Exhibit 1.1
PENN VIRGINIA GP HOLDINGS,
L.P.
8,695,655 Common
Units
Representing Limited Partner
Interests
UNDERWRITING
AGREEMENT
J.P. Morgan Securities
Inc.
Wells Fargo Securities,
LLC
As
Representatives of the several
Underwriters
named in Schedule 1 attached hereto,
c/o Barclays
Capital Inc.
Penn Virginia Resource GP Corp., a Delaware
corporation (the “ Selling Unitholder ” or
“ GP Corp ”), a unitholder of Penn Virginia GP
Holdings, L.P., a Delaware limited partnership (the “
Partnership ”), proposes to sell to the underwriters
named in Schedule 1 (the “ Underwriters
”) attached to this underwriting agreement (this “
Agreement ”) 8,695,655 common units (the
“ Firm Units ”), representing limited partner
interests in the Partnership (“ Common Units
”). In addition, the Selling Unitholder proposes
to grant to the Underwriters an option to purchase up
to an additional 1,304,345 Common Units on the terms set forth in
Section 3 (the “ Option Units ”). The
Firm Units and the Option Units, if purchased, are hereinafter
collectively called the “ Units .”
This is to confirm the agreement among the
Partnership and PVG GP, LLC, a Delaware limited liability company
and the general partner of the Partnership (the “ General
Partner ,” and together with the Partnership, the “
Partnership Parties ”), the Selling Unitholder and the
Underwriters concerning the purchase of the Units from the Selling
Unitholder by the Underwriters.
Penn Virginia Resource GP, LLC, a Delaware
limited liability company (“ PVR GP ”), is a
wholly owned subsidiary of the Partnership and the sole general
partner of Penn Virginia Resource Partners, L.P., a publicly traded
Delaware limited partnership (“ PVR
”). The subsidiaries of PVR listed on
Schedule 2 attached hereto are referred to herein as
the “ Material Subsidiaries .” PVR, its direct
or indirect majority-owned subsidiaries (collectively, the “
PVR Subsidiaries ”) and PVR GP are collectively
referred to as the “ PVR Entities
.” The Partnership Parties and the PVR Entities
are collectively referred to as the “ Partnership
Entities .”
1. Representations, Warranties and Agreements
of the Partnership Parties . The Partnership Parties
jointly and severally represent, warrant and agree that:
(a) Registration; Definitions; No Stop
Order . A registration statement (No. 333-161257) on
Form S-3 relating to the Units (i) has been prepared by the
Partnership in conformity with the requirements of the Securities
Act of 1933, as amended (the “ Securities Act
”), and the rules and regulations (the “ Rules and
Regulations ”) of the Securities and Exchange Commission
(the “ Commission ”) thereunder; (ii) has
been filed with the Commission under the Securities Act; and
(iii) is effective under the Securities Act. Copies
of such registration statement and any amendment thereto have been
delivered by the Partnership to you as the representatives of the
Underwriters (the “ Representatives
”). As used in this Agreement:
(i) “ Applicable Time ” means
6:30 p.m., New York City time, on September 10, 2009;
(ii) “ Effective Date ” means
any date as of which any part of such registration statement
relating to the Units became, or is deemed to have become,
effective under the Securities Act in accordance with the Rules and
Regulations;
(iii) “ Issuer Free Writing
Prospectus ” means each “free writing
prospectus” (as defined in Rule 405 of the Rules and
Regulations) prepared by or on behalf of the Partnership or used or
referred to by the Partnership in connection with the offering of
the Units;
(iv) “ Preliminary Prospectus
” means any preliminary prospectus relating to the Units
included in such registration statement or filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations,
including any preliminary prospectus supplement thereto relating to
the Units;
(v) “ Pricing Disclosure Package
” means, as of the Applicable Time, the most recent
Preliminary Prospectus, together with each Issuer Free Writing
Prospectus filed with the Commission on or before the Applicable
Time, as set forth on Schedule 3 , other than a
“road show” that is an Issuer Free Writing Prospectus
under Rule 433 of the Rules and Regulations;
(vi) “ Prospectus ” means the
final prospectus relating to the Units, including any prospectus
supplement thereto relating to the Units, as filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations;
and
(vii) “ Registration Statement
” means the registration statement on Form S-3 (No.
333-161257), as amended as of the Effective Date, including any
Preliminary Prospectus or the Prospectus and all exhibits to such
registration statement.
Any reference
to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents incorporated by reference
therein pursuant to Form S-3 under the Securities Act as of the
date of such Preliminary Prospectus or the Prospectus, as the case
may be. Any reference to the “ most recent
Preliminary Prospectus ” shall be deemed to refer to the
latest Preliminary Prospectus included in the Registration
Statement or filed pursuant to Rule 424(b) of the Rules and
Regulations prior to or on the date hereof (including, for purposes
hereof, any documents incorporated by reference therein prior to or
on the date hereof). Any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any document filed under the
Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), after the date of such Preliminary
Prospectus or the Prospectus, as the case may be, and incorporated
by reference in such Preliminary Prospectus or the Prospectus, as
the case may be. Any reference to any amendment to the
Registration Statement shall be deemed to include any periodic
report of the Partnership filed with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act after the Effective Date
that is incorporated by reference in the Registration
Statement. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus or
the Prospectus or suspending the effectiveness of the Registration
Statement, and no proceeding or examination for such purpose has
been instituted or, to the knowledge of the Partnership Parties,
threatened by the Commission. The Commission has not
notified the Partnership of any objection to the use of the form of
the Registration Statement.
(b) Registration Statement and Prospectus
Conform to the Requirements of the Securities Act.
The Registration Statement conformed in all material respects on
the Effective Date and will conform in all material respects on the
applicable Delivery Date, and any amendment to the Registration
Statement filed after the date hereof will conform in all material
respects when filed, to the requirements of the Securities Act and
the Rules and Regulations. The most recent Preliminary
Prospectus conformed in all material respects when filed with the
Commission, and the Prospectus will conform, in all material
respects when filed with the Commission pursuant to Rule 424(b) of
the Rules and Regulations, and on the applicable Delivery Date, to
the requirements of the Securities Act and the Rules and
Regulations.
(c) No Material Misstatements or Omissions in
Registration Statement. The Registration Statement
did not, as of the Effective Date, contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided that no representation or
warranty is made as to information contained in or omitted from the
Registration Statement in reliance upon and in conformity with
written information furnished to the Partnership through the
Representatives by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in Section
10(f).
