UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported)
October 24, 2007 (October 18, 2007)
TARGA RESOURCES PARTNERS LP
(Exact name of registrant as specified in its charter)
|
|
|
|
|
Delaware
(State or other jurisdiction
of incorporation or organization)
|
|
001-33303
(Commission
File Number)
|
|
65-1295427
(IRS Employer
Identification No.)
|
1000 Louisiana, Suite 4300
Houston, TX 77002
(Address of principal executive office)
(713) 584-1000
(Registrants telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
o
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item 1.01
Entry Into a Material Definitive Agreement.
Underwriting Agreement
On October 18, 2007, Targa Resources Partners LP (the Partnership) entered into an
Underwriting Agreement (the Underwriting Agreement) with Targa Resources GP LLC (GP LLC), Targa
Resources Operating LP (Operating LP), Targa Resources Operating GP LLC (Operating GP LLC) and
the underwriters named therein (the Underwriters) providing for the offer and sale in a firm
commitment underwritten offering of 13,500,000 common units representing limited partner interests
in the Partnership (Common Units) at a price of $26.87 per Common Unit ($25.796 per Common Unit,
net of underwriting discounts) (the Offering). Pursuant to the Underwriting Agreement, the
Partnership granted the Underwriters a 30-day option to purchase up to an additional 2,025,000
Common Units to cover over-allotments, if any, on the same terms as those Common Units sold by the
Partnership.
In the Underwriting Agreement, the Partnership agreed to indemnify the Underwriters against
certain liabilities, including liabilities under the Securities Act of 1933, as amended, or to
contribute to payments the Underwriters may be required to make because of any of those
liabilities. A copy of the Underwriting Agreement is filed as Exhibit 1.1 to this Form 8-K and is
incorporated herein by reference.
The Underwriters have performed from time to time and are performing investment banking and
advisory services for Targa Resources, Inc. (Targa) and for the Partnership for which they have
received and will receive customary fees and expenses. Affiliates of Merrill Lynch, Pierce, Fenner
& Smith Incorporated own an approximate 6.5% fully diluted, indirect ownership interest in Targa.
In addition, affiliates of Citigroup Global Markets Inc., Lehman Brothers Inc., Goldman, Sachs &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, UBS Securities LLC, Wachovia Capital
Markets, LLC, Credit Suisse Securities (USA) LLC and RBC Capital Markets Corporation are lenders
under the Partnerships credit facility and affiliates of certain of the Underwriters, including
Lehman Brothers Inc., Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Wachovia Capital Markets, LLC, Credit Suisse Securities (USA) LLC and Deutche Bank Securities Inc.,
are lenders under Targas credit facility. We expect that a portion of Targas credit facility will
be repaid using the net proceeds from this offering that are paid to Targa. In addition, we expect
that a portion of the Partnerships credit facility will be repaid using the net proceeds from any
exercise by the Underwriters of their option to purchase additional common units. Affiliates of the
Underwriters are lenders under the Targa Resources Investments Inc. credit facility.
The Partnership has entered into swap transactions with affiliates of Goldman, Sachs, & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Wachovia Capital Markets, LLC and Credit Suisse
Securities (USA) LLC. The Partnership has agreed to pay these counterparties a fee in an amount it
believes to be customary in connection with these transactions. In addition, Lehman Brothers Inc.
and its affiliates beneficially own an aggregate of approximately 1.8 million of the Partnerships
common units.
In addition, the underwriters or their affiliates may, from time to time, engage in other
transactions with and perform other services for Targa or the Partnership in the ordinary course of
their business.
The transactions contemplated by the Underwriting Agreement were consummated on October 24,
2007.
Credit Agreement
The description of the Partnerships Credit Agreement contained in the Partnerships Form 8-K
filed on February 16, 2007 is incorporated herein by reference and the Credit Agreement is filed as
Exhibit 10.1 to this Form 8-K and is incorporated herein by reference.
On October 24, 2007, the Partnership entered into a Commitment Increase Supplement (the
Supplement) to the Credit Agreement with Bank of America, N.A., as Administrative Agent,
Collateral Agent, Swing Line Lender and L/C Issuer and the lenders signatory thereto. The
Supplement increased the aggregate commitments under the Credit Agreement by $250 million to an
aggregate of $750 million. The Partnership and its subsidiaries used approximately $378.9 million
advanced under the Credit Agreement, as supplemented by the Supplement, and the net proceeds from
the Offering to fund the acquisition of the Purchased Interests (as defined below).
This description of the Supplement is qualified in its entirety by reference to the
Supplement, a copy of which is filed as Exhibit 10.2 to this Form 8-K and is incorporated in this
Item 1.01 by reference.
On October 24, 2007, the Partnership entered into the First Amendment to Credit Agreement (the
Amendment) with Bank of America, N.A., as Administrative Agent, Collateral Agent, Swing Line
Lender and L/C Issuer and each Lender party thereto. The Amendment increased by $250 million the
maximum amount of increases to the aggregate commitments that may be requested by the Partnership.
The Amendment allows the Partnership to request commitments under the Credit Agreement, as
supplemented and amended, up to $1 billion.
This description of the Amendment is qualified in its entirety by reference to the Amendment,
a copy of which is filed as Exhibit 10.3 to this Form 8-K and is incorporated in this Item 1.01 by
reference.
Contribution, Conveyance and Assumption Agreement
The Partnership previously announced that it had entered into a Purchase and Sale Agreement
(the Purchase Agreement) with Targa Resources Holdings LP (the Seller), pursuant to which the
Seller agreed to sell, assign, transfer and convey to the Partnership (i) 100% of the limited
liability company interests in Targa Resources Texas GP LLC (Targa Texas GP), a Delaware limited
liability company which holds a 1% general partner interest in Targa Texas Field Services LP
(Targa Texas LP), a Delaware limited partnership, (ii) a 99% limited partner interest in Targa
Texas LP and (iii) 100% of the limited liability company interests in Targa Louisiana Field
Services LLC (Targa Louisiana), a Delaware limited liability company (such limited liability
company interests in Targa Texas GP and Targa Louisiana and limited partner interests in Targa
Texas LP being collectively referred to as the Purchased Interests) for aggregate consideration
of $705 million, subject to certain adjustments. The description of the Purchase Agreement
contained in the Partnerships Form 8-K filed on September 21, 2007 is incorporated herein by
reference and the Purchase Agreement, a copy of which is filed as
Exhibit 2.1 to this Form 8-K, and the Amendment to Purchase and
Sale Agreement, a copy of which is filed as Exhibit 2.2 to this
Form 8-K, are incorporated
herein by reference.
In accordance with the Purchase Agreement, on October 24, 2007, the Partnership, the Seller,
Targa TX LLC, a Delaware limited liability company (Targa TX LLC), Targa TX PS LP, a Delaware
limited partnership (Targa TX PS), Targa LA LLC, a Delaware limited liability company (Targa LA
LLC), Targa LA PS LP, a Delaware limited partnership (Targa LA PS), and Targa North Texas GP
LLC, a Delaware limited liability company (TNT GP), entered into a Contribution, Conveyance and
Assumption Agreement (the Contribution Agreement) pursuant to which the Seller, Targa TX LLC,
Targa TX PS, Targa LA LLC and Targa LA PS contributed the Purchased Interests to TNT GP in exchange
for aggregate consideration of $705 million, subject to certain
adjustments. The Partnership used the net proceeds from the
Offering and borrowings under the Credit Agreement, as supplemented, to fund the aggregate
consideration for the Purchased Interests. The description of the Contribution Agreement is
qualified in its entirety by reference to the Contribution Agreement, a copy of which is filed as
Exhibit 10.4 to this Form 8-K and is incorporated herein by reference.
The board of directors of GP LLC approved the acquisition of the Purchased Interests based on
a recommendation from its conflicts committee. The conflicts committee, which is comprised entirely
of independent directors, retained independent legal and financial advisers to assist it in
evaluating and negotiating the transaction.
Amended and Restated Omnibus Agreement
On October 24, 2007, the closing date of the transactions contemplated by the Underwriting
Agreement, the Partnership entered into an amended and restated omnibus agreement (the Amended and
Restated Omnibus Agreement) with Targa, GP LLC and Targa Resources LLC, a Delaware limited
liability company. As more fully described in the Partnerships final prospectus (the Prospectus)
dated October 18, 2007 (File No. 333-146436) and filed on October 19, 2007 with the Securities and
Exchange Commission (the Commission) pursuant to Rule 424(b)(1) under the Securities Act of 1933,
as amended (the Securities Act), the Amended and Restated Omnibus Agreement governs certain
relationships between the Partnership and Targa, including:
|
i.
|
|
Targas obligation to provide certain general and administrative services
to the Partnership and its subsidiaries;
|
|
|
ii.
|
|
the Partnerships obligation to reimburse Targa and its affiliates for
the provision of these general and administrative services, subject to a cap of $5
million (relating to the Partnerships north Texas business) in the first year,
which increases in the subsequent two years based on a formula specified in the
Amended and Restated Omnibus Agreement;
|
|
|
iii.
|
|
the Partnerships obligation to reimburse Targa and its affiliates for
direct expenses incurred on behalf of the Partnership and its subsidiaries; and
|
|
|
iv.
|
|
Targas obligation to indemnify the Partnership for certain liabilities
and the Partnerships obligation to indemnify Targa for certain liabilities.
|
With
respect to the businesses acquired (the Acquired
Businesses) by a subsidiary of the Partnership upon the closing
of the acquisition of the Purchased Interests, the Partnership will
reimburse Targa for the following expenses:
|
i.
|
|
general and administrative expenses, which are not capped,
allocated to the Acquired Businesses according to Targas
allocation practice; and
|
|
|
ii.
|
|
operating and certain direct expenses, which are not capped.
|
This description of the Amended and Restated Omnibus Agreement is qualified in its entirety by
reference to the Amended and Restated Omnibus Agreement, a copy of which is filed as Exhibit 10.5
to this Form 8-K and is incorporated in this Item 1.01 by reference.
Relationships
Each of the Partnership, GP LLC, the Operating GP LLC, the Operating Partnership and the other
parties to the Credit Agreement, the Supplement, the Amendment, the Contribution Agreement and the
Amended and Restated Omnibus Agreement are direct or indirect subsidiaries of Targa. As a result,
certain individuals, including officers and directors of Targa and GP LLC, serve as officers and/or
directors of more than one of such entities. GP LLC, as the general partner of the Partnership,
holds a 2% general partner interest and incentive distribution rights in the Partnership.
The Underwriters have performed from time to time and are performing investment banking and
advisory services for Targa and for the Partnership for which they have received and will receive
customary fees and expenses. Affiliates of Merrill Lynch, Pierce, Fenner & Smith Incorporated own
an approximate 6.5% fully diluted, indirect ownership interest in Targa. In addition, affiliates of
Citigroup Global Markets Inc., Lehman Brothers Inc., Goldman, Sachs & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, UBS Securities LLC, Wachovia Capital Markets, LLC, Credit Suisse
Securities (USA) LLC and RBC Capital Markets Corporation are lenders under the Partnerships credit
facility and affiliates of certain of the Underwriters, including Lehman Brothers Inc., Goldman,
Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Wachovia Capital Markets, LLC,
Credit Suisse Securities (USA) LLC and Deutche Bank Securities Inc., are lenders under Targas
credit facility. We expect that a portion of Targas credit facility will be repaid using the net
proceeds from this offering that are paid to Targa. In addition, we expect that a portion of the
Partnerships credit facility will be repaid using the net proceeds from any exercise by the
Underwriters of their option to purchase additional common units. Affiliates of the Underwriters
are lenders under the Targa Resources Investments Inc. credit facility.
The Partnership has entered into swap transactions
with affiliates of Goldman, Sachs & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Wachovia Capital Markets, LLC and Credit Suisse
Securities (USA) LLC. The Partnership has agreed to pay these counterparties a fee in an amount it
believes to be customary in connection with these transactions. In addition, Lehman Brothers Inc.
and its affiliates beneficially own an aggregate of approximately 1.8 million of the Partnerships
common units.
In addition, the underwriters or their affiliates may, from time to time, engage in other
transactions with and perform other services for Targa or the Partnership in the ordinary course of
their business.
Item 2.01 Completion of Acquisition or Disposition of Assets.
The descriptions under the headings Contribution, Conveyance and Assumption Agreement and
Relationships under Item 1.01 are incorporated in this Item 2.01 by reference. A copy of the
Contribution Agreement is filed as Exhibit 10.5 to this Form 8-K and is incorporated in this Item
2.01 by reference.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet
Arrangement of a Registrant.
The description of the Credit Agreement, the Supplement and the Amendment described above
under Item 1.01 is incorporated in this Item 2.03 by reference. Copies of the Credit Agreement, the
Supplement and the Amendment are filed as Exhibits 10.1, 10.2 and 10.3, respectively, to this Form
8-K and are incorporated in this Item 2.03 by reference.
Item 3.02 Unregistered Sales of Equity Securities.
The description in Item 2.01 above
is incorporated herein by reference. Pursuant to the Purchase
Agreement, part of the $705 million consideration, subject to
certain adjustments, paid by the Seller on October 24, 2007 to
acquire the Purchased Interests consisted of 275,511 general partner
units issued to GP LLC sufficient to maintain its 2% general partner
interest in the Partnership. The foregoing
transactions were undertaken in reliance upon the exemption from the registration requirements of
the Securities Act afforded by Section 4(2). The Partnership believes that exemptions other than
the foregoing exemption may exist for these transactions.
Item 7.01 Regulation FD Disclosure.
On October 24,
2007, the Partnership announced that it had closed its public offering of
13,500,000 Common Units. A copy of the press release is furnished as Exhibit 99.1 hereto and is
incorporated herein by reference.
The information furnished
pursuant to this Item 7.01, including Exhibit 99.1, shall not be
deemed to be filed for the purposes of Section 18 of the Securities Exchange Act of 1934, as
amended, and will not be incorporated by reference into any filing under the Securities Act of
1933, as amended, unless specifically identified therein as being incorporated therein by
reference.
Item 9.01 Financial Statements and Exhibits.
(a) Financial statements of businesses acquired.
|
|
In accordance with Item 9.01(a)(4) of Form 8-K, the
required financial information with respect to the acquisition of the
Purchased Interests will be provided within 71 calendar days of
October 24, 2007.
|
(b) Pro forma financial information.
|
|
In accordance with Item 9.01(b)(2) of Form 8-K, the
required pro forma financial information with respect to the acquisition of the
Purchased Interests will be provided within 71 calendar days of
October 24, 2007.
|
(c) Not applicable.
(d) Exhibits
|
|
|
Exhibit
|
|
|
Number
|
|
Description
|
Exhibit 1.1
|
|
Underwriting Agreement, dated October 18, 2007, by and among the
Partnership, GP LLC, Operating GP LLC, Operating LP and the
Underwriters named therein.
|
|
|
|
Exhibit 2.1*
|
|
Purchase and Sale Agreement, dated as of September 18, 2007, by
and between Targa Resources Partners LP and Targa Resources
Holdings LP (incorporated by reference to Exhibit 2.1 to Targa
Resources Partners LPs Current Report on Form 8-K filed
September 21, 2007 (File No. 001-33303)).
|
|
|
|
Exhibit 2.2
|
|
Amendment to Purchase and Sale
Agreement, dated October 1, 2007.
|
|
|
|
Exhibit 10.1
|
|
Credit Agreement, dated February 14, 2007, by and among Targa
Resources Partners LP, as Borrower, Bank of America, N.A., as
Administrative Agent, Wachovia Bank, N.A., as Syndication Agent,
Merrill Lynch Capital, Royal Bank of Canada and The Royal Bank
of Scotland PLC, as Co-Documentation Agents, and the other
lenders party thereto (incorporated by reference to Exhibit 10.1
to Targa Resources Partners LPs Current Report on Form 8-K
filed February 16, 2007 (File No. 001-33303)).
|
|
|
|
Exhibit 10.2
|
|
Commitment Increase Supplement, dated October 24, 2007, by and
among Targa Resources Partners LP, Bank of America, N.A. and the
parties signatory thereto as the Increasing Lenders and the New
Lenders.
|
|
|
|
Exhibit 10.3
|
|
First Amendment to Credit Agreement, dated October 24, 2007, by
and among Targa Resources Partners LP, Bank of America, N.A. and
each Lender party thereto.
|
|
|
|
Exhibit 10.4
|
|
Contribution, Conveyance and Assumption Agreement, dated
October 24, 2007, by and among Targa Resources Partners LP, Targa
Resources Holdings LP, Targa TX LLC, Targa TX PS LP, Targa LA
LLC, Targa LA PS LP and Targa North Texas GP LLC.
|
|
|
|
Exhibit 10.5
|
|
Amended and Restated Omnibus Agreement, dated October 24, 2007,
by and among the Partnership, Targa, Targa Resources LLC and GP
LLC.
|
|
|
|
Exhibit 99.1
|
|
Targa Resources Partners LP Press Release dated October 24, 2007.
|
* Pursuant to Item 601(b)(2) of Regulation S-K, the registrant agrees to furnish supplementally a
copy of any omitted exhibit or schedule to the SEC upon request.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
|
|
|
|
|
|
TARGA RESOURCES PARTNERS LP
|
|
|
By:
|
Targa Resources GP LLC
|
|
|
|
its general partner
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dated: October 24, 2007
|
By:
|
/s/ Jeffrey J. McParland
|
|
|
|
Jeffrey J. McParland
|
|
|
|
Executive Vice President and Chief Financial Officer
|
|
|
EXHIBIT INDEX
|
|
|
Exhibit
|
|
|
Number
|
|
Description
|
Exhibit 1.1
|
|
Underwriting Agreement, dated October 18, 2007, by and among the
Partnership, GP LLC, Operating GP LLC, Operating LP and the
Underwriters named therein.
|
|
|
|
Exhibit 2.1*
|
|
Purchase and Sale Agreement, dated as of September 18, 2007, by
and between Targa Resources Partners LP and Targa Resources
Holdings LP (incorporated by reference to Exhibit 2.1 to Targa
Resources Partners LPs Current Report on Form 8-K filed
September 21, 2007 (File No. 001-33303)).
|
|
|
|
Exhibit 2.2
|
|
Amendment to Purchase and Sale
Agreement, dated October 1, 2007.
|
|
|
|
Exhibit 10.1
|
|
Credit Agreement, dated February 14, 2007, by and among Targa
Resources Partners LP, as Borrower, Bank of America, N.A., as
Administrative Agent, Wachovia Bank, N.A., as Syndication Agent,
Merrill Lynch Capital, Royal Bank of Canada and The Royal Bank
of Scotland PLC, as Co-Documentation Agents, and the other
lenders party thereto (incorporated by reference to Exhibit 10.1
to Targa Resources Partners LPs Current Report on Form 8-K
filed February 16, 2007 (File No. 001-33303)).
|
|
|
|
Exhibit 10.2
|
|
Commitment Increase Supplement, dated October 24, 2007, by and
among Targa Resources Partners LP, Bank of America, N.A. and the
parties signatory thereto as the Increasing Lenders and the New
Lenders.
|
|
|
|
Exhibit 10.3
|
|
First Amendment to Credit Agreement, dated October 24, 2007, by
and among Targa Resources Partners LP, Bank of America, N.A. and
each Lender party thereto.
|
|
|
|
Exhibit 10.4
|
|
Contribution, Conveyance and Assumption Agreement, dated October
24, 2007, by and among Targa Resources Partners LP, Targa
Resources Holdings LP, Targa TX LLC, Targa TX PS LP, Targa LA
LLC, Targa LA PS LP and Targa North Texas GP LLC.
|
|
|
|
Exhibit 10.5
|
|
Amended and Restated Omnibus Agreement, dated October 24, 2007,
by and among the Partnership, Targa, Targa Resources LLC and GP
LLC.
|
|
|
|
Exhibit 99.1
|
|
Targa Resources Partners LP Press Release dated October 24, 2007.
|
* Pursuant to Item 601(b)(2) of Regulation S-K, the registrant agrees to furnish supplementally a
copy of any omitted exhibit or schedule to the SEC upon request.
EXHIBIT 1.1
TARGA RESOURCES PARTNERS LP
13,500,000 Common Units
Representing Limited Partner Interests
UNDERWRITING AGREEMENT
New York, New York
October 18, 2007
Citigroup Global Markets Inc.
Lehman Brothers Inc.
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
As Representatives of the several Underwriters,
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Targa Resources Partners LP, a limited partnership organized under the laws of Delaware (the
Partnership
), proposes to sell to the several underwriters named in
Schedule I
hereto (the
Underwriters
), for whom you (the
Representatives
) are acting as
representatives, 13,500,000 Common Units (the
Firm Units
), each representing a limited
partner interest in the Partnership (the
Common Units
). The Partnership also proposes to
grant to the Underwriters an option to purchase up to 2,025,000 additional Common Units to cover
over-allotments, if any (the
Option Units
; the Option Units, together with the Firm
Units, being hereinafter called the
Units
). Certain terms used herein are defined in
Section 21 hereof.
This is to confirm the agreement among the Partnership, Targa Resources GP LLC, a Delaware
limited liability company (the General Partner), Targa Resources Operating GP LLC, a Delaware
limited liability company (the
Operating GP
), Targa Resources Operating LP, a Delaware
limited partnership (the
Operating Partnership
and collectively with the Partnership, the
General Partner and the Operating GP, the
Targa Parties
), and the Underwriters concerning
the purchase of the Units from the Partnership by the Underwriters. The Targa Parties together with
Targa North Texas GP LLC, a Delaware limited liability company (
North Texas GP
), Targa
North Texas LP, a Delaware limited partnership (
North Texas LP
), Targa Intrastate
Pipeline LLC, a Delaware limited liability company (
Targa TX Intrastate
), Targa Resources
Texas GP LLC, a Delaware limited liability company (
Targa Texas GP
), Targa Texas Field
Services LP, a Delaware limited partnership (
Targa Texas LP
), Targa Louisiana Field
Services LLC, a Delaware limited liability company (
Targa Louisiana
), and Targa Louisiana
Intrastate LLC, a Delaware limited liability company (
Targa LA Intrastate
) are
collectively referred to herein as the
Partnership Entities
.
1.
Representations and Warranties
. Each of the Targa Parties, jointly and severally, represents and warrants to, and agrees with,
each Underwriter as set forth below in this Section 1.
