Attached files
file | filename |
---|---|
8-K - Harvest Oil & Gas Corp. | v174196_8k.htm |
EX-99.3 - Harvest Oil & Gas Corp. | v174196_ex99-3.htm |
EX-5.1 - Harvest Oil & Gas Corp. | v174196_ex5-1.htm |
EX-8.1 - Harvest Oil & Gas Corp. | v174196_ex8-1.htm |
EX-99.1 - Harvest Oil & Gas Corp. | v174196_ex99-1.htm |
EX-99.2 - Harvest Oil & Gas Corp. | v174196_ex99-2.htm |
Execution
Version
EV
ENERGY PARTNERS, L.P.
3,000,000
Common Units
Representing
Limited Partner Interests
UNDERWRITING
AGREEMENT
February
9, 2010
RBC
Capital Markets Corporation
Citigroup
Global Markets Inc.
Raymond
James & Associates, Inc.
Wells
Fargo Securities, LLC
As
Representatives of the several Underwriters
named in
Schedule I
c/o RBC
Capital Markets Corporation
3 World Financial Center
200 Vesey Street, 8th
Floor
New York, New York 10281
The
undersigned, EV Energy Partners, L.P., a Delaware limited partnership (the
“Partnership”),
EV Energy GP, L.P., a Delaware limited partnership and general partner of the
Partnership (the “General Partner”), EV
Management, LLC, a Delaware limited liability company and general partner of the
General Partner (“GP
LLC”), EV Properties, L.P., a Delaware limited partnership (the “Operating
Partnership”), EV Properties GP, LLC, a Delaware limited liability
company and general partner of the Operating Partnership (the “Operating Partnership
GP”), hereby confirm their agreement with the several Underwriters
named in Schedule I hereto (the “Underwriters”), for
whom RBC Capital Markets Corporation, Citigroup Global Markets Inc., Raymond
James & Associates, Inc. and Wells Fargo Securities, LLC are acting as
representatives (the “Representatives”).
The
Partnership, the General Partner, GP LLC, the Operating Partnership GP and the
Operating Partnership are collectively referred to herein as the “EVEP
Parties.” The Partnership, the General Partner, GP LLC, the
Operating Partnership GP and the Operating Partnership and the other
Subsidiaries (as defined in Section 4(r)) are referred to collectively
herein as the “Partnership
Entities.”
1. Description of Common
Units. The Partnership proposes to issue and sell to the
Underwriters 3,000,000 common units (the “Firm Units”)
representing limited partner interests in the Partnership (the “Common
Units”). The Partnership further proposes to grant to the
Underwriters the right to purchase up to an additional 450,000 Common Units (the
“Option Units”)
under certain circumstances as provided in Section 3 of this
Agreement. The Firm Units and the Option Units are herein sometimes
referred to as the “Units” and are more
fully described in the Disclosure Package and the Final Prospectus (each
hereinafter defined).
2. Purchase, Sale and Delivery of the
Firm Units. On the basis of the representations, warranties
and agreements herein contained, but subject to the terms and conditions herein
set forth, the Partnership agrees to sell to the Underwriters, and each such
Underwriter agrees, severally and not jointly, (a) to purchase from the
Partnership, at a purchase price of $26.89 per unit, the number of Firm Units
set forth opposite the name of such Underwriter in Schedule I hereto and
(b) to purchase from the Partnership any additional number of Option Units
which such Underwriter may become obligated to purchase pursuant to
Section 3 hereof.
Delivery
of the Firm Units will be in book-entry form through the facilities of The
Depository Trust Company, New York, New York (“DTC”). Delivery of
the documents required by Section 6 hereof with respect to the Firm Units shall
be made at or prior to 9:00 a.m. Central Time on February 12, 2010 at the
offices of Haynes and Boone, LLP, 1221 McKinney, Suite 2100, Houston, Texas
77010 or at such other place as may be agreed upon between the Representatives
and the Partnership (the “Place of Closing”),
or at such other time and date not later than five full business days thereafter
as the Representatives and the Partnership may agree, such time and date of
payment and delivery being herein called the “Initial Delivery
Date.” Time shall be of the essence, and delivery at the time
and place specified pursuant to this Agreement is a further condition of the
obligation of the Underwriters hereunder.
The
Partnership will deliver the Firm Units to the Underwriters, against payment of
the purchase price therefor in Federal (same day) Funds by wire transfer to an
account at the bank specified by the Partnership.
The
Partnership will cause its transfer agent to deposit the Firm Units pursuant to
the Full Fast Delivery Program of the DTC.
It is
understood that the Underwriters propose to offer the Units to the public upon
the terms and conditions set forth in the Disclosure Package and the Final
Prospectus.
3. Purchase, Sale and Delivery of the
Option Units. The Partnership hereby grants the option to the
Underwriters to purchase from the Partnership up to 450,000 Option Units, on the
same terms and conditions as the Firm Units. No Option Units shall be sold or
delivered unless the Firm Units previously have been, or simultaneously are,
sold and delivered and such Option Units shall be sold at the same price as the
Firm Units.
The
option is exercisable by the Representatives at any time, in whole or in part,
and from time to time, before the expiration of 30 days from the date of the
Final Prospectus (or, if such 30th day shall be a Saturday or Sunday or a
holiday, on the next day thereafter when the NASDAQ Global Select Market (the
“NASDAQ”) is
open for trading), for the purchase of all or part of the Option Units covered
thereby, by notice given by the Representatives to the Partnership in the manner
provided in Section 12 hereof, setting forth the number of Option Units as
to which the Underwriters are exercising the option, and the date of delivery of
said Option Units, which date shall not be more than five business days after
such notice unless otherwise agreed to by the Partnership and the
Representatives. The Underwriters may terminate the option at any time, as to
any unexercised portion thereof, by giving written notice from the
Representatives to the Partnership to such effect. The percentage of
Option Units to be purchased by each Underwriter shall be the same as the
percentage of Firm Units purchased by such Underwriter.
2
The
Underwriters shall make such allocation of the Option Units among them as may be
required to eliminate purchases of fractional Units.
Delivery
of Option Units will be in book-entry form through the facilities of DTC.
Delivery of the documents required by Section 6 hereof with respect to the
Option Units shall be made at the Place of Closing at or prior to 9:00 a.m.
Central Time on the date designated in the notice given by the Representatives
as provided above, or at such other time and date as the Representatives and the
Partnership may agree (which may be the same as the Initial Delivery Date), such
time and date of payment and delivery being herein called the “Option Unit Delivery
Date.” The Initial Delivery Date and any Option Unit Delivery
Date are sometimes each referred to as a “Delivery Date.” Time
shall be of the essence, and delivery at the time and place specified pursuant
to this Agreement is a further condition of the obligation of the Underwriters
hereunder. On each Option Unit Delivery Date, the EVEP Parties shall
provide the Underwriters such representations, warranties, agreements, opinions,
letters, certificates and covenants with respect to Option Units as are required
to be delivered on the Initial Delivery Date with respect to the Firm
Units.
The
Partnership will cause its transfer agent to deposit Option Units pursuant to
the Full Fast Delivery Program of the DTC.
4. Representations, Warranties and
Agreements of the EVEP Parties. The EVEP Parties jointly and
severally represent and warrant to and agree with each Underwriter as set forth
below:
(a) Registration
Statement/Prospectus. A registration statement (Registration No.
333-146428) on Form S-3 with respect to the Units, including a related Basic
Prospectus (as defined below), has been prepared by the Partnership pursuant to
and in conformity with the requirements of the Securities Act of 1933, as
amended (the “1933
Act”), and the rules and regulations thereunder (the “1933 Act Rules and
Regulations”) of the United States Securities and Exchange Commission
(the “Commission”) and has
been filed and declared effective by the Commission under the 1933 Act. The
Partnership will file with the Commission a Final Prospectus (as defined below)
in accordance with Rule 424(b). As filed, such Final Prospectus (i) shall
contain all information required by the 1933 Act and the 1933 Act Rules and
Regulations, except to the extent the Underwriters shall agree in writing to a
modification, and (ii) shall be in all substantive respects in the form
furnished to the Representatives prior to the Execution Time or, to the extent
not completed at the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the Basic Prospectus and
any Preliminary Prospectus) as the Partnership has advised the Representatives
prior to the Execution Time will be included or made therein. Copies of such
Registration Statement, including any amendments thereto, each related
Preliminary Prospectus contained therein, and the exhibits, financial statements
and schedules thereto have heretofore been delivered by the Partnership to the
Underwriters. As used in this Agreement:
3
(i) “Basic Prospectus”
shall mean the prospectus referred to in paragraph 4(a) above contained in the
Registration Statement at the Effective Date.
(ii) “Disclosure Package”
shall mean, as of the Execution Time, the most recent Preliminary Prospectus,
together with (A) any Issuer Free Writing Prospectus filed by the Partnership on
or before the Execution Time and identified on Schedule II hereto, and (B) the
pricing information identified on Schedule II hereto.
(iii) “Effective Date” shall
mean any date as of which any part of the Registration Statement became, or is
deemed to have become, effective under the 1933 Act in accordance with the 1933
Act Rules and Regulations.
(iv) “Execution Time” shall
mean the date and time (7:30 a.m. Central Time) that this Agreement is executed
and delivered by the parties hereto.
(v) “Final Prospectus”
shall mean the prospectus supplement relating to the Units that was first filed
pursuant to Rule 424(b) after the Execution Time, together with the Basic
Prospectus.
(vi) “Issuer Free Writing
Prospectus” means each “free writing prospectus” (as defined in Rule 405
of the 1933 Act Rules and Regulations) prepared by or on behalf of the
Partnership or used or referred to by the Partnership in connection with the
offering of the Units.
(vii) “Preliminary
Prospectus” shall mean any preliminary prospectus supplement to the Basic
Prospectus which describes the Units and the offering thereof and is used prior
to filing of the Final Prospectus, together with the Basic
Prospectus.
(viii) “Registration
Statement” shall mean the registration statement referred to in paragraph
4(a) above, including exhibits and financial statements and any prospectus
supplement relating to the Units that is filed with the Commission pursuant to
Rule 424(b) and deemed part of such registration statement pursuant to Rule
430A, as amended at the Execution Time and, in the event any post-effective
amendment thereto or any Rule 462(b) Registration Statement becomes effective
prior to the Initial Delivery Date, shall also mean such registration statement
as so amended or such Rule 462(b) Registration Statement, as the case may
be.
(ix) “Rule 462(b) Registration
Statement” shall mean a registration statement and any amendments thereto
filed pursuant to Rule 462(b) relating to the offering covered by the
registration statement referred to in Section 4(a) hereof.
4
Any
reference to any Preliminary Prospectus, the Disclosure Package or the Basic
Prospectus shall be deemed to refer to and include any and all documents
incorporated by reference therein pursuant to Form S-3 under the 1933 Act as of
the date of such Preliminary Prospectus or the Basic Prospectus, as the case may
be, or in the case of the Disclosure Package, as of the Execution Time. Any
reference to the “most recent Preliminary Prospectus” shall be deemed to refer
to the latest Preliminary Prospectus included in the Registration Statement or
filed pursuant to Rule 424(b) on or prior to the date hereof. Any reference to
any amendment or supplement to any Preliminary Prospectus or the Basic
Prospectus shall be deemed to refer to and include any document filed under the
Securities Exchange Act of 1934, as amended (the “1934 Act”), after the
date of such Preliminary Prospectus or the Basic Prospectus, as the case may be,
and incorporated by reference in such Preliminary Prospectus or the Basic
Prospectus, as the case may be; and any reference to any amendment to the
Registration Statement shall be deemed to include the most recent annual report
of the Partnership on Form 10-K filed with the Commission pursuant to Section
13(a) or 15(d) of the 1934 Act after the Effective Date that is incorporated by
reference in the Registration Statement. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus or the Basic
Prospectus or suspending the effectiveness of the Registration Statement, and no
proceeding or examination for such purpose has been instituted or, to the
knowledge of the EVEP Parties, threatened by the Commission. The Commission has
not notified the Partnership of any objection to the use of the form of the
Registration Statement.
(b) Form of Documents. The
Registration Statement complied and will comply in all material respects on each
Effective Date and on the applicable Delivery Date, and any amendment to the
Registration Statement filed after the date hereof will comply in all material
respects when filed, to the requirements of the 1933 Act and the 1933 Act Rules
and Regulations. The most recent Preliminary Prospectus complied, and the Final
Prospectus will comply, in all material respects when filed with the Commission
pursuant to Rule 424(b) to the requirements of the 1933 Act and the 1933 Act
Rules and Regulations.
(c) No Material Misstatements or
Omissions in the Registration Statement. The Registration Statement did
not, as of each Effective Date, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that the Partnership
makes no representations or warranties as to the information contained in or
omitted from the Registration Statement in reliance upon and in conformity with
written information furnished to the Partnership by or on behalf of the
Underwriters specifically for inclusion in the Registration Statement, it being
understood and agreed that the only such information furnished by the
Underwriters consists of the information described as such in Section 13
hereof.
5
(d) No Material Misstatements or
Omissions in the Final Prospectus. The Final Prospectus will not, as of
its date and on the applicable Delivery Date, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Partnership
makes no representations or warranties as to the information contained in or
omitted from the Final Prospectus in reliance upon and in conformity with
written information furnished to the Partnership by or on behalf of the
Underwriters specifically for inclusion in the Final Prospectus, it being
understood and agreed that the only such information furnished by the
Underwriters consists of the information described as such in Section 13
hereof.
(e) No Material Misstatements or
Omissions in the Disclosure Package. The Disclosure Package did not, as
of the Execution Time, contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading; provided, however, that the Partnership
makes no representations or warranties as to the information contained in or
omitted from the Disclosure Package in reliance upon and in conformity with
written information furnished to the Partnership by or on behalf of the
Underwriters specifically for inclusion in the Disclosure Package, it being
understood and agreed that the only such information furnished by the
Underwriters consists of the information described as such in Section 13
hereof.
(f) Ineligible Issuer. (i) At the
time of the initial filing of the Registration Statement and (ii) as of the
Execution Time (with such date being used as the determination date for purposes
of this clause (ii)), the Partnership was not and is not an Ineligible Issuer
(as defined in Rule 405), without taking account of any determination by the
Commission pursuant to Rule 405 that it is not necessary that the Partnership be
considered an Ineligible Issuer.
(g) Issuer Free Writing
Prospectus. Each Issuer Free Writing Prospectus (including, without
limitation, any road show that is a free writing prospectus under Rule 433),
when considered together with the Disclosure Package as of the Execution Time,
did not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. Each Issuer Free
Writing Prospectus (including, without limitation, any road show that is a free
writing prospectus under Rule 433) does not include any information that
conflicts with the information contained in the Disclosure Package, including
any document incorporated by reference therein that has not been superseded or
modified. The foregoing sentence does not apply to statements in or omissions
from any Issuer Free Writing Prospectus based upon and in conformity with
written information furnished to the Partnership by or on behalf of the
Underwriters specifically for inclusion in the Issuer Free Writing Prospectus,
it being understood and agreed that the only such information furnished by the
Underwriters consists of the information described as such in Section 13
hereof.
