Exhibit 1.1
DRAFT: December 12, 2001
SUNOCO LOGISTICS PARTNERS L.P.
5,000,000 Common Units
Representing Limited Partner Interests
UNDERWRITING AGREEMENT
Xxxxxx Brothers Inc. ____________, 2002
Xxxxxxx Xxxxx Xxxxxx Inc.
UBS Warburg LLC
Banc of America Securities LLC
First Union Securities, Inc.
Credit Suisse First Boston Corporation
c/x Xxxxxx Brothers Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Dear Sirs:
Sunoco Logistics Partners L.P., a Delaware limited partnership (the
"Partnership"), proposes to issue and sell to the several Underwriters named in
Schedule 1 hereto (the "Underwriters") 5,000,000 Common Units (the "Firm
Units"), each representing a limited partner interest in the Partnership (the
"Common Units"). In addition, the Partnership proposes to grant to the
Underwriters an option to purchase up to an additional 750,000 Common Units, on
the terms and for the purposes set forth in Section 2 (the "Option Units"). The
Firm Units and the Option Units, if purchased, are hereinafter collectively
called the "Units." Capitalized terms used but not defined herein shall have the
same meanings given them in the Partnership Agreement or the Prospectus (each as
defined herein).
It is understood and agreed to by all parties that the Partnership was
formed to acquire substantially all of the assets, liabilities and operations of
the pipeline, terminal and storage businesses (the "Sunoco Logistics Business")
held by various subsidiaries of Sunoco, Inc., a Pennsylvania corporation
("Sunoco"), and, thereafter, to manage such acquired pipeline, terminal and
storage assets and operations.
Prior to or concurrently with the execution hereof, Sunoco Logistics
Partners Operations L.P. (the "Operating Partnership"), (a) will enter into a
purchase agreement (the "Purchase Agreement") with the initial purchasers
thereunder providing for the issuance and sale to such initial purchasers of
$250 million aggregate principal amount of unsecured senior notes (the "Notes")
under an indenture relating to the Notes (the "Indenture") in a transaction (the
"Notes Offering") exempt from the registration requirements of the Securities
Act of 1933, as amended (the "Securities Act"), and (b) will enter into a bank
credit agreement (the "Credit Agreement") providing for borrowings of up to $150
million.
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It is further understood and agreed by all parties that as of the date hereof:
(i) each of Sunoco, Inc. (R&M), a Pennsylvania corporation ("Sunoco R&M"),
Sun Pipe Line Company of Delaware, a Delaware corporation ("Sun Delaware"), and
Sun Atlantic Refining and Marketing Company, a Delaware corporation ("Sun
Atlantic R&M"), is a wholly owned direct subsidiary of Sunoco;
(ii) Sun Atlantic Refining and Marketing B.V., a Netherlands company ("Sun
Atlantic BV"), is a wholly owned direct subsidiary of Sun Atlantic R&M;
(iii) Atlantic Petroleum Corporation, a Delaware corporation ("Atlantic
Petroleum"), is a wholly owned indirect subsidiary of Sun Atlantic BV;
(iv) each of Atlantic Pipeline Corp., a Delaware corporation ("Atlantic"),
and Atlantic Refining & Marketing Corp., a Delaware corporation ("Atlantic
Refining"), is a wholly owned direct subsidiary of Atlantic Petroleum;
(v) Sunoco R&M (In) LLC, a Delaware limited liability company ("RM In
LLC"), is a wholly owned direct subsidiary of Sunoco R&M and general partner of
Sunoco Partners Marketing & Terminals L.P., a Delaware limited partnership ("RM
In LP");
(vi) Sunoco R&M is the sole limited partner of RM In LP;
(vii) each of Sunoco Partners LLC, a Pennsylvania limited liability company
(the "General Partner"), Sun Pipe Line Company, a Pennsylvania corporation
("Pipe Line"), Sun Pipe Line Services Company, a Delaware corporation
("Services"), Sun Oil Line Co. of Michigan, a Michigan corporation ("Michigan"),
Mid-Continent Pipe Line Company, an Oklahoma corporation ("Mid-Con"), Sunoco
Logistics Partners GP LLC, a Delaware limited liability company ("GP LLC"), Sun
Oil Line of Michigan (Out) LLC, a Texas limited liability company ("Michigan
Texas"), Sunoco Michigan (In) LLC, a Texas limited liability company ("Michigan
In LLC"), Sunoco Mid-Con (In) LLC, a Texas limited liability company ("Mid-Con
In LLC"), and Mid-Continent Pipe Line (Out) LLC, a Texas limited liability
company ("Mid-Con Texas"), is a wholly owned direct subsidiary of Sun Delaware;
(viii) Sunoco Partners Lease Acquisition & Marketing LLC, a Delaware
limited liability company ("LA LLC"), is a wholly owned direct subsidiary of the
General Partner;
(ix) The General Partner is the sole general partner of the Partnership,
and Sun Delaware is the sole limited partner of the Partnership;
(x) GP LLC is the sole general partner of the Operating Partnership, and
the Partnership is the sole limited partner of the Operating Partnership;
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(xi) Sunoco Logistics Partners Operations GP LLC, a Delaware limited
liability company ("OLP GP LLC"), is a wholly owned direct subsidiary of GP LLC;
(xii) each of Sun Pipe Line GP LLC, a Delaware limited liability company
("Pipe Line GP LLC"), and Sun Texas Pipe Line Company, a Texas corporation ("Sun
Texas"), is a wholly owned subsidiary of Pipe Line;
(xiii) Pipe Line GP LLC is the sole general partner of Sunoco Pipeline
L.P., a Texas limited partnership ("Sun Pipeline LP"), and Pipe Line is the sole
limited partner of Sun Pipeline LP;
(xiv) each of Atlantic (In) LLC, a Delaware limited liability company
("Atlantic In LLC"), and Atlantic Petroleum (Out) LLC, a Delaware limited
liability company ("Atlantic Out LLC"), is a wholly owned direct subsidiary of
Atlantic Petroleum;
(xv) Atlantic Petroleum is the sole general partner of Atlantic (In) L.P.,
a Texas limited partnership ("Atlantic In LP"), and Atlantic In LLC is the sole
limited partner of Atlantic In LP;
(xvi) Atlantic Petroleum is the sole general partner of Atlantic Pipeline
(Out) L.P., a Texas limited partnership ("Atlantic Out LP"), and Atlantic Out
LLC is the sole limited partner of Atlantic Out LP;
(xvii) Atlantic Petroleum is the sole general partner of Atlantic RM (In)
L.P., a Texas limited partnership ("Atlantic RM In LP"), and Atlantic In LLC is
the sole limited partner of Atlantic RM In LP;
(xviii) Atlantic Petroleum is the sole general partner of Atlantic R&M
(Out) L.P., a Texas limited partnership ("Atlantic RM Out LP"), and Atlantic Out
LLC is the sole limited partner of Atlantic RM Out LP;
(xix) Sun Xxxxxx Pipe Line Company, a Delaware corporation ("Xxxxxx"), is a
wholly owned direct subsidiary of Services; and
(xx) Sun Pipe Line Services (Out) LLC, a Delaware limited liability company
("Services Out LLC"), is a wholly owned direct subsidiary of Services.
On or concurrently with the First Delivery Date, the following transactions
will occur:
(a) Pipe Line will merge into Sun Texas;
(b) Sun Texas will merge with Sun Pipeline LP such that its assets are
owned by (1) Sun Texas and (2) Sun Pipeline LP, with Sun Texas owning the assets
that will not be owned by the Partnership Entities (as defined herein) and Sun
Pipeline LP owning the assets that will be owned by the Partnership Entities.
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(c) Xxxxxx will merge into Services;
(d) Sun Delaware will contribute .01% of the stock of Services to GP LLC as
a capital contribution;
(e) Services will adopt articles of conversion and convert to a Delaware
limited partnership named Sun Pipe Line Services (In) L.P. ("Services LP"),
designating GP LLC as the general partner and Sun Delaware as the limited
partner;
(f) Services LP will convey the assets of Services that will not be owned
by the Partnership Entities to Services Out LLC as a capital contribution and
distribute all of the interest in Services Out LLC to Sun Delaware (99.99%
directly and .01% for the benefit of GP LLC);
(g) Michigan will merge into Michigan Texas;
(h) Michigan Texas will effect a multiple survivor merger whereby all
assets and liabilities of Michigan Texas that will be owned and assumed by the
Partnership Entities will be allocated to Michigan In LLC and all other assets
and liabilities of Michigan Texas will remain in Michigan Texas;
(i) Mid-Con will merge into Mid-Con Texas;
(j) Mid-Con Texas will effect a multiple survivor merger whereby all assets
and liabilities of Mid-Con Texas that will be owned and assumed by the
Partnership Entities will be allocated to Mid-Con In LLC and all other assets
and liabilities of Mid-Con Texas will remain in Mid-Con Texas;
(k) Atlantic will merge into Atlantic Out LP;
(l) Atlantic Out LP will effect a multiple survivor merger whereby all
assets and liabilities of Atlantic that will be owned and assumed by the
Partnership Entities will be allocated to Atlantic In LP and all other assets
and liabilities of Atlantic Out LP will remain in Atlantic Out LP;
(m) Atlantic Refining will merge into Atlantic RM Out LP;
(n) Atlantic RM Out LP will effect a multiple survivor merger whereby all
assets and liabilities of Atlantic Refining that will be owned and assumed by
the Partnership Entities will be allocated to Atlantic RM In LP and all other
assets and liabilities of Atlantic RM Out LP will remain in Atlantic RM Out LP;
(o) Sunoco R&M will convey its assets that will be owned by the Partnership
Entities to RM In LP as a capital contribution, with RM In LP assuming the
related liabilities, 99.99% for itself and .01% on behalf of RM In LLC;
(p) Sun Pipeline LP, Services LP, Michigan In LLC, Mid-Con In LLC, Atlantic
In LP, Atlantic RM In LP and RM In LP (the "Distributing Entities") will all
distribute
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to their owners in proportion to ownership an aggregate of [$76.45] million
in receivables and crude inventory with a value of [$25] million, and GP LLC,
Atlantic In LLC, Pipe Line GP LLC and RM In LLC, in turn, will distribute any
assets they receive as a result of the aforementioned distributions to their
owners;
(q) Any amounts owed by the Distributing Entities to Sunoco affiliates will
be cancelled by the affiliate;
(r) (1) Sun Delaware will contribute its interest in (a) GP LLC, Services
LP, Michigan In LLC, Explorer Pipeline Company, a Delaware corporation
("Explorer"), and Mid-Con In LLC to the General Partner in exchange for a ____%
membership interest in the General Partner; (2) Sun Texas will contribute its
membership interest in Pipe Line GP LLC and Sun Pipeline LP to the General
Partner in exchange for a ____% membership interest in the General Partner; (3)
Sunoco R&M will contribute its membership interest in RM In LLC and RM In LP to
the General Partner in exchange for a ____% membership interest in the General
Partner; and (4) Atlantic Petroleum will contribute its interest in Atlantic In
LLC, Atlantic In LP and Atlantic RM in LP to the General Partner in exchange for
a ____% membership interest in the General Partner;
(s) The General Partner will contribute all the assets conveyed to it in
the prior steps to the Partnership in exchange for (1) a continuation of its 2%
general partner interest, (2) the incentive distribution rights, (3) 7,472,528
Common Units, (4) 12,472,528 subordinated units representing limited partner
interests ("Subordinated Units"), and (5) a special partnership interest (the
"Special Interest") giving the holder the right to receive [$247 million] in
cash from the proceeds of the Notes Offering;
(t) The public offering of the Firm Units contemplated hereby will be
consummated;
(u) RM In LLC, Pipe Line GP LLC and Atlantic In LLC will merge into GP LLC;
(v) The Partnership will contribute [$87 million] to the Distributing
Entities to use as working capital, .01% on behalf of GP LLC as to the
Distributing Entities that are limited partnerships;
(w) The Partnership will contribute its direct interests in the
Distributing Entities to the Operating Partnership in exchange for the Special
Interest as a capital contribution on its behalf (99.99%) and on behalf of GP
LLC (.01%);
(x) GP LLC will contribute its .01% general partner interest in (1) RM In
LP, (2) Sun Pipeline LP, (3) Atlantic In LP, (4) Atlantic RM In LP and (5)
Services LP to OLP GP LLC as a capital contribution and, in turn, will
contribute its interest in OLP GP LLC to the Operating Partnership as a capital
contribution;
(y) The Operating Partnership will issue the Notes in accordance with the
terms and conditions of the Purchase Agreement, and the Operating Partnership
will distribute
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the proceeds to the Partnership; in turn, the Partnership will distribute the
proceeds to the General Partner, in both cases in redemption of the Special
Interest;
(z) The Operating Partnership will enter into the Credit Agreement;
(aa) The General Partner will distribute cash to its owners pro rata and
loan the balance to Sunoco and affiliates;
(bb) If the underwriters' over-allotment option (described in Section 2
hereof) is not exercised or is not exercised in its entirety, Sunoco, or an
affiliate, will purchase any Common Units not purchased by the underwriters
pursuant to such option and the Partnership will contribute the proceeds to the
Operating Partnership and the Operating Partnership will contribute those
proceeds to the Distributing Entities (other than GP LLC) (99.99% for the
benefit of the Operating Partnership and .01% for the benefit of OLP GP LLC as
to those Distributing Entities that are partnerships) which will use those
proceeds for working capital.
(cc) Services LP, Atlantic In LP, Michigan In LLC and Mid-Con In LLC will
merge into Sun Pipeline LP;
(dd) Atlantic RM In LP will merge into RM In LP; and
(ee) Sun Pipeline LP will merge with RM In LP such that certain terminal
assets will be owned by RM In LP and all other assets owned by Sun Pipeline LP
will continue to be owned by Xxx Xxxxxxxx LP.
The transactions described above in clauses (a)-(ee) are referred to as the
"Transactions." In connection with the Transactions, the parties to the
Transactions entered into various bills of sale, assignments, conveyances,
contribution agreements and related documents (collectively, the "Conveyances").
The mergers described in clauses (a)-(c), (g)-(n), (u) and (cc)-(ee) above are
referred to herein as the "Mergers" and the conversion from a corporation to a
limited liability company described in clause (e) above is referred to herein as
the "Conversion." In connection with the consummation of the Mergers and the
Conversion, the subsidiaries of the Operating Partnership and certain of their
predecessors entered into, as applicable, merger agreements, limited liability
company agreements, and certificates and articles of merger and articles of
conversion (the "Merger and Conversion Documents"). The Merger and Conversion
Documents and the Conveyances are collectively referred to herein as the "Merger
and Contribution Agreements."
Sunoco, Sunoco R&M, Sun Delaware, Sun Atlantic R&M, Sun Atlantic BV,
Atlantic Petroleum, RM In LLC, RM In LP, the General Partner, Pipe Line,
Services, Michigan, Mid-Con, Michigan Texas, Michigan In LLC, Mid-Con In LLC,
Mid-Con Texas, LA LLC, the Partnership, the Operating Partnership, Pipe Line GP
LLC, Sun Texas, Sun Pipeline LP, GP LLC, OLP GP LLC, Atlantic In LLC, Atlantic
Out LLC, Atlantic In LP, Atlantic Out LP, Atlantic RM In LP, Atlantic RM Out LP,
Xxxxxx and Services Out LLC, together with their respective predecessor
entities, as applicable, collectively constitute the "Sunoco Entities." Prior to
the First Delivery Date, Sunoco R&M, Sun Delaware, Atlantic Petroleum, Pipe
Line, Services, Michigan, Mid-Con and Xxxxxx, together, constitute the
"Operating Subsidiaries." On and after the First Delivery Date, Sun Pipeline LP
and RM In LP, as applicable, collectively
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constitute the "Operating Subsidiaries." The General Partner, the Partnership,
the Operating Partnership and the Operating Subsidiaries, as applicable,
collectively constitute the "Partnership Entities."
This is to confirm the agreement among Sunoco, Sunoco R&M, Sun Delaware,
Sun Texas, Atlantic Petroleum, the General Partner, the Partnership, GP LLC and
the Operating Partnership (collectively, the "Sunoco Parties") and the
Underwriters concerning the purchase of the Firm Units and the Option Units from
the Partnership by the Underwriters.
1. Representations, Warranties and Agreements of the Sunoco Parties. Each
of the Sunoco Parties, jointly and severally, represents and warrants to, and
agrees with, each Underwriter that:
(a) Definitions. A registration statement on Form S-1 (File No.
333-71968) with respect to the Units (i) has been prepared by the Partnership in
conformity with the requirements of the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations (the "Rules and Regulations")
of the Securities and Exchange Commission (the "Commission") thereunder, (ii)
has been filed with the Commission under the Securities Act and (iii) has become
effective under the Securities Act. Copies of such registration statement and
each of the amendments thereto have been delivered by the Partnership to you as
the representatives (the "Representatives") of the Underwriters. For purposes of
this Agreement, "Effective Time" means the date and the time as of which such
registration statement, or the most recent post-effective amendment thereto, if
any, was declared effective by the Commission; "Effective Date" means the date
of the Effective Time; "Preliminary Prospectus" means each prospectus included
in such registration statement, or amendments thereof, before it became
effective under the Securities Act and any prospectus filed with the Commission
by the Partnership with the consent of the Representatives pursuant to Rule
424(a) of the Rules and Regulations; "Registration Statement" means such
registration statement, as amended at the Effective Time, including all
information contained in the final prospectus filed with the Commission pursuant
to Rule 424(b) of the Rules and Regulations ("Rule 424(b)") and deemed to be a
part thereof as of the Effective Time pursuant to paragraph (b) of Rule 430A of
the Rules and Regulations; and "Prospectus" means the final prospectus in the
form first used to confirm sales of Units. The Commission has not issued any
order preventing or suspending the use of any Preliminary Prospectus. If an
abbreviated registration statement is prepared and filed with the Commission in
accordance with Rule 462(b) or Rule 462(d) under the Securities Act, the term
"Registration Statement" as used in this Agreement includes such abbreviated
registration statement.
