329,000 Common Units
XXXXXX XXXXXX ENERGY PARTNERS, L.P.
Representing Limited Partner Interests
UNDERWRITING AGREEMENT
August 18, 1997
PaineWebber Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxx Xxxxxx Energy Partners, L.P., a Delaware limited partnership (the
"Partnership"), proposes to sell common units representing limited partner
interests in the Partnership (the "Common Units") in an aggregate amount of
329,000 Common Units (the "Units") to PaineWebber Incorporated (the
"Underwriter").
The initial public offering price per Common Unit for the Units and
the purchase price per Common Unit for the Units to be paid by the Underwriter
shall be agreed upon by the Partnership and the Underwriter, and such agreement
shall be set forth in a separate written instrument substantially in the form of
Exhibit A hereto (the "Price Determination Agreement"). The Price Determination
Agreement may take the form of an exchange of any standard form of written
telecommunication among the Partnership and the Underwriter and shall specify
such applicable information as is indicated in Exhibit A hereto. The offering of
the Units will be governed by this Agreement, as supplemented by the Price
Determination Agreement. From and after the date of the execution and delivery
of the Price Determination Agreement, this Agreement shall be deemed to
incorporate, and, unless the context otherwise indicates, all references
contained herein to "this Agreement" and to the phrase "herein" shall be deemed
to include the Price Determination Agreement.
Each of the Partnership, Xxxxxx Xxxxxx Operating L.P. "A", a
Delaware limited partnership ("Operating Partnership-A"), Xxxxxx Xxxxxx
Operating L.P. "B", a Delaware limited partnership ("Operating Partnership-B"
and with Operating Partnership-A, the "Operating Partnerships"), and Kinder
Xxxxxx X.X., Inc., a Delaware corporation (in its individual capacity and in its
capacity as the general partner of the Partnership and each of the Operating
Partnerships, the "General Partner") confirms as
follows its agreements with the Underwriter. The General Partner, the
Partnership and the Operating Partnerships are collectively referred to herein
as the "Xxxxxx Xxxxxx Entities."
1. Agreement to Sell and Purchase.
(a) On the basis of the representations, warranties and agreements
of the Partnership herein contained and subject to all the terms and conditions
of this Agreement, the Partnership agrees to sell to the Underwriter, and the
Underwriter agrees to purchase from the Partnership, at the purchase price per
Common Unit for the Units to be agreed upon by the Underwriter and the
Partnership in accordance with Section 1(c) hereof and set forth in the Price
Determination Agreement, the Units.
(b) The initial public offering price per Common Unit for the Units
and the purchase price per Common Unit for the Units to be paid by the
Underwriter shall be agreed upon and set forth in the Price Determination
Agreement, which shall be dated the date hereof.
2. Delivery and Payment. Delivery of the Units shall be made to the
Underwriter at the office of PaineWebber Incorporated, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, against payment of the purchase price by
wire transfer of Federal Funds or similar same day funds to an account
designated in writing by the Partnership to the Underwriter at least one
business day prior to the Closing Date (as hereinafter defined). Such payment
shall be made at 10:00 a.m., New York City time, on the third business day (or
fourth business day, if the Price Determination Agreement is executed after 4:30
p.m.) after the date on which the first bona fide offering of the Units to the
public is made by the Underwriter or at such time on such other date, not later
than ten business days after such date, as may be agreed upon by the Partnership
and the Underwriter (such date is hereinafter referred to as the "Closing
Date").
Certificates evidencing the Units shall be in definitive form and
shall be registered in such names and in such denominations as the Underwriter
shall request at least two business days prior to the Closing Date by written
notice to the Partnership. For the purpose of expediting the checking and
packaging of certificates for the Units, the Partnership agrees to make such
certificates available for inspection at least 24 hours prior to the Closing
Date. The cost of original issue tax stamps, if any, in connection with the
issuance and delivery of the Units by the Partnership to the Underwriter shall
be borne by the Partnership. The Partnership will pay and save the Underwriter
and any subsequent holder of the Units harmless from any and all liabilities
with respect to or resulting from any failure or delay in paying Federal and
state stamp and other transfer taxes, if any, which may be payable or determined
to be payable in connection with the original issuance or sale to the
Underwriter of the Units.
2
3. Representations and Warranties of the Xxxxxx Xxxxxx Entities.
Each of the Xxxxxx Xxxxxx Entities represents, warrants and covenants to the
Underwriter that:
(a) The Partnership meets the requirements for use of Form S-3 and a
registration statement (Registration No. 333-25997) on Form S-3 relating to the
Units, and such amendments to such registration statement as may have been
required to the date of this Agreement, has been prepared by the Partnership
under the provisions of the Securities Act of 1933, as amended (the "Act"), and
the rules and regulations (collectively referred to as the "Rules and
Regulations") of the Securities and Exchange Commission (the "Commission")
thereunder, and has been filed with the Commission. Such registration statement
has been declared effective by the Commission. Copies of such registration
statement and amendments have been delivered to the Underwriter. The term
"Registration Statement" means the registration statement, including all
financial statements and exhibits and all documents incorporated or deemed
incorporated therein by reference, as from time to time amended or supplemented
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), Rule 430A and Rule 434 of the Rules and Regulations, or otherwise, and
any registration statement filed under Rule 462 of the Rules and Regulations as
such registration statement may be amended from time to time. The term
"Prospectus" means the prospectus constituting a part of the Registration
Statement and any amendments or supplements to such prospectus, including
without limitation the prospectus supplement filed with the Commission in
connection with the proposed sale of Units contemplated by this Agreement (the
"Prospectus Supplement"), through the date of such Prospectus Supplement;
provided, however, that if any revised prospectus or prospectus supplement,
including the Prospectus Supplement, shall be provided to the Underwriter by the
Partnership for use in connection with the offering of the Units that differs
from the Prospectus (whether or not such revised prospectus or prospectus
supplement is required to be filed by the Partnership with the Commission
pursuant to Rule 424(b) of the Rules and Regulations), the term "Prospectus"
shall refer to such revised prospectus or prospectus supplement, as the case may
be, from and after the time it is first provided to the Underwriter for such
use. Any reference herein to the Registration Statement or the Prospectus shall
be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the Exchange Act,
on or before the date hereof or are so filed hereafter. Any reference herein to
the terms "amend," "amendment" or "supplement" with respect to the Registration
Statement or the Prospectus shall be deemed to refer to and include any such
document filed or to be filed under the Exchange Act after the date of the
Prospectus, and deemed to be incorporated therein by reference.
(b) On the date the Registration Statement was declared effective by
the Commission (the "Effective Date"), at all times subsequent to and including
the Closing Date and when any post-effective amendment to the Registration
Statement becomes effective or any amendment or supplement to the Prospectus is
filed with the
3
Commission, the Registration Statement and the Prospectus (as amended or as
supplemented if the Partnership shall have filed with the Commission any
amendment or supplement thereto), including the financial statements included or
incorporated by reference in the Prospectus or the Registration Statement, did
or will comply, in all material respects, with all applicable provisions of the
Act, the Exchange Act, the rules and regulations thereunder (the "Exchange Act
Rules and Regulations") and the Rules and Regulations and will contain all
statements required, in all material respects, to be stated therein in
accordance with the Act, the Exchange Act, the Exchange Act Rules and
Regulations and the Rules and Regulations. On the Effective Date and when any
post-effective amendment to the Registration Statement becomes effective, no
part of the Registration Statement or any such amendment did or will contain any
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 not
misleading. At the Effective Date, the date the Prospectus or any amendment or
supplement to the Prospectus is filed with the Commission and at the Closing
Date, the Prospectus did not and will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. The foregoing representations and warranties in this Section 3(b) do
not apply to any statements or omissions made in reliance on and in conformity
with information relating to the Underwriter furnished in writing to the
Partnership by the Underwriter specifically for inclusion in the Registration
Statement or Prospectus or any amendment or supplement thereto. For all purposes
of this Agreement, the information contained in the Prospectus Supplement under
the caption "Underwriting" constitutes the only information relating to the
Underwriter furnished in writing to the Partnership by the Underwriter
specifically for inclusion in the Registration Statement or the Prospectus. The
Partnership has not distributed any offering material in connection with the
offering or sale of the Units other than the Registration Statement and the
Prospectus.
(c) The documents which are incorporated by reference in the
Registration Statement and the Prospectus or from which information is so
incorporated by reference, when they become effective or were filed with the
Commission, as the case may be, complied in all material respects with the
requirements of the Act or the Exchange Act, as applicable, the Exchange Act
Rules and Regulations and the Rules and Regulations; and any documents so filed
and incorporated by reference subsequent to the Closing Date shall, when they
are filed with the Commission, conform in all material respects with the
requirements of the Act and the Exchange Act, as applicable, the Exchange Act
Rules and Regulations and the Rules and Regulations.