(d) No Material Misstatements or Omissions in
Prospectus. The Prospectus will not, as of its date and on the
applicable Delivery Date, contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that
no representation or warranty is made as to information contained
in or omitted from the Prospectus in reliance upon and in
conformity with written information furnished to the Partnership
through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein, which information is specified
in Section 10(f).
(e) No Material Misstatements or Omissions in
Pricing Disclosure Package. The Pricing Disclosure
Package did not, as of the Applicable Time, contain an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
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 10(f).
(f) No Material Misstatements or Omissions in
Issuer Free Writing Prospectuses. Each Issuer Free
Writing Prospectus (including, without limitation, any road show
that is a free writing prospectus under Rule 433), when considered
together with the Pricing Disclosure Package as of the Applicable
Time, did not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
(g) Issuer Free Writing Prospectuses Conform
to the Requirements of the Securities Act. Each
Issuer Free Writing Prospectus conformed or will conform in all
material respects to the requirements of the Securities Act and the
Rules and Regulations on the date of first use, and the Partnership
has complied with all prospectus delivery requirements, any filing
requirements and record keeping requirements applicable to such
Issuer Free Writing Prospectus pursuant to the Rules and
Regulations. The Partnership has not made any offer
relating to the Units that would constitute an Issuer Free Writing
Prospectus without the prior written consent of the
Representatives. The Partnership has retained in
accordance with the Rules and Regulations all Issuer Free Writing
Prospectuses that were not required to be filed pursuant to the
Rules and Regulations. The Partnership has taken all
actions necessary so that any “road show” (as defined
in Rule 433 of the Rules and Regulations) in connection with the
offering of the Units will not be required to be filed pursuant to
the Rules and Regulations.
(h) Formation and Qualification of
Partnership and PVR. Each of the Partnership
and PVR has been duly formed and is validly existing in good
standing as a limited partnership under the Delaware Revised
Uniform Limited Partnership Act (the “ Delaware LP Act
”) with full partnership power and authority to own or lease
its properties and to conduct its business in all material respects
as described in the Registration Statement. Each of the
Partnership and PVR is duly registered or qualified as a foreign
limited partnership for the transaction of business under the laws
of each jurisdiction in which the character of the business
conducted by it or the nature or location of the properties owned
or leased by it makes such registration or qualification necessary,
except where the failure to so register or qualify would not (i)
have a material adverse effect on the condition (financial or
otherwise), business, prospects, assets or results of operations of
the Partnership Entities, taken as a whole (a “ Material
Adverse Effect ”), or (ii) subject the limited partners
of the Partnership to any material liability or
disability.
(i) Formation and Qualification of the
General Partner, PVR GP and the Material Subsidiaries
. Each of the General Partner, PVR GP and the
Material Subsidiaries has been duly formed and is validly existing
in good standing as a limited liability company under the Delaware
Limited Liability Company Act (the “ Delaware LLC Act
”) or the Oklahoma Limited Liability Company Act (the “
Oklahoma LLC Act ”), as the case may be, with full
limited liability company power and authority to own or lease its
properties and to conduct its business, and, in the case of PVR GP,
to act as general partner of PVR and, in the case of the General
Partner, to act as general partner of the
Partnership. Each of the General Partner, PVR GP
and the Material Subsidiaries is, or at each Delivery Date will be,
duly registered or qualified as a foreign limited liability company
for the transaction of business under the laws of each jurisdiction
in which the character of the business conducted by it or the
nature or location of the properties owned or leased by it makes
such registration or qualification necessary, except where the
failure so to register or qualify would not (i) have a Material
Adverse Effect or (ii) subject the limited partners of the
Partnership to any material liability or disability.
(j) Ownership of the General Partner
. GP Corp’s membership interest in
the General Partner has been duly authorized and validly issued in
accordance with the limited liability company agreement of the
General Partner (the “ General Partner LLC Agreement
”) and is fully paid (to the extent required under the
General Partner LLC Agreement) and nonassessable (except as such
nonassessability may be affected by Sections 18-607 and 18-804 of
the Delaware LLC Act).
(k) Ownership of the General Partner Interest
in the Partnership. The General Partner is the sole
general partner of the Partnership and owns a noneconomic general
partner interest in the Partnership; such noneconomic general
partner interest has been duly authorized and validly issued in
accordance with the Second Amended and Restated Agreement of
Limited Partnership of the Partnership, as amended (the “
Partnership Agreement ”); and the General Partner owns
such noneconomic general partner interest free and clear of all
liens, encumbrances, security interests, charges or claims (“
Liens ”).
(l) Capitalization of the
Partnership . As of the date hereof, the issued and
outstanding limited partner interests of the Partnership consist of
39,074,500 Common Units. All outstanding Common Units
and the limited partner interests represented thereby have been
duly authorized and validly issued in accordance with the
Partnership Agreement and are fully paid (to the extent required
under the Partnership Agreement) and nonassessable (except as such
nonassessability may be affected by matters described in Sections
17-607 and 17-804 of the Delaware LP Act).
(m) Ownership of PVR GP by the
Partnership. The Partnership is the sole member of
PVR GP with a 100% membership interest in PVR GP; such membership
interest has been duly authorized and validly issued in accordance
with the limited liability company agreement of PVR GP (the “
PVR GP LLC Agreement ”), and is fully paid (to
the extent required under PVR GP LLC Agreement) and nonassessable
(except as such nonassessability may be affected by matters
described in Sections 18-607 and 18-804 of the Delaware LLC Act);
and the Partnership owns such membership interest free and clear of
all Liens.
(n) Ownership of the General Partner Interest
in PVR. PVR GP is the sole general partner of PVR
with a 2.0% general partner interest in PVR; such general partner
interest has been duly authorized and validly issued in accordance
with the Third Amended and Restated Agreement of Limited
Partnership of PVR, as amended (the “ PVR Partnership
Agreement ”); and PVR GP owns such general partner
interest free and clear of all Liens.
(o) Ownership of the Incentive Distribution
Rights in PVR . PVR GP owns all of the Incentive
Distribution Rights (as such term is defined in the PVR Partnership
Agreement); such Incentive Distribution Rights have been duly
authorized and validly issued in accordance with the PVR
Partnership Agreement and are fully paid (to the extent required
under the PVR Partnership Agreement) and nonassessable (except as
such nonassessability may be affected by matters described in
Sections 17-607 and 17-804 of the Delaware LP Act); and PVR GP owns
the Incentive Distribution Rights free and clear of all Liens,
except restrictions on transferability as described in the PVR
Partnership Agreement.