(b) No Material Misstatements or Omissions. The Registration Statement
conforms, and any further amendments or supplements to the Registration
Statement will, when they become effective, conform in all material respects to
the requirements of the Securities Act and the Rules and Regulations and do not
and will not, as of the applicable effective date contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading. The Prospectus and
any supplement or amendment thereto when filed with the Commission under Rule
424(b) will conform in all material respects to the
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requirements of the Securities Act and the Rules and Regulations, and do not or
will not include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Each of the statements
made by the Partnership in such documents within the coverage of Rule 175(b) of
the Rules and Regulations under the Securities Act, including (but not limited
to) any statements with respect to future available cash or future cash
distributions of the Partnership or the anticipated ratio of taxable income to
distributions, was made or will be made with a reasonable basis and in good
faith. Notwithstanding the foregoing, no representation or warranty is made as
to information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written information furnished
to the Partnership through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein.
(c) Formation and Qualification of the Partnership, the Operating
Partnership and RM In LP. Each of the Partnership, the Operating Partnership and
RM In LP has been duly formed and is validly existing in good standing as a
limited partnership under the Delaware Revised Uniform Limited Partnership Act
(the "Delaware LP Act") with full partnership power and authority to own or
lease its properties to be owned or leased at each Delivery Date (as defined in
Section 4 hereof), to assume the liabilities being assumed by it pursuant to the
Merger and Contribution Agreements and to conduct its business to be conducted
at each Delivery Date, in each case in all material respects. Each of the
Partnership, the Operating Partnership and RM In LP is, or at each Delivery Date
will be, duly registered or qualified as a foreign limited partnership for the
transaction of business under the laws of each jurisdiction in which the
character of the business conducted by it or the nature or location of the
properties owned or leased by it makes such registration or qualification
necessary, except where the failure so to register or qualify would not (i) have
a material adverse effect on the condition (financial or otherwise), business,
prospects, assets or results of operations of the Partnership Entities taken as
a whole (a "Material Adverse Effect"), or (ii) subject the limited partners of
the Partnership to any material liability or disability.
(d) Formation and Qualification of Sun Pipeline LP. Sun Pipeline LP has
been duly formed and is validly existing in good standing as a limited
partnership under the Texas Revised Limited Partnership Act (the "Texas LP Act")
with full partnership power and authority to own or lease its properties to be
owned or leased at each Delivery Date, to assume the liabilities being assumed
by it pursuant to the Merger and Contribution Agreements and to conduct its
business to be conducted at each Delivery Date, in each case in all material
respects. Sun Pipeline LP is, or at each Delivery Date will be, duly registered
or qualified as a foreign limited partnership for the transaction of business
under the laws of each jurisdiction in which the character of the business
conducted by it or the nature or location of the properties owned or leased by
it makes such registration or qualification necessary, except where the failure
so to register or qualify would not (i) have a Material Adverse Effect, or (ii)
subject the limited partners of the Partnership to any material liability or
disability.
(e) Formation and Qualification of the General Partner. The General
Partner has been duly formed and is validly existing in good standing as a
limited liability
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company under the Pennsylvania Limited Liability Company Law of 1994, as amended
(the "Pennsylvania LLC Law"), with full limited liability company power and
authority to own or lease its properties to be owned or leased at each Delivery
Date, to act as general partner of the Partnership, to assume the liabilities
being assumed by it pursuant to the Merger and Contribution Agreements and to
conduct its business to be conducted at each Delivery Date, in each case in all
material respects. The General Partner is, and at each Delivery Date will be,
duly registered or qualified as a foreign limited liability company for the
transaction of business under the laws of each jurisdiction in which the
character of the business conducted by it or the nature or location of the
properties owned or leased by it makes such registration or qualification
necessary, except where the failure so to register or qualify would not (i) have
a Material Adverse Effect or (ii) subject the limited partners of the
Partnership to any material liability or disability.
(f) Formation and Qualification of LA LLC, GP LLC and OLP GP LLC. Each
of LA LLC, GP LLC and OLP GP LLC has been duly formed and is validly existing in
good standing as a limited liability company under the Delaware Limited
Liability Company Act (the "Delaware LLC Act") with full limited liability
company power and authority to own or lease its properties to be owned or leased
at each Delivery Date, to assume the liabilities being assumed by it pursuant to
the Merger and Contribution Agreements and to conduct its business to be
conducted at each Delivery Date, in each case in all material respects. GP LLC
has full limited liability company power and authority to act as general partner
of the Operating Partnership. OLP GP LLC has full limited liability company
power and authority to act as general partner of Xxx Xxxxxxxx LP and RM In LP.
Each of LA LLC, GP LLC and OLP GP LLC is, and at each Delivery Date will be,
duly registered or qualified as a foreign limited liability company for the
transaction of business under the laws of each jurisdiction in which the
character of the business conducted by it or the nature or location of the
properties owned or leased by it makes such registration or qualification
necessary, except where the failure so to register or qualify would not (i) have
a Material Adverse Effect or (ii) subject the limited partners of the
Partnership to any material liability or disability.
(g) Existence and Good Standing of Other Entities. Each of Sunoco,
Sunoco R&M, Pipe Line, Sun Delaware, Sun Atlantic BV, Sun Atlantic R&M, Atlantic
Petroleum, Atlantic, Atlantic Refining, Services, Services LP, Borger, Sun
Texas, Michigan, Mid-Con, Atlantic In LP, Atlantic RM In LP, Atlantic Out LP,
Atlantic RM In LP, Michigan In LLC, Mid-Con In LLC, Michigan Texas, Mid-Con
Texas, R&M In LLC, Pipe Line GP LLC, Atlantic In LLC, Atlantic Out LLC and
Services Out LLC has been duly incorporated or organized and is validly existing
in good standing as a corporation, limited liability company or limited
partnership, as the case may be, under the laws of its jurisdiction of
incorporation or organization with full corporate, limited liability company or
partnership power and authority, as the case may be, to own or lease its
properties to be owned or leased at each Delivery Date, to assume the
liabilities being assumed by it pursuant to the Merger and Contribution
Agreements and to conduct its business to be conducted by it at each Delivery
Date, in each case in all material respects.
(h) Ownership of General Partner Interests. At each Delivery Date the
General Partner will be the sole general partner of the Partnership with a 2.0%
general
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partner interest in the Partnership; such general partner interest will be duly
authorized and validly issued in accordance with the partnership agreement of
the Partnership (as the same may be amended and restated at or prior to each
Delivery Date, the "Partnership Agreement"); and the General Partner will own
such general partner interest free and clear of all liens, encumbrances,
security interests, equities, charges or claims.
(i) Ownership of the Sponsor Units and Incentive Distribution Rights.
Assuming no exercise of the Underwriters' over-allotment option, at the First
Delivery Date, the General Partner will own 7,472,528 Common Units and
12,472,528 Subordinated Units (all such Common and Subordinated Units being
collectively referred to herein as the "Sponsor Units"); at each Delivery Date
the General Partner will own all of the Incentive Distribution Rights, and such
Incentive Distribution Rights will be duly authorized and validly issued in
accordance with the Partnership Agreement, and will be fully paid (to the extent
required under the Partnership Agreement) and nonassessable (except as such
nonassessability may be affected by matters described in the Prospectus under
the caption "The Partnership Agreement--Limited Liability"); all of such Sponsor
Units and the limited partner interests represented thereby will be duly
authorized and validly issued in accordance with the Partnership Agreement, and
will be fully paid (to the extent required under the Partnership Agreement) and
nonassessable (except as such nonassessability may be affected by matters
described in the Prospectus under the caption "The Partnership
Agreement--Limited Liability"); and the General Partner will own the Sponsor
Units and the Incentive Distribution Rights free and clear of all liens,
encumbrances (except, with respect to the Incentive Distribution Rights,
restrictions on transferability as described in the Prospectus), security
interests, equities, charges or claims.
(j) Valid Issuance of Firm Units. At the First Delivery Date, there
will be issued to the Underwriters the Firm Units (assuming no purchase by the
Underwriters of Option Units); at the First Delivery Date or the Second Delivery
Date, as the case may be, the Firm Units or the Option Units, as the case may
be, and the limited partner interests represented thereby will be duly
authorized by the Partnership Agreement and, when issued and delivered to the
Underwriters or the Sunoco Related Party against payment therefor in accordance
with the terms hereof, will be validly issued, fully paid (to the extent
required under the Partnership Agreement) and nonassessable (except as such
nonassessability may be affected by matters described in the Prospectus under
the caption "The Partnership Agreement--Limited Liability"); and other than the
Sponsor Units and the Incentive Distribution Rights, the Units will be the only
limited partner interests of the Partnership issued and outstanding at each
Delivery Date.
(k) Ownership of LA LLC. At each Delivery Date, the General Partner
will own a 100% membership interest in LA LLC; such membership interest will
have been duly authorized and validly issued in accordance with the limited
liability company agreement of LA LLC (as the same may be amended and restated
at or prior to each Delivery Date, the "LA LLC Agreement") and will be fully
paid (to the extent required under the LA LLC Agreement) and nonassessable
(except as such nonassessability may be affected by Section 18-607 of the
Delaware LLC Act); and the General Partner will
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own such membership interest free and clear of all liens, encumbrances, security
interests, equities, charges or claims.
(l) Ownership of GP LLC. At each Delivery Date, the Partnership will
own a 100% membership interest in GP LLC; such membership interest will have
been duly authorized and validly issued in accordance with the limited liability
company agreement of GP LLC (as the same may be amended and restated at or prior
to each Delivery Date, the "GP LLC Agreement") and will be fully paid (to the
extent required under the GP LLC Agreement) and nonassessable (except as such
nonassessability may be affected by Section 18-607 of the Delaware LLC Act); and
the Partnership will own such membership interest free and clear of all liens,
encumbrances, security interests, equities, charges or claims.
(m) Ownership of Operating Partnership. At each Delivery Date:
(i) GP LLC will be the sole general partner of the Operating Partnership
with a .01% general partner interest in the Operating Partnership; such general
partner interest will be duly authorized and validly issued in accordance with
the Partnership Agreement of the Operating Partnership (as the same may be
amended and restated at or prior to the First Time of Delivery, the "Operating
Partnership Agreement"); and GP LLC will own such general partner interest free
and clear of all liens, encumbrances (except restrictions on transferability as
described in the Prospectus), security interests, equities, charges or claims;
and
(ii) the Partnership will be the sole limited partner of the Operating
Partnership with a 99.99% limited partner interest in the Operating Partnership;
such limited partner interest will have been duly authorized and validly issued
in accordance with the Operating Partnership Agreement and will be fully paid
(to the extent required under the Operating Partnership Agreement) and
nonassessable (except as such nonassessability may be affected by matters
described in the Prospectus under the caption "The Partnership
Agreement--Limited Liability"); and the Partnership will own such limited
partner interest free and clear of all liens, encumbrances, security interests,
equities, charges or claims.
(n) Ownership of OLP GP LLC. At each Delivery Date, the Operating
Partnership will own a 100% membership interest in OLP GP LLC; such membership
interest will have been duly authorized and validly issued in accordance with
the respective limited liability company agreement of OLP GP LLC (as the same
may be amended and restated at or prior to each Delivery Date, the "OLP GP LLC
Agreement") and will be fully paid (to the extent required under the OLP GP LLC
Agreement) and nonassessable (except as such nonassessability may be affected by
Section 18-607 of the Delaware LLC Act); and other than as set forth in the
Prospectus, the Operating Partnership will own such membership interests free
and clear of all liens, encumbrances, security interests, equities, charges or
claims.
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(o) Ownership of Sun Pipeline LP and RM In LP. At each Delivery Date:
(i) OLP GP LLC will be the sole general partner of Xxx Xxxxxxxx LP and RM
In LP with a .01% general partner interest in each of Sun Pipeline LP and RM In
LP; such general partner interests will be duly authorized and validly issued in
accordance with the partnership agreement of each of Sun Pipeline LP and RM In
LP (together, as the same may be amended and restated at or prior to the First
Time of Delivery, the "Operating Subsidiary Partnership Agreements"); and OLP GP
LLC will own such general partner interests free and clear of all liens,
encumbrances (except restrictions on transferability as described in the
Prospectus), security interests, equities, charges or claims; and
(ii) the Operating Partnership will be the sole limited partner of each of
Sun Pipeline LP and RM In LP with a 99.99% limited partner interest in each of
Sun Pipeline LP and RM In LP; such limited partner interests will have been duly
authorized and validly issued in accordance with each Operating Subsidiary
Partnership Agreement and will be fully paid (to the extent required under the
Operating Subsidiary Partnership Agreements) and nonassessable (except as such
nonassessability may be affected by matters described in the Prospectus under
the caption "The Partnership Agreement--Limited Liability"); and the Partnership
will own such limited partner interests free and clear of all liens,
encumbrances, security interests, equities, charges or claims.
(p) Ownership of General Partner. At each Delivery Date, Sun Delaware,
Sun Texas, Sunoco R&M and Atlantic Petroleum will own 100% of the membership
interests in the General Partner; such membership interests will be duly
authorized and validly issued in accordance with the limited liability company
agreement of the General Partner (as the same may be amended and restated at or
prior to each Delivery Date, the "General Partner LLC Agreement") and will be
fully paid (to the extent required under the General Partner LLC Agreement) and
nonassessable; and Sun Delaware, Sun Texas, Sunoco R&M and Atlantic Petroleum
will own such membership interests free and clear of all liens, encumbrances,
security interests, equities, charges or claims.
(q) Ownership of Other Entities. At each Delivery Date, Sunoco will
own, directly or indirectly, all of the issued and outstanding capital stock,
membership interests or partnership interests, as the case may be, of Sun
Delaware, Sunoco R&M, Sun Atlantic R&M, Sun Atlantic BV, Atlantic Petroleum, Sun
Texas, Atlantic Out LLC, Michigan In LLC, Mid-Con In LLC, Services LP, Atlantic
In LP, Atlantic RM In LP, Atlantic Out LP and Atlantic Out LP free and clear of
all liens, encumbrances, security interests, equities, charges or claims.
(r) No Other Subsidiaries. Other than (A) the Partnership's ownership
of a 100% membership interest in GP LLC and a 99.99% limited partner interest in
the Operating Partnership, (B) GP LLC's ownership of a .01% general partner
interest in the Operating Partnership, (C) the Operating Partnership's ownership
of a 100% membership
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interest in OLP GP LLC, Michigan In LLC and Mid-Con In LLC and a 99.99% limited
partner interest in each of Sun Pipeline LP, RM In LP, Services LP, Atlantic In
LP and Atlantic RM In LP, and (D) OLP GP LLC's ownership of a .01% general
partner interest in each of Sun Pipeline LP, RM In LP, Services LP, Atlantic In
LP and Atlantic RM In LP, neither the Partnership, GP LLC, the Operating
Partnership nor OLP GP LLC own, and at the First Delivery Date and the Second
Delivery date, neither will own, directly or indirectly, any equity or long-term
debt securities of any corporation, partnership, limited liability company,
joint venture, association or other entity. Other than its ownership of its
partnership interests in the Partnership and its ownership of a 100% membership
interest in LA LLC, the General Partner does not own, and at the First Delivery
Date and Second Delivery Date will not own, directly or indirectly, any equity
or long-term debt securities of any corporation, partnership, limited liability
company, joint venture, association or other entity.
(s) No Preemptive Rights, Registration Rights or Options. Except as
described in the Prospectus, there are no preemptive rights or other rights to
subscribe for or to purchase, nor any restriction upon the voting or transfer
of, any partnership or membership interests in the Partnership Entities, in each
case pursuant to the organizational documents or any agreement or other
instrument to which any Partnership Entity is a party or by which any of them
may be bound. Neither the filing of the Registration Statement nor the offering
or sale of the Units as contemplated by this Agreement gives rise to any rights
for or relating to the registration of any Units or other securities of the
Partnership or any of its subsidiaries, other than as provided in the
Partnership Agreement or as have been waived. Except as described in the
Prospectus, there are no outstanding options or warrants to purchase any
partnership or membership interests in any Partnership Entity. The Partnership
has all requisite power and authority to issue, sell and deliver (i) the Units,
in accordance with and upon the terms and conditions set forth in this
Agreement, the Partnership Agreement, the Registration Statement and Prospectus,
and (ii) the Subordinated Units and the Incentive Distribution Rights, in
accordance with the terms and conditions set forth in the Partnership Agreement
and the Merger and Contribution Agreements. At each Delivery Date, all
corporate, partnership and limited liability company action, as the case may be,
required to be taken by the Sunoco Entities or any of their stockholders,
partners or members for the authorization, issuance, sale and delivery of the
Units, the Subordinated Units and the Incentive Distribution Rights, the
execution and delivery of the Operative Agreements (as defined in Section 1(v))
and the consummation of the transactions (including the Transactions)
contemplated by this Agreement and the Operative Agreements (as herein defined)
shall have been validly taken.
(t) Enforceability of Agreement. This Agreement has been duly
authorized and validly executed and delivered by each of the Sunoco Parties, and
constitutes the valid and legally binding agreement of each of the Sunoco
Parties, enforceable against each of the Sunoco Parties in accordance with its
terms, provided that the enforceability hereof may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws
relating to or affecting creditors' rights generally and by general principles
of equity (regardless of whether such enforceability is
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considered in a proceeding in equity or at law); provided, further, that the
indemnity and contribution provisions hereunder may be limited by federal or
state securities laws.
(u) Conformity to Description of Units and Incentive Distribution
Rights. The Units, when issued and delivered against payment therefor as
provided herein, and the Subordinated Units and the Incentive Distribution
Rights, when issued and delivered in accordance with the terms of the
Partnership Agreement, will conform in all material respects to the descriptions
thereof contained in the Prospectus.
