EXHIBIT 1.1
BUCKEYE PARTNERS, L.P.
Debt Securities
Underwriting Agreement Standard Provisions
From time to time, Buckeye Partners, L.P., a Delaware limited
partnership (the "Partnership"), may enter into one or more underwriting
agreements in the form of Annex A hereto that incorporate by reference these
Standard Provisions (collectively with these Standard Provisions, an
"Underwriting Agreement") that provide for the sale of the securities designated
in such Underwriting Agreement (the "Securities") to the several Underwriters
named therein (the "Underwriters"), for whom the Underwriter(s) named therein
shall act as representative (the "Representative"). The Underwriting Agreement,
including these Standard Provisions, is sometimes referred to herein as this
"Agreement." The Securities will be issued pursuant to an Indenture to be dated
as of July 10, 2003 (the "Base Indenture") between the Partnership and SunTrust
Bank, as trustee (the "Trustee"), as amended and supplemented by the First
Supplemental Indenture thereto to be dated as of July 10, 2003 (the
"Supplemental Indenture") between the Partnership and the Trustee, relating to
the series of debt securities comprised by the Securities. The Base Indenture,
as so amended and supplemented by the Supplemental Indenture is referred to
herein as the "Indenture."
Buckeye Pipe Line Company, a Delaware corporation and the general
partner of the Partnership is referred to herein as the "General Partner."
Buckeye Pipe Line Company, L.P., a Delaware limited partnership
("Buckeye"), Buckeye Pipe Line Holdings, L.P., a Delaware limited partnership
("BPH"), Everglades Pipe Line Company, L.P., a Delaware limited partnership
("Everglades"), and Laurel Pipe Line Company, L.P., a Delaware limited
partnership ("Laurel"), are herein sometimes referred to collectively as the
"Operating Partnerships" and individually, as an "Operating Partnership."
Buckeye Terminals, LLC, a Delaware limited liability company ("BT"),
Norco Pipe Line Company, LLC, a Delaware limited liability company ("Norco"),
Buckeye Gulf Coast Holdings I, LLC, a Delaware limited liability company ("BGC
I"), Buckeye Gulf Coast Holdings II, LLC, a Delaware limited liability company
("BGC II"), WesPac Pipeline-Reno Ltd., a Nevada limited liability company
("WesPac Reno"), WesPac Pipeline-San Diego Ltd., a Nevada limited liability
company ("WesPac SD," and together with WesPac Reno, the "WesPac Entities"), and
Gulf Coast / Products GP Holding LLC, a Delaware limited liability company ("GP
Holding"), are herein sometimes referred to collectively as the "LLC
Subsidiaries."
Buckeye Telecom, L.P., a Delaware limited partnership ("Telecom"),
Buckeye Gulf Coast Pipe Lines, L.P., a Delaware limited partnership ("BGC"),
Buckeye Products Pipe Line, L.P., a Delaware limited partnership ("BPP"), Gulf
Coast Pipe Line, L.P., a Delaware limited partnership ("GCP"), Buckeye Pipe Line
Co. of Michigan, L.P., a Delaware limited partnership ("BPL MI"), and Gulf Coast
/ Products Holding L.P., a Delaware limited partnership ("Products Holding") are
herein sometimes referred to collectively as the "Partnership Subsidiaries." The
Operating Partnerships, the LLC Subsidiaries, the Partnership Subsidiaries and
West Shore Pipe Lines Company, a Delaware corporation, are herein sometimes
referred to collectively as the "Subsidiaries."
1. Registration Statement. The Partnership has prepared and filed with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Securities Act"), a registration statement on
Form S-3 (File No. 333-102531), including a prospectus dated January 22, 2003
(the "Basic Prospectus"), relating to the debt securities to be issued from time
to time by the Partnership. The Partnership has also filed, or proposes to file,
with the Commission pursuant to Rule 424 under the Securities Act a prospectus
supplement specifically relating to the Securities (the "Prospectus
Supplement"). The registration statement, as amended at the time it became
effective, including the information, if any, deemed pursuant to Rule 430A under
the Securities Act to be part of the registration statement at the time of its
effectiveness ("Rule 430 Information"), is referred to herein as the
"Registration Statement"; and as used herein, the term "Prospectus" means the
Basic Prospectus as supplemented by the prospectus supplement specifically
relating to the Securities in the form first used to confirm sales of the
Securities and the term "Preliminary Prospectus" means the preliminary
prospectus supplement specifically relating to the Securities together with the
Basic Prospectus. If the Partnership has filed an abbreviated registration
statement pursuant to Rule 462(b) under the Securities Act (the "Rule 462
Registration Statement"), then any reference herein to the term "Registration
Statement" shall be deemed to include such Rule 462 Registration Statement.
Capitalized terms used but not defined herein shall have the meanings given to
such terms in the Registration Statement and the Prospectus. References herein
to the Registration Statement, the Basic Prospectus, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein. The terms "supplement," "amendment" and
"amend" as used herein as used herein with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include any documents filed by the Partnership under the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (the "Exchange Act") subsequent to the date of the
Underwriting Agreement which are deemed to be incorporated by reference therein.
For purposes of this Agreement, the term "Effective Time" means the date and
time the Registration Statement became effective, and, if later, the date of
filing of the Partnership's most recent Annual Report on Form 10-K.
2. Purchase of the Securities by the Underwriters.
(a) The Partnership agrees to issue and sell the Securities to
the several Underwriters named in the Underwriting Agreement, and each
Underwriter, on the basis of the representations, warranties and
agreements set forth herein and subject to the conditions set forth
herein, agrees, severally and not jointly, to purchase from the
Partnership the respective principal amount of Securities set forth
opposite such Underwriter's name in the Underwriting Agreement at the
purchase price set forth in the Underwriting Agreement.
(b) Payment for and delivery of the Securities will be made at
the time and place set forth in the Underwriting Agreement. The time
and date of such payment and delivery is referred to herein as the
"Closing Date".
3. Representations and Warranties of the Partnership. The General
Partner and the Partnership, jointly and severally, represent and warrant to
each Underwriter that:
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(a) Registration Statement and Prospectus. The Registration
Statement has become effective under the Securities Act; no order
suspending the effectiveness of the Registration Statement has been
issued by the Commission and no proceeding for that purpose has been
initiated or threatened by the Commission; as of the Effective Time,
the Registration Statement complied in all material respects with the
applicable requirements of the Securities Act and the Trust Indenture
Act of 1939, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Trust Indenture Act"), and
did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and as of the date
of the Prospectus and any amendment or supplement thereto and as of the
Closing Date, as the case may be, the Prospectus did not and will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however that the
General Partner and the Partnership make no representation and warranty
with respect to (i) that part of the Registration Statement that
constitutes the Statement of Eligibility and Qualification (Form T-1)
of the Trustee under the Trust Indenture Act or (ii) any statements in
or omissions from the Registration Statement, the Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto
made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Partnership in writing by such
Underwriter through the Representative expressly for use therein.
(b) Incorporated Documents. The documents incorporated by
reference in the Registration Statement and the Prospectus, when filed
with the Commission, conformed or will conform, as the case may be, in
all material respects with the applicable requirements of the Exchange
Act and did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) Adequacy of Financial Statements. The financial statements
of the Partnership and the Subsidiaries (including the related notes
and supporting schedules) filed as part of or incorporated by reference
in the Registration Statement and the Prospectus present fairly in all
material respects the consolidated financial condition, the results of
operations and cash flows of the Partnership and the Subsidiaries at
the dates and for the periods indicated, and have been prepared in
conformity with generally accepted accounting principles ("GAAP"),
except as described therein, applied on a consistent basis throughout
the periods involved and comply as to form with the applicable
accounting requirements of the Securities Act; any pro forma financial
statements or data included in the Registration Statement and the
Prospectus comply with the requirements of Regulation S-X of the
Securities Act and the assumptions used in the preparation of such pro
forma financial statements and data are reasonable, the pro forma
adjustments used therein are appropriate to give effect to the
transactions or circumstances described therein and the pro forma
adjustments have been properly applied to the historical amounts in the
compilation of those statements and data; the other financial and
statistical data set forth in the Registration Statement and the
Prospectus are accurately presented and prepared on a basis consistent
with the financial statements and books and records of the Partnership;
there are no financial statements
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(historical or pro forma) that are required to be included in the
Registration Statement and the Prospectus that are not included as
required; and, the General Partner, the Partnership and the
Subsidiaries do not have any material liabilities or obligations,
direct or contingent (including any off-balance sheet obligations), not
disclosed in the Registration Statement and the Prospectus.
(d) No Material Adverse Change. Subsequent to the respective
dates as of which information is given or incorporated by reference in
the Registration Statement and the Prospectus, except as described
therein, there has not been (i) any material adverse change, or any
development involving a prospective material adverse change, in the
business, properties, management, financial condition or results of
operations of the General Partner, the Partnership and the Subsidiaries
taken as a whole, (ii) any transaction which is material to the General
Partner, the Partnership and the Subsidiaries taken as a whole, (iii)
any obligation, direct or contingent (including any off-balance sheet
obligations), incurred by the General Partner, the Partnership or the
Subsidiaries, which is material to the General Partner, the Partnership
and the Subsidiaries taken as a whole (iv) any change in the
capitalization or outstanding indebtedness of the General Partner, the
Partnership or the Subsidiaries or (v) any dividend or distribution of
any kind declared, paid or made on the equity interests of the
Partnership.
(e) Formation and Good Standing of BMC, Services Company and
the General Partner. Each of Buckeye Management Company, a Delaware
corporation ("BMC"), Buckeye Pipe Line Services Company, a Pennsylvania
corporation ("Services Company") and the General Partner has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own or lease, as
the case may be, and to operate its properties and conduct its business
in each case, as described in the Prospectus and, with respect to the
General Partner, to act as the general partner of the Partnership and
each of the Operating Partnerships and to execute and deliver this
Agreement and perform its obligations under the Agreement, and each is
duly qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction listed across from each
such entity's name on Annex B, such jurisdictions being the only
jurisdictions where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the
failure to be so qualified and in good standing would not, individually
or in the aggregate, (i) have a material adverse effect on the
business, properties, financial condition, results of operation or
prospects of the General Partner, the Partnership and the Subsidiaries
taken as a whole or (ii) subject the Partnership or the limited
partners of the Partnership to any material liability or disability,
whether or not arising from transactions in the ordinary course of
business (a "Material Adverse Effect").