(p) Ownership of PVR Common Units
. The Partnership owns 19,587,049 common units
representing limited partner interests in PVR; such limited partner
interests have been duly authorized and validly issued in
accordance with the PVR Partnership Agreement and are fully paid
(to the extent required under the PVR Partnership Agreement) and
nonassessable (except as such nonassessability may be affected by
matters described in Sections 17-607 and 17-804 of the Delaware LP
Act); and the Partnership owns such limited partner interests free
and clear of all Liens.
(q) Ownership of PVR Finco
. PVR owns a 100% membership interest in PVR Finco LLC,
a Delaware limited liability company (“ PVR Finco
”); such membership interest has been duly authorized and
validly issued in accordance with the limited liability company
agreement of PVR Finco (the “ PVR Finco
Agreement ”) and is fully paid (to the extent required
under the PVR Finco Agreement) and nonassessable (except as such
nonassessability may be affected by Sections 18-607 and 18-804 of
the Delaware LLC Act); and the Partnership owns such membership
interest free and clear of all Liens, other than those pursuant to
the Amended and Restated Credit
Agreement, dated August 5, 2008, by and among PVR Finco, the
guarantors party thereto, PNC Bank, National Association, as
administrative agent and the other financial institutions party
thereto, as amended (the “ Credit Agreement
”).
(r) Ownership of Operating Company
. PVR Finco owns a 100% membership interest in Penn
Virginia Operating Co., LLC, a Delaware limited liability company
(the “ Operating Company ”); such membership
interest has been duly authorized and validly issued in accordance
with the limited liability company agreement of the Operating
Company (the “ Operating Company Agreement ”)
and is fully paid (to the extent required under the Operating
Company Agreement) and nonassessable (except as such
nonassessability may be affected by Sections 18-607 and 18-804 of
the Delaware LLC Act); and PVR Finco owns such membership interest
free and clear of all Liens, other than those pursuant to
the Credit Agreement .
(s) Ownership of Midstream LLC
. PVR Finco owns a 100% membership interest in PVR
Midstream LLC, a Delaware limited liability company (“
Midstream LLC ”); such membership interest has been
duly authorized and validly issued in accordance with the limited
liability company agreement of Midstream LLC (the “
Midstream LLC Agreement ”) and is fully paid (to the
extent required under the Midstream LLC Agreement) and
nonassessable (except as such nonassessability may be affected by
Sections 18-607 and 18-804 of the Delaware LLC Act); and PVR Finco
owns such membership interest free and clear of all Liens, other
than those pursuant to the Credit
Agreement .
(t) Ownership of Material Subsidiaries
. The Operating Company owns a 100% membership interest
in each of Fieldcrest Resources LLC, Loadout LLC and Toney
Fork LLC; Midstream LLC owns a 100% membership interest in PVR
Gas Resources, LLC, a Delaware limited liability company (“
Gas Resources ”); and Gas Resources owns a 100%
membership interest in each of PVR North Texas Gas Gathering, LLC,
PVR Cherokee Gas Processing LLC, PVR Gas Processing LLC and PVR
Natural Gas Gathering LLC. Such membership interests
have been duly authorized and validly issued in accordance with the
respective limited liability company agreement of such Material
Subsidiaries (together, the “ Material Subsidiary LLC
Agreements ”) and are fully paid (to the extent required
under the applicable Material Subsidiary LLC Agreement) and
nonassessable (except as such nonassessability may be affected by
Sections 18-607 and 18-804 of the Delaware LLC Act or Sections
18-2031 and 18-2040 of the Oklahoma LLC Act, as the case may be);
and the Operating Company, Midstream LLC or Gas Resources, as the
case may be, owns such membership interest free and clear of all
Liens, other than those pursuant to the Credit
Agreement. The PVR Subsidiaries other than the Material
Subsidiaries did not, individually or in the aggregate, account for
more than 10% of the total assets of the PVR Entities, taken as a
whole, as of June 30, 2009. No PVR Subsidiary other than
the Material Subsidiaries is a “significant subsidiary”
(as such term is defined under Rule 405 of the Rules and
Regulations) of PVR.
(u) No Other Subsidiaries
. Other than the PVR Subsidiaries and except as
disclosed in the next sentence, the Partnership does not own,
directly or indirectly, and at each Delivery Date will not own,
directly or indirectly, any equity or long-term debt securities of
any corporation, partnership, limited liability company, joint
venture, association or other entity other than its limited partner
interests in PVR and its membership interests in PVR
GP. Other than the PVR Subsidiaries and other than (i)
Loadout LLC’s 50% interest in a joint venture with affiliates
of Massey Energy Company, (ii) Midstream LLC’s interests in
CBC/Leon Limited Partnership, Leon Limited Partnership I and Bright
Star Partnership and the 25% interest in Thunder Creek Gas
Services, L.L.C.) and PVR East Texas Gas Processing LLC’s
interests in CrossPoint Pipeline, LLC, PVR does not own, directly
or indirectly, and at each Delivery Date will not own, directly or
indirectly, any equity or long-term debt securities of any
corporation, partnership, limited liability company, joint venture,
association or other entity. Other than its ownership of
its partnership interests in the Partnership, the General Partner
does not own, and at the Initial Delivery Date and Option Unit
Delivery Date will not own, directly or indirectly, any equity or
long-term debt securities of any corporation, partnership, limited
liability company, joint venture, association or other
entity.
(v) No Preemptive Rights, Registration Rights
or Options. Except as described in the most recent
Preliminary Prospectus, there are no preemptive rights or other
rights to subscribe for or to purchase, nor any restriction upon
the voting or transfer of, any limited partner interests of the
Partnership or PVR. Neither the filing of the
Registration Statement nor the offering or sale of the Units by the
Selling Unitholder as contemplated by this Agreement gives rise to
any rights for or relating to the registration of any Units or
other securities of the Partnership or PVR. Except as
described in the most recent Preliminary Prospectus or for options
granted pursuant to employee benefits plans, qualified unit option
plans or other employee compensation plans, there are no
outstanding options or warrants to purchase any partnership
interest in the Partnership or PVR.
(w) Authority and Authorization
. The Partnership Parties have all requisite power and
authority to enter into this Agreement and to consummate the
transactions contemplated hereby. At the applicable
Delivery Date, all partnership and limited liability company
action, as the case may be, required to be taken by the Partnership
Parties or any of their partners or members for the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby shall have been validly taken.
(x) Authorization of this Agreement
. This Agreement has been duly authorized and validly
executed and delivered by the Partnership Parties.
(y) Partnership Organizational Agreements
.