(d) The Partnership is, and at the Closing Date will be, a limited
partnership duly formed, validly existing and in good standing under the laws of
the State of Delaware. The Partnership has, and at the Closing Date will have,
all necessary partnership power and authority to conduct the activities
conducted by it, to own or lease all the assets owned or leased by it and to
conduct its business as described in the
4
Registration Statement and the Prospectus. The Partnership is, and at the
Closing Date will be, duly licensed or qualified to do business and in good
standing as a foreign partnership in all jurisdictions in which the nature of
the activities conducted by it or the character of the assets owned or leased by
it makes such licensing or qualification necessary (except where the failure to
be so licensed or qualified will not have a material adverse effect on the
condition (financial or other), results of operations or business of the Xxxxxx
Xxxxxx Entities or subject the Partnership or the limited partners of the
Partnership to any material liability or disability). Complete and correct
copies of the certificate of limited partnership and of the Agreement of Limited
Partnership of the Partnership, as amended and restated (the "Partnership
Agreement"), and all amendments thereto have been delivered to the Underwriter,
and no changes therein will be made subsequent to the date hereof and prior to
the Closing Date.
(e) Each of the Operating Partnerships is, and at the Closing Date
will be, a limited partnership duly formed, validly existing and in good
standing under the laws of the State of Delaware. Each of the Operating
Partnerships has, and at the Closing Date will have, all necessary partnership
power and authority to conduct the activities conducted by it, to own or lease
all the assets owned or leased by it and to conduct its business as described in
the Registration Statement and the Prospectus. Each of the Operating
Partnerships is, and at the Closing Date will be, duly licensed or qualified to
do business and in good standing as a foreign partnership in all jurisdictions
in which the nature of the activities conducted by it or the character of the
assets owned or leased by it makes such licensing or qualification necessary
(except where the failure to be so licensed or qualified will not have a
material adverse effect on the condition (financial or other), results of
operations or business of the Xxxxxx Xxxxxx Entities or subject the Partnership
or the limited partners of the Partnership to any material liability or
disability). Complete and correct copies of the certificate of limited
partnership for each of the Operating Partnerships and of the Agreement of
Limited Partnership of Operating Partnership-A, as amended and restated (the
"Operating Partnership-A Agreement"), and the Agreement of Limited Partnership
of Operating Partnership-B, as amended and restated (the "Operating
Partnership-B Agreement" and, together with the Operating Partnership-A
Agreement, the "Operating Partnership Agreements"), and all amendments thereto
have been delivered to the Underwriter, and no changes therein will be made
subsequent to the date hereof and prior to the Closing Date.
(f) Each of the General Partner and Xxxxxx Xxxxxx Natural Gas
Liquids Corp. ("KMNGL Corp."), is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. Each of the
General Partner and KMNGL Corp. has, and at the Closing Date will have, full
power and authority to conduct all the activities conducted by it, to own or
lease all the assets owned or leased by it and to conduct its business as
described in the Registration Statement and the Prospectus. Each of the General
Partner and KMNGL Corp. is, and at the Closing Date will be, duly licensed or
qualified to do business and in good standing as a foreign corporation in all
jurisdictions in which the nature of the activities conducted by it or the
5
character of the assets owned or leased by it makes such licensing or
qualification necessary (except where the failure to be so licensed or qualified
will not have a material adverse effect on the condition (financial or other),
results of operations or business of the Xxxxxx Xxxxxx Entities or subject the
Partnership or the limited partners of the Partnership to any material liability
or disability). Complete and correct copies of the certificate of incorporation
and of the by-laws of the General Partner and KMNGL Corp. and all amendments
thereto have been delivered to the Underwriter, and no changes therein will be
made subsequent to the date hereof and prior to the Closing Date.
(g) To the best knowledge of the Xxxxxx Xxxxxx Entities, each of
Heartland Partnership ("Heartland Partnership") and Mont Belvieu Associates
("Mont Belvieu Associates") is, and at the Closing Date will be, a general
partnership duly formed, validly existing and in good standing under the laws of
the State of Texas. To the best knowledge of the Xxxxxx Xxxxxx Entities, each of
Heartland Partnership and Mont Belvieu Associates has, and at the Closing Date
will have, all necessary partnership power and authority to conduct the
activities conducted by it, to own or lease all the assets owned or leased by it
and to conduct its business as described in the Registration Statement and the
Prospectus. To the best knowledge of the Xxxxxx Xxxxxx Entities, each of
Heartland Partnership and Mont Belvieu Associates is, and at the Closing Date
will be, duly licensed or qualified to do business and in good standing as a
foreign corporation in all jurisdictions in which the nature of the activities
conducted by it or the character of the assets owned or leased by it makes such
licensing or qualification necessary (except where the failure to be so licensed
or qualified will not have a material adverse effect on the condition (financial
or other), results of operations or business of the Xxxxxx Xxxxxx Entities or
subject the Partnership or the limited partners of the Partnership to any
material liability or disability).
(h) The only subsidiaries (as such term is defined in the Rules and
Regulations) of the Partnership or other entities in which the Partnership or
the Operating Partnerships have an equity ownership interest of 50% or more are
those listed on Exhibit B hereto.
(i) Xxxxxx Xxxxxx, Inc., a Delaware corporation formerly known as KC
Liquids Holding Corporation ("KMI"), owns, and at the Closing Date will own, all
of the issued and outstanding shares of capital stock of the General Partner;
such shares of capital stock are duly authorized, validly issued, fully paid and
nonassessable.
(j) Xxxxxxx X. Xxxxxx, Xxxxxx Associates, Inc. ("MAI") and
First Union Corporation ("First Union") are the sole stockholders of KMI. Xx
Xxxxxx owns[71.04%] of the Class A voting stock of KMI. MAI owns [27.65%] of
the Class A voting stock of KMI. First Union owns [1.30%] of the Class A
voting stock and [100.0%] of the Class B nonvoting stock of KMI. All of such
shares of Class A voting
6
and Class B nonvoting stock are duly authorized, validly issued, fully paid and
nonassessable.
(k) The General Partner is the sole general partner of the
Partnership with a 1% general partner interest in the Partnership; such general
partner interest is duly authorized by the Partnership Agreement and was validly
issued to the General Partner; and, the General Partner owns such general
partner interest free and clear of all liens, encumbrances, security interests,
equities, charges or claims (except for such liens, encumbrances, security
interests, equities, charges or claims as are not, individually or in the
aggregate, material or as described in the Registration Statement or the
Prospectus).
(l) The General Partner is the sole general partner of each of the
Operating Partnerships with a 1.0101% general partner interest in each of the
Operating Partnerships; such general partner interests are duly authorized by
the respective Operating Partnership Agreements, and were validly issued to the
General Partner; and, the General Partner owns such general partner interests
free and clear of all liens, encumbrances, security interests, equities, charges
or claims (except for such liens, encumbrances, security interests, equities,
charges or claims as are not, individually or in the aggregate, material or as
described in the Registration Statement or the Prospectus).
(m) At the Closing Date after giving effect to the issuance of the
Units, the capitalization of the Partnership will consist of 6,989,000 Common
Units (excluding up to 160,000 Common Units the sale of which to First Union
Investors, Inc. is pending); such limited partner interests will be the only
limited partner interests of the Partnership that are issued and outstanding at
the Closing Date; all of the outstanding Common Units of the Partnership, have
been duly authorized by the Partnership Agreement, are validly issued and are
fully paid and nonassessable (except as nonassessability may be affected by
certain provisions of the Delaware Revised Limited Partnership Act (the
"Delaware Act")); the Units to be issued and sold by the Partnership hereunder
and the limited partner interests represented thereby have been duly authorized
by the Partnership Agreement and, when issued and delivered to the Underwriter
against payment therefor in accordance with the terms hereof, will have been
validly issued and will be fully paid and nonassessable (except as
nonassessability may be affected by certain provisions of the Delaware Act).
(n) The Partnership is the sole limited partner of each of the
Operating Partnerships with a 98.9899% limited partner interest in each of the
Operating Partnerships; such limited partner interests, in each of such
Partnerships, are duly authorized by the respective Operating Partnership
Agreements, and were validly issued to the Partnership; and, the Partnership
owns such limited partner interests free and clear of all liens, encumbrances,
security interests, equities, charges or claims (except for such liens,
encumbrances, security interests, equities, charges or claims as are not,
individually or in the aggregate, material or as described in the Registration
7
Statement or the Prospectus, including the security interest securing the
guarantee of certain debt of the Operating Partnerships by the Partnership).