(f) Formation and Good Standing of the Partnership, Operating
Partnerships and the Partnership Subsidiaries. Each of the Partnership,
the Operating Partnerships and the Partnership Subsidiaries has been
duly formed and is validly existing as a limited partnership in good
standing under the Delaware Revised Uniform Limited Partnership Act, as
amended (the "DRULPA"), with full partnership power and authority to
own or lease, as the case may be, and to operate its properties and
conduct its business in each case, as described in the Prospectus, and,
with respect to the Partnership, to perform its
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obligations under the Agreement and to issue, sell and deliver the
Securities as contemplated by the Agreement, and is each duly qualified
or registered to do business as a foreign limited partnership and is in
good standing under the laws of the each jurisdiction listed across
from each such entity's name on Annex B, such jurisdictions being the
only jurisdictions where the ownership or leasing of its properties or
the conduct of its business requires such qualification, except where
the failure to be so qualified and in good standing would not,
individually or in the aggregate, have a Material Adverse Effect.
(g) Formation and Good Standing of the LLC Subsidiaries. Each
of the LLC Subsidiaries has been duly formed and is validly existing as
a limited liability company in good standing under the laws of the
jurisdiction in which it is organized, with full limited liability
company power and authority to own or lease, as the case may be, and to
operate its properties and conduct its business in each case, as
described in the Prospectus, and each is duly qualified or registered
to do business as a foreign limited liability company and is in good
standing under the laws of each jurisdiction listed across from each
such entity's name on Annex B, such jurisdictions being the only
jurisdictions where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the
failure to be so qualified and in good standing would not, individually
or in the aggregate, have a Material Adverse Effect.
(h) Validity of the Partnership Agreements. The Amended and
Restated Agreement of Limited Partnership of the Partnership, dated as
of December 31, 1998 (the "Partnership Agreement") is a valid and
legally binding agreement of the General Partner, enforceable against
the General Partner in accordance with its terms, and each of the
Amended and Restated Agreement of Limited Partnership of Buckeye, dated
as of December 23, 1986, as amended by Amendment No. 1 to the Amended
and Restated Agreement of Limited Partnership of Buckeye, dated as of
August 12, 1997 (as amended, the "Buckeye Partnership Agreement"), the
Amended and Restated Agreement of Limited Partnership of BPH, dated as
of October 12, 2001 (the "BPH Partnership Agreement"), the Amended and
Restated Agreement of Limited Partnership of Everglades, dated as of
March 25, 1998 (the "Everglades Partnership Agreement"), and the
Amended and Restated Agreement of Limited Partnership of Laurel, dated
as of March 25, 1998 (the "Laurel Partnership Agreement", and together
with the Buckeye Partnership Agreement, the BPH Partnership Agreement
and the Everglades Partnership Agreement, the "Operating Partnership
Agreements") is a valid and legally binding agreement of the parties
thereto, enforceable against the General Partner and the Partnership in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally or by equitable principles
relating to enforceability (collectively, the "Enforceability
Exceptions"). Complete and correct copies of (i) the certificate of
limited partnership, and all amendments thereto, for each of the
Partnership and the Operating Partnerships and (ii) the Partnership
Agreement and Operating Partnership Agreements, and all amendments
thereto, have been delivered to the Underwriters or counsel for the
Underwriters, and no changes therein will be made subsequent to the
date hereof and prior to the time of purchase or the additional time of
purchase, as the case may be.
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(i) Ownership of the General Partner. All the outstanding
shares of capital stock of the General Partner have been duly
authorized and validly issued and are fully paid and nonassessable,
and, except for the pledge of such shares in connection with Glenmoor
Ltd.'s 8.15% senior notes due May 6, 2015 (the "Buckeye Notes") and the
Service Company Employee Stock Ownership Plan's 7.24% senior secured
notes due March 28, 2011 (the "ESOP Notes"), all outstanding shares of
capital stock of the General Partner are owned by BMC free and clear of
any perfected security interest or any other security interest, claim,
lien, right to purchase or encumbrance, except for such security
interests, claims, liens, rights to purchase or encumbrances as would
not individually or in the aggregate have a Material Adverse Effect.
(j) Ownership of Limited Partner Interests in the Partnership.
The limited partners of the Partnership hold Units in the Partnership
aggregating a 99% limited partner interest in the Partnership,
represented, as of the date hereof, by 26,131,512 publicly-traded
Units, 2,451,234 Units owned by Services Company and 122,500 Units
owned by the General Partner; such limited partner interests of the
Partnership are the only limited partner interests that are issued and
outstanding; all of such limited partner interests of the Partnership
have been duly authorized and validly issued pursuant to the
Partnership Agreement (defined below) and are fully paid and
nonassessable (except to the extent such nonassessability may be
affected by Section 17-607 of the DRULPA).
(k) Ownership of General Partner Interest in the Partnership.
The General Partner is the sole general partner of the Partnership,
with a general partner interest in the Partnership of 1% which is
represented by 243,914 units representing general partner interests;
such general partner interest of the Partnership are the only general
partner interests that are issued and outstanding; such general partner
interests have been duly authorized and validly issued and, except for
the pledge of such general partner interests in connection with the
Buckeye Notes and the ESOP Notes, such general partner interest of the
Partnership are owned by the General Partner free and clear of any
perfected security interest or any other security interest, claim,
lien, right to purchase or encumbrance, except for such security
interests, claims, liens, rights to purchase or encumbrances as would
not individually or in the aggregate have a Material Adverse Effect.
(l) Ownership of General Partner Interests in the Operating
Partnerships and Telecom. The General Partner is the sole general
partner of each of the Operating Partnerships and Telecom, with a
general partner interest in each of the Operating Partnerships and
Telecom of 1%; such general partner interests are the only general
partner interests issued and outstanding; such general partner
interests of each of the Operating Partnerships and Telecom have been
duly authorized and validly issued and, except for the pledge of such
general partner interests in connection with the Buckeye Notes and the
ESOP Notes, such general partner interests of the Operating
Partnerships and Telecom are owned by the General Partner free and
clear of any perfected security interest or any other security
interest, claim, lien, right to purchase or encumbrance, except for
such security interests, claims, liens, rights to purchase or
encumbrances as would not individually or in the aggregate have a
Material Adverse Effect.
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(m) Ownership of Limited Partner Interests in the Operating
Partnership and Telecom. The Partnership is the sole limited partner of
each of the Operating Partnerships and Telecom, with a limited partner
interest in each of the Operating Partnerships and Telecom of 99%; such
limited partner interests are the only limited partner interests of the
Operating Partnerships and Telecom that are issued and outstanding;
such limited partner interests of each of the Operating Partnerships
and Telecom have been duly authorized and validly issued pursuant to
the respective Operating Partnership Agreements (as defined below) and
are fully paid and nonassessable (except to the extent such
nonassessability may be affected by Section 17-607 of the DRULPA), and
such limited partner interests of the Operating Partnerships and
Telecom are owned by the Partnership free and clear of any perfected
security interest or any other security interest, claim, lien, right to
purchase or encumbrance, except for such security interests, claims,
liens, rights to purchase or encumbrances as would not individually or
in the aggregate have a Material Adverse Effect.
(n) Ownership of General Partner Interests in the Partnership
Subsidiaries. BGC I is the sole general partner of BGC with a general
partner interest in BGC of 1%; the General Partner is the sole general
partner of BPL MI, with a general partner interest of 1%; GP Holding is
the sole general partner of each of BPP, GCP and Products Holding, with
a general partner interest in each of BPP, GCP and Products Holding of
1%; all of the outstanding general partner interests of each of BGC,
BPP, GCP, BPL MI and Products Holding have been duly authorized and
validly issued and such general partner interests of each of BGC, BPP,
GCP, BPL MI and Products Holding are owned free and clear of any
perfected security interest or any other security interest, claim, lien
or encumbrance, except for such security interests, claims, liens,
rights to purchase or encumbrances as would not individually or in the
aggregate have a Material Adverse Effect.
(o) Ownership of Limited Partner Interests in the Partnership
Subsidiaries. BGC II is the sole limited partner of BGC, with a limited
partner interest in BGC of 99%; Products Holding is the sole limited
partner of each of BPP and GCP, with a limited partner interest in each
of BPP and GCP of 99%; BGC is the sole limited partner of Products
Holding, with a limited partner interest in Products Holding of 99%;
Laurel and the General Partner hold a 98.01% and 0.99% limited partner
interest, respectively, in BPL MI; such limited partner interests are
the only limited partner interests issued and outstanding; such limited
partner interests of each of BGC, BPP, GCP, BPL MI and Products Holding
held by affiliates of the Partnership have been duly authorized and
validly issued pursuant to the respective agreement of limited
partnership agreement and are fully paid and nonassessable (except to
the extent such nonassessability may be affected by Section 17-607 of
the DRULPA), and such limited partner interests of each of BGC, BPP,
GCP, BPL MI and Products Holding are owned free and clear of any
perfected security interest or any other security interest, claim,
lien, right to purchase or encumbrance, except for such security
interests, claims, liens, rights to purchase or encumbrances as would
not individually or in the aggregate have a Material Adverse Effect.
(p) Ownership of Limited Liability Company Interests in the
LLC Subsidiaries. BPH is the sole member of each of the LLC
Subsidiaries, with a limited liability
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company interest in each of the LLC Subsidiaries of 100%, except for
(i) the WesPac Entities, of which BPH owns 75% of each WesPac Entity's
limited liability company interests and (ii) GP Holding, of which BGC
is the sole member with a limited liability company interest in GP
Holding of 100%; all of the outstanding limited liability company
interests of the LLC Subsidiaries have been duly and validly authorized
and issued and are fully paid and nonassessable, and such limited
liability company interests of the LLC Subsidiaries are owned by BPH
and BGC (with respect to GP Holding) free and clear of any perfected
security interest or any other security interest, claim, lien or
encumbrance, except for such security interests, claims, liens, rights
to purchase or encumbrances as would not individually or in the
aggregate have a Material Adverse Effect.
(q) Capitalization. As of March 31, 2003, the Partnership had,
and would have had on an adjusted basis, the capitalization as set
forth in the section of the Prospectus entitled "Capitalization."
(r) Due Authorization. Each of the General Partner and the
Partnership have full right, power and authority to execute and deliver
each of the Transaction Documents to which it is a party and to perform
its obligations hereunder and thereunder; and all corporate or
partnership action, as the case may be, required to be taken by each of
the General Partner and the Partnership for the due and proper
authorization, execution and delivery of each of such Transaction
Documents and the consummation of the transactions contemplated thereby
has been duly and validly taken. For purposes of this Agreement,
"Transaction Documents" means this Agreement, the Securities and the
Indenture.
(s) The Indenture. The Indenture has been duly authorized by
the General Partner on behalf of the Partnership and has been duly
qualified under the Trust Indenture Act and on the Closing Date will
have been duly executed and delivered by the General Partner on behalf
of the Partnership, and, when duly executed and delivered by each of
the General Partner on behalf of the Partnership, and the Trustee, the
Indenture will constitute a valid and legally binding agreement of the
Partnership enforceable against the Partnership in accordance with its
terms, subject to the Enforceability Exceptions.