(v) Enforceability of Other Agreements. At or before the First
Delivery Date:
(i) the Partnership Agreement will have been duly authorized, executed and
delivered by the General Partner and Sun Delaware as the "Organizational Limited
Partner," and will be a valid and legally binding agreement of the General
Partner and the Organizational Limited Partner, enforceable against the General
Partner and the Organizational Limited Partner in accordance with its terms;
(ii) the LA LLC Agreement will have been duly authorized, executed and
delivered by the Partnership and will be a valid and legally binding agreement
of the Partnership, enforceable against the Partnership in accordance with its
terms;
(iii) the GP LLC Agreement will have been duly authorized, executed and
delivered by the Partnership and will be a valid and legally binding agreement
of the Partnership, enforceable against the Partnership in accordance with its
terms;
(iv) the Operating Partnership Agreement will have been duly authorized,
executed and delivered by GP LLC and the Partnership and will be a valid and
legally binding agreement of GP LLC and the Partnership, enforceable against GP
LLC and the Partnership in accordance with its terms;
(v) the OLP GP LLC Agreement will have been duly authorized, executed and
delivered by the Operating Partnership and will be a valid and legally binding
agreement of the Operating Partnership, enforceable against the Operating
Partnership in accordance with its terms;
(vi) the Operating Subsidiary Partnership Agreements will have been duly
authorized, executed and delivered by OLP GP LLC and the Operating Partnership
and will be a valid and legally binding agreement of OLP GP LLC and the
Operating Partnership, enforceable against OLP GP LLC and the Operating
Partnership in accordance with its terms;
(vii) the General Partner LLC Agreement will have been duly authorized,
executed and delivered by Sun Delaware, Sun Texas, Sunoco R&M, Atlantic
Petroleum and Atlantic Out LP and will be a valid and legally binding agreement
of each of Sun Delaware, Sun Texas, Sunoco R&M, Atlantic Petroleum and Atlantic
Out LP, enforceable against the Operating Partnership in accordance with its
terms;
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(viii) the Purchase Agreement will have been duly authorized, executed and
delivered by the Operating Partnership and by OLP GP LLC, Sun Pipeline LP and RM
In LP (collectively, the "Subsidiary Guarantors") and will be a valid and
legally binding agreement of the Operating Partnership and the Subsidiary
Guarantors enforceable against the Operating Partnership and the Subsidiary
Guarantors in accordance with its terms;
(ix) the Indenture will have been duly authorized, executed and delivered
by the Operating Partnership, the Subsidiary Guarantors and the trustee
thereunder and will be a valid and legally binding agreement of the Operating
Partnership and each of the Subsidiary Guarantors enforceable against the
Operating Partnership and the Subsidiary Guarantors in accordance with its
terms;
(x) the Notes will have been duly authorized for issuance and sale to the
initial purchasers thereof and, when issued and authenticated in accordance with
the terms of the Purchase Agreement, will constitute the valid and binding
obligations of the Operating Partnership and each of the Subsidiary Guarantors
enforceable against the Operating Partnership and each of the Subsidiary
Guarantors and entitled to the benefits of the Indenture;
(xi) the Credit Agreement will have been duly authorized, executed and
delivered by the Operating Partnership and the Subsidiary Guarantors and will be
a valid and legally binding agreement of the Operating Partnership and the
Subsidiary Guarantors enforceable against the Operating Partnership and the
Subsidiary Guarantors in accordance with its terms;
(xii) each of the Merger and Contribution Agreements will have been duly
authorized, executed and delivered by the parties thereto and will be a valid
and legally binding agreement of each of them enforceable against each of them
in accordance with its terms;
(xiii) an omnibus agreement (the "Omnibus Agreement") will have been duly
authorized, executed and delivered by each of Sunoco, Sunoco R&M, Sun Delaware,
Atlantic Petroleum, the General Partner, the Partnership and the Operating
Partnership, and will be a valid and legally binding agreement of each of them
enforceable against each of them in accordance with its terms;
(xiv) a pipelines and terminals storage and throughput agreement (the
"Pipelines and Terminals Agreement") will have been duly authorized, executed
and delivered by each of Sunoco, Sunoco R&M, the General Partner, the
Partnership, the Operating Partnership [and the other parties thereto], and will
be a valid and legally binding agreement of each of them enforceable against
each of them in accordance with its terms;
(xv) eight crude oil purchase agreements (the "Crude Oil Purchase
Agreements") will have been duly authorized, executed and delivered by each of
Sunoco, Sunoco R&M, the General Partner, the Partnership, Operating
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Partnership [and the other parties thereto], and will be a valid and legally
binding agreement of each of them enforceable against each of them in accordance
with its terms;
(xvi) a lease agreement (the "Lease Agreement") will have been duly
authorized, executed and delivered by Sunoco R&M, the General Partner, the
Partnership, the Operating Partnership [and the other parties thereto], and will
be a valid and legally binding agreement of each of them enforceable against
each of them in accordance with its terms; and
(xvii) a cash management agreement (the "Cash Management Agreement") will
have been duly authorized, executed and delivered by each of Sunoco, the General
Partner, the Partnership, the Operating Partnership [and the other parties
thereto], and will be a valid and legally binding agreement of each of them
enforceable against each of them in accordance with its terms;
provided that, with respect to each agreement described in this Section 1(ll),
the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and provided further, that the indemnity, contribution and exoneration
provisions contained in any of such agreements may be limited by applicable laws
and public policy. The Partnership Agreement, the LA LLC Agreement, the GP LLC
Agreement, the OLP GP LLC Agreement, the Operating Subsidiary Partnership
Agreements, the General Partner LLC Agreement, the Purchase Agreement, the
Indenture, the Notes, the Credit Agreement, the Merger and Contribution
Agreements, the Omnibus Agreement, the Pipelines and Terminals Agreement, the
Crude Oil Purchase Agreements, the Lease Agreement and the Cash Management
Agreement are herein collectively referred to as the "Operative Agreements."
(w) Effective Date of Mergers and Conversions. Prior to the First
Delivery Date, the Mergers became effective under the Texas LLC Act, the TBCA,
the Delaware LLC Act and the DGCL, as applicable, and the Conversion became
effective under the DGCL and the Delaware LLC Act.
(x) Sufficiency of Transferred Assets Under Conveyances. The
Conveyances will be legally sufficient to transfer or convey to the Operating
Partnership and the Operating Subsidiaries all properties not already held by
them that are, individually or in the aggregate, required to enable the
Operating Partnership and the Operating Subsidiaries to conduct their operations
(in all material respects as contemplated by the Prospectus), subject to the
conditions, reservations and limitations contained in the Merger and
Contribution Agreements and those set forth in the Prospectus. The Operating
Partnership and the Operating Subsidiaries, upon execution and delivery of the
Conveyances, succeeded or will succeed in all material respects to the business,
assets, properties, liabilities and operations of the Sunoco Logistics Business
as reflected by the pro forma financial statements of the Partnership, except as
disclosed in the Prospectus and the Merger and Contribution Agreements.
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(y) No Conflicts. None of the offering, issuance and sale by the
Partnership of the Units, the execution, delivery and performance of this
Agreement or the Operative Agreements by the Sunoco Entities which are parties
hereto or thereto, or the consummation of the transactions contemplated hereby
and thereby (including the Transactions) (i) conflicted, conflicts or will
conflict with or constituted, constitutes or will constitute a violation of the
agreement of limited partnership, limited liability company agreement,
certificate or articles of incorporation or bylaws or other organizational
documents of any of the Sunoco Entities, (ii) conflicted, conflicts or will
conflict with or constituted, constitutes or will constitute a breach or
violation of, or a default (or an event which, with notice or lapse of time or
both, would constitute such a default) under, any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which any of
the Sunoco Entities is a party or by which any of them or any of their
respective properties may be bound, (iii) violated, violates or will violate any
statute, law or regulation or any order, judgment, decree or injunction of any
court or governmental agency or body directed to any of the Sunoco Entities or
any of their properties in a proceeding to which any of them or their property
is or was a party, or (iv) resulted, results or will result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of any
of the Sunoco Entities, which conflicts, breaches, violations, defaults or
liens, in the case of clauses (ii), (iii) or (iv), would, individually or in the
aggregate, have a Material Adverse Effect.
(z) No Consents. No permit, consent, approval, authorization, order,
registration, filing or qualification ("consent") of or with any court,
governmental agency or body having jurisdiction over the Sunoco Entities or any
of their respective properties is required in connection with the offering,
issuance and sale by the Partnership of the Units, the execution, delivery and
performance of this Agreement and the Operative Agreements by the Sunoco
Entities party thereto, or the consummation by the Sunoco Entities of the
transactions contemplated by this Agreement or the Operative Agreements
(including the Transactions), except (i) for such consents required under the
Securities Act, the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and state securities or "Blue Sky" laws, (ii) for such consents that have
been, or prior to each Delivery Date will be, obtained, (iii) for such consents
which, if not obtained, would not, individually or in the aggregate, have a
Material Adverse Effect, (iv) for such consents which are (A) of a routine or
administrative nature, (B) are not customarily obtained or made prior to the
consummations of transactions such as those contemplated by this Agreement and
the Operative Agreements and (C) are expected in the reasonable judgment of the
General Partner to be obtained in the ordinary course of business subsequent to
the consummation of the Transactions, and (v) as disclosed in the Prospectus.
(aa) No Default. None of the Sunoco Entities is (i) in violation of
its certificate or agreement of limited partnership, limited liability
company agreement, certificate or articles of incorporation or bylaws or
other organizational documents, (ii) in violation of any law, statute,
ordinance, administrative or governmental rule or regulation applicable to
it or of any order, judgment, decree or injunction of any court or
governmental agency or body having jurisdiction over it, or (iii) in
breach, default (or an event which, with notice or lapse of time or both,
would constitute such a default) or
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violation in the performance of any obligation, agreement or condition contained
in any bond, debenture, note or any other evidence of indebtedness or in any
agreement, indenture, lease or other instrument to which it is a party or by
which it or any of its properties may be bound, which breach, default or
violation, in the case of clause (ii) or (iii), would, if continued, have a
Material Adverse Effect, or could materially impair the ability of any of the
Sunoco Entities to perform their obligations under this Agreement or the
Operative Agreements. To the knowledge of the Sunoco Parties, no third party to
any indenture, mortgage, deed of trust, loan agreement, lease or other agreement
or instrument to which any of the Sunoco Entities is a party or by which any of
them are bound or to which any of their properties are subject, is in default
under any such agreement, which breach, default or violation would, if
continued, have a Material Adverse Effect.
(bb) Independent Public Accountants. The accountants, Xxxxx & Young
LLP, who have certified or shall certify the audited financial statements
included in the Registration Statement, any Preliminary Prospectus and the
Prospectus (or any amendment or supplement thereto) are independent public
accountants with respect to the Partnership and the General Partner as required
by the Securities Act and the Rules and Regulations.
(cc) Financial Statements. At _____________, 2001, the Partnership
would have had, on the consolidated pro forma basis indicated in the Prospectus
(and any amendment or supplement thereto), a capitalization as set forth
therein. The historical combined financial statements (including the related
notes and supporting schedules) of the Sunoco Logistics Business included in the
Registration Statement, the Preliminary Prospectus dated ____________, 2002 and
the Prospectus (and any amendment or supplement thereto) present fairly in all
material respects the financial position, results of operations and cash flows
of the entities purported to be shown thereby on the basis stated therein at the
respective dates or for the respective periods which have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except to the extent disclosed therein. The
selected historical and pro forma financial information set forth in the
Registration Statement, the Preliminary Prospectus dated ____________, 2002 and
the Prospectus (and any amendment or supplement thereto) under the caption
"Selected Historical Financial and Operating Data of Sunoco Logistics
(Predecessor) and Pro Forma Financial Data of Sunoco Logistics Partners" is
accurately presented in all material respects and prepared on a basis consistent
with the audited and unaudited historical consolidated financial statements and
pro forma financial statements from which it has been derived. The pro forma
financial statements of the Partnership included in the Registration Statement,
the Preliminary Prospectus dated ____________, 2002 and the Prospectus (and any
amendment or supplement thereto) have been prepared in all material respects in
accordance with the applicable accounting requirements of Article 11 of
Regulation S-X of the Commission; the assumptions used in the preparation of
such pro forma financial statements are, in the opinion of the management of the
Sunoco Parties, reasonable; and the pro forma adjustments reflected in such pro
forma financial statements have been properly applied to the historical amounts
in compilation of such pro forma financial statements.
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(dd) No Material Adverse Change. None of the Partnership Entities has
sustained since the date of the latest audited financial statements included in
the Registration Statement and the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
investigation, order or decree, otherwise than as set forth or contemplated in
the Registration Statement and the Prospectus. Except as disclosed in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto), subsequent to the respective dates as of which such information is
given in the Registration Statement and the Prospectus (or any amendment or
supplement thereto), (i) none of the Sunoco Entities has incurred any liability
or obligation, indirect, direct or contingent, or entered into any transactions,
not in the ordinary course of business, that, singly or in the aggregate, is
material to the Partnership Entities, taken as a whole, (ii) there has not been
any material change in the capitalization, or material increase in the
short-term debt or long-term debt, of the Partnership Entities and (iii) there
has not been any material adverse change, or any development involving or which
may reasonably be expected to involve, singly or in the aggregate, a prospective
material adverse change in or affecting the general affairs, condition
(financial or other), business, prospects, assets or results of operations of
the Partnership Entities, taken as a whole.
(ee) Legal Proceedings. There are no legal or governmental proceedings
pending or, to the knowledge of the Sunoco Parties, threatened, against any of
the Sunoco Entities, or to which any of the Sunoco Entities is a party, or to
which any of their respective properties is subject, that are required to be
described in the Registration Statement or the Prospectus but are not described
as required, and there are no agreements, contracts, indentures, leases or other
instruments that are required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the Registration Statement that
are not described or filed as required by the Securities Act.
(ff) No Distribution of Other Offering Materials. None of the Sunoco
Parties has distributed and, prior to the later to occur of (i) the First
Delivery Date and (ii) completion of the distribution of the Units, will not
distribute, any prospectus (as defined under the Securities Act) in connection
with the offering and sale of the Units other than the Registration Statement,
any Preliminary Prospectus, the Prospectus or other materials, if any, permitted
by the Securities Act, including Rule 134 of the Rules and Regulations.
(gg) Title to Properties. The Operating Partnership and the Operating
Subsidiaries have good and indefeasible title to all real property and good
title to all personal property described in the Prospectus to be owned by the
Operating Partnership and the Operating Subsidiaries, free and clear of all
liens, claims, security interests or other encumbrances except (i) as described
in the Prospectus or (ii) such as do not materially interfere with the use of
such properties taken as a whole as they have been used in the past and are
proposed to be used in the future as described in the Prospectus, provided that,
with respect to any real property and buildings held under lease by the
Operating Partnership and the Operating Subsidiaries, such real property and
buildings are held under valid and subsisting and enforceable leases with such
exceptions as do not
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materially interfere with the use of such properties taken as a whole as they
have been used in the past and are proposed to be used in the future as
described in the Prospectus.
(hh) Rights-of-Way. Each of the Partnership Entities has, or at each
Delivery Date will have, such consents, easements, rights-of-way, permits or
licenses from each person ("rights-of-way") as are necessary to conduct its
business in the manner described in the Prospectus, except for (i)
qualifications as may be set forth in the Prospectus that do not and could not
reasonably be expected to have a material adverse effect upon the ability of the
Partnership Entities, taken as a whole, to conduct their businesses in all
material respects as currently conducted and as contemplated by the Prospectus
to be conducted and (ii) such rights-of-way that, if not obtained, would not
have, individually or in the aggregate, a material adverse effect upon the
ability of the Partnership Entities, taken as a whole, to conduct their
businesses in all material respects as currently conducted and as contemplated
by the Prospectus to be conducted; each of the Partnership Entities has, or at
each Delivery Date will have, fulfilled and performed all its material
obligations with respect to such rights-of-way and no event has occurred that
allows, or after notice or lapse of time would allow, revocation or termination
thereof or would result in any impairment of the rights of the holder of any
such rights-of-way, except for such revocations, terminations and impairments
that would not have a material adverse effect upon the ability of the
Partnership Entities, taken as a whole, to conduct their businesses in all
material respects as currently conducted and as contemplated by the Prospectus
to be conducted; and, except as described in the Prospectus, none of such
rights-of-way contains any restriction that is materially burdensome to the
Partnership Entities, taken as a whole.
(ii) Permits. Each of the Partnership Entities has, or at each
Delivery Date will have, such permits, consents, licenses, franchises,
certificates and authorizations of governmental or regulatory authorities
("permits") as are necessary to own or lease its properties and to conduct its
business in the manner described in the Prospectus, subject to such
qualifications as may be set forth in the Prospectus and except for such permits
that, if not obtained, would not have, individually or in the aggregate, a
Material Adverse Effect; each of the Partnership Entities has, or at each
Delivery Date will have, fulfilled and performed all its material obligations
with respect to such permits and no event has occurred that would prevent the
permits from being renewed or reissued or which allows, or after notice or lapse
of time would allow, revocation or termination thereof or results or would
result in any impairment of the rights of the holder of any such permit, except
for such non-renewals, non-issues, revocations, terminations and impairments
that would not, individually or in the aggregate, have a Material Adverse
Effect.
(jj) Books and Records. The Partnership (i) makes and keeps books,
records and accounts that, in reasonable detail, accurately and fairly reflect
the transactions and dispositions of assets and (ii) maintains systems of
internal accounting controls sufficient to provide reasonable assurances that
(A) transactions are executed in accordance with management's general or
specific authorization; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (C)
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access to assets is permitted only in accordance with management's general or
specific authorization; and (D) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(kk) Tax Returns. Each of the Sunoco Entities has filed (or has
obtained extensions with respect to) all material federal, state and foreign
income and franchise tax returns required to be filed through the date hereof,
which returns are complete and correct in all material respects, and has timely
paid all taxes shown to be due pursuant to such returns, other than those (i)
that are being contested in good faith and for which adequate reserves have been
established in accordance with generally accepted accounting principles or (ii)
which, if not paid, would not reasonably be likely to result in a Material
Adverse Effect.
(ll) Investment Company/Public Utility Holding Company. None of the
Partnership Entities is now, and after sale of the Units to be sold by the
Partnership hereunder and application of the net proceeds from such sale as
described in the Prospectus under the caption "Use of Proceeds" will be, (i) an
"investment company" or a company "controlled by" an "investment company" within
the meaning of the Investment Company Act of 1940, as amended, or (ii) a "public
utility company," "holding company" or a "subsidiary company" of a "holding
company" or an "affiliate" thereof, under the Public Utility Holding Company Act
of 1935, as amended.