(a)
Registration
. The Partnership has prepared and filed with the Commission a registration
statement (file number 333-146436) on Form S-1, including a related preliminary prospectus,
for registration under the Act of the offering and sale of the Units. Such Registration
Statement, including any amendments thereto filed prior to the Execution Time, has become
effective. The Partnership may have filed one or more amendments thereto, including a
related preliminary prospectus, each of which has previously been furnished to you. The
Partnership will file with the Commission a final prospectus in accordance with Rule 424(b).
As filed, such final prospectus shall contain all information required by the Act and the
rules thereunder and, except to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to you 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 latest
Preliminary Prospectus) as the Partnership has advised you, prior to the Execution Time,
will be included or made therein.
(b)
No Material Misstatements or Omissions in Registration Statement or Prospectus
. Each
Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to
the requirements of the Act and the rules and regulations of the Commission thereunder, and
did not contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. On the Effective Date, the
Registration Statement did, and when the Prospectus is first filed in accordance with Rule
424(b) and on the Closing Date and on any date on which Option Units are purchased, if such
date is not the Closing Date (a
settlement date
), the Prospectus (and any
supplement thereto) will, comply in all material respects with the applicable requirements
of the Act and the rules thereunder; on the Effective Date and at the Execution Time, the
Registration Statement did not and will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading; and on the date of any filing pursuant to Rule
424(b) and on the Closing Date and any settlement date, the Prospectus (together with any
supplement thereto) will not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; each of the statements made by the
Partnership in the Registration Statement and in any Preliminary Prospectus provided to the
Underwriters for use in connection with the public offering of the Units, and to be made in
the Prospectus and any further amendments or supplements to the Registration Statement or
Prospectus within the coverage of Rule 175(b) of the rules and regulations under the Act,
including (but not limited to) any statements with respect to projected results of
operations, estimated available cash and future cash distributions of the Partnership, and
any statements made in support thereof or related thereto under the heading Cash Distribution Policy or the
anticipated ratio of taxable income to distributions, was made
2
or will be made with a
reasonable basis and in good faith;
provided
,
however
, that the Partnership
makes no representations or warranties as to the information contained in or omitted from
the Registration Statement, the Preliminary Prospectus or the Prospectus (or any supplement
thereto) in reliance upon and in conformity with information furnished in writing to the
Partnership by or on behalf of any Underwriter through the Representatives specifically for
inclusion in the Registration Statement, the Preliminary Prospectus or the Prospectus (or
any supplement thereto), it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in Section 8
hereof.
(c)
No Material Misstatements or Omissions in Disclosure Package
. (i) The Disclosure Package
and the price to the public, the number of Firm Units and the number of Option Units to be
included on the cover page of the Prospectus, when taken together as a whole, and (ii) each
electronic road show when taken together as a whole with the Disclosure Package, and the
price to the public, the number of Firm Units and the number of Option Units to be included
on the cover page of the Prospectus, did not, as of the Applicable 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. The preceding sentence does not apply to statements in or omissions from the
Disclosure Package based upon and in conformity with written information furnished to the
Partnership by any Underwriter through the Representatives specifically for use therein, it
being understood and agreed that the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in Section 8 hereof.
(d)
Eligible Issuer
. (i) At the time of filing 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.
(e)
Issuer Free Writing Prospectuses
. Each Issuer Free Writing Prospectus does not include any
information that conflicts with the information contained in the Registration Statement or
the Prospectus. 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 any Underwriter through the Representatives specifically for
use therein, it being understood and agreed that the only such information furnished by or
on behalf of any Underwriter consists of the information described as such in Section 8
hereof.
(f)
Formation and 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 applicable, in good standing under the laws of the State of Delaware with
full power and authority to enter into and perform its obligations under the Transaction
Agreements (as defined below) to which it is a party, to own or lease and to operate its
properties currently owned or leased or to be owned or leased on
3
the Closing Date and each
settlement date and conduct its business as currently conducted or as to be conducted on the
Closing Date and each settlement date, in each case as described in the Disclosure Package
and the Prospectus. Each of the Partnership Entities is, or at the Closing Date and each
settlement date will be, duly qualified to do business as a foreign limited partnership,
limited liability company or corporation, as applicable and is in good standing under the
laws of each jurisdiction which requires, or at the Closing Date and each settlement date
will require, such qualification, except where the failure to be so qualified or registered
would not have a material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties, taken as a whole, whether or not arising from
transactions in the ordinary course of business of the Partnership Entities (a
Material
Adverse Effect
), or subject the limited partners of the Partnership to any material
liability or disability.
(g)
Power and Authority to Act as a General Partner
. The General Partner has, and on the
Closing Date and each settlement date will have, full power and authority to act as general
partner of the Partnership in all material respects as described in the Disclosure Package
and Prospectus. The Operating GP has, and as of the Closing Date and each settlement date
will have, full power and authority to act as general partner of the Operating Partnership
in all material respects as described in the Disclosure Package and Prospectus.
(h)
Ownership of the General Partner
. Targa GP Inc., a Delaware corporation (
TGPI
),
owns, and on the Closing Date and each settlement date TGPI will own, all of the issued and
outstanding membership interests of the General Partner; such membership interests have been
duly and validly authorized and issued in accordance with the limited liability company
agreement of the General Partner (as the same may be amended or restated at or prior to the
Closing Date, the
GP LLC Agreement
), and are fully paid (to the extent required by
the GP LLC Agreement) and nonassessable (except as such nonassessability may be affected by
Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act (the
Delaware
LLC Act
)); and TGPI owns such membership interests free and clear of all liens,
encumbrances, security interests, charges or other claims (
Liens
) (except
restrictions on transferability and other Liens as described in the Disclosure Package and
the Prospectus and arising under the Credit Agreement dated October 31, 2005, by and between
Targa Resources, Inc. (
Targa
) and the lenders named therein (the
Targa Credit
Agreement
)).
(i)
Ownership of the General Partner Interest in the Partnership
. The General Partner is, and
on the Closing Date and each settlement date the General Partner will be, the sole general
partner of the Partnership with a 2.0% general partner interest in the Partnership; such
general partner interest has been duly and validly authorized and issued in accordance with
the partnership agreement of the Partnership (as the same may be amended or restated at or
prior to the Closing Date, the
Partnership Agreement
); and the General Partner
owns such general partner interest free and clear of all Liens (except restrictions on
transferability and other Liens as described in the Disclosure Package and the Prospectus or
arising under that certain Credit Agreement, dated February 14, 2007, with Bank of America,
N.A., as administrative agent, and other lenders named therein (as the same will be
supplemented, amended or restated at or prior to the Closing Date and
4
together with the agreements, exhibits, and attachments contemplated or included therein, the
Credit
Agreement
) or the Targa Credit Agreement.
(j)
Capitalization; Ownership of Incentive Distribution Rights
. As of the date hereof (and
prior to the issuance of the Firm Units as contemplated by this Agreement), the issued and
outstanding partnership interests of the Partnership consists of 19,336,000 Common Units,
11,528,231 Subordinated Units, 629,555 General Partner Units and the Incentive Distribution
Rights; the General Partner owns 100% of the Incentive Distribution Rights; all of such
Common Units, Subordinated Units and Incentive Distribution Rights and the limited partner
interests represented thereby have been duly and validly authorized and 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 Limited Partnership Act (the Delaware LP Act));
the General Partner owns the Incentive Distribution Rights free and clear of all Liens
(except restrictions on transferability and other Liens as described in the Disclosure
Package and the Prospectus or arising under the Credit Agreement or the Targa Credit
Agreement).
(k)
Valid Issuance of the Units
. The Units to be purchased by the Underwriters from the
Partnership have been duly authorized for issuance and sale to the Underwriters pursuant to
this Agreement and, when issued and delivered by the Partnership pursuant to this Agreement
against payment of the consideration set forth herein, will be validly issued and 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).
(l)
Ownership of Operating GP
. The Partnership owns, and on the Closing Date and each
settlement date the Partnership will own, all of the issued and outstanding membership
interests of the Operating GP; such membership interests have been duly and validly
authorized and issued in accordance with the limited liability company agreement of the Operating GP (as the same may
be amended or restated at or prior to the Closing Date, the
Operating GP LLC
Agreement
) and are fully paid (to the extent required by the Operating GP LLC
Agreement) and nonassessable (except as such nonassessability may be affected by Sections
18-607 and 18-804 of the Delaware LLC Act); and the Partnership owns such membership
interests free and clear of all Liens, other than those arising under the Credit Agreement.
(m)
Ownership of the General Partner Interest in the Operating Partnership
. The Operating GP
is, and on the Closing Date and each settlement date the Operating GP will be, the sole
general partner of the Operating Partnership with a 0.001% general partner interest in the
Operating Partnership; such general partner interest has been duly authorized and validly
issued in accordance with the Operating Partnerships partnership agreement (the
OLP
Partnership Agreement
); and the Operating GP owns such general partner interest free
and clear of all Liens, other than those arising under the Credit Agreement.
5
(n)
Ownership of the Limited Partner Interest in the Operating Partnership
. The Partnership
owns, and on the Closing Date and each settlement date the Partnership will own, a 99.999%
limited partner interest in the Operating Partnership; such limited partner interest has
been duly authorized and validly issued in accordance with the OLP Partnership Agreement and
is fully paid (to the extent required under the OLP 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); and the Partnership owns such limited partner interest free
and clear of all Liens, other than those arising under the Credit Agreement.
(o)
Ownership of North Texas GP
. The Operating Partnership owns, and on the Closing Date and
each settlement date the Operating Partnership will own, all of the issued and outstanding
membership interests of North Texas GP; such membership interests have been duly and validly
authorized and issued in accordance with the limited liability company agreement of North
Texas GP (as the same may be amended or restated at or prior to the Closing Date, the
North Texas GP LLC Agreement
) and are fully paid (to the extent required by the
North Texas GP LLC Agreement) and nonassessable (except as such nonassessability may be
affected by Sections 18-607 and 18-804 of the Delaware LLC Act); and the Operating
Partnership owns such membership interests free and clear of all Liens, other than those
arising under the Credit Agreement.
(p)
Ownership of the General Partner Interest in North Texas LP
. North Texas GP is, and on the
Closing Date and each settlement date North Texas GP will be, the sole general partner of
North Texas LP with a 50% general partner interest in North Texas LP; such general partner
interest has been duly authorized and validly issued in accordance with the partnership
agreement of North Texas LP (as the same may be amended or restated at or prior to the Closing Date, the
North Texas LP Partnership
Agreement
); and North Texas GP owns such general partner interest free and clear of all
Liens, other than those arising under the Credit Agreement.
(q)
Ownership of the Limited Partner Interest in North Texas LP
. The Operating Partnership
owns, and on the Closing Date and each settlement date the Operating Partnership will own, a
50% limited partner interest in North Texas LP; such limited partner interest has been duly
authorized and validly issued in accordance with the North Texas LP Partnership Agreement
and is fully paid (to the extent required under the North Texas LP 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); and the Operating Partnership owns such
limited partner interest free and clear of all Liens, other than those arising under the
Credit Agreement.
(r)
Ownership of Targa TX Intrastate
. North Texas LP owns, and on the Closing Date and each
settlement date North Texas LP will own, all of the issued and outstanding membership
interests of Targa TX Intrastate; such membership interests have been duly and validly
authorized and issued in accordance with the limited liability company agreement of Targa TX
Intrastate (as the same may be amended or restated at or prior to the Closing Date, the
Targa TX Intrastate LLC Agreement
) and are fully paid (to the extent required by
the Targa TX Intrastate LLC Agreement) and
6
nonassessable (except as such nonassessability
may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act); and North Texas LP
owns such membership interests free and clear of all Liens, other than those arising under
the Credit Agreement.
(s)
Ownership of Targa Texas GP
. On the Closing Date and each settlement date, after giving
effect to the Transactions (as defined below), North Texas GP will own all of the issued and
outstanding membership interests of Targa Texas GP; such membership interests will be duly
and validly authorized and issued in accordance with the limited liability company agreement
of Targa Texas GP (as the same may be amended or restated at or prior to the Closing Date,
the
Targa Texas GP LLC Agreement
) and will be fully paid (to the extent required
by the Targa Texas GP LLC Agreement) and nonassessable (except as such nonassessability may
be affected by Sections 18-607 and 18-804 of the Delaware LLC Act); and North Texas GP will
own such membership interests free and clear of all Liens, other than Liens arising under
the Credit Agreement or Liens arising under the Targa Credit Agreement which will be
released on the Closing Date.
(t)
Ownership of the General Partner Interest in Targa Texas LP
. Targa Texas GP is, and on the
Closing Date and each settlement date Targa Texas GP will be, the sole general partner of
Targa Texas LP with a 1% general partner interest in Targa Texas LP; such general partner
interest has been duly authorized and validly issued in accordance with the partnership
agreement of Targa Texas LP (as the same may be amended or restated at or prior to the Closing Date, the
Targa Texas LP Partnership
Agreement
); and Targa Texas GP owns such general partner interest free and clear of all
Liens, other than Liens arising under the Credit Agreement or Liens arising under the Targa
Credit Agreement which will be released on the Closing Date.
(u)
Ownership of the Limited Partner Interest in Targa Texas LP
. On the Closing Date and each
settlement date, after giving effect to the Transactions, North Texas GP will own a 99%
limited partner interest in Targa Texas LP; such limited partner interest will be duly
authorized and validly issued in accordance with the Targa Texas LP Partnership Agreement
and will be fully paid (to the extent required under the Targa Texas LP 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); and North Texas GP will own
such limited partner interest free and clear of all Liens, other than Liens arising under
the Credit Agreement or Liens arising under the Targa Credit Agreement which will be
released on the Closing Date.
(v)
Ownership of Targa Louisiana
. On the Closing Date and each settlement date, after giving
effect to the Transactions, North Texas GP will own all of the issued and outstanding
membership interests of Targa Louisiana; such membership interests will be duly and validly
authorized and issued in accordance with the limited liability company agreement of Targa
Louisiana (as the same may be amended or restated at or prior to the Closing Date, the
Targa Louisiana LLC Agreement
) and will be fully paid (to the extent required by
the Targa Louisiana LLC Agreement) and nonassessable (except as such nonassessability may be
affected by Sections 18-607 and 18-804 of the Delaware LLC Act); and North Texas GP will own
such membership interests free and
7
clear of all Liens, other than Liens arising under the
Credit Agreement or Liens arising under the Targa Credit Agreement which will be released on
the Closing Date.
(w)
Ownership of Targa LA Intrastate
. Targa Louisiana owns, and on the Closing Date and each
settlement date, Targa Louisiana will own, all of the issued and outstanding membership
interests of Targa LA Intrastate; such membership interests have been duly and validly
authorized and issued in accordance with the limited liability company agreement of Targa LA
Intrastate (as the same may be amended or restated at or prior to the Closing Date, the
Targa LA Intrastate LLC Agreement
) and are fully paid (to the extent required by
the Targa LA Intrastate LLC Agreement) and nonassessable (except as such nonassessability
may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act); and Targa Louisiana
owns such membership interests free and clear of all Liens, other than Liens arising under
the Credit Agreement or Liens arising under the Targa Credit Agreement which will be
released on the Closing Date.
(x)
No Other Subsidiaries
. Other than its ownership of its 2.0% general partner interest in the Partnership and the
Incentive Distribution Rights, the General Partner will not, on the Closing Date and each
settlement date, 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 (i) the Partnerships ownership of a 99.999% limited partner interest in
the Operating Partnership and a 100% membership interest in the Operating GP, (ii) the
Operating Partnerships ownership of a 50% limited partner interest in North Texas LP and a
100% membership interest in North Texas GP, (iii) North Texas GPs ownership of a 50%
general partner interest in North Texas LP, a 100% membership interest in Targa Texas GP, a
99% limited partner interest in Targa Texas LP and a 100% membership interest in Targa
Louisiana, (iv) North Texas LPs 100% membership interest in Targa TX Intrastate, (v) Targa
Texas GPs ownership of a 1% general partner interest in Targa Texas LP, and (vi) Targa
Louisianas ownership of a 100% membership interest in Targa LA Intrastate, none of the
Partnership Entities will, on the Closing Date and each settlement date, own, directly or
indirectly, any equity or long-term debt securities of any corporation, partnership, limited
liability company, joint venture, association or other entity.
(y)
No Preemptive Rights, Registration Rights or Options
. Except for preemptive rights
identified in the Disclosure Package and the Prospectus, there are no (i) preemptive rights
or other rights to subscribe for or to purchase, nor any restriction upon the voting or
transfer of, any equity securities of the Partnership Entities or (ii) outstanding options
or warrants to purchase any securities of the Partnership Entities. Except for such rights
that have been waived or as described in the Disclosure Package and the Prospectus, neither
the filing of the Registration Statement nor the offering or sale of the Units as
contemplated by this Agreement gives rise to any rights for or relating to the registration
of any Units or other securities of the Partnership.
(z)
Authority and Authorization
. Each of the Targa Parties has all requisite power and
authority to execute and deliver this Agreement and perform its respective obligations
hereunder. The Partnership has all requisite partnership power and authority to issue, sell
and deliver the Units, in accordance with and upon the terms and conditions
8
set forth in this Agreement, the Partnership Agreement, the Registration Statement, the Disclosure
Package and the Prospectus. On the Closing Date and each settlement 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, members or partners for the
authorization, issuance, sale and delivery of the Units, the execution and delivery by the
Partnership Entities of this Agreement and the Transaction Agreements (as defined below)
that are parties hereto or thereto and the transactions contemplated hereby and thereby (the
Transactions
), shall have been validly taken.
(aa)
Authorization of this Agreement
. This Agreement has been duly authorized, executed and delivered by each of the Targa
Parties.
(bb)
Enforceability of Operative Agreements
. At or before the Closing Date:
(i) the Partnership Agreement has been duly authorized, executed and
delivered by the General Partner and is a valid and legally binding
agreement of the General Partner, enforceable against the General Partner in
accordance with its terms;
(ii) the GP LLC Agreement has been duly authorized, executed and
delivered by TGPI and is a valid and legally binding agreement of TGPI,
enforceable against TGPI in accordance with its terms;
(iii) the OLP Partnership Agreement has been duly authorized, executed
and delivered by the Operating GP and the Partnership and is a valid and
legally binding agreement of the Operating GP and the Partnership,
enforceable against the Operating GP and the Partnership in accordance with
its terms;
(iv) the Operating GP LLC Agreement has been duly authorized, executed
and delivered by the Partnership and is a valid and legally binding
agreement of the Partnership, enforceable against the Partnership in
accordance with its terms;
(v) the North Texas LP Partnership Agreement has been duly authorized,
executed and delivered by North Texas GP and the Operating Partnership and
is a valid and legally binding agreement of North Texas GP and the Operating
Partnership, enforceable against North Texas GP and the Operating
Partnership in accordance with its terms;
(vi) the North Texas GP LLC Agreement has been duly authorized,
executed and delivered by the Operating Partnership and is a valid and
legally binding agreement of the Operating Partnership, enforceable against
the Operating Partnership in accordance with its terms;
(vii) the Targa TX Intrastate LLC Agreement has been duly authorized,
executed and delivered by North Texas LP and is a valid and
9
legally binding agreement of North Texas LP enforceable against North Texas LP in accordance
with its terms;
(viii) the Targa Texas GP LLC Agreement will have been duly authorized,
executed and delivered by North Texas GP and will be a valid and legally
binding agreement of North Texas GP, enforceable against North Texas GP in
accordance with its terms;
(ix) the Targa Texas LP Partnership Agreement will have been duly
authorized, executed and delivered by Targa Texas GP and North Texas GP and
will be a valid and legally binding agreement of Targa Texas GP and North
Texas GP, enforceable against Targa Texas GP and North Texas GP in
accordance with its terms;
(x) the Targa Louisiana LLC Agreement will have been duly authorized,
executed and delivered by North Texas GP and will be a valid and legally
binding agreement of North Texas GP, enforceable against North Texas GP in
accordance with its terms;
(xi) the Targa LA Intrastate LLC Agreement has been duly authorized,
executed and delivered by Targa Louisiana and is a valid and legally binding
agreement of Targa Louisiana, enforceable against Targa Louisiana in
accordance with its terms;
(xii) the Amended and Restated Omnibus Agreement by and among Targa,
the General Partner and the Partnership (the
Omnibus Agreement
)
will have been duly authorized, executed and delivered by each of the
parties thereto and will be a valid and legally binding agreement of each of
them, enforceable against each of them in accordance with its terms;
(xiii) the Credit Agreement will have been duly authorized, executed
and delivered by the Partnership and will be a valid and legally binding
agreement of the Partnership, enforceable against the Partnership, in
accordance with its terms; and
(xiv) the Purchase and Sale Agreement dated September 18, 2007 by and
between Targa Resources Holdings LP and the Partnership, as the same may be
amended or restated at or prior to the Closing Date (the
Purchase
Agreement
), whereby the Partnership will acquire certain natural gas
gathering and processing systems located in the Permian Basin of west Texas
and southwest Louisiana (the
Acquired Businesses
) has been duly
authorized, executed and delivered by Targa Resources Holdings LP and the
Partnership and is a valid and legally binding agreement of Targa Resources
Holdings LP and the Partnership, enforceable against Targa Resources
Holdings LP and the Partnership in accordance with its terms.
10
provided
that, with respect to each agreement described in this
Section 1(bb), 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);
provided
further
; that the indemnity, contribution and exoneration provisions contained in any of such
agreements may be limited by applicable laws and public policy.
The Omnibus Agreement, the Credit Agreement and the Purchase Agreement are herein
collectively referred to as the
Transaction Agreements
. The Partnership Agreement,
the GP LLC Agreement, the OLP Partnership Agreement, the Operating GP LLC Agreement, the
North Texas LP Partnership Agreement, the North Texas GP LLC Agreement, the Targa TX
Intrastate LLC Agreement, the Targa Texas GP LLC Agreement, the Targa Texas LP Partnership
Agreement, the Targa Louisiana LLC Agreement, the Targa LA Intrastate LLC Agreement and the
Transaction Agreements are herein collectively referred to as the
Operative
Agreements
.