(h) Other Sales. Other than the
Common Units sold in the September 25, 2009 public offering and the
conversion of 3,100,000 subordinated units into 3,100,000 Common Units on
November 17, 2009, the Partnership has not sold or issued any Common Units
during the six-month period preceding the date of the Initial Delivery Date,
other than pursuant to acquisitions, employee benefit plans, qualified options
plans or other employee compensation plans or pursuant to outstanding options,
rights or warrants described in the Disclosure Package and the Final
Prospectus.
6
(i) Formation and Due
Qualification. Each of the Partnership Entities has been duly
formed or incorporated and is validly existing as a limited partnership, limited
liability company or corporation, as the case may be, in good standing under the
laws of its respective jurisdiction of formation or incorporation with all
necessary power and authority to own or lease its properties and to conduct its
business, in all material respects as described in the Disclosure Package and
the Final Prospectus (and any amendments or supplements
thereto). Each of the Partnership Entities is, and at each Delivery
Date will be, duly registered or qualified to do business and is in good
standing as a foreign limited partnership, foreign limited liability company or
foreign corporation, as the case may be, in each jurisdiction in which its
ownership or lease of property or the conduct of its businesses requires such
registration or qualification, except where the failure so to register or
qualify would not (i) have a material adverse effect on the position
(financial or other), partners’, members’ or stockholders’ equity, results of
operations, business or prospects of the Partnership Entities taken as a whole
(a “Material Adverse
Effect”) or (ii) subject the limited partners of the Partnership to
any material liability or disability, as set forth under its name on Schedule III to this
Agreement.
(j) Ownership of the General Partner
Interest in the Partnership. The General Partner is the sole
general partner of the Partnership with a 2% general partner interest in the
Partnership. Such general partner interest has been duly authorized
and validly issued in accordance with the First Amended and Restated Agreement
of Limited Partnership of the Partnership (as amended, the “Partnership
Agreement”) and are fully paid (to the extent required under the
Partnership Agreement) and nonassessable (except as such nonassessability may be
affected by Sections 17-607 and 17-804 of the Delaware Revised Uniform
Limited Partnership Act (the “Delaware LP Act”)),
and the General Partner owns such general partner interest free and clear of all
liens, encumbrances (except restrictions on transferability as described in the
Disclosure Package and the Final Prospectus), security interests, equities,
charges or claims.
(k) Capitalization. At
each Delivery Date (assuming that the Underwriters do not purchase the Option
Units), after giving effect to the issuance of the Firm Units, the issued and
outstanding limited partner interests of the Partnership will consist of
26,610,313 Common Units and the incentive distribution rights (as defined
in the Partnership Agreement (the “Incentive Distribution
Rights”)). All outstanding Common Units and the Incentive Distribution
Rights and the limited partner interests represented thereby have been duly
authorized and validly issued in accordance with the Partnership Agreement and
are fully paid (to the extent required under the Partnership Agreement) and
nonassessable (except as such nonassessability may be affected by matters
described in Sections 17-607 and 17-804 of the Delaware LP
Act).
7
(l) Ownership of Lock-Up Units and the
Incentive Distribution Rights. (i) EnerVest, Ltd., a
Texas limited partnership (together with its direct and indirect wholly-owned
subsidiaries, “EnerVest”), owns
1,351,017 Common Units, (ii) EnCap Energy Capital Fund V, L.P., a Texas
limited partnership, and EnCap V-B Acquisitions, L.P., a Texas limited
partnership (collectively, the “EnCap Entities”), own
1,000 Common Units (all such Common Units being collectively referred to herein
as the “Lock-Up
Units”) as described in the Disclosure Package and the Final Prospectus
and (iii) the General Partner owns all of the Incentive Distribution
Rights; all of such Lock-Up Units and the Incentive Distribution Rights and the
limited partner interests represented thereby have been duly authorized and
validly issued in accordance with the Partnership Agreement, and are fully paid
(to the extent required under the Partnership Agreement) and nonassessable
(except as such nonassessability may be affected by Sections 17-607 and 17-804
of the Delaware LP Act); and each of EnerVest and the EnCap Entities owns their
respective Lock-Up Units, and the General Partner owns the Incentive
Distribution Rights, free and clear of all liens, encumbrances (except
restrictions on transferability as described in the Disclosure Package and the
Final Prospectus), security interests, equities, charges or claims.
(m) Valid Issuance of the
Units. At the Initial Delivery Date or the Option Unit
Delivery Date, as the case may be, the Firm Units or the Option Units, as the
case may be, and the limited partner interests represented thereby, will be duly
authorized in accordance with the Partnership Agreement and, when issued and
delivered to the Underwriters against payment therefor in accordance with the
terms hereof, will be validly issued, fully paid (to the extent required under
the Partnership Agreement) and nonassessable (except as such nonassessability
may be affected by Sections 17-607 and 17-804 of the Delaware LP
Act).
(n) Ownership of Partnership Interests
in the General Partner. GP LLC owns 100% of the outstanding
general partner interests in the General Partner, and EnerVest, the EnCap
Entities and EV Investors, L.P., a Delaware limited partnership (“EV Investors”),
collectively own 100% of the outstanding limited partner interests in the
General Partner; all of such interests have been duly authorized and validly
issued in accordance with the First Amended and Restated Agreement of Limited
Partnership of the General Partner (the “General Partner Partnership
Agreement”) and are fully paid (to the extent required under the General
Partner Partnership Agreement) and nonassessable (except as such
nonassessability may be affected by Section 17-607 and 17-804 of the
Delaware LP Act), and GP LLC, EnerVest, the EnCap Entities and EV Investors own
such interests free and clear of all liens, encumbrances (except as described in
the Disclosure Package and the Final Prospectus), security interests, equities,
charges or claims.
(o) Ownership of Limited Liability
Company Interests in the GP LLC. EnerVest owns 100% of the
outstanding limited liability company interests in GP LLC; all of such interests
have been duly authorized and validly issued in accordance with the Amended and
Restated Limited Liability Company Agreement of the GP LLC (the “GP LLC Agreement”)
and are fully paid (to the extent required under the GP LLC Agreement) and
nonassessable (except as such nonassessability may be affected by
Section 18-607 and 18-804 of the Delaware Limited Liability Company Act
(the “Delaware LLC
Act”)), and EnerVest owns such interests free and clear of all liens,
encumbrances (except as described in the Disclosure Package and the Final
Prospectus), security interests, equities, charges or claims.
8
(p) Ownership of Partnership Interests
in the Operating Partnership. Operating Partnership GP owns
100% of the outstanding general partner interests in the Operating Partnership,
and the Partnership owns 100% of the outstanding limited partner interests in
the Operating Partnership; all of such interests have been duly authorized and
validly issued in accordance with the Second Amended and Restated Agreement of
Limited Partnership of the Operating Partnership (the “Operating Partnership LP
Agreement”) and are fully paid (to the extent required under the
Operating Partnership LP Agreement) and nonassessable (except as such
nonassessability may be affected by Section 17-607 and 17-804 of the
Delaware LP Act), and Operating Partnership GP and the Partnership own such
interests free and clear of all liens, encumbrances (except as described in the
Disclosure Package and the Final Prospectus), security interests, equities,
charges or claims.
(q) Ownership of Limited Liability
Company Interests in the Operating Partnership GP. The
Partnership owns 100% of the outstanding limited liability company interests in
Operating Partnership GP; all of such interests have been duly authorized and
validly issued in accordance with the Amended and Restated Limited Liability
Company Agreement of the Operating Partnership GP (the “Operating Partnership GP LLC
Agreement”), and are fully paid (to the extent required under the
Operating Partnership GP LLC Agreement) and nonassessable (except as such
nonassessability may be affected by Section 18-607 and 18-804 of the
Delaware LLC Act), and the Partnership owns such interests free and clear of all
liens, encumbrances (except as described in the Disclosure Package and the Final
Prospectus), security interests, equities, charges or claims.
(r) Ownership of the
Subsidiaries. The Partnership owns, directly or indirectly, 100% of the
limited liability company interests, partnership interests or capital stock, as
the case may be, in EVPP GP LLC, a Delaware limited liability company (“EVPP GP”), EVCG GP
LLC, a Delaware limited liability company (“EVCG GP”), EnerVest
Production Partners, Ltd., a Texas limited partnership (“EVPP”), EnerVest
Monroe Gathering, Ltd., a Texas limited partnership (“Gathering”), EnerVest
Monroe Marketing, Ltd., a Texas limited partnership (“Marketing”), CGAS
Properties, L.P., a Delaware limited partnership (“Clinton Properties”),
EnerVest Cargas, Ltd., a Texas limited partnership (“EV Cargas”), Lower
Cargas Operating Company, LLC, a Louisiana limited liability company (“LCOC”), and EV Energy
Finance Corp., a Delaware corporation (“Finance”)
(collectively, the “Subsidiaries,” and
together with the Operating Partnership and the Operating Partnership GP, the
“Operating
Subsidiaries”) free and clear of all liens, encumbrances (except as
described in the Disclosure Package and the Final Prospectus), security
interests, equities, charges and other claims. Such limited liability company
interests, partnership interests or capital stock, as the case may be, have been
duly authorized and validly issued in accordance with the limited liability
company agreements, limited partnership agreements or charter
documents, as the case may be, of the respective Subsidiaries, and are fully
paid (to the extent required under their respective limited liability company
agreement or limited partnership agreement) and non-assessable (except
(i) in the case of a Delaware limited partnership, as such nonassessability
may be affected by Sections 17-607 and 17-804 of the Delaware LP Act;
(ii) in the case of a Delaware limited liability company, as such
nonassessability may be affected by Sections 18-607 and 18-804 of the
Delaware LLC Act; (iii) in the case of a Texas limited partnership, as such
nonassessability may be affected by Section 153.210 of the Texas Business
Organizations Code; and (iv) in the case of an interest in a limited
liability company formed under the laws of another domestic state, as such
nonassessability may be affected by similar provisions of such state’s limited
liability company statute).
9
(s) No Other
Subsidiaries. Other than ownership interests in the Operating
Subsidiaries, the Partnership does not own or control directly or indirectly,
any corporation, association or other entity other than the subsidiaries listed
in Exhibit 21.1 to the Partnership’s Annual Report on Form 10-K for the most
recent fiscal year. Neither the Partnership nor any of its subsidiaries own,
directly or indirectly, any equity or long-term debt securities of any
corporation, partnership, limited liability company, joint venture, association
or other entity, other than as set forth in Exhibit 21.1 to the Partnership’s
Annual Report on Form 10-K for the most recent fiscal year. Other than its
ownership of its general partner interests in the Partnership, the General
Partner does not own, and as of each Delivery Date will not own, directly or
indirectly, any equity or long-term debt securities of any corporation,
partnership, limited liability company, joint venture, association or other
entity. Other than its ownership of its general partner interests in
the General Partner, GP LLC does not own, and as of each Delivery Date will not
own, directly or indirectly, any equity or long-term debt securities of any
corporation, partnership, limited liability company, joint venture, association
or other entity.
(t) No Preemptive Rights, Registration
Rights or Options. Except as described in the Disclosure
Package and the Final Prospectus, there are no options, warrants, preemptive
rights or other rights to subscribe for or to purchase, nor any restriction upon
the voting or transfer of, any partnership interests, limited liability company
interests or capital stock in any Partnership Entity, in each case pursuant to
the partnership agreement, limited liability company agreement or charter
document of such Partnership Entity (collectively, the “Organizational
Agreements”) or the certificate of limited partnership or formation or
incorporation, bylaws or other organizational documents of such Partnership
Entity (collectively together with the Organizational Agreements, the “Organizational
Documents”) or any other agreement or instrument to which such
Partnership Entity is a party or by which it is bound. Except for any
such rights as have been effectively waived, neither the filing of the
Registration Statement, the Preliminary Prospectus or the Final Prospectus nor
the offering, issuance or sale of the Units as contemplated by this Agreement
gives rise to any rights for or relating to the registration of any Common Units
or other securities of any of the Partnership Entities. Except as
described in the Disclosure Package and the Final Prospectus and for options
granted pursuant to employee benefit plans, qualified unit option plans, or
other employee compensation plans in effect as of the Execution Time, there are
no outstanding options or warrants to purchase any partnership interests,
limited liability company interests or capital stock of any of the Partnership
Entities.
10
(u) Authority and
Authorization. The Partnership has all requisite power and
authority to issue, sell and deliver the Units, in accordance with and upon the
terms and conditions set forth in this Agreement, the Partnership Agreement, the
Registration Statement, the Disclosure Package and the Final Prospectus. At each
Delivery Date, all corporate, partnership and limited liability company action,
as the case may be, required to be taken by the Partnership Entities or any of
their stockholders, partners or members for the authorization, issuance, sale
and delivery of the Units shall have been validly taken.
(v) Authorization of Underwriting
Agreement. This Agreement has been duly authorized and validly
executed and delivered by each of the EVEP Parties.
(w) Enforceability of Organizational
Agreements. Each of the Organizational Agreements has been
duly authorized, executed and delivered by the parties thereto and is a valid
and legally binding agreement of such party, enforceable against such party in
accordance with its terms; provided that the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws relating to or affecting
creditors’ rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and provided, further, that the indemnity,
contribution and exoneration provisions contained in any of such agreements may
be limited by applicable laws and public policy.
(x) No Conflicts. None
of the offering, issuance and sale by the Partnership of the Units, the
execution, delivery and performance of this Agreement by the EVEP Parties or the
consummation of the transactions contemplated hereby (i) conflicts or will
conflict with or constitutes or will constitute a violation of the
Organizational Documents, (ii) conflicts or will conflict with or
constitutes or will constitute a breach or violation of, or a default (or an
event which, with notice or lapse of time or both, would constitute such a
default) under any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which any of the Partnership Entities is a
party or by which any of them or any of their respective properties may be
bound, (iii) violates or will violate any statute, law or regulation or any
order, judgment, decree or injunction of any court or governmental agency or
body directed to any of the Partnership Entities or any of their properties in a
proceeding to which any of them or their property is a party or
(iv) results or will result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of any of the Partnership
Entities, which conflicts, breaches, violations, defaults or liens, in the case
of clauses (ii), (iii) or (iv), would, individually or in the aggregate,
have a Material Adverse Effect or could materially impair the ability of any of
the Partnership Entities to perform their obligations under this
Agreement.
(y) No Consents. No permit,
consent, approval, authorization, order, registration, filing or qualification
(“Consent”) of
or with any court, governmental agency or body having jurisdiction over any of
the Partnership Entities or any of their respective properties is required in
connection with the offering, issuance and sale by the Partnership of the Units,
the execution, delivery and performance of this Agreement by the EVEP Parties,
or the consummation by the Partnership Entities of the transactions contemplated
hereby, except for such Consents as may be required under the 1933 Act, the 1933
Act Rules and Regulations, the 1934 Act and the rules and regulations thereunder
(the “1934 Act Rules
and Regulations”), and state securities or “Blue Sky” laws and applicable
rules and regulations under such laws.