(mm) Environmental Compliance. The Sunoco Entities (i) are in
compliance with any and all applicable federal, state and local laws and
regulations relating to the protection of human health and safety and the
environment or imposing liability or standards of conduct concerning any
Hazardous Materials (as defined below) ("Environmental Laws"), (ii) have
received all permits required of them under applicable Environmental Laws to
conduct their respective businesses, (iii) are in compliance with all terms and
conditions of any such permits and (iv) do not have any liability in connection
with the release into the environment of any Hazardous Material, except where
such noncompliance with Environmental Laws, failure to receive required permits,
failure to comply with the terms and conditions of such permits or liability
would not, individually or in the aggregate, have a Material Adverse Effect. The
term "Hazardous Material" means (A) any "hazardous substance" as defined in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, (B) any "hazardous waste" as defined in the Resource Conservation and
Recovery Act, as amended, (C) any petroleum or petroleum product, (D) any
polychlorinated biphenyl and (E) any pollutant or contaminant or hazardous,
dangerous or toxic chemical, material, waste or substance regulated under or
within the meaning of any other Environmental Law.
(nn) No Labor Dispute. Except as disclosed in the Prospectus, no labor
dispute with the employees of the Sunoco Entities that are engaged in the Sunoco
Logistics Business exists or, to the knowledge of the Sunoco Parties, is
imminent or threatened; and except as disclosed in the Prospectus, none of the
Sunoco Parties is aware of any existing, imminent or threatened labor
disturbance by the employees of any of its
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lessees that would, individually or in the aggregate, be reasonably likely to
result in a Material Adverse Effect.
(oo) Insurance. The Sunoco Entities maintain insurance covering their
properties, operations, personnel and businesses against such losses and risks
as are reasonably adequate to protect them and their businesses in a manner
consistent with other businesses similarly situated. None of the Sunoco Entities
has received notice from any insurer or agent of such insurer that substantial
capital improvements or other expenditures will have to be made in order to
continue such insurance; all such insurance is outstanding and duly in force on
the date hereof and will be outstanding and duly in force on each Delivery Date.
(pp) Litigation. Except as described in the Prospectus, there is (i)
no action, suit or proceeding before or by any court, arbitrator or governmental
agency, body or official, domestic or foreign, now pending or, to the knowledge
of the Sunoco Parties, threatened, to which any of the Sunoco Entities is or may
be a party or to which the business or property of any of the Sunoco Entities is
or may be subject, (ii) no statute, rule, regulation or order that has been
enacted, adopted or issued by any governmental agency or that has been proposed
by any governmental agency, and (iii) no injunction, restraining order or order
of any nature issued by a federal or state court or foreign court of competent
jurisdiction to which any of the Sunoco Entities is or may be subject, that, in
the case of clauses (i), (ii) and (iii) above, is reasonably expected to (A)
singly or in the aggregate have a Material Adverse Effect, (B) prevent or result
in the suspension of the offering and issuance of the Units, or (C) in any
manner draw into question the validity of this Agreement or any Operative
Agreement.
(qq) Private Placement. The offer, sale and issuance of the Sponsor
Units and the Incentive Distribution Rights to the General Partner pursuant to
the Partnership Agreement are exempt from the registration requirements of the
Securities Act, the Rules and Regulations and the securities laws of any state
having jurisdiction with respect thereto, and none of the Sunoco Entities has
taken or will take any action that would cause the loss of such exemption.
(rr) NYSE Listing. The Units have been approved for listing on the New
York Stock Exchange ("NYSE"), subject only to official notice of issuance.
(ss) Directed Unit Sales. None of the Directed Units (as defined in
Section 5(l) below) distributed in connection with the Directed Unit Program (as
defined in Section 5(l) below) will be offered or sold outside of the United
States.
2. Purchase of the Units. On the basis of the representations and
warranties contained in, and subject to the terms and conditions of, this
Agreement, the Partnership agrees to sell 5,000,000 Firm Units to the several
Underwriters, and each of the Underwriters, severally and not jointly, agrees to
purchase the number of Firm Units set forth opposite that Underwriter's name in
Schedule 1 hereto. The respective purchase obligations of the Underwriters with
respect to the Firm Units shall be rounded among the Underwriters to avoid
fractional shares, as the Representatives may determine.
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In addition, the Partnership grants to the Underwriters an option to
purchase up to 750,000 Option Units. Such option is granted for the purpose of
covering over-allotments in the sale of Firm Units and is exercisable as
provided in Section 4 hereof. Option Units shall be purchased severally for the
account of the Underwriters in proportion to the number of Firm Units set forth
opposite the names of such Underwriters in Schedule 1 hereto. The respective
purchase obligations of each Underwriter with respect to the Option Units shall
be adjusted by the Representatives so that no Underwriter shall be obligated to
purchase Option Units other than in 100 Unit amounts.
In the event the Underwriters do not exercise the option described in the
preceding paragraph in full within the time prescribed by Section 4 hereof,
Sunoco or an affiliate-designee that is not a Partnership Entity (including
Sunoco, each a "Sunoco Related Party") shall purchase the number of Option Units
not purchased by the Underwriters pursuant to such option in the manner provided
in Section 4 hereof.
The price of both the Firm Units and any Option Units shall be ______ per
Unit.
The Partnership shall not be obligated to deliver any of the Units to be
delivered on the First Delivery Date or the Second Delivery Date (as hereinafter
defined), as the case may be, except upon payment for all the Units to be
purchased on such Delivery Date as provided herein.
3. Offering of Units by the Underwriters. Upon authorization by the
Representatives of the release of the Firm Units, the several Underwriters
propose to offer the Firm Units for sale upon the terms and conditions set forth
in the Prospectus.
4. Delivery of and Payment for the Units. Delivery of and payment for the
Firm Units shall be made at the offices of Xxxxxx & Xxxxxx L.L.P. at 10:00 A.M.,
New York City time, on the fourth full business day following the date of this
Agreement or at such other date or place as shall be determined by agreement
between the Representatives and the Partnership. This date and time are
sometimes referred to as the "First Delivery Date." On the First Delivery Date,
the Partnership shall cause its transfer agent to deposit as original issue the
Firm Units pursuant to the Full Fast Delivery Program of The Depository Trust
Company ("DTC") for the account of each Underwriter against payment to or upon
the order of the Partnership of the purchase price by wire transfer of
immediately available funds. Time shall be of the essence, and delivery at the
time and place specified pursuant to this Agreement is a further condition of
the obligation of each Underwriter hereunder.
The option granted in Section 2 will expire 30 days after the date of this
Agreement and may be exercised in whole or in part from time to time by written
notice being given to the Partnership by the Representatives. Such notice shall
set forth the aggregate number of Option Units as to which the option is being
exercised, the names in which the Option Units are to be registered, the
denominations in which the Option Units are to be issued and the date and time,
as determined by the Representatives, when the Option Units are to be delivered;
provided, however, that this date and time shall not be earlier than the First
Delivery Date nor earlier than the second business day after the date on which
the option shall have been exercised nor later than the fifth business day after
the date on which the option shall have been exercised.
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In the event the Underwriters do not exercise the option granted in Section
2 in full within the time prescribed by the preceding paragraph, the Partnership
shall provide Sunoco with written notice of the same, together with the date and
time, as determined by the Partnership, when the remaining Option Units are to
be delivered; provided, however, that this date and time shall not be earlier
than the second business day or later than the fifth business day after the date
on which such notice is given.
The date and time the Option Units are delivered are sometimes referred to
as the "Second Delivery Date," and the First Delivery Date and the Second
Delivery Date are sometimes each referred to as a "Delivery Date."
Delivery of and payment for the Option Units shall be made at the place
specified in the first sentence of the first paragraph of this Section 4 (or at
such other place as shall be determined by agreement between the Representatives
or the Sunoco Related Party, as the case may be, and the Partnership) at 10:00
A.M., New York City time, on the Second Delivery Date. On the Second Delivery
Date, the Partnership shall cause its transfer agent to deposit as original
issue the Option Units pursuant to the Full Fast Delivery Program of the DTC for
the account of each Underwriter or the Sunoco Related Party, as the case may be,
against payment to or upon the order of the Partnership of the purchase price by
wire transfer of immediately available funds. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligation of each Underwriter, but shall not be a further
condition of the obligation of any Sunoco Related Party hereunder.
5. Further Agreements of the Sunoco Parties. Each of the Sunoco Parties,
jointly and separately, covenants and agrees with each Underwriter:
(a) Preparation of Prospectus and Registration Statement. (i) To
prepare the Prospectus in a form approved by the Representatives and to file
such Prospectus pursuant to Rule 424(b) under the Securities Act not later than
Commission's close of business on the second business day following the
execution and delivery of this Agreement or, if applicable, such earlier time as
may be required by Rule 430A(a)(3) under the Securities Act; (ii) to make no
further amendment or any supplement to the Registration Statement or to the
Prospectus except as permitted herein; (iii) to advise the Representatives,
promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed and to furnish the
Representatives with copies thereof; (iv) to advise the Representatives,
promptly after it receives notice thereof, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, of the suspension of the qualification
of the Units for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose or of any request by the
Commission for the amending or supplementing of the Registration Statement or
the Prospectus or for additional information; and (v) in the event of the
issuance of any stop order or of any order preventing or suspending the use of
any Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal.
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(b) Signed Copies of Registration Statements. To furnish promptly to
each of the Representatives and to counsel for the Underwriters a signed copy of
the Registration Statement as originally filed with the Commission, and each
amendment thereto filed with the Commission, including all consents and exhibits
filed therewith.
(c) Copies of Documents to Representatives. To deliver promptly to the
Representatives such number of the following documents as the Representatives
shall reasonably request: (i) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in each case
excluding exhibits) and (ii) each Preliminary Prospectus, the Prospectus and any
amended or supplemented Prospectus; and, if the delivery of a prospectus is
required at any time after the Effective Time in connection with the offering or
sale of the Units or any other securities relating thereto and if at such time
any events shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus in order to comply with the
Securities Act, to notify the Representatives and, upon their request, to
prepare and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time
reasonably request of an amended or supplemented Prospectus which will correct
such statement or omission or effect such compliance.
(d) Filing of Amendment or Supplement. To file promptly with the
Commission any amendment to the Registration Statement or the Prospectus or any
supplement to the Prospectus that may, in the reasonable judgment of the
Partnership or the Representatives, be required by the Securities Act or
requested by the Commission. Prior to filing with the Commission any amendment
to the Registration Statement or supplement to the Prospectus or any Prospectus
pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to
the Representatives and counsel for the Underwriters and obtain the consent of
the Representatives to the filing, which shall not be unreasonably withheld or
delayed.
(e) Reports to Security Holders. As soon as practicable after the
Effective Date, to make generally available to the Partnership's security
holders and to deliver to the Representatives an earnings statement of the
Partnership and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and the Rules and Regulations (including, at
the option of the Partnership, Rule 158).
(f) Copies of Reports. For a period of two years following the
Effective Date, to furnish or make available to the Representatives copies of
all materials furnished by the Partnership to its security holders and all
reports and financial statements furnished by the Partnership to the principal
national securities exchange upon which the Units may be listed pursuant to
requirements of or agreements with such exchange or to the Commission pursuant
to the Exchange Act or any rule or regulation of the Commission thereunder.
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(g) Qualifications. Promptly from time to time to take such action as
the Representatives may reasonably request to qualify the Units for offering and
sale under the securities laws of such jurisdictions as the Representatives may
request and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Units; provided, that in no event shall the
Partnership or the General Partner be obligated in connection therewith to
qualify as a foreign limited partnership or as a foreign limited liability
company, or to file a general consent to service of process in any jurisdiction.
(h) Lock-up Period; Lock-up Letters. For a period of 180 days from the
date of the Prospectus, not to, directly or indirectly, (i) offer for sale,
sell, pledge or otherwise dispose of (or enter into any transaction or device
which is designed to, or could be expected to, result in the disposition by any
person at any time in the future of) any Common Units or securities convertible
into, or exchangeable for Common Units (other than Units issued pursuant to
employee benefits plans, qualified unit option plans or other employee
compensation plans existing on the date hereof or pursuant to currently
outstanding options, warrants or rights), or sell or grant options, rights or
warrants with respect to any Common Units or securities convertible into or
exchangeable for Common Units (other than the grant of options pursuant to
option plans existing on the date hereof), or (ii) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part, any of
the economic benefits or risks of ownership of such Common Units, whether any
such transaction described in clause (i) or (ii) above is to be settled by
delivery of Common Units or other securities, in cash or otherwise, in each case
without the prior written consent of Xxxxxx Brothers Inc. on behalf of the
Underwriters; provided, however, that the foregoing restrictions do not apply
to: (A) the sale of Common Units by the Partnership to the Underwriters in
connection with the public offering contemplated hereby, and (B) Common Units to
be issued by the Partnership to non-employee directors as described in the
Prospectus or restricted units, phantom units and options issued under the
Long-Term Incentive Plan of the Partnership. Each executive officer and director
of the General Partner shall furnish to the Representatives, prior to the First
Delivery Date, a letter or letters, substantially in the form of Exhibit D
hereto, pursuant to which each such person shall agree not to, directly or
indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter
into any transaction or device which is designed to, or could be expected to,
result in the disposition by any person at any time in the future of) any shares
of Common Units (including Directed Units, if any) or securities convertible
into or exchangeable for Common Units or (2) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part, any of
the economic benefits or risks of ownership of such Common Units (including
Directed Units, if any), whether any such transaction described in clause (1) or
(2) above is to be settled by delivery of Common Units or other securities, in
cash or otherwise, in each case for a period of 180 days from the date of the
Prospectus, without the prior written consent of Xxxxxx Brothers Inc. on behalf
of the Underwriters.
(i) NYSE Listing. To apply for the listing of the Units on the New
York Stock Exchange, and to use its best efforts to complete that listing,
subject only to official notice of issuance, prior to the First Delivery Date.
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(j) Application of Proceeds. To apply the net proceeds from the sale of
the Units as set forth in the Prospectus.
(k) Consents. To cause the Sunoco Entities to accomplish or obtain as
soon as practicable all consents, recordings and filings necessary to perfect,
preserve and protect the title of the Operating Partnership and the Operating
Subsidiaries to the properties and assets owned by them as a result of the
Transactions.
(l) Directed Unit Program. It is understood that up to __________ of
the Firm Units (the "Directed Units") will initially be reserved by the
Underwriters for offer and sale to officers, directors, employees and persons
having business relationships with the Sunoco Entities ("Directed Unit
Participants") upon the terms and conditions set forth in the Prospectus and in
accordance with the rules and regulations of the National Association of
Securities Dealers, Inc. (the "Directed Unit Program"). Under no circumstances
will Xxxxxx Brothers Inc. or any Underwriter be liable to the Sunoco Entities or
to any Directed Unit Participant for any action taken or omitted to be taken in
good faith in connection with such Directed Unit Program. To the extent that any
Directed Units are not affirmatively reconfirmed for purchase by any Directed
Unit Participant on or immediately after the date of this Agreement, such
Directed Units may be offered to the public as part of the public offering
contemplated hereby.
6. Expenses. The Sunoco Parties agree to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Units and any taxes payable in
that connection; (b) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement and any amendments and
exhibits thereto; (c) the costs of distributing the Registration Statement as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), each Preliminary Prospectus, the
Prospectus and any amendment or supplement to the Prospectus, all as provided in
this Agreement; (d) the costs of producing and distributing this Agreement, the
Agreement Between Underwriters and any other related documents in connection
with the offering, purchase, sale and delivery of the Units; (e) the filing fees
incident to securing the review by the National Association of Securities
Dealers, Inc. of the terms of sale of the Units; (f) any applicable listing or
other similar fees; (g) the fees and expenses of qualifying the Units under the
securities laws of the several jurisdictions as provided in Section 5(g) and of
preparing, printing and distributing a Blue Sky Memorandum (including related
fees and expenses of counsel to the Underwriters); (h) expenses incurred by the
Underwriters in connection with the Directed Unit Program, including counsel
fees and any stamp duties or other taxes incurred by the Underwriters in
connection with the Directed Unit Program; (i) the cost of printing certificates
representing the Units; (j) the costs and charges of any transfer agent or
registrar; (k) the costs and expenses of the Partnership relating to investor
presentations on any "road show" undertaken in connection with the marketing of
the offering of the Units, including, without limitation, expenses associated
with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Partnership, travel and lodging expenses of the
representatives and officers of the Partnership and any such consultants; and
(l) all other costs and expenses incident to the performance of the obligations
of the Partnership under this Agreement; provided that, except as provided in
this Section 6 and in Section 11, the Underwriters shall pay their own costs and
expenses, including
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the costs and expenses of their counsel, any transfer taxes on the Units which
they may sell and the expenses of advertising any offering of the Units made by
the Underwriters.
7. Conditions of Underwriters' Obligations. The respective obligations of
the Underwriters hereunder are subject to the accuracy, when made and on each
Delivery Date, of the representations and warranties of the Sunoco Parties
contained herein, to the performance by the Sunoco Parties of their respective
obligations hereunder and to each of the following additional terms and
conditions:
(a) The Prospectus shall have been timely filed with the Commission in
accordance with Section 5(a); no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus or otherwise shall
have been complied with.
(b) All corporate, partnership and limited liability company
proceedings and other legal matters incident to the authorization, form and
validity of this Agreement, the Operative Agreements, the Common Units, the
Subordinated Units, the Incentive Distribution Rights, the Registration
Statement and the Prospectus, and all other legal matters relating to this
Agreement, the transactions contemplated hereby and the Transactions shall be
reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Partnership shall have furnished to such counsel all
documents and information that they may reasonably request to enable them to
pass upon such matters.
(c) Xxxxxx & Xxxxxx L.L.P. shall have furnished to the Representatives
their written opinion, as special counsel for the Sunoco Entities, addressed to
the Underwriters and dated such Delivery Date, in form and substance
satisfactory to the Representatives, with respect to the matters set forth in
Exhibit A to this Agreement.
(d) Blank Rome Xxxxxxx & XxXxxxxx LLP shall have furnished to the
Representatives their written opinion, as counsel for the Sunoco Entities,
addressed to the Underwriters and dated such Delivery Date, in form and
substance satisfactory to the Representatives, with respect to the matters set
forth in Exhibit B to this Agreement.
