HOLLY
ENERGY PARTNERS, L.P.
Goldman,
Sachs & Co.
UBS Securities LLC
As representatives of the several
Underwriters
named in Schedule I
hereto,
c/o
Goldman, Sachs & Co.
85 Broad Street,
New York, New York 10004
c/o UBS
Securities LLC
299 Park Avenue, 36th Floor
New York, New York 10171
Holly
Energy Partners, L.P., a Delaware limited partnership (“Holly
Energy Partners” or the “Partnership”) proposes,
subject to the terms and conditions stated herein, to issue and
sell to the Underwriters named in Schedule I hereto (the
“Underwriters”) an aggregate of 2,000,000 common units
(the “Firm Units”) and, at the election of the
Underwriters, up to 300,000 additional common units (the
“Optional Units”), in each case representing limited
partner interests (“Common Interests”) of the
Partnership (the Firm Units and the Optional Units that the
Underwriters elect to purchase pursuant to Section 2 hereof
being collectively called the “Common
Units”).
1. The
Partnership represents and warrants to, and agrees with, each of
the Underwriters that:
(a)
A registration statement on Form S-3 (File No 333-155537) (the
“Initial Registration Statement”) in respect of the
Common Units has been filed with the Securities and Exchange
Commission (the “Commission”); the Initial Registration
Statement and any post-effective amendment thereto, each in the
form heretofore delivered to you and, excluding exhibits to the
Initial Registration Statement, but including all documents
incorporated by reference in the prospectus included therein, to
you for each of the other Underwriters have been declared effective
by the Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a
“Rule 462(b) Registration Statement”), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended (the “Act”), which became effective upon
filing, no other document with respect to the Initial Registration
Statement has heretofore been filed, or transmitted for filing,
with the Commission (other than (i) prospectuses filed
pursuant to Rule 424(b) of the rules and regulations of the
Commission
under the
Act, each in the form heretofore delivered to the representatives
of the Underwriters (the “Representatives”) and
(ii) documents incorporated by reference therein); and no stop
order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or any part thereof
or the Rule 462(b) Registration Statement, if any, has been issued
and no proceeding for that purpose has been initiated or threatened
by the Commission (the base prospectus filed as part of the Initial
Registration Statement, in the form in which it has most recently
been filed with the Commission on or prior to the date of this
Agreement relating to the Common Units, is hereinafter called the
“Basic Prospectus”; any preliminary prospectus
(including any preliminary prospectus supplement) relating to the
Common Units filed with the Commission pursuant to Rule 424(b)
under the Act is hereinafter called a “Preliminary
Prospectus”; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any,
including all exhibits thereto and including any prospectus
supplement relating to the Common Units that is filed with the
Commission and deemed by virtue of Rule 430B under the Act to
be part of the Initial Registration Statement, each as amended at
the time such part of the Initial Registration Statement became
effective or such part of the Rule 462(b) Registration Statement,
if any, became or hereafter becomes effective, are hereinafter
collectively called the “Registration Statement”; the
Basic Prospectus, as amended and supplemented immediately prior to
the Applicable Time (as defined in Section 1(c) hereof), is
hereinafter called the “Pricing Prospectus”; the form
of the final prospectus relating to the Common Units filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof is hereinafter called the
“Prospectus”; any reference herein to the Basic
Prospectus, the Pricing Prospectus, any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to
Item 12 of Form S-3, as of the date of such prospectus; any
reference to any amendment or supplement to the Basic Prospectus,
any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any post-effective amendment to the
Registration Statement, any prospectus supplement relating to the
Common Units filed with the Commission pursuant to Rule 424(b)
under the Act and any documents filed under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), and
incorporated therein, in each case after the date of the Basic
Prospectus, such Preliminary Prospectus or the Prospectus, as the
case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report
of the Partnership filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration Statement
that is incorporated by reference in the Registration Statement;
and any “issuer free writing prospectus” as defined in
Rule 433 under the Act relating to the Common Units is
hereinafter called an “Issuer Free Writing
Prospectus”;
(b)
No order preventing or suspending the use of any Preliminary
Prospectus or any Issuer Free Writing Prospectus has been issued by
the Commission, and each Preliminary Prospectus, at the time of
filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder, and did 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; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Partnership by an Underwriter through Goldman, Sachs
& Co. expressly for use therein;
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(c)
For the purposes of this Agreement, the “Applicable
Time” is 8:45 am (Eastern time) on the date of this
Agreement; the Pricing Prospectus, as supplemented by the
information on Schedule II(c) hereto, taken together
(collectively, the “Pricing Disclosure Package”) as of
the Applicable Time, did not include any untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and each Issuer Free
Writing Prospectus listed on Schedule II(a) hereto does not
conflict with the information contained in the Registration
Statement, the Pricing Prospectus or the Prospectus and each such
Issuer Free Writing Prospectus, as supplemented by and taken
together with the Pricing Disclosure Package as of the Applicable
Time, did not include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that this
representation and warranty shall not apply to statements or
omissions made in an Issuer Free Writing Prospectus in reliance
upon and in conformity with information furnished in writing to the
Partnership by an Underwriter through Goldman, Sachs & Co.