(o) The description of the Common Units incorporated by reference in
the Registration Statement and the Prospectus is, and at the Closing Date will
be, complete and accurate in all material respects. There are no preemptive
rights or other rights to subscribe for or to purchase, nor any restrictions
upon the voting or transfer of, any limited partner interests or shares of stock
of any of the Xxxxxx Xxxxxx Entities pursuant to any partnership agreement, any
articles or certificates of incorporation or other governing documents or any
agreement or other instrument to which any of the Xxxxxx Xxxxxx Entities is a
party or by which any of such entities may be bound (and other than the General
Partner's preemptive right contained in the Partnership Agreement, other than
the restrictions on transfer arising from the pledge of the Common Units owned
by the General Partner and as set forth in the Prospectus). The offering and
sale of Units as contemplated by this Agreement does not give rise to any
rights, other than those which have been waived or satisfied, for or relating to
the registration of any Units or other securities of the Partnership. Except for
certain grants made under the Partnership's Executive Compensation Plan, there
are no outstanding options or warrants to purchase any Common Units.
(p) The financial statements and schedules included or incorporated
by reference in the Registration Statement or the Prospectus present fairly the
consolidated financial condition of the Partnership and the General Partner as
of the respective dates thereof and the consolidated results of operations and
cash flows of the Partnership for the respective periods covered thereby, all in
conformity with generally accepted accounting principles applied on a consistent
basis throughout the entire period involved, except as otherwise disclosed in
the Prospectus. No other financial statements or schedules of the Partnership or
the General Partner are required by the Act, the Exchange Act or the Rules and
Regulations to be included in the Registration Statement or the Prospectus. Each
of Xxxxxx Xxxxxxxx LLP and Price Waterhouse LLP (the "Accountants") who have
reported on such financial statements and schedules, are independent accountants
with respect to the Partnership and the General Partner as required by the Act,
Exchange Act, the Rules and Regulations and the Exchange Rules and Regulations.
The statements included in the Registration Statement with respect to the
Accountants pursuant to Rule 509 of Regulation S-K of the Rules and Regulations
are true and correct in all material respects.
(q) Each of the Xxxxxx Xxxxxx Entities maintains a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability
8
for assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(r) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and prior to the Closing
Date, except as set forth in or contemplated by the Registration Statement or
the Prospectus, (i) there has not been and will not have been any material
change in the capitalization of any of the Xxxxxx Xxxxxx Entities, or in the
business, properties, business prospects, condition (financial or otherwise) or
results of operations of each of such entities, arising for any reason
whatsoever and (ii) none of the Xxxxxx Xxxxxx Entities has incurred nor will it
incur any material liabilities or obligations, direct or contingent, nor has it
entered into nor will it enter into any material transactions other than
pursuant to this Agreement and the transactions referred to herein.
(s) None of the Xxxxxx Xxxxxx Entities is, nor at the Closing Date
will be, (i) a "holding company" or a "subsidiary company" of a "holding
company" or an "affiliate" thereof, within the meaning of the Public Utility
Holding Company Act of 1935, as amended, or (ii) an "investment company", a
person "controlled by" an "investment company" or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment company," as such
terms are defined in the Investment Company Act of 1940, as amended.
(t) Except as set forth in the Registration Statement and the
Prospectus, there are no actions, suits or proceedings pending or, to the best
knowledge of the Xxxxxx Xxxxxx Entities, threatened against or affecting any of
the Xxxxxx Xxxxxx Entities or any of their respective officers in their capacity
as such, before or by any Federal or state court, commission, regulatory body,
administrative agency or other governmental body, domestic or foreign, wherein
an unfavorable ruling, decision or finding might materially and adversely affect
any of the Xxxxxx Xxxxxx Entities or the business, properties, business
prospects, condition (financial or otherwise) or results of operations of any of
such entities.
(u) Each of the Xxxxxx Xxxxxx Entities has, and at the Closing Date
will have, (i) all governmental licenses, permits, consents, orders, approvals
and other authorizations necessary to carry on its business as contemplated in
the Prospectus, (ii) complied in all respects with all laws, regulations and
orders applicable to it or its business and (iii) performed all its obligations
required to be performed by it (except, in each case, where the failure to do so
will not have a material adverse effect on the condition (financial or other),
results of operations or business of the Xxxxxx Xxxxxx Entities or subject the
Partnership or the limited partners of the Partnership to any material liability
or disability), and is not, and at the Closing Date will not be, in default,
under any indenture, mortgage, deed of trust, voting trust agreement, loan
agreement, bond, debenture, note agreement, lease, contract or other agreement
or instrument (collectively, a "contract or other agreement") to which it is a
party or by
9
which its property is bound or affected (except where such default will not have
a material adverse effect on the condition (financial or other), results of
operations or business of the Xxxxxx Xxxxxx Entities or subject the Partnership
or the limited partners of the Partnership to any material liability or
disability). To the best knowledge of each of the Xxxxxx Xxxxxx Entities, no
other party under any contract or other agreement to which it is a party is in
default in any respect thereunder (except where such default will not have a
material adverse effect on the condition (financial or other), results of
operations or business of the Xxxxxx Xxxxxx Entities or subject the Partnership
or the limited partners of the Partnership to any material liability or
disability). None of the Xxxxxx Xxxxxx Entities is, nor at the Closing Date will
any of them be, in violation of any provision of their respective agreements of
limited partnership, certificates of incorporation or by-laws (except where such
violation will not have a material adverse effect on the condition (financial or
other), results of operations or business of the Xxxxxx Xxxxxx Entities or
subject the Partnership or the limited partners of the Partnership to any
material liability or disability).
(v) No consent, approval, authorization or order of, or any filing
or declaration with, any court or governmental agency or body is required in
connection with the authorization, issuance, transfer, sale or delivery of the
Units by the Partnership, in connection with the execution, delivery and
performance of this Agreement by the Partnership or in connection with the
taking by the Partnership of any action contemplated hereby, except such as have
been obtained under the Act or the Rules and Regulations and such as may be
required under state securities or Blue Sky laws or the by-laws and rules of the
National Association of Securities Dealers, Inc. (the "NASD") in connection with
the purchase and distribution by the Underwriter of the Units.
(w) Each of the Xxxxxx Xxxxxx Entities has full partnership or
corporate power and authority, as the case may be, to enter into this Agreement.
This Agreement has been duly authorized, executed and delivered by the Xxxxxx
Xxxxxx Entities and constitutes a valid and binding agreement with respect to
each of such entities and is enforceable against each of them in accordance with
the terms hereof. The performance of this Agreement and the consummation of the
transactions contemplated hereby and the application of the net proceeds from
the offering and sale of the Units in the manner set forth in the Prospectus
under "Use of Proceeds" will not result in the creation or imposition of any
lien, charge or encumbrance upon any of the assets of any of the Xxxxxx Xxxxxx
Entities pursuant to the terms or provisions of, or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
or give any other party a right to terminate any of its obligations under, or
result in the acceleration of any obligation under the limited partnership
agreement, the certificate of incorporation or by-laws of any of the Xxxxxx
Xxxxxx Entities, any contract or other agreement to which any of the Xxxxxx
Xxxxxx Entities is a party or by which any of the Xxxxxx Xxxxxx Entities or any
of their properties is bound or affected, or violate or conflict with any
judgment, ruling, decree, order, statute, rule or regulation
10
of any court or other governmental agency or body applicable to the business or
properties of any of the Xxxxxx Xxxxxx Entities (except where such occurrence
will not have a material adverse effect on the condition (financial or other),
results of operations or business of the Xxxxxx Xxxxxx Entities or subject the
Partnership or the limited partners of the Partnership to any material liability
or disability).
(x) Each of the Xxxxxx Xxxxxx Entities has good and marketable title
to all properties and assets described in the Registration Statement and the
Prospectus as owned by it, free and clear of all liens, encumbrances, security
interests, equities, charges or claims (except for such liens, encumbrances,
security interests, equities, charges or claims as are not, individually or in
the aggregate, material or as described in the Registration Statement or the
Prospectus). Each of the Xxxxxx Xxxxxx Entities has valid, subsisting and
enforceable leases for the properties described in the Prospectus as leased by
it, with such exceptions as are not material and do not materially interfere
with the use made and proposed to be made of such properties by such entity.
(y) There is no document or contract of a character required to be
described in the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement which is not described or filed as
required. All such contracts to which any of the Xxxxxx Xxxxxx Entities is a
party have been duly authorized, executed and delivered by the such entity,
constitute valid and binding agreements of such entity and are enforceable
against such entity in accordance with the terms thereof.
(z) No statement, representation, warranty or covenant made by any
of the Xxxxxx Xxxxxx Entities in this Agreement or made in any certificate or
document required by this Agreement to be delivered to the Underwriter was or
will be, when made, inaccurate, untrue or incorrect in any material respect.
(aa) None of the Xxxxxx Xxxxxx Entities nor any of their respective
directors, officers or controlling persons has taken, directly or indirectly,
any action intended, or which might reasonably be expected, to cause or result,
under the Act or otherwise, in, or which has constituted, stabilization or
manipulation of the price of any security of the Partnership to facilitate the
sale or resale of the Units.
(bb) On the Closing Date, the Units will be duly authorized for
listing, subject to official notice of issuance, on the New York Stock Exchange.
