EXHIBIT 1.1
PLAINS ALL AMERICAN PIPELINE, L.P.
12,782,609 Common Units
REPRESENTING LIMITED PARTNER INTERESTS
UNDERWRITING AGREEMENT
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November __, 1998
XXXXXXX XXXXX XXXXXX INC.
PAINEWEBBER INCORPORATED
X.X. XXXXXXX & SONS, INC.
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
XXXXXXX, SACHS & CO.
XXXX XXXXXXXX XXXXXXX, a division of
Xxxx Xxxxxxxx Incorporated
ING BARING XXXXXX XXXX LLC
As Representatives of the Several Underwriters
c/o XXXXXXX XXXXX BARNEY INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Plains All American Pipeline, L.P., a Delaware limited partnership (the
"Partnership"), proposes to issue and sell (the "Offering") an aggregate of
12,782,609 common units (the "Firm Units") representing limited partner
interests in the Partnership (the "Common Units") to the several underwriters
named in Schedule I hereto (the "Underwriters"), upon the terms and conditions
set forth in Section 2 hereof. The Partnership also proposes to sell to the
Underwriters, upon the terms and conditions set forth in Section 2 hereof, up to
an additional 1,917,391 Common Units (the "Additional Units"). The Firm Units
and the Additional Units are hereinafter collectively referred to as the
"Units."
It is understood and agreed to by all parties that the Partnership was
formed to acquire, own and operate the midstream crude oil business and assets
of Plains Resources Inc., a Delaware corporation ("Plains Resources"). Plains
All American Inc., a Delaware corporation, will serve as the general partner
(the "General Partner") of each of the Partnership and Plains Marketing, L.P., a
Delaware limited partnership, and All American, L.P., a Delaware limited
partnership ("All American Delaware") (Plains Marketing, L.P. and All American
Delaware are collectively referred to herein as the "Operating Partnerships").
Plains Resources owns all of the issued and outstanding stock of the General
Partner. Gathering LLC, a Delaware limited liability company ("Gathering LLC"),
is a wholly owned subsidiary of Plains Marketing, L.P. and will own certain
gathering and
storage assets previously owned by Celeron Gathering Corporation, a Delaware
corporation. The Partnership, the General Partner, the Operating Partnerships
and Gathering LLC are collectively referred to herein as the "Plains Parties."
Pursuant to a Plan of Merger dated _________, 1998 (the "Midstream Merger
Agreement") by and among Plains Marketing & Transportation Inc., Plains Terminal
& Transfer Corporation, PLX Crude Lines Inc. and PLX Ingleside Inc., each a
Delaware corporation (collectively, the "Plains Midstream Subsidiaries"), and
Plains Resources, the Plains Midstream Subsidiaries were merged with and into
Plains Resources, with Plains Resources being the surviving entity.
Pursuant to a Plan of Merger dated _________, 1998 (the "CT&T Merger
Agreement"), by and between the General Partner and Celeron Trading &
Transportation Company, a Delaware corporation, Celeron Trading & Transportation
Company was merged with and into the General Partner, with the General Partner
being the surviving entity.
On the Closing Date (as defined in Section 4), All American Pipeline
Company, a Texas corporation, will convert into All American, L.P., a Texas
limited partnership ("All American Texas"), and All American Texas will convert
into All American Delaware.
Prior to or concurrently with the execution hereof, the Operating
Partnerships will enter into a $225 million bank credit agreement (the "Bank
Credit Agreement") and a $175 million, secured letter of credit facility (the
"Letter of Credit Facility"). The Bank Credit Agreement will include a $175
million term facility (the "Term Loan Facility") and a $50 million revolving
credit facility (the "Revolving Credit Facility"). The Partnership may borrow
up to $50 million under the Revolving Credit Facility for acquisitions, capital
improvements and working capital purposes.
It is further understood and agreed by all parties that the following
transactions will occur on the Closing Date: (i) the Partnership will assume
certain indebtedness (the "Acquisition Indebtedness") of the General Partner
incurred to acquire the All American Pipeline and the SJV Gathering System (as
defined in the Registration Statement); (ii) Plains Resources will convey
certain of the assets acquired by Plains Resources pursuant to the Midstream
Merger Agreement (the "Midstream Assets") to Plains Marketing, L.P. in exchange
for [general partner interests in All American Delaware and] limited partner
interests in Plains Marketing, L.P. and the assumption of certain indebtedness
assumed by Plains Resources pursuant to the Midstream Merger Agreement (the
"Midstream Merger Indebtedness"); (iii) the General Partner will contribute
certain of the assets acquired by the General Partner pursuant to the CT&T
Merger Agreement (the "CT&T Assets") to Plains Marketing, L.P. in exchange for
[general partner interests in All American Delaware and] general partner and
limited partner interests in Plains Marketing, L.P.; (iv) Plains Resources will
contribute its limited partner interest in Plains Marketing, L.P. to the
Partnership in exchange for _____ Common Units and ______ units representing
subordinated limited partner interests (the "Subordinated Units"); (v) the
General Partner will contribute its limited partner interest in Plains
Marketing, L.P. to the Partnership in exchange for a 1% general partner interest
in the Partnership, ______ Common Units, ______ Subordinated Units and the
Incentive Distribution Rights (as
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defined in the Agreement of Limited Partnership of the Partnership (as the same
may be amended or restated at or prior to the Closing Date, the "Partnership
Agreement") between the General Partner and Plains Resources, as organizational
limited partner (in such capacity, the "Organizational Limited Partner")); (vi)
the public offering of the Firm Units contemplated hereby will be consummated;
(vii) the closing under the Bank Credit Agreement will occur; (viii) the
Partnership will distribute $174.9 million to the General Partner which the
General Partner will use to repay certain of the Acquisition Indebtedness and
distribute or loan the balance to Plains Resources; (ix) the Partnership will
contribute $87.1 million to Plains Marketing, L.P. which Plains Operating, L.P.
will use to (A) purchase from Plains Resources the remaining Midstream Merger
Assets, (B) repay the Midstream Merger Indebtedness and (C) pay the expenses of
the Offering; and (x) the repayment by Plains Resources of [certain existing
indebtedness].
The transactions described above in clauses (i) through (x) are
collectively referred to as the "Transactions." In connection with the
consummation of the Transactions, the Partnership, the Operating Partnerships,
the General Partner, Plains Resources and Gathering LLC will enter into various
bills of sale, conveyances, deeds and other assignments (collectively, the
"Conveyance Agreements").
The Partnership, the Operating Partnerships, All American Pipeline Company,
the General Partner and Plains Resources (the "Plains Entities") wish to confirm
as follows their agreement with you (the "Representatives") and the several
other Underwriters on whose behalf you are acting, in connection with the
several purchases of the Units by the Underwriters.
1. Registration Statement and Prospectus. The Partnership has prepared
and filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-1 under the Act (Commission File No.
333-64107) (the "registration statement"), including a prospectus subject to
completion relating to the Units. The term "Registration Statement" as used in
this Agreement means the registration statement (including all financial
schedules and exhibits), as amended at the time it becomes effective, or, if the
registration statement became effective prior to the execution of this
Agreement, as supplemented or amended prior to the execution of this Agreement.
If it is contemplated, at the time this Agreement is executed, that a post-
effective amendment to the registration statement will be filed and must be
declared effective before the offering of the Units may commence, the term
"Registration Statement" as used in this Agreement means the registration
statement as amended by said post-effective amendment. If it is contemplated, at
the time this Agreement is executed, that a registration statement or a post-
effective amendment will be filed pursuant to Rule 462(b) or Rule 462(d) under
the Act before the offering of the Units may commence, the term "Registration
Statement" as used in this Agreement includes such registration statement. The
term "Prospectus" as used in this Agreement means the prospectus in the form
included in the Registration Statement, or, if the prospectus included in the
Registration Statement omits information in reliance on Rule 430A under the Act
and such information is included in a prospectus filed with the Commission
pursuant to Rule 424(b) under the Act, the term "Prospectus" as used in this
Agreement
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means the prospectus in the form included in the Registration Statement as
supplemented by the addition of the Rule 430A information contained in the
prospectus filed with the Commission pursuant to Rule 424(b). The term
"Prepricing Prospectus" as used in this Agreement means the preliminary
prospectus dated __________, 1998, relating to the Common Units as such
preliminary prospectus shall have been amended from time to time prior to the
date of the Prospectus.
2. Agreements to Sell and Purchase. The Partnership hereby agrees, subject
to all the terms and conditions set forth herein, to issue and sell to each
Underwriter and, upon the basis of the representations, warranties and
agreements of the Plains Entities herein contained and subject to all the terms
and conditions set forth herein, each Underwriter agrees, severally and not
jointly, to purchase from the Partnership, at a purchase price of $_____ per
Unit (the "purchase price per Unit"), the number of Firm Units set forth
opposite the name of such Underwriter in Schedule I hereto (or such number of
Firm Units increased as set forth in Section 10 hereof).
The Partnership also agrees, subject to all the terms and conditions set
forth herein, to sell to the Underwriters, and, upon the basis of the
representations, warranties and agreements of the Plains Entities herein
contained and subject to all the terms and conditions set forth herein, the
Underwriters shall have the right to purchase from the Partnership, at the
purchase price per Unit, pursuant to an option (the "over-allotment option")
which may be exercised at any time and from time to time prior to 7:00 p.m., New
York City time, on the 30th day after the date of the Prospectus (or, if such
30th day shall be a Saturday or Sunday or a holiday, on the next business day
thereafter when the Nasdaq National Market is open for trading), up to an
aggregate of 1,917,391 Additional Units. Such option is granted solely for the
purpose of covering over-allotments in the sale of Firm Units. Upon any
exercise of the over-allotment option, each Underwriter, severally and not
jointly, agrees to purchase from the Partnership the number of Additional Units
(subject to such adjustments as you may determine in order to avoid fractional
Units) which bears the same proportion to the number of Additional Units to be
purchased by the Underwriters as the number of Firm Units set forth opposite the
name of such Underwriter in Schedule I hereto (or such number of Firm Units
increased as set forth in Section 10 hereof) bears to the aggregate number of
Firm Units.
3. Terms of Public Offering. The Partnership has been advised by you that
the Underwriters propose to make a public offering of their respective portions
of the Units as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable and initially to offer the
Units upon the terms set forth in the Prospectus.
4. Delivery of the Units and Payment Therefor. Delivery to the
Underwriters of and payment for the Firm Units shall be made at the office of
Xxxxxxx Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at
10:00 a.m., New York City time, on ____________, 1998 (the "Closing Date"). The
place of closing for the Firm Units and the Closing Date may be varied by
agreement between you and the Partnership.
Delivery to the Underwriters of and payment for any Additional Units to be
purchased by the Underwriters shall be made at the aforementioned office of
Xxxxxxx Xxxxx Barney Inc. at such time
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on such date (the "Option Closing Date"), which may be the same as the Closing
Date but shall in no event be earlier than the Closing Date nor earlier than two
nor later than ten business days after the giving of the notice hereinafter
referred to, as shall be specified in a written notice from you on behalf of the
Underwriters to the Partnership of the Underwriters' determination to purchase a
number, specified in such notice, of Additional Units. The place of closing for
any Additional Units and the Option Closing Date for such Units may be varied by
agreement between you and the Partnership.
Certificates for the Firm Units and for any Additional Units to be
purchased hereunder shall be registered in such names and in such denominations
as you shall request prior to 5:00 p.m., New York City time, on the third
business day preceding the Closing Date or any Option Closing Date, as the case
may be. Such certificates shall be made available to you in New York City for
inspection and packaging not later than 11:30 a.m., New York City time, on the
business day next preceding the Closing Date or the Option Closing Date, as the
case may be. The certificates evidencing the Firm Units and any Additional
Units to be purchased hereunder shall be delivered to you on the Closing Date or
the Option Closing Date, as the case may be, against payment of the purchase
price therefor in immediately available funds.
5. Agreements of the Plains Entities. Each of the Plains Entities, jointly
and severally, agrees with the several Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Units may commence, the
Partnership and the General Partner will endeavor to cause the Registration
Statement or such post-effective amendment to become effective as soon as
possible and will advise you promptly and, if requested by you, will confirm
such advice in writing when the Registration Statement or such post-effective
amendment has become effective.
(b) The Partnership will advise you promptly and, if requested by you,
will confirm such advice in writing: (i) of any request by the Commission for
amendment of or a supplement to the Registration Statement, any Prepricing
Prospectus or the Prospectus or for additional information; (ii) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Units for
offering or sale in any jurisdiction or the initiation of any proceeding for
such purpose; and (iii) within the period of time referred to in paragraph (f)
below, of any change in the condition (financial or other), business, prospects,
properties, net worth or results of operations of the Plains Entities, taken as
a whole, or of the happening of any event which makes any statement of a
material fact made in the Registration Statement or the Prospectus (as then
amended or supplemented) untrue or which requires the making of any additions to
or changes in the Registration Statement or the Prospectus (as then amended or
supplemented) in order to state a material fact required by the Act or the
regulations thereunder to be stated therein or necessary in order to make the
statements therein not misleading, or of the necessity to amend or supplement
the Prospectus (as then amended or supplemented) to comply with the Act or any
other applicable law. If at any time the Commission
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shall issue any stop order suspending the effectiveness of the Registration
Statement, the Partnership and the General Partner will make every reasonable
effort to obtain the withdrawal of such order at the earliest possible time.
(c) The Partnership will furnish to you, without charge, (i) two XXXXX
versions of the registration statement as originally filed with the Commission
and of each amendment thereto, including financial statements and all exhibits
to the registration statement, (ii) two manually signed copies of the
registration statement corresponding to the XXXXX version filed with the
Commission and of each amendment thereto, including financial statements and all
exhibits to the registration statement, and (iii) such number of conformed
copies of the registration statement as originally filed and of each amendment
thereto, but without exhibits, as you or your counsel may reasonably request.
