure of which to have obtained would not reasonably be expected
to have, individually or in the aggregate, a material adverse
effect upon the ability of the Plains Entities considered as a
whole to conduct their businesses in all material respects as
currently conducted and as contemplated by the Pricing Disclosure
Package and the Prospectus to be conducted; each of the Plains
Entities, directly or indirectly, has fulfilled and performed all
its material obligations with respect to such rights-of-way and no
event has occurred that allows, or after notice or lapse of time
would allow, revocation or termination thereof or would result in
any impairment of the rights of the holder of any such
rights-of-way, except for such failures to perform, revocations,
terminations and impairments that would not reasonably be expected
to have a material adverse effect upon the ability of the Plains
Entities considered as a whole to conduct their businesses in all
material
10
respects as
currently conducted and as contemplated by the Pricing Disclosure
Package and the Prospectus to be conducted, subject in each case to
such qualification as may be set forth in the
Prospectus.
(dd)
Investment Company . None of the Plains Entities is now, and
after sale of the Units to be sold by the Partnership hereunder and
application of the net proceeds from such sale as described in the
Pricing Disclosure Package and the Prospectus under the caption
“Use of Proceeds,” none of the Plains Entities will be,
(i) an “investment company” within the meaning of
the Investment Company Act of 1940, as amended, (ii) a
“gas utility,” within the meaning of Tex. Util. Code
§ 121.001 or (iii) a “public utility” or
“utility” within the meaning of the Public Utility
Regulatory Act of Texas or under similar laws of any state in which
any such Plains Entity does business; other than in respect of any
Plains Entity that is under the jurisdiction of the California
Public Utility Commission.
(ee)
No Material Losses or Interference . None of the Plains
Entities, directly or indirectly, has sustained since the date of
the latest audited financial statements included in the Pricing
Disclosure Package and the 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 Pricing
Disclosure Package and the Prospectus, which in each case would
reasonably be expected to have a Material Adverse
Effect.
(ff)
Environmental Compliance . Except as described in the
Pricing Disclosure Package and the Prospectus, none of the Plains
Entities, directly or indirectly, has violated any environmental,
safety, health or similar law or regulation applicable to its
business relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants
or contaminants (“ Environmental Laws ”), or
lacks any permits, licenses or other approvals required of them
under applicable Environmental Laws to own, lease or operate their
properties and conduct their business as described in the Pricing
Disclosure Package and the Prospectus or is violating any terms and
conditions of any such permit, license or approval, which in each
case would reasonably be expected to have a Material Adverse
Effect.
(gg)
No Labor Disputes . No labor dispute by the employees of any
of the Plains Entities or the GP Entities exists or, to the
knowledge of the Partnership, is imminent, which would reasonably
be expected to have a Material Adverse Effect.
(hh)
Insurance . The Plains Entities or the GP 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. All such insurance is
outstanding and duly in force on the date hereof and will be
outstanding and duly in force on each applicable Delivery
Date.
(ii)
No Legal Actions . Except as described in the Pricing
Disclosure Package and the Prospectus, there is (i) no action,
suit or proceeding before or by any court, arbitrator or
governmental agency, body or official, domestic or foreign, now
pending or, to the knowledge of the Partnership, threatened, to
which any of the Plains Entities or the GP Entities is or may be a
party or to which the business or property of any of the Plains
Entities or the GP Entities is or
11
may be subject,
and (ii) no injunction, restraining order or order of any
nature issued by a federal or state court or foreign court of
competent jurisdiction to which any of the Plains Entities or the
GP Entities is or may be subject, that, in the case of clauses
(i) and (ii) above, would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect or
prevent or result in the suspension of the offering and issuance of
the Units.
(jj)
Other Actions . No Subsidiary is currently prohibited,
directly or indirectly, from paying any dividends to the
Partnership, from making any other distribution on such
Subsidiary’s capital stock or partnership or limited
liability company interests, from repaying to the Partnership any
loans or advances to such Subsidiary from the Partnership or from
transferring any of such Subsidiary’s property or assets to
the Partnership or any other Subsidiary of the Partnership, except
(i) as described in or contemplated by the Pricing Disclosure
Package and the Prospectus (exclusive of any amendment or
supplement thereto), (ii) as provided in the Contango
Facility, (iii) such prohibitions mandated by the laws of each
such Subsidiary’s state of formation and the terms of any
such Subsidiary’s governing instruments and (iv) where
such prohibition would not reasonably be expected to have a
Material Adverse Effect.