(cc)
No Conflicts
. None of (i) the offering, issuance or sale by the Partnership of the Units,
(ii) the execution, delivery and performance of this Agreement and the Operative Agreements
by the Partnership Entities that are parties hereto or thereto, as the case may be, or (iii)
the consummation of the Transactions, (A) conflicts or will conflict with or constitutes or
will constitute a violation of the partnership agreement, limited liability company
agreement, certificate of formation or conversion, certificate or articles of incorporation,
bylaws or other constituent document (collectively, the
Organizational Documents
)
of any of the Partnership Entities, (B) conflicts or will conflict with or constitutes or
will constitute a breach or violation of, or a default (or an event that, 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, (C) 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 (D) results or will result in the creation or
imposition of any Lien upon any property or assets of any of the Partnership Entities (other
than Liens created pursuant to the Credit Agreement or the Targa Credit Agreement), 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 or materially impair
the ability of the Partnership Entities to consummate the Transactions.
(dd)
No Consents
. No permit, consent, approval, authorization, order, registration, filing or
qualification of or with any court, governmental agency or body having jurisdiction over any
of the Partnership Entities or any of their properties or assets is required in connection
with the offering, issuance or sale by the Partnership of the Units, the execution, delivery
and performance of this Agreement by the Targa Parties, the execution, delivery and
performance by the Partnership Entities that are parties
11
thereto of their respective obligations under the Operative Agreements or the consummation of the Transactions except
(i) for such permits, consents, approvals and similar authorizations required under
the Act, the Exchange Act and blue sky laws of any jurisdiction, (ii) for such consents and
approvals that have been, or prior to the Closing Date will be, obtained, (iii) for such
consents that, if not obtained, would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, and (iv) as disclosed in the Disclosure Package
and the Prospectus.
(ee)
No Defaults
. None of the Partnership Entities is in (i) violation of its Organizational
Documents, or of any statute, law, rule or regulation, or any judgment, order, injunction or
decree of any court, governmental agency or body or arbitrator having jurisdiction over any
of the Partnership Entities or any of their properties or assets or (ii) breach, default (or
an event which, with notice or lapse of time or both, would constitute such an event) or
violation in the performance of any obligation, agreement or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it or any of its properties may be bound, which in the
case of either (i) or (ii) would, if continued, have a Material Adverse Effect.
(ff)
Conformity of Units to Description
. The Units, when issued and delivered in accordance with
the terms of the Partnership Agreement and this Agreement against payment therefor as
provided therein and herein, will conform in all material respects to the description
thereof contained in the Disclosure Package and the Prospectus.
(gg)
No Labor Dispute
. No labor problem or dispute with the Targa Parties employees who are
engaged in the north Texas business and the Acquired Businesses exists or is threatened or
imminent, that could have a Material Adverse Effect, except as set forth in or contemplated
in the Disclosure Package and the Prospectus.
(hh)
Sufficiency of the Purchase Agreement
. The Purchase Agreement will be legally sufficient to
transfer or convey to the Partnership and its subsidiaries satisfactory title to, or valid
rights to use or manage all properties not already held by it that are, individually or in
the aggregate, required to enable the Partnership and its subsidiaries to conduct their
operations in all material respects as contemplated by the Disclosure Package and the
Prospectus, subject to the conditions, reservations, encumbrances and limitations described
therein or contained in the Purchase Agreement. The Partnership and its subsidiaries, upon
the closing of the Transactions, will succeed in all material respects to the business,
assets, properties, liabilities and operations described in the Purchase Agreement and
reflected by the pro forma financial statements of the Partnership.
(ii)
Financial Statements
. The consolidated historical financial statements and schedules of the Partnership and its
consolidated subsidiaries included in the Preliminary Prospectus, the Prospectus and the
Registration Statement present fairly the financial condition, results of operations and
cash flows of the Partnership as of the dates and for the periods indicated, comply as to
form with the applicable accounting requirements of the Act and have been prepared in
conformity with generally accepted accounting
12
principles applied on a consistent basis throughout the periods involved (except as otherwise noted therein). The summary historical
and pro forma financial and operating information set forth in the Preliminary Prospectus,
the Prospectus and the Registration Statement under the caption SummarySummary Historical
and Pro Forma Financial and Operating Data and the selected historical and pro forma
financial and operating information set forth under the caption Selected Historical and Pro
Forma Financial and Operating Data in the Preliminary Prospectus, the Prospectus and
Registration Statement is accurately presented in all material respects and prepared on a
basis consistent with the audited and unaudited historical financial statements and pro
forma financial statements, as applicable, from which it has been derived, unless expressly
noted otherwise. The pro forma financial statements included in the Preliminary Prospectus,
the Prospectus and the Registration Statement include assumptions that provide a reasonable
basis for presenting the significant effects directly attributable to the transactions and
events described therein, the related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma adjustments reflect the proper application of those
adjustments to the historical financial statement amounts in the pro forma financial
statements included in the Preliminary Prospectus, the Prospectus and the Registration
Statement. The pro forma financial statements included in the Preliminary Prospectus, the
Prospectus and the Registration Statement comply as to form in all material respects with
the applicable accounting requirements of Regulation S-X under the Act and the pro forma
adjustments have been properly applied to the historical amounts in the compilation of those
statements.
(jj)
Independent Public Accountants
. Each of PricewaterhouseCoopers LLP and Ernst & Young LLP,
who has certified certain financial statements of the Partnership and its consolidated
subsidiaries and delivered their report with respect to the audited consolidated financial
statements and schedules included in the Disclosure Package and the Prospectus, is an
independent registered public accounting firm with respect to the Partnership within the
meaning of the Act and the applicable published rules and regulations thereunder.
(kk)
Litigation
. Except as described in the Disclosure Package and the Prospectus, there is (i)
no action, suit or proceeding before or by any court, arbitrator or governmental agency,
body or official, domestic or foreign, now pending or, to the knowledge of any of the Targa
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 statute, rule, regulation or order that has been enacted, adopted or issued by any
governmental agency and (iii) no injunction, restraining order or order of any nature
issued by a federal or state court or foreign court of competent jurisdiction to which any
of the Partnership Entities is or may be subject, that, in the case of clauses (i), (ii) and
(iii) above, is reasonably expected to (A) individually or in the aggregate reasonably be
expected to have a Material Adverse Effect, (B) prevent or result in the suspension of the
offering and issuance of the Units, or (C) draw into question the validity of this
Agreement.
(ll)
Title to Properties
. Following consummation of the Transactions and on the Closing Date and
each settlement date, the Partnership Entities will have good and
13
marketable title to all real property and good title to all personal property described in the Disclosure Package or
the Prospectus as owned by the Partnership Entities, free and clear of all Liens except (i)
as described, and subject to limitations contained, in the Disclosure Package and the
Prospectus, (ii) that arise under the Credit Agreement or (iii) such as do not materially
interfere with the use of such properties taken as a whole as they have been used in the
past and are proposed to be used in the future as described in the Disclosure Package and
the Prospectus;
provided
that, with respect to any real property and buildings held
under lease by the Partnership Entities, 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 as described in the Disclosure Package and the Prospectus
and are proposed to be used in the future as described in the Disclosure Package and the
Prospectus.
(mm)
Rights-of-Way
. Following consummation of the Transactions and on the Closing Date and each
settlement date, the Partnership Entities will have such easements or rights-of-way from
each person (collectively,
rights-of-way
) as are necessary to conduct their
business in the manner described, and subject to the limitations contained, in the
Disclosure Package and the Prospectus, except for (i) qualifications, reservations and
encumbrances that would not have, individually or in the aggregate, a Material Adverse
Effect and (ii) such rights-of-way 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 Disclosure Package and the Prospectus, the Partnership
Entities have, or following consummation of the Transactions will have, fulfilled and
performed all their material obligations with respect to such rights-of-way and no event has
occurred that allows, or after notice or lapse of time would allow, revocation or
termination thereof or would result in any impairment of the rights of the holder of any
such rights-of-way, except for such revocations, terminations and impairments that would not
have a Material Adverse Effect; and, except as described in the Disclosure Package and the
Prospectus, none of such rights-of-way contains any restriction that is materially
burdensome to the Partnership Entities, taken as a whole.
(nn)
Transfer Taxes
. There are no transfer taxes or other similar fees or charges under Federal law or the
laws of any state, or any political subdivision thereof, required to be paid in connection
with the execution and delivery of this Agreement or the issuance by the Partnership or sale
by the Partnership of the Units.
(oo)
Tax Returns
. Each of the Partnership Entities has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested extensions thereof, except
in any case in which the failure so to file would not have a Material Adverse Effect except
as set forth in or contemplated in the Disclosure Package and the Prospectus, and has paid
all taxes required to be paid by it and any other assessment, fine or penalty levied against
it, to the extent that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in good faith or as would not
have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure
Package and the Prospectus.
14
(pp)
Insurance
. The Partnership Entities carry or are entitled to the benefits of insurance
relating to their assets and the assets to be conveyed pursuant to the Purchase Agreement,
with financially sound and reputable insurers, in such amounts and covering such risks as is
commercially reasonable, and all such insurance is in full force and effect. The
Partnership Entities have no reason to believe that they will not be able to, directly or
indirectly (i) renew their existing insurance coverage relating to their respective assets
as and when such policies expire or (ii) obtain comparable coverage relating to their
respective assets from similar institutions as may be necessary or appropriate to conduct
such business as now conducted and at a cost that would not reasonably be expected to have a
Material Adverse Effect.
(qq)
Distribution Restrictions
. No subsidiary of the Partnership is currently prohibited,
directly or indirectly, from paying any distributions to the Partnership, from making any
other distribution on such subsidiarys equity interests, from repaying to the Partnership
any loans or advances to such subsidiary from the Partnership or from transferring any of
such subsidiarys property or assets to the Partnership or any other subsidiary of the
Partnership, except as described in or contemplated by the Disclosure Package and the
Prospectus or arising under the Credit Agreement.
(rr)
Possession of Licenses and Permits
. The Partnership Entities possess such permits,
licenses, approvals, consents and other authorizations (collectively,
Governmental
Licenses
) issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct their respective businesses, except where the
failure so to possess would not, singly or in the aggregate, result in a Material Adverse
Effect; the Partnership Entities are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to
comply would not, singly or in the aggregate, result in a Material Adverse Effect; all of
the Governmental Licenses are valid and in full force and effect, except when the invalidity
of such Governmental Licenses or the failure of such Governmental Licenses to be in full
force and effect would not, singly or in the aggregate, result in a Material Adverse Effect;
and the Partnership Entities have not received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
(ss)
Environmental Laws
. Each of the Partnership Entities (i) is in compliance with applicable
federal, state and local laws and regulations relating to the prevention of pollution or
protection of the environment or imposing liability or standards of conduct concerning any
Hazardous Materials (as defined below) (
Environmental Laws
), (ii) has received all
permits required of them under applicable Environmental Laws to conduct their respective
businesses as presently conducted, (iii) is in compliance with all terms and conditions of
any such permits and (iv) does not have any liability in connection with the release into
the environment of any Hazardous Material, except where such noncompliance with
Environmental Laws, failure to receive required permits, failure to comply with the terms
and conditions of such permits or liability in connection with such releases 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
15
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 applicable Environmental Law. In the ordinary
course of business, the Partnership Entities periodically review the effect of Environmental
Laws on their business, operations and properties, in the course of which they identify and
evaluate costs and liabilities that are reasonably likely to be incurred pursuant to such
Environmental Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with Environmental Laws, or any
permit, license or approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such review, the Partnership
Entities have reasonably concluded that such associated costs and liabilities would not,
singly or in the aggregate, have a Material Adverse Effect.
(tt)
Possession of Intellectual Property
. Except for such exceptions that would not reasonably
be expected to result in a Material Adverse Effect, (i) the Partnership Entities own or
possess, or can acquire or use on reasonable terms, adequate patents, patent rights,
licenses, inventions, copyrights, know how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property (collectively,
Intellectual Property
) necessary to
carry on their respective business, and (ii) the Partnership Entities have not received any
notice and are not otherwise aware of any infringement of or conflict with asserted rights
of others with respect to any Intellectual Property or of any facts or circumstances that
would render any Intellectual Property invalid or inadequate to protect the interest of the
Partnership Entities.
(uu)
Certain Relationships and Related Transactions
. No relationship, direct or indirect, exists
between or among any Partnership Entity, on the one hand, and the directors, officers,
stockholders, affiliates, customers or suppliers of any Partnership Entity, on the other
hand, that is required to be described in the Preliminary Prospectus or the Prospectus and
is not so described.
(vv)
ERISA
. On the Closing Date and each settlement date, each Partnership Entity will be in
compliance in all material respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the regulations and published
interpretations thereunder
(
ERISA
"
); no reportable event (as defined in ERISA)
has occurred with respect to any pension plan (as defined in ERISA) for which any
Partnership Entity (after giving effect to the Transactions) would have any liability,
excluding any reportable event for which a waiver could apply; no Partnership Entity (after
giving effect to the Transactions) expects to incur liability under (i) Title IV of ERISA
with respect to termination of, or withdrawal from, any pension plan or (ii) Sections 412
or 4971 of the Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the
"
Code
"
). None of the Partnership Entities
maintain a pension plan.
16
(ww)
Description of Legal Proceedings and Contracts; Filing of Exhibits
. There are no legal or
governmental proceedings pending or, to the knowledge of the Targa Parties, threatened or
contemplated, against any of the Partnership Entities, or to which any of the Partnership
Entities is a party, or to which any of their properties or assets is subject, that are
required to be described in the Registration Statement or the Disclosure Package that are
not described as required, and there are no agreements, contracts, indentures, leases or
other instruments that are required to be described in the Registration Statement or the
Disclosure Package or to be filed as an exhibit to the Registration Statement that are not
described or filed as required by the Act or the Exchange Act or the rules and regulations
thereunder. The statements included in the Registration Statement and the Disclosure
Package, insofar as such statements summarize legal matters, agreements, documents or
proceedings discussed therein, are accurate summaries of such legal matters, agreements,
documents or proceedings.
(xx)
Sarbanes-Oxley Act of 2002
. On and after the Closing Date, the Partnership is in compliance
in all material respects with all applicable provisions of the Sarbanes-Oxley Act of 2002,
the rules and regulations promulgated in connection therewith and the rules of the Nasdaq Global Market
(the
Nasdaq
) that are effective and applicable to the Partnership.
(yy)
Investment Company
. None of the Partnership Entities is nor, after giving effect to the
offering and sale of the Units and the application of the proceeds thereof as described in
the Disclosure Package and the Prospectus, will any of the Partnership Entities be an
investment company or a company controlled by an investment company, each as defined
in the Investment Company Act of 1940, as amended (the
Investment Company Act
).
(zz)
Books and Records
. Each Partnership Entity maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with managements general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset accountability; (iii) access
to assets is permitted only in accordance with managements general or specific
authorization; and (iv) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect to any
differences. Each Partnership Entitys internal controls over financial reporting are
effective and none of the Partnership Entities is aware of any material weakness in their
internal control over financial reporting.
(aaa)
Disclosure Controls and Procedures
. (i) Each Partnership Entity has established and
maintains disclosure controls and procedures (to the extent required by and as such term is
defined in Rule 13a-15 under the Exchange Act), (ii) such disclosure controls and procedures
are designed to ensure that the information required to be disclosed by the Partnership in
the reports it files or will file or submit under the Exchange Act, as applicable, is
accumulated and communicated to management of the General Partner, including their
respective principal executive officers and principal financial officers, as appropriate, to
allow timely decisions regarding required disclosure
17
to be made and (iii) such disclosure
controls and procedures are effective in all material respects to perform the functions for
which they were established to the extent required by Rule 13a-15 of the Exchange Act.
(bbb)
Other Sales; Market Stabilization
. The Partnership has not sold or issued any Common Units
during the six-month period preceding the date of the Prospectus other than Common Units
issued pursuant to any employee benefit plans. None of the Partnership Entities has taken,
directly or indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the Partnership to facilitate
the sale or resale of the Units.
(ccc)
Loans to Directors and Officers
. The Partnership Entities have provided true, correct and complete copies of all
documentation pertaining to any extension of credit in the form of a personal loan made,
directly or indirectly, by any of the Partnership Entities to any director or executive
officer of any of the Partnership Entities or to any family member or affiliate of any
director or executive officer of any of the Partnership Entities.
(ddd)
Foreign Corrupt Practices Act
. No Partnership Entity nor, to the knowledge of the Targa
Parties, any director, officer, agent, employee or affiliate of any Partnership Entity is
aware of or has taken any action, directly or indirectly, that would result in a violation
by such Persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder (collectively, the
FCPA
), including, without limitation,
making use of the mails or any means or instrumentality of interstate commerce corruptly in
furtherance of an offer, payment, promise to pay or authorization of the payment of any
money, or other property, gift, promise to give, or authorization of the giving of anything
of value to any foreign official (as such term is defined in the FCPA) or any foreign
political party or official thereof or any candidate for foreign political office, in
contravention of the FCPA and the Partnership Entities and, to the knowledge of the Targa
Parties, their affiliates have conducted their businesses in compliance with the FCPA and
have instituted and maintain policies and procedures designed to ensure, and which are
reasonably expected to continue to ensure, continued compliance therewith.
(eee)
Money Laundering Laws
. The operations of the Partnership Entities are and have been
conducted at all times in 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 jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental 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 Targa Parties, threatened.
18
(fff)
Office of Foreign Assets Control
. Neither the Partnership nor any of its subsidiaries nor,
to the knowledge of the Targa Parties, any director, officer, agent, employee or affiliate
of the Partnership or any of its subsidiaries 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 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.
(ggg)
Lending Relationship
. Except as disclosed in the Disclosure Package and the Prospectus, the Partnership (i)
does not have any material lending or other relationship with any bank or lending affiliate
of any of the Underwriters and (ii) does not intend to use any of the proceeds from the sale
of the Units hereunder to repay any outstanding debt owed to any affiliate of the
Underwriters.
(hhh)
Statistical Data
. Any statistical and market-related data included in the
Registration Statement, the Preliminary Prospectus or the Prospectus are based on or derived
from sources that the Partnership 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.
(iii)
No Distribution of Other Offering Materials
. None of the Partnership Entities has
distributed and, prior to the later to occur of the Closing Date or any settlement date and
completion of the distribution of the Units, will distribute any offering material in
connection with the offering and sale of the Units other than any Preliminary Prospectus,
the Prospectus, any Issuer Free Writing Prospectus to which the Representative has consented
in accordance with this Agreement, any other materials, if any, permitted by the Act,
including Rule 134.
(jjj)
Listing on the Nasdaq
. The Units have been approved to be listed on the Nasdaq, subject to
official notice of issuance.
Any certificate signed by any officer of any of the Targa Parties and delivered to the
Representatives or counsel for the Underwriters in connection with the offering of the Units shall
be deemed a representation and warranty by such entity, as to matters covered thereby, to each
Underwriter.
2.
Purchase and Sale
. (a) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Partnership agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the
Partnership, at a purchase price of $25.796 per unit, the amount of the Firm Units set forth
opposite such Underwriters name in
Schedule I
hereto.
(b) Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Partnership hereby grants an option to the several
Underwriters to purchase, severally and not jointly, up to 2,025,000 Option
19
Units at the
same purchase price per unit as the Underwriters shall pay for the Firm Units. Said option
may be exercised only to cover over-allotments in the sale of the Firm Units by the
Underwriters. Said option may be exercised in whole or in part at any time on or before the
30th day after the date of the Prospectus upon written or telegraphic notice by the
Representatives to the Partnership setting forth the number of Option Units as to which the
several Underwriters are exercising the option and the settlement date. The
number of Option Units to be purchased by each Underwriter shall be the same percentage of
the total number of Option Units to be purchased by the several Underwriters as such
Underwriter is purchasing of the Firm Units, subject to such adjustments as the
Representatives in their absolute discretion shall make to eliminate any fractional
Partnership Units.
3.
Delivery and Payment
. Delivery of and payment for the Firm Units and the Option Units (if
the option provided for in Section 2(b) hereof shall have been exercised on or before the third
Business Day immediately preceding the Closing Date) shall be made at 10:00 AM, New York City time,
on October 24, 2007, or at such time on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date and time may be postponed by
agreement between the Representatives and the Partnership or as provided in Section 9 hereof (such
date and time of delivery and payment for the Units being herein called the
Closing
Date
). Delivery of the Units shall be made to the Representatives for the respective accounts
of the several Underwriters against payment by the several Underwriters through the Representatives
of the purchase price thereof to or upon the order of the Partnership by wire transfer payable in
same-day funds to an account specified by the Partnership. Delivery of the Firm Units and the
Option Units shall be made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after the third Business Day
immediately preceding the Closing Date, the Partnership will deliver the Option Units (at the
expense of the Partnership) to the Representatives, at 388 Greenwich Street, New York, New York, on
the date specified by the Representatives (which shall be within three Business Days after exercise
of said option) for the respective accounts of the several Underwriters, against payment by the
several Underwriters through the Representatives of the purchase price thereof to or upon the order
of the Partnership by wire transfer payable in same-day funds to an account specified by the
Partnership. If settlement for the Option Units occurs after the Closing Date, the Partnership
will deliver to the Representatives on the settlement date for the Option Units, and the obligation
of the Underwriters to purchase the Option Units shall be conditioned upon receipt of, supplemental
opinions, certificates and letters confirming as of such date the opinions, certificates and
letters delivered on the Closing Date pursuant to Section 6 hereof.
4.
Offering by Underwriters
. It is understood that the several Underwriters propose to offer
the Units for sale to the public as set forth in the Prospectus.
5.