(i) The Partnership Agreement has been duly
authorized, executed and delivered by the General Partner and is a
valid and legally binding agreement of the General Partner,
enforceable against the General Partner in accordance with its
terms;
(ii) The General Partner LLC Agreement has been
duly authorized, executed and delivered by GP Corp and is a
valid and legally binding agreement of GP Corp, enforceable
against GP Corp in accordance with its terms;
provided
that , with respect to
each agreement described in this Section 1(y), the enforceability
thereof may be limited by (i) applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws
relating to or affecting creditors’ rights generally and by
general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity),
and (ii) public policy, applicable law relating to fiduciary duties
and indemnification and an implied covenant of good faith and fair
dealing.
The Partnership Agreement and the General
Partner LLC Agreement are herein collectively referred to as the
“ Partnership Organizational Agreements
.”
(z) PVR Organizational Agreements
.
(i) the PVR GP LLC Agreement has been duly
authorized, executed and delivered by the Partnership and is a
valid and legally binding agreement of the Partnership, enforceable
against the Partnership in accordance with its terms;
(ii) the PVR Partnership Agreement has been duly
authorized, executed and delivered by PVR GP and is a valid and
legally binding agreement of PVR GP, enforceable against PVR GP in
accordance with its terms;
(iii) the PVR Finco Agreement has been duly
authorized, executed and delivered by PVR, and is valid and legally
binding agreement of PVR, enforceable against PVR in accordance
with its terms;
(iv) the Operating Company Agreement has been
duly authorized, executed and delivered by PVR Finco and is a valid
and legally binding agreement of PVR Finco, enforceable against PVR
Finco in accordance with its terms; and
(v) the Midstream LLC Agreement has been duly
authorized, executed and delivered by PVR Finco and is a valid and
legally binding agreement of PVR Finco, enforceable against PVR
Finco in accordance with its terms.
provided
that , with respect to
each agreement described in this Section 1(z), the enforceability
thereof may be limited by (i) applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws
relating to or affecting creditors’ rights generally and by
general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity),
and (ii) public policy, applicable law relating to fiduciary duties
and indemnification and an implied covenant of good faith and fair
dealing.
The PVR GP LLC Agreement, the PVR Partnership
Agreement, the PVR Finco Agreement, the Operating Company Agreement
and the Midstream LLC Agreement are herein collectively referred to
as the “ PVR Organizational Agreements
.”
(aa) No Conflicts . None of
the execution, delivery and performance of this Agreement by the
Partnership Parties, the offering and sale of the Units or the
consummation of the transactions contemplated hereby
(i) constitutes or will constitute a violation of the
Partnership Organizational Agreements, the PVR Organizational
Agreements or the other organizational documents of any of the
Partnership, the General Partner, PVR, PVR GP or the Material
Subsidiaries, (ii) constitutes or will constitute a breach or
violation of, or a default (or an event which, with notice or lapse
of time or both, would constitute such a default) under, any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which any of the Partnership, the
General Partner, PVR, PVR GP or the Material Subsidiaries is a
party or by which any of them or any of their respective properties
may be bound, (iii) violates or will violate any statute, law
or regulation or any order, judgment, decree or injunction of any
court or governmental agency or body directed to any of the
Partnership, the General Partner, PVR, PVR GP or the Material
Subsidiaries or any of their properties in a proceeding to which
any of them or their property is or was a party, or
(iv) results or will result in the creation or imposition of
any Lien upon any property or assets of any of the Partnership, the
General Partner, PVR, PVR GP or the Material Subsidiaries, which
conflicts, breaches, violations, defaults or liens, in the case of
clauses (ii), (iii) or (iv), would, individually or in the
aggregate, have a Material Adverse Effect or would materially
impair the ability of the Partnership Parties to perform their
obligations under this Agreement.
(bb) No Consents . No permit,
consent, approval, authorization, order, registration, filing or
qualification (“consent”) of or with any court,
governmental agency or body having jurisdiction over the
Partnership Entities or any of their respective properties is
required in connection with the offering and sale of the Units, the
execution, delivery and performance of this Agreement by the
Partnership Parties, or the consummation by the Partnership Parties
of the transactions contemplated by this Agreement, except for
(i) such consents required under the Securities Act, the
Exchange Act and state securities or “Blue Sky” laws
and (ii) such consents that have been, or prior to the
Delivery Date will be, obtained.
(cc) No Default . None of the
Partnership, the General Partner, PVR, PVR GP or the Material
Subsidiaries is (i) in violation of its Partnership Organizational
Agreement or PVR Organizational Agreement or other organizational
documents, as the case may be, (ii) in violation of any law,
statute, ordinance, administrative or governmental rule or
regulation applicable to it or of any order, judgment, decree or
injunction of any court or governmental agency or body having
jurisdiction over it, or (iii) in breach, default (or an event
which, with notice or lapse of time or both, would constitute such
a default) or violation in the performance of any obligation,
agreement or condition contained in any bond, debenture, note or
any other evidence of indebtedness or in any agreement, indenture,
lease or other instrument to which it is a party or by which it or
any of its properties may be bound, which breach, default or
violation, in the case of clause (ii) or (iii), would, if
continued, have a Material Adverse Effect, or would materially
impair the ability of either of the Partnership Parties to perform
their obligations under this Agreement.
(dd) Conformity of Units to Description in
the Most Recent Preliminary Prospectus. The Units
conform in all material respects to the description thereof
contained in the most recent Preliminary Prospectus.
(ee) Independent Public Accountants
. KPMG LLP, who has certified the audited financial
statements included in the most recent Preliminary Prospectus and
the Prospectus (or any amendment or supplement thereto), is an
independent registered public accounting firm as required by the
Securities Act and the Rules and Regulations during the periods
covered by the financial statements on which it reported contained
in the most recent Preliminary Prospectus.
(ff) Financial Statements
. The historical financial statements (including the
related notes and supporting schedules) contained in the most
recent Preliminary Prospectus (and any amendment or supplement
thereto) comply in all material respects with the applicable
requirements under the Securities Act and the Exchange Act (except
that certain supporting schedules are omitted) and present fairly
in all material respects the financial condition, results of
operations and cash flows of the entities purported to be shown
thereby on the basis stated therein at the respective dates or for
the respective periods indicated and have been prepared in
accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except to the
extent disclosed therein. The historical financial
information contained in the Partnership’s Annual Report on
Form 10-K for the year ended December 31, 2008 under the caption
“Selected Financial Data” are derived from the
accounting records of the Partnership and its consolidated
subsidiaries taken as a whole and fairly present the information
purported to be shown thereby.