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(z) No Default. None
of the Partnership Entities is (i) in violation of its Organizational
Documents (ii) in violation of any law, statute, ordinance, administrative
or governmental rule or regulation applicable to it or of any order, judgment,
decree or injunction of any court or governmental agency or body having
jurisdiction over it or (iii) in breach, default (or an event which, with
notice or lapse of time or both, would constitute such a default) or violation
in the performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or in any agreement,
indenture, lease or other instrument to which it is a party or by which it or
any of its properties may be bound, which breach, default or violation in the
case of clause (ii) or (iii) would, if continued, have a Material
Adverse Effect or could materially impair the ability of any of the Partnership
Entities to perform their obligations under this Agreement. To the
knowledge of the EVEP Parties, no third party to any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which any of the
Partnership Entities is a party or by which any of them is bound or to which any
of their properties is subject, is in breach, default or violation of any such
agreement, which breach, default or violation would, if continued, have a
Material Adverse Effect or could materially impair the ability of any of the
Partnership Entities to perform their obligations under this
Agreement.
(aa) Conformity of Securities to
Descriptions in the Disclosure Package and the Final
Prospectus. The Units, when issued and delivered in accordance
with the terms of the Partnership Agreement against payment therefor as provided
herein will conform in all material respects to the description thereof
contained in the Disclosure Package and the Final Prospectus.
(bb) Independent Public
Accountants. The accountants, Deloitte & Touche LLP, who
have certified the audited financial statements contained or incorporated by
reference in the Registration Statement and the most recent Preliminary
Prospectus (or any amendment or supplement thereto), are an independent
registered public accounting firm with respect to the Partnership and the
General Partner as required by the 1933 Act and the 1933 Act Rules and
Regulations and the rules and regulations of the Public Company Accounting
Oversight Board (the “PCAOB”).
(cc) Financial
Statements. As of September 30, 2009, the Partnership would
have had, on the consolidated, as adjusted basis indicated in the Disclosure
Package and the Final Prospectus, a capitalization as set forth therein. The
historical financial statements (including the related notes and supporting
schedules) contained or incorporated by reference in the Registration Statement,
the Disclosure Package and the Final Prospectus, together with the related notes
(and any amendment or supplement thereto) comply as to form in all material
respects with the requirements of Regulation S-X under the 1933 Act and
present fairly in all material respects the financial position, results of
operations and cash flows of the entities purported to be shown thereby on the
basis stated therein at the respective dates or for the respective periods to
which they apply and have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved,
except to the extent disclosed therein. The selected financial
information set forth in the Registration Statement, the Disclosure Package and
the Final Prospectus (and any amendment or supplement thereto) is accurately
presented in all material respects and prepared on a basis consistent with the
audited and unaudited historical consolidated financial statements and pro forma
financial statements, as applicable, from which it has been derived. There are
no financial statements (historical or pro forma) that are required to be
contained or incorporated by reference in the Registration Statement, the
Disclosure Package and the Final Prospectus that are not contained or
incorporated by reference as required.
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(dd) Independent Petroleum
Engineers. Cawley, Gillespie & Associates,
Inc. Services, whose reports dated December 31, 2008, 2007 and 2006
are referenced in the Registration Statement, Disclosure Package and the Final
Prospectus and who has delivered the letter referred to in Section 6(g) hereof,
was, as of the date of each such report, and is, as of the date hereof, an
independent reserve engineer with respect to the Partnership.
(ee) Title to Real
Property. The Partnership Entities have good, valid and
indefeasible title to all of the interests in oil and gas properties underlying
the Partnership Entities’ estimates of their net proved reserves contained in
the Registration Statement, the Disclosure Package and the Final Prospectus and
to all other real and personal property reflected in the Registration Statement,
the Disclosure Package and the Final Prospectus as assets owned by them, in each
case, free and clear of all (i) liens and security interests or (ii) other
claims and other encumbrances (other than liens or security interests) except,
in each case, (1) as described, and subject to the limitations contained, in the
Registration Statement, the Disclosure Package and the Final Prospectus or (2)
such as do not materially interfere with the use of such properties taken as a
whole as they have been used in the past and are proposed to be used in the
future as described, and subject to limitations contained, in the Registration
Statement, the Disclosure Package and the Final Prospectus; provided that, with respect
to any real property and buildings held under lease by any Partnership Entity,
such real property and buildings are held under valid and subsisting and
enforceable leases with such exceptions as do not materially interfere with the
use of the properties of the Partnership Entities taken as a whole as they have
been used in the past and are proposed to be used in the future as described,
and subject to the limitations contained, in the Registration Statement, the
Disclosure Package and the Final Prospectus; the leases, mineral interests,
operating agreements and other contract rights to which the Partnership Entities
are a party give the Partnership Entities the right, in all material respects,
to explore, develop or produce hydrocarbons as described, and subject to the
limitations contained, in the Registration Statement, the Disclosure Package and
the Final Prospectus. The care taken by the Partnership Entities in
acquiring or otherwise procuring such leases or mineral interests was generally
consistent with standard industry practices in the areas in which the
Partnership Entities operate for acquiring or procuring leases and interests
therein to explore, develop or produce hydrocarbons.
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(ff) Information Underlying Reserve
Report. The information underlying the estimates of reserves
of the Partnership Entities, which was supplied by the Partnership Entities to
Cawley, Gillespie & Associates, Inc., for purposes of preparing the reserve
reports, the estimates of net proved reserves and pre-tax present value,
discounted at 10%, attributable thereto, and the letters (the “Reserve Report
Letters”) of Cawley, Gillespie & Associates, Inc., including, without
limitation, production volumes, costs of operation and development, current
prices for production, agreements relating to current and future operations and
sales of production, was true and correct in all material respects on the dates
such estimates were made and such information was supplied and was prepared in
accordance with customary industry practices; other than normal production of
the reserves and intervening market commodity price fluctuations, the
Partnership Entities are not aware of any facts or circumstances that would
result in a material adverse change in the reserves, or the present value of
future net cash flows therefrom, as described in the Registration Statement,
Disclosure Package and the Final Prospectus and as reflected in the Reserve
Report Letters; estimates of such reserves and present values as described in
the Registration Statement, Disclosure Package and the Final Prospectus and
reflected in the Reserve Report Letters comply in all material respects with the
applicable requirements of Regulation S-X and Industry Guide 2 under the 1933
Act.
(gg) No Material Adverse Change.
None of the Partnership Entities has sustained, since the date of the latest
audited financial statements contained or incorporated by reference in the
Registration Statement, the Disclosure Package and the Final Prospectus, any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, investigation, order or decree, otherwise than
as set forth or contemplated in the Registration Statement, the Disclosure
Package and the Final Prospectus (or any amendment or supplement thereto).
Except as disclosed in the Registration Statement, the Disclosure Package and
the Final Prospectus, subsequent to the respective dates as of which such
information is given in the Registration Statement, the Disclosure Package and
the Final Prospectus (or any amendment or supplement thereto), (i) none of
the Partnership Entities has incurred any liability or obligation, indirect,
direct or contingent, or entered into any transactions, not in the ordinary
course of business, that, singly or in the aggregate, is material to the
Partnership Entities, (ii) there has not been any material change in the
capitalization, or material increase in the short-term debt or long-term debt,
of any Partnership Entity and (iii) there has not been any material adverse
change, or any development involving or which may reasonably be expected to
involve, singly or in the aggregate, a prospective material adverse change in or
affecting the general affairs, business, prospects, properties, management,
condition (financial or other), partners’ equity, members’ equity, stockholders’
equity, net worth or results of operations of the Partnership
Entities.
(hh) Legal Proceedings or Contracts to be
Described or Filed. There are no legal or governmental
proceedings pending or, to the knowledge of the EVEP Parties, threatened,
against any of the Partnership Entities, or to which any of the Partnership
Entities is a party, or to which any of their respective properties is subject,
that are required to be described in the Registration Statement, the Disclosure
Package and the Final Prospectus (or any amendment or supplement thereto) but
are not described as required, and there are no agreements, contracts,
indentures, leases or other instruments that are required to be described in the
Registration Statement, the Disclosure Package and the Final Prospectus (or any
amendment or supplement thereto) or to be filed as exhibits to the Registration
Statement that are not described or filed as required by the 1933 Act or the
1933 Act Rules and Regulations.
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(ii) Certain Relationships and Related
Transactions. No relationship, direct or indirect, exists
between or among any Partnership Entity on the one hand, and the directors,
managers, officers, members, partners, stockholders, customers or suppliers of
any Partnership Entity on the other hand, that is required to be described in
the Registration Statement, the Disclosure Package or the Final Prospectus and
is not so described. There are no outstanding loans, advances (except normal
advances for business expenses in the ordinary course of business) or guarantees
of indebtedness by any Partnership Entity to or for the benefit of any of the
officers, directors or managers of any Partnership Entity or their respective
family members, except as disclosed in the Registration Statement, the
Disclosure Package and the Final Prospectus (or any amendment or supplement
thereto). No Partnership Entity has, in violation of the Sarbanes-Oxley Act of
2002, directly or indirectly, extended or maintained credit, arranged for the
extension of credit or renewed an extension of credit, in the form of a personal
loan to or for any director, manager or executive officer of any Partnership
Entity.
(jj) Rights-of-Way. Each
of the Partnership Entities has such easements, rights-of-way, permits or
licenses (collectively, “rights-of-way”) and
consents with respect to the transfer of any of the foregoing, as are necessary
to conduct its business in the manner described, and subject to the limitations
contained, in the Registration Statement, the Disclosure Package and the Final
Prospectus (or any amendment or supplement thereto), except for
(i) qualifications, reservations and encumbrances that would not have a
Material Adverse Effect and (ii) such rights-of-way or consents that, if
not obtained, would not have, individually or in the aggregate, a Material
Adverse Effect; other than as set forth, and subject to the limitations
contained, in the Registration Statement, the Disclosure Package and the Final
Prospectus (or any amendment or supplement thereto), each of the Partnership
Entities has fulfilled and performed all of its material obligations with
respect to such rights-of-way or consents, and no event has occurred that
allows, or after notice or lapse of time would allow, revocation or termination
thereof or would result in any impairment of the rights of the holder of any
such rights-of-way or consents, except for such revocations, terminations and
impairments that would not have a Material Adverse Effect; and, except as
described in the Registration Statement, the Disclosure Package and the Final
Prospectus (or any amendment or supplement thereto), none of such rights-of-way
or consents contains any restriction that is materially burdensome to the
business of the Partnership Entities, taken as a whole.
15
(kk) Permits. Each of the
Partnership Entities has such permits, consents, licenses, franchises,
certificates and authorizations of governmental or regulatory authorities
(“permits”) as
are necessary to own its properties and to conduct its business in the manner
described in the Registration Statement, the Disclosure Package and the Final
Prospectus, subject to such qualifications as may be set forth in the
Registration Statement, the Disclosure Package and the Final Prospectus and
except for such permits that, if not obtained, would not, individually or in the
aggregate, have a Material Adverse Effect; except as set forth in the
Registration Statement, the Disclosure Package and the Final Prospectus (or any
amendment or supplement thereto), each of the Partnership Entities has fulfilled
and performed all its material obligations with respect to such permits which
are or will be due to have been fulfilled and performed by such date and no
event has occurred that would prevent the permits from being renewed or reissued
or which allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any impairment of the rights of the holder of
any such permit, except for such non-renewals, non-issuances, revocations,
terminations and impairments that would not, individually or in the aggregate,
have a Material Adverse Effect.
(ll) Books and Records. Each
Partnership Entity (i) makes and keeps books, records and accounts, which,
in reasonable detail, accurately and fairly reflect the transactions and
dispositions of its assets and (ii) maintains systems of internal
accounting controls sufficient to provide reasonable assurances that
(A) transactions are executed in accordance with management’s general or
specific authorization; (B) transactions are recorded as necessary to
permit preparation of its financial statements in conformity with generally
accepted accounting principles and to maintain accountability for its assets;
(C) access to its assets is permitted only in accordance with management’s
general or specific authorization; and (D) the recorded accountability for
assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(mm) Disclosure
Controls. The Partnership has established and maintains
disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e)
under the 1934 Act), which are designed to provide reasonable assurance that the
information required to be disclosed by the Partnership in reports that it files
under the 1934 Act is accumulated and communicated to the Partnership’s
management, including its principal executive officer and principal financial
officer, as appropriate, to allow timely decisions regarding required
disclosure; such disclosure controls and procedures are effective in all
material respects to perform the functions for which they were
established.
(nn) No Recent Changes to Internal
Control Over Financial Reporting. Since the date of the most recent
evaluation of such disclosure controls and procedures described in Section 4(mm)
above, there have been no significant changes in internal controls or in other
factors that materially affected the Partnership’s internal control over
financial reporting.
(oo) Sarbanes Oxley Act of 2002.
There is and has been no failure on the part of the Partnership and, to the
knowledge of the EVEP Parties, any of GP LLC’s directors or officers, in their
capacities as such, to comply with the provisions of the Sarbanes-Oxley Act of
2002 and the rules and regulations promulgated in connection
therewith.
16
(pp) Tax Returns. Each of the
Partnership Entities has filed (or has obtained extensions with respect to) all
material federal, state, local and foreign income and franchise tax returns
required to be filed through the date hereof, which returns are complete and
correct in all material respects, and has timely paid all taxes due thereon,
other than those (i) which are being contested in good faith and for which
adequate reserves have been established in accordance with generally accepted
accounting principles or (ii) which, if not paid, would not have a Material
Adverse Effect.
(qq) Investment Company. None of
the Partnership Entities is now, and after sale of the Units to be sold by the
Partnership hereunder and application of the net proceeds from such sale as
described in the Disclosure Package and the Final Prospectus under the caption
“Use of Proceeds” will be an “investment company” or a company “controlled by”
an “investment company” within the meaning of the Investment Company Act of
1940, as amended (the “Investment Company
Act”).
(rr) Environmental Compliance. The
Partnership Entities (i) are in compliance with any and all applicable
federal, state and local laws and regulations relating to the protection of
human health and safety and the environment or imposing liability or standards
of conduct concerning any Hazardous Material (as hereinafter defined) (“Environmental Laws”),
(ii) have received all permits required of them under applicable
Environmental Laws to conduct their respective businesses, (iii) are in
compliance with all terms and conditions of any such permit and (iv) do not
have any liability in connection with the release into the environment of any
Hazardous Material, except, in each case, where such noncompliance with
Environmental Laws, failure to receive required permits, failure to comply with
the terms and conditions of such permits or liability would not, individually or
in the aggregate, have a Material Adverse Effect. The term “Hazardous Material”
means (A) any “hazardous substance” as defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended,
(B) any “hazardous waste” as defined in the Resource Conservation and
Recovery Act, as amended, (C) any petroleum or petroleum product,
(D) any polychlorinated biphenyl and (E) any pollutant or contaminant
or hazardous, dangerous or toxic chemical, material, waste or substance
regulated under or within the meaning of any other Environmental
Law.
(ss) No Labor Dispute. No labor
dispute with the employees of the Partnership Entities exists or, to the
knowledge of any of the EVEP Parties, is imminent or threatened that is
reasonably likely to result in a Material Adverse Effect.