(cc) Each of the Xxxxxx Xxxxxx Entities is in compliance with all
federal, state and local employment and labor laws, including, but not limited
to, laws relating to non-discrimination in hiring, promotion and pay of
employees (except where such noncompliance will not have a material adverse
effect on the condition (financial or other), results of operations or business
of the Xxxxxx Xxxxxx Entities or subject the
11
Partnership or the limited partners of the Partnership to any material liability
or disability); no labor dispute with the employees of any of the Xxxxxx Xxxxxx
Entities exists or, to the knowledge of any of such entities, is imminent or
threatened; and none of the Xxxxxx Xxxxxx Entities is aware of any existing,
imminent or threatened labor disturbance by the employees of any of its
principal suppliers, manufacturers or contractors that could result in a
material adverse effect on the condition (financial or otherwise) or on the
earnings, business, properties, business prospects or operations of any of the
Xxxxxx Xxxxxx Entities.
(dd) None of the Xxxxxx Xxxxxx Entities has nor, to their knowledge,
has any employee or agent thereof made any payment of funds to any of the Xxxxxx
Xxxxxx Entities or received or retained any funds therefrom in violation of any
law, rule or regulation of a character required to be disclosed in the
Prospectus.
(ee) The Partnership has complied, and until the completion of the
distribution of the Units will comply, with all of the provisions of (including,
without limitation, filing all forms required by) Section 517.075 of the Florida
Securities and Investor Protection Act and Regulation 3E-900.001 issued
thereunder with respect to the offering and sale of the Units.
(ff) Each of the Xxxxxx Xxxxxx Entities (i) is in compliance with
any and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
imposing liability or standards of conduct concerning any Hazardous Material (as
hereinafter defined) ("Environmental Laws"), (ii) has received all permits,
licenses or other approvals required of them under applicable Environmental Laws
to conduct their respective businesses and (iii) is in compliance with all terms
and conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not result in a material adverse
effect on the condition (financial or otherwise) or on the earnings, business,
properties, business prospects or operations of the Xxxxxx Xxxxxx Entities,
taken as a whole. The term "Hazardous Material" means (A) any "hazardous
substance" as defined by the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, (B) any "hazardous waste" as defined by
the Resource Conservation and Recovery Act, as amended, (C) any petroleum or
petroleum product, (D) any polychlorinated biphenyl and (E) any pollutant or
contaminant or hazardous, dangerous, or toxic chemical, material, waste or
substance regulated under or within the meaning of any other Environmental Law.
(gg) In the ordinary course of its business, each of the Xxxxxx
Xxxxxx Entities conducts a periodic review of the effect of Environmental Laws
on the business, operations and properties of such entity, in the course of
which it identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or
12
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential liabilities to
third parties). Except as set forth in the Registration Statement and the
Prospectus, there are no costs and liabilities associated with or arising in
connection with Environmental Laws as currently in effect (including, without
limitation, costs of compliance therewith) which would have a material adverse
effect on the condition (financial or otherwise) or on the earnings, business,
properties, business prospects or operations of the Xxxxxx Xxxxxx Entities,
taken as a whole.
(hh) The Partnership maintains insurance with respect to its
properties and business of the types and in amounts generally deemed adequate
for its business and consistent with insurance coverage maintained by similar
companies and businesses, all of which insurance is in full force and effect.
(ii) Each of the Xxxxxx Xxxxxx Entities has filed all material
federal, state and foreign income and franchise tax returns and has paid all
taxes shown as due thereon, other than taxes which are being contested in good
faith and for which adequate reserves have been established in accordance with
generally accepted accounting principles ("GAAP"); and none of such entities has
any knowledge of any tax deficiency which has been or might be asserted or
threatened against it. There are no tax returns of any of the Xxxxxx Xxxxxx
Entities that are currently being audited by state, local or federal taxing
authorities or agencies (and with respect to which any of the Xxxxxx Xxxxxx
Entities has received notice), where the findings of such audit, if adversely
determined, would result in a material adverse effect on the condition
(financial or otherwise) or on the earnings, business, properties, business
prospects or operations of the Xxxxxx Xxxxxx Entities, taken as a whole.
(jj) With respect to each employee benefit plan, program and
arrangement (including, without limitation, any "employee benefit plan" as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA")) maintained or contributed to by the Partnership, or with
respect to which the Partnership could incur any liability under ERISA
(collectively, the "Benefit Plans"), no event has occurred and, to the best
knowledge of the Xxxxxx Xxxxxx Entities, there exists no condition or set of
circumstances, in connection with which the Partnership could be subject to any
liability under the terms of such Benefit Plan, applicable law (including,
without limitation, ERISA and the Internal Revenue Code of 1986, as amended) or
any applicable agreement that could materially adversely affect the business,
properties, business prospects, condition (financial or otherwise) or results of
operations of the Xxxxxx Xxxxxx Entities, taken as a whole.
4. Agreements of the Partnership and General Partner. Each of
the Partnership and the General Partner agree with the Underwriter as follows:
13
(a) The Partnership will not, either prior to the Closing Date or
thereafter, during such period as the Prospectus is required by law to be
delivered in connection with sales of the Units by the Underwriter or any
dealer, file any amendment or supplement to the Registration Statement or the
Prospectus, unless a copy thereof shall first have been submitted to the
Underwriter within a reasonable period of time prior to the filing thereof and
the Underwriter shall not have objected thereto in good faith.
(b) The Partnership will notify the Underwriter promptly, and will
confirm such advice in writing, (1) when any post-effective amendment to the
Registration Statement becomes effective, (2) of any request by the Commission
for amendments or supplements to the Registration Statement or the Prospectus or
for additional information, (3) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose or the threat thereof, (4) of the
happening of any event during the period mentioned in the second sentence of
Section 4(d) that in the judgment of the Partnership makes any statement made in
the Registration Statement or the Prospectus untrue in any material respect or
that requires the making of any changes in the Registration Statement or the
Prospectus in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading and (5) of receipt by
the Partnership or any representative or attorney of the Partnership of any
other communication from the Commission relating to the Partnership, the
Registration Statement or the Prospectus. If at any time the Commission shall
issue any order suspending the effectiveness of the Registration Statement, the
Partnership will make every reasonable effort to obtain the withdrawal of such
order at the earliest possible moment.
(c) The Partnership will furnish to the Underwriter, upon request, a
signed copy of the Registration Statement and of any post-effective amendment
thereto, including financial statements and schedules, and all documents filed
under the Exchange Act and deemed to be incorporated by reference into the
Prospectus.
(d) The Partnership will deliver to the Underwriter, as many copies
of the Prospectus or any amendment or supplement thereto as the Underwriter may
reasonably request. The Partnership consents to the use of the Prospectus or any
amendment or supplement thereto by the Underwriter and by all dealers to whom
the Units may be sold, both in connection with the offering or sale of the Units
and for any period of time thereafter during which the Prospectus is required by
law to be delivered in connection therewith. If during such period of time any
event shall occur which in the judgment of the Partnership or counsel to the
Underwriter should be set forth in the Prospectus in order to make any statement
therein, in the light of the circumstances under which it was made, not
misleading, or if it is necessary to supplement or amend the Prospectus to
comply with law, the Partnership will forthwith prepare and duly file with the
Commission an appropriate supplement or amendment thereto, and will deliver
14
to the Underwriter, without charge, such number of copies thereof as the
Underwriter may reasonably request.
(e) Prior to any public offering of the Units by the Underwriter,
the Partnership will cooperate with the Underwriter and counsel to the
Underwriter in connection with the registration or qualification of the Units
for offer and sale under the securities or Blue Sky laws of such jurisdictions
as the Underwriter may request; provided, that in no event shall the Partnership
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 general service of
process in any jurisdiction where it is not now so subject.
(f) During the period of five years commencing on the Closing Date,
the Partnership will, upon request, furnish to the Underwriter a copy of such
financial statements and other periodic and special reports as the Partnership
may from time to time distribute generally to the holders of any class of its
capital stock, and will furnish to the Underwriter a copy of each annual or
other report it shall be required to file with the Commission.
(g) The Partnership will make generally available to holders of its
securities as soon as may be practicable an earnings statement (which need not
be audited but shall be in reasonable detail) for a period of 12 months ended
commencing after the Effective Date, and satisfying the provisions of Section
11(a) of the Act (including Rule 158 of the Rules and Regulations).
(h) Whether or not the transactions contemplated by this Agreement
are consummated or this Agreement is terminated, the Partnership will pay, or
reimburse if paid by the Underwriter, all costs and expenses incident to the
performance of the obligations of the Partnership under this Agreement,
including but not limited to costs and expenses of or relating to (1) the
preparation and delivery of certificates representing the Units, (2) the listing
of the Units on the New York Stock Exchange, (3) counsel to the Partnership
(including any expenses related to the offering of the Units) in excess of
$50,000 and (4) the transfer agent for the Units.