(gg) Statistical and Market-Related Data
. The statistical and market-related data included or
incorporated by reference in the most recent Preliminary Prospectus
and the Prospectus are based on or derived from sources that the
Partnership believes to be reliable and accurate in all material
respects.
(hh) No Material Adverse Change
. No Partnership Entity has sustained since the date of
the latest audited financial statements included in the most recent
Preliminary Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, investigation, order or decree, otherwise than
as set forth or contemplated in the Registration Statement, the
Prospectus or the most recent Preliminary
Prospectus. Except as disclosed in the Registration
Statement, the Prospectus and the most recent Preliminary
Prospectus (or any amendment or supplement thereto), subsequent to
the respective dates as of which such information is given in the
Registration Statement, the Prospectus and the most recent
Preliminary Prospectus (or any amendment or supplement thereto),
(i) no Partnership Entity has incurred any liability or obligation,
indirect, direct or contingent, or entered into any transactions,
not in the ordinary course of business, that, singly or in the
aggregate, is material to the Partnership Entities, taken as a
whole, (ii) there has not been any material change in the
capitalization, or material increase in the short-term debt or
long-term debt, of the Partnership Entities and (iii) there has not
been any material adverse change, or any development involving or
which may reasonably be expected to involve, singly or in the
aggregate, a prospective material adverse change, in or affecting
the condition (financial or otherwise), results of operations,
partners’ equity, properties, management, business or
prospects of the Partnership Entities, taken as a whole, in each
case except as would not, in the aggregate, reasonably be expected
to have a Material Adverse Effect.
(ii) Legal Proceedings or Contracts to be
Described or Filed . There are no legal or
governmental proceedings pending or, to the knowledge of the
Partnership Parties, threatened, against any Partnership Entity, or
to which any Partnership Entity is a party, or to which any of
their respective properties is subject, that are required to be
described in the Registration Statement, the Prospectus or the most
recent Preliminary Prospectus, but are not described as required,
and there are no agreements, contracts, indentures, leases or other
instruments that are required to be described in the Registration
Statement, the Prospectus or the most recent Preliminary Prospectus
or to be filed as exhibits to the Registration Statement that are
not described or filed as required by the Securities
Act.
(jj) Title to Properties . The
Partnership Entities have good and indefeasible title to all real
property and good title to all personal property described in the
most recent Preliminary Prospectus as being owned by the
Partnership Entities, free and clear of all Liens except (i) as
described in the most recent Preliminary Prospectus or (ii) such as
do not materially interfere with the use of such properties taken
as a whole; provided that , with respect to any real
property and buildings held under lease by the Partnership
Entities, such real property and buildings are held under valid and
subsisting and enforceable leases with such exceptions as do not
materially interfere with the use of such properties taken as a
whole.
(kk) Rights-of-Way . The
Partnership Entities have such consents, easements, rights-of-way
or licenses from any person (“rights-of-way”) as are
necessary to conduct their business in the manner described in the
most recent Preliminary Prospectus, subject to such qualifications
as may be set forth in the most recent Preliminary Prospectus and
except for such rights-of-way that, if not obtained, would not
have, individually or in the aggregate, a material adverse effect
upon the ability of the Partnership Entities, taken as a whole, to
conduct their businesses in all material respects as currently
conducted; the Partnership Entities have fulfilled and performed
all their material obligations with respect to such rights-of-way
and no event has occurred that allows, or after notice or lapse of
time would allow, revocation or termination thereof or would result
in any impairment of the rights of the holder of any such
rights-of-way, except for such revocations, terminations and
impairments that would not have a material adverse effect upon the
ability of the Partnership Entities, taken as a whole, to conduct
their businesses in all material respects as currently conducted,
subject in each case to such qualification as may be set forth in
the most recent Preliminary Prospectus; and, except as described in
the most recent Preliminary Prospectus, none of such rights-of-way
contains any restriction that is materially burdensome to the
Partnership Entities, taken as a whole.
(ll) Permits . The
Partnership Entities have or operate pursuant to such permits,
consents, licenses, franchises, certificates and authorizations of
governmental or regulatory authorities (“permits”) as
are necessary to own or lease their properties and to conduct their
business in the manner described in the most recent Preliminary
Prospectus, subject to such qualifications as may be set forth in
the most recent Preliminary Prospectus or other securities filings
and except for such permits that, if not obtained, would not have,
individually or in the aggregate, a Material Adverse Effect; the
Partnership Entities have fulfilled and performed all their
material obligations with respect to such permits and, to the
knowledge of the Partnership Parties, no event has occurred that
would prevent the permits from being renewed or reissued or which
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results or would result in any impairment of
the rights of the holder of any such permit, except for such
non-renewals, non issues, revocations, terminations and impairments
that would not, individually or in the aggregate, have a Material
Adverse Effect.
(mm) Books and Records . The
Partnership (i) makes and keeps books, records and accounts that,
in reasonable detail, accurately and fairly reflect the
transactions and dispositions of assets and (ii) maintains systems
of internal accounting controls sufficient to provide reasonable
assurances that (A) transactions are executed in accordance with
management’s general or specific authorization; (B)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets;
(C) access to assets is permitted only in accordance with
management’s general or specific authorization; and (D) the
recorded accountability for assets is compared with existing assets
at reasonable intervals and appropriate action is taken with
respect to any differences.
(nn) Tax Returns . Each of the
Partnership Entities has filed (or has obtained extensions with
respect to) all material federal, state and foreign income and
franchise tax returns required to be filed through the date hereof,
which returns are complete and correct in all material respects,
and has timely paid all taxes shown to be due pursuant to such
returns, other than those (i) that are being contested in good
faith and for which adequate reserves have been established in
accordance with generally accepted accounting principles or (ii)
which, if not paid, would not reasonably be expected to result in a
Material Adverse Effect.
(oo) Investment Company . No
Partnership Entity is now, and after the sale of the Units to be
sold by the Selling Unitholder hereunder will be, an
“investment company” or a company “controlled
by” an “investment company” within the meaning of
the Investment Company Act of 1940, as amended.