(tt) Insurance. A Partnership
Entity, EnerVest or EnerVest Operating, LLC, a Texas limited liability company
(“EVOC”),
maintains insurance covering the properties, operations, personnel and
businesses of the Partnership Entities against such losses and risks and in such
amounts as is reasonably adequate for the conduct of their respective businesses
and the value of their respective properties and as is customary for companies
engaged in similar businesses in similar industries. None of the Partnership
Entities, EnerVest or EVOC has received notice from any insurer or agent of such
insurer that substantial capital improvements or other expenditures will have to
be made in order to continue such insurance (including after giving effect to
the transactions contemplated hereby), and all such insurance is outstanding and
duly in force on the date hereof and will be outstanding and duly in force on
each Delivery Date.
17
(uu) Litigation. Except as
described in the Disclosure Package and the Final Prospectus, there is
(i) no action, suit or proceeding before or by any court, arbitrator or
governmental agency, body or official, domestic or foreign, now pending or, to
the knowledge of the EVEP Parties, threatened to which any of the Partnership
Entities is or may be a party or to which the business or property of any of the
Partnership Entities is or may be subject, (ii) no injunction, restraining
order or order of any nature issued by a federal or state court or foreign court
of competent jurisdiction to which any of the Partnership Entities is or may be
subject, that, in the case of clauses (i) and (ii) above, is reasonably
likely to (A) individually or in the aggregate have a Material Adverse Effect,
(B) prevent or result in the suspension of the offer, issuance or sale of the
Units, or (C) in any manner draw into question the validity of this
Agreement.
(vv) No Distribution of Other Offering
Materials. None of the Partnership Entities have distributed and, prior
to the later to occur of (i) any Delivery Date and (ii) completion of
the distribution of the Units, will not distribute, any prospectus (as defined
under the 1933 Act) in connection with the offering and sale of the Units other
than the Preliminary Prospectus, the Disclosure Package or the Final
Prospectus.
(ww) Listing. The Units are quoted
on the NASDAQ.
(xx) Brokers. Except as described
in the Disclosure Package and the Final Prospectus, there are no contracts,
agreements or understandings between any Partnership Entity and any person that
would give rise to a valid claim against any Partnership Entity or any
Underwriter for a brokerage commission, finder’s fee or other like payment in
connection with this offering of the Units.
(yy) Market Stabilization. None of
the Partnership Entities (i) has taken, and none of such persons shall take,
directly or indirectly, any action designed to cause or result in, or which has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the Units to facilitate the sale
or resale of the Units in violation of any law, rule or regulation or (ii) since
the initial filing of the Registration Statement, except as contemplated by this
Agreement, (A) has sold, bid for, purchased or paid anyone any compensation for
soliciting purchases of the Units or (B) has paid or agreed to pay to any person
any compensation for soliciting another to purchase any other securities of the
Partnership.
(zz) Statistical and Market-Related
Data. All statistical or market-related data included in the
Registration Statement, the Disclosure Package and the Final Prospectus (or any
amendment or supplement thereto) are based on or derived from sources that the
Partnership reasonably believes to be reliable and accurate, and the Partnership
has obtained the written consent to the use of such data from such sources to
the extent required.
(aaa) FINRA
Affiliations. To the knowledge of the EVEP Parties, there are
no affiliations or associations between any member of the Financial Industry
Regulatory Authority (“FINRA”) and any of
the Partnership’s officers or directors or the Partnership’s 5% or greater
securityholders, except as set forth in the Registration Statement, the
Disclosure Package and the Final Prospectus (or any amendment or supplement
thereto).
18
(bbb) No Conflict with OFAC Laws.
None of the Partnership Entities, nor, to the knowledge of the EVEP Parties, any
director, officer, agent or employee of any of the Partnership Entities is
currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“OFAC”); and the
Partnership will not knowingly, directly or indirectly, use the proceeds of the
offering, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any U.S. sanctions
administered by OFAC.
(ccc) No Conflict with Money Laundering
Laws. The operations of each of the Partnership Entities are and have
been conducted at all times in material compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of
all applicable jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines issued, administered or
enforced by any govern-mental agency (collectively, the “Money Laundering
Laws”) and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving any of the
Partnership Entities with respect to the Money Laundering Laws is pending or, to
the best knowledge of the EVEP Parties, threatened, the adverse determination of
which would have a Material Adverse Effect.
Any
certificate signed by any officer of any Partnership Entity and delivered to the
Underwriters or to counsel for the Underwriters pursuant to this Agreement shall
be deemed a representation and warranty by such Partnership Entity to each
Underwriter as to the matters covered thereby.
5. Additional
Covenants.
(a) The
EVEP Parties jointly and severally covenant and agree with the several
Underwriters with respect to the provisions of this Section 5(a):
(i) The
Partnership will timely transmit copies of the Preliminary Prospectus and the
Final Prospectus in a form approved by the Underwriters, and any amendments or
supplements thereto (subject to the provisions of this Section 5), to the
Commission for filing pursuant to Rule 424(b) of the 1933 Act Rules and
Regulations.
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(ii) The
Partnership will deliver or make available to each of the Underwriters, and to
counsel for the Underwriters (i) a signed copy of the Registration
Statement as originally filed, including copies of exhibits thereto, of any
amendments and supplements to the Registration Statement and (ii) a signed
copy of each consent and certificate included in, or filed as an exhibit to, the
Registration Statement as so amended or supplemented; the Partnership will
deliver to the Underwriters as soon as practicable after the date of this
Agreement as many copies of the Preliminary Prospectus, the Final Prospectus and
any amendment or supplement thereto as the Underwriters may reasonably request
for the purposes contemplated by the 1933 Act; if there is a post-effective
amendment to the Registration Statement that is not effective under the 1933
Act, the Partnership will use its best efforts to cause the post-effective
amendment to the Registration Statement to become effective as promptly as
possible, and it will notify the Underwriters, promptly after it shall receive
notice thereof, of the time when the post-effective amendment to the
Registration Statement has become effective; the Partnership will promptly
advise the Underwriters of any request of the Commission for amendment of the
Registration Statement or for supplement to the Basic Prospectus or for any
additional information, and of the issuance by the Commission or any state or
other jurisdiction or other regulatory body of any stop order under the 1933 Act
or other order suspending the effectiveness of the Registration Statement (as
amended or supplemented) or preventing or suspending the use of the Preliminary
Prospectus, any Issuer Free Writing Prospectus or the Final Prospectus or
suspending the qualification or registration of the Units for offering or sale
in any jurisdiction, and of the institution or threat of any proceedings
therefor, of which the Partnership shall have received notice or otherwise have
knowledge prior to the completion of the distribution of the Units; and the
Partnership will use its best efforts to prevent the issuance of any such stop
order or other order and, if issued, to secure the prompt removal
thereof.
(iii) The
Partnership will not file any amendment or supplement to the Registration
Statement, the Final Prospectus, the Basic Prospectus or any Issuer Free Writing
Prospectus (or any other prospectus relating to the Units filed pursuant to Rule
424(b) of the 1933 Act Rules and Regulations that differs from the Final
Prospectus as filed pursuant to such Rule 424(b) or any Issuer Free Writing
Prospectus), of which the Underwriters shall not previously have been advised or
to which the Underwriters shall have reasonably objected in writing after being
so advised unless the Partnership shall have determined based upon the advice of
counsel that such amendment or supplement is required by law; and the
Partnership will promptly notify the Underwriters after it shall have received
notice thereof of the time when any amendment to the Registration Statement, the
Final Prospectus, the Basic Prospectus or any Issuer Free Writing Prospectus
becomes effective or when any supplement to the Basic Prospectus has been
filed.
(iv) During
the period when a prospectus relating to any of the Units is required to be
delivered under the 1933 Act by any Underwriter or dealer, the Partnership will
comply, at its own expense, with all requirements imposed by the 1933 Act and
the 1933 Act Rules and Regulations, so far as necessary to permit the
continuance of sales of or dealing in the Units during such period in accordance
with the provisions hereof and as contemplated by the Final
Prospectus.
20
(v) If,
during the period when a prospectus relating to any of the Units is required to
be delivered under the 1933 Act by any Underwriter or dealer, (i) any event
relating to or affecting the Partnership Entities or of which the Partnership
shall be advised in writing by the Representatives shall occur as a result of
which, in the opinion of the Partnership or the counsel for the Underwriters,
the Final Prospectus or any Issuer Free Writing Prospectus, as then amended or
supplemented, would include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading or
(ii) it shall be necessary to amend or supplement the Registration
Statement, the Final Prospectus or any Issuer Free Writing Prospectus to comply
with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934
Act Rules and Regulations, the Partnership will forthwith at its expense prepare
and file with the Commission, and furnish to the Underwriters a reasonable
number of copies of, such amendment or supplement or other filing that will
correct such statement or omission or effect such compliance.
(vi) During
the period when a prospectus relating to any of the Units is required to be
delivered under the 1933 Act by any Underwriter or dealer, the Partnership will
furnish such proper information as may be lawfully required and otherwise
cooperate with the Underwriters in qualifying the Units for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Representatives may
reasonably designate and will file and make such statements or reports as are or
may be reasonably necessary; provided, however, that the Partnership
shall not be required to qualify as a foreign partnership or to qualify as a
dealer in securities or to file a general consent to service of process under
the laws of any jurisdiction.
(vii) In
accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act
Rules and Regulations, the Partnership will make generally available to its
security holders, an earning statement (which need not be audited) in reasonable
detail covering the 12-month period beginning not later than the first day of
the month next succeeding the month in which occurred the effective date (within
the meaning of Rule 158) of the Registration Statement as soon as practicable
after the end of such period.
(viii) The
Partnership will furnish or make available to its security holders annual
reports containing financial statements audited by independent registered public
accounting firm and furnish or make available quarterly reports containing
financial statements and financial information which may be unaudited. The
Partnership will, for a period of two years from the Delivery Date, furnish or
make available to the Underwriters via the Commissions’ Interactive Data
Electronic Applications (IDEA) system or its website a copy of each annual
report, quarterly report, current report and all other documents, reports and
information furnished by the Partnership to holders of Common Units (excluding
any periodic income tax reporting) or filed with any securities exchange or
market pursuant to the requirements of such exchange or market or with the
Commission pursuant to the 1933 Act or the 1934 Act. The Partnership will
deliver or make available to the Underwriters similar reports with respect to
any significant subsidiaries, as that term is defined in the 1933 Act Rules and
Regulations, which are not consolidated in the Partnership’s financial
statements.
21
(ix) The
EVEP Parties will not, for a period of 60 days from the date of the Final
Prospectus, directly or indirectly, (i) offer for sale, sell, pledge, announce
the intention to sell or otherwise dispose of (or enter into any transaction or
device that is designed to, or could be expected to, result in the disposition
by any person at any time in the future of) any Common Units held by them or
securities convertible into or exchangeable for Common Units held by them, or
sell or grant options, rights or warrants with respect to any Common Units held
by them or securities convertible into or exchangeable for Common Units held by
them, (ii) enter into any swap or other derivatives transaction that transfers
to another, in whole or in part, any of the economic benefits or risks of
ownership of such Common Units, whether any such transaction described in clause
(i) or (ii) above is to be settled by delivery of Common Units held by them or
other securities, in cash or otherwise, (iii) file or cause to be filed a
registration statement, including any amendments, with respect to the
registration of any Common Units or securities convertible, exercisable or
exchangeable into Common Units (other than (1) any registration statement on
Form S-8, (2) as otherwise excepted from this lock-up provision) or (iv)
publicly disclose the intention to do any of the foregoing, in each case without
the prior written consent of the Representatives; provided, however, that the foregoing
restrictions do not apply to (a) issuances of Common Units pursuant to any
existing employee benefit plans or (b) issuances of Common Units directly to a
seller of a business as part of the purchase price or a private placement, in
each case in connection with acquisitions and capital improvements that the
General Partner reasonably determines will increase cash flow from operations on
a per unit basis after giving effect to such issuance; and the EVEP Parties will
cause each of the directors and executive officers of the GP LLC, EnerVest and
each of the EnCap Entities to furnish to the Underwriters, at or prior to the
execution of this Agreement, a letter or letters, substantially in the form of
Exhibit A
hereto, pursuant to which each such person shall agree not to, directly or
indirectly, (1) offer for sale, sell, pledge, announce the intention to
sell or otherwise dispose of (or enter into any transaction or device that is
designed to, or could be expected to, result in the disposition by any person at
any time in the future of) any Common Units (including, without limitation,
Common Units that may be deemed to be beneficially owned by such persons in
accordance with the 1933 Act Rules and Regulations that may be issued upon
exercise of any option or warrant) or securities convertible into or
exchangeable for Common Units owned by such person on the date of this Agreement
or on the applicable Delivery Date, (2) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part, any of
the economic benefits or risks of ownership of such Common Units, whether any
such transaction described in clause (1) or (2) above is to be settled by
delivery of Common Units or other securities, in cash or otherwise, or
(3) publicly disclose the intention to do any of the foregoing, in each
case for a period of 60 days from the date of the Final Prospectus, without the
prior written consent of the Representatives; provided that EnerVest and
its subsidiaries may distribute to their respective owners Common Units if the
recipients of such units execute and deliver to the Representatives lock-up
agreements in the form of Exhibit A
hereto.
22
(x) The
Partnership will apply the proceeds from the sale of the Units as set forth in
the description under “Use of Proceeds” in the Final Prospectus.
(xi) The
Partnership will promptly provide the Underwriters with copies of all
correspondence to and from, and all documents issued to and by, the Commission
in connection with the registration of the Units under the 1933
Act.
(xii) The
Partnership will use reasonable best efforts to obtain approval for, and
maintain the quotation of the Units on, the NASDAQ.
(xiii) The
Partnership agrees that, unless it has obtained or will obtain the prior written
consent of the Representatives, it has not made and will not make any offer
relating to the Securities that would constitute an Issuer Free Writing
Prospectus or that would otherwise constitute a “free writing prospectus” (as
defined in Rule 405) required to be filed by the Partnership with the Commission
or retained by the Partnership under Rule 433; provided that the prior
written consent of the parties hereto shall be deemed to have been given in
respect of the free writing prospectuses included in Schedule II hereto and any
electronic road show. The Partnership agrees that (x) it has treated
and will treat, as the case may be, each free writing prospectus as an Issuer
Free Writing Prospectus and (y) it has complied and will comply, as the case may
be, with the requirements of Rules 164 and 433 applicable to any Issuer Free
Writing Prospectus, including in respect of timely filing with the Commission,
legending and record keeping.
(xiv) If,
at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b),
any event occurs as a result of which the Disclosure Package would include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under which
they were made at such time not misleading, the Partnership will (i) notify the
Representatives promptly so that any use of the Disclosure Package may cease
until it is amended or supplemented; (ii) amend or supplement the Disclosure
Package to correct such statement or omission; and (iii) supply any amendment or
supplement to the Representatives in such quantities as the Representatives may
reasonably request.
(xv) If
the Partnership elects to rely on Rule 462(b) of the 1933 Act Rules and
Regulations, the Partnership shall both file an abbreviated registration
statement with the Commission in compliance with Rule 462(b) and pay the
applicable fees in accordance with Rule 111 of the 1933 Act Rules and
Regulations by the earlier of (i) 10:00 p.m., New York time, on the date of
this Agreement, and (ii) the time that confirmations are given or sent, as
specified by Rule 462(b)(2).