(d) The Partnership will not (i) file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus of which you
shall not previously have been advised or to which you or your counsel shall
reasonably object in writing after being so advised or (ii) so long as, in the
opinion of counsel for the Underwriters, a Prospectus is required to be
delivered in connection with sales by any Underwriter or dealer, file any
information, documents or reports pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"), without delivering a copy of such
information, documents or reports to you, as Representatives of the
Underwriters, prior to or concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the
Partnership has delivered to you, without charge, in such quantities as you have
reasonably requested, copies of each form of the Prepricing Prospectus. The
Partnership consents to the use, in accordance with the provisions of the Act
and with the securities or Blue Sky laws of the jurisdictions in which the Units
are offered by the several Underwriters and by dealers, prior to the date of the
Prospectus, of each Prepricing Prospectus so furnished by the Partnership.
(f) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time for such period as in the opinion of
counsel for the Underwriters a prospectus is required by the Act to be delivered
in connection with sales by any Underwriter or dealer, the Partnership will
expeditiously deliver to each Underwriter and each dealer, without charge, as
many copies of the Prospectus (and of any amendment or supplement thereto) as
you may reasonably request. At any time after nine months after the time of
issuance of the Prospectus, upon request, but at your expense, the Partnership
will deliver as many copies of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the Act as you may reasonably request, provided that a
prospectus is required by the Act to be delivered in connection with sales of
Units by any Underwriter or dealer. The Partnership consents to the use of the
Prospectus (and of any amendment or supplement thereto) in accordance with the
provisions of the Act and with the securities or Blue Sky laws of the
jurisdictions in which the Units are offered by the several Underwriters and by
all dealers to whom Units may be sold, both in connection with the offering and
sale of the Units and for such period of time thereafter as the Prospectus is
required by the Act to be delivered in connection with sales by any Underwriter
or dealer. If during such period of time any
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event shall occur that in the judgment of the Partnership or in the opinion of
counsel for the Underwriters is required to be set forth in the Prospectus (as
then amended or supplemented) or should be set forth therein in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary to supplement or amend the
Prospectus to comply with the Act or any other law, the Partnership will
forthwith prepare and, subject to the provisions of paragraph (d) above, file
with the Commission an appropriate supplement or amendment thereto, and will
expeditiously furnish to the Underwriters and dealers a reasonable number of
copies thereof; provided that, if any such event necessitating a supplement or
amendment to the Prospectus occurs at any time after nine months after the time
of issuance of the Prospectus, such supplement or amendment shall be prepared at
your expense. In the event that the Partnership and you, as Representatives of
the several Underwriters, agree that the Prospectus should be amended or
supplemented, the Partnership, if requested by you, will promptly issue a press
release announcing or disclosing the matters to be covered by the proposed
amendment or supplement.
(g) The Partnership and the General Partner will cooperate with you and
with counsel for the Underwriters in connection with the registration or
qualification of the Units for offering and sale by the several Underwriters and
by dealers under the securities or Blue Sky laws of such jurisdictions as you
may designate and will file such consents to service of process or other
documents necessary or appropriate in order to effect such registration or
qualification; provided that in no event shall any Plains Party be obligated to
qualify to do business in any jurisdiction where it is not now so qualified or
to take any action which would subject it to service of process in suits, other
than those arising out of the offering or sale of the Units, in any jurisdiction
where it is not now so subject.
(h) The Partnership will make generally available to its security
holders a consolidated earnings statement, which need not be audited, covering a
twelve-month period commencing after the effective date of the Registration
Statement and ending not later than 15 months thereafter, as soon as practicable
after the end of such period, which consolidated earnings statement shall
satisfy the provisions of Section 11(a) of the Act.
(i) During the period of two years hereafter, the Partnership will
furnish to you (i) as soon as publicly available, a copy of each report of the
Partnership mailed to unitholders or filed with the Commission or the principal
national securities exchange or automated quotation system upon which the Units
may be listed, and (ii) from time to time such other information concerning the
Partnership as you may reasonably request.
(j) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 10 hereof or by notice given by you terminating this
Agreement pursuant to Section 10 or Section 11 hereof) or if this Agreement
shall be terminated by the Underwriters because of any failure or refusal on the
part of any of the Plains Entities to comply with the terms or fulfill any of
the conditions of this Agreement, the Plains Entities, jointly and severally,
agree to reimburse the Representatives for
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all reasonable out-of-pocket expenses (including reasonable fees and expenses of
counsel for the Underwriters) incurred by you in connection herewith.
(k) The Partnership will apply the net proceeds from the sale of the
Units and the Operating Partnerships will apply any amount drawn under the Bank
Credit Agreement and all amounts contributed to it by the Partnership from the
sale of the Units in accordance with the description set forth under the caption
"Use of Proceeds" in the Prospectus.
(l) If Rule 430A of the Act is employed, the Partnership will timely
file the Prospectus pursuant to Rule 424(b) under the Act and will advise you of
the time and manner of such filing.
(m) Except as provided in this Agreement, the Plains Entities will not
(i) offer, sell, contract to sell or otherwise dispose of any Common Units or
Subordinated Units, any securities that are convertible into, or exercisable or
exchangeable for, or that represent the right to receive, Common Units or
Subordinated Units or any securities that are senior to or pari passu with
Common Units, or (ii) grant any options or warrants to purchase Common Units or
Subordinated Units (other than the grant of options to purchase Common Units
pursuant to the Plains All American Pipeline, L.P. 1998 Long-Term Incentive
Plan), for a period of 180 days after the date of the Prospectus without the
prior written consent of Xxxxxxx Xxxxx Xxxxxx Inc., except for the issuance and
transfer of Common Units and Subordinated Units to occur upon the closing of the
Offering described in the Prospectus and the issuance of Common Units pursuant
to Section 5.7(b) of the Partnership Agreement.
(n) Except as stated in this Agreement and in the Prepricing Prospectus
and Prospectus, the Plains Entities have not taken, and will not take, directly
or indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Units to facilitate the sale or resale of the Units.
(o) Each of the Plains Parties will take such steps as shall be
necessary to ensure that none of them shall become an "investment company"
within the meaning of such term under the Investment Company Act of 1940, as
amended, and the rules and regulations of the Commission thereunder.
(p) The Partnership shall timely complete all required filings and
otherwise fully comply in a timely manner with all provisions of the Exchange
Act, including the rules and regulations thereunder, in connection with the
registration of the Units thereunder.
(q) Each of the Plains Parties will cause to be accomplished or obtained
as soon as practicable all consents, recordings and filings necessary to
perfect, preserve and protect the title of the Operating Partnerships and
Gathering LLC to the properties and assets owned by each of them as a result of
the Transactions.
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6. Representations and Warranties of the Plains Entities. The Plains
Entities, jointly and severally, represent and warrant to each Underwriter that:
(a) Any Prepricing Prospectus, at the date of filing thereof with the
Commission, complied in all material respects with the requirements of the Act
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 in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The Commission has not issued any order preventing or
suspending the use of any Prepricing Prospectus. The Registration Statement in
the form in which it became or becomes effective and also in such form as it may
be when any post-effective amendment thereto shall become effective and the
Prospectus and any supplement or amendment thereto when filed with the
Commission under Rule 424(b) under the Act complied or will comply in all
material respects with the provisions of the Act and did not or will not at any
such times 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. Each of the statements made by the Partnership in such
documents within the coverage of Rule 175(b) of the rules and regulations under
the Act, including (but not limited to) any statements with respect to future
available cash or future cash distributions of the Partnership or the
anticipated ratio of taxable income to distributions was made or will be made
with a reasonable basis and in good faith. Notwithstanding the foregoing, no
representation or warranty is made as to statements in or omissions from the
Registration Statement, the Prospectus or any Prepricing Prospectus made in
reliance upon and in conformity with information furnished to the Partnership in
writing by or on behalf of any Underwriter through you expressly for use
therein.
(b) The Partnership has been duly formed and is validly existing in good
standing as a limited partnership under the Delaware Revised Uniform Limited
Partnership Act (the "Delaware LP Act") with full partnership power and
authority to own or lease its properties to be owned or leased at the Closing
Date, to assume the liabilities being assumed by it pursuant to the Conveyance
Agreements and to conduct its business to be conducted at the Closing Date, in
each case in all material respects as described in the Registration Statement
and the Prospectus. The Partnership is, or at the Closing Date will be, 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 so to register or qualify would not (i) have a material adverse
effect on the condition (financial or other), business, prospects, properties,
net worth or results of operations of the Partnership and the Operating
Partnerships, taken as a whole, or (ii) subject the limited partners of the
Partnership to any material liability or disability.
(c) Each Operating Partnership has been duly formed and is validly
existing in good standing as a limited partnership under the Delaware LP Act
with full partnership power and authority to own or lease its properties to be
owned or leased at the Closing Date, to assume the liabilities being assumed by
it pursuant to the Conveyance Agreements and to conduct its business
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to be conducted at the Closing Date, in each case in all material respects as
described in the Registration Statement and the Prospectus. Each Operating
Partnership is, or at the Closing Date will be, 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 so to register
or qualify would not (i) have a material adverse effect on the condition
(financial or other), business, prospects, properties, net worth or results of
operations of the Partnership and the Operating Partnerships, taken as a whole,
or (ii) subject the limited partners of the Partnership to any material
liability or disability.
(d) The General Partner has been duly formed and is a corporation is
validly existing in good standing under the laws of the State of Delaware with
full corporate power and authority to own or lease its properties to be owned or
leased at the Closing Date, to assume the liabilities being assumed by it
pursuant to the CT&T Merger Agreement and the Conveyance Agreements, to conduct
its business to be conducted at the Closing Date and to act as general partner
of the Partnership and the Operating Partnerships, in each case in all material
respects as described in the Registration Statement and the Prospectus. The
General Partner is duly registered or qualified as a foreign corporation 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 on the condition (financial or other), business,
prospects, properties, net worth or results of operations of the Plains Parties,
taken as a whole, or (ii) subject the limited partners of the Partnership to any
material liability or disability.
(e) Plains Resources has been duly formed and is a corporation validly
existing and in good standing under the laws of the State of Delaware with full
corporate power and authority to own or lease its properties to be owned or
leased at the Closing Date, to conduct its business to be conducted at the
Closing Date, to assume the liabilities being assumed by it pursuant to the
Midstream Merger Agreement and the Conveyance Agreements and to conduct its
business to be conducted at the Closing Date, in each case in all material
respects as described in the Registration Statement and the Prospectus. Plains
Resources is duly registered or qualified as a foreign corporation 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 on the condition (financial or other), business,
prospects, properties, net worth or results of operations of the Partnership or
the Operating Partnerships, taken as a whole, or (ii) subject the limited
partners of the Partnership to any material liability or disability.
(f) Gathering LLC has been duly formed and is validly existing and in
good standing as a limited liability company under the Delaware Limited
Liability Company Act (the "Delaware LLC Act") with full limited liability
company power and authority to own or lease its properties to be owned or leased
at the Closing Date, to assume the liabilities being assumed by it pursuant to
the Conveyance Agreements and to conduct its business to be conducted at the
Closing
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Date, in each case in all material respects as described in the Registration
Statement and the Prospectus. Gathering LLC is, or at the Closing 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 on the condition (financial or other), business,
prospect, properties, net worth or results of operations of the Partnership and
the Operating Partnerships, taken as a whole or (ii) subject the limited
partners of the Partnership to any material liability or disability.
(f) At the Closing Date and the Option Closing Date, after giving effect
to the Transactions, the General Partner will be the sole general partner of the
Partnership with a 1% general partner interest in the Partnership; such general
partner interest will be duly authorized and validly issued in accordance with
the Partnership Agreement; the General Partner will own all of the Incentive
Distribution Rights; such Incentive Distribution Rights will be 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 the
Prospectus under the caption "The Partnership Agreement--Limited Liability");
and the General Partner will own such general partner interest and Incentive
Distribution Rights free and clear of all liens, encumbrances, security
interests, equities, charges or claims.
(g) At the Closing Date, after giving effect to the Transactions, the
General Partner will own limited partner interests in the Partnership
represented by ________ Common Units and ________ Subordinated Units; Plains
Resources will own limited partner interests in the Partnership represented by
________ Common Units and ________ Subordinated Units; all of such Common Units
and such Subordinated Units and the limited partner interests represented
thereby will be duly authorized and validly issued in accordance with the
Partnership Agreement, and will be fully paid (to the extent required under the
Partnership Agreement) and nonassessable (except as such nonassessability may be
affected by matters described in the Prospectus under the caption "The
Partnership Agreement--Limited Liability"); and the General Partner and Plains
Resources will hold their respective limited partner interests represented by
their Common Units and Subordinated Units free and clear of all liens,
encumbrances, security interests, equities, charges or claims.
(h) At the Closing Date, there will be issued to the Underwriters the
Firm Units (assuming no purchase by the Underwriters of Additional Units); at
the Closing Date or the Option Closing Date, as the case may be, the Firm Units
or the Additional Units, as the case may be, and the limited partner interests
represented thereby will be duly authorized by the Partnership Agreement and,
when issued and delivered to the Underwriters against payment therefor in
accordance with the terms hereof, will be validly issued, fully paid (to the
extent required under the Partnership Agreement) and nonassessable (except as
such nonassessability may be affected by matters described in the Prospectus
under the caption "The Partnership Agreement--Limited Liability"); and other
than the Common Units and the Subordinated Units owned by the General Partner
and Plains Resources as set forth above and the Incentive Distribution Rights
issued to the
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General Partner, the Units will be the only limited partner interests of the
Partnership issued and outstanding at the Closing Date or the Option Closing
Date.