(pp) Environmental Compliance
. Except as disclosed in the most recent Preliminary
Prospectus, and except as would not, individually or in the
aggregate, have a Material Adverse Effect, the Partnership Entities
(i) are in compliance with any and all applicable federal,
state and local laws and regulations relating to the protection of
human health and safety and the environment or imposing liability
or standards of conduct concerning any Hazardous Materials (as
defined below) (“ Environmental Laws ”), (ii)
have received or operate pursuant to all permits required of them
under applicable Environmental Laws to conduct their respective
businesses as they are currently being conducted, (iii) are in
compliance with all terms and conditions of any such permits and
(iv) have not received any written notice of any actual or
potential liability for the investigation or remediation of any
disposal or release of Hazardous Material. The term
“ Hazardous Material ” means (A) any
“hazardous substance” as defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended, (B) any “hazardous waste” as defined in the
Resource Conservation and Recovery Act, as amended, (C) any
petroleum or petroleum product, (D) any polychlorinated biphenyl
and (E) any pollutant or contaminant or hazardous, dangerous or
toxic chemical, material, waste or substance regulated under or
within the meaning of any other Environmental Law.
(qq) No Labor Dispute . No
labor dispute with the employees of any of the Partnership Entities
exists or, to the knowledge of the Partnership Parties, is imminent
or threatened that would reasonably be expected to result in a
Material Adverse Effect.
(rr) ERISA . (i) Each
“employee benefit plan” (within the meaning of Section
3(3) of the Employee Retirement Security Act of 1974, as amended
(“ ERISA ”)) for which any of the Partnership
Entities would have any material liability, excluding any
multiemployer plan (within the meaning of Section 4001(a)(3) of
ERISA) (each a “ Plan ”), has been maintained in
material compliance with its terms and with the requirements of all
applicable statutes, rules and regulations including ERISA and the
Internal Revenue Code of 1986, as amended (the “ Code
”); (ii) with respect to each Plan subject to Title IV of
ERISA (a) no “reportable event” (within the meaning of
Section 4043(c) of ERISA) has occurred or is reasonably expected to
occur, (b) no “accumulated funding deficiency” (within
the meaning of Section 302 of ERISA or Section 412 of the Code),
whether or not waived, has occurred or is reasonably expected to
occur, (c) the fair market value of the assets under each such Plan
exceeds the present value of all benefits accrued under such Plan
(determined based on those assumptions used to fund such Plan) and
(d) none of the Partnership Entities has incurred, or reasonably
expects to incur, any liability under Title IV of ERISA (other than
contributions to the Plan or premiums to the PBGC in the ordinary
course and without default) in respect of a Plan (including a
“multiemployer plan”, within the meaning of Section
4001(a)(3) of ERISA); and (iii) each Plan that is intended to be
qualified under Section 401(a) of the Code has been determined by
the Internal Revenue Service to be so qualified and nothing has
occurred, whether by action or by failure to act, which would
reasonably be expected to cause the loss of such
qualification.
(ss) Certain Relationships and Related
Transactions . Except as described in the most
recent Preliminary Prospectus, no relationship, direct or indirect,
exists between any of the Partnership Entities, on the one hand,
and the directors, officers, unitholders, customers or suppliers of
any of the Partnership Entities, on the other hand, that is
required to be described in the most recent Preliminary Prospectus
or the Prospectus which is not so described.
(tt) Insurance . The
Partnership Entities maintain insurance covering their properties,
operations, personnel and businesses against such losses and risks
as are reasonably adequate to protect them and their businesses in
a manner consistent with other businesses similarly
situated. None of the Partnership Entities has received
notice from any insurer or agent of such insurer that material
capital improvements or other expenditures will have to be made in
order to continue such insurance; all such insurance is outstanding
and duly in force on the date hereof and will be outstanding and
duly in force on each Delivery Date.
(uu) Litigation . Except as described in
the most recent Preliminary Prospectus, there is (i) no action,
suit or proceeding before or by any court, arbitrator or
governmental agency, body or official, domestic or foreign, now
pending or, to the knowledge of the Partnership Parties,
threatened, to which any Partnership Entity is or may be a party or
to which the business or property of any Partnership Entity is or
may be subject, (ii) no statute, rule, regulation or order that has
been enacted, adopted or issued by any governmental agency or that
has been proposed by any governmental agency and (iii) no
injunction, restraining order or order of any nature issued by a
federal or state court or foreign court of competent jurisdiction
to which any Partnership Entity is or may be subject, that, in the
case of clauses (i), (ii) and (iii) above, is reasonably expected
to (A) individually or in the aggregate have a Material Adverse
Effect, (B) prevent or result in the suspension of the offering and
issuance of the Units or (C) in any manner draw into question the
validity of this Agreement.
(vv) No Distribution of Other
Offering Materials . None of the Partnership
Entities has distributed and, prior to the later to occur of any
Delivery Date and completion of the distribution of the Units, none
of the Partnership Entities will distribute any offering material
in connection with the offering and sale of the Units other than
any Preliminary Prospectus, the Prospectus or any Issuer Free
Writing Prospectus to which the Representatives have consented in
accordance with Section 1(h).
(ww) Market Stabilization
. The Partnership Entities have not taken, directly or
indirectly, any action that is designed to or that has constituted
or that could reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the
Partnership to facilitate the sale or resale of the
Units.
(xx) Disclosure Controls and Procedures.
The Partnership has established and maintains
disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act) that (i) are designed to ensure
that material information relating to the Partnership, including
its consolidated subsidiaries, is made known to the General
Partner’s principal executive officer and its principal
financial officer by others within those entities; (ii) have been
evaluated for effectiveness and presented in the
Partnership’s Quarterly Report on Form 10-Q for the quarter
ended June 30, 2009; and (iii) as of June 30, 2009, are
effective in all material respects to perform the functions for
which they were established.
(yy) No Changes in Internal Controls
. Since the date of the most recent balance sheet of the
Partnership reviewed or audited by KPMG LLP and the audit committee
of the board of directors of the General Partner, (i) none of the
Partnership Entities has been advised of (A) any significant
deficiencies in the design or operation of internal controls that
could adversely affect the ability of any such entities to record,
process, summarize and report financial data, or any material
weaknesses in internal controls or (B) any fraud, whether or not
material, that involves management or other employees who have a
significant role in the internal controls of any such entity, and
(ii) since that date, there have been no significant changes in
internal controls or in other factors that could significantly
affect internal controls, including any corrective actions with
regard to significant deficiencies and material
weaknesses.
(zz) Sarbanes-Oxley Act of 2002
. Except as described in the most recent Preliminary
Prospectus, there is and has been no failure on the part of any of
the Partnership Entities or any of their respective directors or
officers, in their capacities as such, to comply with the
provisions of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith applicable to such
Partnership Entities.