23
(b) The
several Underwriters severally but not jointly, covenant and agree with the
Partnership that unless they have obtained or will obtain, as the case may be,
the prior written consent of the Partnership, they have not made and will not
make any offer relating to the Units that would constitute an Issuer Free
Writing Prospectus or that would otherwise constitute a “free writing
prospectus” (as defined in Rule 405) required to be filed by the Partnership
with the Commission or retained by the Partnership under Rule 433; provided that the prior
written consent of the parties hereto shall be deemed to have been given in
respect of the free writing prospectuses included in Schedule II hereto and any
electronic road show.
6. Conditions of Underwriters’
Obligations. The several obligations of the Underwriters to purchase and
pay for the Units, as provided herein, shall be subject to the accuracy, as of
the date hereof and as of each Delivery Date, of the representations and
warranties of the EVEP Parties contained herein, to the performance by the EVEP
Parties of their covenants and obligations hereunder, and to the following
additional conditions:
(a) All
filings required by Rule 424 and Rule 430A of the 1933 Act Rules and Regulations
shall have been timely made. No stop order suspending the effectiveness of the
Registration Statement or preventing or suspending the use of the Final
Prospectus or any Issuer Free Writing Prospectus shall have been issued and no
proceeding for that purpose shall have been initiated or, to the knowledge of
the EVEP Parties or the Underwriters, threatened or contemplated by the
Commission, and any request of the Commission for additional information (to be
included in the Registration Statement or the Final Prospectus or otherwise)
shall have been complied with to the reasonable satisfaction of the
Underwriters.
(b) No
Underwriter shall have advised the Partnership on or prior to the applicable
Delivery Date that the Registration Statement, the Disclosure Package or the
Final Prospectus or any amendment or supplement thereto contains an untrue
statement of fact that in the opinion of the Underwriters (upon the advice of
counsel) is material, or omits to state a fact that in the opinion of the
Underwriters (upon the advice of counsel) is material and is required to be
stated therein or is necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(c) On
each Delivery Date, the Underwriters shall have received the opinion of Haynes
and Boone, LLP, counsel for the Partnership, addressed to them and dated the
applicable Delivery Date, in form and substance reasonably satisfactory to the
Underwriters, to the effect set forth on Exhibit B
hereto.
(d) The
Underwriters shall have received on each Delivery Date, from Vinson & Elkins
L.L.P., counsel to the Underwriters, such opinion or opinions, dated the
applicable Delivery Date, with respect to such matters as the Underwriters may
reasonably require; and the EVEP Parties shall have furnished to such counsel
such documents as they reasonably request for the purposes of enabling them to
review or pass on the matters referred to in this Section 6(d) and in order to
evidence the accuracy, completeness and satisfaction of the representations,
warranties and conditions herein contained.
24
(e) At
the time of execution of this Agreement and on each Delivery Date, the
Underwriters shall have received from Deloitte & Touche LLP a letter or
letters, in form and substance reasonably satisfactory to the Underwriters,
addressed to the Underwriters and dated the date hereof (i) confirming that such
firm is a registered public accounting firm within the meaning of the 1933 Act
and the rules of the PCAOB and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01
of Regulation S-X of the Commission and (ii) stating, as of the date hereof (or,
with respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the most recent
Preliminary Prospectus and the Final Prospectus, as of a date not more than five
days prior to the date hereof), the conclusions and findings of such firm with
respect to the various financial information in the Registration Statement, the
Final Prospectus, any Preliminary Prospectus and any Issuer Free Writing
Prospectus and other matters ordinarily covered by accountants’ “comfort
letters” to underwriters in connection with registered public
offerings.
(f) With
respect to the letter or letters of Deloitte & Touche LLP referred to in the
preceding paragraph and delivered to the Underwriters concurrently with the
execution of this Agreement (the “initial letters”),
the Partnership shall have furnished to the Underwriters a letter (the “bring-down letter”)
of such accountants, in form and substance reasonably satisfactory to the
Underwriters, addressed to the Underwriters and dated on each Delivery Date
(i) confirming that such firm is a registered public accounting firm within
the meaning of the 1933 Act and the rules of the PCAOB and are in
compliance with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission,
(ii) stating, as of the Delivery Date (or, with respect to matters
involving changes or developments since the respective dates as of which
specified financial information is given in the Disclosure Package and the Final
Prospectus, as of a date not more than five days prior to the date of the
bring-down letter), the conclusions and findings of such firm with respect to
the financial information and other matters covered by the initial letters and
(iii) confirming in all material respects the conclusions and findings set
forth in the initial letters.
(g) At
the time of execution of this Agreement, the Underwriters shall have received
from Cawley, Gillespie & Associates, Inc. a letter, in form and substance
reasonably satisfactory to the Underwriters, addressed to the Underwriters and
dated the date hereof.
(h) With
respect to the letter of Cawley, Gillespie & Associates, Inc. referred to in
the preceding paragraph and delivered to the Underwriters concurrently with the
execution of this Agreement, the Partnership shall have furnished to the
Underwriters a letter of such reserve engineers, addressed to the Underwriters
and dated each Delivery Date, confirming in all material respects covering the
matters in the letter referred to in the preceding paragraph.
25
(i) Except
as set forth in the Disclosure Package and the Final Prospectus, (i) none
of the Partnership Entities shall have sustained since the date of the latest
audited financial statements contained or incorporated by reference in the
Registration Statement, the Disclosure Package and the Final Prospectus any loss
or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, investigation, order or decree; and (ii) subsequent to
the respective dates as of which such information is given in the Registration
Statement, the Disclosure Package and the Final Prospectus (or any amendment or
supplement thereto), (A) none of the Partnership Entities shall have
incurred any liability or obligation, indirect, direct or contingent, or entered
into any transactions, (B) there shall not have been any change in the
capitalization or short-term or long-term debt of the Partnership Entities, and
(C) there shall not have been any change or any development involving or which
might reasonably be expected to involve a prospective change in the condition
(financial or other), net worth, partners’, members’ or stockholders’
equity, business, affairs, management, prospects, results of operations or cash
flow of the Partnership Entities, the effect of which, in any such case
described in clause (i) or (ii), is in the judgment of the Underwriters so
material or adverse as to make it impracticable or inadvisable to proceed with
the public offering or the delivery of the Units being delivered on such
Delivery Date on the terms and in the manner contemplated in the Final
Prospectus.
(j) Subsequent
to the execution and delivery to this Agreement there shall not have occurred
any of the following: (i) trading in securities generally on the NASDAQ shall
have been suspended, the settlement of such trading generally shall have been
materially disrupted or minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (ii) trading in
any securities of the Partnership on any exchange or in the over-the-counter
market shall have been suspended, (iii) a banking moratorium shall have been
declared by federal or state authorities, (iv) the United States shall have
become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (v) there shall have
occurred such a material adverse change in general economic, political or
financial conditions or any other calamity or crisis, including, without
limitation, as a result of terrorist activities after the date hereof (or the
effect of international conditions on the financial markets in the United States
shall be such), as to make it, in the judgment of the Representatives, so
material and adverse as to make it impracticable or inadvisable to proceed with
the public offering, issuance or sale of the Units being delivered on such
Delivery Date on the terms and in the manner contemplated in the Final
Prospectus.
(k) The
Underwriters shall have received certificates, dated each Delivery Date and
signed by chief executive officer and the chief financial officer, in their
capacities as such (or persons holding similar positions, as applicable), of
each of the EVEP Parties, stating that:
(i) the
conditions set forth in Section 6(a) have been fully satisfied;
26
(ii) such
EVEP Party has examined the Registration Statement, the Disclosure Package and
the Final Prospectus and any amendment or supplement thereto, as well as each
electronic roadshow used in connection with the offering, and nothing has come
to such EVEP Party’s attention that would lead it to believe that: (A)(1) the
Registration Statement, including the documents incorporated therein by
reference, as of the most recent Effective Date, (2) the Final Prospectus,
including any documents incorporated by reference therein, as of the date of the
Final Prospectus and as of such Delivery Date, and (3) the Disclosure Package,
as of the Execution Time, contained and contain any untrue statement of a
material fact and omitted and omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; and (B) since the Effective Date, there has
occurred any event required to be set forth in an amendment or supplement to the
Registration Statement, the Final Prospectus, the Disclosure Package and any
amendment or supplement thereto which has not been so set forth;
(iii) all
representations and warranties made herein by such EVEP Party are true and
correct as of such Delivery Date, with the same effect as if made on and as of
such Delivery Date; and all agreements herein to be performed or complied with
by such EVEP Party on or prior to such Delivery Date have been duly performed
and complied with by such EVEP Party;
(iv) no
event contemplated by Section 6(i) has occurred; and
(v) covering
such other matters as the Underwriters may reasonably request.
(l) The
EVEP Parties shall not have failed, refused or been unable, at or prior to each
Delivery Date, to have performed any agreement on their part to be performed or
any of the conditions herein contained and required to be performed or satisfied
by them at or prior to such Delivery Date.
(m) The
Partnership shall have furnished to the Underwriters at each Delivery Date such
further information, opinions, certificates, letters and documents as the
Underwriters may have reasonably requested.
(n) The
Units are quoted on the NASDAQ.
(o) The
Underwriters shall have received duly and validly executed letter agreements
referred to in Section 5(a)(ix) hereof.
All such
opinions, certificates, letters and documents will be in compliance with the
provisions hereof only if they are reasonably satisfactory in form and substance
to the Underwriters and to Vinson & Elkins L.L.P., counsel for the several
Underwriters. The Partnership will furnish the Underwriters with such signed and
conformed copies of such opinions, certificates, letters and documents as they
may request.
In
accordance with the provisions of Section 10 hereof, this Agreement may be
terminated by the Underwriters at any time at or prior to each Delivery Date by
notice to the Partnership if any condition specified in Section 6 shall not have
been satisfied on or prior to such Delivery Date.
27
7. Indemnification
and Contribution.
(a) The
EVEP Parties, jointly and severally, will indemnify and hold harmless each of
the Underwriters from and against any losses, damages or liabilities, joint or
several, to which the Underwriters may become subject under the 1933 Act or
otherwise, insofar as such losses, damages or liabilities (or actions or claims
in respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in (A) the Registration
Statement, any Preliminary Prospectus, the Final Prospectus, the Disclosure
Package, any Issuer Free Writing Prospectus or any amendment or supplement
thereto or (B) any Blue Sky application or other document prepared or executed
by any of the Partnership Entities (or based upon any written information
furnished by any of the Partnership Entities) or (ii) the omission or alleged
omission to state in the Registration Statement, any Preliminary Prospectus, the
Final Prospectus, the Disclosure Package, any Issuer Free Writing Prospectus or
any amendment or supplement thereto a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, and will reimburse each
of the Underwriters for any legal or other out-of-pocket expenses incurred by
such Underwriter in connection with investigating, preparing, pursuing or
defending against or appearing as a third party witness in connection with any
such loss, damage, liability or action or claim, including, without limitation,
any investigation or proceeding by any governmental agency or body, commenced or
threatened, including the reasonable fees and expenses of counsel to the
indemnified party, as such expenses are incurred (including such losses,
damages, liabilities or expenses to the extent of the aggregate amount paid in
settlement of any such action or claim, provided that (subject to Section 7(c)
hereof) any such settlement is effected with the written consent of the General
Partner); provided,
however, that the EVEP Parties shall not be liable in any such case to the
extent, but only to the extent, that any such loss, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement, any Preliminary
Prospectus, the Final Prospectus, the Disclosure Package, any Issuer Free
Writing Prospectus or any amendment or supplement thereto or any Blue Sky
Application, in reliance upon and in conformity with written information
relating to the Underwriters furnished to the EVEP Parties by the
Representatives, expressly for use in the preparation thereof (as provided in
Section 13 hereof).
28
(b) Each
of the Underwriters, severally and not jointly, will indemnify and hold harmless
the EVEP Parties from and against any losses, damages or liabilities to which
the EVEP Parties may become subject under the 1933 Act or otherwise, insofar as
such losses, damages or liabilities (or actions or claims in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, any
Preliminary Prospectus, the Final Prospectus, the Disclosure Package, any Issuer
Free Writing Prospectus or any amendment or supplement thereto or Blue Sky
Application, or (ii) the omission or alleged omission to state in the
Registration Statement, any Preliminary Prospectus, the Final Prospectus, the
Disclosure Package, any Issuer Free Writing Prospectus or any amendment or
supplement thereto a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, any Preliminary Prospectus, the
Final Prospectus, the Disclosure Package, any Issuer Free Writing Prospectus or
any amendment or supplement thereto, in reliance upon and in conformity with
written information relating to the Underwriters furnished to the Partnership by
the Underwriters, expressly for use in the preparation thereof (as provided in
Section 13 hereof), and will reimburse the EVEP Parties for any legal or other
expenses incurred by the EVEP Parties in connection with investigating or
defending any such action or claim as such expenses are incurred (including such
losses, damages, liabilities or expenses to the extent of the aggregate amount
paid in settlement of any such action or claim, provided that (subject to
Section 7(c) hereof) any such settlement is effected with the written consent of
the Underwriters).
(c) Promptly
after receipt by an indemnified party under Section 7(a) or 7(b) hereof of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against an indemnifying party under
Section 7(a) or 7(b) hereof, notify each such indemnifying party in writing of
the commencement thereof, but the failure so to notify such indemnifying party
shall not relieve such indemnifying party from any liability it may have under
Section 7(a) or 7(b) hereof except to the extent that it has been prejudiced in
any material respect by such failure, and such failure shall not relieve such
indemnifying party from any liability that it may have to any such indemnified
party otherwise than under Section 7(a) or 7(b) hereof. In case any
such action shall be brought against any such indemnified party and it shall
notify each indemnifying party of the commencement thereof, each such
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party under Section 7(a)
or 7(b) hereof similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of such indemnified party, be counsel to such indemnifying party), and, after
notice from such indemnifying party to such indemnified party of its election so
to assume the defense thereof, such indemnifying party shall not be liable to
such indemnified party under Section 7(a) or 7(b) hereof for any legal expenses
of other counsel or any other expenses, in each case subsequently incurred by
such indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. The indemnified party shall have
the right to employ its own counsel in any such action, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (i) the employment of counsel by such indemnified party at the expense of
the indemnifying party has been authorized by the indemnifying party, (ii) the
indemnified party shall have been advised by such counsel that there may be a
conflict of interest between the indemnifying party and the indemnified party in
the conduct of the defense, or certain aspects of the defense, of such action
(in which case the indemnifying party shall not have the right to direct the
defense of such action with respect to those matters or aspects of the defense
on which a conflict exists or may exist on behalf of the indemnified party) or
(iii) the indemnifying party shall not in fact have employed counsel reasonably
satisfactory to such indemnified party to assume the defense of such action, in
any of which events such fees and expenses to the extent applicable shall be
borne, and shall be paid as incurred, by the indemnifying party. If
at any time such indemnified party shall have requested such indemnifying party
under Section 7(a) or 7(b) hereof to reimburse such indemnified party for fees
and expenses of counsel, such indemnifying party agrees that it shall be liable
for any settlement of the nature contemplated by Section 7(a) or 7(b) hereof
effected without its written consent if (i) such settlement is entered into more
than 60 days after receipt by such indemnifying party of such request for
reimbursement, (ii) such indemnifying party shall have received notice of the
terms of such settlement at least 45 days prior to such settlement being entered
into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request for reimbursement prior to the
date of such settlement. No such indemnifying party shall, without
the written consent of such indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not such indemnified party is
an actual or potential party to such action or claim) unless such settlement,
compromise or judgment (A) includes an unconditional release of such indemnified
party from all liability arising out of such action or claim and (B) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any such indemnified party. In no event shall
such indemnifying parties be liable for the fees and expenses of more than one
counsel, other than one local counsel, for all such indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or
circumstances.