(i) At the Closing Date and the Option Closing Date, after giving effect
to the Transactions, the General Partner will own a 1.0101% general partner
interest in Plains Marketing, L.P. and the Partnership will own a 98.9899%
limited partner interest in Plains Marketing, L.P.; the General Partner will own
a 1.0101% general partner interest in All American Delaware and Plains
Marketing, L.P. will own a 98.9899% limited partner interest in All American
Delaware; such interests will have been duly authorized and validly issued in
accordance with the Partnership Agreements of each of Plains Marketing, L.P. and
All American Delaware (as the same may be amended and restated at or prior to
the Closing Date, the "Operating Partnership Agreements" and together with the
Partnership Agreement, the "Partnership Agreements") and will be fully paid (to
the extent required under the Operating Partnership Agreements) and
nonassessable (except as such nonassessability may be affected by matters
described in the Prospectus under the caption "The Partnership Agreement--
Limited Liability"); and the General Partner, the Partnership and Plains
Marketing, L.P. will own such interests free and clear of all liens,
encumbrances, security interests, equities, charges or claims except as provided
in the Bank Credit Agreement.
(j) At the Closing Date, Plains Resources will own 100% of the issued
and outstanding capital stock of the General Partner; such capital stock will
have been duly authorized and validly issued and will be fully paid and
nonassessable; and Plains Resources will own such capital stock free and clear
of all liens, encumbrances, security interest, equities, charges or claims.
(k) At the Closing Date, the General Partner will own 100% of the issued
and outstanding capital stock of All American Pipeline Company; such capital
stock will have been duly authorized and validly issued and will be fully paid
and nonassessable; and the General Partner will own such capital stock free and
clear of all liens, encumbrances, security interests, equities, charges or
claims.
(l) At the Closing Date, after give affect to the Transactions, Plains
Marketing, L.P. will own a 100% member interest in Gathering LLC; such member
interest will have been duly authorized and validly issued in accordance with
the [Operating Agreement] of Gathering LLC (as the same may be amended and
restated at or prior to the Closing Date, the "Gathering LLC Agreement" and
together with the Partnership Agreements, the "Organization Agreements") and
will be fully paid (to the extent required under the Gathering LLC Agreement)
and nonassessable (except as such assessability may be affected by Section 18-
607 of the Delaware LLC Act); and Plains Marketing, L.P. will own such member
interest free and clear of all liens, encumbrances, security interest, equities,
charges or claims.
(m) None of the General Partner, the Partnership or the Operating
Partnerships has any subsidiaries (other than the Partnership and the Operating
Partnerships themselves and Gathering LLC) which, individually or considered as
a whole, would be deemed to be a significant subsidiary (as such term is defined
in Section 1-02d of Regulation S-X of the Act).
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(n) Except as described in the 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 in the Partnership or
the Operating Partnerships pursuant to either the Partnership Agreement or the
Operating Partnership Agreements, respectively, or any agreement or other
instrument to which the Partnership or either Operating Partnership is a party
or by which any one of them may be bound. Neither the filing of the Registration
Statement nor the offering or sale of the Units as contemplated by this
Agreement gives rise to any rights for or relating to the registration of any
Units or other securities of the Partnership or the Operating Partnerships.
Except as described in the Prospectus, there are no outstanding options or
warrants to purchase any Common Units or Subordinated Units or other partnership
interests in the Partnership or the Operating Partnerships. The Units, when
issued and delivered against payment therefor as provided herein, the Common
Units and the Subordinated Units to be issued to the General Partner and Plains
Resources (the "Sponsor Units"), when issued and delivered in accordance with
the terms of the Partnership Agreement, and the Incentive Distribution Rights to
be issued to the General Partner, when issued and delivered in accordance with
the terms of the Partnership Agreement, will conform in all material respects to
the description thereof contained in the Prospectus. The Partnership has all
requisite power and authority to issue, sell and deliver (i) the Units, in
accordance with and upon the terms and conditions set forth in this Agreement,
the Partnership Agreement and the Registration Statement and Prospectus and (ii)
the Sponsor Units and Incentive Distribution Rights, in accordance with the
terms and conditions set forth in the Partnership Agreement. At the Closing Date
and the Option Closing Date, all corporate and partnership action, as the case
may be, required to be taken by the Plains Entities or any of their shareholders
or partners for the authorization, issuance, sale and delivery of the Units, the
Sponsor Units and Incentive Distribution Rights, the execution and delivery of
the Operative Agreements (as defined in Section 6(p)) and the consummation of
the transactions (including the Transactions) contemplated by this Agreement and
the Operative Agreements, shall have been validly taken.
(o) The execution and delivery of, and the performance by each of the
Plains Entities of their respective obligations under, this Agreement have been
duly and validly authorized by each of the Plains Entities, and this Agreement
has been duly executed and delivered by each of the Plains Entities, and
constitutes the valid and legally binding agreement of each of the Plains
Entities, enforceable against each of the Plains Entities in accordance with its
terms, provided that the enforceability thereof may be limited by 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 in equity or at law) and except as rights to indemnity and
contribution hereunder may be limited by federal or state securities laws.
(p) At or before the Closing Date, the Partnership Agreement will have
been duly authorized, executed and delivered by the General Partner and will be
a valid and legally binding agreement of the General Partner and the
Organizational Limited Partner, enforceable against the General Partner and the
Organizational Limited Partner in accordance with its terms; at or before the
Closing Date, each Operating Partnership Agreement will have been duly
authorized, executed and delivered by each of the General Partner and the
Partnership and will be a valid and legally binding agreement of the General
Partner and the Partnership, enforceable against each of them in accordance with
its terms; at or before the Closing Date, a marketing agreement (the "Marketing
Agreement") will have been duly authorized, executed and
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delivered by each of the Partnership and Plains Resources and will be a valid
and legally binding agreement of each of them enforceable against each of them
in accordance with its terms; at or before the Closing Date, each of the
Midstream Merger Agreement, the CT&T Merger Agreement and the Conveyance
Agreements will have been duly authorized, executed and delivered by the parties
thereto and will be a valid and legally binding agreement of the parties thereto
enforceable against such parties in accordance with its terms; at or before the
Closing Date, an omnibus agreement (the "Omnibus Agreement") will have been duly
authorized, executed and delivered by each of the Partnership, the Operating
Partnerships, the General Partner and Plains Resources and will be a valid and
legally binding agreement of each of them enforceable against each of them in
accordance with its terms; at or before the Closing Date, each of the Bank
Credit Agreement and the Letter of Credit Facility will have been duly
authorized, executed and delivered by each Operating Partnership and will be a
valid and legally binding agreement of each Operating Partnership enforceable
against each Operating Partnership in accordance with its terms; provided that,
with respect to each agreement described in this Section 6(p), the
enforceability thereof may be limited by 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 in equity or at law);
and provided, further, that the indemnity, contribution and exoneration
provisions contained in any of such agreements may be limited by applicable laws
and public policy. The Organization Agreements, the Marketing Agreement, the
Midstream Merger Agreement, the CT&T Merger Agreement, the Conveyance
Agreements, the Omnibus Agreement and the Bank Credit Agreement are herein
collectively referred to as the "Operative Agreements."
(q) The merger of the Plains Midstream Subsidiaries into Plains
Resources pursuant to the Midstream Merger Agreement became effective under the
Delaware General Corporation Law ("DGCL") on __________ ____, 1998 and had the
effects set forth in Section 259 of the DGCL, including but not limited to,
vesting in Plains Resources the Midstream Assets.
(r) The merger of Celeron Trading and Transportation Company into the
General Partner pursuant to the CT&T Merger Agreement became effective under the
DGCL on _________ __, 1998 and had the effects set forth in Section 259 of the
DGCL, including but not limited to, vesting in the General Partner the CT&T
Assets.
(s) The conversion of Plains All American Pipeline Company into All
American Texas became effective under the Texas Business Corporation Act (the
"TBCA") and the Texas Revised Limited Partnership Act (the "TRLPA") on ______
__, 1998 and is legally sufficient under the TBCA and the TRLPA to vest in All
American Texas all assets of the Plains All American Pipeline Company. The
conversion of All American Texas into All American Delaware became effective
under the TRLPA and the Delaware LP Act on ___________ ___, 1998 and is legally
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sufficient under the TRLPA and the Delaware LP Act to vest in All American
Delaware all assets of All American Texas.
(t) None of the offering, issuance and sale by the Partnership of the
Units, the execution, delivery and performance of this Agreement or the
Operative Agreements by the Plains Entities which are parties thereto, or the
consummation of the transactions contemplated hereby and thereby (including the
Transactions) (i) conflicts or will conflict with or constitutes or will
constitute a violation of the agreement of limited partnership, limited
liability company operating agreement, certificate or articles of incorporation
or bylaws or other organizational documents of any of the Plains Entities, (ii)
conflicts or will conflict with or constitutes or will constitute a breach or
violation of, or a default under (or an event which, with notice or lapse of
time or both, would constitute such an event), any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which any of
the Plains Entities is a party or by which any of them or any of their
respective properties may be bound, (iii) violates or will violate any statute,
law or regulation or any order, judgment, decree or injunction of any court or
governmental agency or body directed to any of the Plains Entities or any of
their properties in a proceeding to which any of them or their property is a
party or (iv) will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of any of the Plains Entities, in the
case of clauses (ii), (iii) or (iv), which conflicts, breaches, violations or
defaults would have a material adverse effect upon the condition (financial or
other), business, prospects, properties, net worth or results of operations of
the Plains Parties, taken as a whole.
(u) No permit, consent, approval, certificate, authorization or order of
any court, governmental agency or body is required in connection with the
execution and delivery of, or the consummation by the Plains Entities of the
transactions contemplated by, this Agreement or the Operative Agreements
(including the Transactions), except (i) for such permits, consents, approvals
and similar authorizations required under the Securities Act, the Exchange Act
and state securities or "Blue Sky" laws, (ii) for such permits, consents,
approvals, certificates and similar authorizations which have been, or prior to
the Closing Date will be, obtained and (iii) for such permits, consents,
approvals, certificates and similar authorizations which, if not obtained, would
not, individually or in the aggregate, have a material adverse effect upon the
condition (financial or other), business, prospects, properties, net worth or
results of operations of the Plains Parties, taken as a whole.
(v) None of the Plains Entities is in (i) violation of its agreement of
limited partnership, limited liability operating agreement, certificate or
articles of incorporation or bylaws or other organizational documents, or of any
law, statute, ordinance, administrative or governmental rule or regulation
applicable to it or of any decree of any court or governmental agency or body
having jurisdiction over it or (ii) breach, default (or an event which, with
notice or lapse of time or both, would constitute such an event) 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 would, if
continued, have a material adverse effect on the condition (financial or other),
business, prospects, properties, net worth or
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results of operations of the Plains Parties, taken as a whole, or could
materially impair the ability of any of the Plains Entities to perform its
obligations under this Agreement or the Operative Agreements. To the knowledge
of the Plains Entities, no third party to any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which any of the
Plains Entities is a party or by which any of them is bound or to which any of
their properties are subject, is in default under any such agreement, which
breach, default or violation would, if continued, have a material adverse effect
on the condition (financial or other), business, prospects, properties, net
worth or results of operations of the Plains Parties, taken as a whole.
(w) The accountants, PricewaterhouseCoopers LLP, who have certified or
shall certify the audited financial statements included in the Registration
Statement, any Prepricing Prospectus and the Prospectus (or any amendment or
supplement thereto), are independent public accountants with respect to the
Plains Entities as required by the Act and the applicable published rules and
regulations thereunder.
(x) At September 30, 1998, the Partnership would have had, on the
consolidated pro forma basis indicated in the Prospectus (and any amendment or
supplement thereto), a capitalization as set forth therein. The financial
statements (including the related notes and supporting schedules) included in
the Registration Statement, the Prepricing Prospectus dated _________, 1998 and
the Prospectus (and any amendment or supplement thereto) present fairly in all
material respects the financial position, results of operations and cash flows
of the entities purported to be shown thereby on the basis stated therein at the
respective dates or for the respective periods which have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except to the extent disclosed therein. The
selected historical and pro forma information set forth in the Registration
Statement, the Prepricing Prospectus dated ___________, 1998 and the Prospectus
(and any amendment or supplement thereto) under the caption "Selected Historical
and Pro Forma Financial and Operating Data" is accurately presented in all
material respects and prepared on a basis consistent with the audited and
unaudited historical consolidated financial statements and pro forma financial
statements from which it has been derived. The pro forma financial statements of
the Partnership included in the Registration Statement, the Prepricing
Prospectus dated ___________, 1998 and the Prospectus (and any amendment or
supplement thereto) have been prepared in all material respects in accordance
with the applicable accounting requirements of Article 11 of Regulation S-X of
the Commission; the assumptions used in the preparation of such pro forma
financial statements are, in the opinion of the management of the Plains
Entities, reasonable; and the pro forma adjustments reflected in such pro forma
financial statements have been properly applied to the historical amounts in
compilation of such pro forma financial statements.
(y) Except as disclosed in the Registration Statement, the Prepricing
Prospectus dated ___________, 1998 and the Prospectus (or any amendment or
supplement thereto), subsequent to the respective dates as of which such
information is given in the Registration Statement, the Prepricing Prospectus
dated October___________, 1998 and the Prospectus (or any amendment or
supplement thereto), (i) none of the Plains Entities has incurred any liability
or obligation, indirect,
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direct or contingent, or entered into any transactions, not in the ordinary
course of business, that, singly or in the aggregate, is material to the Plains
Parties, taken as a whole, (ii) there has not been any change in the
capitalization, or material increase in the short-term debt or long-term debt,
of the Plains Entities and (iii) there has not been any material adverse change,
or any development involving or which may reasonably be expected to involve,
singly or in the aggregate, a prospective material adverse change in the
condition (financial or other), business, prospects, properties, net worth or
results of operations of the Plains Parties, taken as a whole.