2. Representations, Warranties and Agreements
of the Selling Unitholder . The Selling Unitholder
represents, warrants and agrees that:
(a) No Use of Free Writing Prospectus
. Neither the Selling Unitholder nor or any person
acting on behalf of the Selling Unitholder (other than, if
applicable, the Partnership and the Underwriters) has used or
referred to any “free writing prospectus” (as defined
in Rule 405) relating to the Units.
(b) Title to Units . The
Selling Unitholder has, and immediately prior to any Delivery Date
on which the Selling Unitholder is selling Units, the Selling
Unitholder will have, good and valid title to, or a valid
“security entitlement” within the meaning of Section
8-501 of the New York Uniform Commercial Code (the “
UCC ”) in respect of, the Units to be sold by the
Selling Unitholder hereunder on such Delivery Date, free and clear
of all Liens.
(c) Underwriters’ Interest in the
Units . The Units to be sold by the Selling
Unitholder hereunder are subject to the interest of the
Underwriters and the obligations of the Selling Unitholder
hereunder shall not be terminated by any act of the Selling
Unitholder, by operation of law or the occurrence of any other
event.
(d) Underwriters Are Protected Purchasers
. Upon payment for the Units to be sold by the Selling
Unitholder, delivery of such Units, as directed by the
Underwriters, to Cede & Co. (“ Cede ”) or
such other nominee as may be designated by The Depository Trust
Company (“ DTC ”), registration of such Units in
the name of Cede or such other nominee and the crediting of such
Units on the books of DTC to securities accounts of the
Underwriters (assuming that neither DTC nor any such Underwriter
has notice of any adverse claim (within the meaning of Section
8-105 of the UCC) to such Units), (i) DTC shall be a
“protected purchaser” of such Units within the meaning
of Section 8-303 of the UCC, (ii) under Section 8-501 of the
UCC, the Underwriters will acquire a valid security entitlement in
respect of such Units and (iii) no action based on any
“adverse claim,” within the meaning of Section 8-102 of
the UCC, to such Units may be asserted against the Underwriters
with respect to such security entitlement. For purposes
of this representation, the Selling Unitholder may assume that when
such payment, delivery and crediting occur, (A) such Units
will have been registered in the name of Cede or another nominee
designated by DTC, in each case on the Partnership’s unit
registry in accordance with the Partnership Agreement and
applicable law, (B) DTC will be registered as a
“clearing corporation” within the meaning of Section
8-102 of the UCC and (C) appropriate entries to the accounts
of the several Underwriters on the records of DTC will have been
made pursuant to the UCC.
(e) Formation of the Selling Unitholder
. The Selling Unitholder has been duly formed and is
validly existing in good standing as a corporation under the
General Corporation Law of the State of Delaware (the “
DGCL ”) with full corporate power and authority to own
or lease its properties and to conduct its business in all material
respects.
(f) Authority and Authorization
. The Selling Unitholder has all requisite right, power
and authority to execute and deliver this Agreement and to perform
its obligations hereunder; and this Agreement has been duly and
validly authorized, executed and delivered by or on behalf of the
Selling Unitholder.
(g) No Conflicts . None of the
execution, delivery and performance of this Agreement by the
Selling Unitholder or the consummation of the transactions
contemplated hereby (i) constitutes or will constitute a
violation of the provisions of the certificate of incorporation or
by-laws of the Selling Unitholder, (ii) constitutes or will
constitute a breach or violation of, or a default (or an event
which, with notice or lapse of time or both, would constitute such
a default) under, any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which the
Selling Unitholder is a party or by which the Selling Unitholder or
any of its properties may be bound or (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 Selling Unitholder or any of its properties in a
proceeding to which the Selling Unitholder or its property is or
was a party, which conflicts, breaches, violations or defaults, in
the case of clauses (ii) or (iii), would, individually or in the
aggregate, have a material adverse effect on the Selling Unitholder
or would materially impair the ability of the Selling Unitholder to
perform its obligations under this Agreement.
(h) No Consents . No consent,
approval, authorization or order of, or filing or registration
with, any court or governmental agency or body having jurisdiction
over the Selling Unitholder or the property or assets of the
Selling Unitholder is required in connection with the offering and
sale of the Units, the execution, delivery and performance of this
Agreement by the Selling Unitholder and the consummation by the
Selling Unitholder of the transactions contemplated hereby, except
for (i) such consents required under the Securities Act, the
Exchange Act and state securities or “Blue Sky” laws
and (ii) such consents that have been, or prior to the
Delivery Date will be, obtained.
(i) No Material Misstatements or
Omissions . Although the Selling Unitholder has not
independently verified and is not passing upon and assumes no
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, Pricing
Disclosure Package and Prospectus (except for the information under
the caption “Selling Unitholder,” which is true and
complete in all material respects), the Selling Unitholder has no
reason to believe that (i) the Registration Statement, as of the
Effective Date, contained an untrue statement of material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (ii)
the Prospectus contains an untrue statement of a material fact or
omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading or (iii) the Pricing Disclosure Package,
as of the Applicable Time, contained an untrue statement of a
material fact or omitted to state a material fact necessary in
order to make the statements therein, in 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 Registration Statement, the Pricing Disclosure
Package or 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
10(f).
(j) Ownership of the General Partner .
The Selling Unitholder owns a 100% membership interest in the
General Partner. The Selling Unitholder owns such
membership interest free and clear of all Liens.
(k) Basis of Sale of Common Units
. The Selling Unitholder is not prompted to sell its
Common Units by any information concerning any of the Partnership
Entities that is not set forth in the Registration Statement, the
Pricing Disclosure Package and the Prospectus.
(l) Market Stabilization . The
Selling Unitholder has not taken, directly or indirectly, any
action that is designed to or that has constituted or that could
reasonably be expected to cause or result in the stabilization or
manipulation of the price of any security of the Partnership to
facilitate the sale or resale of the Units.
Any certificate signed by any officer of the
Selling Unitholder and delivered to the Representatives or counsel
for the Underwriters in connection with the offering of the Units
shall be deemed a representation and warranty by the Selling
Unitholder, as to matters covered thereby, to each
Underwriter.
3. Purchase of the Units by the
Underwriters . On the basis of the representations
and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Selling Unitholder agrees to
sell the Firm Units to the several Underwriters, and each of the
Underwriters, severally and not jointly, agrees to purchase the
number of Firm Units set forth opposite that Underwriter’s
name in Schedule 1 hereto.