(t) The Securities. The issuance and sale of the Securities to
you pursuant to this Agreement have been duly authorized by the General
Partner on behalf of the Partnership, and the Securities have been duly
authorized by the General Partner on behalf of the Partnership and,
when duly executed, authenticated, issued and delivered as provided in
the Indenture and paid for as provided herein, the Securities will be
duly and validly issued and outstanding and will constitute valid and
legally binding obligations of the Partnership enforceable against the
Partnership in accordance with their terms, subject to the
Enforceability Exceptions, and will be entitled to the benefits of the
Indenture.
(u) Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by the General Partner and the
Partnership.
(v) Descriptions of the Indenture and the Securities. The
Indenture and the Securities conform in all material respects to the
description thereof contained in the Registration Statement and the
Prospectus.
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(w) Absence of Breach or Defaults. None of the General
Partner, the Partnership nor any of the Subsidiaries is, or with the
giving of notice or lapse of time or both will be, in breach or
violation of or in default under (nor has any event occurred which
would give the holder of any indebtedness (or a person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of all or a part of such indebtedness under) its respective
(i) formation or governing documents, or (ii) any indenture, mortgage,
deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or
instrument to which the General Partner, the Partnership or any of the
Subsidiaries is a party or by which any of them or any of their
properties may be bound or affected, and, solely with respect to this
clause (ii), except such breach, violation or default that would not
have a Material Adverse Effect, and the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby will not conflict with, result in any breach or
violation of or constitute a default under (nor constitute any event
which with notice, lapse of time or both would result in any breach of
or constitute a default under) (i) the formation or governing documents
of the General Partner, the Partnership or any of the Subsidiaries, or
(ii) any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any license, lease,
contract or other agreement or instrument to which the General Partner,
the Partnership or any of the Subsidiaries is a party or by which any
of them or any of their respective properties may be bound or affected,
or any federal, state, local or foreign law, regulation or rule or any
decree, judgment or order applicable to the General Partner, the
Partnership or any of the Subsidiaries and, solely with respect to this
clause (ii), except such breach, violation or default that would not
have a Material Adverse Effect.
(x) No Consents Required. No consent, approval, authorization,
order, registration or qualification of or with any court or arbitrator
or governmental or regulatory authority is required for the execution,
delivery and performance by the Partnership of each of the Transaction
Documents, the issuance and sale of the Securities and compliance by
the Partnership with the terms thereof and the consummation of the
transactions contemplated by the Transaction Documents, other than (i)
registration of the issuance and sale of the Securities under the
Securities Act, (ii) qualification of the Indenture under the Trust
Indenture Act, which has been completed, and (iii) as may be required
under applicable state securities laws in connection with the purchase
and distribution of the Securities by the Underwriters.
(y) Legal Proceedings. Except as described in the Registration
Statement and the Prospectus, there are no legal, governmental or
regulatory investigations, actions, suits or proceedings pending to
which the General Partner, the Partnership or any of the Subsidiaries
or, to the Partnership's knowledge, any of their respective directors
or officers is or may be a party or to which any property of the
General Partner, the Partnership or any of the Subsidiaries is or may
be the subject that, individually or in the aggregate, if determined
adversely to any such party, would prevent consummation of the
transactions contemplated hereby or would be required to be disclosed
in the Registration Statement (and are not so disclosed); to the
Partnership's knowledge, no such investigations, actions, suits or
proceedings are threatened or contemplated.
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(z) Independent Accountants. Deloitte & Touche LLP, whose
report on the consolidated financial statements of the Partnership and
the Subsidiaries is filed with the Commission as part of the
Registration Statement and the Prospectus, are independent public
accountants as required by the Securities Act.
(aa) Investment Company Act. None of the General Partner, the
Partnership or any of the Subsidiaries is, and after giving effect to
the offering and sale of the Securities and the application of the
proceeds thereof as described in the Prospectus, will be an "investment
company" or an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act").
(bb) Public Utility Holding Company Act. None of the General
Partner, the Partnership or the Subsidiaries is a "holding company" as
such term is defined in the Public Utility Holding Company Act of 1935,
as amended ("PUHCA"); none of the General Partner, the Partnership or
the Subsidiaries nor the issue and sale of the Securities by the
Partnership is subject to regulation under PUHCA; and none of the
General Partner, the Partnership or the Subsidiaries is a "public
utility" as such term is defined in the Federal Power Act, as amended.
(cc) Margin Regulations. Neither the General Partner, the
Partnership nor any Subsidiary nor any agent acting on the behalf of
any of them has taken, and none of the foregoing will take, any action
that might cause this Agreement or the issuance or sale of the
Securities to violate Regulation T, Regulation U or Regulation X of the
Board of Governors of the Federal Reserve System. The Partnership does
not own, and none of the proceeds from the offering of the Notes will
be used directly or indirectly to purchase or carry, any "margin stock"
as defined in Regulation U.
(dd) Possession of Licenses; No Violations. Each of the
General Partner, the Partnership and the Subsidiaries has all necessary
licenses, authorizations, consents and approvals and has made all
necessary filings required under any federal, state, local or foreign
law, regulation or rule, and has obtained all necessary authorizations,
consents and approvals from other persons, in order to conduct its
respective business, except for such failures to have, file or obtain
that would not have a Material Adverse Effect; none of the General
Partner, the Partnership nor any of the Subsidiaries is in violation
of, or in default under, or has received notice of any proceedings
relating to revocation or modification of, any such license,
authorization, consent or approval or any federal, state, local or
foreign law, regulation or rule or any decree, order or judgment
applicable to the General Partner, the Partnership or any of the
Subsidiaries, except where such violation, default, revocation or
modification would not, individually or in the aggregate, have a
Material Adverse Effect.
(ee) Sufficiency of Disclosure. All legal or governmental
proceedings, affiliate transactions, off-balance sheet transactions,
contracts, licenses, agreements, leases or documents of a character
required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement
have been so described or filed as required.
10
(ff) Title to Property. Each of the General Partner, the
Partnership and the Subsidiaries has good and marketable title to all
property (real and personal) described in the Registration Statement
and in the Prospectus as being owned by each of them, free and clear of
all liens, claims, security interests or other encumbrances, except for
failures to have good and marketable title that would not have a
Material Adverse Effect; all the property described in the Registration
Statement and the Prospectus as being held under lease by the
Partnership or the Subsidiaries is held thereby under valid, subsisting
and enforceable leases with only such exceptions with respect to any
particular lease as do not interfere in any material respect with the
conduct of the businesses of the Partnership and the Subsidiaries.
(gg) Rights-of-Way. Each of the Partnership and the
Subsidiaries has such consents, easements, rights-of-way or licenses
from any person ("rights-of-way") as are necessary to conduct its
business in the manner described in the Prospectus, subject to such
qualifications as may be set forth in the Prospectus and except for
such rights-of-way the failure of which to have obtained would not
have, individually or in the aggregate, a Material Adverse Effect; each
of the Partnership and the Subsidiaries has fulfilled and performed all
its material obligations with respect to such rights-of-way and no
event has occurred which allows, or after notice or lapse of time would
allow, revocation or termination thereof or 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 will not
have a Material Adverse Effect, subject in each case to such
qualification as may be set forth in the Prospectus; and, except as
described in the Prospectus, none of such rights-of-way contains any
restriction that would materially interfere with the conduct of the
business or use of the properties of the Partnership and the
Subsidiaries, taken as a whole.
(hh) Absence of Labor Disputes. None of Services Company, the
General Partner, the Partnership or the Subsidiaries is engaged in any
unfair labor practice; except for matters which would not, individually
or in the aggregate, have a Material Adverse Effect, (i) there is (A)
no unfair labor practice complaint pending or, to the Partnership's
knowledge, threatened against Services Company, the General Partner,
the Partnership or any of the Subsidiaries before the National Labor
Relations Board, and no grievance or arbitration proceeding arising out
of or under collective bargaining agreements is pending or, to the
Partnership's knowledge, threatened, (B) no strike, labor dispute,
slowdown or stoppage pending or, to the Partnership's knowledge,
threatened against Services Company, the General Partner, the
Partnership or any of the Subsidiaries and (C) no union representation
dispute currently existing concerning the employees of Services
Company, the General Partner, the Partnership or any of the
Subsidiaries, and (ii) to the Partnership's knowledge after due
inquiry, (A) no union organizing activities are currently taking place
concerning the employees of Services Company, the General Partner, the
Partnership or any of the Subsidiaries and (B) there has been no
violation of any federal, state, local or foreign law relating to
discrimination in the hiring, promotion or pay of employees, any
applicable wage or hour laws or any provision of the Employee
Retirement Income Security Act of 1974 ("ERISA") or the rules and
regulations promulgated thereunder concerning the employees of Services
Company, the General Partner, the Partnership or any of the
Subsidiaries.
11
(ii) Compliance with Environmental Regulations. Each of the
General Partner, the Partnership and the Subsidiaries are (i) in
compliance with any and all applicable foreign, federal, state and
local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (ii) have received
and are in compliance with all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) have not received notice of any actual
or potential liability for the investigation or remediation of any
disposal or release of hazardous or toxic substances or wastes,
pollutants or contaminants, except where such non-compliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals, or liability would not, individually or in the
aggregate, have a Material Adverse Effect, except as set forth in or
contemplated in the Prospectus. Except for the Quanta Resources
Edgewater Superfund site in Edgewater, N.J., the Borne Chemical Company
Superfund site located in Elizabeth, N.J. and the Sealand Superfund
site located in the Town of Lisbon, St. Lawrence County, N.Y., none of
the General Partner, the Partnership or any of the Subsidiaries has
been named as a "potentially responsible party" under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended.
(jj) Adequacy of Environmental Review. In the ordinary course
of its business, the General Partner and the Partnership periodically
review the effect of Environmental Laws on the business, operations and
properties of the General Partner, the Partnership and the
Subsidiaries, in the course of which they identify and evaluate
associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws, or any permit,
license or approval, any related constraints on operating activities
and any potential liabilities to third parties). Except as described in
the Registration Statement, on the basis of such review, the General
Partner and the Partnership have reasonably concluded that such
associated costs and liabilities would not, individually or in the
aggregate, have a Material Adverse Effect, except as set forth in or
contemplated in the Prospectus.
(kk) Filing of Tax Returns. All material tax returns required
to be filed by the General Partner, the Partnership and each of the
Subsidiaries have been filed, and all material taxes and other
assessments of a similar nature (whether imposed directly or through
withholding) including any interest, additions to tax or penalties
applicable thereto due or claimed to be due from such entities have
been paid, other than those being contested in good faith and for which
adequate reserves have been provided.