expressly for use therein;
(d)
The documents incorporated by reference in the Pricing Prospectus
and Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
and any further documents so filed and incorporated by reference in
the Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission,
as the case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and 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 not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Partnership by an Underwriter through
Goldman, Sachs & Co. expressly for use therein; and no such
documents were filed with the Commission since the
Commission’s close of business on the business day
immediately prior to the date of this Agreement and prior to the
execution of this Agreement, except as set forth on Schedule II(b)
hereto;
(e)
The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement and
the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to each part of the Registration Statement and as
of the applicable filing date as to the Prospectus and any
amendment or supplement thereto, 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, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Partnership by an Underwriter through Goldman, Sachs
& Co. expressly for use therein;
(f)
Neither the Partnership nor any of the Subsidiaries (as defined
below) has sustained since the date of the latest audited financial
statements included or incorporated by
3
reference
in the Pricing 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 Prospectus; and, since the
respective dates as of which information is given in the
Registration Statement and the Pricing Prospectus, there has not
been any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, management, financial position, partners’ or
stockholders’ equity or results of operations of the
Partnership and its Subsidiaries, otherwise than as set forth or
contemplated in the Pricing Prospectus;
(g)
Holly Energy Partners — Operating, L.P., a Delaware limited
partnership (the “Operating Partnership”) and the
Subsidiaries, as the case may be, have good and indefeasible title
to all real property and good title to all personal property
described in the Pricing Prospectus as owned by the Operating
Partnership and the Subsidiaries, as the case may be, free and
clear of all (A) liens and security interests or
(B) other claims and other encumbrances (other than liens or
security interests) except (i) as provided in the Credit
Agreement (as defined below), mortgages and deeds of trust granted
in favor of Alon USA, LP, a Texas limited partnership, and Holly
Corporation, a Delaware corporation, in connection with the use of
pipelines and/or terminals by those entities or their affiliates,
or as otherwise described, and subject to the limitations
contained, in the Pricing Prospectus or (ii) such as do not
materially interfere with the use of such properties taken as a
whole as they have been used in the past and are proposed to be
used in the future as described in the Pricing Prospectus, provided
that, with respect to any real property and buildings held under
lease by the Operating Partnership and the other Subsidiaries, such
real property and buildings are held under valid and subsisting and
enforceable leases with such exceptions as do not materially
interfere with the use of the properties of the Operating
Partnership and the other Subsidiaries, taken as a whole, as they
have been used in the past as described in the Pricing Prospectus
and are proposed to be used in the future as described in the
Pricing Prospectus;
(h)
The Partnership and each Subsidiary (A) is a corporation,
limited liability company, partnership or other entity duly
organized and validly existing under the laws of the jurisdiction
of its organization; (B) has all requisite corporate, limited
liability company, partnership, or other power and authority
necessary to own its property and carry on its business as now
being conducted; and (C) is qualified to do business and is in
good standing in all jurisdictions in which the nature of the
business conducted by it or its ownership of property makes such
qualification necessary, in each case in all material respects as
described in the Pricing Prospectus, except where the failure to be
so qualified and be in good standing, individually or in the
aggregate, would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect. A “Material
Adverse Effect” means a material adverse effect on the
business, condition (financial or other), result of operations,
properties or prospects of the Partnership and the Subsidiaries,
taken as a whole;
(i)
HEP Logistics Holdings, L.P., a Delaware limited partnership (the
“General Partner”), (A) has been duly formed and
is validly existing and in good standing as a limited partnership
under the laws of the State of Delaware; (B) has all requisite
partnership power and authority necessary to own its property and
carry on its business as now being conducted; and (C) is
qualified to do business and is in good standing in all
jurisdictions in which the nature of the business conducted by it
or its ownership of property makes such qualification necessary,
except where the failure to be so qualified and be in good
standing, individually or
4
in the
aggregate, would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect. At the date hereof
and on each Time of Delivery, the General Partner will be the sole