(z) There are no legal or governmental proceedings pending or, to the
knowledge of the Plains Entities, threatened, against any of the Plains
Entities, or to which any of the Plains Entities is a party, or to which any of
their respective properties is subject, that are required to be described in the
Registration Statement or the Prospectus but are not described as required, and
there are no agreements, contracts, indentures, leases or other instruments that
are required to be described in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement that are not described
or filed as required by the Act.
(aa) Plains Resources, the General Partner, the Operating Partnerships
and Gathering LLC have, and upon consummation of the Transactions on the Closing
Date, the Operating Partnerships and Gathering LLC will have, good and
marketable title in fee simple to all real property and good title to all
personal property described in the Prospectus to be owned by the Operating
Partnerships and Gathering LLC, free and clear of all liens, claims, security
interests or other encumbrances except (i) as described in the Prospectus and
(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 Prospectus; and all real property and buildings held
under lease by Plains Resources, the General Partner, the Operating Partnerships
and Gathering LLC are held by Plains Resources, the General Partner, the
Operating Partnerships and Gathering LLC, and upon consummation of the
Transactions on the Closing Date, will be held by the Operating Partnerships and
Gathering LLC, under valid and subsisting and enforceable leases with such
exceptions as do not materially interfere with the use of such properties taken
as a whole as they have been used in the past and are proposed to be used in the
future as described in the Prospectus. The Conveyance Agreements will be, as of
the Closing Date, legally sufficient to transfer or convey to the Operating
Partnerships and Gathering LLC all properties not already held by them that are,
individually or in the aggregate, required to enable the Operating Partnerships
and Gathering LLC to conduct their operations (in all material respects as
contemplated by the Prospectus), subject to the conditions, reservations and
limitations contained in the Conveyance Agreements and those set forth in the
Prospectus. The Operating Partnerships will, upon execution and delivery of the
Conveyance Agreements, succeed in all material respects to the business, assets,
properties, liabilities and operations reflected by the pro forma financial
statements of the Partnership, except as disclosed in the Prospectus.
(bb) The Partnership has not distributed and, prior to the later to
occur of (i) the Closing Date and (ii) completion of the distribution of the
Units, will not distribute, any prospectus (as defined under the Act) in
connection with the offering and sale of the Units other than the
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Registration Statement, any Prepricing Prospectus, the Prospectus or other
materials, if any, permitted by the Act, including Rule 134 of the general rules
and regulations thereunder.
(cc) Each of the Plains Parties has, or at the Closing Date will have,
such permits, consents, licenses, franchises, certificates and authorizations of
governmental or regulatory authorities ("permits") as are necessary to own its
properties and to conduct its business in the manner described in the
Prospectus, subject to such qualifications as may be set forth in the Prospectus
and except for such permits which, if not obtained, would not have, individually
or in the aggregate, a material adverse effect upon the ability of the Plains
Parties considered as a whole to conduct their businesses in all material
respects as currently conducted and as contemplated by the Prospectus to be
conducted; each of the Plains Parties has, or at the Closing Date will have,
fulfilled and performed all its material obligations with respect to such
permits 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 have a material adverse effect upon
the ability of the Plains Parties considered as a whole to conduct their
businesses in all material respects as currently conducted and as contemplated
by the Prospectus to be conducted, subject in each case to such qualification as
may be set forth in the Prospectus; and, except as described in the Prospectus,
none of such permits contains any restriction that is materially burdensome to
the Plains Parties considered as a whole.
(dd) Each of the Plains Parties has, or at the Closing Date will have,
such consents, easements, rights-of-way or licenses from any person ("rights-of-
way") as are necessary to conduct its business in the manner described in the
Prospectus, subject to such qualifications as may be set forth in the Prospectus
and except for such rights-of-way which, if not obtained, would not have,
individually or in the aggregate, a material adverse effect upon the ability of
the Plains Parties considered as a whole to conduct their businesses in all
material respects as currently conducted and as contemplated by the Prospectus
to be conducted; each of the Plains Parties has, or at the Closing Date will
have, fulfilled and performed all its material obligations with respect to such
rights-of-way 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 rights-of-way, except for
such revocations, terminations and impairments that would not have a material
adverse effect upon the ability of the Plains Parties considered as a whole to
conduct their businesses in all material respects as currently conducted and as
contemplated by the Prospectus to be conducted, subject in each case to such
qualification as may be set forth in the Prospectus; and, except as described in
the Prospectus, none of such rights-of-way contains any restriction that is
materially burdensome to the Plains Parties considered as a whole.
(ee) Each of the Plains Parties (i) makes and keeps books, records and
accounts, which, 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
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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.
(ff) To the knowledge of the Plains Entities, none of the Plains
Entities nor any employee or agent of any of the Plains Entities has made any
payment of funds of a Plains Entity or received or retained any funds in either
case in violation of any law, rule or regulation, which payment, receipt or
retention of funds is of a character required to be disclosed in the Prospectus.
(gg) Each of the Plains Entities has filed (or has obtained extensions
with respect to) all material tax returns required to be filed through the date
hereof, which returns are complete and correct in all material respects, and has
timely paid all taxes shown to be due pursuant to such returns, other than those
(i) which, if not paid, would not have a material adverse effect on the
condition (financial or other), business, prospects, properties, net worth or
results of operations of the Plains Entities, taken as a whole, or (ii) which
are being contested in good faith.
(hh) The Plains Entities own or possess, and at the Closing Date the
Plains Parties will own or possess, all patents, trademarks, trademark
registrations, service marks, service xxxx registrations, trade names,
copyrights, licenses, inventions, trade secrets and rights owned by them or
necessary for the conduct of their respective businesses, and the Plains
Entities are not aware of any claim to the contrary or any challenge by any
other person to the rights of the Plains Entities with respect to the foregoing.
(ii) None of the Plains Parties is now, and after sale of the Units to
be sold by the Partnership hereunder and application of the net proceeds from
such sale as described in the Prospectus under the caption "Use of Proceeds"
will be, (i) an "investment company" or a company "controlled by" an "investment
company" within the meaning of the Investment Company Act of 1940, as amended,
(ii) a "public utility company," "holding company" or a "subsidiary company" of
a "holding company" or an "affiliate" thereof, under the Public Utility Holding
Company Act of 1935, as amended, (iii) a "gas utility," "public utility" or
"utility" within the meaning of Article 6050 of the Revised Civil Statutes of
Texas or (iv) a "public utility" or "utility" within the meaning of the Public
Utility Regulatory Act of Texas or under the applicable laws of any state in
which any such Plains Party does business.
(jj) None of the Plains Entities has sustained since the date of the
latest audited financial statements included in the Prospectus any material loss
or interference with its business from fire, explosion, flood or other calamity
whether or not covered by insurance, or from any labor dispute or court or
governmental action, investigation, order or decree, otherwise than as set forth
or contemplated in the Prospectus.
(kk) None of the Plains Entities has violated any environmental, safety,
health or similar law or regulation applicable to its business relating to the
protection of human health and
-19-
safety, the environment or hazardous or toxic substances or wastes, pollutants
or contaminants ("Environmental Laws"), or lacks any permits, licenses or other
approvals required of them under applicable Environmental Laws to own, lease or
operate their properties and conduct their business as described in the
Prospectus or is violating any terms and conditions of any such permit, license
or approval, which in each case would have a material adverse effect on the
condition (financial or other), business, prospects, properties, net worth or
results of operations of the Plains Parties, taken as a whole.
(ll) Except as described in or contemplated by the Prospectus, no
material labor dispute with the employees of any of the Plains Entities exists
or, to the knowledge of any of the Plains Entities, is imminent.
(mm) The Plains 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 Plains Entities 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 on the Closing
Date.
(nn) Except as described in the Prospectus, there is (i) no action, suit
or proceeding before or by any court, arbitrator or governmental agency, body or
official, domestic or foreign, now pending or, to the knowledge of the Plains
Entities, threatened, to which any of the Plains Entities, or any of their
respective subsidiaries, is or may be a party or to which the business or
property of any of the Plains Entities, or any of their respective subsidiaries,
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 body 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 of the Plains Entities, or any of their respective
subsidiaries, is or may be subject, that, in the case of clauses (i), (ii) and
(iii) above, is reasonably expected to (A) singly or in the aggregate have a
material adverse effect on the condition (financial or other), business,
prospects, properties, net worth or results of operations of the Plains Parties,
taken as a whole, (B) prevent or result in the suspension of the offering and
issuance of the Units or the Notes or (C) in any manner draw into question the
validity of this Agreement or any Operative Agreement.
(oo) The sale and issuance of the Sponsor Units to each of the General
Partner and Plains Resources pursuant to the Partnership Agreement and the sale
and issuance of the Incentive Distribution Rights to the General Partner
pursuant to the Partnership Agreement are exempt from the registration
requirements of the Act and the securities laws of any state having jurisdiction
with respect thereto, and none of the Plains Entities has taken or will take any
action that would cause the loss of such exemption.
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(pp) The Units have been approved for listing on the New York Stock
Exchange ("NYSE"), subject only to official notice of issuance.
7. Indemnification and Contribution. (a) Each of the Plains Entities,
jointly and severally, agrees to indemnify and hold harmless each of you and
each other Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
from and against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation) arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Prepricing Prospectus or in the Registration Statement or the Prospectus or in
any amendment or supplement thereto, or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or expenses arise
out of or are based upon any untrue statement or omission or alleged untrue
statement or omission which has been made therein or omitted therefrom in
reliance upon and in conformity with the information furnished in writing to the
Partnership or the General Partner by or on behalf of any Underwriter through
you expressly for use in connection therewith; provided, however, that the
indemnification contained in this paragraph (a) with respect to any Prepricing
Prospectus shall not inure to the benefit of any Underwriter (or to the benefit
of any person controlling such Underwriter) on account of any such loss, claim,
damage, liability or expense arising from the sale of the Units by such
Underwriter to any person if a copy of the Prospectus shall not have been
delivered or sent to such person within the time required by the Act and the
regulations thereunder, and the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in such Prepricing
Prospectus was corrected in the Prospectus, provided that the Partnership has
delivered the Prospectus to the several Underwriters in requisite quantity and
on a timely basis to permit such delivery or sending. The foregoing indemnity
agreement shall be in addition to any liability which any Plains Entity may
otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against a Plains Entity, such Underwriter or such
controlling person shall promptly notify the Plains Entities in writing, and the
Partnership shall assume the defense thereof, including the employment of
counsel and payment of all reasonable fees and expenses. The failure to notify
the indemnifying party shall not relieve it from liability which it may have to
an indemnified party unless the indemnifying party is foreclosed by reason of
such delay from asserting a defense otherwise available to it. Such Underwriter
or any such controlling person shall have the right to employ separate counsel
in any such action, suit or proceeding and to participate in (but not control)
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Underwriter or such controlling person unless (i) a Plains
Entity has agreed in writing to pay such fees and expenses, (ii) the Plains
Entities have failed to assume the defense and employ counsel or (iii) the named
parties to any such action, suit or proceeding (including any impleaded parties)
include both such Underwriter or such controlling person and a Plains Entity,
and such Underwriter or such controlling person shall have been advised by its
counsel that representation of such indemnified party and such Plains Entity by
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the same counsel would be inappropriate under applicable standards of
professional conduct (whether or not such representation by the same counsel has
been proposed) due to actual or potential differing interests between them (in
which case the Plains Entities shall not have the right to assume the defense of
such action, suit or proceeding on behalf of such Underwriter or such
controlling person). It is understood, however, that the Plains Entities shall,
in connection with any one such action, suit or proceeding or separate but
substantially similar or related actions, suits or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel) at any time for all such
Underwriters and controlling persons not having actual or potential differing
interests with you or among themselves, which firm shall be designated in
writing by Xxxxxxx Xxxxx Xxxxxx Inc., and that all such fees and expenses shall
be reimbursed as they are incurred. None of the Plains Entities shall be liable
for any settlement of any such action, suit or proceeding effected without its
written consent, but if settled with such written consent, or if there be a
final judgment for the plaintiff in any such action, suit or proceeding, the
Plains Entities agree, jointly and severally, to indemnify and hold harmless any
Underwriter, to the extent provided in the preceding paragraph, and any such
controlling person from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Plains Entities, their respective directors and officers who
sign the Registration Statement, and any person who controls the Plains Entities
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
to the same extent as the foregoing indemnity from the Plains Entities to each
Underwriter, but only with respect to information furnished in writing by or on
behalf of such Underwriter through you expressly for use in the Registration
Statement, the Prospectus or any Prepricing Prospectus, or any amendment or
supplement thereto. If any action, suit or proceeding shall be brought against a
Plains Entity, any of such directors and officers or any such controlling person
based on the Registration Statement, the Prospectus or any Prepricing
Prospectus, or any amendment or supplement thereto, and in respect of which
indemnity may be sought against any Underwriter pursuant to this paragraph (c),
such Underwriter shall have the rights and duties given to the Plains Entities
by paragraph (b) above (except that if a Plains Entity shall have assumed the
defense thereof such Underwriter shall not be required to do so, but may employ
separate counsel therein and participate in (but not control) the defense
thereof, but the fees and expenses of such counsel shall be at such
Underwriter's expense), and the Plains Entities, any of such directors and
officers and any such controlling person shall have the rights and duties given
to the Underwriters by paragraph (b) above. The foregoing indemnity agreement
shall be in addition to any liability which the Underwriters may otherwise have.
(d) If the indemnification provided for in this Section 7 is unavailable
to an indemnified party under paragraph (a) or (c) hereof in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then an
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses (i) in such proportion
as is appropriate to reflect the relative benefits received by the Plains
Entities on the one hand and the Underwriters
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on the other hand from the offering of the Units, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Plains Entities on the
one hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Plains Entities on the one hand and the Underwriters on
the other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Plains Entities
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Plains Entities on the one hand, and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Plains Entities or any other affiliate of the Plains Entities on
the one hand, or by the Underwriters on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) The Plains Entities and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
a pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages,
liabilities and expenses referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
any claim or defending any such action, suit or proceeding. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price of the Units
underwritten by it and distributed to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective numbers of Firm Units set forth opposite their names in Schedule I
hereto (or such numbers of Firm Units increased as set forth in Section 10
hereof) and not joint.