(i) If this Agreement shall be terminated by the Partnership
pursuant to any of the provisions hereof or if for any reason the Partnership
shall be unable to perform its obligations hereunder, the Partnership will
reimburse the Underwriter for all out-of-pocket expenses (including the fees,
disbursements and other charges of counsel to the Underwriter) reasonably
incurred by them in connection herewith.
(j) The Xxxxxx Xxxxxx Entities have not nor will they at any time,
directly or indirectly, take any action intended, or which might reasonably be
expected, to cause or result in, or which will constitute, stabilization of the
price of the Common Units to facilitate the sale or resale of any of the Units.
15
(k) The Partnership will apply the net proceeds from the offering
and sale of the Units to be sold by the Partnership in the manner set forth in
the Prospectus Supplement under "Use of Proceeds."
(l) During the period of 30 days commencing at the Closing Date,
neither the General Partner nor the Partnership will, without the prior written
consent of the Underwriter, directly or indirectly, sell, offer to sell, grant
any option for the sale of, or otherwise dispose of, any Common Units or
securities convertible into Common Units, other than to the Underwriter pursuant
to this Agreement, excluding the sale of up to 160,000 Common Units to First
Union Investors, Inc. as described in the Prospectus. The foregoing sentence
shall not apply to any Common Units issued by the Partnership in connection with
or as payment of any part of or to finance the purchase price for the
acquisition by the Partnership of assets (including by way of purchase of
capital stock or partnership interests), including, without limitation, Common
Units issued by the Partnership to the General Partner in connection with any
such acquisition.
5. Conditions of the Obligations of the Underwriter. In addition
to the execution and delivery of the Price Determination Agreement, the
obligations of the Underwriter hereunder are subject to the following
conditions:
(a) Notification that all filings required by Rule 424 of the Rules
and Regulations shall have been made.
(b) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall be pending or threatened by the Commission, (ii) no order
suspending the effectiveness of the Registration Statement or the qualification
or registration of the Units under the securities or Blue Sky laws of any
jurisdiction shall be in effect and no proceeding for such purpose shall be
pending before or threatened or contemplated by the Commission or the
authorities of any such jurisdiction, (iii) any request for additional
information on the part of the staff of the Commission or any such authorities
shall have been complied with to the satisfaction of the staff of the Commission
or such authorities and (iv) after the date hereof no amendment or supplement to
the Registration Statement or the Prospectus shall have been filed unless a copy
thereof was first submitted to the Underwriter who did not object thereto in
good faith, and the Underwriter shall have received certificates, dated the
Closing Date and signed by the Chief Executive Officer or the Chairman of the
Board of Directors of the General Partner and the Chief Financial Officer of the
General Partner (who may, as to proceedings threatened, rely upon the best of
their information and belief), to the effect of clauses (i), (ii), (iii) and
(iv).
(c) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, (i) there shall not have been,
and no development shall have occurred which could reasonably be expected to
result in, a
16
material adverse change in the general affairs, business, business prospects,
properties, management, condition (financial or otherwise) or results of
operations of the Xxxxxx Xxxxxx Entities, whether or not arising from
transactions in the ordinary course of business, in each case other than as set
forth in or contemplated by the Registration Statement and the Prospectus and
(ii) none of the Xxxxxx Xxxxxx Entities shall have sustained any material loss
or interference with its business or properties from fire, explosion, flood or
other casualty, whether or not covered by insurance, or from any labor dispute
or any court or legislative or other governmental action, order or decree, which
is not set forth in the Registration Statement and the Prospectus, if in the
judgment of the Underwriter any such development makes it impracticable or
inadvisable to consummate the sale and delivery of the Units by the Underwriter
at the initial public offering price.
(d) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there shall have been no
litigation or other proceeding instituted against any of the Xxxxxx Xxxxxx
Entities or any of their respective officers or directors in their capacities as
such, before or by any Federal, state or local court, commission, regulatory
body, administrative agency or other governmental body, domestic or foreign, in
which litigation or proceeding an unfavorable ruling, decision or finding would
materially and adversely affect the business, properties, business prospects,
condition (financial or otherwise) or results of operations of any of the Xxxxxx
Xxxxxx Entities.
(e) Each of the representations and warranties of the Xxxxxx Xxxxxx
Entities contained herein shall be true and correct in all material respects at
the Closing Date, as if made at the Closing Date, and all covenants and
agreements herein contained to be performed on the part of any of the Xxxxxx
Xxxxxx Entities and all conditions herein contained to be fulfilled or complied
with by any of the Xxxxxx Xxxxxx Entities at or prior to the Closing Date, shall
have been duly performed, fulfilled or complied with.
(f) The Underwriter shall have received an opinion, dated the
Closing Date, and satisfactory in form and substance to counsel for the
Underwriter, from Xxxxxxxx & Xxxxxx L.L.P., counsel to the Xxxxxx Xxxxxx
Entities, to the effect set forth in Exhibit C.
(g) The Underwriter shall have received an opinion, dated the
Closing Date, from Xxxxxxx & Xxxxx, L.L.P., counsel to the Underwriter which
opinion shall be satisfactory in all respects to the Underwriter.
(h) On the Closing Date, Xxxxxx Xxxxxxxx LLP shall have furnished to
the Underwriter a letter, dated the date of its delivery, addressed to the
Underwriter and in form and substance satisfactory to the Underwriter,
confirming that they are independent accountants with respect to the Partnership
and the General Partner
17
as required by the Act and the Rules and Regulations, and with respect to
certain financial information contained in the Registration Statement or
incorporated by reference therein.
(i) On the Closing Date, Price Waterhouse LLP shall have furnished
to the Underwriter a letter, dated the date of its delivery, addressed to the
Underwriter and in form and substance satisfactory to the Underwriter,
confirming that they are independent accountants with respect to the Partnership
and the General Partner as required by the Act and the Rules and Regulations,
and with respect to certain financial information contained in the Registration
Statement or incorporated by reference therein.
(j) At the Closing Date, there shall be furnished to the Underwriter
an accurate certificate, dated the date of its delivery, signed by each of the
Chief Executive Officer and the Chief Financial Officer of the General Partner,
in form and substance satisfactory to the Underwriter, to the effect that:
(i) Each signer of such certificate has carefully examined
the Registration Statement and the Prospectus (including any
documents filed under the Exchange Act and deemed to be incorporated
by reference into the Prospectus) and (A) as of the date of such
certificate, such documents are true and correct in all material
respects and do not omit to state a material fact required to be
stated therein or necessary in order to make the statements therein
not untrue or misleading and (B) since the Effective Date, no event
has occurred as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein
not misleading in any material respect and there has been no
document required to be filed under the Exchange Act and the
Exchange Act Rules and Regulations that upon such filing would be
deemed to be incorporated by reference into the Prospectus that has
not been so filed;
(ii) Each of the representations and warranties of the
Xxxxxx Xxxxxx Entities contained in this Agreement were, when
originally made, and are, at the time such certificate is delivered,
true and correct in all material respects;
(iii) Each of the covenants required herein to be performed
by any of the Xxxxxx Xxxxxx Entities on or prior to the delivery of
such certificate has been duly, timely and fully performed and each
condition herein required to be complied with by such Xxxxxx Xxxxxx
Entity on or prior to the date of such certificate has been duly,
timely and fully complied with; and
18
(iv) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, (A) there
has not been, and no development has occurred which could reasonably
be expected to result in, a material adverse change in the general
affairs, business, business prospects, properties, management,
condition (financial or otherwise) or results of operations of the
Xxxxxx Xxxxxx Entities, whether or not arising from transactions in
the ordinary course of business, in each case other than as set
forth in or contemplated by the Registration Statement and the
Prospectus and (B) none of the Xxxxxx Xxxxxx Entities has sustained
any material loss or interference with its business or properties
from fire, explosion, flood or other casualty, whether or not
covered by insurance, or from any labor dispute or any court or
legislative or other governmental action, order or decree, which is
not set forth in the Registration Statement and the Prospectus;
and such other matters as the Underwriter may reasonably
request.
(k) The Units shall be qualified for sale in such states as the
Underwriter may reasonably request, each such qualification shall be in effect
and not subject to any stop order or other proceeding on the Closing Date.
(l) Prior to the Closing Date, the Units shall have been duly
authorized for listing by the New York Stock Exchange subject to official notice
of issuance.
(m) The Partnership shall have furnished to the Underwriter such
certificates, in addition to those specifically mentioned herein, as the
Underwriter may have reasonably requested as to the accuracy and completeness at
the Closing Date of any statement in the Registration Statement or the
Prospectus or any documents filed under the Exchange Act and deemed to be
incorporated by reference into the Prospectus, as to the accuracy at the Closing
Date of the representations and warranties of the Xxxxxx Xxxxxx Entities herein,
as to the performance by each of the Xxxxxx Xxxxxx Entities of their obligations
hereunder, or as to the fulfillment of the conditions concurrent and precedent
to the obligations hereunder of the Underwriter.