general partner of the Partnership;
(j)
Holly Logistic Services, L.L.C., a Delaware limited liability
company (“GP L.L.C.”), (A) has been duly formed
and is validly existing and in good standing as a limited liability
company under the laws of the State of Delaware; (B) has all
requisite limited liability company power and authority necessary
to own its property and carry on its business as now being
conducted; and (C) is qualified to do business and is in good
standing in all jurisdictions in which the nature of the business
conducted by it or its ownership of property makes such
qualification necessary, except where the failure to be so
qualified and be in good standing, individually or in the
aggregate, would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect. At the date hereof
and at each Time of Delivery, GP L.L.C. will be the sole general
partner of General Partner;
(k)
The issued and outstanding limited partner interests of the
Partnership consist of the common units, subordinated units and
incentive distribution rights as set forth in the Pricing
Prospectus. All of the Partnership’s outstanding common
units, subordinated units and incentive distribution rights and the
limited partner interests represented thereby have been duly
authorized and validly issued in accordance with the
Partnership’s First Amended and Restated Agreement of Limited
Partnership dated as of July 13, 2004, as amended (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 Revised Uniform Limited Partnership Act
(the “DRULPA”) and as otherwise described in the
Pricing Prospectus;
(l)
All of the issued and outstanding partnership interests of the
General Partner have been duly authorized and validly issued and
are fully paid (to the extent required under the General
Partner’s partnership agreement) and the limited partner
interests in the General Partner are nonassessable (except as such
nonassessability may be affected by Sections 17-607 and 17-804 of
the DRULPA and as otherwise described in the Pricing
Prospectus);
(m)
All of the issued and outstanding membership interests of GP L.L.C.
have been duly authorized and validly issued, are fully paid (to
the extent required under the limited liability company agreement
of GP L.L.C.) and nonassessable (except as such nonassessability
may be affected by Sections 18-607 and 17-804 of the Delaware
Limited Liability Act (the “Delaware LLC Act”) and as
otherwise described in the Pricing Prospectus);
(n)
Attached as Schedule III is a true and complete list of each
entity in which the Partnership has a direct or indirect majority
equity or voting interest (each a “Subsidiary” and,
together, the “Subsidiaries”), their jurisdictions of
organization, name of equityholder(s) and percentage held by each
equityholder. All of the issued and outstanding equity interests of
each Subsidiary have been duly and validly authorized and issued,
are fully paid (to the extent required by such Subsidiary’s
limited liability company or partnership agreement) and (except
(i) as such nonassessability may be affected by the Delaware
LLC Act or the DRULPA and (ii) with respect to any general
partner interests) nonassessable, were not issued in violation of
any preemptive or similar right and, except as set forth in the
Pricing Prospectus, are owned, directly or indirectly through
Subsidiaries, by the Partnership free and clear of all liens (other
than transfer restrictions imposed by the Act, the securities or
Blue Sky laws of certain jurisdictions and security interests
granted pursuant to the Amended and Restated Credit Agreement,
dated as of August 27, 2007, as amended by the Agreement and
Amendment
5
No. 1
to Amended and Restated Credit Agreement, dated as of
February 25, 2008 and Amendment No. 2 to Amended and
Restated Credit Agreement, dated as of September 8, 2008 (as
so amended, the “Credit Agreement”), each among the
Operating Partnership, the Subsidiaries party thereto as guarantors
and the financial institutions party thereto. Except as set forth
in the Pricing Prospectus, there are no outstanding options,
warrants or other rights to acquire or purchase, or instruments
convertible into or exchangeable for, any equity interests of the
Partnership or any of the Subsidiaries;
(o)
Other than as set forth on Schedule III, the Partnership and
its Subsidiaries do not own, and at each Time of Delivery, none
will own, directly or indirectly, any equity or long-term debt
securities of any corporation, partnership, limited liability
company, joint venture, association or other entity. The General
Partner, HEP Logistics GP, L.L.C. (“OLP GP”) and GP
L.L.C. do not own, and at each such Time of Delivery will not own,
directly or indirectly, any equity or long-term debt securities of
any corporation, partnership, limited liability company, joint
venture, association or other entity other than their respective
partnership interests in the Partnership, the Operating Partnership
and the General Partner;
(p)
This Agreement has been duly authorized, executed and delivered by
the Partnership, General Partner and GP LLC. The Partnership has
all requisite power and authority to issue, sell and deliver the
Common Units, in accordance with and upon the terms and conditions
set forth in this Agreement and the Partnership Agreement. At each
Time of Delivery, all corporate, partnership and limited liability
company action, as the case may be, required to be taken by the