(f) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the
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indemnifying party to the indemnified party as such losses, claims, damages,
liabilities or expenses are incurred. The indemnity and contribution agreements
contained in this Section 7 and the representations and warranties of the Plains
Entities set forth in this Agreement shall remain operative and in full force
and effect, regardless of (i) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter, the Plains Entities or
any of their respective directors or officers or any person controlling the
Plains Entities, (ii) acceptance of any Units and payment therefor in accordance
with the terms of this Agreement, and (iii) any termination of this Agreement. A
successor to any Underwriter or any person controlling any Underwriter, or to
the Plains Entities or any of their respective directors or officers or any
person controlling a Plains Entity shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in this Section
7.
8. Conditions of Underwriters' Obligations. The several obligations of the
Underwriters to purchase the Firm Units hereunder are subject to the following
conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the registration statement or a post-effective amendment thereto
to be declared effective before the offering of the Units may commence, the
registration statement or such post-effective amendment shall have become
effective not later than 5:30 p.m., New York City time, on the date hereof, or
at such later date and time as shall be consented to in writing by you, and all
filings, if any, required by Rules 424 and 430A under the Act shall be or have
been timely made, as the case may be; no stop order suspending the effectiveness
of the registration statement shall have been issued and no proceeding for that
purpose shall have been instituted or, to the knowledge of the Plains Entities
or any Underwriter, threatened by the Commission and any request of the
Commission for additional information (to be included in the Registration
Statement or the Prospectus or otherwise) shall have been complied with to your
reasonable satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall not
have occurred (i) any change, or any development involving a prospective change,
in or affecting the condition (financial or other), business, prospects,
properties, net worth or results of operations of any of the Plains Entities not
contemplated by the Prospectus, which in your opinion, as Representatives of the
several Underwriters, would materially adversely affect the market for the
Units, or (ii) any event or development relating to or involving any of the
Plains Entities or any executive officer or director of any of such entities
which makes any statement made in the Prospectus untrue or which, in the opinion
of the Partnership and its counsel or the Underwriters and their counsel,
requires the making of any addition to or change in the Prospectus in order to
state a material fact required by the Act or any other law to be stated therein
or necessary in order to make the statements therein not misleading, if amending
or supplementing the Prospectus to reflect such event or development would, in
your opinion, as Representatives of the several Underwriters, materially
adversely affect the market for the Units.
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(c) You shall have received on the Closing Date, an opinion of Xxxxxxx &
Xxxxx L.L.P., special counsel for the Plains Entities, dated the Closing Date
and addressed to you, as Representatives of the several Underwriters, to the
effect that:
(i) The Partnership has been duly formed and is validly existing in
good standing as a limited partnership under the Delaware LP Act with all
necessary partnership power and authority to own or lease its properties, assume
the liabilities being assumed by it pursuant to the Conveyance Agreements and
conduct its business, in each case in all material respects as described in the
Registration Statement and the Prospectus.
(ii) The Partnership is duly registered or qualified as a foreign
limited partnership for the transaction of business under the laws of the States
set forth on Exhibit A to this opinion; and, to such counsel's knowledge, such
jurisdictions are the only jurisdictions in which the character of the business
conducted by the Partnership or the nature or location of the properties owned
or leased by it make such registration or qualification necessary (except where
the failure to so register or so qualify would not (A) have a material adverse
effect on the condition (financial or other), business or results of operations
of the Partnership and the Operating Partnerships, taken as a whole, or (B)
subject the limited partners of the Partnership to any material liability or
disability).
(iii) Each Operating Partnership has been duly formed and is validly
existing in good standing as a limited partnership under the Delaware LP Act
with all necessary partnership power and authority to own or lease its
properties, assume the liabilities being assumed by it pursuant to the
Conveyance Agreements and conduct its business, in each case in all material
respects as described in the Registration Statement and the Prospectus.
(iv) Each Operating Partnership is duly registered or qualified as a
foreign partnership for the transaction of business under the laws of the States
set forth on Exhibit A to this opinion; and, to such counsel's knowledge, such
jurisdictions are the only jurisdictions in which the character of the business
conducted by each Operating Partnership or the nature or location of the
properties owned or leased by it make such registration or qualification
necessary (except where the failure to so register or so qualify would not (A)
have a material adverse effect on the condition (financial or other), business
or results of operations of the Partnership and the Operating Partnerships,
taken as a whole, or (B) subject the limited partners of the Partnership to any
material liability or disability).
(v) The General Partner has been duly formed and is a corporation
validly existing in good standing under the laws of the State of Delaware, with
all necessary corporate power and authority to own or lease its properties,
assume the liabilities being assumed by it pursuant to the CT&T Merger Agreement
and the Conveyance Agreements, conduct its business and act as general partner
of the Partnership and the Operating
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Partnerships, in each case in all material respects as described in the
Registration Statement and the Prospectus.
(vi) The General Partner is duly registered or qualified as a foreign
corporation for the transaction of business under the laws of the States set
forth on Exhibit A to this opinion; and to such counsel's knowledge, such
jurisdictions are the only jurisdictions in which the character of the business
conducted by the General Partner or the nature or location of the properties
owned or leased by it make such registration or qualification necessary (except
where the failure to so register or so qualify would not (A) have a material
adverse effect on the condition (financial or other), business or results of
operations of the Plains Parties, taken as a whole, or (B) subject the limited
partners of the Partnership to any material liability or disability).
(vii) Plains Resources has been duly formed and is a corporation validly
existing in good standing under the laws of the State of Delaware, with all
necessary corporate power and authority to own or lease its properties, assume
the liabilities being assumed by it pursuant to the Midstream Merger Agreement,
and conduct its business, in each case and all material respects as described in
the Registration Statement and the Prospectus.
(viii) Plains Resources is duly registered or qualified as a foreign
corporation for the transaction of business under the laws of the States set
forth on Exhibit A to this opinion; and to such counsel's knowledge, such
jurisdictions are the only jurisdictions in which the character of the business
conducted by Plains Resources or the nature or location of the properties owned
or leased by it make such registrational qualification necessary (except for the
failure to so register or so qualify would not (A) have a material adverse
effect on the condition (financial or other), business or results of operations
of the Plains Parties, taken as a whole, or (B) subject the limited partners of
the Partnership to any material liability or disability.
(ix) Gathering LLC has been duly formed and is validly existing in good
standing as a limited liability company under the Delaware LLC Act, with all
necessary limited liability company power and authority to own or lease its
properties, assume the liabilities being assumed by it pursuant to the
Conveyance Agreements and conduct its business, in each case in all material
respect as described in the Registration Statement and the Prospectus.
(x) Gathering LLC is duly registered or qualified as a foreign limited
liability company for the transaction of business under the laws of the States
set forth on Exhibit A to this opinion; and to such counsel's knowledge, such
jurisdictions are the only jurisdictions in which the character of the business
conducted by Gathering LLC 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 so qualify would not
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(A) have a material adverse effect on the condition (financial or other),
business or results of operations of the Plains Parties, taken as a whole, or
(B) subject the limited partners of the Partnership to any material liability or
disability).
(xi) The General Partner is the sole general partner of the Partnership,
with a 1% general partner interest in the Partnership; such general partner
interest has been duly authorized and validly issued in accordance with the
Partnership Agreement; the General Partner owns all of the Incentive
Distribution Rights; such Incentive Distribution Rights have been duly
authorized and validly issued in accordance with the Partnership Agreement and
are fully paid (to the extent required under the Partnership Agreement) and
nonassessable (except as such nonassessability may be affected by matters
described in the Prospectus under the caption "The Partnership Agreement--
Limited Liability"); and the General Partner owns such general partner interest
and Incentive Distribution Rights free and clear of all liens, encumbrances,
security interests, charges or claims (A) in respect of which a financing
statement under the Uniform Commercial Code of the State of Delaware naming the
General Partner as debtor is on file in the office of the Secretary of State of
the State of Delaware or (B) otherwise known to such counsel, without
independent investigation, other than those created by or arising under the
DGCL.
(xii) The _______ Common Units and the ________ Subordinated Units
issued to the General Partner and the ________ Common Units and the ________
Subordinated Units issued to Plains Resources pursuant to the Partnership
Agreement 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 the Prospectus under "The Partnership Agreement--Limited
Liability"); after giving effect to the Transactions, the General Partner will
own ________ Common Units and _________ Subordinated Units and Plains Resources
will own ______ Common Units and __________ Subordinated Units and the General
Partner and Plains Resources will own such Common Units and such Subordinated
Units free and clear of all liens, encumbrances, security interests, charges or
claims (A) in respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware, naming any such owner as debtor is on
file in the office of the Secretary of State of the State of Delaware or (B)
otherwise known to such counsel, without independent investigation, other than
those created by or arising under the DGCL.
(xiii) The 12,782,609 Common Units to be issued and sold to the
Underwriters by the Partnership pursuant to this Agreement and the limited
partner interests represented thereby have been duly authorized by the
Partnership Agreement and, when issued and delivered against payment therefor as
provided in this Agreement, will be validly issued, fully paid (to the extent
required under the Partnership Agreement) and nonassessable (except as such
nonassessability may be affected by matters described in the Prospectus under
the caption "The Partnership Agreement--Limited Liability"); other than the
Common
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Units and the Subordinated Units that will be owned by the General Partner and
Plains Resources and the Incentive Distribution Rights that will be owned by the
General Partner, the Units will be the only limited partner interests of the
Partnership issued and outstanding at the Closing Date.
(xiv) The General Partner owns a 1.0101% general partner interest in
Plains Marketing, L.P. and the Partnership owns a 98.9899% limited partner
interest in Plains Marketing, L.P.; the General Partner owns a 1.0101% general
partner interest in All American Delaware and Plains Operating, L.P. owns a
98.9899% limited partner interest in All American Delaware; such interests have
been duly authorized and validly issued in accordance with the Operating
Partnership Agreements and are fully paid (to the extent required under the
Operating Partnership Agreements) and nonassessable (except as such
nonassessability may be affected by matters described in the Prospectus under
the caption "The Partnership Agreement--Limited Liability"); and the General
Partner, the Partnership and Plains Marketing, L.P. own such interests free and
clear of all liens, encumbrances, security interests, charges or claims (A) in
respect of which a financing statement under the Uniform Commercial Code of the
State of Delaware naming any such owner as debtor is on file in the office of
the Secretary of State of the State of Delaware or (B) otherwise known to such
counsel, without independent investigation, other than those created by or
arising under the DGCL or the Delaware LP Act, as applicable.
(xv)Plains Resources owns 100% of the issued and outstanding capital
stock of the General Partner; such capital stock has been duly authorized and
validly issued and is fully paid and nonassessable; and such capital stock is
owned free and clear of all liens, encumbrances, security interests, charges or
claims (A) in respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware, naming Plains Resources as debtor is
on file in the office of the Secretary of State of the State of Delaware or (B)
otherwise known to such counsel, without independent investigation, other than
those created by or arising under the DGCL.
(xvi) The General Partner owns 100% of the issued and outstanding
capital stock of All American Pipeline Company; such capital stock has been duly
authorized and validly issued and is fully paid and nonassessable; and such
capital stock is owned free and clear of all liens, encumbrances, security
interests, charges or claims (A) in respect of which a financing statement under
the Uniform Commercial Code of the State of Delaware, naming the General Partner
as debtor is on file in the office of the Secretary of State of the State of
Delaware or (B) otherwise known to such counsel, without independent
investigation, other than those created by or arising under the DGCL.
(xvii) Plains Marketing, L.P. owns a 100% member interest in Gathering
LLC; such member interest has been duly authorized and validly issued in
accordance with the Gathering LLC Agreement and is fully paid (to the extent
required under the Gathering LLC Agreement) and nonassessable (except as such
nonassessability may be affected by
-28-
Section 18-607 of the Delaware LLC Act); Plains Marketing, L.P. owns such member
interest free and clear of all liens, encumbrances, security interests, charges
or claims (A) in respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware naming Plains Marketing, L.P. as debtor
is on file in the office of the Secretary of State of the State of Delaware or
(B) otherwise known to such counsel, without independent investigation, other
than those created by or arising under the Delaware LLC Act.
(xviii) None of the General Partner, the Partnership or the Operating
Partnerships has any subsidiaries (other than the Partnership and the Operating
Partnerships themselves and Gathering LLC) which, individually or considered as
a whole, would be deemed to be a significant subsidiary (as such term is defined
in Section 1-02d of Regulation S-X of the Act).
(xix) Except as described in the 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 in the Partnership or
the Operating Partnerships pursuant to the Partnership Agreement, the Operating
Partnership Agreements or any other agreement or instrument known to such
counsel to which the Partnership or either Operating Partnership is a party or
by which any one of them may be bound. To such counsel's knowledge, neither the
filing of the Registration Statement nor the offering or sale of the Units as
contemplated by this Agreement gives rise to any rights for or relating to the
registration of any Units or other securities of the Partnership or the
Operating Partnerships. To such counsel's knowledge, except as described in the
Prospectus, there are no outstanding options or warrants to purchase any Common
Units or Subordinated Units or other partnership interests in the Partnership or
the Operating Partnerships. The Partnership has all requisite power and
authority to issue, sell and deliver (A) the Units, in accordance with and upon
the terms and conditions set forth in this Agreement, the Partnership Agreement
and the Registration Statement and Prospectus, and (B) the Common Units, the
Subordinated Units and Incentive Distribution Rights, in accordance with the
terms and conditions set forth in the Partnership Agreement.
(xx) This Agreement has been duly authorized and validly executed and
delivered by each of the Plains Entities.