In addition, the Selling Unitholder grants to
the Underwriters an option to purchase up to 1,304,345 Option
Units. Such option is exercisable in the event that the
Underwriters sell more Common Units than the number of Firm Units
in the offering and as set forth in Section 5
hereof. Each Underwriter agrees, severally and not
jointly, to purchase the number of Option Units (subject to such
adjustments to eliminate fractional Common Units as the
Representatives may determine) that bears the same proportion to
the total number of Option Units to be sold on such Delivery Date
as the number of Firm Units set forth in Schedule 1
hereto opposite the name of such Underwriter (as such number may be
increased pursuant to Section 11) bears to the total number of
Firm Units. The respective purchase obligations of the
Underwriters with respect to the Option Units shall be rounded
among the Underwriters to avoid fractional units, as the
Representatives may determine.
The price of both the Firm Units and any Option
Units purchased by the Underwriters shall be $11.808 per
Unit. The Selling Unitholder shall not be obligated to
deliver any of the Units to be delivered on the applicable Delivery
Date, except upon payment for all such Units to be purchased on
such Delivery Date as provided herein.
4. Offering of Units by the Underwriters
. Upon authorization by the Representatives of the
release of the Firm Units, the several Underwriters propose to
offer the Firm Units for sale upon the terms and conditions to be
set forth in the Prospectus.
5. Delivery of and Payment for the Units
. Delivery of and payment for the Firm Units shall be
made at the offices of Vinson & Elkins L.L.P., 666 Fifth
Avenue, New York, New York 10103, at 10:00 a.m., New York City
time, on September 16, 2009, or at such other date or place as
shall be determined by agreement between the Representatives and
the Partnership. This date and time are sometimes
referred to as the “ Initial Delivery Date
.” Delivery of the Firm Units shall be made to the
Representatives for the account of each Underwriter against payment
by the several Underwriters through the Representatives of the
aggregate purchase price of the Firm Units to or upon the order of
the Selling Unitholder by wire transfer in immediately available
funds to the account or accounts specified by the Selling
Unitholder. Time shall be of the essence, and delivery
at the time and place specified pursuant to this Agreement is a
further condition of the obligation of each Underwriter
hereunder. The Selling Unitholder shall deliver the Firm
Units through the facilities of DTC unless the Representatives
shall otherwise instruct.
The option granted in Section 3 will expire
30 days after the date of this Agreement and may be exercised
in whole or from time to time in part by written notice being given
to the Selling Unitholder and the Partnership by the
Representatives; provided that if such date falls on a day
that is not a business day, the option granted in Section 3
will expire on the next succeeding business day. Such
notice shall set forth the aggregate number of Option Units as to
which the option is being exercised, the names in which the Option
Units are to be registered, the denominations in which the Option
Units are to be issued and the date and time, as determined by the
Representatives, when the Option Units are to be delivered;
provided, however, that this date and time shall not be
earlier than the Initial Delivery Date nor earlier than the second
business day after the date on which the option shall have been
exercised nor later than the fifth business day after the date on
which the option shall have been exercised (unless such date is
postponed pursuant to Section 11). Each date and
time that any Option Units are delivered is sometimes referred to
as an “ Option Units Delivery Date ,” and the
Initial Delivery Date and any Option Units Delivery Date are each
sometimes referred to as a “ Delivery Date
.”
Delivery of the Option Units by the Partnership
and payment for the Option Units by the several Underwriters
through the Representatives shall be made at 10:00 a.m., New York
City time, on the date specified in the corresponding notice
described in the preceding paragraph or at such other date or place
as shall be determined by agreement between the Representatives and
the Partnership. On the Option Units Delivery Date, the
Selling Unitholder shall deliver or cause to be delivered the
Option Units to the Representatives for the account of each
Underwriter against payment by the several Underwriters through the
Representatives of the aggregate purchase prices of the Option
Units to or upon the order of the Selling Unitholder by wire
transfer in immediately available funds to the account or accounts
specified by the Selling Unitholder. Time shall be of
the essence, and delivery at the time and place specified pursuant
to this Agreement is a further condition of the obligation of each
Underwriter hereunder. The Selling Unitholder shall
deliver the Option Units through the facilities of DTC unless the
Representatives shall otherwise instruct.
6. Further Agreements of the Partnership
Parties and the Underwriters .
(a) Each of the Partnership Parties, jointly and
severally, covenants and agrees with the Underwriters:
(i) Preparation of Prospectus and
Registration Statement. (i) To prepare the
Prospectus in a form approved by the Representatives and to file
such Prospectus pursuant to Rule 424(b) under the Securities Act
within the time period described by the rule; (ii) to make no
further amendment or any supplement to a Registration Statement or
to the Prospectus prior to the last Delivery Date except as
provided herein; (iii) to advise the Representatives, promptly
after it receives notice thereof, of the time when any amendment or
supplement to a Registration Statement has been filed or any
supplement to the Prospectus or any amended Prospectus has been
filed and to furnish the Representatives with copies thereof; (iv)
to advise the Representatives, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of the Prospectus or any
Issuer Free Writing Prospectus, of the suspension of the
qualification of the Units for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding or
examination for any such purpose or of any request by the
Commission for the amending or supplementing of a Registration
Statement, the Prospectus or any Issuer Free Writing Prospectus or
for additional information; and (v) in the event of the issuance of
any stop order or of any order preventing or suspending the use of
the Prospectus or Issuer Free Writing Prospectus or suspending any
such qualification, to use promptly its best efforts to obtain its
withdrawal.
(ii) Exchange Act Reports . To
file promptly all reports and any definitive proxy or information
statements required to be filed by the Partnership with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act (“ Exchange Act Reports ”)
subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the
offering or sale of the Units.
(iii) Copies of Documents to the
Underwriters. To deliver promptly to the
Underwriters such number of the following documents as the
Underwriters shall reasonably request: (i) conformed
copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding
exhibits); (ii) each Preliminary Prospectus, the Prospectus and any
amended or supplemented Prospectus; (iii) each Issuer Free Writing
Prospectus; and (iv) conformed copies of such opinions,
certificates, letters and other documents as they shall reasonably
request; and, if the delivery of a prospectus is required at any
time after the Effective Time in connection with the offering or
sale of the Units or any other securities relating thereto and if
at such time any events shall have occurred as a result of which
the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in light of
the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall
be necessary to amend or supplement the Prospectus in order to
comply with the Securities Act, to notify the Representatives and,
upon their request, to prepare and, subject to Section 6(a)(iv)
hereof, file with the Commission an amended or supplemented
Prospectus which will correct such statement or omission or effect
such compliance.
(iv) Filing of Amendment or
Supplement. To file promptly with the Commission
any amendment to the Registration Statement or the Prospectus or
any supplement to the Prospectus that may, in the rea
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