(e) Each of Xxxx, Xxxxxxx and Xxxxx, PLC, opining as to the law of
Michigan; Blank Rome Xxxxxxx & XxXxxxxx LLP, opining as to the law of New
Jersey, New York and Pennsylvania; Xxxxxxxx Xxxx LLP, opining as to the law of
Ohio; and Hall, Estill, Hardwick, Gable, Golden & Xxxxxx, a Professional
Corporation, opining as to the law of Oklahoma, shall have furnished to the
Representatives their written opinions, addressed to the Underwriters and dated
the First Delivery Date, in form and substance satisfactory to the
Representatives, with respect to the matters set forth in Exhibit C to this
Agreement.
(f) The Representatives shall have received from Xxxxx Xxxxx L.L.P.,
counsel for the Underwriters, such opinion or opinions, dated such Delivery
Date, with respect to the issuance and sale of the Units, the Registration
Statement, the Prospectus
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and other related matters as the Representatives may reasonably require, and the
Partnership shall have furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representatives
shall have received from Ernst & Young LLP a letter or letters, in form and
substance satisfactory to the Representatives, addressed to the Underwriters and
dated the date hereof (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance with
the applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date
hereof (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date hereof), the
conclusions and findings of such firm with respect to the financial information
and other matters ordinarily covered by accountants' "comfort letters" to
underwriters in connection with registered public offerings.
(h) With respect to the letter or letters of Xxxxx & Young LLP
referred to in the preceding paragraph and delivered to the Representatives
concurrently with the execution of this Agreement (the "initial letters"), the
Partnership shall have furnished to the Representatives a letter (the
"bring-down letter") of such accountants, addressed to the Underwriters and
dated such Delivery Date (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance with
the applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of
the bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five days
prior to the date of the bring-down letter), the conclusions and findings of
such firm with respect to the financial information and other matters covered by
the initial letters and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letters.
(i) On each Delivery Date, there shall have been furnished to the
Representatives (A) a certificate, dated such Delivery Date and addressed to the
Representatives, signed on behalf of Sunoco, Sunoco R&M, Sun Delaware, Sun Texas
and Atlantic Petroleum by the chief executive officer and the chief financial
officer of Sunoco and (B) a certificate, dated such Delivery Date and addressed
to the Representatives, signed on behalf of the General Partner, the
Partnership, GP LLC and the Operating Partnership by the chief executive officer
and the chief financial officer of the General Partner, stating, in each case
with respect to the entities covered by the certificate, that (i) the
representations and warranties of such entities are true and correct, as if made
at and as of such Delivery Date, and such entities have complied in all material
respects with all the agreements and satisfied all the conditions on their part
to be complied with or satisfied at or prior to such Delivery Date; (ii) no stop
order suspending the effectiveness of the Registration Statement has been
issued, and no proceeding for that purpose has been initiated or threatened by
the Commission; (iii) no event contemplated by subsection (j) of this Section 7
in respect of the Partnership Entities shall
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have occurred; and (iv) they have carefully examined the Registration Statement
and the Prospectus and, in their opinion (A) as of the Effective Date, the
Registration Statement did not include any untrue statement of a material fact
and did not omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and (B) since the
Effective Date, no event has occurred which should have been set forth in a
supplement or amendment to the Registration Statement or the Prospectus.
(j) Since the Effective Date, none of the Partnership Entities shall
have sustained any material loss or interference with its business from fire,
flood, explosion, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
investigation, order or decree, otherwise than as set forth or contemplated in
the Prospectus, or shall have become a party to or the subject of any
litigation, court or governmental action, investigation, order or decree that is
materially adverse to the Partnership Entities, taken as a whole; nor shall
there have been a change in the partners' capital, capital stock, members'
interests, short-term debt or long-term debt of any of the Partnership Entities
or any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, operations,
business, prospects, management, capitalization, financial condition, results of
operations or net worth of the Partnership Entities other than as set forth or
contemplated in the Prospectus, which loss, litigation, change or development
makes it, in the judgment of the Representatives, impractical or inadvisable to
proceed with the public offering or the delivery of the Units being delivered on
such Delivery Date on the terms and in the manner contemplated in the
Prospectus.
(k) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or in
the over-the-counter market, or trading in any securities of the Partnership on
any exchange or in the over-the-counter market, shall have been suspended or the
settlement of such trading generally shall have been materially disrupted or
minimum prices shall have been established on any such exchange or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall have
been declared by federal or state authorities, (iii) the United States shall
have become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general domestic or international
economic, political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be such) as to
make it, in the judgment of the Representatives, impracticable or inadvisable to
proceed with the public offering or delivery of the Units being delivered on
such Delivery Date on the terms and in the manner contemplated in the
Prospectus.
(l) The New York Stock Exchange shall have approved the Units for
listing, subject only to official notice of issuance.
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(m) The Sunoco Parties shall have furnished the Representatives such
additional documents and certificates as the Representatives or counsel for the
Underwriters may reasonably request.
All such opinions, certificates, letters and documents mentioned above or
elsewhere in this Agreement shall be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to the
Representatives and to counsel for the Underwriters. The Partnership shall
furnish to the Representatives conformed copies of such opinions, certificates,
letters and other documents in such number as they shall reasonably request.
8. Indemnification and Contribution.
(a) The Sunoco Parties, jointly and severally, shall indemnify and
hold harmless each Underwriter, its officers and employees and each person, if
any, who controls any Underwriter within the meaning of the Securities Act, from
and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of Units), to which
that Underwriter, officer, employee or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in (A) any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (B) in any written or electronically produced materials or
information electronically provided to investors by, or with the approval of,
the Partnership in connection with the marketing of the offering of the Common
Units ("Marketing Materials"), (ii) the omission or alleged omission to state in
any Preliminary Prospectus, the Registration Statement or the Prospectus or in
any amendment or supplement thereto or in any Marketing Materials any material
fact required to be stated therein or necessary to make the statements therein
not misleading, or (iii) any act or failure to act or any alleged act or failure
to act by any 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, damage, liability or action arising out of or
based upon matters covered by clause (i) or (ii) above (provided that the Sunoco
Parties shall not be liable under this clause (iii) to the extent that it is
determined in a final judgment by a court of competent jurisdiction that such
loss, claim, damage, liability or action resulted directly from any such acts or
failures to act undertaken or omitted to be taken by such Underwriter through
its gross negligence or willful misconduct), and shall reimburse each
Underwriter and each such officer, employee or controlling person promptly upon
demand for any legal or other expenses reasonably incurred by that Underwriter,
officer, employee or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that the Sunoco
Parties shall not be liable in any such case to the extent that any such loss,
claim, damage, liability, action or expense arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any such amendment or supplement, in reliance upon
-31-
and in conformity with written information concerning such Underwriter furnished
to the Partnership through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein which information consists solely
of the information specified in Section 8(e); and provided, further, that with
respect to any Preliminary Prospectus, the foregoing indemnity in this Section
8(a) shall not inure to the benefit of any Underwriter from whom the person
asserting any loss, claim, damage, liability, action or expense purchased Units,
or any of its directors, officers or employees or any person controlling such
Underwriter, if copies of the Prospectus were timely delivered to the
Underwriter and a copy of the Prospectus (as then amended or supplemented if the
Partnership shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Underwriter to such person, if required by
law so to have been delivered, at or prior to the written confirmation of the
sale of the Units to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such loss, claim,
damage, liability, action or expense. The foregoing indemnity agreement is in
addition to any liability which the Sunoco Parties may otherwise have to any
Underwriter or to any officer, employee or controlling person of that
Underwriter.
In connection with the offer and sale of the Directed Units, the Sunoco
Parties, jointly and severally, agree, promptly upon a request in writing, to
indemnify and hold harmless Xxxxxx Brothers Inc. and the other Underwriters from
and against any loss, claim, damage, expense, liability or action which (i)
arises out of, or is based upon, any untrue statement or alleged untrue
statement of a material fact contained in any material prepared by or with the
approval of the Sunoco Parties for distribution to Directed Unit Participants in
connection with the Directed Unit Program or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, (ii) arises out of the failure of any
Directed Unit Participant to pay for and accept delivery of Directed Units that
the Directed Unit Participant agreed to purchase or (iii) is otherwise related
to the Directed Unit Program, other than losses, claims, damages or liabilities
(or expenses relating thereto) that are finally judicially determined to have
resulted directly from the bad faith or gross negligence or willful misconduct
of Xxxxxx Brothers Inc.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Sunoco Parties, their officers and employees, each of their
directors, and each person, if any, who controls the Sunoco Parties within the
meaning of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Sunoco Parties or any such director, officer, employee or controlling person may
become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus or in any
amendment or supplement thereto, (ii) the omission or alleged omission to state
in the Registration Statement, or in any amendment or supplement thereto, any
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (iii) the omission or alleged omission to state in
any Preliminary Prospectus, the Prospectus or in any amendment or supplement
thereto, any material fact necessary to make the statements therein, in light of
the circumstances in which there were made, not misleading, but in each case
only to the extent that the untrue statement or alleged untrue
-32-
statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning such Underwriter furnished to the
Sunoco Parties through the Representatives by or on behalf of that Underwriter
specifically for inclusion therein, and shall reimburse the Sunoco Parties and
any such director, officer, employee or controlling person for any legal or
other expenses reasonably incurred by the Sunoco Parties or any such director,
officer, employee or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any Underwriter may otherwise have to the Sunoco
Parties or any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent it has been materially
prejudiced by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 8. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Representatives shall have the right to employ counsel to represent jointly
the Representatives and those other Underwriters and their respective officers,
employees and controlling persons who may be subject to liability arising out of
any claim or action in respect of which indemnity may be sought by the
Underwriters against the Sunoco Parties under this Section 8 if, in the
reasonable judgment of the Representatives, it is advisable for the
Representatives and those Underwriters, officers, employees and controlling
persons to be jointly represented by separate counsel, and in that event the
fees and expenses of one such separate counsel (plus one local counsel if
necessary in the opinion of counsel to the indemnified party) shall be paid by
the Sunoco Parties. No indemnifying party shall (i) without the prior written
consent of the indemnified parties (which consent shall not be unreasonably
withheld), settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding, or (ii) be liable for any settlement
of any such action effected without its written consent (which consent shall not
be unreasonably withheld), but if settled with the consent of the
-33-
indemnifying party or if there be a final judgment of the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Sunoco Parties, on the one hand, and the Underwriters, on the
other hand, from the offering of the Units or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Sunoco Parties, on the one hand, and
the Underwriters on the other, with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative benefits
received by the Sunoco Parties, on the one hand, and the Underwriters on the
other, with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Units purchased
under this Agreement (before deducting expenses) received by the Partnership, on
the one hand, and the total underwriting discounts and commissions received by
the Underwriters with respect to the Units purchased under this Agreement, on
the other hand, bear to the total gross proceeds from the offering of the Units
under this Agreement, in each case as set forth in the table on the cover page
of the Prospectus. The 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
Sunoco Parties or the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Sunoco Parties and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this Section 8 were
to be determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation which 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,
damage, liability, or action in respect thereof, referred to above in this
Section 8 shall be deemed to include, for purposes of this Section 8(d), any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8(d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Units underwritten by it and distributed to the public was
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise paid or become liable to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent
-34-
misrepresentation. The Underwriters' obligations to contribute as provided in
this Section 8(d) are several in proportion to their respective underwriting
obligations and not joint.
(e) The Underwriters severally confirm and the Sunoco Parties
acknowledge that the statements with respect to the public offering of the Units
by the Underwriters set forth on the cover page of the Prospectus and the
statements in the table in the first paragraph, the concession and reallowance
figures in the fourth paragraph, and the statements in the ninth, tenth,
eleventh and twenty-second paragraphs appearing under the caption "Underwriting"
in the Prospectus are correct and constitute the only information concerning
such Underwriters furnished in writing to the Partnership by or on behalf of the
Underwriters specifically for inclusion in the Registration Statement and the
Prospectus.
9. Defaulting Underwriters.
If, on either Delivery Date, any Underwriter defaults in the performance of
its obligations under this Agreement, the remaining non-defaulting Underwriters
shall be obligated to purchase the Units which the defaulting Underwriter agreed
but failed to purchase on such Delivery Date in the respective proportions which
the number of Firm Units set opposite the name of each remaining non-defaulting
Underwriter in Schedule 1 hereto bears to the total number of Firm Units set
opposite the names of all the remaining non-defaulting Underwriters in Schedule
1 hereto; provided, however, that the remaining non-defaulting Underwriters
shall not be obligated to purchase any of the Units on such Delivery Date if the
total number of Units which the defaulting Underwriter or Underwriters agreed
but failed to purchase on such date exceeds 9.09% of the total number of Units
to be purchased on such Delivery Date, and any remaining non-defaulting
Underwriter shall not be obligated to purchase more than 110% of the number of
the Units which it agreed to purchase on such Delivery Date pursuant to the
terms of Section 2. If the foregoing maximums are exceeded, the remaining
non-defaulting Underwriters, or those other underwriters satisfactory to the
Representatives who so agree, shall have the right, but shall not be obligated,
to purchase, in such proportion as may be agreed upon among them, all the Units
to be purchased on such Delivery Date. If the remaining Underwriters or other
underwriters satisfactory to the Representatives do not elect to purchase the
Units which the defaulting Underwriter or Underwriters agreed but failed to
purchase on such Delivery Date, this Agreement (or, with respect to the Second
Delivery Date, the obligation of the Underwriters to purchase, and of the
Partnership to sell, the Option Units) shall terminate without liability on the
part of any non-defaulting Underwriter or any Sunoco Party except that the
Sunoco Parties will continue to be liable for the payment of expenses to the
extent set forth in Sections 6 and 11. As used in this Agreement, the term
"Underwriter" includes, for all purposes of this Agreement unless the context
requires otherwise, any party not listed in Schedule 1 hereto who, pursuant to
this Section 9, purchases Firm Units which a defaulting Underwriter agreed but
failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Sunoco Parties for damages caused by its default.
If other underwriters are obligated or agree to purchase the Units of a
defaulting Underwriter, either the Representatives or the Partnership may
postpone the Delivery Date for up to seven full business days in order to effect
any changes that in the opinion of counsel for the Partnership or counsel for
the
-35-
Underwriters may be necessary in the Registration Statement, the Prospectus or
in any other document or arrangement.
10. Termination. The obligations of the Underwriters hereunder may be
terminated by the Representatives by notice given to and received by the
Partnership prior to delivery of and payment for the Firm Units if, prior to
that time, any of the events described in Section 7(j) or 7(k) shall have
occurred or if the Underwriters shall decline to purchase the Units for any
reason permitted under this Agreement.
11. Reimbursement of Underwriters' Expenses. If the Partnership shall fail
to tender the Units for delivery to the Underwriters by reason of any failure,
refusal or inability on the part of any Sunoco Party to perform any agreement on
its part to be performed, or because any other condition of the Underwriters'
obligations hereunder required to be fulfilled by any Sunoco Entity is not
fulfilled, the Sunoco Parties will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including fees and disbursements of counsel) incurred by
the Underwriters in connection with this Agreement and the proposed purchase of
the Units, and upon demand the Sunoco Parties shall pay the full amount thereof
to the Representatives.
12. Notices. All statements, requests, notices and agreements hereunder
shall be in writing, and:
(a) if to any of the Sunoco Parties, shall be delivered or sent by
mail, telex or facsimile transmission to such Sunoco Party at 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxx, President
(Fax: 215/000-0000); and
(b) if to the Underwriters, such notice shall be delivered or sent by
mail, telex or facsimile transmission to the Representatives in care of Xxxxxx
Brothers Inc., 000 Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000, Attention:
Syndicate Department (Fax: 212/000-0000), with a copy, in the case of any notice
pursuant to Section 8(c), to the Director of Litigation, Office of the General
Counsel, Xxxxxx Brothers Inc., 000 Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000;
provided, however, that any notice to an Underwriter pursuant to Section 8(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Partnership
shall be entitled to act and rely upon any request, consent, notice or agreement
given or made on behalf of the Underwriters by Xxxxxx Brothers Inc. on behalf of
the Representatives.
13. Persons Entitled to Benefit of Agreement. This Agreement shall inure to
the benefit of and be binding upon the Underwriters, the Sunoco Parties and
their respective successors. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Sunoco Parties
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control any Underwriter within the meaning of
Section 15 of the Securities Act and (B) the indemnity agreement of the
Underwriters contained in Section 8(b) of this Agreement shall be deemed to be
for the benefit of directors of the General Partner, officers
-36-
of the General Partner who have signed the Registration Statement and any person
controlling any of the Sunoco Parties within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 13, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
14. Survival. The respective indemnities, representations, warranties and
agreements of the Sunoco Parties and the Underwriters contained in this
Agreement or made by or on behalf on them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Units and shall
remain in full force and effect, regardless of any investigation made by or on
behalf of any of them or any person controlling any of them.
15. Definition of the Terms "Business Day" and "Subsidiary". For purposes
of this Agreement, (a) "business day" means any day on which the New York Stock
Exchange is open for trading, and (b) "affiliate" and "subsidiary" have their
respective meanings set forth in Rule 405 of the Rules and Regulations.
16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
17. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for convenience of reference
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
-37-
If the foregoing correctly sets forth the agreement among the Sunoco
Parties and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
SUNOCO, INC.
By:
----------------------------------------------------
Name:
Title:
SUNOCO, INC. (R&M)
By:
----------------------------------------------------
Name:
Title:
SUN PIPE LINE COMPANY OF DELAWARE
By:
----------------------------------------------------
Name:
Title:
SUN TEXAS PIPE LINE COMPANY
By:
----------------------------------------------------
Name:
Title:
ATLANTIC PETROLEUM CORPORATION
By:
----------------------------------------------------
Name:
Title:
-38-
SUNOCO PARTNERS LLC
By:
-----------------------------------------------
Name:
Title:
SUNOCO LOGISTICS PARTNERS L.P.
By: Sunoco Partners LLC, its general partner
By:
-----------------------------------------------
Name:
Title:
SUNOCO LOGISTICS PARTNERS OPERATIONS L.P.