Partnership, the General Partner, GP LLC, the Operating
Partnership, OLP GP (the “Holly Parties”) or the
Subsidiaries (together with the Holly Parties, the “Holly
Entities”) or any of their stockholders, members or partners
for the authorization, issuance, sale and delivery of the Common
Units and the consummation of the transactions contemplated hereby,
shall have been validly taken;
(q)
Neither the Partnership nor any Subsidiary is in (A) violation
of its certificate or agreement of limited partnership, limited
liability company agreement, certificate or articles of
incorporation or bylaws or other organizational documents,
(B) violation 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 (C) breach, default (or an event
which, with notice or lapse of time or both, would constitute such
default) or violation in performance of any obligation, agreement
or condition contained in any bond, debenture, note or any other
evidence of indebtedness or in any agreement, indenture, lease or
other instrument to which it is a party or by which it or any of
its properties may be bound, which breach, default or violation, in
the case of clauses (B) or (C), would, if continued,
reasonably be expected to have a Material Adverse Effect. To the
knowledge of the Partnership, no third party to any indenture,
mortgage, deed of trust, loan agreement or other agreement to which
any of the Partnership or any Subsidiary is a party or by which any
of them is bound or to which any of their properties is subject, is
in default under any such agreement, which breach, default or
violation would, if continued, reasonably be expected to have a
Material Adverse Effect;
(r)
The offering, issue and sale by the Partnership of the Common Units
and the compliance by the Partnership with this Agreement and the
consummation of the transactions contemplated hereby does not and
will not (A) violate the certificate of limited partnership,
agreement of limited partnership, certificate of formation, limited
liability company agreement, certificate or articles of
incorporation, or bylaws of the Partnership or any Subsidiary,
(B)
6
conflict
with or constitute a breach of or a default under (or an event that
with notice or the lapse of time, or both, would constitute a
default), any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which the Partnership or
any Subsidiary is a party or by which any of them or any of their
respective properties may be bound, (C) 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 or any Subsidiary or any of their properties in a
proceeding to which any of them or their property is a party or
(D) result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Partnership or
any Subsidiary, which conflicts, breaches, violations or defaults,
in the case of clauses (B), (C) or (D), would, individually or
in the aggregate, reasonably be expected to have a Material Adverse
Effect;
(s)
No consent, approval, authorization, order, registration, filing or
qualification of or with any court, governmental agency or body is
required for the offering, issuance and sale by the Partnership of
the Common Units, the execution, delivery and performance of this
Agreement by the Partnership, or the consummation by the
Partnership of the transactions contemplated hereby, except
(i) for such consents, approvals and similar authorizations
required under the Securities Act, the Exchange Act and state
securities or “Blue Sky” laws and (ii) for such
consents which, if not obtained would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect;
(t)
The public accountants whose reports appear or are incorporated by
reference in the Registration Statement, the Pricing Prospectus or
the Prospectus are independent public accountants with respect to
the Partnership within the meaning of Rule 101 of the Code of
Professional Conduct of the American Institute of Certified Public
Accountants. The historical financial statements (including the
notes thereto) included or incorporated by reference in the
Registration Statement, the Pricing Prospectus and the Prospectus
present fairly in all material respects the consolidated combined
financial position, results of operations, cash flows and changes
in partner’s equity of the entities to which they relate at
the respective dates and for the respective periods indicated. All
such financial statements have been prepared in accordance with
generally accepted accounting principles in the United States
(“GAAP”) applied on a consistent basis throughout the
periods presented (except as disclosed therein) and in compliance
with Regulation S-X (“Regulation S-X”) under
the Exchange Act, except that the interim financial statements do
not include full footnote disclosure. The financial information set
forth under the captions “Summary — Summary historical
financial and operating data” and “Selected historical
financial and operating data” included in or incorporated by
reference in the Pricing Prospectus have been prepared on a basis
consistent with that of the audited and unaudited financial
statements from which it is derived. Since the date as of which
information is given in the Pricing Prospectus, except as set forth
or contemplated in the Pricing Prospectus, (A) neither the
Partnership nor any Subsidiary has (1) incurred any
liabilities or obligations, direct or contingent, that,
individually or in the aggregate, would reasonably be expected to