(ll) Adequacy of Insurance. The General Partner, the
Partnership and the Subsidiaries maintain insurance covering their
properties, operations, personnel and businesses as the General Partner
deems adequate and as previously disclosed to the Underwriters; such
insurance insures against such losses and risks to an extent which is
adequate in accordance with customary industry practice to protect the
General Partner, the Partnership and the Subsidiaries and their
businesses; all such insurance is fully in force on the date hereof.
Neither the General Partner, the Partnership nor any of the
Subsidiaries has (i) received notice from any insurer or agent of such
insurer that capital improvements or other expenditures are required or
necessary to be made in order to
12
continue such insurance or (ii) any reason to believe that it will not
be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage at reasonable cost from
similar insurers as may be necessary to continue its business.
(mm) Force Majeure. None of the General Partner, the
Partnership or any of the Subsidiaries has sustained since the date of
the last audited financial statements included or incorporated by
reference in the Registration Statement and the Prospectus any loss or
interference with its respective business from fire, explosion, flood
or other calamity, whether or not covered by insurance, of a character
required to be described in the Registration Statement or the
Prospectus.
(nn) Absence of Notice of Cancellation. Neither the General
Partner nor the Partnership has sent or received any communication
regarding termination of, or intent not to renew, any of the contracts
or agreements referred to or described in, or filed as an exhibit to,
the Registration Statement, and no such termination or non-renewal has
been threatened by the General Partner or the Partnership or, to the
Partnership's knowledge, any other party to any such contract or
agreement.
(oo) Adequacy of Internal Accounting Controls. The General
Partner, the Partnership and the Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's
general or specific authorization; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(pp) Implementation of Internal Reporting and Disclosure
Procedure. The General Partner and the Partnership have established and
maintain disclosure controls and procedures (as such term is defined in
Rule 13a-14 and 15d-14 under the Exchange Act); such disclosure
controls and procedures are designed to ensure that material
information relating to the General Partner or the Partnership,
including its consolidated subsidiaries, is made known to the General
Partner's Chief Executive Officer and its Chief Financial Officer by
others within those entities, and such disclosure controls and
procedures are effective to perform the functions for which they were
established; the Partnership's auditors and the audit committee of the
board of directors have been advised of: (i) any significant
deficiencies in the design or operation of internal controls which
could adversely affect the Partnership's ability to record, process,
summarize, and report financial data; and (ii) any fraud, whether or
not material, that involves management or other employees who have a
role in the Partnership's internal controls; any material weaknesses in
internal controls have been identified for the Partnership's auditors;
and since the date of the most recent evaluation of such disclosure
controls and procedures, there have been no significant changes in
internal controls or in other factors that could significantly affect
internal controls, including any corrective actions with regard to
significant deficiencies and material weaknesses.
13
(qq) Disclosure of Affiliate Loans. The Partnership has
provided you true, correct, and complete copies of all documentation
pertaining to any extension of credit in the form of a personal loan
made, directly or indirectly, by the General Partner or the Partnership
to any director of the General Partner or executive officer of the
Partnership, or to any family member or affiliate of any director or
executive officer of the General Partner; and since July 30, 2002,
neither the General Partner nor the Partnership has directly or
indirectly, including through any subsidiary: (i) extended credit,
arranged to extend credit, or renewed any extension of credit, in the
form of a personal loan, to or for any director of the General Partner
or executive officer of the Partnership, or to or for any family member
or affiliate of any director or executive officer of the General
Partner; or (ii) made any material modification, including any renewal
thereof, to any term of any personal loan to any director or executive
officer of the General Partner, or any family member or affiliate of
any director or executive officer, which loan was outstanding on July
30, 2002.
(rr) Validity of Data. Any statistical and market-related data
included in the Registration Statement and the Prospectus are based on
or derived from sources that the General Partner believes to be
reliable and accurate, and the General Partner has obtained the written
consent to the use of such data from such sources to the extent
required.
(ss) FCPA. Neither the General Partner, the Partnership nor
any of the Subsidiaries nor, to the Partnership's knowledge, any
employee or agent of Services Company, the General Partner, the
Partnership or the Subsidiaries has made any payment of funds of
Services Company, the General Partner, the Partnership or the
Subsidiaries or received or retained any funds in violation of any law,
rule or regulation, which payment, receipt or retention of funds is of
a character required to be disclosed in the Registration Statement or
the Prospectus.
(tt) Absence of Stabilization Measures. None of the General
Partner, the Partnership nor any of the Subsidiaries nor, to the
Partnership's knowledge, any of their respective directors, officers,
affiliates or controlling persons has taken, directly or indirectly,
any action designed, or which has constituted or might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
the stabilization or manipulation of the price of any security of the
Partnership to facilitate the sale or resale of the Securities.
(uu) Absence of NASD Affiliations. To the Partnership's
knowledge, there are no affiliations or associations between any member
of the NASD and any of the General Partner's officers, directors or 5%
or greater securityholders, except as set forth in the Registration
Statement and the Prospectus.
(vv) Absence of Restrictions on Distributions. No Subsidiary
is currently prohibited, directly or indirectly, from paying any
dividends to the Partnership, from making any other distribution on
such Subsidiary's equity, from repaying to the Partnership any loans or
advances to such Subsidiary from the Partnership or from transferring
any of such Subsidiary's property or assets to the Partnership or any
other subsidiary of the Partnership, except as described in or
contemplated by the Registration Statement or the Prospectus.
14
(ww) Significant Subsidiaries. The subsidiaries listed on
Annex B attached hereto are the only significant subsidiaries (as
defined by Rule 1-02 of Regulation S-X) of the General Partner or the
Partnership.
(xx) Absence of Conflict of Interest. Except as disclosed in
the Registration Statement and the Prospectus, none of the General
Partner, the Partnership or the Subsidiaries (i) has any material
lending or other relationship with any bank or lending affiliate of the
Underwriters and (ii) intends to use any of the proceeds from the sale
of the Securities hereunder to repay any outstanding debt owed to any
affiliate of the Underwriters.
4. Further Agreements. The General Partner and the Partnership covenant
and agree with each Underwriter that:
(a) Filings with the Commission. The Partnership will:
(i) prepare the Rule 462(b) Registration
Statement, if necessary, in a form approved by the
Underwriters and file such Rule 462(b) Registration Statement
with the Commission in compliance with Rule 462(b) under the
Securities Act by 10:00 a.m. New York City time on the
business day immediately following the date of determination
of the public offering price of the Securities and, at the
time of filing, either pay to the Commission the filing fee
for the Rule 462(b) Registration Statement or give irrevocable
instructions for the payment of such fee pursuant to Rule
111(b) under the Securities Act; and
(ii) file the Prospectus in a form approved by
the Underwriters with the Commission pursuant to Rule 424
under the Securities Act not later than the close of business
on the second business day following the date of determination
of the public offering price of the Securities or, if
applicable, such earlier time as may be required by Rule
424(b) and Rule 430A under the Securities Act; and the
Partnership will furnish copies of the Prospectus to the
Underwriters in New York City prior to 10:00 A.M., New York
City time, on the business day next succeeding the date of
this Agreement in such quantities as the Representative may
reasonably request.
(b) Delivery of Copies. The Partnership will deliver, without
charge, to each Underwriter during the Prospectus Delivery Period, as
many copies of the Prospectus (including all amendments and supplements
thereto and documents incorporated by reference therein) as the
Representative may reasonably request. As used herein, the term
"Prospectus Delivery Period" means such period of time after the first
date of the public offering of the Securities as in the opinion of
special counsel for the Underwriters a prospectus relating to the
Securities is required by law to be delivered in connection with sales
of the Securities by any Underwriter or dealer.
(c) Amendments or Supplements. Before filing any amendment or
supplement to the Registration Statement or the Prospectus, the
Partnership will furnish to the Representative and special counsel for
the Underwriters a copy of the proposed amendment or supplement for
review and will not file any such proposed amendment or supplement to
which the Representative reasonably objects.
15
(d) Notice to the Representative. The Partnership will advise
the Representative promptly, and confirm such advice in writing:
(i) when any amendment to the Registration
Statement has been filed or becomes effective;
(ii) when any supplement to the Prospectus or any
amendment to the Prospectus has been filed;
(iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or
supplement to the Prospectus or the receipt of any comments
from the Commission relating to the Registration Statement or
any other request by the Commission for any additional
information;
(iv) of the issuance by the Commission of any
order suspending the effectiveness of the Registration
Statement or preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or the initiation or
threatening of any proceeding for that purpose;
(v) of the occurrence of any event within the
Prospectus Delivery Period as a result of which the Prospectus
as then amended or supplemented would include any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances
existing when the Prospectus is delivered to a purchaser, not
misleading; and
(vi) of the receipt by the Partnership of any
notice with respect to any suspension of the qualification of
the Securities for offer and sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose;
and the Partnership will use its reasonable best efforts to
prevent the issuance of any such order suspending the
effectiveness of the Registration Statement, preventing or
suspending the use of any Preliminary Prospectus or the
Prospectus or suspending any such qualification of the
Securities and, if any such order is issued, will obtain as
soon as possible the withdrawal thereof.
16
(e) Ongoing Compliance of the Prospectus. If during the
Prospectus Delivery Period, (i) any event shall occur or condition
shall exist 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 required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser,
not misleading, or (ii) it is necessary to amend or supplement the
Prospectus to comply with law, then the Partnership will immediately
notify the Underwriters thereof and forthwith prepare and, subject to
paragraph (c) above, file with the Commission and furnish to the
Underwriters and to such dealers as the Representative may designate,
such amendments or supplements to the Prospectus as may be necessary so
that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law.
(f) Blue Sky Compliance. The Partnership will qualify the
Securities for offer and sale under the securities or Blue Sky laws of
such jurisdictions as the Representative shall reasonably request and
will continue such qualifications in effect so long as required for
distribution of the Securities; provided that the Partnership shall not
be required to:
(i) qualify as a foreign corporation or other
entity or as a dealer in securities in any such jurisdiction
where it would not otherwise be required to so qualify;
(ii) file any general consent to service of
process in any such jurisdiction; or
(iii) subject itself to taxation in any such
jurisdiction if it is not otherwise so subject.
(g) Earning Statement. The Partnership will make generally
available to its security holders and the Representative as soon as
practicable an earning statement that satisfies the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder covering a period of at least twelve months
beginning with the first fiscal quarter of the Partnership occurring
after the "effective date" (as defined in Rule 158) of the Registration
Statement.
(h) Clear Market. During the period from the date hereof
through and including the Closing Date or such later date as is
specified in the Underwriting Agreement, the Partnership will not,
without the prior written consent of the Representative, offer, sell,
contract to sell or otherwise dispose of any debt securities issued or
guaranteed by the Partnership and having a tenor of more than one year.