29
(d) If
the indemnification provided for in this Section 7 is unavailable to or
insufficient to indemnify or hold harmless an indemnified party under Section
7(a) or 7(b) hereof in respect of any losses, damages or liabilities (or actions
or claims in respect thereof) referred to therein, then each indemnifying party
under Section 7(a) or 7(b) hereof shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, damages or liabilities (or
actions or claims in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the EVEP Parties, on the one hand, and
the Underwriters, on the other hand, from the offering of the
Units. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under Section 7(c) hereof and such
indemnifying party was prejudiced in a material respect by such failure, then
each such indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault, as applicable, of the EVEP
Parties, on the one hand, and the Underwriters, on the other hand, in connection
with the statements or omissions that resulted in such losses, damages or
liabilities (or actions or claims in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by,
as applicable, the EVEP Parties, on the one hand, and the Underwriters, on the
other hand, shall be deemed to be in the same proportion as the total net
proceeds from such offering (before deducting expenses) received by the
Partnership bear to the total underwriting discounts and commissions received by
the Underwriters. The relative fault, as applicable, of the EVEP
Parties, on the one hand, and the Underwriters, on the other hand, shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the EVEP Parties, on the one
hand, or the Underwriters, on the other hand, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The EVEP Parties and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section
7(d) were determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to above in
this Section 7(d). The amount paid or payable by such an indemnified
party as a result of the losses, damages or liabilities (or actions or claims in
respect thereof) referred to above in this Section 7(d) shall be deemed to
include any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 7(d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Units underwritten by it and distributed
to the public 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 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters’
obligations to contribute pursuant to this Section 7(d) are several in
proportion to their respective purchase obligations and not
joint.
30
(e) The
obligations of the EVEP Parties under this Section 7 shall be in addition to any
liability that the EVEP Parties may otherwise have and shall extend, upon the
same terms and conditions, to each officer, director, employee, agent or other
representative and to each person, if any, who controls any Underwriter within
the meaning of the 1933 Act; and the obligations of each of the Underwriters
under this Section 7 shall be in addition to any liability that the respective
Underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Partnership and the General
Partner who signed the Registration Statement and to each person, if any, who
controls the EVEP Parties within the meaning of the 1933 Act.
8. Representations and Agreements to
Survive Delivery. The respective representations, warranties, agreements
and statements of the EVEP Parties and the Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain operative and in full force and effect regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, the EVEP
Parties or any of their officers, directors or any controlling persons and shall
survive delivery of and payment for the Units hereunder.
31
9. Defaulting Underwriter. If, on
any Delivery Date, any Underwriter defaults in the performance of its
obligations under this Agreement, the remaining non-defaulting Underwriters
shall be obligated to purchase the Firm Units that the defaulting Underwriter
agreed but failed to purchase on such Delivery Date in the respective
proportions that the number of Firm Units set forth opposite the name of each
remaining non-defaulting Underwriter in Schedule I hereto bears to the total
number of Firm Units set forth opposite the names of all the remaining
non-defaulting Underwriters in Schedule I hereto; provided, however, that the remaining
non-defaulting Underwriters shall not be obligated to purchase any of the Firm
Units on such Delivery Date if the total number of Firm Units that the
defaulting Underwriter or Underwriters agreed but failed to purchase on such
date exceeds 9.09% of the total number of Firm Units to be purchased on such
Delivery Date and any remaining non-defaulting Underwriter shall not be
obligated to purchase more than 110% of the number of the Firm Units that it
agreed to purchase on such Delivery Date pursuant to the terms of Section 2. If
the foregoing maximums are exceeded, the remaining non-defaulting Underwriters,
or those other underwriters satisfactory to the Underwriters who so agree, shall
have the right, but shall not be obligated, to purchase, in such proportion as
may be agreed upon among them, all the Firm Units to be purchased on such
Delivery Date. If the remaining Underwriters, or other underwriters satisfactory
to the Underwriters, do not elect to purchase the Firm Units that the defaulting
Underwriter or Underwriters agreed but failed to purchase on such Delivery Date,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or any EVEP Party except that the Partnership will
continue to be liable for the payment of expenses to the extent set forth in
Section 11. As used in this Agreement, the term “Underwriter” includes, for
all purposes of this Agreement unless the context requires otherwise, any party
not listed in Schedule I hereto who, pursuant to this Section 9, purchases Firm
Units that a defaulting Underwriter agreed but failed to purchase.
Nothing
contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Partnership for damages caused by its default. If other Underwriters
are obligated or agree to purchase the Firm Units of a defaulting or withdrawing
Underwriter, either the Underwriters or the Partnership may postpone such
Delivery Date for up to seven full business days in order to effect any changes
that in the opinion of counsel for the Partnership or counsel for the
Underwriters may be necessary in the Registration Statement, the Disclosure
Package, the Final Prospectus or in any other document or
arrangement.
10. Termination.
(a) This
Agreement may be terminated by the Underwriters at any time at or prior to the
Initial Delivery Date by notice to the Partnership if any condition specified in
Section 6 hereof shall not have been satisfied on or prior to the Initial
Delivery Date. Any such termination shall be without liability of any party to
any other party except as provided in Sections 7 and 11 hereof.
(b) This
Agreement also may be terminated by the Underwriters, by notice to the
Partnership, as to any obligation of the Underwriters to purchase the Option
Units, if any condition specified in Section 6 hereof shall not have been
satisfied at or prior to the Option Unit Delivery Date or as provided in
Section 9 of this Agreement.
If the
Underwriters terminate this Agreement as provided in Sections 10(a) or
10(b), they shall notify the Partnership by telephone or telegram, confirmed by
letter.
32
11. Costs and Expenses. The
Partnership will bear and pay the costs and expenses incident to the
registration of the Units and public offering thereof, including, without
limitation, (a) all expenses (including transfer taxes) incurred in
connection with the delivery to the several Underwriters of the Units, the
filing fees of the Commission, the fees and expenses of the Partnership’s
counsel and accountants; (b) the preparation, printing, filing, delivery
and shipping of the Registration Statement, each Preliminary Prospectus, the
Final Prospectus, each Issuer Free Writing Prospectus and any amendments or
supplements thereto and the printing, delivery and shipping of this Agreement
and other underwriting documents, including the Agreement Among Underwriters,
the Selected Dealer Agreement, Underwriters’ Questionnaires and Powers of
Attorney and Blue Sky Memoranda, and any instruments or documents related to any
of the foregoing; (c) the furnishing of copies of such documents to the
Underwriters; (d) the registration or qualification of the Units for
offering and sale under the securities laws of the various states and other
jurisdictions, including the fees and disbursements of counsel to the
Underwriters relating to such registration or qualification and in connection
with preparing any Blue Sky Memoranda or related analysis; (e) the filing
fees of FINRA (if any) and fees and disbursements of counsel to the Underwriters
relating to any review of the offering by FINRA; (f) all printing and
engraving costs related to preparation of the certificates for the Units,
including transfer agent and registrar fees; (g) all fees and expenses
relating to the authorization of the Units for trading on the NASDAQ;
(h) all travel expenses, including air fare and accommodation expenses, of
representatives of the Partnership in connection with the offering of the Units;
(i) the costs and expenses of the Partnership relating to investor presentations
on any “road show” undertaken in connection with the marketing of the offering
of the Units, including, without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Partnership, travel and lodging expenses of the
representatives and officers of the Partnership and any such consultants; and
(j) all of the other costs and expenses incident to the performance by the
Partnership of the registration and offering of the Units; provided that (except as
otherwise provided in this Section 11) the Underwriters will bear and pay
all of their own costs and expenses, including the fees and expenses of the
Underwriters’ counsel, the Underwriters’ transportation expenses and any
advertising costs and expenses incurred by the Underwriters incident to the
public offering of the Units.
If this
Agreement is terminated by the Underwriters in accordance with the provisions of
Section 10(a), the Partnership shall reimburse the Underwriters for all of
their reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel to the Underwriters.
12. Notices. All
notices or communications hereunder, except as herein otherwise specifically
provided, shall be in writing and if sent to the Representatives shall be
mailed, delivered, sent by facsimile transmission, or telegraphed and confirmed
c/o RBC Capital Markets Corporation, 3 World Financial Center, 200 Vesey Street,
8th
Floor, New York, New York 10281, Attention: Joe Morea, Syndicate Director, Fax:
(212) 428-6260; Citgroup Global Markets Inc., 388 Greenwich Street, New York,
New York, 10013, Attention: General Counsel, Fax: (212) 816-7912; Raymond James
& Associates, Inc., 880 Carillon Parkway, St. Petersburg, Florida, 33716,
Attention: General Counsel, Fax: (727) 567-8247; Wells Fargo Securities, LLC,
375 Park Avenue, New York, New York, 10152, Attention: Equity Syndicate
Department, Fax: (212) 214-5918; or if sent to the Partnership shall be mailed,
delivered, sent by facsimile transmission, or telegraphed and confirmed to the
Partnership at EV Energy Partners, L.P., 1001 Fannin Street, Suite 900, Houston,
Texas 77002, Fax: (713) 659-3556 and if sent to any other party, shall be
given at the address set forth on the signature page hereof. Notice to any
Underwriter pursuant to Section 7 shall be mailed, delivered, sent by facsimile
transmission, or telegraphed and confirmed to such Underwriter’s address as it
appears in the Underwriters’ Questionnaire furnished in connection with the
offering of the Units or as otherwise furnished to the
Partnership.
33
13. Information Furnished by
Underwriters. The statements set forth in the tenth, eleventh, twelfth
and thirteenth paragraphs under the caption “Underwriting” in the Final
Prospectus constitute the only information furnished by or on behalf of the
Underwriters, as such information is referred to in Section 4(c), (d), (e)
and (g) and Section 7 hereof.
14. Parties. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the EVEP Parties,
their respective successors and assigns and the officers, directors, employees,
agents, representatives and controlling persons referred to in Section 7
hereof (to the extent provided in Section 7 and 8) and their respective
heirs, executors, administrators, successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, corporation or other entity any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein contained;
this Agreement and all conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of the parties hereto and their
respective successors and assigns and said controlling persons and said officers
and directors, and for the benefit of no other person, corporation or other
entity. No purchaser of any of the Units from any Underwriter shall be construed
a successor or assign by reason merely of such purchase.
15. Research
Independence. The Partnership acknowledges that the
Underwriters’ research analysts and research departments are required to be
independent from their respective investment banking divisions and are subject
to certain regulations and internal policies, and that such Underwriters’
research analysts may hold and make statements or investment recommendations
and/or publish research reports with respect to the Partnership and/or the
offering that differ from the views of its investment bankers. The
Partnership hereby waives and releases, to the fullest extent permitted by law,
any claims that the Partnership may have against the Underwriters with respect
to any conflict of interest that may arise from the fact that the views
expressed by their independent research analysts and research departments may be
different from or inconsistent with the views or advice communicated to the
Partnership by such Underwriters’ investment banking divisions. The
Partnership acknowledges that each of the Underwriters is a full service
securities firm and as such from time to time, subject to applicable securities
laws, may effect transactions for its own account or the account of its
customers and hold long or short positions in debt or equity securities of the
companies that may be the subject of the transactions contemplated by this
Agreement.
16. No Fiduciary
Duty. Notwithstanding any preexisting relationship, advisory
or otherwise, between the parties or any oral representations or assurances
previously or subsequently made by the Underwriters, the Partnership
acknowledges and agrees that: (i) nothing herein shall create a fiduciary or
agency relationship between the Partnership, on the one hand, and the
Underwriters, on the other; (ii) the Underwriters are not acting as advisors,
expert or otherwise, to the Partnership in connection with this offering, the
sale of the Units or any other services the Underwriters may be deemed to be
providing hereunder, including, without limitation, with respect to the public
offering price of the Units; (iii) the relationship between the Partnership, on
the one hand, and the Underwriters, on the other, is entirely and solely
commercial, based on arms-length negotiations; (iv) any duties and obligations
that the Underwriters may have to the Partnership shall be limited to those
duties and obligations specifically stated herein; and (v) notwithstanding
anything in this Agreement to the contrary, the Partnership acknowledges that
the Underwriters’ may have financial interest in the success of the offering
that are not limited to the difference between the price to the public and the
purchase price paid to the Partnership by the Underwriters for the Units, and
the Underwriters have no obligation to disclose, or account to the Partnership
for, any of such additional financial interests. The Partnership
hereby waives and releases, to the fullest extent permitted by law, any claims
that the Partnership may have against the Underwriters with respect to any
breach or alleged breach of fiduciary duty with respect to the transactions
contemplated by this Agreement.
34
17. Counterparts. This Agreement
may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
18. Pronouns. Whenever a pronoun
of any gender or number is used herein, it shall, where appropriate, be deemed
to include any other gender and number.
19. Time of Essence. Time shall be
of the essence of this Agreement.
20. Applicable Law. This Agreement
shall be governed by, and construed in accordance with, the laws of the State of
New York, without giving effect to the choice of law or conflict of laws
principles thereof.
[Signature page
follows.]
35
If the
foregoing is in accordance with your understanding, please so indicate in the
space provided below for that purpose, whereupon this letter shall constitute a
binding agreement among the EVEP Parties and the Underwriters.
EV
ENERGY PARTNERS, L.P.
|
|||
By:
|
EV
Energy GP, L.P., its General Partner
|
||
By:
|
EV
Management, LLC, its General Partner
|
||
By:
|
/s/ Michael E. Mercer
|
||
Name:
|
Michael
E. Mercer
|
||
Title:
|
Senior
Vice President and
|
||
Chief
Financial Officer
|
|||
EV
ENERGY GP, L.P.
|
|||
By:
|
EV
Management, LLC, its General Partner
|
||
By:
|
/s/ Michael E. Mercer
|
||
Name:
|
Michael
E. Mercer
|
||
Title:
|
Senior
Vice President and
|
||
Chief
Financial Officer
|
|||
EV
MANAGEMENT, LLC
|
|||
By:
|
/s/ Michael E. Mercer
|
||
Name:
|
Michael
E. Mercer
|
||
Title:
|
Senior
Vice President and
|
||
Chief
Financial Officer
|
|||
EV
PROPERTIES GP, LLC
|
|||
By:
|
/s/ Michael E. Mercer
|
||
Name:
|
Michael
E. Mercer
|
||
Title:
|
Senior
Vice President and
|
||
Chief
Financial Officer
|
[Signature
Page to Underwriting Agreement]
EV
PROPERTIES, L.P.
|
|||
By:
|
/s/ Michael E. Mercer
|
||
Name:
|
Michael
E. Mercer
|
||
Title:
|
Senior
Vice President and
|
||
Chief
Financial Officer
|
[Signature
Page to Underwriting Agreement]
ACCEPTED
in New York, NY,
as of the
date first above written.