(kk)
No Distribution of Other Offering Materials . None of the
Plains Entities or the GP Entities has distributed and, prior to
the later to occur of (i) any Delivery Date and (ii)
completion of the distribution of the Firm Units or Option Units,
as the case may be, will not distribute, any prospectus (as defined
under the Securities Act) in connection with the offering and sale
of the Units other than any Preliminary Prospectus, the Prospectus,
any Issuer Free Writing Prospectus, subject to the conditions in
Section 1(h) of this Agreement, or other materials, if any,
permitted by the Securities Act, including Rule 134 of the
Rules and Regulations.
(ll)
NYSE Listing of Common Units . The Common Units are listed
on the New York Stock Exchange (“ NYSE ”), and
prior to the Initial Delivery Date, the Units will be approved for
listing on the NYSE subject only to official notice of
issuance.
(mm)
Books and Records; Accounting Controls . The Partnership
maintains a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific
authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted
only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets
is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
(nn)
Sarbanes-Oxley Act . The Partnership and, to the knowledge
of the Partnership, the directors and officers of GP LLC in their
capacities as such, are in compliance in all material respects with
all applicable and effective provisions of the Sarbanes-Oxley Act
of 2002 and the rules and regulations promulgated
thereunder.
(oo)
Disclosure Controls . The Partnership maintains disclosure
controls and procedures (as such term is defined in
Rules 13a-15 and 15d-15 under the Exchange Act), that
(i)
12
are designed to
provide reasonable assurance that material information relating to
the Partnership, including its consolidated subsidiaries, is
recorded, processed, summarized and communicated to the principal
executive officer, the principal financial officer and other
appropriate officers of GP LLC to allow for timely decisions
regarding required disclosure, particularly during the periods in
which the periodic reports required under the Exchange Act are
being prepared; (ii) have been evaluated for effectiveness as
of the end of the Partnership’s most recent fiscal quarter;
and (iii) are effective in all material respects to perform
the functions for which they are established.
(pp)
No Deficiency in Internal Controls . Based on the evaluation
of its disclosure controls and procedures conducted in connection
with the preparation and filing of the Partnership’s Annual
Report on Form 10-K for the period ended December 31, 2008,
the Partnership is not aware of (i) any significant deficiency
or material weakness in the design or operation of internal
controls over financial reporting that are likely to adversely
affect its ability to record, process, summarize and report
financial data; or (ii) any fraud, whether or not material,
that involves management or other employees who have a significant
role in the internal controls over financial reporting of the
Partnership.
(qq)
FCPA . None of the Plains Entities or the GP Entities nor,
to the knowledge of the Partnership, any director, officer, agent
or employee of the Plains Entities or the GP Entities (in their
capacity as director, officer, agent or employee) is aware of or
has taken any action, directly or indirectly, that would result in
a violation by such persons of the Foreign Corrupt Practices Act of
1977, as amended, and the rules and regulations
thereunder.
(rr)
Money Laundering Laws . No action, suit or proceeding by or
before any court or governmental agency, authority or body or any
arbitrator involving the Plains Entities or the GP Entities that
involve allegations of money laundering is pending or, to the
knowledge of the Partnership, threatened.
(ss)
OFAC . None of the Plains Entities or the GP Entities nor,
to the knowledge of the Partnership, any director, officer or
employee of the Plains Entities or the GP Entities (in their
capacity as director, officer or employee) has received notice that
it is subject to any sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department.
Any
certificate signed by any officer of the Partnership and delivered
to the Underwriters or counsel for the Underwriters in connection
with the offering of the Units shall be deemed a representation and
warranty by the Partnership, as to matters covered thereby, to the
Underwriters.
2.
Purchase and Sale . (a) Subject to the terms and
conditions and in reliance upon the representations and warranties
herein set forth, the Partnership agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Partnership, at a purchase price of
$45.27 per Unit, the number of Firm Units set forth opposite such
Underwriter’s name on Schedule I-A hereto, and
(ii) at a purchase price of $46.70 per Unit, the number of
Firm Units set forth opposite such Underwriter’s name on
Schedule I-B hereto, in each case subject to adjustment
as set forth in Section 9 hereof.