Agreements
. Each of the Targa Parties, jointly and severally, agrees with the several
Underwriters that:
20
(a)
Preparation of Prospectus and Registration Statement
. Prior to the termination of the offering of the Units, the Partnership will not file any
amendment of the Registration Statement or supplement to the Prospectus or any Rule 462(b)
Registration Statement unless the Partnership has furnished the Representatives a copy for
their review prior to filing and will not file any such proposed amendment or supplement to
which the Representatives reasonably object. The Partnership will cause the Prospectus,
properly completed, and any supplement thereto to be filed in a form approved by the
Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Partnership will promptly advise the
Representatives (i) when the Prospectus, and any supplement thereto, shall have been filed
(if required) with the Commission pursuant to Rule 424(b) or when any Rule 462(b)
Registration Statement shall have been filed with the Commission, (ii) when, prior to
termination of the offering of the Units, any amendment to the Registration Statement shall
have been filed or become effective, (iii) of any request by the Commission or its staff for
any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or
for any supplement to the Prospectus or for any additional information, (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of the Registration
Statement or of any notice objecting to its use or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the Partnership of any notification
with respect to the suspension of the qualification of the Units for sale in any
jurisdiction or the institution or threatening of any proceeding for such purpose. The
Partnership will use its best efforts to prevent the issuance of any such stop order or the
occurrence of any such suspension or objection to the use of the Registration Statement and,
upon such issuance, occurrence or notice of objection, to obtain as soon as possible the
withdrawal of such stop order or relief from such occurrence or objection, including, if
necessary, by filing an amendment to the Registration Statement or a new registration
statement and using its commercially reasonable best efforts to have such amendment or new
registration statement declared effective as soon as practicable.
(b)
Amendment or Supplement of Disclosure Package and Issuer Free Writing Prospectuses
. If, at
any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs as
a result of which (i) the Disclosure Package or any Issuer Free Writing Prospectus 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 or (ii) any Issuer Free Writing Prospectus would conflict with
the information in the Registration Statement or the Prospectus, the Partnership will (A)
notify promptly the Representatives so that any use of the Disclosure Package or the Issuer
Free Writing Prospectus, as the case may be, may cease until it is amended or supplemented;
(B) amend or supplement the Disclosure Package or the Issuer Free Writing Prospectus, as the
case may be, to correct such statement, omission or conflict; and (C) supply any amendment
or supplement to the Representatives in such quantities as they may reasonably request.
(c)
Amendment of Registration Statement or Supplement of Prospectus
. If, at any time when a prospectus relating to the Units is required to be delivered under
the Act
21
(including in circumstances where such requirement may be satisfied pursuant to Rule
172), any event occurs as a result of which the Prospectus as then supplemented 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
or the circumstances then prevailing, not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Prospectus to comply with the Act or the rules
thereunder, the Partnership promptly will (i) notify the Representatives of any such event;
(ii) prepare and file with the Commission, subject to the second sentence of paragraph (a)
of this Section 5, an amendment or supplement which will correct such statement or omission
or effect such compliance; and (iii) supply any supplemented Prospectus to the
Representatives in such quantities as they may reasonably request.
(d)
Reports to Unitholders
. The Partnership will make generally available to its unitholders
and to the Representatives an earnings statement or statements of the Partnership and its
subsidiaries which will satisfy, on a timely basis, the provisions of Section 11(a) of the
Act and Rule 158 under the Act.
(e)
Signed Copies of the Registration Statement and Copies of the Prospectus
. The Partnership
will furnish to the Representatives and counsel for the Underwriters, upon request and
without charge, signed copies of the Registration Statement (including exhibits thereto) and
to each other Underwriter a copy of the Registration Statement (without exhibits thereto)
and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the
Act (including in circumstances where such requirement may be satisfied pursuant to Rule
172), as many copies of each Preliminary Prospectus, the Prospectus and each Issuer Free
Writing Prospectus and any supplement thereto as the Representatives may reasonably request.
The Partnership will pay the expenses of printing or other production of all documents
relating to the offering.
(f)
Qualification of Units
. The Partnership will arrange, if necessary, for the qualification
of the Units for sale under the laws of such jurisdictions as the Representatives may
designate and will maintain such qualifications in effect so long as required for the
distribution of the Units;
provided
that in no event shall the Partnership be
obligated to qualify to do business in any jurisdiction where it is not now so qualified or
to take any action that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Units, in any jurisdiction where it is not now so
subject.
(g)
Lock-Up Period
. The Partnership will not, without the prior written consent of Citigroup
Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of, (or
enter into any transaction which is designed to, or might reasonably be expected to, result
in the disposition (whether by actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Partnership, and each executive officer and director of the
General Partner) directly or indirectly, including the filing (or participation in the
filing) of a registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Exchange Act, any other Partnership Units or any
securities convertible into, or exercisable, or exchangeable for, Partnership
22
Units; or publicly announce an intention to effect any such transaction, for a period of 90 days after
the date of the Underwriting Agreement,
provided
,
however
, that the
Partnership may issue and sell Partnership Units pursuant to any employee benefit plan of
the Partnership in effect at the Execution Time, the Partnership may issue Partnership Units
issuable upon the conversion of securities or the exercise of warrants outstanding at the
Execution Time and the Partnership may issue Partnership securities to the General Partner
pursuant to the exercise by the General Partner of its rights under Section 5.2(c) of the
Partnership Agreement. Notwithstanding the foregoing, if (i) during the last 17 days of the
90-day restricted period, the Partnership issues an earnings release or announces material
news or a material event relating to the Partnership occurs; or (ii) prior to the expiration
of the 90-day restricted period, the Partnership announces that it will release earnings
results during the 16-day period beginning on the last day of the 90-day period, the
restrictions imposed in this clause shall continue to apply until the expiration of the
18-day period beginning on the issuance of the earnings release or the announcement of the
material news or the occurrence of the material event. The Partnership will provide the
Representatives and any co-managers and each individual subject to the restricted period
pursuant to the lock-up letters described in Section 6(k) with prior notice of any such
announcement or occurrence that gives rise to an extension of the restricted period.
(h)
Price Manipulation
. The Targa Parties will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected to cause or result
in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any
security of the Partnership to facilitate the sale or resale of the Units.
(i)
Expenses
. The Partnership agrees to pay the costs and expenses relating to the following
matters: (i) the preparation, printing or reproduction and filing with the Commission of the
Registration Statement (including financial statements and exhibits thereto), each
Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and each
amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting and packaging) of such
copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and each
Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in
each case, be reasonably requested for use in connection with the offering and sale of the
Units; (iii) the preparation, printing, authentication, issuance and delivery of
certificates for the Units, including any stamp or transfer taxes in connection with the
original issuance and sale of the Units; (iv) the printing (or reproduction) and
delivery of this Agreement, any blue sky memorandum and all other agreements or documents
printed (or reproduced) and delivered in connection with the offering of the Units; (v) the
registration of the Units under the Exchange Act and the listing of the Units on the Nasdaq;
(vi) any registration or qualification of the Units for offer and sale under the securities
or blue sky laws of the several states (including filing fees and the reasonable fees and
expenses of counsel for the Underwriters relating to such registration and qualification);
(vii) any filings required to be made with the National Association of Securities Dealers,
Inc. (including filing fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such filings); (viii) the transportation and other expenses
incurred by or on behalf of
23
Partnership representatives in connection with presentations to
prospective purchasers of the Units; (ix) the fees and expenses of the Partnerships
accountants and the fees and expenses of counsel (including local and special counsel) for
the Partnership; and (x) all other costs and expenses incident to the performance by the
Partnership of its obligations hereunder. The Underwriters agree to reimburse the
Partnership for certain of the Partnerships expenses in an amount equal to the sum of (i)
$906,862.50 and (ii) .0025 times the initial price to public per Common Unit as set forth on
the cover page of the Prospectus times the number of Option Units sold pursuant to this
Agreement.
(j)
Free Writing Prospectuses
. The Partnership agrees that, unless it has or shall have
obtained the prior written consent of the Representatives, and each Underwriter, severally
and not jointly, agrees with the Partnership that, unless it has or shall have obtained, as
the case may be, the prior written consent of the Partnership, it has 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. Any such free writing prospectus
consented to by the Representatives or the Partnership is hereinafter referred to as a
Permitted Free Writing Prospectus
. The Partnership agrees that (i) it has treated
and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free
Writing Prospectus and (ii) it has complied and will comply, as the case may be, with the
requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus,
including in respect of timely filing with the Commission, legending and record keeping.
6.
Conditions to the Obligations of the Underwriters
. The obligations of the Underwriters
to purchase the Firm Units and the Option Units, as the case may be, shall be subject to the
accuracy of the representations and warranties on the part of the Targa Parties contained herein as
of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to
the accuracy of the statements of the Targa Parties made in any certificates pursuant to the
provisions hereof, to the performance by the Targa Parties of their obligations hereunder and to
the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and
within the time period required by Rule 424(b); any material required to be filed by the
Partnership pursuant to Rule 433(d) under the Act shall have been filed with the Commission
within the applicable time periods prescribed for such filings by Rule 433; and no stop
order suspending the effectiveness of the Registration Statement or any notice objecting to
its use shall have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Partnership shall have requested and caused Vinson & Elkins L.L.P., counsel for
the Partnership, to have furnished to the Representatives their opinion, dated the Closing
Date and addressed to the Representatives, to the effect that:
24
(i)
Formation and Qualification
. Each of the Partnership Entities has
been duly incorporated and is validly existing as a limited partnership,
limited liability company or corporation, as applicable, and is in good
standing under the laws of the State of Delaware with full power and
authority necessary to enter into and perform its obligations under the
Transaction Agreements to which it is a party, to own or lease and to
operate its properties currently owned or leased or to be owned or leased on
the Closing Date and each settlement date and conduct its business as
currently conducted or as to be conducted on the Closing Date and each
settlement date, in each case as described in the Disclosure Package and the
Prospectus. Each of the Partnership Entities is duly qualified to transact
business and is in good standing as a foreign corporation, foreign limited
partnership or foreign limited liability company in each jurisdiction set
forth opposite its name on an annex to be attached to such counsels
opinion.
(ii)
Power and Authority to Act as a General Partner
. The General
Partner has full limited liability company power and authority to act as
general partner of the Partnership in all material respects as described in
the Disclosure Package and Prospectus. The Operating GP has full limited
liability company power and authority to act as general partner of the
Operating Partnership in all material respects as described in the
Disclosure Package and Prospectus.
(iii)
Ownership of the General Partner
.
TGPI owns all of the issued and outstanding membership interests of the
General Partner; such membership interests have been duly authorized and
validly issued in accordance with the GP LLC Agreement, and are fully paid
(to the extent required by the GP LLC Agreement) and nonassessable (except
as such nonassessability may be affected by Section 18-607 of the Delaware
LLC Act); and TGPI owns such membership interests free and clear of all
Liens, except restrictions on transferability and other Liens as described
in the Disclosure Package, the Prospectus or the GP LLC Agreement and Liens
created by or arising under the Delaware LLC Act or arising under the Targa
Credit Agreement, (i) in respect of which a financing statement
under the Uniform Commercial Code of the State of Delaware naming TGPI
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 such counsel,
without independent investigation, other than those created by or arising
under the Delaware LLC Act.
(iv)
Ownership of the General Partner Interest in
the Partnership
. The General Partner is the sole general partner of the
Partnership with a 2.0% general partner interest in the Partnership; such
general partner interest has been duly and validly authorized and issued in
accordance with the Partnership Agreement; and the General Partner owns such
general partner interest free and clear of all Liens, except restrictions
25
on
transferability and other Liens as described in the Disclosure Package, the
Prospectus or the Partnership Agreement or Liens created by or arising under
the Delaware LP Act, the Credit Agreement or the Targa Credit Agreement, (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 such counsel, without independent
investigation, other than those created by or arising under the Delaware LP
Act.
(v)
Capitalization; Ownership of Incentive Distribution Rights
. As of
the date hereof (and prior to the issuance of the Firm Units), the issued
and outstanding limited partnership interests of the Partnership consist of
19,336,000 Common Units, 11,528,231 Subordinated Units and the Incentive
Distribution Rights; the General Partner owns 100% of the Incentive
Distribution Rights; all of such Common Units, Subordinated Units and
Incentive Distribution Rights and the limited partner interests represented
thereby have been duly and validly authorized and 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 the General Partner owns the Incentive Distribution
Rights free and clear of all Liens (except restrictions on transferability
and other Liens as described in the Disclosure Package, the Prospectus or
the Partnership Agreement or Liens created by or arising under the Delaware
LP Act, the Credit Agreement or the Targa Credit Agreement) (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 such counsel, without independent investigation,
other than those created by or arising under the Delaware LP Act.
(vi)
Valid
Issuance of the Units
. The Units to be purchased by the Underwriters from
the Partnership have been duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement and,
when issued and delivered by the Partnership pursuant to this Agreement
against payment of the consideration set forth herein, will be validly
issued and 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).
(vii)
Ownership of the Operating GP
. The Partnership owns all of the
issued and outstanding membership interests of the Operating GP; such
membership interests have been duly authorized and validly issued in
accordance with the Operating GP LLC Agreement and are fully paid (to
26
the
extent required by the Operating GP LLC Agreement) and nonassessable (except
as such nonassessability may be affected by Sections 18-607 and 18-804 of
the Delaware LLC Act); and the Partnership owns such membership interests
free and clear of all Liens (except restrictions on transferability and
other Liens as described in the Disclosure Package, the Prospectus or the
OLP Partnership Agreement and Liens created by or arising under the Delaware
LLC Act or arising under the Credit Agreement) (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 such counsel, without independent investigation.
(viii)
Ownership
of the General Partner Interest in the Operating Partnership
. The
Operating GP is the sole general partner of the Operating Partnership with a
0.001% general partner interest in the Operating Partnership; such general
partner interest has been duly authorized and validly issued in accordance
with the OLP Partnership Agreement; and the Operating GP owns such general
partner interest free and clear of all Liens (except restrictions on
transferability and other Liens as described in the Disclosure Package, the
Prospectus or the OLP Partnership Agreement and Liens created by or arising
under the Delaware LP Act or arising under the Credit Agreement) (i) in
respect of which a financing statement under the Uniform Commercial Code of
the State of Delaware naming the Operating GP 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 such counsel, without independent
investigation.
(ix)
Ownership of the Limited Partner Interest in the
Operating Partnership.
The Partnership owns a 99.999% limited partner
interest in the Operating Partnership; such limited partner interest has
been duly authorized and validly issued in accordance with the OLP
Partnership Agreement and is fully paid (to the extent required under the
OLP 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); and the Partnership owns such
limited partner interest free and clear of all Liens (except restrictions on
transferability and other Liens as described in the Disclosure Package, the
Prospectus or the OLP Partnership Agreement and Liens created by or arising
under the Delaware LP Act or arising under the Credit Agreement) (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 such counsel, without independent
investigation.
27
(x)
Ownership of North Texas GP
. The Operating Partnership
owns all of the issued and outstanding membership interests of North Texas
GP; such membership interests have been duly authorized and validly issued
in accordance with the North Texas GP LLC Agreement and are fully paid (to
the extent required by the North Texas GP LLC Agreement) and nonassessable
(except as such nonassessability may be affected by Sections 18-607 and
18-804 of the Delaware LLC Act); and the Operating Partnership owns such
membership interests free and clear of all Liens (except restrictions on
transferability and other Liens as described in the Disclosure Package, the
Prospectus or the North Texas GP LLC Agreement and Liens created by or
arising under the Delaware LLC Act or arising under the Credit Agreement)
(i) in respect of which a financing statement under the Uniform Commercial
Code of the State of Delaware naming the Operating 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 such counsel, without
independent investigation.
(xi)
Ownership of the General Partner Interest in
North Texas LP
. North Texas GP is the sole general partner of North Texas
LP with a 50% general partner interest in North Texas LP; such general
partner interest has been duly authorized and validly issued in accordance
with the North Texas LP Partnership Agreement; and North Texas GP owns such
general partner interest free and clear of all Liens (except restrictions on
transferability and other Liens as described in the Disclosure Package, the
Prospectus or the North Texas LP Partnership Agreement and Liens created by
or arising under the Delaware LP Act or arising under the Credit Agreement)
(i) in respect of which a financing statement under the Uniform Commercial
Code of the State of Delaware naming the North Texas GP 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 such counsel, without independent
investigation.
(xii)
Ownership of the Limited Partner Interest in North Texas
LP.
The Operating Partnership owns a 50% limited partner interest in North
Texas LP; such limited partner interest has been duly authorized
and validly issued in accordance with the North Texas LP Partnership
Agreement and is fully paid (to the extent required under the North Texas LP
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); and the Operating Partnership owns such limited partner
interest free and clear of all Liens (except restrictions on transferability
and other Liens as described in the Disclosure Package, the Prospectus or
the North Texas LP Partnership Agreement and Liens created by or arising
under the Delaware LP Act or arising under the Credit Agreement) (i) in
respect of which a financing statement under the Uniform Commercial Code of
the State of Delaware naming the Operating
28
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 such counsel, without independent
investigation.
(xiii)
Ownership of Targa TX Intrastate.
North Texas LP owns
all of the issued and outstanding membership interests of Targa TX
Intrastate; such membership interests have been duly and validly authorized
and issued in accordance with the Targa TX Intrastate LLC Agreement and are
fully paid (to the extent required by the Targa TX Intrastate LLC Agreement)
and nonassessable (except as such nonassessability may be affected by
Sections 18-607 and 18-804 of the Delaware LLC Act); and North Texas LP owns
such membership interests free and clear of all Liens (except restrictions
on transferability and other Liens as described in the Disclosure Package,
the Prospectus or the Targa TX Intrastate LLC Agreement and Liens created by
or arising under the Delaware LLC Act or arising under the Credit Agreement)
(i) in respect of which a financing statement under the Uniform Commercial
Code of the State of Delaware naming North Texas LP 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 such counsel, without independent
investigation.
(xiv)
Ownership of Targa Texas GP
. After giving effect to the
Transactions, North Texas GP will own all of the issued and outstanding
membership interests of Targa Texas GP; such membership interests will be
been duly authorized and validly issued in accordance with the Targa Texas
GP LLC Agreement and will be fully paid (to the extent required by the Targa
Texas GP LLC Agreement) and nonassessable (except as such nonassessability
may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act); and
North Texas GP will own such membership interests free and clear of all
Liens (except restrictions on transferability and other Liens as described
in the Disclosure Package, the Prospectus or the Targa Texas GP LLC
Agreement and Liens created by or arising under the Delaware LLC Act or
arising under the Credit Agreement and Liens arising under the Targa Credit
Agreement which are to be released at Closing) (i) in respect of which a
financing statement under the Uniform
Commercial Code of the State of Delaware naming North Texas GP 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 such counsel,
without independent investigation.
(xv)
Ownership of the General Partner
Interest in Targa Texas LP
. Targa Texas GP is the sole general partner of
Targa Texas LP with a 1% general partner interest in North Texas LP; such
general partner interest has been duly authorized and validly issued in
accordance with the Targa Texas LP Partnership Agreement; and Targa Texas GP
owns such general partner interest free and clear of all Liens (except
restrictions on
29
transferability and other Liens as described in the
Disclosure Package, the Prospectus or the Targa Texas LP Partnership
Agreement and Liens created by or arising under the Delaware LP Act or
arising under the Credit Agreement and Liens arising under the Targa Credit
Agreement which are to be released at Closing) (i) in respect of which a
financing statement under the Uniform Commercial Code of the State of
Delaware naming the Targa Texas GP 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 such counsel, without independent investigation.
(xvi)
Ownership of the Limited Partner Interest in Targa Texas LP.
After giving
effect to the Transactions, North Texas GP will own a 99% limited partner
interest in Targa Texas LP; such limited partner interest will be duly
authorized and validly issued in accordance with the Targa Texas LP
Partnership Agreement and will be fully paid (to the extent required under
the Targa Texas LP 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); and North Texas GP will own such limited
partner interest free and clear of all Liens (except restrictions on
transferability and other Liens as described in the Disclosure Package, the
Prospectus or the Targa Texas LP Partnership Agreement and Liens created by
or arising under the Delaware LP Act or arising under the Credit Agreement
and Liens arising under the Targa Credit Agreement which are to be released
at Closing) (i) in respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware naming North Texas GP 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 such counsel, without
independent investigation.
(xvii)
Ownership of Targa Louisiana
. After
giving effect to the Transactions, North Texas GP will own all of the issued
and outstanding membership interests of Targa Louisiana; such membership
interests will be duly authorized and validly issued in accordance with the
Targa Louisiana LLC Agreement and will be fully paid (to the extent required
by the Targa Louisiana LLC Agreement) and nonassessable (except as such
nonassessability may be affected by Sections 18-607 and 18-804 of the
Delaware LLC Act); and North Texas GP will own such membership interests
free and clear of all Liens (except restrictions on transferability and
other Liens as described in the Disclosure Package, the Prospectus or the
Targa Louisiana LLC Agreement and Liens created by or arising under the
Delaware LLC Act or arising under the Credit Agreement and Liens arising
under the Targa Credit Agreement which are to be released at Closing) (i) in
respect of which a financing statement under the Uniform Commercial Code of
the State of Delaware naming North Texas GP as debtor is on file as of a
recent date in the office of the Secretary of State of
30
the State of Delaware
or (ii) otherwise known to such counsel, without independent
investigation.
(xviii)
Ownership of Targa LA Intrastate.
Targa Louisiana owns
all of the issued and outstanding membership interests of Targa LA
Intrastate; such membership interests have been duly and validly authorized
and issued in accordance with the Targa LA Intrastate LLC Agreement and are
fully paid (to the extent required by the Targa LA Intrastate LLC Agreement)
and nonassessable (except as such nonassessability may be affected by
Sections 18-607 and 18-804 of the Delaware LLC Act); and Targa Louisiana
owns such membership interests free and clear of all Liens (except
restrictions on transferability and other Liens as described in the
Disclosure Package, the Prospectus or the Targa LA Intrastate LLC Agreement
and Liens created by or arising under the Delaware LLC Act or arising under
the Credit Agreement and Liens arising under the Targa Credit Agreement
which are to be released at Closing) (i) in respect of which a financing
statement under the Uniform Commercial Code of the State of Delaware naming
Targa Louisiana 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
such counsel, without independent investigation.
(xix)
No Preemptive Rights,
Registration Rights or Options
. Except for preemptive rights identified in
the Disclosure Package and the Prospectus, there are no outstanding options,
warrants, preemptive rights or other rights to subscribe for or to purchase,
nor any restriction upon the voting or transfer of, any equity securities of
the Partnership Entities, in each case pursuant to the their respective
Organizational Agreements or any other agreement or instrument listed as an
exhibit to the Registration Statement, in either case to which any of the
Partnership Entities is a party or by which any of them may be bound. To
such counsels knowledge, neither the filing of the Registration Statement
nor the offering or sale of the Units as contemplated by this Agreement
gives rise to any rights for or relating to the registration of any Units or
other securities of the Partnership other than as described in the
Disclosure Package and the Prospectus, as set forth in the Partnership
Agreement or as have been waived.