By: Sunoco Logistics Partners GP LLC,
its general partner
By:
-----------------------------------------------
Name:
Title:
-39-
Accepted:
Xxxxxx Brothers Inc.
Xxxxxxx Xxxxx Xxxxxx Inc.
UBS Warburg LLC
Banc of America Securities LLC
First Union Securities, Inc.
Credit Suisse First Boston Corporation
For themselves and as
Representatives of the
several Underwriters named
in Schedule 1 hereto
By: XXXXXX BROTHERS INC.
By:
-----------------------------------------
Authorized Representative
-40-
SCHEDULE 1
SUNOCO LOGISTICS PARTNERS L.P.
Number of Firm
Underwriters Units to be Purchased
------------ ---------------------
Xxxxxx Brothers Inc.
Xxxxxxx Xxxxx Xxxxxx Inc.
UBS Warburg LLC
Banc of America Securities LLC
First Union Securities, Inc.
Credit Suisse First Boston Corporation
TOTAL: 5,000,000
-41-
EXHIBIT A
FORM OF OPINION OF XXXXXX & XXXXXX L.L.P.
(a) Each of the Partnership, the Operating Partnership and RM In LP has
been duly formed and is validly existing in good standing as a limited
partnership under the Delaware LP Act with full partnership power and authority
to own or lease its properties to be owned or leased at each Delivery Date, to
assume the liabilities being assumed by it pursuant to the Merger and
Contribution Agreements and to conduct its business to be conducted at each
Delivery Date, in each case in all material respects. Each of the Partnership,
the Operating Partnership and RM In LP is duly registered or qualified as a
foreign limited partnership for the transaction of business under the laws of
each jurisdiction set forth in Annex I to this Opinion.
(b) Sun Pipeline LP has been duly formed and is validly existing in good
standing as a limited partnership under the Texas LP Act with full partnership
power and authority to own or lease its properties to be owned or leased at each
Delivery Date, to assume the liabilities being assumed by it pursuant to the
Merger and Contribution Agreements and to conduct its business to be conducted
at each Delivery Date, in each case in all material respects. Sun Pipeline LP is
duly registered or qualified as a foreign limited partnership for the
transaction of business under the laws of each jurisdiction set forth in Annex I
to this Opinion.
(c) Each of LA LLC, GP LLC and OLP GP LLC has been duly formed and is
validly existing in good standing as a limited liability company under the
Delaware LLC Act with full limited liability company power and authority to own
or lease its properties to be owned or leased at each Delivery Date, to assume
the liabilities being assumed by it pursuant to the Merger and Contribution
Agreements and to conduct its business to be conducted at each Delivery Date, in
each case in all material respects. GP LLC has full limited liability company
power and authority to act as general partner of the Operating Partnership. OLP
GP LLC has full limited liability company power and authority to act as general
partner of Xxx Xxxxxxxx LP and RM In LP. Each of LA LLC, GP LLC and OLP GP LLC
is duly registered or qualified as a foreign limited liability company for the
transaction of business under the laws of each jurisdiction set forth in Annex I
to this Opinion.
(d) Each of Sun Delaware, Sun Atlantic R&M, Atlantic Petroleum, Atlantic,
Atlantic Refining, Borger, Sun Texas, Atlantic In LP, Atlantic RM In LP,
Atlantic Out LP, Atlantic RM In LP, Michigan In LLC, Mid-Con In LLC, Michigan
Texas, Mid-Con Texas, R&M In LLC, Pipe Line GP LLC, Atlantic In LLC, Atlantic
Out LLC and Services Out LLC has been duly incorporated or organized and is
validly existing in good standing as a corporation, limited liability company or
limited partnership, as the case may be, under the laws of its jurisdiction of
incorporation or organization with full corporate, limited liability company or
partnership power and authority, as the case may be, to own or lease its
properties to be owned or leased at each Delivery Date, to assume the
liabilities being assumed by it pursuant to the Merger and
A-1
Contribution Agreements and to conduct its business to be conducted by it at
each Delivery Date, in each case in all material respects.
(e) The General Partner is the sole general partner of the Partnership with
a 2.0% general partner interest in the Partnership; such general partner
interest has been duly authorized and validly issued in accordance with the
Partnership Agreement; and the General Partner owns such general partner
interest free and clear of all liens, encumbrances, security interests, charges
or claims (i) in respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware naming the General Partner as debtor is
on file in the office of the Secretary of State of the State of Delaware or (ii)
otherwise known to such counsel, without independent investigation, other than
those created by or arising under the Delaware LP Act.
(f) The General Partner owns 7,472,528 Common Units and 12,472,528
Subordinated Units and all of the Incentive Distribution Rights; all of such
Sponsor Units and the limited partner interests represented thereby and the
Incentive Distribution Rights have been duly authorized and validly issued in
accordance with the Partnership Agreement, and are fully paid (to the extent
required under the Partnership Agreement) and nonassessable (except as such
nonassessability may be affected by matters described in the Prospectus under
the caption "The Partnership Agreement--Limited Liability"); and the General
Partner owns the Sponsor Units and the Incentive Distribution Rights free and
clear of all liens, encumbrances (except, with respect to the Incentive
Distribution Rights, restrictions on transferability as described in the
Prospectus), security interests, charges or claims (i) in respect of which a
financing statement under the Uniform Commercial Code of the State of Delaware
naming the General Partner as debtor is on file in the office of the Secretary
of State of the State of Delaware or (ii) otherwise known to such counsel,
without independent investigation, other than those created by or arising under
the Delaware LP Act.
(g) The Units to be issued and sold to the Underwriters by the Partnership
pursuant to the Underwriting Agreement and the limited partner interests
represented thereby have been duly authorized by the Partnership Agreement and,
when issued and delivered to the Underwriters against payment therefor in
accordance with the terms of the Underwriting Agreement, will be duly authorized
by the Partnership Agreement, validly issued, fully paid (to the extent required
under the Partnership Agreement) and nonassessable (except as such
nonassessability may be affected by matters described in the Prospectus under
the caption "The Partnership Agreement--Limited Liability"); and other than the
Sponsor Units and the Incentive Distribution Rights, the Units will be the only
limited partner interests of the Partnership issued and outstanding at the
Delivery Date.
(h) The General Partner is the sole member of LA LLC with a 100% membership
interest in LA LLC; such membership interest has been duly authorized and
validly issued in accordance with the LA LLC Agreement and is fully paid (to the
extent required under the LA LLC Agreement) and nonassessable (except as such
nonassessability may be affected by Section 18-607 of the Delaware LLC Act); and
the General Partner owns such membership interest free and clear of all liens,
encumbrances,
A-2
security interests, charges or claims (i) in respect of which a financing
statement under the Uniform Commercial Code of the State of Delaware naming the
General Partner as a debtor is on file in the office of the Secretary of State
of the State of Delaware or (ii) otherwise known to such counsel, without
independent investigation, other than those created by or arising under the
Delaware LLC Act.
(i) The Partnership is the sole member of GP LLC with a 100% membership
interest in GP LLC; such membership interest has been duly authorized and
validly issued in accordance with the GP LLC Agreement and is fully paid (to the
extent required under the GP LLC Agreement) and nonassessable (except as such
nonassessability may be affected by Section 18-607 of the Delaware LLC Act); and
the Partnership owns such membership interest free and clear of all liens,
encumbrances, security interests, charges or claims (i) in respect of which a
financing statement under the Uniform Commercial Code of the State of Delaware
naming the Partnership as a debtor is on file in the office of the Secretary of
State of the State of Delaware or (ii) otherwise known to such counsel, without
independent investigation, other than those created by or arising under the
Delaware LLC Act.
(j) GP LLC is the sole general partner of the Operating Partnership with a
.01% general partner interest in the Operating Partnership; such general partner
interest has been duly authorized and validly issued in accordance with the
Operating Partnership Agreement, and GP LLC owns such general partner interest
free and clear of all liens, encumbrances (except restrictions on
transferability as described in the Prospectus), security interests, charges or
claims (i) in respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware naming GP LLC as a debtor is on file in
the office of the Secretary of State of the State of Delaware or (ii) otherwise
known to such counsel, without independent investigation, other than those
created by or arising under the Delaware LP Act.
(k) The Partnership is the sole limited partner of the Operating
Partnership with a 99.99% limited partner interest in the Operating Partnership;
such limited partner interest has been duly authorized and validly issued in
accordance with the Operating Partnership Agreement and is fully paid (to the
extent required under the Operating Partnership Agreement) and nonassessable
(except as such nonassessability may be affected by matters described in the
Prospectus under the caption "The Partnership Agreement--Limited Liability");
and the Partnership owns such limited partner interest free and clear of all
liens, encumbrances, security interests, charges or claims (i) in respect of
which a financing statement under the Uniform Commercial Code of the State of
Delaware naming the Partnership as a debtor is on file in the office of the
Secretary of State of the State of Delaware or (ii) otherwise known to such
counsel, without independent investigation, other than those created by or
arising under the Delaware LP Act.
(l) The Operating Partnership is the sole member of OLP GP LLC with a 100%
membership interest in OLP GP LLC; such membership interest has been duly
authorized and validly issued in accordance with the OLP GP LLC Agreement and is
fully paid (to the extent required under the OLP GP LLC Agreement) and
A-3
nonassessable (except as such nonassessability may be affected by Section 18-607
of the Delaware LLC Act); and the Operating Partnership owns such membership
interest free and clear of all liens, encumbrances, security interests, charges
or claims (i) in respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware naming the Operating Partnership as a
debtor is on file in the office of the Secretary of State of the State of
Delaware or (ii) otherwise known to such counsel, without independent
investigation, other than those created by or arising under the Delaware LLC
Act.
(m) OLP GP LLC is the sole general partner of Sun Pipeline LP and RM In LP
with a .01% general partner interest in each; each such general partner interest
has been duly authorized and validly issued in accordance with the applicable
Operating Subsidiary Partnership Agreement; and OLP GP LLC owns such general
partner interests free and clear of all liens, encumbrances (except restrictions
on transferability as described in the Prospectus), security interests, charges
or claims (i) in respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware naming OLP GP LLC as a debtor is on
file in the office of the Secretary of State of the State of Delaware or (ii)
otherwise known to such counsel, without independent investigation, other than
those created by or arising under the Delaware LP Act.
(n) The Operating Partnership is the sole limited partner of each of Sun
Pipeline LP and RM In LP with a 99.99% limited partner interest in each; each
such limited partner interest has been duly authorized and validly issued in
accordance with the applicable Operating Subsidiary Partnership Agreement and is
fully paid (to the extent required under the Operating Subsidiary Partnership
Agreement) and nonassessable (except as such nonassessability may be affected by
matters described in the Prospectus under the caption "The Partnership
Agreement--Limited Liability"); and the Partnership owns such limited partner
interests free and clear of all liens, encumbrances, security interests, charges
or claims (i) in respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware naming the Operating Partnership as a
debtor is on file in the office of the Secretary of State of the State of
Delaware or (ii) otherwise known to such counsel, without independent
investigation, other than those created by or arising under the Delaware LP Act.
(o) Sun Delaware owns 100% of the issued and outstanding common stock of
Sun Texas; such stock has been duly authorized and validly issued and is fully
paid and nonassessable; and Sun Delaware owns such stock free and clear of all
liens, encumbrances, security interests, charges or claims (i) in respect of
which a financing statement under the Uniform Commercial Code of the State of
Delaware naming Sun Delaware as a debtor is on file in the office of the
Secretary of State of the State of Delaware or (ii) otherwise known to such
counsel, without independent investigation, other than those created by or
arising under the TBCA.
(p) Atlantic Petroleum is the sole member of Atlantic Out LLC with a 100%
membership interest in Atlantic Out LLC; such membership interest has been duly
authorized and validly issued in accordance with the Atlantic Out LLC Agreement
and is fully paid (to the extent required under the Atlantic Out LLC Agreement)
and
A-4
nonassessable (except as such nonassessability may be affected by Article 5.09
of the Texas LLC Act); and Atlantic Petroleum owns such membership interests
free and clear of all liens, encumbrances, security interests, charges or claims
(i) in respect of which a financing statement under the Uniform Commercial Code
of the State of Delaware naming Atlantic Petroleum as a debtor is on file in the
office of the Secretary of State of the State of Delaware or (ii) otherwise
known to such counsel, without independent investigation, other than those
created by or arising under the Delaware LLC Act.
(q) Atlantic Out LLC is the sole general partner of each of Atlantic Out LP
and Atlantic RM Out LP with a .01% general partner interest in each; such
general partner interest has been duly authorized and validly issued in
accordance with the Atlantic Out LP Partnership Agreement and the Atlantic RM
Out LP Partnership Agreement, as the case may be; and Atlantic Out LLC owns such
general partner interest free and clear of all liens, encumbrances, security
interests, charges or claims (i) in respect of which a financing statement under
the Uniform Commercial Code of the State of Delaware naming Atlantic Out LLC as
a debtor is on file in the office of the Secretary of State of the State of
Delaware or (ii) otherwise known to such counsel, without independent
investigation, other than those created by or arising under the Delaware LP Act.
(r) Atlantic Petroleum is the sole limited partner of each of Atlantic Out
LP and Atlantic RM Out LP with a 99.99% limited partner interest in each; such
limited partner interest has been duly authorized and validly issued in
accordance with the Atlantic Out LP Partnership Agreement and the Atlantic RM
Out LP Partnership Agreement, as the case may be, and is fully paid (to the
extent required under the Atlantic Out LP Partnership Agreement and the Atlantic
RM Out LP Partnership Agreement) and nonassessable (except as such
nonassessability may be affected by matters described in the Prospectus under
the caption "The Partnership Agreement--Limited Liability"); and Atlantic
Petroleum owns such limited partner interest free and clear of all liens,
encumbrances, security interests, charges or claims (i) in respect of which a
financing statement under the Uniform Commercial Code of the State of Delaware
naming Atlantic Petroleum as a debtor is on file in the office of the Secretary
of State of the State of Delaware or (ii) otherwise known to such counsel,
without independent investigation, other than those created by or arising under
the Delaware LP Act.
(s) Except as described in the Prospectus, there are no preemptive rights
or other rights to subscribe for or to purchase, nor any restriction upon the
voting or transfer of, any partnership or membership interests in the General
Partner. GP LLC, OLP GP LLC, the Partnership, the Operating Partnership, Sun
Pipeline LP or RM In LP, in each case pursuant to the organizational documents
or, to the knowledge of such counsel, any agreement or other instrument listed
as an exhibit to the Registration Statement to which the General Partner, GP
LLC, OLP GP LLC, the Partnership, the Operating Partnership, Sun Pipeline LP or
RM In LP is a party or by which any of them may be bound. To such counsel's
knowledge and except as described in the Partnership Agreement, neither the
filing of the Registration Statement nor the offering or sale of the Units as
contemplated by the Underwriting Agreement gives rise to any rights for or
relating to the registration of any Units or other securities of the Partnership
or any of its
A-5
subsidiaries, other than as have been waived. To such counsel's knowledge,
except as described in the Prospectus, there are no outstanding options or
warrants to purchase partnership or membership interests in the General Partner,
GP LLC, OLP GP LLC the Partnership, the Operating Partnership, Sun Pipeline LP
or RM In LP.
(t) The Partnership has all requisite partnership power and authority to
issue, sell and deliver (i) the Units, in accordance with and upon the terms and
conditions set forth in the Underwriting Agreement, the Partnership Agreement,
the Registration Statement and Prospectus, and (ii) the Subordinated Units and
the Incentive Distribution Rights, in accordance with the terms and conditions
set forth in the Partnership Agreement and the Merger and Contribution
Agreements.
(u) Each of the Partnership, the Operating Partnership, Sun Pipeline LP and
RM In LP has all requisite limited partnership power and authority under the
laws of the State of Texas to own or lease its properties and to conduct its
business in the State of Texas, in each case in all material respects as
described or otherwise disclosed in the Prospectus; the General Partner, GP LLC
and OLP GP LLC has all requisite limited liability company power and authority
under the laws of the State of Texas to own or lease its properties and to
conduct its business in the State of Texas, in each case in all material
respects as described or otherwise disclosed in the Prospectus; and upon the
consummation of the Transactions (assuming that the Partnership will not be
liable under the laws of the State of Delaware for the liabilities of the
Operating Partnership, Sun Pipeline LP or RM In LP and assuming that unitholders
will not be liable under the laws of the State of Delaware for the liabilities
of the Partnership, the Operating Partnership, Sun Pipeline LP or RM In LP), the
Partnership will not be liable under the laws of the State of Texas for the
liabilities of the Operating Partnership, and unitholders will not be liable
under the laws of the State of Texas for the liabilities of the Partnership or
the Operating Partnership except in each case to the same extent as under the
laws of the State of Delaware. [First Delivery Date only]
(v) The Underwriting Agreement has been duly authorized and validly
executed and delivered by each of the Partnership, the Operating Partnership,
Sun Delaware, Sun Texas and Atlantic Petroleum.
(w) Each of the Operative Agreements to which any of the Sunoco Entities
other than the General Partner, Sunoco, Sunoco R&M, Sun Atlantic BV, Pipe Line,
Michigan and Mid-Con (the "Sunoco Delaware and Texas Entities") is a party has
been duly authorized and validly executed and delivered by the Sunoco Delaware
and Texas Entities parties thereto. Each of the Operative Agreements (other than
any Merger and Contribution Agreements governed by law other than Delaware of
Texas law, as to which such counsel need not express any opinion) to which any
of the Sunoco Entities is a party constitutes a valid and legally binding
obligation of the Sunoco Entities parties thereto, enforceable against each such
party in accordance with its respective terms, subject to (i) applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws relating to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is considered in
a
A-6
proceeding at law or in equity), and (ii) public policy, applicable law relating
to fiduciary duties and indemnification and an implied covenant of good faith
and fair dealing.
(x) The Mergers became effective under the Delaware LLC Act, the Texas LLC
Act, the DGCL and the TBCA, as applicable, on________________, 2002 and the
Conversion became effective under the DGCL and the Delaware LLC Act on
________________, 2002.
(y) The Mergers and the Conversion were legally sufficient under the law of
the State of Delaware and Texas to vest, directly or indirectly, in the
Operating Partnership and the Operating Subsidiaries, as applicable, the assets
of the parties to the Mergers and the Conversion located in the State of
Delaware and Texas.