13
(b) Subject
to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Partnership
hereby grants an option to the several Underwriters to purchase,
severally and not jointly, up to 690,000 Option Units at the same
purchase price per Unit as the Underwriters shall pay for the Firm
Units set forth on Schedule I-A hereto. Said option may
be exercised in whole or in part at any time and from time to time
on or before the 30th day after the date of the Prospectus upon
written or telegraphic notice by the Representatives to the
Partnership setting forth the number of Option Units as to which
the several Underwriters are exercising the option and the
settlement date. The number of Option Units to be purchased by each
Underwriter shall be the same percentage of the total number of
Option Units to be purchased by the several Underwriters as such
Underwriter is purchasing of the Firm Units, subject to
(i) such adjustments as the Representatives in their absolute
discretion shall make to eliminate any fractional shares and
(ii) adjustment as set forth in Section 9
hereof.
3.
Delivery and Payment . Delivery of and payment for the Firm
Units and the Option Units (if the option provided for in Section
2(b) hereof shall have been exercised on or before the third
business day prior to the Initial Delivery Date) shall be made at
the office of Vinson & Elkins L.L.P., 1001 Fannin, Houston,
Texas 77002 at 9:00 a.m., Houston time, on September 14, 2009,
or at such time on such later date not more than three business
days after the foregoing date as the Representatives shall
designate, which date and time may be postponed by agreement
between the Representatives and the Partnership or as provided in
Section 9 hereof (such date and time of delivery and payment
for the Units being herein called the “ Initial Delivery
Date ”). Delivery of the Units shall be made to the
Underwriters for the respective accounts of the several
Underwriters against payment by the several Underwriters of the
purchase price thereof to or upon the order of the Partnership by
wire transfer payable in same-day funds to an account specified by
the Partnership. Delivery of the Firm Units and the Option Units
shall be made through the facilities of The Depository Trust
Company unless the Representatives shall otherwise
instruct.
If
the option provided for in Section 2(b) hereof is exercised after
the third business day prior to the Initial Delivery Date, the
Partnership will deliver the Option Units (at the expense of the
Partnership) to the Representatives on the date (an “
Option Units Delivery Date ”) specified by the
Underwriters (which shall be within three business days after each
exercise of said option), for the respective accounts of the
several Underwriters, against payment by the several Underwriters
of the purchase price thereof to or upon the order of the
Partnership by wire transfer payable in same-day funds to an
account specified by the Partnership. If settlement for the Option
Units occurs after the Initial Delivery Date, the Partnership will
deliver to the Underwriters on the Option Units Delivery Date for
the Option Units, and the obligation of the Underwriters to
purchase the Option Units shall be conditioned upon receipt of,
supplemental opinions, certificates and letters confirming as of
such date the opinions, certificates and letters delivered on the
Initial Delivery Date pursuant to Section 7 hereof. The
Initial Delivery Date and any Option Units Delivery Date are each
sometimes referred to as a “ Delivery Date
.”
4.
Offering by the Underwriters . It is understood that the
several Underwriters propose to offer the Units for sale to the
public as set forth in the Prospectus.
14
5.
Agreements of the Partnership . The Partnership acknowledges
and agrees with the Underwriters that:
(a)
Post-Effective Amendments . If, at the Applicable Time, it
is necessary for a post-effective amendment to the Registration
Statement to be declared effective before the offering of the Units
may commence, the Partnership will endeavor to cause such
post-effective amendment to become effective as soon as possible
and will advise the Representatives promptly and, if requested by
the Representatives, will confirm such advice in writing when such
post-effective amendment has become effective.