(xx)
Authority and Authorization
. Each of
the Targa Parties has all requisite limited partnership, limited liability
company or corporate power and authority to execute and deliver this
Agreement and perform its respective obligations hereunder. The Partnership
has all requisite partnership 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 and
the Prospectus. All corporate, partnership and limited liability company
action, as the case may be, required to be taken by the Partnership Entities
31
or any of their stockholders, members or partners for the authorization,
issuance, sale and delivery of the Units, the execution and delivery by the
Partnership Entities of this Agreement and the Operative Agreements and the
consummation of the transactions contemplated by this Agreement and the
Operative Agreements to be completed on or prior to the Closing Date has
been validly taken.
(xxi)
Authorization of this Agreement
. This Agreement
has been duly authorized, executed and delivered by each of the Targa
Parties.
(xxii)
Enforceability of Operative Agreements
. The Operative
Agreements have been duly authorized, executed and delivered by the
Partnership Entities that are parties thereto and are valid and legally
binding agreements of the Partnership Entities that are parties thereto,
enforceable against such parties in accordance with their terms;
provided
that, with respect to each agreement described in this
Section (xxi), the enforceability thereof may be limited by (i) 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 (ii) public policy,
applicable law relating to fiduciary duties and indemnification and an
implied covenant of good faith and fair dealing.
(xxiii)
Conveyances
. Each
of the conveyances that is part of the Transactions, assuming the due
authorization, execution and delivery thereof by the parties thereto, to the
extent it is a valid and legally binding agreement under the laws of the
State of Texas and that such law applies thereto, is a valid and legally
binding agreement of the parties thereto under the laws of the State of
Texas, enforceable in accordance with its terms subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws
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); each of those conveyances
is in a form legally sufficient as between the parties thereto to transfer
or convey to the transferee thereunder all of the right, title and interest
of the transferor stated therein in and to the ownership interests in the
Acquired Businesses purported to be transferred
thereby, as described in the Purchase Agreement, subject to the
conditions, reservations, encumbrances and limitations contained in the
Purchase Agreement and those set forth in the Disclosure Package and the
Prospectus.
(xxiv)
No Conflicts
. None of (i) the offering, issuance or sale
by the Partnership of the Units, (ii) the execution, delivery and
performance of this Agreement and the Operative Agreements (other than the
Credit Agreement) by the parties hereto or thereto, as the case may be, or
(iii) the
32
consummation of the Transactions (other than the transactions
contemplated by the Credit Agreement), (A) constitutes or will constitute a
violation of the Organizational Documents of any of the Partnership
Entities, (B) conflicts or will conflict with or constitutes or will
constitute a breach or violation of, or a default (or an event that, with
notice or lapse of time or both, would constitute such a default) under any
agreement or other instrument filed as an exhibit to the Registration
Statement (other than the Credit Agreement and the Targa Credit Agreement),
(C) violates or will violate the Delaware LP Act, the Delaware LLC Act, the
Delaware General Corporation Law (the
DGCL
), the laws of the State
of Texas or federal law, (D) violates or will violate any order, judgment,
decree or injunction of any court or governmental agency or other authority
known to such counsel having jurisdiction over any of the Partnership
Entities or any of their properties or assets in a proceeding to which any
of them or their property is a party or (E) results or will result in the
creation or imposition of any Lien pursuant to any agreement filed as an
exhibit to the Registration Statement upon any property or assets of any of
the Partnership Entities (other than Liens created pursuant to the Credit
Agreement and the Targa Credit Agreement), which conflicts, breaches,
violations, defaults or Liens, in the case of clauses (B), (C), (D) or (E),
would have a Material Adverse Effect or a material adverse effect on the
ability of any of the Partnership Entities to consummate the Transactions;
provided
,
however
, that no opinion need be expressed pursuant to this
paragraph with respect to federal or state securities laws and other anti
fraud laws.
(xxv)
No Consents
. No permit, consent, approval, authorization,
order, registration, filing or qualification under the Delaware LP Act, the
Delaware LLC Act, the DGCL, Texas law or federal law is required in
connection with the offering, issuance or sale by the Partnership of the
Units, the execution, delivery and performance of this Agreement and the
Operative Agreements (other than the Credit Agreement) by the Partnership
Entities that are parties thereto, the execution, delivery and performance
by the Partnership Entities that are parties thereto of their respective
obligations under the other Operative Agreements (other than the Credit
Agreement) or the consummation of the transactions contemplated by this
Agreement or the Operative Agreements (other than the transactions
contemplated by the Credit Agreement) except (i) for such
permits, consents, approvals and similar authorizations required under
the Act, the Exchange Act and state securities or Blue Sky laws, as to
which such counsel need not express any opinion, (ii) for such consents
which have been obtained or made, (iii) for such consents which, if not
obtained, would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect or (iv) as disclosed in the
Disclosure Package and the Prospectus.
33
(xxvi)
Effectiveness of Registration
Statement
. The Registration Statement has become effective under the Act;
any required filing of the Prospectus, and any supplements thereto, pursuant
to Rule 424(b) has been made in the manner and within the time period
required by Rule 424(b); to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement or any notice
objecting to its use has been issued and no proceedings for that purpose
have been instituted or threatened.
(xxvii)
Form of Registration Statement
and Prospectus
. The Registration Statement, on the Effective Date, and the
Prospectus, when filed with the Commission pursuant to Rule 424(b) and on
the Closing Date, were, on their face, appropriately responsive, in all
material respects, to the requirements of the Act, except that in each case
such counsel need express no opinion with respect to the financial
statements or other financial and statistical data contained in or omitted
from the Registration Statement or the Prospectus.
(xxviii)
Description of
Common Units
. The statements included in the Registration Statement and the
Disclosure Package under the captions SummaryThe Offering, Cash
Distribution Policy, Description of our Common Units, and The
Partnership Agreement insofar as they purport to constitute summaries of
the terms of the Common Units (including the Units), are accurate summaries
of the terms of such Common Units in all material respects.
(xxix)
Descriptions and Summaries
. The statements included in the Registration
Statement and the Disclosure Package under the captions Cash Distribution
Policy, Certain Relationships and Related Transactions, Conflicts of
Interest and Fiduciary Duties, The Partnership Agreement, Investment in
Targa Resources Partners LP by Employee Benefit Plans and Underwriting
insofar as they purport to constitute summaries of the terms of federal or
Texas statutes, rules or regulations or the Delaware LP Act, the Delaware
LLC Act or the DGCL, any legal and governmental proceedings or any
contracts, constitute accurate summaries of the terms of such statutes,
rules and regulations, legal and governmental proceedings and contracts in
all material respects. The description of the federal statutes, rules and
regulations set forth in the Prospectus under BusinessSafety and
Maintenance Regulation,
BusinessRegulation of Operations and BusinessEnvironmental Matters constitute accurate
summaries of the terms of such statutes, rules and regulations in all material respects.
(xxx)
Tax Opinion
. The opinion of Vinson & Elkins L.L.P. that is filed as Exhibit 8.1 to the Registration
Statement is confirmed and the Underwriters may rely upon such opinion as if it were addressed to
them.
34
(xxxi)
Investment Company
. None of the Targa Parties is, nor after giving effect to the
offering and sale of the Units and the application of the proceeds thereof as described in the
Disclosure Package and the Prospectus will any of the Targa Parties be, an investment company as
defined in the Investment Company Act.
(xxxii)
Material Agreements
. To the knowledge of such
counsel, there are no (i) legal or governmental proceedings pending or threatened 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 Prospectus but are not so described as required or, if
determined adversely to any Partnership Entity, would individually or in the aggregate have a
Material Adverse Effect on the Partnership Entities; and (ii) agreements, contracts, indentures,
leases or other instruments that are required to be described in the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as required by the Act.
In rendering such opinion, such counsel may (i) rely in respect of matters of fact upon certificates
of officers and employees of the Targa Parties and upon information obtained from public officials,
(ii) assume that all documents submitted to such counsel as originals are authentic, that all
copies submitted to such counsel conform to the originals thereof, and that the signatures on all
documents examined by such counsel are genuine, (iii) state that its opinion is limited to matters
governed by federal law and the Delaware LP Act, Delaware LLC Act and the DGCL and the laws of the
State of Texas, (iv) with respect to the opinions expressed as to the due qualification or
registration as a foreign limited partnership or limited liability company, as the case may be, of
the Partnership Entities, state that such opinions are based upon certificates of foreign
qualification or registration provided by the Secretary of State of the States listed on an annex
to be attached to such counsels opinion (each of which shall be dated as of a date not more than
fourteen days prior to the Closing Date and shall be provided to counsel to the Underwriters) and
(v) state that they express no opinion with respect to (A) any permits to own or operate any real
or personal property and assume that the descriptions of interests in property described in the
Purchase Agreement are accurate and describe the interests intended to be conveyed thereby (and
that references in the Purchase Agreement to other instruments of record are correct and that such
recorded instruments contain legally sufficient property descriptions) or (B) state or local taxes
or tax statutes to which any of the limited partners of the Partnership or any of the Targa Parties
may be subject.
In addition, such counsel shall state that they have participated in conferences with officers
and other representatives of the Targa Parties, the independent public accountants
of the Partnership and your representatives, at which the contents of the Registration
Statement, the Disclosure Package and the Prospectus and related matters were discussed, and
although such counsel has not independently verified, is not passing upon, and is not assuming any
responsibility for the accuracy, completeness or fairness of the statements contained in, the
Registration Statement, the Disclosure Package and the Prospectus (except to the extent specified
in the foregoing opinion), based on the foregoing, no facts have come to such counsels attention
that lead such counsel to believe that:
35
(A) the Registration Statement, as of the Effective Date, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading,
(B) the Disclosure Package, as of the Applicable Time, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading, or
(C) the Prospectus, as of its date and on the Closing Date contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
it being understood that such counsel expresses no statement or belief 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 the
Registration Statement or the Prospectus or the Disclosure Package, and (ii) representations and
warranties and other statements of fact included in the exhibits to the Registration Statement.
(c) The Partnership shall have requested and caused Bracewell & Giuliani LLP counsel
for the Partnership, to have furnished to the Representatives their opinion, dated the
Closing Date and addressed to the Representatives, to the effect that:
(i) The Credit Agreement constitutes a legal, valid and binding
obligation of the Partnership, enforceable against the Partnership under the
laws of the State of New York in accordance with its terms.
(ii) None of the offering, issuance and sale by the Partnership of the
Units to be sold by it hereunder, the execution, delivery and performance of
this Agreement or the Operative Agreements by the Partnership Entities that
are parties thereto, or the consummation by each of them of the transactions
contemplated hereby 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 the Credit Agreement or the Targa Credit
Agreement.
(iii) There are no consents of any governmental authority under
Applicable Law which have not been obtained that are required on or prior to
the date hereof in connection with the execution, delivery and
performance by the Partnership of the Credit Agreement or the
consummation of the transactions contemplated by the Credit Agreement.
(iv) The statements made in the Prospectus under the caption
Managements Discussion and Analysis of Financial Condition and Results of
OperationsLiquidity and Capital ResourcesDescription of Credit Agreement,
insofar as such statements purport to constitute summaries of certain
provisions of the Credit Agreement, constitute
36
accurate summaries of such
provisions of the Credit Agreement in all material respects.
In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon
certificates of officers and employees of Partnership Entities and upon information obtained from
public officials, (B) assume that all documents submitted to such counsel as originals are
authentic, that all copies submitted to such counsel conform to the originals thereof, and that the
signatures on all documents examined by such counsel are genuine, (C) state that such counsels
opinion is limited to the laws of the State of New York, and (D) state that such counsel expresses
no opinion with respect to state or local taxes or tax statutes to which any of the limited
partners of the Partnership or any of the Partnership Entities may be subject.
(d) The Representatives shall have received from Baker Botts L.L.P., counsel for the
Underwriters, such opinion or opinions, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the Units, the Registration
Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and
other related matters as the Representatives may reasonably require, and the Targa Parties
shall have furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(e) The Targa Parties shall have furnished to the Representatives a certificate of the
Partnership, signed on behalf of the Partnership by the Chief Executive Officer or Chief
Financial Officer of the General Partner, dated the Closing Date, to the effect that the
signers of such certificate have examined the Registration Statement, the Disclosure
Package, the Prospectus and any amendment or supplement thereto, as well as each electronic
road show used in connection with the offering of the Units, and this Agreement and that:
(i) the representations and warranties of the Targa Parties in this
Agreement are true and correct on and as of the Closing Date with the same
effect as if made on the Closing Date and the Partnership has complied with
all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement or any notice objecting to its use has been issued and no
proceedings for that purpose have been instituted or, to the Partnerships
knowledge, threatened; and
(iii) since the date of the most recent financial statements included
in the Disclosure Package and the Prospectus, there has been no Material
Adverse Effect, except as set forth in or contemplated in the Disclosure
Package and the Prospectus.
(f) The Targa Parties shall have requested and caused PricewaterhouseCoopers LLP to
have furnished to the Representatives, at the Execution Time and at the Closing Date,
letters, dated respectively as of the Execution Time and as
37
of the Closing Date, in form and
substance satisfactory to the Representatives and PricewaterhouseCoopers LLP, confirming
that they are an independent registered public accounting firm within the meaning of the Act
and the Exchange Act and the applicable rules and regulations thereunder, adopted by the
Commission and the Public Company Accounting Oversight Board (United States) (PCAOB), and
that they have performed a review of the unaudited interim financial information of the
Partnership for the six-month period ended June 30, 2007 and as of June 30, 2007, in
accordance with Statement on Auditing Standards No. 100 and stating in effect that:
|
(i)
|
|
in their opinion the audited financial statement of Targa
Resources GP LLC as of December 31, 2006, the audited combined financial
statements of: Targa North Texas LP as of December 31, 2006 and 2005 and for
the year ended December 31, 2006 and the two months ended December 31, 2005;
the North Texas System for the ten months ended October 31, 2005 and for the
year ended December 31, 2004; and the audited combined financial statements of
the SAOU and LOU Systems of Targa Resources, Inc. as of December 31, 2006 and
2005 and for the years then ended included in the Registration Statement and
reported on by them comply as to form in all material respects with the
applicable accounting requirements of the Act and the related rules and
regulations adopted by the Commission;
|
|
|
(ii)
|
|
on the basis of a reading of the latest unaudited financial
statements of the Partnership and the SAOU and LOU Systems of Targa Resources,
Inc. included in the Registration Statement; their limited review, in
accordance with standards established under Statement on Auditing Standards No.
100, of the unaudited interim financial statements for the six month periods
ended June 30, 2007 and 2006; carrying out certain specified procedures (but
not an examination in accordance with generally accepted auditing standards)
which would not necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of the meetings of
the partners and the Board of Directors (and its audit and compensation
committees) of the: General Partner; Targa North Texas; Targa Resources
Investments Inc.; and Targa Resources, Inc. since December 31, 2006 through a
specified date not more than three days prior to the date of the letter; and
inquiries of certain officials of Targa Resources, Inc. and Targa Resources GP
LLC who have responsibility for financial and accounting matters of the SAOU
and LOU Systems and the Partnership, respectively as to transactions and events
subsequent to June 30, 2007 and regarding the specific items for which
representations are requested below, nothing came to their attention as a
result of the foregoing procedures that caused them to believe that:
|
|
(1)
|
|
the unaudited interim financial statements of
the Partnership and the SAOU and LOU Systems of Targa Resources, Inc.
for the six months ended June 30, 2007 and 2006 included in the
Registration Statement do not comply as to form in all material
respects with the applicable
|
38
|
|
|
accounting requirements of the Act and
with the related rules and regulations adopted by the Commission with
respect to registration statements on Form S-1; and said unaudited
financial statements are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent with
that of the audited financial statements included in the Registration
Statement;
|
|
(2)
|
|
with respect to the period subsequent to June
30, 2007, there was any increase, at a specified date not more than
three days prior to the date of the letter, in the long-term debt of
the Partnership and the SAOU and LOU Systems of Targa Resources, Inc.
as compared with the amounts shown on the June 30, 2007 unaudited
combined balance sheets included in the Registration Statement, or for
the period from the date of the latest statement of operations included
in the Registration Statement to such specified date there were any
decreases, as compared with the corresponding period in the preceding
year in total operating revenues of the Partnership and the SAOU and
LOU Systems of Targa Resources, Inc., except in all instances for
decreases set forth in such letter, in which case the Partnership
and/or the SAOU and LOU Systems of Targa Resources, Inc. shall provide
written explanation as to the significance thereof unless said
explanation is not deemed necessary by the Representatives; or
|
|
(3)
|
|
any material modifications should be made to
the unaudited interim financial statements of the Partnership and the
SAOU and LOU Systems of Targa Resources Inc. for the six-month period
ended June 30, 2007 included in the Registration Statement for them to
be in conformity with generally accepted accounting principles; or
|
|
(iii)
|
|
they have performed certain other specified procedures as a
result of which they determined that certain information of an accounting or
financial nature (which is limited to accounting or financial information
obtained from the general accounting records of the Partnership or Targa
Resources, Inc., which are subject to control over financial reporting or which
has been derived directly from such accounting records) set forth in the
Registration Statement, agrees with the accounting records of the Partnership
or Targa Resources, Inc., or computations made therefrom, excluding any
questions of legal interpretation; and
|
|
(iv)
|
|
on the basis of a reading of the unaudited pro forma condensed
combined balance sheet of the Partnership as of June 30, 2007, and the
unaudited pro forma condensed combined statements of operations for the years
ended December 31, 2006, 2005 and 2004 and for the six months ended June 30,
2007 and 2006, included in the Registration Statement (the
pro forma
financial statements
); inquiries of certain officials of the General
Partner, on behalf of Partnership who have responsibility for financial and
|
39
|
|
|
accounting matters; and proving the arithmetic accuracy of the application of
the pro forma adjustments to the historical amounts in the pro forma condensed
financial statements, nothing came to their attention which caused them to
believe that the unaudited pro forma condensed combined financial statements of
the Partnership included in the Registration Statement do not comply as to form
in all material respects with the applicable accounting requirements of Rule
11-02 of Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of such
statements.
|
References to the Registration Statement in this paragraph (f) include any supplement
thereto at the date of the letter.
(g) The Targa Parties shall have requested and caused Ernst & Young LLP to have
furnished to the Representatives, at the Execution Time, a letter, dated as of the Execution
Time, in form and substance satisfactory to the Representatives and Ernst & Young LLP,
confirming that they are an independent registered public accounting firm within the meaning
of the Act and the Exchange Act and the applicable rules and regulations thereunder, adopted
by the Commission and the PCAOB, and that they have audited the combined statements of
operations and comprehensive income, changes in parent investment, and cash flows of SAOU
and LOU Systems of Targa Resources, Inc. for the period March 12, 2004 (inception) through
December 31, 2004 and the financial statements of the Midstream Operations sold to Targa
Resources, Inc. at April 15, 2004 and for the 106-day period ended April 15, 2004, and
stating in effect that in their opinion such financial statements, included in the
Registration Statement and reported on by them comply as to form in all material respects
with the applicable accounting requirements of the Act and the related rules and regulations
adopted by the Commission.
References to the Registration Statements in this paragraph (g) include any supplement
thereto at the date of the letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information
is given in the Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any amendment or supplement thereto), there shall not have been
(i) any change or decrease specified in the letter or letters referred to in paragraph (f)
of this Section 6 or (ii) any change, or any development involving a prospective change, in
or affecting the condition (financial or otherwise), earnings, business or properties of the
Partnership Entities taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or
contemplated in the Disclosure Package and the Prospectus the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of the Units as contemplated by the Registration Statement
(exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive
of any amendment or supplement thereto).
40
(i) Prior to the Closing Date, the Targa Parties shall have furnished to the
Representatives such further information, certificates and documents as the Representatives
may reasonably request.
(j) Subsequent to the Execution Time, there shall not have been any decrease in the
rating of any of the Targa Parties debt securities by any nationally recognized
statistical rating organization (as defined for purposes of Rule 436(g) under the Act) or
any notice given of any intended or potential decrease in any such rating or of a possible
change in any such rating that does not indicate the direction of the possible change.
(k) The Units shall have been listed and admitted and authorized for trading on the
Nasdaq Global Market, and satisfactory evidence of such actions shall have been provided to
the Representatives.
(l) At the Execution Time, the Targa Parties shall have furnished to the
Representatives a letter substantially in the form of
Exhibit A
hereto from each
executive officer and director of the General Partner.
(m) The Targa Parties shall have furnished to the Representatives evidence satisfactory
to the Representatives that each of the Transactions shall have occurred or will occur as of
the Closing Date in each case as described in the Disclosure Package and the Prospectus
without modification, change or waiver, except for such modifications, changes or waivers as
have been specifically identified to the Representatives and which, in the judgment of the
Representatives, do not make it impracticable or inadvisable to proceed with the offering
and delivery of the Units on the Closing Date on the terms and in the manner contemplated in
the Disclosure Package and the Prospectus.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as
provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere
in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives
and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Partnership in writing or by telephone or facsimile
confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered at the office of
Baker Botts L.L.P., counsel for the Underwriters, at 910 Louisiana, Houston, Texas 77002, on the
Closing Date.
7.
Reimbursement of Underwriters Expenses
. If the sale of the Units provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied, because of any
termination pursuant to Section 10(i) hereof or because of any refusal, inability or failure on the
part of the Targa Parties to perform any agreement herein or comply with any provision hereof other
than by reason of a default by any of the Underwriters, the Targa Parties will reimburse the
Underwriters severally through Citigroup Global Markets Inc. on demand for all out-of-pocket
expenses (including
41
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Units.
8.
Indemnification and Contribution
.