(z) None of the offering, issuance and sale by the Partnership of the
Units, the execution, delivery and performance of the Underwriting Agreement or
the Operative Agreements by the Sunoco Entities which are parties thereto, or
the consummation of the transactions contemplated thereby (including the
Transactions) (i) constitutes or will constitute a violation of the agreement of
limited partnership, limited liability company agreement, certificate or
articles of incorporation or bylaws or other organizational documents of any of
the Sunoco Delaware and Texas Entities, (ii) constitutes or will constitute a
breach or violation of, or a default (or an event which, with notice or lapse of
time or both, would constitute such a default) under, any Operative Agreement
(other than any Merger and Contribution Agreement governed by law other than
Delaware or Texas law), (iii) violated, violates or will violate the Delaware LP
Act, the Delaware LLC Act, the DGCL, the Texas LP Act, the Texas LLC Act or the
TBCA or federal law, or (iv) resulted, results or will result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of any
of the Sunoco Delaware and Texas Entities, which conflicts, breaches,
violations, defaults or liens, in the case of clauses (ii), (iii) or (iv),
would, individually or in the aggregate, have a Material Adverse Effect.
(aa) No permit, consent, approval, authorization, order, registration,
filing or qualification ("consent") of or with any federal, Delaware or Texas
court, governmental agency or body having jurisdiction over the General Partner,
the Partnership, GP LLC, the Operating Partnership, OLP GP LLC or the Operating
Subsidiaries is required for the offering, issuance and sale by the Partnership
of the Units, the execution, delivery and performance of the Underwriting
Agreement or the Operative Agreements (other than any Merger and Contribution
Agreement governed by law other than Delaware or Texas law) by the Sunoco
Entities party thereto or the consummation by the Sunoco Entities of the
transactions contemplated by the Underwriting Agreement or the Operative
Agreements (other than any Merger and Contribution Agreement governed by law
other than Delaware or Texas law), except (i) for such consents required under
the Securities Act and the Exchange Act or under state securities or "Blue Sky"
laws, as to which such counsel need not express any opinion, (ii) for such
consents which have been obtained or made, (iii) for such consents which (A) are
of a routine or administrative nature, (B) are not customarily obtained or made
prior to the consummation of transactions such as those contemplated by the
Underwriting
A-7
Agreement and the Operative Agreements and (C) are expected in the reasonable
judgment of the General Partner to be obtained in the ordinary course of
business subsequent to the consummation of the Transactions, (iv) for such
consents which, if not obtained or made, would not, individually or in the
aggregate, have a material adverse effect upon the condition (financial or
other), business or results of operations of the Partnership Entities taken as a
whole, or (v) as disclosed in the Prospectus.
(bb) The execution, delivery and performance of the Conveyances relating to
the transfer of property in the State of Texas has not violated and will not
violate any statute of the State of Texas or any rule, regulation or, to the
knowledge of such counsel, any order of any agency of the State of Texas having
jurisdiction over any of the Sunoco Entities or any of their respective
properties, except for any such violations which, individually or in the
aggregate, would not have a material adverse effect on the unitholders or the
operations conducted in the State of Texas by the Partnership Entities, taken as
a whole. [First Delivery Date only]
(cc) Each of the Conveyances is in a form legally sufficient as between the
parties thereto to convey to the transferee thereunder all of the right, title
and interest of the transferor stated therein in and to the properties located
in the State of Texas, as described in the Conveyances, subject to the
conditions, reservations and limitations contained in the Conveyances, except
motor vehicles or other property requiring conveyance of certificated title as
to which the Conveyances are legally sufficient to compel delivery of such
certificated title. [First Delivery Date only]
(dd) Each of the deeds and real property assignments (including, without
limitation, the form of the exhibits and schedules thereto) is in a form legally
sufficient for recordation in the appropriate public offices of the State of
Texas, to the extent such recordation is required, and, upon proper recordation
of any of such deeds and real property assignments in the State of Texas, will
constitute notice to all third parties under the recordation statutes of the
State of Texas concerning record title to the assets transferred thereby;
recordation in the office of the County Clerk for each county in which the
Partnership Entities own property is the appropriate public office in the State
of Texas for the recordation of deeds and assignments of interests in real
property located in such county. [First Delivery Date only]
(ee) The statements in the Registration Statement and Prospectus under the
captions "Cash Distribution Policy," "Management's Discussion and Analysis of
Financial Condition and Results of Operations - Description of Credit
Agreement," "Management's Discussion and Analysis of Financial Condition and
Results of Operations - Description of Senior Notes," "Business - Regulation,"
"Certain Relationships and Related Party Transactions," "Conflicts of Interest
and Fiduciary Responsibilities," "Description of the Common Units," "Description
of the Subordinated Units" and "The Partnership Agreement," insofar as they
constitute descriptions of the Operative Agreements or legal proceedings or
refer to statements of law or legal conclusions, are accurate and complete in
all material respects, and the Common Units, the Subordinated Units and the
Incentive Distribution Rights conform in all material respects to the
descriptions thereof contained in the Registration Statement and
A-8
Prospectus under the captions "Prospectus Summary -- The Offering," "Cash
Distribution Policy," "Description of the Common Units," "Description of the
Subordinated Units" and "The Partnership Agreement."
(ff) The opinion of Xxxxxx & Xxxxxx L.L.P. that is filed as Exhibit 8.1 to
the Registration Statement is confirmed and the Underwriters may rely upon such
opinion as if it were addressed to them.
(gg) The Registration Statement was declared effective under the Securities
Act on ______________, 2002; to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or threatened by the
Commission; and any required filing of the Prospectus pursuant to Rule 424(b)
has been made in the manner and within the time period required by such Rule.
(hh) The Registration Statement and the Prospectus (except for the
financial statements and the notes and the schedules thereto and the other
financial, statistical and accounting data included in the Registration
Statement or the Prospectus, as to which such counsel need not express any
opinion) comply as to form in all material respects with the requirements of the
Securities Act and the rules and regulations promulgated thereunder.
(ii) To the knowledge of such counsel, (i) there are no legal or
governmental proceedings pending or threatened to which any of the Sunoco
Entities or to which any of the Sunoco Entities is a party or to which any of
their respective properties is subject that are required to be disclosed in the
Prospectus and are not so disclosed as required and (ii) there are no
agreements, contracts, indentures, leases or other instruments that are required
to be described in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement that are not described or filed as
required by the Securities Act.
(jj) None of the Sunoco Entities is an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended, or a "public utility
holding company" or "holding company" within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
(kk) The offer, sale and issuance of the Sponsor Units and the Incentive
Distribution Rights to the General Partner pursuant to the Partnership Agreement
are exempt from the registration requirements of the Securities Act.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Sunoco Parties and
the independent public accountants of the Partnership and your representatives,
at which the contents of the Registration Statement and the Prospectus and
related matters were discussed, and although such counsel has not independently
verified, is not passing on, and is not assuming any responsibility for the
accuracy, completeness or fairness of the statements contained in, the
Registration Statement and the Prospectus (except to the extent specified in the
foregoing opinion), based on the foregoing,
A-9
no facts have come to such counsel's attention that lead such counsel to believe
that the Registration Statement (other than (i) the financial statements
included therein, including the notes and schedules thereto and the auditors'
reports thereon and (ii) the other financial and statistical data included
therein, as to which such counsel need not comment), as of its effective date,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus (other than (i) the financial statements
included therein, including the notes and schedules thereto and the auditors'
reports thereon and (ii) the other financial and statistical data included
therein, as to which such counsel need not comment), as of its issue date and as
of each Delivery Date, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In rendering such opinion, such counsel may (A) rely in respect of matters
of fact upon the representations of the Sunoco Parties set forth in this
Underwriting Agreement and on certificates of officers and employees of the
Sunoco Entities and upon information obtained from public officials, (B) assume
that all documents submitted to them as originals are authentic, that all copies
submitted to them conform to the originals thereof, and that the signatures on
all documents examined by them are genuine, (C) state that their opinion is
limited to federal laws, the Delaware LP Act, the Delaware LLC Act, the DGCL and
the laws of the State of Texas, (D) with respect to the opinions expressed in
subparagraphs (a) through (d) above as to the due qualification or registration
as a foreign limited partnership, corporation or limited liability company, as
the case may be, of the Partnership, the Operating Partnership, Sun Pipeline LP,
RM In LP, the General Partner, GP LLC and OLP GP LLC state that such opinions
are based upon the opinions of local counsel provided pursuant to the Agreement
and upon certificates of foreign qualification or registration provided by the
Secretary of State of the states listed on Annex I (each of which will be dated
not more than fourteen days prior to such Delivery Date and shall be provided to
you), (E) state that they express no opinion with respect to the title of any of
the Sunoco Entities to any of their respective real or personal property
purported to be transferred by the Merger and Contribution Agreements nor with
respect to the accuracy or descriptions of real or personal property and (F)
state that they express no opinion with respect to state or local taxes or tax
statutes to which any of the limited partners of the Partnership or any of the
Sunoco Entities may be subject.
A-10
EXHIBIT B
FORM OF OPINION OF BLANK ROME XXXXXXX & XXXXXXXX LLP
(a) Each of Sunoco, Sunoco R&M and Pipe Line is a corporation duly
incorporated and validly existing in good standing under the laws of the
Commonwealth of Pennsylvania with full corporate power and authority to own and
lease its properties to be owned or leased at each Delivery Date, to assume the
liabilities being assumed by it pursuant to the Merger and Contribution
Agreements and to conduct its business to be conducted at each Delivery Date, in
each case in all material respects.
(b) Sunoco owns, directly or indirectly, all of the issued and outstanding
capital stock, membership interests or partnership interests, as the case may
be, of Sun Delaware, Sunoco R&M, Sun Atlantic R&M, Sun Atlantic BV, Atlantic
Petroleum, Sun Texas, Atlantic Out LLC, Michigan In LLC, Mid-Con In LLC,
Services LP, Atlantic In LP, Atlantic RM In LP, Atlantic Out LP and Atlantic Out
LP free and clear of all liens, encumbrances, security interests, equities,
charges or claims.
(c) Sun Delaware, Sun Texas, Sunoco R&M and Atlantic Petroleum are the only
members of the General Partner with a 100% membership interest in the General
Partner; such membership interest have been duly authorized and validly issued
in accordance with the General Partner LLC Agreement and are fully paid (to the
extent required under the General Partner LLC Agreement) and nonassessable; and
each of Sun Delaware, Sun Texas, Sunoco R&M and Atlantic Petroleum owns their
respective membership interest free and clear of all liens, encumbrances,
security interests, charges or claims (i) in respect of which a financing
statement under the Uniform Commercial Code of the Commonwealth of Pennsylvania
naming any of Sun Delaware, Sun Texas, Sunoco R&M or Atlantic Petroleum as a
debtor is on file in the office of the [Name of Proper State Office] of the
Commonwealth of Pennsylvania or (ii) otherwise known to such counsel, without
independent investigation, other than those created by or arising under the
Pennsylvania LLC Law.
(d) The Underwriting Agreement has been duly authorized and validly
executed and delivered by each of the General Partner, Sunoco and Sunoco R&M.
(e) Each of the Operative Agreements to which any of the General Partner,
Sunoco, Sunoco R&M and Pipe Line (the "Sunoco Pennsylvania Entities") is a party
has been duly authorized and validly executed and delivered by the Sunoco
Pennsylvania Entities parties thereto. Each of the Operative Agreements (other
than any Operative Agreement governed by law other than Pennsylvania, New Jersey
or New York law, as to which such counsel need not express any opinion) to which
any of the Sunoco Entities is a party constitutes a valid and legally binding
obligation of the Sunoco Entities
B-1
parties thereto, enforceable against each such party in accordance with its
respective terms, subject to (i) applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding at law or in equity),
and (ii) public policy, applicable law relating to fiduciary duties and
indemnification and an implied covenant of good faith and fair dealing.
(f) None of the offering, issuance and sale by the Partnership of the
Units, the execution, delivery and performance of the Underwriting Agreement or
the Operative Agreements by the Sunoco Entities which are party thereto, and the
consummation of the transactions contemplated hereby and thereby (including the
Transactions), (i) constitutes or will constitute a violation of the agreement
of limited partnership, limited liability company agreement, certificate or
articles of incorporation or bylaws or other organizational documents of any of
the Sunoco Pennsylvania Entities, (ii) constitutes or will constitute a breach
or violation of, or a default (or an event which, with notice or lapse of time
or both, would constitute such a default) under, any agreement, lease or other
instrument known to such counsel (excluding all Operative Agreements other than
the Credit Agreement and those governed by the law of the Commonwealth of
Pennsylvania or the States of New York and New Jersey, as to which such counsel
need not express any opinion) to which any of the Sunoco Pennsylvania Entities
or any of their properties may be bound, (iii) violated, violates or will
violate the laws of the Commonwealth of Pennsylvania, the laws of the States of
New Jersey or New York or federal law, or (iv) violates or will violate any
order, judgment, decree or injunction known to such counsel of any court or
governmental agency or body directed to any of the Sunoco Pennsylvania Entities
or any of their properties in a proceeding to which any of them or their
property is subject, which breach, violation or default, in the case of clause
(ii), (iii) or (iv), would, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the condition (financial or
other), business or results of operations of the Partnership Entities, taken as
a whole.
(g) The Partnership, the Operating Partnership and each Operating
Subsidiary has all requisite limited partnership power and authority under the
laws of the Commonwealth of Pennsylvania and under the laws of the States of New
Jersey and New York to own or lease its properties and to conduct its business
in the Commonwealth of Pennsylvania and the States of New Jersey and New York,
in each case in all material respects as described or otherwise disclosed in the
Prospectus; the General Partner, GP LLC and OLP GP LLC has all requisite limited
liability company power and authority under the laws of the Commonwealth of
Pennsylvania and under the laws of the States of New Jersey and New York to own
or lease its properties and to conduct its business in the Commonwealth of
Pennsylvania and the States of New Jersey and New York, in each case in all
material respects as described or otherwise disclosed in the Prospectus; and
upon the consummation of the Transactions (assuming
B-2
(g) that the Partnership will not be liable under the laws of the State of
Delaware for the liabilities of the Operating Partnership or the Operating
Subsidiaries and assuming that unitholders will not be liable under the laws of
the State of Delaware for the liabilities of the Partnership, the Operating
Partnership or the Operating Subsidiaries), the Partnership will not be liable
under the laws of the Commonwealth of Pennsylvania or under the laws of the
States of New Jersey and New York for the liabilities of the Operating
Partnership, and unitholders will not be liable under the laws of the
Commonwealth of Pennsylvania or under the laws of the States of New Jersey and
New York for the liabilities of the Partnership or the Operating Partnership
except in each case to the same extent as under the laws of the State of
Delaware. [First Delivery Date only]
(h) To the knowledge of such counsel, each of the Partnership Entities has
such permits, consents, licenses, franchises, certificates and authorizations of
governmental or regulatory authorities ("permits") as are necessary to own or
lease its properties and to conduct its business in the manner described in the
Prospectus, subject to such qualifications as may be set forth in the
Prospectus, and except for such permits which, if not obtained, would not
reasonably be expected to have, individually or in the aggregate, a material
adverse effect upon the operations conducted by the Partnership Entities, taken
as a whole, and, to the knowledge of such counsel, none of the Partnership
Entities has received any notice of proceedings relating to the revocation or
modification of any such permit which, individually or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would reasonably be
expected to have a material adverse effect upon the Partnership Entities, taken
as a whole.
(i) To the knowledge of such counsel, none of the Sunoco Pennsylvania
Entities is (i) in violation of its certificate or agreement of limited
partnership, limited liability company agreement, certificate or articles of
incorporation or bylaws or other organizational documents, (ii) in violation of
any law, statute, ordinance, administrative or governmental rule or regulation
applicable to it or of any decree of any court or governmental agency or body
having jurisdiction over it or (iii) in breach, default (or an event which, with
notice or lapse of time or both, would constitute such a default) or violation
in the performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or in any agreement,
indenture, lease or other instrument to which it is a party or by which it or
any of its properties may be bound, which breach, default or violation, in the
case of clause (ii) or (iii), would, if continued, have a material adverse
effect on the condition (financial or other), business or results of operations
of the Partnership Entities, taken as a whole, or could materially impair the
ability of any of the Sunoco Pennsylvania Entities to perform their obligations
under the Underwriting Agreement or the Operative Agreements.
B-3
(j) Except as described in the Prospectus, to the knowledge of such
counsel, there is no litigation, proceeding or governmental investigation
pending or threatening against any of the Partnership Entities or to which any
of the Partnership Entities is a party or to which any of their respective
properties is subject, which, if adversely determined to such Partnership
Entity, is reasonably likely to have a material adverse effect on the condition
(financial or otherwise), business or results of operations of the Partnership
Entities, taken as a whole.
(k) Except as described in the Prospectus, to the knowledge of such
counsel, there are no preemptive rights or other rights to subscribe for or to
purchase, nor any restriction upon the voting or transfer of, (i) any limited
partner interests in the Partnership, the Operating Partnership or any Operating
Subsidiary or (ii) any limited liability company interests in the General
Partner, GP LLC or OLP GP LLC, in each case pursuant to the Credit Agreement or,
to the knowledge of such counsel, any other agreement or instrument (other than
those agreements listed as exhibits to the Registration Statement) to which the
General Partner, GP LLC, OLP GP LLC, the Partnership, the Operating Partnership,
or any Operating Subsidiary is a party or by which any of them may be bound.
(l) Assuming that the Mergers and the Conversions were legally sufficient
under applicable Delaware and Texas law to vest in the Operating Partnership and
the Operating Subsidiaries, as applicable, the assets of the parties to the
Mergers and the Conversions, then the Mergers and the Conversions were legally
sufficient under the law of the Commonwealth of Pennsylvania and under the law
of the States of New Jersey and New York to vest, directly or indirectly, in the
Operating Partnership and the Operating Subsidiaries, as applicable, the assets
of the parties to the Mergers and the Conversion located in the Commonwealth of
Pennsylvania or in the States of New Jersey and New York.