(xxi) Each of the Operative Agreements to which any of the Plains
Entities is a party have been duly authorized and validly executed and delivered
by each of the Plains Entities parties thereto and constitutes a valid and
binding obligation of each of the Plains Entities parties thereto, enforceable
against each such party in accordance with its respective terms, subject to (A)
applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or similar laws from time to time in effect affecting creditors'
rights and remedies generally and general principles of equity (regardless of
whether such principles are considered in a proceeding at law or in equity) and
(B) public policy,
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applicable law relating to fiduciary duties and an implied covenant of good
faith and fair dealing.
(xxii) None of the offering, issuance and sale by the Partnership of the
Units, the execution, delivery and performance of this Agreement or the
Operative Agreements by the Plains Entities party thereto, or the consummation
of the transactions contemplated hereby and thereby (including the Transactions)
(A) constitutes or will constitute a violation of the Organizational Agreements
or the certificate or articles of incorporation or bylaws or other
organizational documents of any of the Plains Entities, (B) constitutes or will
constitute a breach or violation of, or a default under (or an event which, with
notice or lapse of time or both, would constitute such an event), any Operative
Agreement, any bond, debenture, note or any other evidence of indebtedness, any
indenture or any other material agreement or instrument known to such counsel to
which a Plains Entity is a party or by which any one of them may be bound, (C)
results or will result in any violation of the Delaware LP Act, the Delaware LLC
Act, the DGCL, the laws of the State of Texas or federal law, or (D) results or
will result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of any of the Plains Entities which in the case of
clauses (B), (C) or (D) would reasonably be expected to have a material adverse
effect on the financial condition, business or results of operations of the
Plains Parties, taken as a whole.
(xxiii) No permit, consent, approval, certificate, authorization or
order of any federal, Delaware or Texas court, governmental agency or body is
required in connection with the execution and delivery of, or the consummation
by the Plains Entities of the transactions contemplated by, this Agreement or
the Operative Agreements (including the Transactions), except (A) for such
permits, consents, approvals, certificates and similar authorizations required
under the Securities Act and the Exchange Act, (B) for such permits consents,
approvals, certificates and similar authorizations required under state
securities or "Blue Sky" laws, as to which such counsel need not express any
opinion and (C) as described in the Prospectus.
(xxiv) The merger of the Plains Midstream Subsidiaries into Plains
Resources pursuant to the Midstream Merger Agreement became effective under the
DGCL on __________ ____, 1998 and had the effects set forth in Section 259 of
the DGCL, including but not limited to, vesting in Plains Resources the
Midstream Assets.
(xxv) The merger of Celeron Trading and Transportation Company into the
General Partner pursuant to the CT&T Merger Agreement became effective under the
DGCL on _________ __, 1998 and had the effects set forth in Section 259 of the
DGCL, including but not limited to, vesting in the General Partner the CT&T
Assets.
(xxvi) The conversion of Plains All American Pipeline Company into All
American Texas became effective under the TBCA and the TRLPA on _________ ___,
1998
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and is legally sufficient under the TBCA and the TRLPA to vest in All American
Texas all assets of the Plains All American Pipeline Company. The conversion of
All American Texas into All American Delaware became effective under the TRLPA
and the Delaware LP Act on ___________ ___, 1998 and is legally sufficient under
the TRLPA and the Delaware LP Act to vest in All American Delaware all assets of
All American Texas.
(xxvii) The execution, delivery and performance of the Conveyance
Agreements relating to the transfer of property in the State of Texas did not or
will not violate any statute of the State of Texas or any rule, regulation or,
to the knowledge of such counsel, any order of any agency of the State of Texas
having jurisdiction over any of the Plains Entities or any of their respective
properties, except for any such violations which, individually or in the
aggregate, would not have a material adverse effect upon the Unitholders or the
operations conducted in the State of Texas by the Plains Parties taken as a
whole.
(xxviii) Each of the Conveyance Agreements relating to the transfer of
property in the State of Texas, is a valid and legally binding agreement of the
parties thereto under the laws of the State of Texas enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general application relating to
or affecting creditors' rights generally and to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); each of the Conveyance Agreements is in a form legally
sufficient as between the parties thereto to convey to the transferee thereunder
all of the right, title and interest of the transferor stated therein in and to
the properties located in the State of Texas, as described in the Conveyance
Agreements, subject to the conditions, reservations and limitations contained in
the Conveyance Agreements, except motor vehicles or other property requiring
conveyance of certificated title as to which the Conveyance Agreements are
legally sufficient to compel delivery of such certificated title.
(xxix) Each of the deeds and assignments (including, without limitation,
the form of the exhibits and schedules thereto) is in a form legally sufficient
for recordation in the appropriate public offices of the State of Texas, to the
extent such recordation is required, and, upon proper recordation of any of such
deeds and assignments in the State of Texas, will constitute notice to all third
parties under the recordation statutes of the State of Texas concerning record
title to the assets transferred thereby; recordation in the office of the County
Clerk for each county in which either Operating Partnership or Gathering LLC
owns property is the appropriate public office in the State of Texas for the
recordation of deeds and assignments of interests in real property located in
such county.
(xxx) To the knowledge of such counsel, each of the Plains Entities
which is subject to regulation as an interstate common carrier pipeline is
conducting business consistent with its common carrier classification in all
material respects and is in material
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compliance with all applicable federal statutes, rules and regulations
pertaining thereto, including but not limited to, all tariff and rate
requirements.
(xxxi) To the knowledge of such counsel, each of the Plains Entities
which is subject to regulation by the State of Texas as a common carrier
pipeline is conducting its business consistent with its common carrier
classification in all material respects and is in material compliance with all
applicable Texas statutes, rules and regulations pertaining thereto, including
but not limited to, all safety and environmental requirements. As a result of
the conveyance of interstate common carrier pipeline assets included in the
assets transferred to the Operating Partnerships and Gathering LLC pursuant to
the Conveyance Agreements, the Operating Partnerships and Gathering LLC are
entitled to exercise the power of eminent domain to secure rights-of-way
necessary to operate such pipeline assets in the State of Texas.
(xxxii) The statements in the Registration Statement and Prospectus
under the captions "The Transactions," "Cash Distribution Policy," "Management's
Discussion and Analysis of Financial Condition and Results of Operations--The
Partnership--Capital Resources Liquidity and Financial Condition," "Business--
Regulation," "Business--Environmental Regulation," "Certain Relationships and
Related Transactions," "Conflicts of Interest and Fiduciary Responsibilities,"
"Description of the Common Units" and "The Partnership Agreement," insofar as
they constitute descriptions of the Operative Agreements or refer to statements
of law or legal conclusions, are accurate and complete in all material respects,
and the Units, the Common Units, the Subordinated Units and Incentive
Distribution Rights conform in all material respects to the descriptions thereof
contained in the Registration Statement and Prospectus under the captions
"Prospectus Summary--The Offering," "Cash Distribution Policy," "Description of
the Common Units" and "The Partnership Agreement".
(xxxiii) The opinion of Xxxxxxx & Xxxxx L.L.P. that is filed as Exhibit
8.1 to the Registration Statement is confirmed and the Underwriters may rely
upon such opinion as if it were addressed to them.
(xxxiv) The Registration Statement was declared effective under the Act
on _______________, 1998; to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or threatened by the
Commission; and any required filing of the Prospectus pursuant to Rule 424(b)
has been made in the manner and within the time period required by such Rule.
(xxxv) The Registration Statement and the Prospectus (except for the
financial statements and the notes and the schedules thereto and the other
financial, statistical and accounting data included in the Registration
Statement or the Prospectus, as to which
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such counsel need not express any opinion) comply as to form in all material
respects with the requirements of the Act and the rules and regulations
promulgated thereunder.
(xxxvi) To the knowledge of such counsel, (A) there is no legal or
governmental proceeding pending or threatened to which any of the Plains
Entities is a party or to which any of their respective properties is subject
that is required to be disclosed in the Prospectus and is not so disclosed and
(B) there are no agreements, contracts or other documents to which any of the
Plains Entities is a party that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required.
(xxxvii) None of the Plains Parties is an "investment company" or a
company "controlled by" an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
(xxxviii) Upon delivery to the Underwriters of certificates evidencing
the Units issued in the name of the Underwriters and payment by the Underwriters
of the purchase price for the Units, the Underwriters will acquire the Units
free of any adverse claim (as such term is defined in Section 8-302 of the New
York Uniform Commercial Code), assuming that the Underwriters are acting in good
faith and without notice of any adverse claim.
(xxxix) The Common Units have been approved for listing on the NYSE,
subject only to official notice of issuance.
(xl) The offer, sale and issuance of the Sponsor Units to each of the
General Partner and Plains Resources pursuant to the Partnership Agreement and
the offer, sale and issuance of Incentive Distribution Rights to the General
Partner pursuant to the Partnership Agreement are exempt from the registration
requirements of the Act and the securities laws of any state having jurisdiction
with respect thereto.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Plains Entities and
the independent public accountants of the Partnership and your representatives,
at which the contents of the Registration Statement and the Prospectus and
related matters were discussed, and although such counsel has not independently
verified, is not passing on, and is not assuming any responsibility for the
accuracy, completeness or fairness of the statements contained in, the
Registration Statement and the Prospectus (except to the extent specified in the
foregoing opinion), no facts have come to such counsel's attention that lead
such counsel to believe that the Registration Statement (other than (i) the
financial statements included therein, including the notes and schedules thereto
and the auditors' reports thereon and (ii) the other historical, pro forma and
projected financial information and the statistical and accounting information
included therein, as to which such counsel need not comment), as of its
effective date contained an untrue statement of a material fact or omitted to
state a material fact
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required to be stated therein or necessary to make the statements therein not
misleading, or that the Prospectus (other than (i) the financial statements
included therein, including the notes and schedules thereto and the auditors'
reports thereon, and (ii) the other historical, pro forma and projected
financial information and the statistical and accounting information included
therein, as to which such counsel need not comment), as of its issue date and
the Closing Date contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may (A) rely in respect of
matters of fact upon certificates of officers and employees of the Plains
Entities and upon information obtained from public officials, (B) assume that
all documents submitted to them as originals are authentic, that all copies
submitted to them conform to the originals thereof, and that the signatures on
all documents examined by them are genuine, (C) state that their opinion is
limited to federal laws, the Delaware LP Act, the Delaware LLC Act, the DGCL and
the laws of the States of New York and Texas, (D) with respect to the opinions
expressed in paragraphs (ii), (iv), (vi), (viii) and (x) above as to the due
qualification or registration as a foreign limited partnership, corporation or
limited liability company, as the case may be, of each of the Plains Entities,
state that such opinions are based upon the opinions of XxXxxxxxx XxXxxxxx
Yetwin & Xxxx, P.C., Goodin, MacBride, Xxxxxx, Xxxxxxx & Xxxxxxx, LLP, Hinkle,
Cox, Xxxxx, Xxxxxxxx & Xxxxxxx, L.L.P. and Xxxxxxx X. Xxxxxxxx provided pursuant
to (e) below and upon certificates of foreign qualification or registration
provided by the Secretary of State of the States of Arizona, California,
Colorado, Florida, Illinois, Kansas, Louisiana, Mississippi, New Mexico,
Oklahoma and Texas (each of which shall be dated as of a date not more than
fourteen days prior to the Closing Date and shall be provided to you), (E) state
that they express no opinion with respect to the title of any of the Plains
Entities to any of their respective real or personal property, (F) state that
they express no opinion with respect to state or local taxes or tax statutes to
which any of the limited partners of the Partnership or any of the Plains
Parties may be subject and (G) with respect to the opinions expressed in
paragraph (xx) above as to a breach, violation or default under the agreements
and indentures set forth in Exhibit B to this opinion state that such opinions
are based upon the opinion of Fulbright & Xxxxxxxx LLP.
(d) You shall have received on the Closing Date an opinion of Xxxxxxx X.
Xxxxxxxxx, general counsel for Plains Resources, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, to the effect
that:
(i) To the knowledge of such counsel, none of the Plains Entities is in
(A) breach or violation of the provisions of its agreement of limited
partnership, limited liability company operating agreement, certificate or
articles of incorporation or bylaws or other organizational documents or (B)
default (and no event has occurred 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
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violation would, if continued, have a material adverse effect on the financial
condition, business or results of operations of the Plains Parties, taken as a
whole, or could materially impair the ability of any of the Plains Entities to
perform their obligations under this Agreement or the Operative Agreements.
(ii) To the knowledge of such counsel, each of the Plains Entities has
such permits, consents, licenses, franchises and authorizations ("permits")
issued by the appropriate Texas or federal governmental or regulatory
authorities as are necessary to own or lease its properties and to conduct its
business in the manner described in the Prospectus, subject to such
qualifications as may be set forth in the Prospectus, and except for such
permits which, if not obtained would not reasonably be expected to have,
individually or in the aggregate, a material adverse effect upon the operations
conducted in the State of Texas by the Plains Parties, taken as a whole; and, to
the knowledge of such counsel, none of the Plains Entities has received any
notice of proceedings relating to the revocation or modification of any such
permits which, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would reasonably be expected to have a
material adverse effect upon the operations conducted in the State of Texas by
the Plains Parties, taken as a whole.