(a) Each of the General Partner, the Partnership and the Operating Partnership agrees,
jointly and severally, to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the registration
statement for the registration of the Units as originally filed or in any amendment thereof,
or in any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or in
any amendment thereof or supplement thereto or any other issuer information filed or
required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss, claim, damage,
liability or action;
provided
,
however
, that the General Partner, the
Partnership and the Operating Partnership will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the Targa Parties by
or on behalf of any Underwriter through the Representatives specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which the General
Partner, the Partnership or the Operating Partnership may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless
each of the General Partner, the Partnership and the Operating Partnership, each of the
General Partners directors and officers who sign the Registration Statement, and each
person who controls the General Partner, the Partnership or the Operating Partnership within
the meaning of either the Act or the Exchange Act, to the same extent as the foregoing
indemnity from the General Partner, the Partnership and the Operating Partnership to each
Underwriter, but only with reference to written information relating to such Underwriter
furnished to the Targa Parties by or on behalf of such Underwriter through the
Representatives specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any liability
which any Underwriter may otherwise have. Each Targa Party acknowledges that, under the
heading Underwriting, (i) the sentences related to concessions and reallowances and (ii)
the paragraphs related to stabilization, syndicate covering transactions and penalty bids in
the Preliminary Prospectus and the Prospectus and electronic delivery of the Prospectus,
constitute the only information furnished in writing by or on behalf of the
42
several
Underwriters for inclusion in the Preliminary Prospectus, the Prospectus and any Issuer Free
Writing Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of
the commencement of any action, such indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under this Section 8, notify the indemnifying
party in writing of the commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to
the extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not,
in any event, relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying partys choice
at the indemnifying partys expense to represent the indemnified party in any action for
which indemnification is sought (in which case the indemnifying party shall not thereafter
be responsible for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below);
provided
,
however
, that such
counsel shall be reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying partys election to appoint counsel to represent the indemnified party in an
action, the indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs and
expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within a reasonable time after notice
of the institution of such action or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding and does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of any indemnified
party.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8
is unavailable to or insufficient to hold harmless an indemnified party for any reason, the
General Partner, the Partnership, the Operating Partnership and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or defending
the same) (collectively
Losses
) to which the General
43
Partner, the Partnership and
the Operating Partnership and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the General
Partner, the Partnership and the Operating Partnership, on the one hand, and by the
Underwriters, on the other, from the offering of the Units, provided, however, that in no
case shall any Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Units) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Units purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding sentence is unavailable
for any reason, the General Partner, the Partnership and the Operating Partnership and the
Underwriters severally shall contribute in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the General Partner, the
Partnership and the Operating Partnership, on the one hand, and of the Underwriters, on the
other, in connection with the statements or omissions which resulted in such Losses as well
as any other relevant equitable considerations. Benefits received by the General Partner,
the Partnership and the Operating Partnership shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses) received by it, and benefits received
by the Underwriters shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Prospectus. Relative fault
shall be determined by reference to, among other things, whether any untrue or any alleged
untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information provided by the General Partner, the Partnership and the
Operating Partnership, on the one hand, or the Underwriters, on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The General Partner, the Partnership and the
Operating Partnership and the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to above. Notwithstanding
the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of this
Section 8, each person who controls an Underwriter within the meaning of either the Act or
the Exchange Act and each director, officer, employee and agent of an Underwriter shall have
the same rights to contribution as such Underwriter, and each person who controls the
General Partner, the Partnership or the Operating Partnership within the meaning of either
the Act or the Exchange Act, each officer of the any of the General Partner, the Partnership
or the Operating Partnership who shall have signed the Registration Statement and each
director of any of the General Partner, the Partnership or the Operating Partnership shall
have the same rights to contribution as the Targa Parties, subject in each case to the
applicable terms and
conditions of this paragraph (d) to collect such amounts from the General Partner, the
Partnership and the Operating Partnership, except in the event that the General Partner, the
Partnership and the Operating Partnership commences or becomes subject to any bankruptcy,
liquidation, reorganization, moratorium or other proceeding providing protection from
creditors generally.
44
9.
Default by an Underwriter.
If any one or more Underwriters shall fail to purchase and
pay for any of the Units agreed to be purchased by such Underwriter or Underwriters hereunder and
such failure to purchase shall constitute a default in the performance of its or their obligations
under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay
for (in the respective proportions which the number of Units set forth opposite their names in
Schedule I
hereto bears to the aggregate number of Units set forth opposite the names of all the
remaining Underwriters) the Units which the defaulting Underwriter or Underwriters agreed but
failed to purchase;
provided
,
however
, that in the event that the aggregate number of Units which
the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the
aggregate number of Units set forth in
Schedule I
hereto, the remaining Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase any, of the Units, and if
such nondefaulting Underwriters do not purchase all the Units, this Agreement will terminate
without liability to any nondefaulting Underwriter or the Targa Parties. In the event of a default
by any Underwriter as set forth in this Section 9, the Closing Date shall be postponed for such
period, not exceeding five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Targa Parties and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
10.
Termination.
This Agreement shall be
subject to termination in the absolute discretion of the Representatives, by notice given to the
Partnership prior to delivery of and payment for the Units, if at any time prior to such delivery
and payment (i) trading in the Partnerships Common Units shall have been suspended by the
Commission or the Nasdaq, (ii) trading in securities generally on the New York Stock Exchange or
the Nasdaq shall have been suspended or limited or minimum prices shall have been established on
such Exchange, (iii) a banking moratorium shall have been declared either by Federal or New York
State authorities or a material disruption in commercial banking or securities settlement or
clearance services in the United States or (iv) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to make it, in the
sole judgment of the Representatives, impractical or inadvisable to proceed with the offering or
delivery of the Units as contemplated by the Preliminary Prospectus or the Prospectus.
11.
Representations and Indemnities to Survive.
The respective agreements, representations,
warranties, indemnities and other statements of the Targa Parties or their respective officers and
of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter or the Targa
Parties or any of the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for
the Units. The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12.
Notices.
All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be mailed, delivered or
telefaxed to the Citigroup Global Markets Inc. General Counsel (fax no.: 212.816.7912) and
confirmed to the
45
General Counsel, Citigroup Global Markets Inc., at 388 Greenwich Street, New York,
New York, 10013, Attention: General Counsel, Lehman Brothers Inc., 745 Seventh Avenue, New York,
New York 10019, Attention: Syndicate Registration (fax no.: 646.834.8133), with a copy, in the
case of any notice pursuant to Section 8, to the Director of Litigation, Office of the General
Counsel, Lehman Brothers Inc., 399 Park Avenue, 10th Floor, New York, New York 10022 (fax no.:
212.520.0421) and Goldman, Sachs & Co., 85 Broad Street 23rd Floor, Attn: Registration
Department, New York, NY 10004; or, if sent to the Partnership, will be mailed, delivered or
telefaxed to Targa Resources Partners LP and confirmed to it at 1000 Louisiana, Suite 4300,
Houston, Texas 77002, attention of Paul W. Chung, General Counsel (fax no. 713.554.1110) with a
copy to Vinson & Elkins LLP, 1001 Fannin Street, Suite 2500, Houston, Texas 77002 attention of
David P. Oelman (fax no. 713.758.2346).
13.
Successors.
This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective successors and the officers,
directors, employees, agents and controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
14.
No Fiduciary Duty.
Each of the
Targa Parties hereby acknowledges that (a) the purchase and sale of the Units pursuant to this
Agreement is an arms-length commercial transaction between the Targa Parties, on the one hand, and
the Underwriters and any affiliate through which it may be acting, on the other, (b) the
Underwriters are acting as principal and not as an agent or fiduciary of the Targa Parties and (c)
the Targa Parties engagement of the Underwriters in connection with the offering and the process
leading up to the offering is as independent contractors and not in any other capacity.
Furthermore, each of the Targa Parties agrees that it is solely responsible for making its own
judgments in connection with the offering (irrespective of whether any of the Underwriters has
advised or is currently advising the Targa Parties on related or other matters). Each of the Targa
Parties agrees that it will not claim that the Underwriters have rendered advisory services of any
nature or respect, or owe an agency, fiduciary or similar duty to any of the Targa Parties, in
connection with such transaction or the process leading thereto.
15.
Research Analyst Independence.
The Targa Parties acknowledge 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 views and make statements or investment recommendations and/or publish
research reports with respect to the Targa Parties and/or the offering that differ from the views
of their respective investment banking divisions. The Targa Parties hereby waive and release, to
the fullest extent permitted by law, any claims that the Targa Parties 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 Targa Parties by such Underwriters investment banking divisions. The
Targa Parties acknowledge 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.
46
\
16.
Integration.
This Agreement supersedes all prior agreements and understandings (whether
written or oral) between the Targa Parties and the Underwriters, or any of them, with respect to
the subject matter hereof.
17.
Applicable Law.
This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to contracts made and to
be performed within the State of New York.
18.
Waiver of Jury Trial.
Each of the Targa
Parties hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all
right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
19.
Counterparts.
This Agreement may be signed in one or
more counterparts, each of which shall constitute an original and all of which together shall
constitute one and the same agreement.
20.
Headings
The section headings used herein
are for convenience only and shall not affect the construction hereof.
21.
Definitions.
The terms that follow, when used in this Agreement, shall have the
meanings indicated.
Act
shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
Applicable Time
means 5:00 PM (Eastern time) on October 18, 2007 or such other time
as agreed by the Targa Parties and the Representatives.
Business Day
shall mean any day other than a Saturday, a Sunday or a legal holiday
or a day on which banking institutions or trust companies are authorized or obligated by law to
close in New York City.
Commission
shall mean the Securities and Exchange Commission.
Disclosure Package
shall mean (i) the Preliminary Prospectus that is generally
distributed to investors and used to offer the Units, (ii) the Issuer Free Writing Prospectuses, if
any, and the price to the public, the number of Firm Units and the number of Options Units, each
as identified in
Schedule II
hereto, and (iii) any other Free Writing Prospectus that
the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure
Package.
Effective Date
shall mean each date and time that the Registration Statement, any
post-effective amendment or amendments thereto and any Rule 462(b) Registration Statement became or
becomes effective.
Exchange Act
shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder.
47
Execution Time
shall mean the date and time that this Agreement is executed and
delivered by the parties hereto.
Free Writing Prospectus
shall mean a free writing prospectus, as defined in Rule
405.
Issuer Free Writing Prospectus
shall mean an issuer free writing prospectus, as
defined in Rule 433.
Preliminary Prospectus
shall mean any preliminary prospectus referred to in
paragraph 1(a) above and any preliminary prospectus included in the Registration Statement at the
Effective Date that omits Rule 430A Information.
Prospectus
shall mean the prospectus relating to the Units that is first filed
pursuant to Rule 424(b) after the Execution Time.
Registration Statement
shall mean the registration statement referred to in
paragraph 1(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 Closing Date, shall also mean such registration statement as so amended or
such Rule 462(b) Registration Statement, as the case may be.
Rule 158
,
Rule 163
,
Rule 164
,
Rule 172
,
Rule
405
,
Rule 415
,
Rule 424
,
Rule 430A
and
Rule 433
refer
to such rules under the Act.
Rule 430A Information
shall mean information with respect to the Units and the
offering thereof permitted to be omitted from the Registration Statement when it becomes effective
pursuant to Rule 430A.
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 1(a) hereof.
48
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Targa Parties and the several Underwriters.
|
|
|
|
|
|
|
|
|
Very truly yours,
|
|
|
|
|
|
|
|
|
|
|
|
Targa Resources Partners LP
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
Targa Resources GP LLC
its general partner
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Jeffrey J. McParland
|
|
|
|
|
Name:
|
|
Jeffrey J. McParland
|
|
|
|
|
Title:
|
|
Executive Vice President and Chief
|
|
|
|
|
|
|
Financial Officer
|
|
|
|
|
|
|
|
|
|
|
|
Targa Resources GP LLC
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Jeffrey J. McParland
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Jeffrey J. McParland
|
|
|
|
|
Title:
|
|
Executive Vice President and Chief
|
|
|
|
|
|
|
Financial Officer
|
|
|
|
|
|
|
|
|
|
|
|
Targa Resources Operating LP
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
Targa Resources Partners Operating GP LLC
|
|
|
|
|
|
|
its general partner
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Jeffrey J. McParland
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Jeffrey J. McParland
|
|
|
|
|
Title:
|
|
Executive Vice President and Chief
|
|
|
|
|
|
|
Financial Officer
|
|
|
|
|
|
|
|
|
|
|
|
Targa Resources Operating GP LLC
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Jeffrey J. McParland
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Jeffrey J. McParland
|
|
|
|
|
Title:
|
|
Executive Vice President and Chief
|
|
|
|
|
|
|
Financial Officer
|
|
|
49
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Citigroup Global Markets Inc.
Lehman Brothers Inc.
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
|
|
|
|
|
|
|
By:
|
|
Citigroup Global Markets Inc.
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Michael J. Casey, Jr.
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Michael J. Casey, Jr.
|
|
|
|
|
Title:
|
|
Vice President
|
|
|
|
|
|
|
|
|
|
By:
|
|
Lehman Brothers Inc.
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Lee Jacobe
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Lee Jacobe
|
|
|
|
|
Title:
|
|
Managing Director
|
|
|
For themselves and the other
several Underwriters named in
Schedule I
to the foregoing
Agreement.
50
SCHEDULE I
|
|
|
|
|
|
|
Number of Firm Units
|
Underwriters
|
|
to be Purchased
|
Citigroup Global Markets Inc.
|
|
|
2,902,500
|
|
Lehman Brothers Inc.
|
|
|
2,902,500
|
|
Goldman, Sachs & Co.
|
|
|
1,822,500
|
|
Merrill Lynch, Pierce, Fenner & Smith Incorporated
|
|
|
1,822,500
|
|
Wachovia Capital Markets, LLC
|
|
|
810,000
|
|
UBS Securities LLC
|
|
|
810,000
|
|
Credit Suisse Securities (USA) LLC
|
|
|
810,000
|
|
Deutsche Bank Securities Inc.
|
|
|
810,000
|
|
Raymond James & Associates, Inc.
|
|
|
270,000
|
|
RBC Capital Markets Corporation
|
|
|
270,000
|
|
SMH Capital Inc.
|
|
|
270,000
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
13,500,000
|
|
|
|
|
|
|
I-1
SCHEDULE II
|
|
|
|
|
Issuer Free Writing Prospectus:
|
|
NONE
|
|
|
|
|
|
|
|
Pricing Information:
|
|
$26.87
|
|
|
|
|
|
|
|
Unit Information:
|
|
Firm Units: 13,500,000
|
|
|
|
|
|
|
|
|
|
Option Units: 2,025,000
|
|
|
II-1
EXHIBIT A
FORM OF LOCK-UP LETTER
, 2007
Citigroup Global Markets Inc.
Lehman Brothers Inc.
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
As Representatives of the several Underwriters,
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed Underwriting Agreement
(the
Underwriting Agreement
), between Targa Resources Partners LP (the
Partnership
), Targa Resources GP LLC, Targa Resources Operating LP, Targa Resources
Operating GP LLC and each of you as representatives of a group of Underwriters named therein,
relating to an underwritten public offering of units, representing limited partner interests (the
Partnership Units
), in the Partnership.
In order to induce you and the other Underwriters to enter into the Underwriting Agreement,
the undersigned will not, without the prior written consent of Citigroup Global Markets Inc.,
offer, sell, contract to sell, pledge or otherwise dispose of, (or enter into any transaction which
is designed to, or might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or otherwise) by the
undersigned or any affiliate of the undersigned), directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the Securities and Exchange
Commission in respect of, or establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section 16 of the Exchange Act of 1934,
as amended, and the rules and regulations of the Securities and Exchange Commission promulgated
thereunder with respect to, any Common Units of the Partnership or any securities convertible into,
or exercisable or exchangeable for such Common Units, or publicly announce an intention to effect
any such transaction, for a period of 90 days after the date of the Underwriting Agreement, other
than Partnership Units disposed of as bona fide gifts approved by Citigroup Global Markets Inc.
Notwithstanding the foregoing paragraph, if (i) during the last 17 days of the 90-day lock-up
period set forth above (the
Lock-up Period
), the Partnership issues an earnings release
or announces material news or a material event; or (ii) prior to the expiration of the Lock-up
Period, the Partnership announces that it will release earnings results during the 16-day period
A-1
beginning on the last day of the Lock-up Period, then the restrictions described in the
preceding paragraph will continue to apply until the expiration of the 18-day period beginning on
the issuance of the earnings release or the announcement of the material news or material event.
If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as
defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated.
Yours very truly,
A-2
Exhibit 10.2
COMMITMENT INCREASE SUPPLEMENT
This COMMITMENT INCREASE SUPPLEMENT (the
Commitment Increase Supplement
) is made as
of October 24, 2007 by and among TARGA RESOURCES PARTNERS LP, a Delaware limited partnership (the
Borrower
), BANK OF AMERICA, N.A., as administrative agent (in such capacity, the
Administrative Agent
), Collateral Agent, Swing Line Lender and L/C Issuer and the parties
signatory hereto as the Increasing Lenders (hereinafter defined) and the New Lenders (hereinafter
defined).
RECITALS
Borrower, Administrative Agent, the Swing Line Lender, the L/C Issuer and the Lenders named
therein are parties to that certain Credit Agreement dated as of February 14, 2007 (as otherwise
amended, supplemented, restated, increased, extended, or otherwise modified from time to time, the
Credit Agreement
). All terms used herein and not otherwise defined shall have the same
meaning given to them in the Credit Agreement.
Pursuant to
Section 2.14
of the Credit Agreement, upon notice to the Administrative
Agent, Borrower has the right to cause from time to time an increase in the Aggregate Commitments
by adding to the Credit Agreement, subject to the approval of the Administrative Agent, the L/C
Issuer, and the Swing Line Lender one or more additional Lenders (referred to in
Section
2.14(c)
of the Credit Agreement as additional Eligible Assignees) and referred to herein as
the
New Lenders
), or by allowing one or more Lenders to increase their respective
Commitment (such Lenders being referred to herein as the
Increasing Lenders
), subject to
the limitations contained in such
Section 2.14
.
AGREEMENT
1. The Borrower and the parties signatory hereto as the Increasing Lenders and as the New
Lenders hereby agree that, from and after the date hereof, the Increasing Lenders and the New
Lenders shall have the respective Commitments as set forth on the attached
Supplement to
Schedule 2.01
. By its execution and delivery of this Commitment Increase Supplement, each New
Lender hereby assumes all of the rights and obligations of a Lender under the Credit Agreement.
Such Commitments of the New Lenders and the increase in the Commitments of the Increasing Lenders
shall represent an increase in the Aggregate Commitments pursuant to
Section 2.14
of the
Credit Agreement.
2. Administrative Agent, Swing Line Lender, L/C Issuer, and Borrower hereby consent to and
approve the Commitment of each New Lender and the increase in the Commitment of each Increasing
Lender, and such resulting increase in the Aggregate Commitments pursuant to
Section 2.14
of the Credit Agreement.
3. Each New Lender and each Increasing Lender hereby represents and warrants to the
Administrative Agent, Swing Line Lender and L/C Issuer as follows: (a) it has full power and
authority, and has taken all action necessary, to execute and deliver this Commitment Increase
Supplement, to consummate the transactions contemplated hereby and to become or to
1
continue to be a Lender under the Credit Agreement, (b) from and after the Increase Effective
Date (hereinafter defined), it shall be bound by the provisions of the Credit Agreement as a Lender
thereunder and, to the extent of its Commitment, shall have the obligations of a Lender thereunder,
and (c) it has received a copy of the Credit Agreement, together with copies of the most recent
financial statements delivered pursuant to
Section 6.01
thereof, as applicable, and such
other documents and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Commitment Increase Supplement on the basis of which it has made such
analysis and decision independently and without reliance on the Administrative Agent, Swing Line
Lender, L/C Issuer, or any other Lender; and agrees that (1) it will, independently and without
reliance on the Administrative Agent, Swing Line Lender, L/C Issuer or any other Lender, and based
on such documents and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Loan Documents, and (2) it will
perform in accordance with their terms all of the obligations which by the terms of the Loan
Documents are required to be performed by it as a Lender.
4. This Commitment Increase Supplement shall be effective on the date (the
Increase
Effective Date
) that (i) the Borrower and each New Lender and each Increasing Lender each
execute a counterpart hereof and deliver the same to the Administrative Agent, (ii) the
Administrative Agent, Swing Line Lender, and L/C Issuer execute and deliver a counterpart hereof,
(iii) each of the conditions to the increase in the Aggregate Commitments in
Section 2.14
of the Credit Agreement shall have occurred, and (iv) all additional conditions precedent set forth
on the
Conditions Precedent Schedule
attached hereto have been satisfied. From and after
the Increase Effective Date, each New Lender shall be a Lender under the Loan Documents.
5. Upon any increase in the Aggregate Commitments pursuant
Section 2.14
, the Lenders
have authorized the Administrative Agent and the Borrower to make non-ratable borrowings and
prepayments of the Committed Loans, and if any such prepayment requires the payment of Eurodollar
Rate Loans other than on the last day of the applicable Interest Period, Borrower shall pay any
required amounts pursuant to
Section 3.05
, in order to keep the outstanding Committed Loans
ratable with any revised Applicable Percentages arising from any nonratable increase in the
Commitments under this Commitment Increase Supplement. On the Increase Effective Date, each New
Lender and each Increasing Lender shall make a Committed Loan for the account of the Borrower to
implement such provisions of
Section 2.14
of the Credit Agreement.
6. Borrower (a) represents and warrants that, on and as of the Increase Effective Date, before
and after giving effect to the increase in Aggregate Commitments resulting hereunder, (i) the
representations and warranties contained in
Article V
of the Credit Agreement and the other
Loan Documents are true and correct in all material respects, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they are true
and correct in all material respects as of such earlier date, and except that for purposes of this
Commitment Increase Supplement, the representations and warranties contained in subsection (a) of
Section 5.05
shall be deemed to refer to the most recent statements furnished pursuant to
clauses (a) and (b) of
Section 6.01
, and (ii) no Default exists, (b) ratifies and confirms
each of the Loan Documents, (c) agrees that all Loan Documents shall apply to the Obligations as
they are or may be increased by this Commitment Increase Supplement, (d) agrees that its
obligations and covenants under each Loan Document are otherwise unimpaired
2
hereby and shall remain in full force and effect, and (e) covenants, for the benefit of the
Secured Parties, to cause to be issued, not more than 30 days after the Increase Effective Date (or
such longer period as the Administrative Agent may agree in its discretion), the fully paid title
insurance policies described in clause (e)(ii) of the
Conditions Precedent Schedule
in
respect of each of the Sterling, Gillis, Acadia and Mertzen plants.