(i) Use of Proceeds. The Partnership will apply the net
proceeds from the sale of the Securities as described in the Prospectus
under the heading "Use of Proceeds."
(j) No Stabilization. The Partnership will not take, directly
or indirectly, any action designed to or that could reasonably be
expected to cause or result in any stabilization or manipulation of the
price of the Securities.
17
(k) Filing of Exchange Act Documents. The Partnership will
file promptly all reports and any definitive proxy or information
statements required to be filed by the Partnership with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
during the Prospectus Delivery Period and promptly notify the
Representative of such filing.
(l) Transfer Agent. The Partnership will maintain a transfer
agent and, if necessary, under the jurisdiction of formation of the
Partnership, a registrar for the Securities.
5. Conditions of Underwriters' Obligations. The obligation of each
Underwriter to purchase Securities on the Closing Date as provided herein is
subject to the performance by the General Partner and the Partnership of their
covenants and other obligations hereunder and to the following additional
conditions:
(a) Registration Compliance; No Stop Order. If a
post-effective amendment to the Registration Statement is required to
be filed under the Securities Act, such post-effective amendment shall
have become effective, and the Representative shall have received
notice thereof, not later than 5:00 p.m., New York City time, on the
date of the Underwriting Agreement; if applicable, the Rule 462(b)
Registration Statement shall have become effective by 10:00 a.m. New
York City time on the business day following the date of the
Underwriting Agreement; no order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceeding for such
purpose shall be pending before or threatened by the Commission; the
Prospectus shall have been timely filed with the Commission under the
Securities Act and in accordance with Section 4(a) hereof; all requests
by the Commission for additional information shall have been complied
with to the reasonable satisfaction of the Representative; and no
Prospectus or amendment or supplement to the Registration Statement or
the Prospectus, including documents deemed to be incorporated by
reference therein, shall have been filed to which any of the
Underwriters object in writing.
(b) Representations and Warranties. The representations and
warranties of the General Partner and the Partnership contained herein
shall be true and correct on the date hereof and on and as of the
Closing Date, the statements of the General Partner and its officers
made in any certificates delivered pursuant to this Agreement shall be
true and correct on and as of the Closing Date.
(c) No Downgrade. Subsequent to the execution and delivery of
this Agreement,
(i) no downgrading shall have occurred in the
rating accorded the Securities or any other debt securities or
preferred stock of or guaranteed by the General Partner, the
Partnership or any of the Subsidiaries by any "nationally
recognized statistical rating organization", as such term is
defined by the Commission for purposes of Rule 436(g)(2) under
the Securities Act; and
(ii) no such organization shall have publicly
announced that it has under surveillance or review, or has
changed its outlook with respect to, its rating of the
Securities or of any other debt securities or preferred stock
of or guaranteed
18
by the General Partner, the Partnership or any of the
Subsidiaries (other than an announcement with positive
implications of a possible upgrading).
(d) No Material Adverse Change. Subsequent to the execution
and delivery of this Agreement, no event or condition of a type
described in Section 3(d) hereof shall have occurred or shall exist,
which event or condition is not described in the Prospectus (excluding
any amendment or supplement thereto) and the effect of which in the
judgment of the Representative makes it impracticable or inadvisable to
proceed with the offering, sale or delivery of the Securities on the
terms and in the manner contemplated by this Agreement and the
Prospectus.
(e) Officer's Certificate. The Representative shall have
received on and as of the Closing Date a certificate of the General
Partner's Chief Executive Officer and its Chief Financial Officer in
form satisfactory to the Representative:
(i) confirming that such officers have carefully
reviewed the Registration Statement and the Prospectus and, to
the best knowledge of each such officer, the Registration
Statement at the time such Registration Statement became
effective did not contain any 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, and the Prospectus and any supplement thereto as
of the date of the Prospectus or such supplement, and of the
Closing Date, did not and do not contain any untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading;
(ii) confirming that the other representations
and warranties of the General Partner and the Partnership in
this Agreement are true and correct and that the General
Partner and the Partnership have complied with all agreements
and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date; and
(iii) to the effect set forth in paragraphs (a),
(c) and (d) above.
(f) Comfort Letters. On the date of this Agreement and on the
Closing Date, Deloitte & Touche, LLP shall have furnished to the
Representative, at the request of the Partnership, letters, dated the
respective dates of delivery thereof and addressed to the Underwriters,
in form and substance reasonably satisfactory to the Representative,
containing statements and information of the type customarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained or
incorporated by reference in the Registration Statement and the
Prospectus; provided that the letter delivered on the Closing Date
shall use a "cut-off" date no more than three business days prior to
the Closing Date.
(g) Opinion of Counsel for the Partnership. Morgan Lewis &
Bockius LLP, counsel for the Partnership, shall have furnished to the
Representative, at the request of the Partnership, their written
opinion, dated the Closing Date and addressed to the
19
Underwriters, in form and substance reasonably satisfactory to the
Representative, to the effect set forth in Annex C hereto.
(h) Opinion of Special Counsel for the Underwriters. The
Representative shall have received on and as of the Closing Date an
opinion of Andrews & Kurth L.L.P., special counsel for the
Underwriters, with respect to such matters as the Representative may
reasonably request, and such counsel shall have received such documents
and information as they may reasonably request to enable them to pass
upon such matters.
(i) No Legal Impediment to Issuance. No action shall have been
taken and no statute, rule, regulation or order shall have been
enacted, adopted or issued by any federal, state or foreign
governmental or regulatory authority that would, as of the Closing
Date, prevent the issuance or sale of the Securities; and no injunction
or order of any federal, state or foreign court shall have been issued
that would, as of the Closing Date, prevent the issuance or sale of the
Securities.
(j) Good Standing. The Representative shall have received on
and as of the Closing Date satisfactory evidence of the good standing
of the General Partner, the Partnership and the Subsidiaries in their
respective jurisdictions of organization and their good standing in
such other jurisdictions as the Representative may reasonably request,
in each case in writing or any standard form of telecommunication from
the appropriate governmental authorities of such jurisdictions.
(k) Additional Documents. On or prior to the Closing Date, the
General Partner and the Partnership shall have furnished to the
Representative such further certificates and documents as the
Representative may reasonably request.
(l) Rule 424(b) Filings. All filings, if any, required by Rule
424(b) shall have been timely made.
(m) Indenture and Securities. The Indenture shall have been
duly authorized, executed and delivered by each of the parties thereto,
and the Securities shall have been duly authorized, executed and
delivered by the Partnership and authenticated by the Trustee.
All opinions, letters, certificates and evidence mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
6. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The General Partner
and the Partnership, jointly and severally, agree to indemnify and hold
harmless each Underwriter, its affiliates, directors and officers and
each person, if any, who controls such Underwriter within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages and liabilities
(including, without limitation, reasonable legal fees and other
expenses incurred in connection with any suit, action or proceeding or
any claim asserted as such fees and expenses are incurred), joint or
several, that arise out of, or are based upon, any untrue
20
statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus (or any amendment or
supplement thereto) or any Preliminary Prospectus, or any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
except insofar as such losses, claims, damages or liabilities arise out
of, or are based upon, any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity
with any information relating to any Underwriter furnished to the
Partnership in writing by such Underwriter through the Representative
expressly for use therein; provided, that with respect to any such
untrue statement in or omission from any Preliminary Prospectus, the
indemnity agreement contained in this paragraph (a) shall not inure to
the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) to the extent that the sale to the person
asserting any such loss, claim, damage or liability was an initial
resale by such Underwriter and any such loss, claim, damage or
liability of or with respect to such Underwriter results from the fact
that both (i) to the extent required by applicable law, a copy of the
Prospectus was not sent or given to such person at or prior to the
written confirmation of the sale of such Securities to such person
(unless such failure to deliver the Prospectus was a result of
non-compliance by the Partnership with the provisions of Section 4(b)
hereof), and (ii) the untrue statement in or omission from such
Preliminary Prospectus was corrected in the Prospectus.
(b) Indemnification of the General Partner. Each Underwriter
agrees, severally and not jointly, to indemnify and hold harmless the
General Partner, its directors and officers and each person, if any,
who controls the Partnership within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as
the indemnity set forth in paragraph (a) above, but only with respect
to any losses, claims, damages or liabilities that arise out of, or are
based upon, any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with any
information relating to such Underwriter furnished to the Partnership
in writing by such Underwriter through the Representative expressly for
use in the Registration Statement and the Prospectus (or any amendment
or supplement thereto) or any Preliminary Prospectus, it being
understood and agreed that the only such information consists of the
information identified in the Underwriting Agreement as being provided
by the Underwriters.
(c) Notice and Procedures. If any suit, action, proceeding
(including any governmental or regulatory investigation), claim or
demand shall be brought or asserted against any person in respect of
which indemnification may be sought pursuant to either paragraph (a) or
(b) above, such person (the "Indemnified Person") shall promptly notify
the person against whom such indemnification may be sought (the
"Indemnifying Person") in writing; provided that the failure to notify
the Indemnifying Person shall not relieve it from any liability that it
may have under this Section 6 except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and provided, further, that the failure to
notify the Indemnifying Person shall not relieve it from any liability
that it may have to an Indemnified Person otherwise than under this
Section 6. If any such proceeding shall be brought or asserted against
an Indemnified Person and it shall have notified the Indemnifying
Person thereof, the
21
Indemnifying Person shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others
entitled to indemnification pursuant to this Section 6 that the
Indemnifying Person may designate in such proceeding and shall pay the
reasonable fees and expenses of such counsel related to such proceeding
as incurred. In any such proceeding, any Indemnified Person shall have
the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i)
the Indemnifying Person and the Indemnified Person shall have mutually
agreed to the contrary; (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the
Indemnified Person; (iii) the Indemnified Person shall have reasonably
concluded that there may be legal defenses available to it that are
different from or in addition to those available to the Indemnifying
Person; or (iv) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing
interests between them. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or
related proceeding in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate
firm for any Underwriter, its affiliates, directors and officers and
any control persons of such Underwriter shall be designated in writing
by the Representative and any such separate firm for the General
Partner, its directors and officers and any control persons of the
Partnership shall be designated in writing by the General Partner. An
Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify each Indemnified Person from
and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
Indemnified Person shall have requested that an Indemnifying Person
reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this paragraph, the Indemnifying Person shall be liable
for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days after
receipt by the Indemnifying Person of such request and (ii) the
Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have
been a party and indemnification could have been sought hereunder by
such Indemnified Person, unless such settlement (x) includes an
unconditional release of such Indemnified Person, in form and substance
reasonably satisfactory to such Indemnified Person, from all liability
on claims that are the subject matter of such proceeding and (y) does
not include any statement as to or any admission of fault, culpability
or a failure to act by or on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in
paragraphs (a) and (b) above is unavailable to an Indemnified Person or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such
paragraph, in lieu of indemnifying such Indemnified Person thereunder,
shall contribute to the amount paid or payable by such Indemnified
Person as a result of such
22
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the General
Partner or the Partnership on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the General
Partner or the Partnership on the one hand and the Underwriters on the
other in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by
the General Partner or the Partnership on the one hand and the
Underwriters on the other shall be deemed to be in the same respective
proportions as the net proceeds (before deducting expenses) received by
the General Partner or the Partnership from the sale of the Securities
and the total underwriting discounts and commissions received by the
Underwriters in connection therewith, in each case as set forth in the
table on the cover of the Prospectus, bear to the aggregate offering
price of the Securities. The relative fault of the General Partner or
the Partnership on the one hand and the Underwriters on the other shall
be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the General Partner or the Partnership or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
(e) Limitation on Liability. The General Partner, the
Partnership and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 6 were determined by
pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in
paragraph (d) above. The amount paid or payable by an Indemnified
Person as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include, subject
to the limitations set forth above, any legal or other expenses
incurred by such Indemnified Person in connection with any such action
or claim. Notwithstanding the provisions of this Section 6, in no event
shall an Underwriter be required to contribute any amount in excess of
the amount by which the total price at which the Securities
underwritten by such Underwriter were offered to the public exceeds the
amount of any damages that such Underwriter has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 6 are several in proportion to
their respective purchase obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any Indemnified Person at law or in
equity.