(b)
Preparation of Prospectus and Registration Statement . The
Partnership will advise the Representatives promptly and, if
requested by the Representatives, will confirm such advice in
writing: (i) of any request by the Commission for amendment of
or a supplement to the Registration Statement, the Preliminary
Prospectus or the Prospectus or for additional information;
(ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of
the suspension of qualification of the Units for offering or sale
in any jurisdiction or the initiation of any proceeding for such
purpose; and (iii) within the period of time referred to in
paragraph (e) below, of any change in the condition (financial
or other), business, prospects, properties, net worth or results of
operations of the Plains Entities, taken as a whole, or of the
happening of any event that makes any statement of a material fact
made in the Registration Statement, the Pricing Disclosure Package
or the Prospectus (as then amended or supplemented) untrue or that
requires the making of any additions to or changes in the
Registration Statement, the Pricing Disclosure Package or the
Prospectus (as then amended or supplemented) in order to state a
material fact required by the Securities Act or the regulations
thereunder to be stated therein or necessary in order to make the
statements therein (in the case of any Preliminary Prospectus or
the Prospectus, in the light of the circumstances under which any
such statements were made) not misleading, or of the necessity to
amend or supplement the Prospectus (as then amended or
supplemented) to comply with the Securities Act or any other
applicable law. If at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration Statement,
the Partnership will make every commercially reasonable effort to
obtain the withdrawal of such order at the earliest possible
time.
(c)
Copies of Registration Statement . The Partnership will
furnish to the Underwriters, without charge, (i) one copy of
the manually signed copy of the registration statement
corresponding to the Commission’s electronic data gathering,
analysis and retrieval system (“ EDGAR ”)
version filed with the Commission and of each amendment thereto,
including financial statements and all exhibits to the registration
statement, (ii) such number of conformed copies of the
registration statement as originally filed and of each amendment
thereto, but without exhibits, as the Underwriters or the
Underwriters’ counsel may reasonably request, (iii) such
number of copies of the Incorporated Documents, without exhibits,
as the Underwriters may request, and (iv) such number of copies of
the exhibits to the Incorporated Documents as the Underwriters may
request.
(d)
Filing of Amendment or Supplement . For such period as in
the opinion of counsel for the Underwriters a prospectus is
required by the Securities Act to be delivered in connection with
sales by any Underwriter or dealer, the Partnership will not file
any amendment
15
to the
Registration Statement, supplement to the Prospectus (or any other
prospectus relating to the Units filed pursuant to Rule 424(b) of
the Rules and Regulations that differs from the Prospectus as filed
pursuant to such Rule 424(b)), or any Preliminary Prospectus
or Issuer Free Writing Prospectus of which the Representatives
shall not previously have been advised or to which the
Representatives shall have reasonably objected in writing after
being so advised unless the Partnership shall have determined based
upon the advice of counsel that such amendment, supplement or other
filing is required by law; and the Partnership will promptly notify
the Representatives after it shall have received notice thereof of
the time when any amendment to the Registration Statement becomes
effective or when any supplement to the Prospectus has been
filed.
(e)
Copies of Documents to the Underwriters . As soon after the
Applicable Time as possible and thereafter from time to time for
such period as in the opinion of counsel for the Underwriters a
prospectus is required by the Securities Act to be delivered in
connection with sales by any Underwriter or dealer, the Partnership
will expeditiously deliver to each Underwriter and each dealer that
the Underwriters may specify, without charge, as many copies of the
Prospectus (and of any amendment or supplement thereto) as the
Underwriters may reasonably request. At any time after nine months
after the time of issuance of the Prospectus, upon request and
without charge, the Partnership will deliver as many copies of an
amended or supplemented Prospectus complying with
Section 10(a)(3) of the Securities Act as the Underwriters may
reasonably request, provided that a prospectus is required by the
Securities Act to be delivered in connection with sales of Units by
any Underwriter or dealer. The Partnership consents to the use of
the Prospectus (and of any amendment or supplement thereto) in
accordance with the provisions of the Securities Act and with the
securities or Blue Sky laws of the jurisdictions in which the Units
are offered by the Underwriters and by all dealers to whom Units
may be sold, both in connection with the offering and sale of the
Units and for such period of time thereafter as the Prospectus is
required by the Securities Act to be delivered in connection with
sales by any Underwriter or dealer. If during such period of time
any event shall occur that in the judgment of the Partnership or in
the opinion of counsel for the Underwriters and the Partnership is
required to be set forth in the Prospectus (as then amended or
supplemented) or should be set forth therein in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary to supplement
or amend the Prospectus (or to file under the Exchange Act any
document which, upon filing, becomes an Incorporated Document) to
comply with the Securities Act or any other law, the Partnership
will forthwith prepare and, subject to the provisions of paragraph
(e) above, file with the Commission an appropriate supplement or
amendment thereto (or to such document), and will expeditiously
furnish t
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