6. Indemnification.
(a) The Xxxxxx Xxxxxx Entities will, jointly and severally,
indemnify and hold harmless the Underwriter, the directors, officers, employees
and agents of the Underwriter and each person, if any, who controls the
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, liabilities, expenses
and damages (including, but not limited to, any and all investigative, legal and
other expenses reasonably incurred in connection with, and any and all amounts
paid in settlement of, any action, suit or
19
proceeding between any of the indemnified parties and any indemnifying parties
or between any indemnified party and any third party, or otherwise, or any claim
asserted), as and when incurred, to which the Underwriter, or any such person,
may become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, liabilities, expenses or damages arise out of or are based on (i) any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or any amendment or supplement to the
Registration Statement or the Prospectus or in any documents filed under the
Exchange Act and deemed to be incorporated by reference into the Prospectus, or
in any application or other document executed by or on behalf of any of the
Xxxxxx Xxxxxx Entities or based on written information furnished by or on behalf
of the Xxxxxx Xxxxxx Entities filed in any jurisdiction in order to qualify the
Units under the securities laws thereof or filed with the Commission, (ii) the
omission or alleged omission to state in such document a material fact required
to be stated in it or necessary to make the statements in it not misleading or
(iii) any act or failure to act or any alleged act or failure to act by the
Underwriter in connection with, or relating in any manner to, the Units or the
offering contemplated hereby, and which is included as part of or referred to in
any loss, claim, liability, expense or damage arising out of or based upon
matters covered by clause (i) or (ii) above (provided that the Xxxxxx Xxxxxx
Entities shall not be liable under this clause (iii) to the extent it is finally
judicially determined by a court of competent jurisdiction that such loss,
claim, liability, expense or damage resulted directly from any such acts or
failures to act undertaken or omitted to be taken by the Underwriter through its
gross negligence or willful misconduct); provided that the Xxxxxx Xxxxxx
Entities will not be liable to the extent that such loss, claim, liability,
expense or damage arises from the sale of the Units in the public offering to
any person by the Underwriter and is based on an untrue statement or omission or
alleged untrue statement or omission made in reliance on and in conformity with
information relating to the Underwriter furnished in writing to the Partnership
by the Underwriter expressly for inclusion in the Registration Statement or the
Prospectus. This indemnity agreement will be in addition to any liability that
the Xxxxxx Xxxxxx Entities might otherwise have.
(b) The Underwriter will indemnify and hold harmless the Xxxxxx
Xxxxxx Entities, each person, if any, who controls Xxxxxx Xxxxxx Entities within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, each
director of the General Partner and each officer of the General Partner who
signed the Registration Statement to the same extent as the foregoing indemnity
from the Xxxxxx Xxxxxx Entities to the Underwriter, but only insofar as losses,
claims, liabilities, expenses or damages arise out of or are based on any untrue
statement or omission or alleged untrue statement or omission made in reliance
on and in conformity with information relating to the Underwriter furnished in
writing to the Partnership by the Underwriter expressly for use in the
Registration Statement or the Prospectus. This indemnity will be in addition to
any liability that the Underwriter might otherwise have;
20
provided, however, that in no case shall the Underwriter be liable or
responsible for any amount in excess of the underwriting discounts and
commissions received by it.
(c) Any party that proposes to assert the right to be indemnified
under this Section 6 will, promptly after receipt of notice of commencement of
any action against such party in respect of which a claim is to be made against
an indemnifying party or parties under this Section 6, notify each such
indemnifying party of the commencement of such action, enclosing a copy of all
papers served, but the omission so to notify such indemnifying party will not
relieve it from any liability that it may have to any indemnified party under
the foregoing provisions of this Section 6 unless, and only to the extent that,
such omission results in the forfeiture of substantive rights or defenses by the
indemnifying party. If any such action is brought against any indemnified party
and it notifies the indemnifying party of its commencement, the indemnifying
party will be entitled to participate in and, to the extent that it elects by
delivering written notice to the indemnified party promptly after receiving
notice of the commencement of the action from the indemnified party, jointly
with any other indemnifying party similarly notified, to assume the defense of
the action, with counsel satisfactory to the indemnified party, and after notice
from the indemnifying party to the indemnified party of its election to assume
the defense, the indemnifying party will not be liable to the indemnified party
for any legal or other expenses except as provided below and except for the
reasonable costs of investigation subsequently incurred by the indemnified party
in connection with the defense. The indemnified party will have the right to
employ its own counsel in any such action, but the fees, expenses and other
charges of such counsel will be at the expense of such indemnified party unless
(1) the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based on advice of counsel) that there may be legal defenses
available to it or other indemnified parties that are different from or in
addition to those available to the indemnifying party, (3) a conflict or
potential conflict exists (based on advice of counsel to the indemnified party)
between the indemnified party and the indemnifying party (in which case the
indemnifying party will not have the right to direct the defense of such action
on behalf of the indemnified party) or (4) the indemnifying party has not in
fact employed counsel to assume the defense of such action within a reasonable
time after receiving notice of the commencement of the action, in each of which
cases the reasonable fees, disbursements and other charges of counsel will be at
the expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm admitted to
practice in such jurisdiction at any one time for all such indemnified party or
parties. All such fees, disbursements and other charges will be reimbursed by
the indemnifying party promptly as they are incurred. An indemnifying party will
not be liable for any settlement of any action or claim effected without its
written consent (which consent will not be unreasonably withheld). No
indemnifying party shall, without the prior written consent of each indemnified
party, settle or compromise or
21
consent to the entry of any judgment in any pending or threatened claim, action
or proceeding relating to the matters contemplated by this Section 6 (whether or
not any indemnified party is a party thereto), unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising or that may arise out of such claim, action or
proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 6 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Xxxxxx Xxxxxx Entities or the
Underwriter, the Xxxxxx Xxxxxx Entities and the Underwriter will contribute to
the total losses, claims, liabilities, expenses and damages (including any
investigative, legal and other expenses reasonably incurred in connection with,
and any amount paid in settlement of, any action, suit or proceeding or any
claim asserted, but after deducting any contribution received by the Xxxxxx
Xxxxxx Entities from persons other than the Underwriter, such as persons who
control the Partnership within the meaning of the Act, officers of the General
Partner who signed the Registration Statement and directors of the General
Partner, who also may be liable for contribution) to which the Xxxxxx Xxxxxx
Entities and the Underwriter may be subject in such proportion as shall be
appropriate to reflect the relative benefits received by the Xxxxxx Xxxxxx
Entities on the one hand and the Underwriter on the other. The relative benefits
received by the Xxxxxx Xxxxxx Entities on the one hand and the Underwriter 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 Partnership bear
to the total underwriting discounts and commissions received by the Underwriter,
in each case as set forth in the table on the cover page of the Prospectus
Supplement. If, but only if, the allocation provided by the foregoing sentence
is not permitted by applicable law, the allocation of contribution shall be made
in such proportion as is appropriate to reflect not only the relative benefits
referred to in the foregoing sentence but also the relative fault of the Xxxxxx
Xxxxxx Entities, on the one hand, and the Underwriter, on the other, with
respect to the statements or omissions which resulted in such loss, claim,
liability, expense or damage, or action in respect thereof, as well as any other
relevant equitable considerations with respect to such offering. Such relative
fault shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Xxxxxx Xxxxxx Entities or the
Underwriter, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Xxxxxx Xxxxxx Entities and the Underwriter agree that it would not be just
and equitable if contributions pursuant to this Section 6(d) were to be
determined by pro rata allocation or by any other method of allocation that does
not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
liability, expense or damage, or action in respect thereof, referred to above in
this Section 6(d) shall be deemed to include, for purpose of this Section 6(d),
any legal or other expenses reasonably incurred by such indemnified party in
connection
22
with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), the Underwriter shall not be required to
contribute any amount in excess of the underwriting discounts and commissions
received by it and no person found guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) will be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 6(d), any person who controls a
party to this Agreement within the meaning of the Act will have the same rights
to contribution as that party, and each officer of the General Partner who
signed the Registration Statement will have the same rights to contribution as
the Xxxxxx Xxxxxx Entities, subject in each case to the provisions hereof. Any
party entitled to contribution, promptly after receipt of notice of commencement
of any action against such party in respect of which a claim for contribution
may be made under this Section 6(d), will notify any such party or parties from
whom contribution may be sought, but the omission so to notify will not relieve
the party or parties from whom contribution may be sought from any other
obligation it or they may have under this Section 6(d). Except for a settlement
entered into pursuant to the last sentence of Section 6(c) hereof, no party will
be liable for contribution with respect to any action or claim settled without
its written consent (which consent will not be unreasonably withheld).
(e) The indemnity and contribution agreements contained in this
Section 6 and the representations and warranties of the Xxxxxx Xxxxxx Entities
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any investigation made by or on behalf of the Underwriter,
(ii) acceptance of the Units and payment therefore or (iii) any termination of
this Agreement.