7. Termination. This Agreement may be terminated in the absolute
discretion of the Representative, by notice to the Partnership, if after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially
23
limited on the New York Stock Exchange or the over-the-counter market; (ii)
trading of any securities issued or guaranteed by the General Partner, the
Partnership or the Subsidiaries shall have been suspended on any exchange or in
any over-the-counter market; (iii) a general moratorium on commercial banking
activities shall have been declared by federal or New York State authorities; or
(iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis, either within or outside
the United States, that, in the judgment of the Representative, is material and
adverse and makes it impracticable or inadvisable to proceed with the offering,
sale or delivery of the Securities on the terms and in the manner contemplated
by this Agreement and the Prospectus. If the Representative elects to terminate
this Agreement as provided in this Section 7, the Partnership shall be notified
of such termination promptly in writing.
8. Defaulting Underwriter.
(a) If, on the Closing Date, any Underwriter defaults on its
obligation to purchase the Securities that it has agreed to purchase
hereunder, the non-defaulting Underwriters may in their discretion
arrange for the purchase of such Securities by other persons
satisfactory to the Partnership on the terms contained in this
Agreement. If, within 36 hours after any such default by any
Underwriter, the non-defaulting Underwriters do not arrange for the
purchase of such Securities, then the Partnership shall be entitled to
a further period of 36 hours within which to procure other persons
satisfactory to the non-defaulting Underwriters to purchase such
Securities on such terms. If other persons become obligated or agree to
purchase the Securities of a defaulting Underwriter, either the
non-defaulting Underwriters or the Partnership may postpone the Closing
Date for up to five full business days in order to effect any changes
that in the opinion of counsel for the Partnership or counsel for the
Underwriters may be necessary in the Registration Statement and the
Prospectus or in any other document or arrangement, and the Partnership
agrees to promptly prepare any amendment or supplement to the
Registration Statement and the Prospectus that effects any such
changes. As used in this Agreement, the term "Underwriter" includes,
for all purposes of this Agreement unless the context otherwise
requires, any person not listed in the Underwriting Agreement that,
pursuant to this Section 8, purchases Securities that a defaulting
Underwriter agreed but failed to purchase (with like effect as if such
substituted Underwriter had originally been named on Schedule 1 to the
Underwriting Agreement).
(b) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters
by the non-defaulting Underwriters and the Partnership as provided in
paragraph (a) above, the aggregate principal amount of such Securities
that remains unpurchased does not exceed ten percent of the aggregate
principal amount of all the Securities, then the Partnership shall have
the right to require each non-defaulting Underwriter to purchase the
principal amount of Securities that such Underwriter agreed to purchase
hereunder plus such Underwriter's pro rata share (based on the
principal amount of Securities that such Underwriter agreed to purchase
hereunder) of the Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters
by the non-defaulting Underwriters and the
24
Partnership as provided in paragraph (a) above, the aggregate principal
amount of such Securities that remains unpurchased exceeds ten percent
of the aggregate principal amount of all the Securities, or if the
Partnership shall not exercise the right described in paragraph (b)
above, then this Agreement shall terminate without further act or deed
and without liability on the part of the non-defaulting Underwriters.
Any termination of this Agreement pursuant to this Section 8 shall be
without liability on the part of the General Partner or the
Partnership, except that the General Partner or the Partnership will
continue to be liable for the payment of expenses as set forth in
Section 9 hereof and except that the provisions of Section 6 hereof
shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the General Partner or the
Partnership or any non-defaulting Underwriter for damages caused by its
default.
9. Payment of Expenses.
(a) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the
Partnership will pay or cause to be paid all costs and expenses
incident to the performance of its obligations hereunder (which shall
not include fees and expenses of counsel for the Underwriters except as
set forth in Section 9(a)(v) and 9(b) hereof), including without
limitation,
(i) the costs incident to the authorization,
issuance, sale, preparation and delivery of the Securities and
any taxes payable in that connection;
(ii) the costs incident to the preparation,
printing and filing under the Securities Act of the
Registration Statement, the Preliminary Prospectus and the
Prospectus (including all exhibits, amendments and supplements
thereto) and the distribution thereof;
(iii) the costs of reproducing and distributing
each of the Transaction Documents;
(iv) the fees and expenses of the Partnership's
counsel and independent accountants;
(v) the fees and expenses incurred in connection
with the registration or qualification and determination of
eligibility for investment of the Securities under the laws of
such jurisdictions as the Representative may designate and the
preparation, printing and distribution of a Blue Sky
Memorandum (including the related reasonable fees and expenses
of counsel for the Underwriters);
(vi) any fees charged by rating agencies for
rating the Securities;
(vii) the fees and expenses of the Trustee and any
paying agent (including related fees and expenses of any
counsel to such parties);
25
(viii) all expenses and application fees incurred
in connection with any filing with, and clearance of any
offering by, the National Association of Securities Dealers,
Inc.;
(ix) all expenses incurred by the Partnership in
connection with any "road show" presentation to potential
investors; and
(x) all expenses incurred by the General Partner
and the Partnership in connection with their other obligations
hereunder.
(b) If (i) this Agreement is terminated pursuant to
Section 7, (ii) the Partnership for any reason fails to tender the
Securities for delivery to the Underwriters or (iii) the Underwriters
decline to purchase the Securities for any reason permitted under this
Agreement (other than a termination of this Agreement pursuant to
Section 8(c) above), the General Partner and the Partnership agree to
reimburse the Underwriters for all out-of-pocket costs and expenses
(including the fees and expenses of their counsel) reasonably incurred
by the Underwriters in connection with this Agreement and the offering
contemplated hereby.
10. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and the officers, directors, any controlling persons and
the affiliates of each party hereto all as referred to in Section 6 hereof.
Nothing in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein. No purchaser of Securities from any
Underwriter shall be deemed to be a successor merely by reason of such purchase.
11. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the General Partner and the
Partnership and the Underwriters contained in this Agreement or made by or on
behalf of the General Partner and the Partnership or the Underwriters pursuant
to this Agreement or any certificate delivered pursuant hereto will remain in
full force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, the General Partner,
the Partnership or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Securities. The indemnity and contribution agreements contained in
Section 6 hereof shall survive any termination of this Agreement or the delivery
of the Securities.
12. Certain Defined Terms. For purposes of this Agreement,
(a) except where otherwise expressly provided, the term
"affiliate" has the meaning set forth in Rule 405 under the Securities
Act;
(b) the term "business day" means any day other than a
day on which banks are permitted or required to be closed in New York
City; and
(c) the term "subsidiary" has the meaning set forth in
Rule 405 under the Securities Act.
26
13. Miscellaneous.
(a) Authority of the Representative. Any action by the
Underwriters hereunder may be taken by the Representative on behalf of
the Underwriters, and any such action taken by the Representative shall
be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if
mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the
Representative at the address set forth in the Underwriting Agreement.
Notices to the Partnership shall be given to it at Buckeye Partners,
L.P., 5 Radnor Corporate Center, Suite 500, 100 Matsonford Road,
Radnor, PA 19087, (fax: (610) 254-4625); Attention: Stephen C. Muther,
or if different, to the address set forth in the Underwriting
Agreement.
(c) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(d) Amendments or Waivers. No amendment or waiver of any
provision of this Agreement, nor any consent or approval to any
departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(e) Headings. The headings herein are included for convenience
of reference only and are not intended to be part of, or to affect the
meaning or interpretation of, this Agreement.
27
Annex A
Underwriting Agreement
July 7, 2003
J.P. Morgan Securities Inc.
As Representative of the
several Underwriters listed
in Schedule 1 hereto
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Attention: Transaction Execution Group
Ladies and Gentlemen:
Buckeye Partners, L.P., a Delaware limited partnership (the
"Partnership"), proposes to issue and sell to the several Underwriters listed in
Schedule 1 hereto (the "Underwriters"), for whom you are acting as
representative (the "Representative"), $300,000,000 aggregate principal amount
of its 4 5/8% Notes due 2013 having the terms set forth in Schedule 2 hereto
(the "Securities"). The Securities will be issued pursuant to an Indenture to be
dated as of July 10, 2003 (the "Indenture") between the Partnership and SunTrust
Bank, as trustee (the "Trustee").
The Partnership agrees to issue and sell the Securities to the several
Underwriters as provided in this Agreement, and each Underwriter, on the basis
of the representations, warranties and agreements set forth herein and subject
to the conditions set forth herein, agrees, severally and not jointly, to
purchase from the Partnership the respective principal amount of Securities set
forth opposite such Underwriter's name in Schedule 1 hereto at a price equal to
98.787% of the principal amount thereof plus accrued interest, if any, from July
10, 2003 to the Closing Date (as defined below). The Partnership will not be
obligated to deliver any of the Securities except upon payment for all the
Securities to be purchased as provided herein.
The Partnership understands that the Underwriters intend to make a
public offering of the Securities as soon after the effectiveness of this
Agreement as in the judgment of the Representative is advisable, and initially
to offer the Securities on the terms set forth in the Prospectus. The
Partnership acknowledges and agrees that the Underwriters may offer and sell
Securities to or through any affiliate of an Underwriter and that any such
affiliate may offer and sell Securities purchased by it to or through any
Underwriter.