RBC Capital Markets Corporation
|
|||
By:
|
/s/ Joe Morea
|
||
Name:
|
Joe Morea
|
||
Title:
|
Managing Director,
|
||
Head of Equity Capital Markets
|
|||
Citigroup Global Markets Inc.
|
|||
By:
|
/s/ John Bishop
|
||
Name:
|
John Bishop
|
||
Title:
|
Director
|
||
Raymond James & Associates, Inc.
|
|||
By:
|
/s/ James Murchison
|
||
Name:
|
James Murchison
|
||
Title:
|
Vice President
|
||
Wells Fargo Securities, LLC
|
|||
By:
|
/s/ David Herman
|
||
Name:
|
David Herman
|
||
Title:
|
Director
|
For
themselves and the other several Underwriters named in Schedule I to the
foregoing Agreement.
[Signature
Page to Underwriting Agreement]
SCHEDULE
I
Allocation
of Units
Name
|
Number of Units
|
|||
RBC
Capital Markets Corporation.
|
577,500 | |||
Citigroup
Global Markets Inc.
|
577,500 | |||
Raymond
James & Associates, Inc.
|
577,500 | |||
Wells
Fargo Securities, LLC
|
577,500 | |||
UBS
Securities LLC
|
390,000 | |||
J.P.
Morgan Securities Inc.
|
150,000 | |||
Oppenheimer
& Co. Inc.
|
150,000 | |||
Total
|
3,000,000 |
Schedule
I
SCHEDULE
II
Issuer
Free Writing Prospectus
None
Pricing
Information
Public
Offering Price per Unit:
|
$ | 28.08 | ||
Net
Proceeds (including the General Partner’s proportionate capital
contribution and after deducting underwriting discounts and commissions
and estimated offering expenses):
|
$ | 82,166,326.53 |
Schedule
II
Schedule
III
Foreign
Qualifications
Entity:
|
Foreign Qualifications:
|
|
EV
Management, LLC
|
Texas
|
|
EV
Energy GP, L.P.
|
Texas
|
|
EV
Energy Partners, L.P.
|
Texas
|
|
EV
Properties GP, LLC
|
None
|
|
EV
Properties, L.P.
|
Texas,
New Mexico, Colorado, Oklahoma, Louisiana and Kansas
|
|
EVPP
GP LLC
|
None
|
|
EnerVest
Production Partners, Ltd.
|
Louisiana,
New Mexico
|
|
EnerVest
Monroe Gathering, Ltd.
|
Louisiana
|
|
EnerVest
Monroe Marketing, Ltd.
|
Louisiana
|
|
EVCG
GP LLC
|
Ohio,
Michigan
|
|
CGAS
Properties, L.P.
|
Ohio,
Michigan, West Virginia, Pennsylvania and New York
|
|
EnerVest-Cargas,
Ltd.
|
Louisiana
|
|
Lower
Cargas Operating Company LLC
|
None
|
|
EV
Energy Finance Corp.
|
None
|
Schedule
III
Exhibit
A
Form
of Lock-Up Letter
February
9, 2010
RBC
Capital Markets Corporation
Citigroup
Global Markets Inc.
Raymond
James & Associates, Inc.
Wells
Fargo Securities, LLC
As
Representatives of the several Underwriters
named in
Schedule I
c/o RBC
Capital Markets Corporation
3 World Financial Center
200 Vesey Street, 8th
Floor
New York, New York 10281
Dear
Ladies and Gentlemen:
The undersigned understands that you,
as representatives (the “Representatives”) of
the Underwriters (the “Underwriters”) named
in Schedule I of the Underwriting Agreement (hereinafter defined), propose to
enter into an underwriting agreement (the “Underwriting
Agreement”) with the EVEP Parties providing for the purchase by you of
common units, each representing a limited partner interest in the Partnership
(the “Common
Units”), and that the Underwriters propose to reoffer the Common Units to
the public (the “Offering”). Capitalized
terms used but not defined herein have the meanings given to them in the
Underwriting Agreement.
In consideration of the execution of
the Underwriting Agreement by you, and for other good and valuable
consideration, the undersigned hereby irrevocably agrees that, without the prior
written consent of the Representatives, the undersigned will not, directly or
indirectly, (1) offer for sale, sell, pledge, announce the intention to
sell or otherwise dispose of (or enter into any transaction or device that is
designed to, or could be expected to, result in the disposition by any person at
any time in the future of) any Common Units (including, without limitation,
Common Units that may be deemed to be beneficially owned by the undersigned in
accordance with the rules and regulations of the Securities and Exchange
Commission that may be issued upon exercise of any option or warrant) or
securities convertible into or exchangeable for Common Units owned by the
undersigned on the date of execution of this Lock-up Letter Agreement or on the
date of the completion of the Offering, (2) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part, any of
the economic benefits or risks of ownership of such Common Units, whether any
such transaction described in clause (1) or (2) above is to be settled by
delivery of Common Units or other securities, in cash or otherwise, or (3)
publicly disclose the intention to do any of the foregoing, in each case for a
period of 60 days from the date of the Final Prospectus, without the prior
written consent of the Representatives.
In furtherance of the foregoing, the
Partnership and its transfer agent are hereby authorized to decline to make any
transfer of securities if such transfer would constitute a violation or breach
of this Lock-Up Letter Agreement.
It is understood that, if the
Partnership notifies you that it does not intend to proceed with the Offering,
if the Underwriting Agreement does not become effective, or if the Underwriting
Agreement (other than the provisions thereof that survive termination) shall
terminate or be terminated prior to payment for and delivery of the Common
Units, the undersigned will be released from his/her obligations under this
Lock-Up Letter Agreement.
The undersigned understands that the
Partnership and the Underwriters will proceed with the Offering in reliance on
this Lock-Up Letter Agreement.
Whether or not the Offering actually
occurs depends on a number of factors, including market
conditions. Any Offering will only be made pursuant to an
Underwriting Agreement, the terms of which are subject to negotiation between
the Partnership and the Underwriters.
The undersigned hereby represents and
warrants that the undersigned has full power and authority to enter into this
Lock-Up Letter Agreement and that, upon request, the undersigned will execute
any additional documents necessary in connection with the enforcement
hereof. Any obligations of the undersigned shall be binding upon the
heirs and personal representatives of the undersigned.
Yours
very truly,
Exhibit
B
Form
of Haynes and Boone, LLP Opinion
February
12, 2010
RBC
Capital Markets Corporation
Citigroup
Global Markets Inc.
Raymond
James & Associates, Inc.
Wells
Fargo Securities, LLC
As
Representatives of the several Underwriters
named in
Schedule I
c/o RBC
Capital Markets Corporation
3 World Financial Center
200 Vesey Street, 8th
Floor
New York, New York 10281
Re: Issuance
and Sale of up to 3,000,000 Common Units by EV Energy Partners,
L.P.
Ladies
and Gentlemen:
We have
acted as counsel to EV Energy Partners, L.P., a Delaware limited partnership
(the “Partnership”), in
connection with the preparation of the Registration Statement of the Partnership
on Form S-3 No. 333-146428, including exhibits thereto (the “Registration
Statement”), under the Securities Act of 1933, as amended (the “1933 Act”), to be
used in connection with the sale to the Underwriters of up to an aggregate
3,000,000 common units (the “Firm Units”)
representing limited partner interests in the Partnership (the “Common Units”) and
the granting of an option to sell to the Underwriters up to an additional
450,000 Common Units (the “Option Units”) under
certain circumstances. This opinion is being delivered to you in
accordance with Section 6(c) of the Underwriting Agreement (as defined
below). Except as otherwise defined herein, capitalized terms herein
are used herein as defined in the Underwriting Agreement.
Scope
of Examination and General
Assumptions and
Qualifications
In
rendering the opinions expressed below, we have examined and relied upon the
original, or copies certified to our satisfaction, of the following documents:
(i) the Registration Statement and all exhibits thereto; (ii) that certain
Underwriting Agreement (the “Underwriting
Agreement”), dated as of February 9, 2010, by and among RBC Capital
Markets Corporation, Citigroup Global Markets Inc., Raymond James &
Associates, Inc. and Wells Fargo Securities, LLC, as representatives of the
Underwriters, and the EVEP Parties named therein; (iii) resolutions adopted by
the EVEP Parties authorizing the EVEP Parties’ entry into the Underwriting
Agreement and the transactions contemplated thereby; (iv) certificates of
officers and directors of the Partnership Entities; and (v) such other
instruments and documents of or pertaining to the Partnership Entities as we
have deemed necessary as a basis for expressing the opinions hereinafter set
forth and as have been furnished to us by the Partnership Entities or any
affiliate thereof.
We have
assumed with your consent for the purposes of this opinion that the signatures
on documents and instruments examined by us are authentic, that each document is
what it purports to be, and that all documents submitted to us as copies or
facsimiles conform with the originals, which facts we have not independently
verified. We have also assumed with your consent (i) the Underwriting
Agreement has been duly and validly executed and delivered by each of the
parties thereto (other than the EVEP Parties), (ii) the Underwriting Agreement
is the valid and binding obligation that is enforceable against each of the
parties thereto (other than the EVEP Parties), (iii) that there are no extrinsic
agreements or understandings to which the Partnership is a party concerning the
Underwriting Agreement that would modify or interpret the terms of the
Underwriting Agreement or the respective rights or obligations of the parties
thereunder and (iv) the correctness and accuracy of all the facts set forth in
the certificates and reports described in this opinion letter.
As to
questions of fact material to the opinions expressed below, we have with your
consent, and without independent verification of their accuracy, relied to the
extent we deem appropriate upon the representations made by the EVEP Parties in
the Underwriting Agreement and upon certificates of officers of such entities
delivered to us.
We also
have assumed, with your consent and without investigation or independent
confirmation, for the purpose of the opinions expressed herein that no mutual
mistake, misunderstanding or fraud exists with respect to any of the matters
relevant to such opinions. We also have assumed, with your consent
and without investigation or independent confirmation, that the EVEP Entities
and their attorneys-in-fact or other agents, as applicable, have acted in good
faith and that the consummation of the transactions contemplated by the
Underwriting Agreement have complied or will comply with any requirement of good
faith, fair dealing and conscionability. We also have assumed, with
your consent and without investigation or independent confirmation, that you are
not subject to any statute, rule or regulation, or to any impediment that
contracting parties are generally not subject and that would affect the opinions
expressed below.
We are
qualified to practice law in the State of Texas, and we express no opinion
herein as to matters governed by laws other than the federal laws of the United
States of America, the laws of the State of Texas, New York contract law and, to
the extent relevant, the Delaware Revised Uniform Limited Partnership Act (the
“Delaware LP
Act”), the Delaware Limited Liability Company Act (the “Delaware LLC Act”)
and the General Corporation Law of the State of Delaware (the “DGCL”).
As used
herein, the phrase “knowledge” and similar phrases and statements of belief
contained herein refers to the conscious awareness of information by any lawyer
at this firm who has represented the Partnership in connection with the
Underwriting Agreement and all related documents or who has provided substantive
attention to other legal matters on behalf of the Partnership Entities and their
subsidiaries, including in connection with the matters that are the subject of
this opinion. We have not made any other independent investigation to
determine the existence or absence of any particular documents or
facts. No inference as to our knowledge or investigation shall be
drawn from the fact of our representation of any party or
otherwise.
In
rendering the opinions expressed in Paragraph 1 below,
we have relied, with your consent, solely upon our review of the Partnership
Entities constituent documents and certifications of public officials in those
jurisdictions in which the Partnership Entities own or lease properties or
otherwise conduct business so as to require qualification in such
jurisdiction.
In
rendering the opinions expressed in Paragraph 15 below,
our opinions are expressed only with respect to statutes, rules, regulations or
judicial or administrative decisions that a lawyer in Texas exercising customary
professional due diligence would reasonably recognize as being directly
applicable to the Partnership Entities or the transactions contemplated by the
Underwriting Agreement. Except as specifically set forth herein, we also do not
express an opinion as to compliance with federal securities laws and regulations
administered by the Commission and state “Blue Sky” laws. We also
specifically do not express any opinion as to compliance with (i) Federal
Reserve Board margin regulations; (ii) pension and employee benefit laws and
regulations; (iii) federal and state antitrust and unfair competition laws and
regulations; (iv) federal and state laws and regulations concerning filing and
notice requirements (other than requirements applicable to charter-related
documents); (v) fiduciary duty requirements; (vi) fraudulent transfer and
fraudulent conveyance laws; (vii) federal and state environmental laws and
regulations; (viii) federal and state land use and subdivision laws and
regulations; (ix) federal and state tax laws and regulations;
(x) federal patent, copyright and trademark, state trademark and other
federal and state intellectual property laws and regulations; (xi) federal
and state racketeering laws and regulations; (xii) federal and state labor
laws and regulations; (xiii) federal and state laws, regulations and
policies concerning (a) national and local emergency, (b) possible judicial
deference to acts of sovereign states and (c) criminal and civil forfeiture
laws; (xiv) other federal and state statutes of general application to the
extent they provide for criminal prosecution; and (xv) the statutes and
ordinances, administrative decisions, and rules and regulations of counties,
towns, municipalities and special political subdivisions (whether created or
enabled through legislative action at the federal, state or regional level), and
judicial decisions to the extent that they deal with any of the
foregoing.
Opinions
Based
upon the foregoing, and subject to the qualifications set forth herein, we are
of the opinion that:
1. Formation and Due
Qualification. Each of the Partnership Entities has been duly
formed or incorporated and is validly existing as a limited partnership, limited
liability company or corporation, as the case may be, in good standing under the
laws of its respective jurisdiction of formation or incorporation with all
necessary limited partnership, limited liability company or corporate power and
authority to own or lease its properties and to conduct its business, in all
material respects as described in the Disclosure Package and the Final
Prospectus (and any amendments or supplements thereto). Each of the
Partnership Entities is, and at each Delivery Date will be, duly registered or
qualified to do business and is in good standing as a foreign limited
partnership, foreign limited liability company or foreign corporation, as the
case may be, in each jurisdiction in which its ownership or lease of property or
the conduct of its businesses requires such registration or qualification,
except where the failure so to register or qualify would not (i) have a Material
Adverse Effect or (ii) subject the limited partners of the Partnership to any
material liability or disability, which states of formation and qualification
are set forth next to each Partnership Entity’s name on Schedule III to the
Underwriting Agreement.