7. Termination. The obligations of the Underwriter under this
Agreement may be terminated at any time on or prior to the Closing Date, by
notice to the Partnership from the Underwriter, without liability on the part of
the Underwriter to the Xxxxxx Xxxxxx Entities, if, prior to delivery and payment
for the Units, in the sole judgment of the Underwriter, (i) there has been,
since the respective dates as of which information is given in the Registration
Statement, any material adverse change in the Xxxxxx Xxxxxx Entities' business,
properties, business prospects, condition (financial or otherwise) or results of
operations, taken as a whole, (ii) trading in any of the equity securities of
the Partnership shall have been suspended by the Commission, the NASD or by the
New York Stock Exchange, (iii) trading in securities generally on the New York
Stock Exchange shall have been suspended or limited or minimum or maximum prices
shall have been generally established on such exchange, or additional material
governmental restrictions, not in force on the date of this Agreement, shall
have been imposed upon trading in securities generally by such exchange or by
order of the Commission or the NASD or any court or other governmental
authority, (iv) a general banking moratorium shall have been declared by either
Federal or New York State authorities or (v) any material adverse change in the
financial or securities markets in
23
the United States or in political, financial or economic conditions in the
United States or any outbreak or material escalation of hostilities or
declaration by the United States of a national emergency or war or other
calamity or crisis shall have occurred the effect of any of which is such as to
make it, in the sole judgment of the Underwriter, impracticable or inadvisable
to market the Units on the terms and in the manner contemplated by the
Prospectus.
8. Miscellaneous. Notice given pursuant to any of the provisions of
this Agreement shall be in writing and, unless otherwise specified, shall be
mailed or delivered (a) if to the Partnership, or any of the other Xxxxxx Xxxxxx
Entities, at the office of Xxxxxx Xxxxxx Energy Partners, L.P., 0000 XxXxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxx 00000 Attention: Xxxxxx X. Xxxx, or (b) if to the
Underwriter, at the offices of PaineWebber Incorporated, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Finance Department. Any
such notice shall be effective only upon receipt. Any notice under Section 7
hereof may be made by telex or telephone, but if so made shall be subsequently
confirmed in writing.
This Agreement has been and is made solely for the benefit of the
Underwriter and the Xxxxxx Xxxxxx Entities and of the controlling persons,
directors and officers referred to in Section 6, and their respective successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. The term "successors and assigns" as used in this
Agreement shall not include a purchaser, as such purchaser, of Units from the
Underwriter
All representations, warranties and agreements of the Xxxxxx Xxxxxx
Entities contained herein or in certificates or other instruments delivered
pursuant hereto, shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of the Underwriter or any of its
controlling persons and shall survive delivery of and payment for the Units
hereunder.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS
PRINCIPLES OF SUCH STATE.
This Agreement may be signed in two or more counterparts with the
same effect as if the signatures thereto and hereto were upon the same
instrument.
In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby
Each of the Xxxxxx Xxxxxx Entities and the Underwriter hereby
irrevocably waive any right they may have to a trial by jury in respect of any
claim
24
based upon or arising out of this Agreement or the transactions contemplated
hereby.This Agreement may not be amended or otherwise modified or any provision
hereof waived except by an instrument in writing signed by the Xxxxxx Xxxxxx
Entities and the Underwriter.
Please confirm that the foregoing correctly sets forth the agreement
among the Xxxxxx Xxxxxx Entities and the Underwriter.
Very truly yours,
XXXXXX XXXXXX ENERGY PARTNERS, L.P.
By: Kinder Xxxxxx X.X., Inc.
By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Chairman of the Board and Chief
Executive Officer
XXXXXX XXXXXX OPERATING L.P. "A"
By: Kinder Xxxxxx X.X., Inc.
By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Chairman of the Board and Chief
Executive Officer
XXXXXX XXXXXX OPERATING L.P. "B"
By: Kinder Xxxxxx X.X., Inc.
By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Chairman of the Board and Chief
Executive Officer
KINDER XXXXXX X.X., INC.
By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Chairman of the Board and Chief
Executive Officer
25
Confirmed as of the date first above mentioned:
PAINEWEBBER INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
First Vice President
26
EXHIBIT A
XXXXXX XXXXXX ENERGY PARTNERS, L.P.
PRICE DETERMINATION AGREEMENT
August 18, 1997
PaineWebber Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Reference is made to the Underwriting Agreement, dated August 18,
1997 (the "Underwriting Agreement"), among the Xxxxxx Xxxxxx Entities and
PaineWebber Incorporated (the "Underwriter"). The Underwriting Agreement
provides for the purchase by the Underwriter from Xxxxxx Xxxxxx Energy Partners,
L.P. (the "Partnership"), subject to the terms and conditions set forth therein,
of an aggregate of 329,000 Common Units representing limited partner interests
in the Partnership (the "Units"). This Agreement is the Price Determination
Agreement referred to in the Underwriting Agreement. Capitalized terms used
herein but not defined shall have the meanings assigned to such terms in the
Underwriting Agreement.Pursuant to Section 1 of the Underwriting Agreement, the
undersigned agree as follows:
The initial public offering price per Common Unit for the Units
shall be $64.125.
The purchase price per Common Unit for the Units to be paid by the
Underwriter shall be $60.925 representing an amount equal to the initial public
offering price set forth above, less $3.20 per Common Unit.
The Xxxxxx Xxxxxx Entities represent and warrant to the Underwriter
that the representations and warranties of the Xxxxxx Xxxxxx Entities set forth
in Section 3 of the Underwriting Agreement are accurate, in all material
respects, as though expressly made at and as of the date hereof.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without regard to the conflict of laws
principles of such State.
If the foregoing is in accordance with your understanding of the
agreement among the Partnership and the Underwriter, please sign and return to
the
1
Partnership a counterpart hereof, whereupon this instrument along with all
counterparts and together with the Underwriting Agreement shall be a binding
agreement among the Partnership and the Underwriter in accordance with its terms
and the terms of the Underwriting Agreement.
Very truly yours,
XXXXXX XXXXXX ENERGY PARTNERS, L.P.
By: Kinder Xxxxxx X.X., Inc.
By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Chairman and Chief Executive Officer
Confirmed as of the date first above written:
PAINEWEBBER INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
First Vice President
2
EXHIBIT B
SUBSIDIARIES OF THE PARTNERSHIP
Operating Partnership-A
Operating Partnership-B
KMNGL Corp.
Heartland Partnership (50% partnership interest held by Operating Partnership-A)
Mont Belvieu Associates (50% partnership interest held by KMNGL Corp.)
3
EXHIBIT C
Form of Opinion of Xxxxxxxx & Xxxxxx L.L.P.
(a) Each of the Partnership, the General Partner and the Operating
Partnerships (collectively, the "Xxxxxx Xxxxxx Entities") have been duly formed,
and are validly existing and in good standing under the laws of the State of
Delaware and each such entity has the partnership or corporate power and
authority, as the case may be, to conduct its business as described in the
Registration Statement and the Prospectus. To our knowledge, each of the Xxxxxx
Xxxxxx Entities is duly qualified to do business and is in good standing as a
foreign corporation or foreign limited partnership, as the case may be, in all
jurisdictions in which the nature of the activities conducted by it or the
character of the assets owned or leased by it makes such licensing or
qualification necessary, except where the failure to be so qualified cannot
reasonably be expected to have a material adverse effect on the condition
(financial or other), results of operations or business of the Xxxxxx Xxxxxx
Entities taken as a whole.
(b) The General Partner is the sole general partner of the Partnership
with a 1% general partner interest in the Partnership; such general partner
interest is duly authorized by the Partnership Agreement and was validly issued
to the General Partner; and, to our knowledge, the General Partner owns such
general partner interest free and clear of all liens, encumbrances, security
interests, equities, charges or claims (except for such liens, encumbrances,
security interests, equities, charges or claims as are not, individually or in
the aggregate, material or as described in the Registration Statement or the
Prospectus).
(c) The General Partner is the sole general partner of each of the
Operating Partnerships with a 1.0101% general partner interest in each of the
Operating Partnerships; such general partner interests are duly authorized by
the respective Operating Partnership Agreements and were validly issued to the
General Partner; and, to our knowledge, the General Partner owns such general
partner interests free and clear of all liens, encumbrances, security interests,
equities, charges or claims (except for such liens, encumbrances, security
interests, equities, charges or claims as are not, individually or in the
aggregate, material or as described in the Registration Statement or the
Prospectus and except as provided in the Operating Partnership Agreements).