Payment for and delivery of the Securities shall be made at the offices
of Morgan, Lewis & Bockius LLP, 1701 MARKET STREET, PHILADELPHIA, PENNSYLVANIA
at 10:00 a.m., New York City time, on July 10, 2003, or at such other time or
place on the same or such other date, not later than the fifth business day
thereafter, as the Representative and the Partnership may agree upon in writing.
Annex A - Page 1
Payment for the Securities shall be made by wire transfer in
immediately available funds to the account(s) specified by the Partnership to
the Representative against delivery to the nominee of The Depository Trust
Company, for the account of the Underwriters, of one or more global notes
representing the Securities (collectively, the "Global Note"), with any transfer
taxes payable in connection with the sale of the Securities duly paid by the
Partnership. The Global Note will be made available for inspection by the
Representative not later than 1:00 p.m., New York City time, on the business day
prior to the Closing Date.
The Partnership and the Underwriters acknowledge and agree that the
only information relating to any Underwriter that has been furnished to the
Partnership in writing by any Underwriter through the Representative expressly
for use in the Registration Statement and the Prospectus (or any amendment or
supplement thereto) and any Preliminary Prospectus consists of the following:
The information appearing in the third, sixth and seventh paragraphs appearing
under the caption "Underwriting" and in the third sentence of the fifth
paragraph appearing under such caption.
All provisions contained in the document entitled Buckeye Partners,
L.P. Debt Securities Underwriting Agreement Standard Provisions are incorporated
by reference herein in their entirety and shall be deemed to be a part of this
Underwriting Agreement to the same extent as if such provisions had been set
forth in full herein, except that if any term defined in such Underwriting
Agreement Standard Provisions is otherwise defined herein, the definition set
forth herein shall control.
This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which
shall be an original and all of which together shall constitute one and the same
instrument.
(Signature page follows)
Annex A - Page 2
If the foregoing is in accordance with your understanding, please
indicate your acceptance of this Agreement by signing in the space provided
below.
Very truly yours,
BUCKEYE PIPE LINE COMPANY,
in its individual capacity
Name: /s/ Stephen C. Muther
-----------------------------------
By: Stephen C. Muther
-----------------------------------
Title: Senior VP, Administration,
General Counsel & Secretary
-----------------------------------
BUCKEYE PARTNERS, L.P.
By: Buckeye Pipe Line Company,
its general partner
Name: /s/ Stephen C. Muther
-----------------------------------
By: Stephen C. Muther
-----------------------------------
Title: Senior VP, Administration,
General Counsel & Secretary
-----------------------------------
Accepted as of the date first written above
J.P. MORGAN SECURITIES INC.
For itself and on behalf of the
several Underwriters listed in Schedule 1 hereto.
By: /s/ Stephen L. Sheiner
-----------------------------
Name: Stephen L. Sheiner
-----------------------------
Title: Vice President
-----------------------------
Annex A - Page 3
Schedule 1
to Underwriting Agreement
<Table>
<Caption>
Underwriter Principal Amount
J.P. Morgan Securities Inc. $150,000,000
Citigroup Global Markets Inc. $ 45,000,000
SunTrust Capital Markets, Inc. $ 45,000,000
UBS Securities LLC $ 30,000,000
BNP Paribas Securities Corp. $ 15,000,000
Fleet Securities, Inc. $ 15,000,000
______________________________________
Total $300,000,000
</Table>
Schedule 1 - Page 1
Schedule 2
to Underwriting Agreement
REPRESENTATIVE(S) AND ADDRESS(ES) FOR NOTICES:
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Attention: Transaction Execution Group
Fax: (212) 834-6702
CERTAIN TERMS OF THE SECURITIES:
- Title of Securities: 4 5/8% Notes due 2013
- Aggregate Principal Amount of Securities: $300,000,000
- Maturity Date: July 15, 2013
- Interest Rate: 4 5/8%
- Interest Payment Dates: January 15 and July 15, commencing January 15,
2004
- Record Dates: January 1 and July 1
- Redemption Provisions: The Securities will be redeemable at the option
of the Partnership, in whole or in part, at any time prior to maturity
at the redemption price described in the Prospectus Supplement.
Schedule 2 - Page 1
Annex B
to Underwriting Agreement Standard Provisions
Jurisdictions of Foreign Qualification
Name of Entity: States of Foreign Qualification:
--------------- --------------------------------
Partnership.............................. None
General Partner.......................... Connecticut
Florida
Illinois
Indiana
Massachusetts
Michigan
New Jersey
New York
Ohio
Pennsylvania
BMC...................................... Pennsylvania
Services Company......................... Connecticut
Florida
Illinois
Indiana
Massachusetts
Michigan
New Jersey
New York
Ohio
Buckeye.................................. Connecticut
Illinois
Indiana
Massachusetts
Michigan
New Jersey
New York
Ohio
Pennsylvania
Washington
BPH...................................... Illinois
BGC I.................................... Texas
Louisiana
New York
BGC II................................... None
BGC...................................... New York
Louisiana
Annex B - Page 1
Name of Entity: States of Foreign Qualification:
--------------- --------------------------------
BPP...................................... Texas
GCP...................................... Texas
BT....................................... Illinois
Indiana
New York
Ohio
Pennsylvania
Norco.................................... Illinois
Indiana
Iowa
Ohio
Wespac Reno.............................. None
Wespac SD................................ California
West Shore............................... Illinois
Indiana
Oklahoma
Wisconsin
Telecom.................................. None
Everglades............................... Florida
Laurel................................... Pennsylvania
New Jersey
BPL MI................................... Michigan
GP Holding............................... Texas
Products Holding......................... Texas
Annex B - Page 2
Annex C
to Underwriting Agreement Standard Provisions
[Form of Opinion of Counsel for the Partnership]
Set forth below are the forms of opinions and statements to be rendered
or made by Morgan, Lewis & Bockius LLP, counsel for the General Partner and the
Partnership. In rendering such opinions, such counsel may rely as to matters of
fact on the accuracy of the factual representations and warranties of the
General Partner and the Partnership contained in the Underwriting Agreement and
on certificates of responsible officers of the General Partner and public
officials that are furnished to the Underwriters. Such opinions shall be
rendered to the Underwriters at the request of the Partnership and shall so
state therein. Furthermore, such opinions may be limited (as appropriate) to the
federal laws of the United States of America, the laws of the State of New York,
the laws of the Commonwealth of Pennsylvania, the Delaware General Corporation
Law (the "DGCL"), the Delaware Limited Liability Company Act ("DLLCA"), and the
Delaware Revised Uniform Limited Partnership Act (the "DRULPA"). Capitalized
terms used but not defined in this Annex C have the respective meanings given to
such terms in the Underwriting Agreement Standard Provisions to which this Annex
C is attached.
1. Each of Buckeye Management Company, a Delaware corporation ("BMC"),
Buckeye Pipe Line Services Company, a Pennsylvania corporation ("Services
Company"), and the General Partner has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction in
which it is chartered or organized, with full corporate power and authority to
own or lease, as the case may be, and to operate its properties and conduct its
business as described in the Prospectus and, with respect to the General
Partner, to act as the general partner of the Partnership and each of the
Operating Partnerships and to execute and deliver the Underwriting Agreement and
perform its obligations under the Underwriting Agreement, and each is duly
qualified to do business as a foreign corporation and each is in good standing
under the laws of each jurisdiction listed across from such entity's name on
Exhibit A hereto.
2. Each of the Partnership, the Operating Partnerships and the
Partnership Subsidiaries has been duly formed and is validly existing as a
limited partnership in good standing under the DRULPA, with full partnership
power and authority to own or lease, as the case may be, and to operate its
properties and conduct its business as described in the Prospectus, and, with
respect to the General Partner, to execute and deliver the Underwriting
Agreement and perform its obligations under the Underwriting Agreement, and,
with respect to the Partnership, to execute and deliver the Underwriting
Agreement, the Base Indenture, the Supplemental Indenture and the Securities and
to incur and perform its obligations under the Underwriting Agreement, the Base
Indenture, the Supplemental Indenture and the Securities, and to issue, sell and
deliver the Securities as contemplated by the Underwriting Agreement, and each
is duly qualified or registered to do business as a foreign limited partnership,
and each is in good standing, under the laws of each jurisdiction listed across
from such entity's name on Exhibit A hereto.
3. Each of the LLC Subsidiaries (other than the WesPac Entities, as to
which no opinion is expressed in this paragraph) has been duly formed and is
validly existing as a limited liability company in good standing under the laws
of the jurisdiction in which it is organized, with full
Annex B - Page 3
power and authority to own or lease, as the case may be, and to operate its
properties and conduct its business as described in the Prospectus, and each is
duly qualified or registered to do business as a foreign limited liability
company, and each is in good standing, under the laws of each jurisdiction
listed across from such entity's name on Exhibit A hereto.
4. All the outstanding shares of capital stock of the General Partner
have been duly and validly authorized and issued and are fully paid and
nonassessable, and, to our knowledge, all such shares are owned by BMC free and
clear of any perfected security interest or any other security interest, claim,
lien or encumbrance, except for security interests, claims, liens or
encumbrances imposed in connection with the Glenmoor Ltd. 8.15% Senior Secured
Notes due May 6, 2015 (the "Glenmoor Loan") and the Buckeye Pipe Line Services
Company Employee Stock Ownership Plan 7.24% Senior Secured Notes due March 28,
2011 (the "ESOP Loan").
5. The limited partners of the Partnership hold Units in the
Partnership representing the entire limited partnership interest in the
Partnership, represented by 26,131,512 publicly-traded Units, 2,451,234 Units
owned by Services Company and 122,500 Units owned by the General Partner; such
Units are the only limited partnership interests of the Partnership that are
issued and outstanding; all of such limited partnership interests have been duly
and validly authorized and issued and are fully paid and nonassessable (except
to the extent such nonassessability may be affected by Section 17-607 of the
DRULPA); the Units owned by Services Company and the General Partner,
respectively, are owned, to our knowledge, free and clear of any perfected
security interests or any other security interest, claim, lien or encumbrance,
except for security interests, claims, liens or encumbrances imposed in
connection with the Glenmoor Loan and the ESOP Loan.
6. The General Partner is the sole general partner of the Partnership,
with a general partnership interest in the Partnership of approximately 1%,
equal to 243,914 units representing general partnership interests; such general
partnership interests are the only general partnership interests that are issued
and outstanding; all of such general partnership interests have been duly and
validly authorized and, to our knowledge, are owned by the General Partner free
and clear of any perfected security interest or any other security interest,
claim, lien or encumbrance, except for security interests, claims, liens or
encumbrances imposed in connection with the Glenmoor Loan and the ESOP Loan.