In addition, such counsel shall state that he has participated in
conferences with officers and other representatives of the Plains Entities and
the independent public accountants of the Partnership and your representatives,
at which the contents of the Registration Statement and the Prospectus and
related matters were discussed, and although such counsel has not independently
verified, is not passing on, and is not assuming any responsibility for the
accuracy, completeness or fairness of the statements contained in, the
Registration Statement and the Prospectus, no facts have come to such counsel's
attention that lead such counsel to believe that the Registration Statement
(other than (i) the financial statements included therein, including the notes
and schedules thereto and the auditors' reports thereon and (ii) the other
historical, pro forma and projected financial information and the statistical
and accounting information included therein, as to which such counsel need not
comment), as of its effective date 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, or that the Prospectus
(other than (i) the financial statements included therein, including the notes
and schedules thereto and the auditors' reports thereon, and (ii) the other
historical, pro forma and projected financial information and the statistical
and accounting information included therein, as to which such counsel need not
comment), as of its issue date and the Closing Date contained an untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
In rendering such opinion, such counsel may (A) rely in respect of
matters of fact upon certificates of officers and employees of the Plains
Entities and upon information obtained from public officials, (B) assume that
all documents submitted to him as originals are authentic, that all
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copies submitted to him conform to the originals thereof, and that the
signatures on all documents examined by them are genuine, (C) state that such
opinions are limited to federal laws and the laws of the State of Delaware and
the State of Texas and (D) state that he expresses no opinion with respect to
state or local taxes or tax statutes.
(e) You shall have received on the Closing Date, an opinion of each of
(i) XxXxxxxxx XxXxxxxx Yetwin & Xxxx, P.C., with respect to the State of
Arizona, (ii) Goodin, MacBride, Xxxxxx, Xxxxxxx & Xxxxxxx, LLP, with respect to
the State of California, (iii) Hinkle, Cox, Xxxxx, Xxxxxxxx & Xxxxxxx, L.L.P.,
with respect to the State of New Mexico and (iv) Xxxxxxx X. Xxxxxxxx, with
respect to the State of Oklahoma, each of which is acting as special local
counsel for the Plains Entities, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, to the effect that:
(i) Each of the Plains Parties has been duly qualified or
registered as a foreign corporation, a foreign limited liability company or
a foreign limited partnership, as the case may be, for the transaction of
business under the laws of [insert applicable state].
(ii) Each Operating Partnership has all requisite power and
authority as a limited partnership under the laws of the State of [insert
applicable state] to own or lease its properties and to conduct its
business in the State of [insert applicable state]; and upon the
consummation of the Transactions (assuming that the Partnership will not be
liable under the laws of the State of Delaware for the liabilities of the
Operating Partnerships and that the Unitholders will not be liable under
the laws of the State of Delaware for liabilities of the Partnership or the
Operating Partnerships), the Partnership will not be liable under the laws
of the State of [insert applicable state] for the liabilities of the
Operating Partnerships, and the Unitholders will not be liable under the
laws of the State of [insert applicable state] for the liabilities of the
Partnership or the Operating Partnerships, except in each case to the same
extent as under the laws of the State of Delaware.
(iii) Assuming that the merger of the Plains Midstream Subsidiaries
into Plains Resources is legally sufficient under applicable Delaware law
to vest in Plains Resources the Midstream Assets, then such merger is
legally sufficient, under the law of the State of [insert applicable
state], to so vest in Plains Resources the Midstream Assets located in the
State of [insert applicable state].
(iv) Assuming that the conversion of Plains All American Pipeline
Company into All American Texas is legally sufficient under the TBCA and
the TRLPA to vest in All American Texas all assets of Plains All American
Pipeline Company and the conversion of All American Texas into All American
Delaware is legally sufficient under the TRLPA and the Delaware LP Act to
vest in All American Delaware all assets of All American Texas, then such
conversion is legally sufficient, under the law of the State of [insert
applicable state], to so vest in All American Delaware the assets of Plains
All American Pipeline Company located in the State of [insert applicable
state].
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(v) The execution, delivery and performance of the Conveyance
Agreements relating to the transfer of property in the State of [insert
applicable state] did not or will not violate any statute of the State of
[insert applicable state] or any rule, regulation or, to the knowledge of
such counsel, any order of any agency of the State of [insert applicable
state] having jurisdiction over any of the Plains Entities or any of their
respective properties, except for any such violations which, individually
or in the aggregate, would not have a material adverse effect upon the
Unitholders or the operations conducted in the State of [insert applicable
state] by the Plains Parties taken as a whole.
(vi) Each of the Conveyance Agreements relating to the transfer of
property in the State of [insert applicable state], assuming the due
authorization, execution and delivery thereof by the parties thereto, to
the extent it is a valid and legally binding agreement under the applicable
law as stated therein and that such law applies thereto, is a valid and
legally binding agreement of the parties thereto under the laws of the
State of [insert applicable state], enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general application relating
to or affecting creditors' rights generally and to general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law); each of the Conveyance Agreements is in a
form legally sufficient as between the parties thereto to convey to the
transferee thereunder all of the right, title and interest of the
transferor stated therein in and to the properties located in the State of
[insert applicable state], as described in the Conveyance Agreements,
subject to the conditions, reservations and limitations contained in the
Conveyance Agreements, except motor vehicles or other property requiring
conveyance of certificated title as to which the Conveyance Agreements are
legally sufficient to compel delivery of such certificated title.
(vii) Each of the deeds and assignments (including, without
limitation, the form of the exhibits and schedules thereto) is in a form
legally sufficient for recordation in the appropriate public offices of the
State of [insert applicable state], to the extent such recordation is
required, and, upon proper recordation of any of such deeds and assignments
in the State of [insert applicable state], will constitute notice to all
third parties under the recordation statutes of the State of [insert
applicable state] concerning record title to the assets transferred
thereby; recordation in the office of the County Clerk for each county in
which either of the Operating Partnerships or Gathering LLC owns property
is the appropriate public office in the State of [insert applicable state]
for the recordation of deeds and assignments of interests in real property
located in such county.
(viii) No permit, consent, approval, authorization, order,
registration, filing or qualification of or with any court, governmental
agency or body of the State of [insert applicable state] having
jurisdiction over the Plains Entities or any of their respective properties
is required for the offering, issuance and sale by the Partnership of the
Units, the execution, delivery and performance of this Agreement or the
Operative Agreements by the Plains Entities party thereto (including the
mortgaging of assets pursuant to the Bank Credit
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Agreement) or the conveyance of properties located in the State of [insert
applicable state] purported to be conveyed to either of the Operating
Partnerships or Gathering LLC pursuant to the Conveyance Agreements or the
consummation of the transactions (including the Transactions) contemplated
by this Agreement and the Operative Agreements, except (A) as may be
required under state securities or "Blue Sky" laws, as to which such
counsel need not express any opinion, (B) for such permits, consents,
approvals and similar authorizations which have been obtained, and (C) for
such permits, consents, approvals and similar authorizations which, if not
obtained, would not, individually or in the aggregate, have a material
adverse effect upon the condition (financial or other), business,
prospects, properties, net worth or results of operations conducted in the
State of [insert applicable state] by the Plains Parties, taken as a whole.
(ix) To the knowledge of such counsel, each of the Plains Entities
has such permits, consents, licenses, franchises and authorizations
("permits") issued by the appropriate [insert applicable state]
governmental or regulatory authorities as are necessary to own or lease its
properties and to conduct its business in the manner described in the
Prospectus, subject to such qualifications as may be set forth in the
Prospectus, and except for such permits which, if not obtained would not
reasonably be expected to have, individually or in the aggregate, a
material adverse effect upon the operations conducted in the State of
[insert applicable state] by the Plains Parties, taken as a whole; and, to
the knowledge of such counsel, none of the Plains Entities has received any
notice of proceedings relating to the revocation or modification of any
such permits which, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would reasonably be expected to
have a material adverse effect upon the operations conducted in the State
of [insert applicable state] by the Plains Parties, taken as a whole.
(x) [As to Arizona, California and New Mexico only] To the
knowledge of such counsel, each of the Plains Entities which is subject to
regulation by the State of [insert applicable state] as a common carrier
pipeline is conducting its business consistent with its common carrier
classification in all material respects and is in material compliance with
all applicable [insert applicable state] statutes, rules and regulations
pertaining thereto, including but not limited to, all safety and
environmental requirements. As a result of the conveyance of interstate
common carrier pipeline assets included in the assets transferred to the
Operating Partnerships and Gathering LLC pursuant to the Conveyance
Agreements, the Operating Partnerships and Gathering LLC are entitled to
exercise the power of eminent domain to secure rights-of-way necessary to
operate such pipeline assets in the State of [insert applicable state].
(xi) [As to Oklahoma only] To the knowledge of such counsel, each
of the Plains Entities which is subject to regulation by the State of
Oklahoma as a common carrier is conducting its business consistent with its
common carrier classification in all material respects and is in material
compliance with all applicable Oklahoma statutes, rules
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and regulations pertaining thereto, including but not limited to, all
safety and environmental requirements.
In rendering such opinion, such counsel may (A) rely in respect of matters
of fact upon certificates of officers and employees of the Plains Entities and
upon information obtained from public officials, (B) assume that all documents
submitted to them as originals are authentic, that all copies submitted to them
conform to the originals thereof, and that the signatures on all documents
examined by them are genuine, (C) state that such opinions are limited to
federal laws and the laws of the State of [insert applicable state], (D) state
that they express no opinion with respect to the title of any of the real or
personal property purported to be transferred by the Conveyance Agreements, and
(E) state that they express no opinion with respect to state or local taxes or
tax statutes to which any of the limited partners of the Partnership or any of
the Plains Entities may be subject.
In rendering such opinion, such counsel shall state that (A) Xxxxxxx &
Xxxxx L.L.P. is hereby authorized to rely upon such opinion letter in connection
with the Transactions as if such opinion letter were addressed and delivered to
them on the date hereof and (B) subject to the foregoing, such opinion letter
may be relied upon only by the Underwriters and its counsel in connection with
the Transactions and no other use or distribution of this opinion letter may be
made without such counsel's prior written consent.
(f) You shall have received on the Closing Date an opinion of Xxxxx &
Xxxxx, L.L.P., counsel for the Underwriters, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, with respect
to the issuance and sale of the Units, the Registration Statement and the
Prospectus (together with any supplement or amendment thereto) and other related
matters as the Representatives may reasonably require.
(g) You shall have received letters addressed to you, as Representatives
of the several Underwriters, and dated the date hereof and the Closing Date from
PriceWaterhouseCoopers LLP, independent certified public accountants,
substantially in the forms heretofore approved by you.
(h) (i) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or taken or, to the knowledge of the Partnership and the General
Partner, shall be threatened by the Commission at or prior to the Closing Date;
(ii) there shall not have been any change in the partners' capital or
shareholder's equity of the Partnership, the Operating Partnerships or the
General Partner, as the case may be, nor any material increase in the short-term
or the long-term debt of the Partnership, the Operating Partnerships or the
General Partner (other than in the ordinary course of business) from that set
forth or contemplated in the Registration Statement or the Prospectus (or any
amendment or supplement thereto); (iii) there shall not have been, since the
respective dates as of which information is given in the Registration Statement
and the Prospectus (or any amendment or supplement thereto), except as may
otherwise be stated in the Registration Statement and the Prospectus (or any
amendment or supplement thereto), any material adverse change in or affecting
the condition (financial or other), business, prospects, properties, net worth
or results of operations
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of the Plains Parties, taken as a whole; (iv) the Plains Parties shall not have
any liabilities or obligations, direct or contingent (whether or not in the
ordinary course of business), that are material to the Plains Parties taken as a
whole other than those reflected in the Registration Statement or the Prospectus
(or any amendment or supplement thereto); and (v) all the representations and
warranties of the Plains Entities contained in this Agreement shall be true and
correct on and as of the date hereof and on and as of the Closing Date as if
made on and as of the Closing Date.
(i) The Plains Entities shall not have failed at or prior to the Closing
Date to have performed or complied in all material respects with any of their
agreements herein contained and required to be performed or complied with by
them hereunder at or prior to the Closing Date.
(j) The NYSE shall have approved the Units for inclusion, subject only
to official notice of issuance and evidence of satisfactory distribution.
(k) The Plains Entities shall have furnished or caused to be furnished
to you such further certificates and documents as you shall have reasonably
requested.
(l) Prior to or simultaneously with the sale of the Units on the Closing
Date, (i) the conveyance of assets to the Operating Partnerships and Gathering
LLC contemplated in the Conveyance Agreements shall have been consummated, (ii)
each of the Bank Credit Agreement and the Letter of Credit Facility shall have
been executed and delivered and become effective in substantially the form filed
as an exhibit to the Registration Statement, (iii) the transactions contemplated
by the Midstream Merger Agreement and the CT&T Merger Agreement shall have been
consummated and (iv) the conversion of Plains All American Pipeline Company into
All American, L.P., shall have been consummated.
(m) There shall have been furnished to you at the Closing Date a
certificate reasonably satisfactory to you, signed on behalf of the Partnership
by the General Partner by the President or the Executive Vice President and the
Chief Financial Officer thereof to the effect that: (A) the representations and
warranties of each of the Partnership, the General Partner, the Operating
Partnerships and Gathering LLC contained in this Agreement are true and correct
at and as of the Closing Date as though made at and as of the Closing Date; (B)
each of the Partnership, the General Partner, the Operating Partnerships and
Gathering LLC has in all material respects performed all obligations required to
be performed by it pursuant to the terms of this Agreement at or prior to the
Closing Date; (C) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been instituted
or taken or, to the knowledge of any of the Partnership, the General Partner,
the Operating Partnerships and Gathering LLC, threatened by the Commission, and
all requests for additional information on the part of the Commission have been
complied with or otherwise satisfied; (D) the Common Units have been duly
approved for listing, subject to official notice of issuance, on the NYSE; and
(E) no event contemplated by subsection (h) of this Section 8 in respect of the
Partnership, the Operating Partnerships or the General Partner shall have
occurred.
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(n) There shall have been furnished to you at the Closing Date, a
certificate reasonably satisfactory to you, signed on behalf of Plains Resources
by the President or a Vice President thereof, respectively, to the effect that
(A) the representations and warranties of Plains Resources contained in this
Agreement are true and correct at and as of the Closing Date as though made at
and as of the Closing Date and (B) Plains Resources has in all material respects
performed all obligations required to be performed by it pursuant to the terms
of this Agreement at or prior to the Closing Date;
(o) On or prior to the date hereof, the Partnership shall have furnished
to you a letter substantially in the form of Exhibit C hereto from each officer
and each director of the General Partner.