(m) No permit, consent, approval, authorization, order, registration,
filing or qualification ("consent") of or with any court, governmental agency or
body of the Commonwealth of Pennsylvania or the States of New Jersey or New York
having jurisdiction over the Sunoco Entities or any of their respective
properties is required for the issuance and sale of the Units by the
Partnership, or for the conveyance of the properties located in the Commonwealth
of Pennsylvania or in the States of New Jersey and New York purported to be
conveyed to the Operating Partnership or the Operating Subsidiaries, as
applicable, pursuant to the Conveyances, except (A) for such consents required
under the Securities Act, the Exchange Act and state securities or "Blue Sky"
laws, as to which such counsel need not express any opinion, (B) for such
consents which have been obtained or made, (C) for such consents which (i) are
of a routine or administrative nature, (ii) are not customarily obtained or made
prior to the consummation of transactions such as those contemplated by this
Agreement and the Operative Agreements and (iii) are
B-4
expected in the reasonable judgment of the General Partner to be obtained or
made in the ordinary course of business subsequent to the consummation of the
Transactions, (D) for such consents which, if not obtained or made, would not,
individually or in the aggregate, have a material adverse effect upon the
operations conducted or to be conducted as described in the Prospectus in the
Commonwealth of Pennsylvania and in the States of New Jersey and New York by the
Partnership Entities or (E) as disclosed in the Prospectus.
(n) The execution, delivery and performance of the Conveyances relating to
the transfer of property in the Commonwealth of Pennsylvania and in the States
of New Jersey and New York has not violated and will not violate any statute of
the Commonwealth of Pennsylvania or the States of New Jersey and New York or any
rule, regulation or, to the knowledge of such counsel, any order of any agency
of the Commonwealth of Pennsylvania or of the States of New Jersey and New York
having jurisdiction over any of the Sunoco Entities or any of their respective
properties, except for any such violations which, individually or in the
aggregate, would not have a material adverse effect on the unitholders or the
operations conducted in the Commonwealth of Pennsylvania or in the State of
States of New Jersey and New York by the Partnership Entities, taken as a whole.
[First Delivery Date only]
(o) Each of the Conveyances is in a form legally sufficient as between the
parties thereto to convey to the transferee thereunder all of the right, title
and interest of the transferor stated therein in and to the properties located
in the Commonwealth of Pennsylvania and in the States of New Jersey and New York
as described in the Conveyances, subject to the conditions, reservations and
limitations contained in the Conveyances, except motor vehicles or other
property requiring conveyance of certificated title as to which the Conveyances
are legally sufficient to compel delivery of such certificated title. [First
Delivery Date only]
(p) Each of the deeds and real property assignments (including, without
limitation, the form of the exhibits and schedules thereto) is in a form legally
sufficient for recordation in the appropriate public offices of the Commonwealth
of Pennsylvania and of the States of New Jersey and New York to the extent such
recordation is required, and, upon proper recordation of any of such deeds and
real property assignments in the Commonwealth of Pennsylvania and in the States
of New Jersey and New York will constitute notice to all third parties under the
recordation statutes of the Commonwealth of Pennsylvania and of the States of
New Jersey and New York concerning record title to the assets transferred
thereby; recordation in the office of the County Clerk for each county in which
the Partnership Entities own property is the appropriate public office in the
Commonwealth of Pennsylvania and in the States of New Jersey and New York for
the recordation of deeds and assignments of interests in real property located
in such county. [First Delivery Date only]
B-5
In rendering such opinion, such counsel may (A) rely in respect of matters of
fact upon the representations of the Sunoco Parties set forth in this Agreement
and in certificates of officers and employees of the Sunoco Entities and upon
information obtained from public officials, (B) assume that all documents
submitted to such counsel as originals are authentic, that all copies submitted
to such counsel conform to the originals thereof, and that the signatures on all
documents examined by her are genuine, (C) state that such opinions are limited
to federal laws, the laws of the Commonwealth of Pennsylvania and the laws of
the States of New Jersey and New York (D) state that she expresses no opinion
with respect to the title of any of the Sunoco Entities to the real or personal
property purported to be transferred by the Merger and Contribution Agreements
nor with respect to the accuracy or descriptions of real or personal property,
and (E) state that she expresses no opinion with respect to state or local taxes
or tax statutes to which any of the limited partners of the Partnership or any
of the Sunoco Entities may be subject.
B-6
EXHIBIT C
FORM OF LOCAL COUNSEL OPINIONS
Michigan, Ohio and Oklahoma:
In the case of the First Delivery Date only, each of Xxxx, Xxxxxxx and
Xxxxx, PLC, with respect to the State of Michigan, Xxxxxxxx Xxxx LLP, with
respect to the State of Ohio, and Hall, Estill, Hardwick, Gable, Golden &
Xxxxxx, a Professional Corporation, with respect to the State of Oklahoma, shall
have furnished to you their written opinion, dated the First Delivery Date, in
form and substance satisfactory to you, to the effect that:
(a) The Partnership, the Operating Partnership and LP Operating
Subsidiary has been duly qualified or registered as a foreign limited
partnership for the transaction of business under the laws of the
applicable jurisdiction set forth on Annex I.
(b) Each of the General Partner, GP LLC, OLP GP LLC and LLC Operating
Subsidiary has been duly qualified or registered as a foreign limited
liability company for the transaction of business under the laws of the
applicable jurisdiction set forth on Annex I.
(c) Michigan is a corporation duly incorporated and validly existing
in good standing under the laws of the State of Michigan with full
corporate power and authority to own and lease its properties to be owned
or leased at each Delivery Date, to assume the liabilities being assumed by
it pursuant to the Merger and Contribution Agreements and to conduct its
business to be conducted at each Delivery Date, in each case in all
material respects as described in the Registration Statement and the
Prospectus. [Michigan only]
(d) Mid-Con is a corporation duly incorporated and validly existing in
good standing under the laws of the State of Oklahoma with full corporate
power and authority to own and lease its properties to be owned or leased
at each Delivery Date, to assume the liabilities being assumed by it
pursuant to the Merger and Contribution Agreements and to conduct its
business to be conducted at each Delivery Date, in each case in all
material respects as described in the Registration Statement and the
Prospectus. [Oklahoma only]
(b) Each of the Operative Agreements to which Michigan is a party has been
duly authorized and validly executed and delivered by Michigan. Each of the
Operative Agreements (other than any Operative Agreement governed by law other
than Michigan law, as to which such counsel need not express any opinion) to
which Michigan is a party constitutes a valid and legally binding obligation of
Michigan, enforceable against such party in accordance with its respective
terms, subject to (i) applicable bankruptcy, insolvency, fraudulent transfer,
C-1
reorganization, moratorium and similar laws relating to or affecting creditors'
rights generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity), and (ii)
public policy, applicable law relating to fiduciary duties and indemnification
and an implied covenant of good faith and fair dealing. [Michigan only]
(d) Each of the Operative Agreements to which Mid-Con is a party has been
duly authorized and validly executed and delivered by Mid-Con. Each of the
Operative Agreements (other than any Operative Agreement governed by law other
than Oklahoma law, as to which such counsel need not express any opinion) to
which Mid-Con is a party constitutes a valid and legally binding obligation of
Mid-Con, enforceable against such party in accordance with its respective terms,
subject to (i) applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws relating to or affecting creditors'
rights generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity), and (ii)
public policy, applicable law relating to fiduciary duties and indemnification
and an implied covenant of good faith and fair dealing. [Oklahoma only]
(e) The Partnership, the Operating Partnership and each LP Operating
Subsidiary has all requisite limited partnership power and authority under the
laws of the State of [insert applicable state] to own or lease its properties
and to conduct its business in the State of [insert applicable state], in each
case in all material respects as described or otherwise disclosed in the
Prospectus; the General Partner, GP LLC, OLP GP LLC and each LLC Operating
Subsidiary has all requisite limited liability company power and authority under
the laws of the State of [insert applicable state] to own or lease its
properties and to conduct its business in the State of [insert applicable
state], in each case in all material respects as described or otherwise
disclosed in the Prospectus; and upon the consummation of the Transactions
(assuming that the Partnership will not be liable under the laws of the State of
Delaware for the liabilities of the Operating Partnership or the Operating
Subsidiaries and assuming that unitholders will not be liable under the laws of
the State of Delaware for the liabilities of the Partnership, the Operating
Partnership or the Operating Subsidiaries), the Partnership will not be liable
under the laws of the State of [insert applicable state] for the liabilities of
the Operating Partnership, and unitholders will not be liable under the laws of
the State of [insert applicable state] for the liabilities of the Partnership or
the Operating Partnership except in each case to the same extent as under the
laws of the State of Delaware.
(f) Assuming that the Mergers and the Conversions were legally sufficient
under applicable Delaware and Texas law to vest in the Operating Partnership and
the Operating Subsidiaries, as applicable, the assets of the parties to the
Mergers and the Conversion, then the Mergers and the Conversion were legally
sufficient under the law of the State of [insert applicable state] to vest,
directly or indirectly, in the Operating Partnership and the Operating
Subsidiaries, as applicable, the
C-2
assets of the parties to the Merger and the Conversions located in the State of
[insert applicable state].
(g) No permit, consent, approval, authorization, order, registration,
filing or qualification ("consent") of or with any court, governmental agency or
body of the State of [insert applicable state] having jurisdiction over the
Sunoco Entities or any of their respective properties is required for the
issuance and sale of the Units by the Partnership, or for the conveyance of the
properties located in the State of [insert applicable state] purported to be
conveyed to the Operating Partnership or the Operating Subsidiaries, as
applicable, pursuant to the Conveyances, except (A) for such consents required
under the Securities Act, the Exchange Act and state securities or "Blue Sky"
laws, as to which such counsel need not express any opinion, (B) for such
consents which have been obtained or made, (C) for such consents which (i) are
of a routine or administrative nature, (ii) are not customarily obtained or made
prior to the consummation of transactions such as those contemplated by this
Agreement and the Operative Agreements and (iii) are expected in the reasonable
judgment of the General Partner to be obtained or made in the ordinary course of
business subsequent to the consummation of the Transactions, (D) for such
consents which, if not obtained or made, would not, individually or in the
aggregate, have a material adverse effect upon the operations conducted or to be
conducted as described in the Prospectus in the State of [insert applicable
state] by the Partnership Entities or (E) as disclosed in the Prospectus.
(h) The execution, delivery and performance of the Conveyances relating to
the transfer of property in the State of [insert applicable state] has not
violated and will not violate any statute of the State of [insert applicable
state] or any rule, regulation or, to the knowledge of such counsel, any order
of any agency of the State of [insert applicable state] having jurisdiction over
any of the Sunoco Entities or any of their respective properties, except for any
such violations which, individually or in the aggregate, would not have a
material adverse effect on the unitholders or the operations conducted in the
State of [insert applicable state] by the Partnership Entities, taken as a
whole.
(i) Each of the Conveyances is in a form legally sufficient as between the
parties thereto to convey to the transferee thereunder all of the right, title
and interest of the transferor stated therein in and to the properties located
in the State of [insert applicable state], as described in the Conveyances,
subject to the conditions, reservations and limitations contained in the
Conveyances, except motor vehicles or other property requiring conveyance of
certificated title as to which the Conveyances are legally sufficient to compel
delivery of such certificated title.
C-3
(j) Each of the deeds and real property assignments (including, without
limitation, the form of the exhibits and schedules thereto) is in a form legally
sufficient for recordation in the appropriate public offices of the State of
[insert applicable state], to the extent such recordation is required, and, upon
proper recordation of any of such deeds and real property assignments in the
State of [insert applicable state], will constitute notice to all third parties
under the recordation statutes of the State of [insert applicable state]
concerning record title to the assets transferred thereby; recordation in the
office of the County Clerk for each county in which the Partnership Entities own
property is the appropriate public office in the State of [insert applicable
state] for the recordation of deeds and assignments of interests in real
property located in such county.
In rendering such opinion, such counsel may (A) rely in respect of matters
of fact upon certificates of officers and employees of the Partnership Entities
and upon information obtained from public officials, (B) assume that all
documents submitted to them as originals are authentic, and all copies submitted
to them conform to the originals thereof, and that the signatures on all
documents examined by them are genuine, (C) state that such opinions are limited
to the laws of the State of [insert applicable state], excepting therefrom
municipal and local ordinances and regulations, (D) state that they express no
opinion with respect to state or local taxes or tax statutes to which any of the
limited partners of the Partnership or any of the Partnership Entities may be
subject, and (E) with respect to the opinion in paragraph (i) rely upon
certificates of foreign qualification provided by the Secretary of State of
[insert applicable state] (each of which shall be dated as of the date not more
than fourteen days prior to such Delivery Date and provided to you.)
In rendering such opinion, such counsel shall state that (A) Xxxxxx &
Xxxxxx L.L.P. and Blank Rome Xxxxxxx & XxXxxxxx LLP are hereby authorized to
rely upon such opinion letter in connection with the Transactions as if such
opinion letter were addressed and delivered to them on the date hereof and (B)
subject to the foregoing, such opinion letter may be relied upon only by the
Underwriters and its counsel in connection with the Transactions and no other
use or distribution of this opinion letter may be made without such counsel's
prior written consent.
C-4
EXHIBIT X
Xxxxxx Brothers Inc. ___________, 2002
Xxxxxxx Xxxxx Xxxxxx Inc.
UBS Warburg LLC
Banc of America Securities LLC
First Union Securities, Inc.
Credit Suisse First Boston Corporation
c/x Xxxxxx Brothers Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Dear Sirs:
The undersigned understands that you and certain other firms propose to enter
into an Underwriting Agreement (the "Underwriting Agreement") among Sunoco,
Inc., Sunoco, Inc. (R&M), Sun Pipe Line Company of Delaware, Sun Pipe Line
Company, Atlantic Petroleum Corporation, Sunoco Partners LLC, Sunoco Logistics
Partners L.P. (the "Partnership"), Sunoco Logistics Partners Operations L.P. and
Xxxxxx Brothers Inc., Xxxxxxx Xxxxx Xxxxxx Inc., UBS Warburg LLC, Banc of
America Securities LLC, First Union Securities, Inc. and Credit Suisse First
Boston Corporation as Underwriters (the "Underwriters"), providing for the
purchase by you and such other Underwriters of common units, each representing a
limited partner interest (the "Common Units") in the Partnership, and that the
Underwriters propose to reoffer the Common Units to the public (the "Offering").
Capitalized terms used but not defined herein have the meanings given to them in
the Underwriting Agreement.
In consideration of the execution of the Underwriting Agreement by the
Underwriters, and for other good and valuable consideration, the undersigned
hereby irrevocably agrees that, without the prior written consent of Xxxxxx
Brothers Inc., on behalf of the Underwriters, the undersigned will not, directly
or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or
enter into any transaction or device which is designed to, or could be expected
to, result in the disposition by any person at any time in the future of) any
Common Units (including, without limitation, Common Units purchased pursuant to
a Directed Unit Program and Common Units that may be deemed to be beneficially
owned by the undersigned in accordance with the rules and regulations of the
Securities and Exchange Commission and Common Units that may be issued upon
exercise of any option or warrant) or securities convertible into or
exchangeable for Common Units owned by the undersigned on the date of execution
of this Lock-up Letter Agreement or on the date of the completion of the
Offering, or (2) enter into any swap or other derivatives transaction that
transfers to another, in whole or in part, any of the economic benefits or risks
of ownership of such Common Units (including Directed Units, if any), whether
any such transaction described in clause (1) or (2) above is to be settled by
delivery of Common Units or other securities, in cash or otherwise, for a period
of 180 days from the date of the Prospectus (as defined in the Underwriting
Agreement).
D-1
In furtherance of the foregoing, the Partnership and its Transfer Agent are
hereby authorized to decline to make any transfer of securities if such transfer
would constitute a violation or breach of this Lock-Up Letter Agreement.
It is understood that, if the Partnership notifies you that it does not intend
to proceed with the Offering, if the Underwriting Agreement does not become
effective, or if the Underwriting Agreement (other than the provisions thereof
which survive termination) shall terminate or be terminated prior to payment for
and delivery of the Common Units, we will be released from our obligations under
this Lock-Up Letter Agreement.
The undersigned understands that the Partnership and the Underwriters will
proceed with the Offering in reliance on this Lock-Up Letter Agreement.
Whether or not the Offering actually occurs depends on a number of factors,
including market conditions. Any Offering will only be made pursuant to an
Underwriting Agreement, the terms of which are subject to negotiation between
the Partnership and the Underwriters.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to enter into this Lock-Up Letter Agreement and that, upon
request, the undersigned will execute any additional documents necessary in
connection with the enforcement hereof. Any obligations of the undersigned shall
be binding upon the [heirs, personal representatives,] [Note: use this language
for lock-ups signed by natural persons] [successors and assigns] [Note: use this
language for lock-ups signed by Sunoco affiliate companies] of the undersigned.
Yours very truly,
------------------------------
Dated: ____________, 2002
D-2
ANNEX I
FOREIGN QUALIFICATIONS
General Partner
---------------
Canada
Indiana
Louisiana
Michigan
New Jersey
New York
New Mexico
Ohio
Oklahoma
Pennsylvania
Texas
Partnership
-----------
Canada
Indiana
Louisiana
Michigan
New Jersey
New York
New Mexico
Ohio
Oklahoma
Pennsylvania
Texas
Sunoco Partners LLC
-------------------
Canada
Indiana
Louisiana
Michigan
New Jersey
New York
New Mexico
Ohio
Oklahoma
Pennsylvania
Texas
1
Operating Partnership
---------------------
Canada
Indiana
Louisiana
Michigan
New Jersey
New York
New Mexico
Ohio
Oklahoma
Pennsylvania
Texas
Xxx Xxxxxxxx LP
---------------
Canada
Indiana
Louisiana
Michigan
New Jersey
New York
New Mexico
Ohio
Oklahoma
Pennsylvania
Texas
RM In LP
--------
Canada
Indiana
Louisiana
Michigan
New Jersey
New York
New Mexico
Ohio
Oklahoma
Pennsylvania
Texas
2