(d) At the Closing Date, after giving effect to the issuance and sale
of the Units to the Underwriter against payment therefor in accordance with the
terms of the Underwriting Agreement, to our knowledge, the capitalization of the
Partnership consists of 6,989,000 Common Units [Note: such number may be
increased by up to 160,000 Common Units to be sold to First Union Investors,
Inc. if such sale has been completed by the Closing Date]; to our knowledge,
such Common Units are the only limited partner interests of the Partnership that
are issued and outstanding at the Closing Date; all of such Common Units have
been duly authorized by the Partnership Agreement, are validly issued and are
fully paid and nonassessable (except as nonassessability may be affected by
certain provisions of the Delaware Act).
1
(e) The Partnership is the sole limited partner of each of the
Operating Partnerships with a 98.9899% limited partner interest in each of the
Operating Partnerships; such limited partner interests, in each of such
Operating Partnerships, are duly authorized by the respective Operating
Partnership Agreements and were validly issued to the Partnership; and, the
Partnership owns such limited partner interests free and clear of all liens,
encumbrances, security interests, equities, charges or claims (except for such
liens, encumbrances, security interests, equities, charges or claims (i) as are
not, individually or in the aggregate, material, (ii) as described in the
Registration Statement or the Prospectus or (iii) arising out of the pledge by
the Partnership of the limited partner interests of the Operating Partnerships
to secure certain indebtedness of the Operating Partnerships).
(f) None of the Units, when paid for by the Underwriter in accordance
with the terms of the Underwriting Agreement, will be subject to any preemptive
or similar right under (i) the Delaware Act, (ii) the Partnership Agreement
(except for the General Partner's preemptive right contained in Section 4.5 of
the Partnership Agreement, which has been waived with respect to the issuance
and sale of the Units to the Underwriter) or (iii) any instrument, document,
contract or agreement filed as an exhibit to or incorporated by reference in the
Registration Statement. Except (i) as described in the Registration Statement or
the Prospectus and (ii) the Partnership's Executive Compensation Plan, to our
knowledge, there is no commitment or arrangement to issue, and there are no
outstanding options, warrants or other rights calling for the issuance of, any
Common Units or any partnership interest or share of capital stock of any of the
Xxxxxx Xxxxxx Entities to any person or any security or other instrument that by
its terms is convertible into, exercisable for and exchangeable for Common
Units.
(g) No consent, approval, authorization or order of, or any filing or
declaration with, any Federal, Kansas, Missouri or Delaware court or
governmental agency or body is required under Federal, Kansas or Missouri law or
under the Delaware Act or the Delaware General Corporation Law in connection
with the authorization, issuance, transfer, sale or delivery of the Units by the
Partnership, in connection with the execution, delivery and performance of the
Underwriting Agreement by the Xxxxxx Xxxxxx Entities in connection with the
taking by any of the Xxxxxx Xxxxxx Entities of any action contemplated thereby,
except such as have been obtained under the Act and the Rules and Regulations
and such as may be required under state securities or "Blue Sky" laws or by the
by-laws and rules of the NASD in connection with the purchase and distribution
by the Underwriter of the Units to be sold by the Partnership. All references in
this opinion to the Underwriting Agreement shall include the Price Determination
Agreement.
(h) The Registration Statement and the Prospectus (including any,
documents incorporated by reference into the Prospectus, at the time they were
filed) comply in all material respects as to form with the requirements of the
Act, the Exchange Act, the Exchange Act Rules and Regulations and tile Rules and
Regulations (except that we express no opinion as to financial statements,
schedules and other financial data contained in the Registration Statement or
the Prospectus or incorporated by reference therein). In passing upon the
compliance as to form of the Registration Statement and Prospectus, we have
assumed that the statements made therein are correct and complete.
2
(i) To our knowledge, any instrument, document, lease, license,
contract or other agreement (collectively, "Documents") required to be described
or referred to in the Registration Statement or the Prospectus has been
described or referred to therein and any Document required to be filed as an
exhibit to the Registration Statement has been filed as an exhibit thereto or
has been incorporated as an exhibit by reference in the Registration Statement.
(j) To our knowledge, except as disclosed in the Registration Statement
or the Prospectus, no person or entity has the right to require the registration
under the Act of Common Units by reason of the filing or effectiveness of the
Registration Statement.
(k) The Units have been authorized for listing on the New York Stock
Exchange upon official notice of issuance.
(l) Upon delivery of the certificates evidencing the Units, and payment
therefor as provided in the Underwriting Agreement, the Underwriter will acquire
the Units free of all adverse claims (as such term is defined in Section 8-302
of the Uniform Commercial Code as in effect in the State of Delaware (the
"UCC")), assuming (i) the Underwriter is acting in good faith, (ii) the
Underwriter has no notice of any adverse claim (as such term is used in Section
8-302 of the UCC) and (c) the certificates evidencing the Units are registered
in the name of the Underwriter or endorsed to the Underwriter or a nominee of
the Underwriter.
(m) The statements under the caption (i) "Item 1: Business-Regulation"
in the Partnership's Annual Report on Form 10-K for the year ended December 31,
1996 incorporated by reference into the Registration Statement and the
Prospectus and (ii) "Risk Factors-Tax Considerations" in the Registration
Statement and the Prospectus, insofar as such statements constitute a summary of
Federal, Kansas or Missouri law, the Delaware Act or the Delaware General
Corporation Law, are accurate summaries and fairly and correctly present in all
material respects the information called for with respect to such matters.
(n) Each of the Xxxxxx Xxxxxx Entities has the partnership or corporate
power and authority, as the case may be, to enter into the Underwriting
Agreement, and the Underwriting Agreement has been duly authorized, executed and
delivered by the Xxxxxx Xxxxxx Entities.
(o) The execution and delivery by the Xxxxxx Xxxxxx Entities of, and
the performance by such entities of their agreements in, the Underwriting
Agreement do not and will not (i) violate the certificate of incorporation or
bylaws of the General Partner, (ii) violate the Partnership Agreement or the
Operating Partnership Agreements, (iii) breach or result in a default under,
cause the time for performance of any obligation to be accelerated under, or
result in the creation or imposition of any lien, charge or encumbrance upon any
of the assets of any of the Xxxxxx Xxxxxx Entities pursuant to the terms of, any
instrument, document, contract or other agreement filed as an exhibit to, or
incorporated as an exhibit by reference in, the Registration Statement, (iv)
breach or otherwise violate an existing obligation of any of the Xxxxxx Xxxxxx
Entities under any court or administrative order, judgment or decree of which we
have knowledge or (v) violate applicable provisions of the Delaware Act, the
Delaware
3
General Corporation Law, any statute or regulation of the States of Missouri and
Kansas or of the United States.
(p) None of the Xxxxxx Xxxxxx Entities is (a) an "investment company"
or a person "controlled by" an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended, and the rules and regulations
thereunder or (b) a "holding company" or a "subsidiary company" of a "holding
company" within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
(q) The Registration Statement was declared effective under the Act by
the Commission as of June 26, 1997 and no order suspending the effectiveness of
the Registration Statement has been issued and, to our knowledge, no proceeding
for that purpose has been instituted or is pending, threatened or contemplated.
Any required filing of the Prospectus relating to the sale of the Units pursuant
to Rule 424(b) of the Rules and Regulations has been made in the manner and
within the time period required by such rule.
(r) We hereby further confirm to you that, to our knowledge, there are
no actions, suits, proceedings or investigations pending or overtly threatened
in writing against any of the Xxxxxx Xxxxxx Entities, or any of their respective
officers or directors in their capacities as such, before or by any court,
governmental agency or arbitrator that are required to be described or referred
to in the Registration Statement or the Prospectus that have not been so
described or referred to therein.
(s) We inform you that we have participated in conferences with
officers and other representatives of the Partnership, representatives of the
Partnership's accountants, representatives of the underwriters and counsel for
the underwriters, at which conferences the contents of the Registration
Statement and Prospectus and related matters were discussed and, although we are
not passing upon and do not assume any responsibility for and shall not be
deemed to have independently verified the accuracy, completeness or fairness of
the statements contained in the Registration Statement and Prospectus, on the
basis of the foregoing (relying as to materiality to a large extent upon the
statements of officers and other representatives of the Partnership), no facts
have come to our attention that lead us to believe that the Registration
Statement at the time it became effective (other than the financial statements
and notes thereto, the schedules and other financial or statistical data
contained therein or in the exhibits to the Registration Statement and the
information referred to under the caption "Experts" as having been included in
the Prospectus on the authority of such named entities as experts, as to which
we do not comment) 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 as of the date first
filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations
or as of the date hereof (other than the financial statements and notes thereto,
the schedules and other financial and statistical data contained therein and the
information referred to under the caption "Experts" as having been included in
the Prospectus on the authority of such named entities as Experts, as to which
we do not comment) contained an untrue statement of a material fact or omitted
to state a material fact
4
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
This opinion is furnished by us solely for your benefit in connection
with the transactions referred to in the Underwriting Agreement and may not be
circulated to, or relied upon by, any other person, except that this letter may
be relied upon by your counsel in connection with the opinion letter to be
delivered to you pursuant to Section 5(f) of the Agreement.
5