All such opinions, certificates, letters and other documents referred
to in this Section 8 will be in compliance with the provisions hereof only if
they are reasonably satisfactory in form and substance to you and your counsel.
The Partnership shall furnish to the Representatives conformed copies of such
opinions, certificates, letters and other documents in such number as they shall
reasonably request.
The several obligations of the Underwriters to purchase Additional Units
hereunder are subject to the satisfaction on and as of any Option Closing Date
of the conditions set forth in this Section 8, except that, if any Option
Closing Date is other than the Closing Date, the certificates, opinions and
letters referred to in paragraphs (c) through (g), (k), (m) and (n) shall be
dated the Option Closing Date in question and the opinions called for by
paragraphs (c), (d) and (f), as applicable, shall be revised to reflect the sale
of Additional Units.
9. Expenses. The Partnership agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by it of
its obligations hereunder: (i) the preparation, printing or reproduction, and
filing with the Commission of the Registration Statement (including financial
statements and exhibits thereto), each Prepricing Prospectus, the Prospectus,
and each amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery (including postage, air freight charges and charges
for counting and packaging) of such copies of the Registration Statement, each
Prepricing Prospectus, the Prospectus, and all amendments or supplements to any
of them as may be reasonably requested for use in connection with the offering
and sale of the Units; (iii) the preparation, printing, authentication, issuance
and delivery of certificates for the Units, including any stamp taxes in
connection with the original issuance and sale of the Units; (iv) the printing
(or reproduction) and delivery of this Agreement, the preliminary and
supplemental Blue Sky Memoranda, and all other agreements or documents printed
(or reproduced) and delivered in connection with the offering of the Units; (v)
the registration of the Common Units under the Exchange Act and the listing of
the Common Units on the NYSE; (vi) the registration or qualification of the
Units for offer and sale under the securities or Blue Sky laws of the several
states as provided in Section 5(g) hereof (including the reasonable fees,
expenses and disbursements of counsel for the Underwriters relating to the
preparation, printing or reproduction, and delivery of the preliminary and
supplemental Blue Sky Memoranda and such registration and qualification); (vii)
the
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filing fees and the reasonable fees and expenses of counsel for the Underwriters
in connection with any filings required to be made with the National Association
of Securities Dealers, Inc.; (viii) the transportation and other expenses
incurred by or on behalf of officers and employees of the Partnership in
connection with presentations to prospective purchasers of the Units; and (ix)
the fees and expenses of the Partnership's accountants and the fees and expenses
of counsel (including local and special counsel) for the Partnership.
It is understood, however, that except as otherwise provided in this
Section 9 and Section 5(j) hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, transfer taxes on any
resale of the Units by any Underwriter, any advertising expenses connected with
any offers they may make and the transportation and other expenses incurred by
the Underwriters on their own behalf in connection with presentations to
prospective purchasers of the Units.
10. Effective Date of Agreement. This Agreement shall become effective:
(i) upon the execution and delivery hereof by the parties hereto or (ii) if, at
the time this Agreement is executed and delivered, it is necessary for the
Registration Statement or a post-effective amendment thereto to be declared
effective before the offering of the Units may commence, when notification of
the effectiveness of the Registration Statement or such post-effective amendment
has been released by the Commission. Until such time as this Agreement shall
have become effective, it may be terminated by the Partnership by notifying you,
or by you, as Representatives of the several Underwriters, by notifying the
Partnership.
If any one or more of the Underwriters shall fail or refuse to purchase
Units which it or they are obligated to purchase hereunder on the Closing Date,
and the aggregate number of Units which such defaulting Underwriter or
Underwriters are obligated but fail or refuse to purchase is not more than one-
tenth of the aggregate number of the Units which the Underwriters are obligated
to purchase on the Closing Date, each non-defaulting Underwriter shall be
obligated, severally, in the proportion which the number of Firm Units set forth
opposite its name in Schedule I hereto bears to the aggregate number of Firm
Units set forth opposite the names of all non-defaulting Underwriters or in such
other proportion as you may specify in accordance with Section 20 of the Master
Agreement Among Underwriters of Xxxxxxx Xxxxx Barney Inc., to purchase the Units
which such defaulting Underwriter or Underwriters are obligated, but fail or
refuse, to purchase. If any one or more of the Underwriters shall fail or refuse
to purchase Units which it or they are obligated to purchase on the Closing Date
and the aggregate number of Units with respect to which such default occurs is
more than one-tenth of the aggregate number of Units which the Underwriters are
obligated to purchase on the Closing Date and arrangements satisfactory to you
and the Partnership for the purchase of such Units by one or more non-defaulting
Underwriters or other party or parties approved by you and the Partnership are
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any party hereto (other than the defaulting
Underwriter). In any such case which does not result in termination of this
Agreement, either you or the Partnership shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the
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Prospectus or any other documents or arrangements may be effected. If any one or
more of the Underwriters shall fail or refuse to purchase Additional Units which
it or they are obligated to purchase hereunder on the Option Closing Date, each
non-defaulting Underwriter shall be obligated, severally, in the proportion
which the number of Firm Units set forth opposite its name in Schedule I hereto
bears to the aggregate number of Firm Units set forth opposite the names of all
non-defaulting Underwriters or in such other proportion as you may specify in
accordance with Section 20 of the Master Agreement Among Underwriters of Xxxxxxx
Xxxxx Xxxxxx Inc., to purchase the Additional Units which such defaulting
Underwriter or Underwriters are obligated, but fail or refuse, to purchase. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any such default of any such Underwriter under this
Agreement. The term "Underwriter" as used in this Agreement includes, for all
purposes of this Agreement, any party not listed in Schedule I hereto who, with
your approval and the approval of the Partnership, purchases Units which a
defaulting Underwriter is obligated, but fails or refuses, to purchase.
Any notice under this Section 10 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
11. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to any Plains Entity, by notice to the Partnership, if prior to the
Closing Date or any Option Closing Date (if different from the Closing Date and
then only as to the Additional Units), as the case may be, (i) trading in
securities generally on the New York Stock Exchange, the American Stock Exchange
or the Nasdaq National Market shall have been suspended or materially limited,
(ii) a general moratorium on commercial banking activities in New York or Texas
shall have been declared by either federal or state authorities, or (iii) there
shall have occurred any outbreak or escalation of hostilities or other
international or domestic calamity, crisis or change in political, financial or
economic conditions, the effect of which on the financial markets of the United
States is such as to make it, in your judgment, impracticable or inadvisable to
commence or continue the offering of the Units at the offering price to the
public set forth on the cover page of the Prospectus or to enforce contracts for
the resale of the Units by the Underwriters. Notice of such termination may be
given to the Partnership by telegram, telecopy or telephone and shall be
subsequently confirmed by letter.
12. Information Furnished by the Underwriters. The statements set forth
in the last paragraph on the cover page, the stabilization legend on the inside
cover page, and the statements in the first, fifth, seventh and ninth paragraphs
and the third sentence of the seventh paragraph under the caption "Underwriting"
in any Prepricing Prospectus and in the Prospectus, constitute the only
information furnished by or on behalf of the Underwriters through you as such
information is referred to in Sections 6(a) and 7 hereof.
13. Miscellaneous. Except as otherwise provided in Sections 5, 7, 10 and
11 hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to any of the Plains Entities, at the
office of the Partnership at 000 Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000,
Attention: Xxxxxxx X. Xxxxxxxxx, or (ii) if to you, as Representatives of the
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several Underwriters, care of Xxxxxxx Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager, Investment Banking Division.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Plains Entities, their directors and officers, and the
other controlling persons referred to in Section 7 hereof and their respective
successors and assigns, to the extent provided herein, and no other person shall
acquire or have any right under or by virtue of this Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in this Agreement
shall include a purchaser from any Underwriter of any of the Units in his status
as such purchaser.
14. Applicable Law; Counterparts. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
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Please confirm that the foregoing correctly sets forth the agreement
among the Partnership, the Operating Partnerships, All American Pipeline
Company, the General Partner and Plains Resources and the several Underwriters.
Very truly yours,
PLAINS ALL AMERICAN PIPELINE, L.P.
By: PLAINS ALL AMERICAN INC.
its General Partner
By:
---------------------------
Name:
Title:
PLAINS MARKETING, L.P.
By: PLAINS ALL AMERICAN INC.
its General Partner
By:
---------------------------
Name:
Title:
ALL AMERICAN, L.P.
By: PLAINS ALL AMERICAN INC.
its General Partner
By:
---------------------------
Name:
Title:
ALL AMERICAN PIPELINE COMPANY
By:
---------------------------
Name:
Title:
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PLAINS ALL AMERICAN INC.
By:
--------------------------------
Name:
Title:
PLAINS RESOURCES INC.
By:
--------------------------------
Name:
Title:
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Underwriters named in Schedule I
hereto.
XXXXXXX XXXXX BARNEY INC.
PAINEWEBBER INCORPORATED
X.X. XXXXXXX & SONS, INC.
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION
XXXXXXX, SACHS & CO.
XXXX XXXXXXXX XXXXXXX, a division of
Xxxx Xxxxxxxx Incorporated
ING BARING XXXXXX XXXX LLC
As Representatives of the Several Underwriters
By: XXXXXXX XXXXX BARNEY INC.
By:
------------------------------
Managing Director
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SCHEDULE I
Plains All American Pipeline, L.P.
Number of Firm Units
Underwriter to be Purchased
----------- --------------------
Xxxxxxx Xxxxx Xxxxxx Inc.............................................
PaineWebber Incorporated.............................................
X.X. Xxxxxxx & Sons, Inc.............................................
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation..................
Xxxxxxx, Sachs & Co..................................................
Xxxx Xxxxxxxx Xxxxxxx, a division of Xxxx Xxxxxxxx Incorporated......
ING Baring Xxxxxx Xxxx LLC...........................................
Total 12,782,609
==========
EXHIBIT A
Entity Jurisdiction in which registered or qualified
------ ---------------------------------------------
Partnership
Plains Marketing, L.P. Arizona, California, Colorado, Florida, Illinois, Kansas, Louisiana,
Mississippi, New Mexico, Oklahoma, Texas
All American, L.P. Arizona, California, New Mexico, Texas
General Partner Arizona, California, Colorado, Florida, Illinois, Kansas, Louisiana,
Mississippi, New Mexico, Oklahoma, Texas
Plains Resources California, Colorado, Florida, Kansas, Louisiana, Mississippi, New
Mexico, Oklahoma, Texas
Gathering LLC California, Oklahoma, Texas
-1-
EXHIBIT B
(i) The indenture dated as of March 15, 1996, among Plains Resources, the
subsidiary guarantors named therein and Texas Commerce Bank National
Association, as Trustee for Plains Resources's 10 1/4% Senior
Subordinated Notes due 2006, Series A and Series B
(ii) The indenture dated as of July 21, 1997 among Plains Resources, the
subsidiary guarantors named therein and Texas Commerce Bank National
Association, as Trustee for Plains Resources's 10 1/4% Senior
Subordinated Notes due 2006, Series C and Series D.
(iii) The First Supplemental Indenture dated as of July 15, 1998, between
Plains Resources and Chase Bank of Texas, National Association (formerly
known as Texas Commerce Bank National Association), as Trustee.
(iv) The Fourth Amended and Restated Credit Agreement dated as of May 22,
1998, among Plains Resources and ING (U.S.) Capital Corporation, et al.
(v) The Credit Agreement dated as of July 30, 1998, between the General
Partner and ING (U.S.) Capital Corporation, et al.
(vi) The Credit Agreement dated as of July 30, 1998, between Plains Marketing
& Transportation Inc. and BankBoston, N.A., et al.
-1-
EXHIBIT C
[Letterhead of officer, director or holder of Common Units or
Subordinated Units]
Plains All American Pipeline, L.P.
Public Offering of Common Units
-------------------------------
Xxxxxxx Xxxxx Xxxxxx Inc.
PaineWebber Incorporated
X.X. Xxxxxxx & Sons, Inc.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
Xxxxxxx, Sachs & Co.
Xxxx Xxxxxxxx Xxxxxxx, a Division of
Xxxx Xxxxxxxx Incorporated
ING Baring Xxxxxx Xxxx LLC
c/o Xxxxxxx Xxxxx Barney, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement") among Plains All American
Pipeline, L.P., a Delaware limited partnership (the "Partnership"), Plains
Marketing, L.P., All American, L.P, Plains All American Inc., Plains Resources
Inc., Xxxxxxx Xxxxx Xxxxxx Inc., PaineWebber Incorporated, X.X. Xxxxxxx & Sons,
Inc., Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, Xxxxxxx, Sachs & Co.,
Xxxx Xxxxxxxx Xxxxxxx, a divisions of Xxxx Xxxxxxxx Incorporated and ING Baring
Xxxxxx Xxxx LLC as representatives of t[Bhe underwriters, relating to an
underwritten public offering of common units representing limited partner
interests (the "Common Units") of the Partnership.
To induce you to enter into the Underwriting Agreement, the
undersigned agrees that it will not offer, sell, contract to sell or otherwise
dispose of any Common Units or Subordinated Units (as defined in the
Underwriting Agreement), any securities that are convertible into, or
exercisable or exchangeable for, or that represent the right to receive, Common
Units or Subordinated Units or any securities that are senior to or pari passu
with Common Units for a period of 180 days after the date of the Prospectus (as
defined in the Underwriting Agreement) without the prior written consent of
Xxxxxxx Xxxxx Barney Inc.
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If for any reason the Underwriting Agreement is terminated before the
Closing Date (as defined in the Underwriting Agreement), the agreement set forth
above shall likewise be terminated.
Yours very truly,
[Signature of officer, director or common
Unitholder]
[Name and address of officer, director or common
Unitholder]
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