2. Ownership of the General Partner
Interest in the Partnership. The General Partner is the sole
general partner of the Partnership with a 2% general partner interest in the
Partnership. Such general partner interest has been duly authorized
and validly issued in accordance with the Partnership Agreement and is fully
paid (to the extent required under the Partnership Agreement) and nonassessable
(except as such nonassessability may be affected by Sections 17-607 and
17-804 of the Delaware LP Act), and the General Partner owns such general
partner interest free and clear of all liens, encumbrances (except restrictions
on transferability described in the Disclosure Package or Final Prospectus),
security interests, equities, charges or claims (i) in respect of which a
financing statement under the Uniform Commercial Code of the State of Delaware
naming the General Partner as debtor is on file as of a recent date in the
office of the Secretary of State of the State of Delaware or (ii) otherwise
known to us, without independent investigation, other than those created by or
arising under the Delaware LP Act.
3. Ownership of Partnership Interests
in the General Partner. The GP LLC owns 100% of the
outstanding general partner interests in the General Partner. EnerVest, the
EnCap Entities and EV Investors collectively own 100% of the outstanding limited
partner interests in the General Partner. All of such general and
limited partner interests in the General Partner have been duly authorized and
validly issued in accordance with the General Partner Partnership Agreement and
are fully paid (to the extent required under the General Partner Partnership
Agreement) and nonassessable (except as such nonassessability may be affected by
matters described in Sections 17-607 and 17-804 of the Delaware LP
Act). GP LLC, EnerVest, the EnCap Entities and EV Investors own such
interests free and clear of all liens, encumbrances, security interests,
equities, charges or claims (i) in respect of which a financing statement
under the Uniform Commercial Code of the State of Delaware naming any of them as
debtor is on file as of a recent date in the office of the Secretary of State of
the State of Delaware or (ii) otherwise known to us, without independent
investigation, other than those created by or arising under the Delaware LP
Act.
4. Ownership of Limited Liability
Company Interests in the GP LLC. The outstanding limited
liability company interests in GP LLC owned by EnerVest comprise all of the
limited liability company interests in GP LLC, and all of such interests have
been duly authorized and validly issued in accordance with the GP LLC
Agreement. Such outstanding limited liability company interests are
fully paid (to the extent required under the GP LLC Agreement) and nonassessable
(except as such nonassessability may be affected by Section 18-607 and
18-804 of the Delaware LLC Act), and EnerVest owns such interests free and clear
of all liens, encumbrances, security interests, equities, charges or claims
(i) in respect of which a financing statement under the Uniform Commercial
Code of the State of Delaware naming EnerVest as debtor is on file as of a
recent date in the office of the Secretary of State of the State of Delaware or
(ii) otherwise known to us, without independent investigation, other than
those created by or arising under the Delaware LLC Act.
5. Ownership of Partnership Interests
in the Operating Partnership. Operating Partnership GP owns
100% of the outstanding general partner interests in the Operating Partnership,
and the Partnership owns 100% of the outstanding limited partner interests in
the Operating Partnership. All of such interests have been duly
authorized and validly issued in accordance with the Operating Partnership LP
Agreement and are fully paid (to the extent required under the Operating
Partnership LP Agreement) and nonassessable (except as such nonassessability may
be affected by matters described in Sections 17-607 and 17-804 of the Delaware
LP Act). The Operating Partnership GP and the Partnership own such
interests free and clear of all liens, encumbrances, security interests,
equities, charges or claims (i) in respect of which a financing statement
under the Uniform Commercial Code of the State of Delaware naming any of them as
debtor is on file as of a recent date in the office of the Secretary of State of
the State of Delaware or (ii) otherwise known to us, without independent
investigation, other than those created by or arising under the Delaware LP Act
or the Credit Facility.
6. Ownership of Limited Liability
Company Interests in the Operating Partnership GP. The
Partnership owns 100% of the outstanding limited liability company interests in
the Operating Partnership GP, and all of such interests have been duly
authorized and validly issued in accordance with the Operating Partnership GP
LLC Agreement. Such interest are fully paid (to the extent required under the
Operating Partnership GP LLC Agreement) and nonassessable (except as such
nonassessability may be affected by Section 18-607 and 18-804 of the
Delaware LLC Act), and the Partnership owns such interests free and clear of all
liens, encumbrances, security interests, equities, charges or claims (i) in
respect of which a financing statement under the Uniform Commercial Code of the
State of Delaware naming the Partnership as debtor is on file as of a recent
date in the office of the Secretary of State of the State of Delaware or
(ii) otherwise known to us, without independent investigation, other than
those created by or arising under the Delaware LLC Act or the Credit
Facility.
7. Ownership of the
Subsidiaries. The Partnership owns, directly or indirectly,
100% of the limited liability company interests, partnership interests or
capital stock, as the case may be, in the Subsidiaries, such interests have been
duly authorized and validly issued in accordance with the limited liability
company agreement, limited partnership agreement, certificate of incorporation
or bylaws, as the case may be, of the respective Subsidiaries, and are fully
paid (to the extent required under their respective limited liability company
agreement, limited partnership agreement, certificate of incorporation or
bylaws) and non-assessable (except (a) in the case of an interest in a Delaware
limited liability company, as such non assessability may be affected by Sections
18-607 and 18-804 of the Delaware LLC Act, (b) in the case of an interest in a
Delaware limited partnership, as such non assessability may be affected by
Sections 17-607 and 17-804 of the Delaware LP Act and (c) in the case of an
interest in a limited liability company or limited partnership formed under the
laws of another domestic state, as such nonassessability may be affected by
similar provisions of such state’s limited liability company or limited
partnership statute, as applicable), in each case, free and clear of all liens,
encumbrances, security interests, equities, charges and other claims (i) in
respect of which a financing statement under the Uniform Commercial Code of the
State of Delaware naming the Partnership as debtor is on file as of a recent
date in the office of the Secretary of State of the State of Delaware or
(ii) otherwise known to us, without independent investigation, other than
those created by or arising under the Delaware LLC Act, the Delaware LP Act, the
DGCL or the Credit Facility.
8. Capitalization. After
giving effect to the issuance of the Firm Units, the issued and outstanding
limited partner interests of the Partnership consist of 26,610,313 Common Units
and the Incentive Distribution Rights. All outstanding Common Units
and the Incentive Distribution Rights and the limited partner interests
represented thereby have been duly authorized and validly issued in accordance
with the Partnership Agreement, and are fully paid (to the extent required under
the Partnership Agreement) and nonassessable (except as such nonassessability
may be affected by matters described in Sections 17-607 and 17-804 of the
Delaware LP Act).
9. Valid Issuance of the
Units. The Units and the limited partner interests represented
thereby have been duly authorized by the Partnership Agreement and, when issued
and delivered to the Underwriters against payment therefor in accordance with
the terms hereof, will be validly issued, fully paid (to the extent required
under the Partnership Agreement) and nonassessable (except as such
nonassessability may be affected by matters described in Sections 17-607 and
17-804 of the Delaware LP Act).
10. No Preemptive Rights, Registration
Rights or Options. To our knowledge, except as described in the
Disclosure Package or the Final Prospectus, there are no preemptive rights or
other rights to subscribe for or to purchase, nor any restriction upon the
voting or transfer of any partnership interests of the Partnership pursuant to
the Partnership Agreement. To our knowledge, neither the filing of
the Registration Statement, the Preliminary Prospectus or the Final Prospectus,
nor the offering, issuance or sale of the Units as contemplated by the
Underwriting Agreement gives rise to any rights for or relating to the
registration of any Units or other securities of the Partnership that have not
been waived. To our knowledge, except as described in the Disclosure
Package and the Final Prospectus and for options granted pursuant to employee
benefit plans, qualified unit option plans or other employee compensation plans,
there are no outstanding options or warrants to purchase any partnership
interest, membership interests or capital stock in any of the Partnership
Entities.
11. Authority and Authorization.
The Partnership has all requisite limited partnership power and authority to
issue, sell and deliver the Units to be sold by it pursuant to the Underwriting
Agreement, in accordance with and upon the terms and conditions set forth in the
Underwriting Agreement, the Partnership Agreement, the Registration Statement,
the Disclosure Package and the Final Prospectus.
12. Due Authorization, Execution and
Delivery of Agreement. The Underwriting Agreement has been duly
authorized, executed and delivered by the EVEP Parties.
13. Enforceability of Organizational
Agreements. Each of the Organizational Agreements to which any of the
Partnership Entities is a party has been duly authorized and validly executed
and delivered by each of the Partnership Entities party thereto. Each of the
Organizational Agreements constitutes a valid and legally binding agreement of
the Partnership Entities party thereto, enforceable against each of them in
accordance with its respective terms, subject to (i) applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other similar
laws relating to or affecting creditors’ rights generally and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and (ii) public policy and other
applicable laws relating to fiduciary duties and indemnification and an implied
covenant of good faith and fair dealing.
14. No Conflicts. None of
the offering, issuance and sale by the Partnership of the Units to be sold by it
pursuant to the Underwriting Agreement, the execution, delivery and performance
of the Underwriting Agreement by the EVEP Parties or the consummation by the
EVEP Parties of the transactions contemplated hereby or thereby (A) constitutes
or will constitute a violation of the Organizational Documents of the EVEP
Parties, (B) constitutes or will constitute a breach or violation of, or a
default (or an event which, with notice or lapse of time or both, would
constitute such a default) under, any agreement filed or incorporated by
reference as an exhibit to the Partnership’s annual report on Form 10-K for the
year ended December 31, 2008, the quarterly report on Form 10-Q for the period
ended March 31, 2009, the quarterly report on Form 10-Q for the period ended
June 30, 2009, the quarterly report on Form 10-Q for the period ended
September 30, 2009, or to any applicable current reports of the Partnership on
Form 8-K filed with the Commission since September 30, 2009,
(C) violates or will violate the Delaware LP Act, the Delaware LLC Act, the
DGCL or federal law, or (D) to our knowledge, results or will result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of any of the Partnership Entities, which conflicts, breaches,
violations, defaults or liens, in the case of clauses (B), (C) or (D) would,
individually or in the aggregate, have a Material Adverse Effect.
15. No Consents. No permit,
consent, approval, authorization, order, registration, filing or qualification
(“consent”) of, under
or with any federal, Delaware or Texas court, governmental agency or body having
jurisdiction over any of the Partnership Entities is required in connection with
the offering, issuance and sale by the Partnership of the Units, the execution,
delivery and performance of the Underwriting Agreement by the EVEP Parties or
the consummation by the Partnership Entities of the transactions contemplated by
the Underwriting Agreement (the “Transactions”),
except (i) for such consents required under the 1933 Act, the 1933 Act Rules and
Regulations, the 1934 Act or the 1934 Act Rules and Regulations, and state
securities or “Blue Sky” laws and applicable rules and regulations under such
laws, as to which we express no opinion, (ii) for such consents that have
been obtained or made, (iii) for such consents that (A) are of a
routine or administrative nature, (B) are not customarily obtained or made
prior to the consummation of transactions such as those contemplated by the
Underwriting Agreement and (C) are expected in the reasonable judgment of
the General Partner to be obtained or made in the ordinary course of business
subsequent to the consummation of the Transactions (other than those
transactions contemplated by the Credit Facility), (iv) for such consents
which, if not obtained or made, would not, individually or in the aggregate,
have a Material Adverse Effect, (v) as disclosed in the Final Prospectus
and the Disclosure Package or (vi) approval of the underwriting terms by the
FINRA.
16. Accuracy of Statements. The
statements set forth in the Registration Statement, the Disclosure Package and
the Final Prospectus under the captions “Description of the Common Units,” “How
We Will Make Cash Distributions,” “The Partnership Agreement” and “Investment in
Us by Employee Benefit Plans,” insofar as they describe any agreement, statute
or regulation or refer to statements of law or legal conclusions, are accurate
and complete in all material respects; and the Common Units and the Incentive
Distribution Rights conform in all material respects to the descriptions thereof
contained in the Registration Statement, the Disclosure Package and the Final
Prospectus.
17. Tax Opinion. Our opinion
that is filed as Exhibit 8.1 to the Form 8-K is confirmed, and the
Underwriters may rely upon such opinion as if it were addressed to
them.
18. Effectiveness of Registration
Statement. The Registration Statement was declared effective under the
1933 Act on December 19, 2007; 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 by the Commission; and any
required filing of the Final Prospectus pursuant to Rule 424(b) has been made in
the manner and within the time period required by such Rule.
19. Compliance as to
Form. The Registration Statement, on the latest Effective Date
and on the applicable Delivery Date, and the Final Prospectus, when filed with
the Commission pursuant to Rule 424(b) and on the applicable Delivery Date
(except for the financial statements and the notes and the schedules thereto,
and the other financial and accounting data included or incorporated by
reference in the Registration Statement or the Final Prospectus, as to which we
express no opinion) comply as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Rules and
Regulations.
20. Investment Company Act of 1940, as
amended. None of the Partnership Entities is now, and after
the offering, issuance and sale of the Units to be sold by the Partnership
pursuant to the Underwriting Agreement and the application of the net proceeds
from such sale as described in the Final Prospectus under the caption “Use of
Proceeds,” none of the Partnership Entities will be an “investment company” as
such term is defined in the Investment Company Act of 1940, as
amended.
21. Legal Proceedings or Contracts to be
Described or Filed. To our knowledge, (i) there are no legal or
governmental proceedings pending or threatened against any of the Partnership
Entities or to which any of the Partnership Entities is a party or to which any
of their respective properties is subject that are required to be described in
the Disclosure Package and the Final Prospectus but are not so described as
required and (ii) there are no agreements, contracts, indentures, leases or
other instruments that are required to be described in the Disclosure Package or
the Final Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required by the 1933 Act or the 1933 Act
Rules and Regulations.
In
addition, we have participated in conferences with officers and other
representatives of the Partnership Entities, the independent registered public
accounting firm of the Partnership and counsel and representatives of the
Underwriters, at which the contents of the Registration Statement, the
Disclosure Package and the Final Prospectus and related matters were discussed,
and although we have not independently verified, are not passing upon, and are
not assuming any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement, the Disclosure Package
and the Final Prospectus (except to the extent specified in the foregoing
opinion), based on the foregoing, no facts have come to our attention that lead
us to believe that:
(A) the
Registration Statement, as of its latest Effective Date, contained any untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein not misleading;
(B) the
Disclosure Package, as of the Execution Time, contained any untrue statement of
a material fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; or
(C) the
Final Prospectus, as of its date and as of the applicable Delivery Date,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
it being
understood that we express no statement or belief in this letter with respect to
(i) the financial statements and related schedules, including the notes and
schedules thereto and the auditors’ report thereon, or any other financial and
accounting information included in, or excluded from, the Registration
Statement, the Preliminary Prospectus, the Final Prospectus or the Disclosure
Package or (ii) representations and warranties included in the exhibits to the
Registration Statement.
This
opinion (i) has been furnished to you at your request, and we consider it to be
a confidential communication that may not be furnished, reproduced, distributed,
or disclosed to anyone without our prior written consent, (ii) is rendered
solely for your information and assistance in connection with the Transactions,
and may not be relied upon by any other person or for any other purpose without
our prior written consent, (iii) is rendered as of the date hereof, and we
undertake no, and hereby disclaim any kind of, obligation to advise you of any
changes for any new developments that might affect any matters or opinions set
forth herein and (iv) is limited to the matters stated herein, and no opinions
may be inferred or implied beyond the matters expressly stated
herein.
Yours
very truly,
Haynes
and Boone, LLP