have a Material Adverse Effect, or (2) entered into any
material transaction not in the ordinary course of business and
(B) there has been no dividend or distribution of any kind
declared, paid or made by the Partnership on any of its equity
interests;
(u)
Except as set forth in the Pricing Prospectus, there are no legal
or governmental proceedings pending to which the Partnership or any
Subsidiary is a party or of which any property of the Partnership
or any Subsidiary is the subject which, if determined adversely
to
7
the
Partnership or any Subsidiary, individually or in the aggregate,
would reasonably be expected to have a Material Adverse Effect and,
to the best of the Partnership’ knowledge, no such
proceedings are threatened;
(v)
No labor dispute with the employees of the Partnership or any
Subsidiary exists or, to the knowledge of the Partnership, is
imminent that is reasonably likely to result in a Material Adverse
Effect;
(w)
Except as disclosed in the Pricing Prospectus, the Partnership and
its Subsidiaries (i) are in compliance with any and all
applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety and the
environment or imposing liability or standards of conduct,
including the transport of, concerning any Hazardous Material (as
defined below) (“Environmental Laws”), (ii) have
received, and maintain in full force and effect, all Permits (as
defined below) required of them under applicable Environmental Laws
to conduct their respective businesses, (iii) are in
compliance with the terms and conditions of any such Permits, and
(iv) to the knowledge of the Partnership, do not have any
liability in connection with either noncompliance with
Environmental Laws or with the release into the environment of any
Hazardous Materials, except where such noncompliance with the
Environmental Laws, failure to receive required Permits, failure to
comply with the terms and conditions of such Permits or liability
in connection with such noncompliance or releases, would not
reasonably be expected to, individually or in the aggregate, have a
Material Adverse Effect. The term “Hazardous Material”
means (A) any “hazardous substance” as defined in
the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, (B) any “hazardous
waste” as defined in the Resource Conservation and Recovery
Act, as amended, (C) any petroleum or petroleum product,
(D) any polychlorinated biphenyl and (E) any pollutant or
contaminant or hazardous, dangerous or toxic chemical, material,
waste or substance regulated under or within the meaning of any
other Environmental Law;
(x)
Each of the Partnership and its Subsidiaries has such permits,
consents, licenses, franchises, certificates and authorizations of
governmental or regulatory authority (“Permits”) as are
necessary to own its properties and to conduct its business in the
manner described in the Pricing Prospectus, subject to such
qualifications as may be set forth in the Pricing Prospectus and
except for such Permits which, if not obtained, would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; each of the Partnership and its
Subsidiaries has fulfilled and performed all its material
obligations with respect to such Permits which are due to have been
fulfilled and performed and no event has occurred which allows, or
after notice or lapse of time would allow, revocation or
termination thereof or results in any impairment of the rights of
the holder of any such Permit, except for such revocations,
terminations and impairments that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect, subject in each case to such qualifications as may be set
forth in the Pricing Prospectus; and except as described in the
Pricing Prospectus, none of the Permits contains any restriction
that is materially burdensome to the Partnership and the
Subsidiaries, taken as a whole;
(y)
The Operating Partnership and the other Subsidiaries have such
consents, easements, rights-of-way, permits or licenses from each
person (collectively, “rights-of-way”) as are necessary
to conduct its business in the manner described, and subject to the
limitations contained, in the Pricing Prospectus, except for
(A) qualifications, reservations and encumbrances which would
not reasonably be expected to have a Material Adverse
Effect
8
upon the
ability of the Partnership and its Subsidiaries, taken as a whole,
to conduct their businesses in all material respects as currently
conducted and as contemplated by the Pricing Prospectus to be
conducted and (B) such rights-of-way that, if not obtained,
would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect upon the ability of the
Partnership and its Subsidiaries, taken as a whole, to conduct
their businesses in all material respects as currently conducted
and as contemplated by the Pricing Prospectus to be conducted;
other than as set forth, and subject to the limitations contained,
in the Pricing Prospectus, each of the Partnership and its
Subsidiaries 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 revocations, terminations and impairments that would not have
a Material Averse Effect upon the ability of the Partnership and
its Subsidiaries, taken as a whole, to conduct their businesses in
all material respects as currently conducted and as contemplated by
the Pricing Prospectus to be conducted; and, except as described in
the Pricing Prospectus, none of such rights-of-way contains any