7. This Commitment Increase Supplement may not be amended, changed, waived or modified, except
by a writing executed by the parties hereto.
8. This Commitment Increase Supplement embodies the entire agreement among each New Lender,
each Increasing Lender, the Borrower, L/C Issuer, Swing Line Lender and the Administrative Agent
with respect to the subject matter hereof and supersedes all other prior arrangements and
understandings relating to the subject matter hereof.
9. This Commitment Increase Supplement may be executed in any number of counterparts each of
which shall be deemed to be an original. Each such counterpart shall become effective when
counterparts have been executed by all parties hereto. Delivery of an executed counterpart of this
Commitment Increase Supplement by telecopier shall be effective as delivery of a manually executed
counterpart of this Commitment Increase Supplement.
10. This Commitment Increase Supplement shall be binding upon and inure to the benefit of each
New Lender and each Increasing Lender and the Borrower and its respective successors and permitted
assigns, except that neither party may assign or transfer any of its rights or obligations
hereunder without the prior written consent of the other party.
11. This Commitment Increase Supplement is a Loan Document, as defined in the Loan Agreement,
and is subject to the provisions of the Credit Agreement governing Loan Documents.
12. This Commitment Increase Supplement shall be governed by, and construed in accordance
with, the laws of the State of New York.
If requested by any New Lender or any Increasing Lender, the Borrower shall execute and
deliver to such New Lender or such Increasing Lender, as of the Increase Effective Date, a Note in
the form attached to the Credit Agreement to evidence the Commitment of such New Lender or such
Increasing Lender. If any Increasing Lender which requests a new Note is in possession of an
existing Note in the amount of its Commitment before giving effect to the increase pursuant to this
Commitment Increase Supplement (each an Existing Note), such Increasing Lender shall, promptly
after receipt of its new Note, mark such Existing Note cancelled and return such Existing Note to
the Borrower.
[
Remainder of page intentionally left blank
.]
3
IN WITNESS WHEREOF, the Administrative Agent, Swing Line Lender, L/C Issuer, Borrower, each
New Lender, and each Increasing Lender have executed this Commitment Increase Supplement as of the
date shown above.
|
|
|
|
|
|
TARGA RESOURCES PARTNERS LP
|
|
|
By:
|
Targa Resources GP LLC, its sole general partner
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Howard M. Tate
|
|
|
|
Howard M. Tate
|
|
|
|
Vice President -- Finance and
Treasurer
|
|
|
|
|
|
|
|
|
BANK OF AMERICA, N.A.
, as Administrative Agent
|
|
|
By:
|
/s/ Christopher Smith
|
|
|
|
Name:
|
Christopher Smith
|
|
|
|
Title:
|
Senior Vice President
|
|
|
|
|
|
|
|
|
BANK OF AMERICA, N.A.
, as L/C Issuer and Swing Line Lender
|
|
|
By:
|
/s/ Christopher Smith
|
|
|
|
Name:
|
Christopher Smith
|
|
|
|
Title:
|
Senior Vice President
|
|
|
|
|
|
|
|
|
BANK OF AMERICA, N.A.
,
as an Increasing Lender
|
|
|
By:
|
/s/ Christopher Smith
|
|
|
|
Name:
|
Christopher Smith
|
|
|
|
Title:
|
Senior Vice President
|
|
|
|
|
|
|
|
|
WACHOVIA BANK, NATIONAL ASSOCIATION
,
as an Increasing Lender
|
|
|
By:
|
/s/ Leanne S. Phillips
|
|
|
|
Name:
|
Leanne S. Phillips
|
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
|
|
MERRILL LYNCH CAPITAL, A DIVISION
OF MERRILL LYNCH BUSINESS FINANCIAL SERVICES INC.
, as an Increasing Lender
|
|
|
By:
|
/s/ Gregory B. Hanson
|
|
|
|
Name:
|
Gregory B. Hanson
|
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
ROYAL BANK OF CANADA
, as an Increasing Lender
|
|
|
By:
|
/s/ David A. McCluskey
|
|
|
|
Name:
|
David A. McCluskey
|
|
|
|
Title:
|
Authorized Signatory
|
|
|
|
|
|
|
|
|
THE ROYAL BANK OF SCOTLAND PLC
, as an Increasing Lender
|
|
|
By:
|
/s/ Matthew Main
|
|
|
|
Name:
|
Matthew Main
|
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
|
|
|
BNP PARIBAS
, as an Increasing Lender
|
|
|
By:
|
/s/ Richard Hawthorne
|
|
|
|
Name:
|
Richard Hawthorne
|
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Greg Smothers
|
|
|
|
Name:
|
Greg Smothers
|
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
ABN AMRO BANK N.V.
, as an Increasing Lender
|
|
|
By:
|
/s/ John D. Reed
|
|
|
|
Name:
|
John D. Reed
|
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ M. Aamir Khan
|
|
|
|
Name:
|
M. Aamir Khan
|
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
THE BANK OF NOVA SCOTIA
, as an Increasing Lender
|
|
|
By:
|
/s/ A. Ostrov
|
|
|
|
Name:
|
A. Ostrov
|
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
|
|
CITIBANK, N.A.
, as an Increasing Lender
|
|
|
By:
|
/s/ Ashish Sethi
|
|
|
|
Name:
|
Ashish Sethi
|
|
|
|
Title:
|
Attorney-in-Fact
|
|
|
|
|
|
|
|
|
AMEGY BANK NATIONAL
ASSOCIATION
, as an Increasing Lender
|
|
|
By:
|
/s/ W. Bryan Chapman
|
|
|
|
Name:
|
W. Bryan Chapman
|
|
|
|
Title:
|
Senior Vice President
|
|
|
|
|
|
|
|
|
COMPASS BANK
, as an Increasing Lender
|
|
|
By:
|
/s/ Adrianne D. Griffin
|
|
|
|
Name:
|
Adrianne D. Griffin
|
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
U.S. BANK NATIONAL ASSOCIATION
, as an Increasing Lender
|
|
|
By:
|
/s/ Justin N. Alexander
|
|
|
|
Name:
|
Justin N. Alexander
|
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
FORTIS CAPITAL CORP.
, as an Increasing Lender
|
|
|
By:
|
/s/ Darrell Holley
|
|
|
|
Name:
|
Darrell Holley
|
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Casey Lowary
|
|
|
|
Name:
|
Casey Lowary
|
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
|
JPMORGAN CHASE BANK, N.A.
, as an Increasing Lender
|
|
|
By:
|
/s/ Kevin J. Utsey
|
|
|
|
Name:
|
Kevin J. Utsey
|
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
COMERICA BANK
, as an Increasing Lender
|
|
|
By:
|
/s/ Josh Strong
|
|
|
|
Name:
|
Josh Strong
|
|
|
|
Title:
|
Assistant Vice President
|
|
|
|
|
|
|
|
|
GUARANTY BANK
, as an Increasing Lender
|
|
|
By:
|
/s/ Jim R. Hamilton
|
|
|
|
Name:
|
Jim R. Hamilton
|
|
|
|
Title:
|
Senior Vice President
|
|
|
|
|
|
|
|
|
NATIXIS
, as an Increasing Lender
|
|
|
By:
|
/s/ Donovan Broussard
|
|
|
|
Name:
|
Donovan Broussard
|
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Louis P. Laville, III
|
|
|
|
Name:
|
Louis P. Laville, III
|
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
|
|
UBS LOAN FINANCE LLC
, as an Increasing Lender
|
|
|
By:
|
/s/ David B. Julie
|
|
|
|
Name:
|
David B. Julie
|
|
|
|
Title:
|
Associate Director
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Irja R. Otsa
|
|
|
|
Name:
|
Irja R. Otsa
|
|
|
|
Title:
|
Associate Director
|
|
|
|
|
|
|
|
LEHMAN BROTHERS COMMERCIAL
BANK
, as an Increasing Lender
|
|
|
By:
|
/s/ George Janes
|
|
|
|
Name:
|
George Janes
|
|
|
|
Title:
|
Chief Credit Officer
|
|
|
|
|
|
|
|
|
CREDIT SUISSE
, as an Increasing Lender
|
|
|
By:
|
/s/ James Moran
|
|
|
|
Name:
|
James Moran
|
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Nupur Kumar
|
|
|
|
Name:
|
Nupur Kumar
|
|
|
|
Title:
|
Associate
|
|
|
|
|
|
|
|
GOLDMAN SACHS CREDIT PARTNERS
L.P.,
as an Increasing Lender
|
|
|
By:
|
/s/ Mark Walton
|
|
|
|
Name:
|
Mark Walton
|
|
|
|
Title:
|
Authorized Signatory
|
|
|
|
|
|
|
|
|
RAYMOND JAMES BANK, FSB
, as a New Lender
|
|
|
By:
|
/s/ Garrett McKinnon
|
|
|
|
Name:
|
Garrett McKinnon
|
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
DEUTSCHE BANK TRUST COMPANY AMERICAS
, as a New Lender
|
|
|
By:
|
/s/ Dusan Lazarov
|
|
|
|
Name:
|
Dusan Lazarov
|
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Erin Morrissey
|
|
|
|
Name:
|
Erin Morrissey
|
|
|
|
Title:
|
Vice President
|
|
|
SUPPLEMENT TO SCHEDULE 2.01
OF THE CREDIT AGREEMENT
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Existing
|
|
New
|
|
Amount of
|
|
|
Commitment
|
|
Commitment
|
|
Commitment
|
Lender
|
|
Amount
|
|
Amount
|
|
Increase
|
Bank of America, N.A.
|
|
$
|
29,750,000
|
|
|
$
|
42,500,000
|
|
|
$
|
12,750,000
|
|
Wachovia Bank, National Association
|
|
$
|
29,750,000
|
|
|
$
|
42,500,000
|
|
|
$
|
12,750,000
|
|
Royal Bank of Canada
|
|
$
|
29,500,000
|
|
|
$
|
42,000,000
|
|
|
$
|
12,500,000
|
|
The Royal Bank of Scotland PLC
|
|
$
|
29,500,000
|
|
|
$
|
42,000,000
|
|
|
$
|
12,500,000
|
|
Merrill Lynch Capital, a division
of Merrill Lynch Business Financial
Services Inc.
|
|
$
|
29,500,000
|
|
|
$
|
40,000,000
|
|
|
$
|
10,500,000
|
|
The Bank of Nova Scotia
|
|
$
|
29,000,000
|
|
|
$
|
35,000,000
|
|
|
$
|
6,000,000
|
|
ABN AMRO Bank N.V.
|
|
$
|
25,000,000
|
|
|
$
|
35,000,000
|
|
|
$
|
10,000,000
|
|
BNP Paribas
|
|
$
|
25,000,000
|
|
|
$
|
35,000,000
|
|
|
$
|
10,000,000
|
|
Compass Bank
|
|
$
|
19,000,000
|
|
|
$
|
35,000,000
|
|
|
$
|
16,000,000
|
|
Citibank, N.A.
|
|
$
|
19,000,000
|
|
|
$
|
35,000,000
|
|
|
$
|
16,000,000
|
|
JPMorgan Chase Bank, N.A.
|
|
$
|
19,000,000
|
|
|
$
|
25,000,000
|
|
|
$
|
6,000,000
|
|
Amegy Bank National Association
|
|
$
|
19,000,000
|
|
|
$
|
25,000,000
|
|
|
$
|
6,000,000
|
|
Guaranty Bank
|
|
$
|
19,000,000
|
|
|
$
|
25,000,000
|
|
|
$
|
6,000,000
|
|
U.S. Bank National Association
|
|
$
|
19,000,000
|
|
|
$
|
25,000,000
|
|
|
$
|
6,000,000
|
|
Comerica Bank
|
|
$
|
19,000,000
|
|
|
$
|
25,000,000
|
|
|
$
|
6,000,000
|
|
Fortis Capital Corp.
|
|
$
|
19,000,000
|
|
|
$
|
25,000,000
|
|
|
$
|
6,000,000
|
|
Natixis
|
|
$
|
15,000,000
|
|
|
$
|
22,000,000
|
|
|
$
|
7,000,000
|
|
UBS Loan Finance LLC
|
|
$
|
14,000,000
|
|
|
$
|
25,000,000
|
|
|
$
|
11,000,000
|
|
Credit Suisse
|
|
$
|
14,000,000
|
|
|
$
|
25,000,000
|
|
|
$
|
11,000,000
|
|
Goldman Sachs Credit Partners L.P.
|
|
$
|
14,000,000
|
|
|
$
|
25,000,000
|
|
|
$
|
11,000,000
|
|
Lehman Brothers Commercial Bank
|
|
$
|
14,000,000
|
|
|
$
|
19,000,000
|
|
|
$
|
5,000,000
|
|
Deutsche Bank Trust Company Americas
|
|
|
|
|
|
$
|
25,000,000
|
|
|
$
|
25,000,000
|
|
Raymond James Bank, FSB
|
|
|
|
|
|
$
|
25,000,000
|
|
|
$
|
25,000,000
|
|
TOTAL
|
|
|
|
|
|
|
|
|
|
$
|
250,000,000
|
|
CONSENT AND AGREEMENT
October __, 2007
The undersigned Guarantors each hereby consents to the provisions of this Commitment Increase
Supplement and the transactions contemplated herein and hereby ratifies and confirms each of the
Loan Documents to which it is a party, and, without limiting the foregoing, agree that such Loan
Documents shall apply to the Obligations as they are or may be increased by this Commitment
Increase Supplement and that its obligations and covenants under such Loan Documents are otherwise
unimpaired hereby and shall remain in full force and effect.
|
|
|
|
|
|
TARGA RESOURCES OPERATING LP
|
|
|
By:
|
Targa Resources Operating GP LLC,
its sole general partner
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Howard M. Tate
|
|
|
|
Howard M. Tate
|
|
|
|
Vice President Finance and
Treasurer
|
|
|
|
|
|
|
|
|
TARGA RESOURCES OPERATING GP LLC
|
|
|
By:
|
/s/ Howard M. Tate
|
|
|
|
Howard M. Tate
|
|
|
|
Vice President Finance and
Treasurer
|
|
|
|
|
|
|
|
|
TARGA NORTH TEXAS LP
|
|
|
By:
|
Targa North Texas GP LLC,
its sole general partner
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Howard M. Tate
|
|
|
|
Howard M. Tate
|
|
|
|
Vice President Finance and
Treasurer
|
|
|
|
|
|
|
|
TARGA NORTH TEXAS GP LLC
|
|
|
By:
|
/s/ Howard M. Tate
|
|
|
|
Howard M. Tate
|
|
|
|
Vice President Finance and
Treasurer
|
|
|
|
|
|
|
|
|
TARGA INTRASTATE PIPELINE LLC
|
|
|
By:
|
/s/ Howard M. Tate
|
|
|
|
Howard M. Tate
|
|
|
|
Vice President Finance and
Treasurer
|
|
|
Address of each Guarantor:
1000 Louisiana, Suite 4300
Houston, Texas 77002
Attention: Vice President Finance
Telephone: 713.584.1024
Telecopier: 713.584.1523
Conditions Precedent Schedule
1. The Borrower shall have delivered to the Administrative Agent, in form reasonably satisfactory
to the Administrative Agent:
|
|
(a) a certificate of the Borrower that (i) all conditions precedent to the
acquisition by the Borrower of Targa Resources Texas GP LLC, Targa Texas Field Services LP
and Targa Louisiana Field Services LLC (the
Acquired Companies
) pursuant to the Purchase
and Sale Agreement dated September 18, 2007 with Targa Resources, Inc. (the
Purchase and
Sale Agreement
) shall have been satisfied or waived (in compliance with (iii) below), (ii)
that closing and funding of such acquisition by the Borrower of the Acquired Companies shall
be consummated on a substantially contemporaneous basis with the delivery of such
certificate and (iii) there have been no material alterations, amendments or changes in the
Purchase and Sale Agreement or other agreements, instruments and documents relating to the
acquisition of the Acquired Companies, and no material condition contained in the Purchase
and Sale Agreement or such other agreements, instruments and documents shall have been
waived without the prior written consent of the Administrative Agent (which consent shall
not be unreasonably withheld).
|
|
|
|
(b) releases in respect of all existing Liens on the Equity Interests and the assets of the
Acquired Companies other than Liens permitted under Section 7.01 of the Credit Agreement;
|
|
|
|
(c) Guaranty Supplement executed by each of Targa Resources Texas GP LLC, Targa Texas Field
Services LP, Targa Louisiana Field Services LLC and Targa Louisiana Intrastate LLC;
|
|
|
|
(d) Security Documents satisfactory for the creation and perfection of valid first priority
Liens (subject to Liens permitted by Section 7.01 of the Credit Agreement) on and security
interests in the Equity Interests and the assets of the Acquired Companies to secure the
Obligations under the Credit Agreement;
|
|
|
|
(e) in respect of each of the Sterling, Gillis, Acadia and Mertzen plants (i) title
commitments or other evidence satisfactory to the Administrative Agent of satisfactory title
thereto, and (ii) no more than 30 days after the Increase Effective Date (or such longer
period as the Administrative Agent may agree in its discretion), a fully paid title
insurance policy in form and substance, with endorsements and in amounts reasonably
acceptable to the Administrative Agent and Collateral Agent, issued, coinsured and reinsured
by title insurers reasonably acceptable to the Administrative Agent and Collateral Agent,
insuring the Mortgage in respect of such property to be valid first and subsisting Liens on
the property described therein, free and clear of all defects (including, but not limited
to, mechanics and materialmens Liens) and encumbrances, excepting only Liens permitted
under the Loan Documents, and providing for such other affirmative insurance (including
endorsements for future advances under the Loan Documents and for mechanics and
materialmens Liens) and such coinsurance and direct access reinsurance as the
Administrative Agent may deem necessary or desirable;
|
|
|
(f) a favorable opinion of (i) Bracewell & Giuliani LLP., New York and Texas counsel
to the Loan Parties, and (ii) Schully Roberts Slattery & Marino, Louisiana counsel to the
Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters as
the Administrative Agent may reasonably request;
|
|
|
|
(g) a certificate of the Secretary of each Loan Party certifying (i) true and correct
copies of the resolutions adopted by each Loan Party approving or consenting to such
increase, and such resolutions have not been amended, altered or repealed and are in effect
on the date hereof; (ii) that none of the incumbency certificates and/or other certificates
of Responsible Officers of each Loan Party as the Administrative Agent has previously
required evidencing the identity, authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with the Security Documents to
which such Loan Party is a party have been amended since they were delivered, and (iii) that
the execution and delivery of the Security Documents has been duly authorized; and
|
|
|
|
(h) such other documents and certifications as the Administrative Agent may reasonably
require to evidence that each Loan Party is duly organized or formed, and that each Loan
Party is validly existing, in good standing and qualified to engage in business in each
jurisdiction where its ownership, lease or operation of properties or the conduct of its
business requires such qualification.
|
2. The receipt by the Borrower of additional equity investments to fund the purchase of the
Acquired Companies of at least $345,000,000 (prior to deduction of customary issuance costs and
expenses);
3. The purchase price for the Acquired Companies, as adjusted pursuant to the Purchase and Sale
Agreement, shall not exceed $735,000,000; and
4. The Borrower shall have paid all fees required to be paid to Administrative Agent in connection
with the Commitment Increase Supplement and all other fees and reimbursements to be paid pursuant
to any Loan Documents, including fees and disbursements of Administrative Agents attorneys to the
extent invoiced prior to the Increase Effective Date.
EXHIBIT 10.5
AMENDED AND RESTATED
OMNIBUS AGREEMENT
among
TARGA RESOURCES, INC.
TARGA RESOURCES GP LLC
and
TARGA RESOURCES PARTNERS LP
AMENDED AND RESTATED
OMNIBUS AGREEMENT
THIS AMENDED AND RESTATED OMNIBUS AGREEMENT (
Agreement
) is entered into on, and effective as
of, October 24, 2007, and is by and among Targa Resources, Inc., a Delaware corporation (
Targa
),
Targa Resources LLC, Targa Resources GP LLC, a Delaware limited liability company (the
General
Partner
) and Targa Resources Partners LP, a Delaware limited partnership (the
Partnership
). The
above-named entities are sometimes referred to in this Agreement each as a
Party
and collectively
as the
Parties
.
R E C I T A L S:
1. The Parties entered into that certain Omnibus Agreement, dated and effective as of the
Closing Date (as defined herein) (the
Current Agreement
), to (i) evidence their agreement with
respect to the amount to be paid by the Partnership for certain general and administrative services
to be performed by Targa and its Affiliates as well as direct expenses, including operating
expenses, incurred by Targa and its Affiliates for and on behalf of the Partnership Group (as
defined herein) and (ii) evidence their agreement with respect to certain indemnification
obligations of the Parties.
2. The Parties desire to amend and restate the Current Agreement to, among other things,
reflect the purchase of the SAOU/LOU Business (as defined herein) by the Partnership from certain
Affiliates of Targa.
In consideration of the agreements contained herein, and for other good and valuable
consideration, the Parties hereby amend and restate the Current Agreement as follows:
ARTICLE I
Definitions
1.1
Definitions.
As used in this Agreement, the following terms shall have the respective meanings set
forth below:
Affiliate
is defined in the Partnership Agreement.
Closing Date
means the date of the closing of the Partnerships initial public
offering of Common Units.
Common Units
is defined in the Partnership Agreement.
Conflicts Committee
is defined in the Partnership Agreement.
Covered Environmental Losses
means all environmental losses, damages, liabilities,
claims, demands, causes of action, judgments, settlements, fines, penalties, costs and
expenses (including, without limitation, costs and expenses of any
Environmental
Activity, court costs and reasonable attorneys and experts fees) of any and every kind or character,
by reason of or arising out of:
(i) any violation or correction of violation of Environmental Laws, including without
limitation performance of any Environmental Activity; or
(ii) any event, omission or condition associated with ownership or operation of the
North Texas Assets relating to Environmental Activities (including, without limitation, the
exposure to or presence of Hazardous Substances on, under, about or migrating to or from the
North Texas Assets or the exposure to or release of Hazardous Substances arising out of
operation of the North Texas Assets) including, without limitation, (A) the cost and expense
of any Environmental Activities, (B) the cost or expense of the preparation and
implementation of any closure, remedial or corrective action or other plans required or
necessary under Environmental Laws and (C) the cost and expense for any environmental or
toxic tort pre-trial, trial or appellate legal or litigation support work;
provided
, in the
case of clauses (A) and (B), such cost and expense shall not include the costs associated
with project management and soil and ground water monitoring.