7. The Partnership is the sole limited partner of each of the Operating
Partnerships, with a limited partnership interest in each of the Operating
Partnerships of approximately 99%; such limited partnership interests are the
only limited partnership interests of the Operating Partnerships that are issued
and outstanding; all of such limited partnership interests have been duly and
validly authorized and issued and are fully paid and nonassessable (except to
the extent such nonassessability may be affected by Section 17-607 of the
DRULPA), and, to our knowledge, are owned by the Partnership free and clear of
any perfected security interest or any other security interest, claim, lien or
encumbrance.
8. The General Partner is the sole general partner of each of the
Operating Partnerships, with a general partnership interest in each of the
Operating Partnerships of 1%; such general partnership interests are the only
general partnership interests issued and outstanding; all of such general
partnership interests have been duly and validly authorized and issued and, to
our knowledge, are owned by the General Partner free and clear of any perfected
security interest or
Annex B - Page 4
any other security interest, claim, lien or encumbrance, except for security
interests, claims, liens or encumbrances imposed in connection with the Glenmoor
Loan and the ESOP Loan.
9. BGC II is the sole limited partner of BGC, with a limited
partnership interest in BGC of 99%; BGC is the sole limited partner of Products
Holding, with a limited partner interest in Products Holding of 99%; Products
Holding is the sole limited partner of each of BPP and GCP, with a limited
partnership interest in each of BPP and GCP of 99%; Laurel and the General
Partner hold a 98.01% and 0.99% limited partnership interest, respectively, in
BPL MI; all of the outstanding limited partnership interests of each of BGC,
BPP, GCP, BPL MI and Products Holding held by affiliates of the Partnership have
been duly and validly authorized and issued and are fully paid and nonassessable
(except to the extent such nonassessability may be affected by Section 17-607 of
the DRULPA), and, to our knowledge, such limited partnership interests of each
of BGC, BPP, GCP, BPL MI and Products Holding are owned free and clear of any
perfected security interest or any other security interest, claim, lien or
encumbrance.
10. BGC I is the sole general partner of BGC with a general partnership
interest in BGC of 1%; the General Partner is the sole general partner of BPL
MI, with a general partnership interest of 1%; GP Holding is the sole general
partner of each of BPP, GCP and Products Holding, with a general partner
interest in each of BPP, GCP and Products Holding of 1%; such general
partnership interests are the only general partnership interest of BGC, BPP,
GCP, BPL MI and Products Holding that are issued and outstanding; all of such
general partnership interests have been duly and validly authorized and issued,
and, to our knowledge, are owned free and clear of any perfected security
interest or any other security interest, claim, lien or encumbrance.
11. BPH is the sole member of each of BT, Norco, BGC I and BGC II, with
a limited liability company interest in each of BT, Norco, BGC I and BGC II of
100%; BGC is the sole member of GP Holding, with a limited liability company
interest in GP Holding of 100%; such limited liability company interests are the
only limited liability company interests in BT, Norco, BGC I, BGC II and GP
Holding that are issued and outstanding; all of such limited liability company
interests have been duly and validly authorized and issued and are fully paid
and nonassessable, and, to our knowledge, are owned free and clear of any
perfected security interest or any other security interest, claim, lien or
encumbrance.
12. To our knowledge, there are no actions, suits or proceedings
pending, threatened or contemplated by or before any court or governmental
agency, authority or body or any arbitrator involving the General Partner, the
Partnership or any of the Subsidiaries or to which any of their respective
directors or officers is a party or any of their respective properties is
subject, at law or in equity, of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the Prospectus, and
to our knowledge, there are no franchises, contracts, licenses, agreements,
leases or other documents of a character required to be described in the
Registration Statement or Prospectus, or to be filed as an exhibit thereto,
which are not so described or filed as required.
13. The statements included or incorporated by reference in the
Prospectus under the headings "Description of the Notes," "Description of Debt
Securities" and "United States Federal Income Tax Consequences," insofar as such
statements summarize legal matters, agreements, documents or proceedings
discussed therein, are accurate and complete in all material respects and fairly
summarize the matters referred to therein in all material respects.
Annex B - Page 5
14. Each of the Base Indenture, the Supplemental Indenture and the
Securities conform in all material respects to the description thereof contained
in the Registration Statement and the Prospectus.
15. The Registration Statement has become effective under the Act; any
required filing of any Preliminary Prospectus and the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) under the Act, has been made in the
manner and within the time period required by Rule 424(b); to our knowledge, no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or threatened.
16. The Registration Statement and the Prospectus and any supplements
or amendments thereto (other than the financial statements (and the notes
thereto) and schedules and other financial information contained therein, as to
which we express no opinion) comply as to form in all material respects with the
applicable requirements of the Act and the Exchange Act and the respective rules
thereunder.
17. The conditions to the use of Form S-3 by the Partnership have been
satisfied.
18. The Underwriting Agreement has been duly authorized, executed and
delivered by each of the General Partner, individually, and the General Partner
on behalf of the Partnership.
19. Each of the Base Indenture and the Supplemental Indenture has been
duly authorized, executed and delivered by the General Partner on behalf of the
Partnership and, assuming due authorization, execution and delivery thereof by
the Trustee, constitutes a valid and legally binding agreement of the
Partnership enforceable against the Partnership in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or transfer or
other similar laws 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).
20. The Securities have been duly authorized, executed and delivered by
the General Partner on behalf of the Partnership and, when duly authenticated as
provided in the Base Indenture (as amended and supplemented by the Supplemental
Indenture) and paid for as provided in this Agreement, will be duly and validly
issued and outstanding and will constitute valid and legally binding obligations
of the Partnership enforceable against the Partnership in accordance with their
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or transfer or
other similar laws 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 will be entitled to the benefits of the
Base Indenture (as amended and supplemented by the Supplemental Indenture).
21. None of the General Partner, the Partnership nor any of the
Subsidiaries is, or after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the
Prospectus, will be, an "investment company" or an entity "controlled" by an
"investment company," as such terms are defined in the Investment Company Act of
1940, as amended, or a "public utility company" or a "holding company," or a
"subsidiary company" of a
Annex B - Page 6
"holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company," as such terms are defined in Public Utility
Holding Company Act of 1935, as amended ("PUHCA"); none of the General Partner,
the Partnership nor any of the Subsidiaries is subject to regulation under the
PUHCA.
22. No consent, waiver, notice, approval, authorization, filing with or
order of, or any other action by, any federal, state or local governmental or
regulatory commission, board, body, authority, agency or court is required in
connection with the issuance and sale of the Securities and the consummation of
the transactions contemplated herein, except such as have been obtained under
the Act and under the Trust Indenture Act and such as may be required under the
blue sky laws of any jurisdiction, as to which we express no opinion, in
connection with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated in the Underwriting Agreement and in the
Prospectus.
23. None of the offer, issue, sale or delivery of the Securities, nor
the incurrence of the indebtedness represented by the Securities, nor the
consummation of any other of the transactions contemplated by the Underwriting
Agreement, nor the execution, delivery or performance of the any of the
Transaction Documents or the fulfillment of the terms of any of the Transaction
Documents will result in a breach or violation of, event of default under (or
constitute any event which with notice, lapse of time or both would result in
any breach of or constitute a default under), or imposition of any lien, charge
or encumbrance upon any property or assets of the General Partner, the
Partnership or the Subsidiaries pursuant to, (i) the organizational or governing
documents of the General Partner, the Partnership or the Subsidiaries, (ii) any
Material Contract (as defined below), (iii) any statute, law, rule, regulation,
(including without limitation Regulations T, U and X of the Federal Reserve
Board), or (iv) any Applicable Order (as defined below). "Material Contracts"
means all the indentures, contracts, leases, mortgages, deeds of trust, note
agreements, loan agreements or other agreements, obligations, conditions,
covenants or instruments that appear on the list that has been certified to us
by the Chief Executive Officer and the Chief Financial Officer of the General
Partner (pursuant to the Officers' Certificate attached hereto as Exhibit B) as
being all the indentures, contracts, leases, mortgages, deeds of trust, note
agreements, loan agreements or other agreements, obligations, conditions,
covenants or instruments that are both (a) material in relation to the (i) the
General Partner or (ii) the Partnership and the Subsidiaries, considered as a
single enterprise, and (b) an instrument by which the General Partner, the
Partnership or any of the Subsidiaries of the Partnership is bound or by which
any of such entities or any of their respective properties may be affected.
"Applicable Order" means any judgment, order or decree that appear on the list
that has been certified to us by the Chief Executive Officer and the Chief
Financial Officer of the General Partner (pursuant to the Officers' Certificate
attached hereto as Exhibit B) as being all the judgments, orders or decrees of
any court, regulatory body, administrative agency, governmental body, arbitrator
or other authority having jurisdiction over the General Partner, the Partnership
or the Subsidiaries or any of their respective properties, that are both (a)
material in relation to the (i) the General Partner or (ii) the Partnership and
the Subsidiaries, considered as a single enterprise, and (b) applicable to the
General Partner, the Partnership or any of the Subsidiaries of the Partnership
or any of the respective properties of any of such entities.
24. To our knowledge, no person has the right to require the
registration under the Act of any securities of the Partnership or to include
any such securities in the Registration Statement or
Annex B - Page 7
the offering contemplated hereby, whether as a result of the filing or
effectiveness of the Registration Statement or the sale of the Securities as
contemplated hereby or otherwise.
25. The Partnership Agreement and each of the Operating Partnership
Agreements has been duly authorized, executed and delivered by the parties
thereto and is a valid and legally binding agreement of the parties thereto,
enforceable against the parties thereto in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or transfer or other similar
laws 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 to the extent that rights to indemnity and contribution
under the Partnership Agreements and the Operating Partnership Agreements may be
limited by federal or state securities laws or the public policy underlying such
laws.
We also advise you, pursuant to your request, that in the course of
preparation by the Partnership of the Registration Statement, the Preliminary
Prospectus and the Prospectus, we have participated in conferences with officers
and other representatives of the Partnership and the General Partner,
representatives of the independent public accountants of the Partnership and, in
the case of the Preliminary Prospectus and the Prospectus, your representatives,
at which the contents of the Registration Statement, the Preliminary Prospectus
and the Prospectus and related matters were discussed, and although we do not
pass upon and do not assume responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement, the
Preliminary Prospectus or the Prospectus (except as and to the extent stated in
paragraphs 13 and 14 above) and we have made no independent check or
verification thereof, based on the foregoing, no facts have come to our
attention that have led us to believe that the Registration Statement at the
time such Registration Statement became effective 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
Basic Prospectus or the Prospectus or any supplement thereto at the date of such
Basic Prospectus or the Prospectus or such supplement or as of the date of this
opinion, contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading (it being understood that we express no opinion with
respect to the financial statements (and the notes thereto) and schedules and
other financial data included in the Registration Statement, the Basic
Prospectus, the Preliminary Prospectus or the Prospectus).
Annex B - Page 8