restriction that is materially burdensome to the Partnership and
its Subsidiaries, taken as a whole;
(z)
Neither the Partnership nor any of the Subsidiaries own, possess or
have the right to employ any patents, patent rights, licenses,
inventions, copyrights, know how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and
trade names that is material to the conduct of the business of the
Partnership and the Subsidiaries, taken as a whole, except as
described in the Pricing Prospectus;
(aa)
The Partnership and the Subsidiaries have filed (or have obtained
extensions with respect to) all federal, state and foreign income
and franchise tax returns required to be filed through the date
hereof, which returns are complete and correct in all material
respects, and have timely paid all taxes shown to be due pursuant
to such returns, other than those (A) which, if not paid,
would not reasonably be expected to have a Material Adverse Effect
or (B) which are being contested in good faith and for which
adequate reserves have been established in accordance with
generally accepted accounting principles;
(bb)
The statements set forth in the Pricing Prospectus and the
Prospectus under the caption “Description of Our Common
Units”, insofar as they purport to constitute a summary of
the terms of the Common Units, under the caption “Certain
United States Federal Income Tax Considerations”, and under
the caption “Underwriting”, insofar as they purport to
describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair;
(cc)
The Partnership is not and, after giving effect to the offering and
sale of the Common Units and the application of the proceeds
thereof, will not be an “investment company”, as such
term is defined in the Investment Company act of 1940, as
amended;
(dd)
At the earliest time after the filing of the Initial Registration
Statement that the Partnership or another offering participant made
a bona fide offer (within the meaning of Rule 164(h)(2)
under the Act) of the Common Units, the Partnership was not an
“ineligible issuer” as defined in Rule 405 under
the Act;
(ee)
The Partnership and the Subsidiaries maintain a system of internal
control over financial reporting (as such term is defined in
Rule 13(a)-15(f) under the Exchange Act) that complies with
the requirements of the Exchange Act and has been designed by
the
9
Partnership’s
principal executive officer and principal financial officer, or
under their supervision, to provide reasonable assurance regarding
the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with
generally accepted accounting principles. The Partnership’s
internal control over financial reporting is effective to provide
reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles and the Partnership is not aware of any material
weaknesses in its internal controls over financial
reporting;
(ff)
Since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus, there has been no
change in the Partnership’s internal control over financial
reporting that has materially affected, or is reasonably likely to
materially affect, the Partnership’s internal control over
financial reporting;
(gg)
The Partnership maintains disclosure controls and procedures (as
such term is defined in Rule 13a-15(e) under the Exchange Act)
that comply with the requirements of the Exchange Act; such
disclosure controls and procedures have been designed to ensure
that material information relating to the Partnership and the
Subsidiaries is made known to the Partnership’s principal
executive officer and principal financial officer by others within
those entities; and such disclosure controls and procedures are
effective;
(hh)
Except as described in the section entitled
“Underwriting” in the Pricing Prospectus, there are no
contracts, agreements or understandings between the Partnership or
any Subsidiary and any other person other than the Underwriters
pursuant to this Agreement that would give rise to a valid claim
against the Partnership, any Subsidiary or any of the Underwriters
for a brokerage commission, finder’s fee or like payment in
connection with the issuance, purchase and sale of the Common
Units;
(ii)
The Partnership and the Subsidiaries maintain, or are entitled to
the benefits of, insurance covering their properties, operations,
personnel and businesses against such losses and risks as are
reasonably adequate to protect them and their businesses. None of
the Partnership or the Subsidiaries has received notice from any
insurer or agent of such insurer that substantial capital
improvements or other expenditures will have to be made in order to
continue such insurance, and all such insurance is outstanding and
duly in force on the date hereof and will be outstanding and duly
in force at each Time of Delivery; and
(jj)
The Partnership will be treated as a partnership for U.S. federal
income tax purposes.
Each
certificate signed by any officer of the Partnership and delivered
to the Underwriters or counsel for the Underwriters pursuant to, or
in connection with, this Agreement shall be deemed to be a
representation and warranty by the Partnership to the Underwriters
as to the matters covered by such certificate.
The
Partnership acknowledges that the Underwriters and, for purposes of
the opinions to be delivered to the Underwriters pursuant to
Section 8 of this Agreement, counsel to the Partnership and
counsel to the Underwriters will
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