CPI Index
is defined in Section 2.1(c) of this Agreement.
Environmental Activities
shall mean any investigation, study, assessment, evaluation,
sampling, testing, monitoring, containment, removal, disposal, closure, corrective action,
remediation (regardless of whether active or passive), natural attenuation, restoration,
bioremediation, response, repair, corrective measure, cleanup or abatement that is required
or necessary under any applicable Environmental Law, including, but not limited to,
institutional or engineering controls or participation in a governmental voluntary cleanup
program to conduct voluntary investigatory and remedial actions for the clean-up, removal or
remediation of Hazardous Substances that exceed actionable levels established pursuant to
Environmental Laws, or participation in a supplemental environmental project in partial or
whole mitigation of a fine or penalty.
Environmental Laws
means all federal, state, and local laws, statutes, rules,
regulations, orders, judgments, ordinances, codes, injunctions, decrees, Environmental
Permits and other legally enforceable requirements and rules of common law relating to (a)
pollution or protection of the environment or natural resources including, without
limitation, the federal Comprehensive Environmental Response, Compensation and Liability
Act, the Superfund Amendments and Reauthorization Act, the Resource Conservation and
Recovery Act, the Clean Air Act, the Clean Water Act, the Safe Drinking Water Act, the Toxic
Substances Control Act, the Oil Pollution Act of 1990, the Hazardous Materials
Transportation Act, the Marine Mammal Protection Act, the Endangered Species Act, the
National Environmental Policy Act and other environmental conservation and protection laws,
each as amended through the Closing Date, (b) any release or threatened release of, or any
exposure of any Person or property to, any Hazardous Substances and (c) the generation,
manufacture, processing, distribution, use, treatment, storage, transport or handling of any
Hazardous Substances.
-2
Environmental
Permit
means any permit, approval, identification number, license,
registration, consent, exemption, variance or other authorization required under or issued
pursuant to any applicable Environmental Law.
G&A Expenses Limit
is defined in Section 2.1(c) of this Agreement.
General
Partner
is defined in the introduction to this Agreement.
Hazardous Substance
means (a) any substance that is designated, defined or classified
as a hazardous waste, solid waste, hazardous material, pollutant, contaminant or toxic or
hazardous substance, or terms of similar meaning, or that is otherwise regulated under any
Environmental Law, including, without limitation, any hazardous substance as defined under
the Comprehensive Environmental Response, Compensation and Liability Act, as amended, (b)
oil as defined in the Oil Pollution Act of 1990, as amended, including oil, gasoline,
natural gas, fuel oil, motor oil, waste oil, diesel fuel, jet fuel and other refined
petroleum hydrocarbons and petroleum products and (c) radioactive materials, asbestos
containing materials or polychlorinated biphenyls.
Indemnified Party
means each Partnership Group Member and Targa in their capacities
as parties entitled to indemnification in accordance with Article III.
Indemnifying Party
means each of Targa and the Partnership Group, as the case may be,
in their capacity as the parties from whom indemnification may be required in accordance
with Article III.
Limited Partner
is defined in the Partnership Agreement.
Losses
means all losses, damages, liabilities, claims, demands, causes of action,
judgments, settlements, fines, penalties, costs and expenses (including, without limitation,
court costs and reasonable attorneys and experts fees) of any and every kind or character.
North Texas Assets
means the gathering and processing assets to be contributed to the
Partnership in connection with its initial public offering and as more completely described
in the Registration Statement and includes the pipelines, processing plants or related
equipment or assets, or portions thereof, conveyed, contributed or otherwise transferred or
intended to be conveyed, contributed or otherwise transferred to any member of the
Partnership Group, or owned by or necessary for the operation of the business, properties or
assets of any member of the Partnership Group, prior to or as of the Closing Date.
Partnership
is defined in the introduction to this Agreement.
Partnership Agreement
means the First Amended and Restated Agreement of Limited
Partnership of Targa Resources Partners LP, dated as of the Closing Date, as such agreement
is in effect on the Closing Date, to which reference is hereby made for all purposes of this
Agreement. No amendment or modification to the Partnership Agreement subsequent to the
Closing Date shall be given effect for the purposes of this
-3
Agreement unless such amendment
receives the approval required pursuant to Section 4.5 hereof.
Partnership Entities
means the General Partner and each member of the Partnership
Group.
Partnership Group
means the Partnership and its Subsidiaries treated as a single
consolidated entity.
Partnership Group Member
means any member of the Partnership Group.
Partnership Indemnitee
shall mean any Person who is an Indemnitee (as defined in the
Partnership Agreement); provided, that the term Partnership Indemnitee shall exclude Targa
and any Affiliate of Targa which is not a member of the Partnership Group.
Party
and
Parties
are defined in the introduction to this Agreement.
Person
means an individual or a corporation, limited liability company, partnership,
joint venture, trust, business trust, employee benefit plan, unincorporated organization,
association, government agency or political subdivision thereof or other entity.
Registration Statement
means the Registration Statement on Form S-1 (Registration No.
333-138747) filed with the Securities and Exchange Commission with respect to the proposed
initial public offering of Common Units by the Partnership.
Subsidiary
means, with respect to any Person, (a) a corporation of which more than
50% of the voting power of shares entitled (without regard to the occurrence of any
contingency) to vote in the election of directors or other governing body of such
corporation is owned, directly or indirectly, at the date of determination, by such Person,
by one or more Subsidiaries of such Person or a combination thereof, (b) a partnership
(whether general or limited) in which such Person or a Subsidiary of such Person is, at the
date of determination, a general or limited partner of such partnership, but only if more
than 50% of the partnership interests of such partnership (considering all of the
partnership interests of the partnership as a single class) is owned, directly or
indirectly, at the date of determination, by such Person, by one or more Subsidiaries of
such Person, or a combination thereof, or (c) any other Person (other than a corporation or
a partnership) in which such Person, one or more Subsidiaries of such Person, or a
combination thereof, directly or indirectly, at the date of determination, has (i) at least
a majority ownership interest or (ii) the power to elect or direct the election of a
majority of the directors or other governing body of such Person.
Targa
is defined in the introduction to this Agreement.
-4
ARTICLE II
Reimbursement Obligations
2.1
Reimbursement for Allocated General and Administrative Expenses; Limitations on
Reimbursement.
(a) Targa hereby agrees to continue to provide the Partnership Group with certain
general and administrative services, such as legal, accounting, treasury, insurance, risk
management, health, safety and environmental, information technology, human resources, credit,
payroll, internal audit, taxes, engineering and marketing. These general and administrative
services shall be substantially identical in nature and quality to the services of such type
previously provided by Targa in connection with their management and operation of the North Texas
Assets prior to their acquisition by the Partnership. In the event that the Partnership Group
makes any acquisitions of assets or businesses from Targa or its Affiliates during the first three
years following the Closing Date, Targa will similarly provide general and administrative services
that are substantially identical in nature and quality to the services of such type previously
provided by Targa in connection with their management and operation of such assets or businesses
prior to their acquisition by the Partnership.
(b) Subject to the provisions of Section 2.1(c) below, the Partnership Group hereby agrees to
reimburse Targa for all expenses and expenditures Targa or its Affiliates incur or payments they
make on behalf of the Partnership Group for these general and administrative services.
(c) The amount for which Targa shall be entitled to reimbursement from the Partnership Group
pursuant to Section 2.1(b) for general and administrative expenses shall not exceed $5.0 million
annually for a period of three (3) years following the Closing Date (the
G&A Expenses Limit
).
Following the first anniversary of this Agreement, the G&A Expenses Limit shall be increased
annually over the next two years by the percentage increase in the Consumer Price Index All Urban
Consumers, U.S. City Average, Not Seasonally Adjusted for the applicable year (the
CPI Index"
).
In making such adjustment, the G&A Expenses Limit shall be increased on the first anniversary of
this Agreement by the CPI Index for the prior year period based on the most recent information
available from the U.S. Department of Labor and similarly increased on the second anniversary of
this Agreement by the CPI Index for the prior year period. In the event that the Partnership Group
makes any acquisitions of assets or businesses or the business of the Partnership Group otherwise
expands during the first three years following the Closing Date, then the G&A Expenses Limit shall
be appropriately increased in order to account for adjustments in the nature and extent of the
general and administrative services by Targa to the Partnership Group, with any such increase in
the G&A Expenses Limit subject to the approval of the Conflicts Committee. From and after the date
first set forth above, the G&A Expenses Limit is increased by the actual amount of general and
administrative expenses allocated by Targa for the services provided to Targa Texas Field Services
LP and Targa Louisiana Field Services LLC (the SAOU/LOU Business), according to the allocation
methodology utilized by Targa. After the third anniversary of the Closing Date, the G&A Expenses
Limit will no longer apply and the General Partner will determine the amount of general and
administrative expenses that will be properly allocated to the Partnership in accordance with the
terms of the Partnership Agreement. The G&A Expenses Limit shall not apply to reimbursement for
direct expenses of the Partnership as provided in Section 2.2.
-5
2.2
Reimbursement for Direct Expenses.
(a) The Partnership Group hereby agrees to reimburse
Targa and its Affiliates for all direct expenses and expenditures they incur or payments they make
on behalf of the Partnership Group, including, but not limited to, (i) salaries of operational
personnel performing services on the Partnership Groups behalf, the cost of employee benefits for
such personnel and general and administrative expense associated with such personnel, (ii) capital
expenditures, (iii) maintenance and repair costs, (iv) taxes and (v) direct expenses, including
operating expenses and certain allocated operating expenses, associated with the ownership and
operation of the North Texas Assets and the SAOU/LOU Business.
(b) The Partnership Group hereby agrees to reimburse Targa and its Affiliates for all expenses
and expenditures they incur or payments they make as a result of the Partnership becoming a
publicly traded entity, including costs associated with annual and quarterly reports, tax return
and Schedule K-1 preparation and distribution, independent auditor fees, registrar and transfer
agent fees, legal fees and independent director compensation.
(c) The obligation of the Partnership Group to reimburse Targa and its Subsidiaries pursuant
to this Section 2.2 shall not be subject to any monetary limitation, including the G&A Expenses
Limit contained in Section 2.1.
ARTICLE III
Indemnification
3.1
Environmental Indemnification.
(a) Subject to the provisions of Section 3.3, Targa shall indemnify, defend and hold harmless
the Partnership Group and the Partnership Indemnitees from and against any Covered Environmental
Losses suffered or incurred by the Partnership Group or any Partnership Indemnitee relating to the
North Texas Assets for a period of three (3) years from the Closing Date but only to the extent
such violations, corrections, events or conditions occurred on or before the Closing Date;
provided, however
, that such indemnity shall not apply to any Covered Environmental Losses reserved
on the books of the Partnership Group as of the Closing Date.
(b) The Partnership Group shall indemnify, defend and hold harmless Targa and its Affiliates,
other than any Partnership Group Member, from and against any Covered Environmental Losses suffered
or incurred by Targa and its Affiliates, other than any Partnership Group Member, relating to the
North Texas Assets occurring after the Closing Date except to the extent that the Partnership Group
is indemnified with respect to any of such Covered Environmental Losses under Section 3.1(a).
(c) The aggregate liability of Targa under Section 3.1(a) shall not exceed $10.0 million.
(d) No claims may be made against Targa for indemnification pursuant to Section 3.1(a) unless
the aggregate dollar amount of the Losses suffered or incurred by the Partnership Group or
Partnership Indemnitees exceed $250,000, after such time Targa shall be liable for the full amount
of such claims, subject to the limitations of Section 3.1(c).
-6
(e) Notwithstanding anything herein to the contrary, in no event shall Targa have any
indemnification obligations under this Agreement for claims made as a result of additions to or
modifications of Environmental Laws promulgated after the Closing Date.
3.2
Additional Indemnification
(a) Subject to the provisions of Section 3.3, Targa shall indemnify, defend and hold harmless
the Partnership Group and the Partnership Indemnitees from and against any Losses suffered or
incurred by the Partnership Group or any Partnership Indemnitee by reason of or arising out of:
(i) the failure of the Partnership Group to be the owner of valid and
indefeasible easement rights, leasehold and/or fee ownership interests in and to the
lands on which are located any North Texas Assets, and such failure renders the
Partnership Group liable or unable to use or operate the North Texas Assets in
substantially the same manner that the North Texas Assets were used and operated by
Targa and its Affiliates immediately prior to the Closing Date as described in the
Registration Statement;
(ii) the failure of the Partnership Group to have on the Closing Date any
consent or governmental permit necessary to allow (i) the transfer of any of the
North Texas Assets to the Partnership Group on the Closing Date or (ii) any such
North Texas Assets to cross the roads, waterways, railroads and other areas upon
which any such North Texas Assets are located as of the Closing Date, and any such
failure specified in such clause (ii) renders the Partnership Group unable to use or
operate the North Texas Assets in substantially the same manner that the North Texas
Assets were owned and operated by Targa and its Affiliates immediately prior to the
Closing Date as described in the Registration Statement;
(iii) all federal, state and local income tax liabilities attributable to the
ownership or operation of the North Texas Assets prior to the Closing Date,
including any such income tax liabilities of Targa and its Affiliates that may
result from the consummation of the formation transactions for the Partnership Group
occurring on or prior to the Closing Date; and
(iv) all pending legal actions as of the Closing Date against one or more
Partnership Group Members involving or otherwise relating to the North Texas Assets;
provided
,
however
, that, in the case of clauses (i), (ii) and (iv) above, such indemnification
obligations shall survive for three (3) years from the Closing Date; and that in the case of clause
(iii) above, such indemnification obligations shall survive after the expiration of any applicable
statute of limitations;
provided, further,
that in the case of clauses (i), (ii), (iii) and (iv) above, such
indemnification shall not include indemnity for Losses reserved on the books of the Partnership
Group as of the Closing Date;
-7
provided, further
, no claims may be made against Targa for indemnification pursuant to Section 3.2
unless the aggregate dollar amount of the Losses suffered or incurred by the Partnership Group or
Partnership Indemnitees exceed $250,000, after such time Targa shall be liable for the full amount
of such claims.
(b) In addition to and not in limitation of the indemnification provided under this Article
III, the Partnership Group shall indemnify, defend, and hold harmless Targa and its Affiliates,
other than any Partnership Group Member, from and against any Losses suffered or incurred by Targa
and its Affiliates, other than any Partnership Group Member, by reason of or arising out of events
and conditions associated with the operation of the North Texas Assets that occurs on or after the
Closing Date except to the extent that the Partnership Group is indemnified with respect to any
such Losses under Section 3.2(a).
3.3
Indemnification Procedures.
(a) The Indemnified Party agrees that within a reasonable period of time after it becomes
aware of facts giving rise to a claim for indemnification pursuant to this Article III, they will
provide notice thereof in writing to the Indemnifying Party specifying the nature of and specific
basis for such claim;
provided
,
however
, that the Indemnified Party shall not submit claims more
frequently than once a calendar quarter (or twice in the case of the last calendar quarter prior to
the expiration of the applicable indemnity coverage under this Agreement).
(b) The Indemnifying Party shall have the right to control all aspects of the defense of (and
any counterclaims with respect to) any claims brought against the Indemnified Party that are
covered by the indemnification set forth in this Article III, including, without limitation, the
selection of counsel, determination of whether to appeal any decision of any court or similar
authority and the settling of any such matter or any issues relating thereto;
provided
,
however
,
that no such settlement shall be entered into without the consent (which consent shall not be
unreasonably withheld, conditioned or delayed) of the Indemnified Party unless it includes a full
release of the Indemnified Party from such matter or issues, as the case may be.
(c) The Indemnified Party agrees to cooperate fully with the Indemnifying Party with respect
to all aspects of the defense of any claims covered by the indemnification set forth in this
Article III, including, without limitation, the prompt furnishing to the Indemnifying Party of any
correspondence or other notice relating thereto that the Indemnified Party may receive, permitting
the names of the Indemnified Party to be utilized in connection with such defense, the making
available to the Indemnifying Party of any files, records or other information of the Indemnified
Party that the Indemnifying Party considers relevant to such defense and the making available to
the Indemnifying Party of any employees of the Indemnified Party;
provided
,
however
, that in
connection therewith the Indemnifying Party agrees to use reasonable efforts to minimize the impact
thereof on the operations of the Indemnified Party and further agrees to maintain the
confidentiality of all files, records and other information furnished by the Indemnified Party
pursuant to this Section 3.3. In no event shall the obligation of the Indemnified Party to
cooperate with the Indemnifying Party as set forth in the immediately preceding sentence be
construed as imposing upon the Indemnified Party an obligation to hire and pay for counsel in
connection with the defense of any claims covered by the indemnification set forth in this Article
III;
provided
,
however
, that the Indemnified Party may, at its own option,
-8
cost and expense, hire and pay for counsel in connection with any such defense. The Indemnifying Party agrees to keep any
such counsel hired by the Indemnified Party reasonably informed as to the status of any such
defense, but the Indemnifying Party shall have the right to retain sole control over such defense.
(d) In determining the amount of any loss, cost, damage or expense for which the Indemnified
Party is entitled to indemnification under this Agreement, the gross amount of the indemnification
will be reduced by (i) any insurance proceeds realized by the Indemnified Party, and such
correlative insurance benefit shall be net of any incremental insurance premium that becomes due
and payable by the Indemnified Party as a result of such claim and (ii) all amounts recovered by
the Indemnified Party under contractual indemnities from third Persons.
ARTICLE IV
Miscellaneous
4.1
Choice of Law; Submission to Jurisdiction.
This Agreement shall be subject to and governed
by the laws of the State of Texas, excluding any conflicts-of-law rule or principle that might
refer the construction or interpretation of this Agreement to the laws of another state. Each
Party hereby submits to the jurisdiction of the state and federal courts in the State of Texas and
to venue in Houston, Texas.
4.2
Notice.
All notices or requests or consents provided for by, or permitted to be given
pursuant to, this Agreement must be in writing and must be given by depositing same in the United
States mail, addressed to the Person to be notified, postpaid, and registered or certified with
return receipt requested or by delivering such notice in person or by telecopier or telegram to
such Party. Notice given by personal delivery or mail shall be effective upon actual receipt.
Notice given by telegram or telecopier shall be effective upon actual receipt if received during
the recipients normal business hours or at the beginning of the recipients next business day
after receipt if not received during the recipients normal business hours. All notices to be sent
to a Party pursuant to this Agreement shall be sent to or made at the address set forth below or at
such other address as such Party may stipulate to the other Parties in the manner provided in this
Section 4.2.
if to Targa:
Targa Resources, Inc.
1000 Louisiana, Suite 4300
Houston, Texas 77002
Attention: General Counsel
if to the Partnership Entities:
Targa Resources Partners LP
1000 Louisiana, Suite 4300
Houston, Texas 77002
Attention: General Counsel
-9
4.3
Entire Agreement.
This Agreement constitutes the entire agreement of the Parties relating
to the matters contained herein, superseding all prior contracts or agreements, whether oral or
written, relating to the matters contained herein.
4.4
Effect of Waiver or Consent.
No waiver or consent, express or implied, by any Party to or
of any breach or default by any Person in the performance by such Person of its obligations
hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or
default in the performance by such Person of the same or any other obligations of such Person
hereunder.
4.5
Amendment or Modification.
This Agreement may be amended or modified from time to time only
by the written agreement of all the Parties hereto;
provided
,
however
, that the Partnership may
not, without the prior approval of the Conflicts Committee, agree to any amendment or modification
of this Agreement that, in the reasonable discretion of the General Partner, will adversely affect
the holders of Common Units. Each such instrument shall be reduced to writing and shall be
designated on its face an Amendment or an Addendum to this Agreement.
4.6
Assignment.
No Party shall have the right to assign any of its rights or obligations under
this Agreement without the consent of the other Parties hereto.
4.7
Counterparts.
This Agreement may be executed in any number of counterparts with the same
effect as if all signatory parties had signed the same document. All counterparts shall be
construed together and shall constitute one and the same instrument.
4.8
Severability.
If any provision of this Agreement shall be held invalid or unenforceable by
a court or regulatory body of competent jurisdiction, the remainder of this Agreement shall remain
in full force and effect.
4.9
Further Assurances.
In connection with this Agreement and all transactions contemplated by
this Agreement, each signatory party hereto agrees to execute and deliver such additional documents
and instruments and to perform such additional acts as may be necessary or appropriate to
effectuate, carry out and perform all of the terms, provisions and conditions of this Agreement and
all such transactions.
4.10
Rights of Limited Partners.
The provisions of this Agreement are enforceable solely by the
Parties to this Agreement, and no Limited Partner of the Partnership shall have the right, separate
and apart from the Partnership, to enforce any provision of this Agreement or to compel any Party
to this Agreement to comply with the terms of this Agreement.
4.11
Successors.
This Agreement shall bind and inure to the benefit of the Parties and to their
respective successors and assigns.
[SIGNATURE PAGES FOLLOW]
-10
IN WITNESS WHEREOF, the Parties have executed this Agreement on, and effective as of,
the date first set forth above.
|
|
|
|
|
|
|
TARGA RESOURCES, INC.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: /s/ Rene R. Joyce
|
|
|
|
|
|
|
|
|
|
Rene R. Joyce
Chief Executive Officer
|
|
|
|
|
|
|
|
|
|
TARGA RESOURCES LLC
|
|
|
|
|
|
|
|
|
|
By: /s/ Rene R. Joyce
|
|
|
|
|
|
|
|
|
|
Rene R. Joyce
Chief Executive Officer
|
|
|
|
|
|
|
|
|
|
TARGA RESOURCES GP LLC
|
|
|
|
|
|
|
|
|
|
By: /s/ Rene R. Joyce
|
|
|
|
|
|
|
|
|
|
Rene R. Joyce
Chief Executive Officer
|
|
|
|
|
|
|
|
|
|
TARGA RESOURCES PARTNERS LP
|
|
|
|
|
|
|
|
|
|
By: Targa Resources GP LLC
|
|
|
|
|
|
|
|
|
|
By: /s/ Rene R. Joyce
|
|
|
|
|
|
|
|
|
|
Rene R. Joyce
Chief Executive Officer
|
|
|
[Signature Page to the Amended and Restated Omnibus
Agreement]