EXHIBIT 1.1
EL PASO ENERGY PARTNERS, L.P.
EL PASO ENERGY PARTNERS FINANCE CORPORATION
as Issuers
and
THE SUBSIDIARIES LISTED ON SCHEDULE A
as Subsidiary Guarantors
$300,000,000
8 1/2% Series A Senior Subordinated Notes due 2010
Purchase Agreement
March 19, 2003
X.X. XXXXXX SECURITIES INC.
XXXXXXX, XXXXX & CO.
UBS WARBURG LLC
WACHOVIA SECURITIES, INC.
as Initial Purchasers
$300,000,000
8 1/2% Series A Senior Subordinated Notes due 2010
of
EL PASO ENERGY PARTNERS, L.P.
and
EL PASO ENERGY PARTNERS FINANCE CORPORATION
Purchase Agreement
March 19, 2003
X.X. XXXXXX SECURITIES INC.
XXXXXXX, XXXXX & CO.
UBS WARBURG LLC
WACHOVIA SECURITIES, INC.
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
El Paso Energy Partners, L.P., a Delaware limited partnership (the
"Partnership"), and El Paso Energy Partners Finance Corporation, a Delaware
corporation ("El Paso Finance" and together with the Partnership, the
"Issuers"), propose to issue and sell to X.X. Xxxxxx Securities Inc., Xxxxxxx,
Xxxxx & Co., UBS Warburg LLC and Wachovia Securities, Inc. (each an "Initial
Purchaser" and, collectively, the "Initial Purchasers") an aggregate of
$300,000,000 in principal amount of its 8 1/2% Series A Senior Subordinated
Notes due 2010 (the "Series A Notes"), subject to the terms and conditions set
forth herein. The Series A Notes are to be issued pursuant to the provisions of
an indenture, to be dated as of March 24, 2003 (the "Indenture"), among the
Issuers, the Guarantors (as defined below) and JPMorgan Chase Bank, as trustee
(the "Trustee"). The Series A Notes and the Series B Notes (as defined below)
issuable in exchange therefor are collectively referred to herein as the
"Notes." The Series A Notes will be guaranteed pursuant to guarantees (the
"Series A Guarantees") by each of the entities listed on Schedule A hereto
(each, a "Subsidiary Guarantor" and, collectively, the "Subsidiary Guarantors").
The Series A Guarantees and the Series B Guarantees (as defined below) are
collectively referred to herein as the "Guarantees".
1. Offering Memorandum. The Series A Notes will be offered and sold to the
Initial Purchasers pursuant to one or more exemptions from the
registration requirements under the Securities Act of 1933, as amended
(the "Act"). The Issuers and the Subsidiary Guarantors have prepared an
offering memorandum, dated March 19, 2003 (the
"Offering Memorandum"), relating to the Series A Notes and the
Guarantees. Any reference herein to the Offering Memorandum shall be
deemed to include the documents and other information incorporated by
reference therein.
Upon original issuance thereof, and until such time as the same is no
longer required pursuant to the Indenture, the Series A Notes (and all
securities issued in exchange therefor, in substitution thereof or upon
conversion thereof) shall bear the following legend:
"THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THIS NOTE
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT
THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE ISSUERS
OF THIS NOTE THAT: (A) THIS NOTE MAY BE OFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) TO EL PASO ENERGY
PARTNERS, L.P., EL PASO ENERGY PARTNERS FINANCE CORPORATION,
OR ANY SUBSIDIARY OF EL PASO ENERGY PARTNERS, L.P., (II) IN
THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (III) OUTSIDE THE UNITED STATES
IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER
THE SECURITIES ACT, (IV) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), (V) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN
INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL
AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH
ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (VI)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH OF CASES (I) THROUGH (VI) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE
2
UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM
IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE."
2. Agreements to Sell and Purchase. On the basis of the representations,
warranties and covenants contained in this Agreement, and subject to
the terms and conditions contained herein, the Issuers agree to issue
and sell to the Initial Purchasers, and each Initial Purchaser agrees,
severally and not jointly, to purchase from the Issuers, the principal
amounts of Series A Notes set forth opposite the name of such Initial
Purchaser on Schedule B hereto at a purchase price equal to 98% of the
principal amount thereof (the "Purchase Price").
3. Terms of Offering. The Initial Purchasers have advised the Issuers that
the Initial Purchasers will make offers (the "Exempt Resales") of the
Series A Notes purchased hereunder on the terms set forth in the
Offering Memorandum, as amended or supplemented, solely to (i) persons
whom the Initial Purchasers reasonably believe to be "qualified
institutional buyers" as defined in Rule 144A under the Act ("QIBs")
and (ii) persons permitted to purchase the Series A Notes in offshore
transactions in reliance upon Regulation S under the Act (each, a
"Regulation S Purchaser") (such persons specified in clauses (i) and
(ii) being referred to herein as the "Eligible Purchasers"). The
Initial Purchasers will offer the Series A Notes to Eligible Purchasers
initially at a price equal to 100% of the principal amount thereof.
Holders (including subsequent transferees) of the Series A Notes will
have the registration rights set forth in the registration rights agreement (the
"Registration Rights Agreement"), to be dated as of the Closing Date, in
substantially the form of Exhibit A hereto, for so long as such Series A Notes
constitute "Transfer Restricted Securities" (as defined in the Registration
Rights Agreement). Pursuant to the Registration Rights Agreement, the Issuers
and the Subsidiary Guarantors will agree to file with the Securities and
Exchange Commission (the "Commission") under the circumstances set forth
therein, (i) a registration statement under the Act (the "Exchange Offer
Registration Statement") relating to the Issuers' 8 1/2% Series B Senior
Subordinated Notes due 2010 (the "Series B Notes"), and the guarantees thereof
by each of the Subsidiary Guarantors (the "Series B Guarantees") to be offered
in exchange for the Series A Notes and the Series A Guarantees thereof (such
offer to exchange being referred to as the "Exchange Offer") and (ii) a shelf
registration statement pursuant to Rule 415 under the Act (the "Shelf
Registration Statement" and, together with the Exchange Offer Registration
Statement, the "Registration Statements") relating to the resale by certain
holders of the Series A Notes and to use its best efforts to cause such
Registration Statements to be declared and remain effective and usable for the
periods specified in the Registration Rights Agreement and to consummate the
Exchange Offer. This Agreement, the Indenture, the Notes, the Guarantees and the
Registration Rights Agreement are hereinafter sometimes referred to collectively
as the "Operative Documents."
4. Delivery and Payment.
3
(a)Delivery of, and payment of the Purchase Price for, the Series A
Notes shall be made at the offices of Akin, Gump, Strauss, Xxxxx &
Xxxx, L.L.P., 1900 Pennzoil Place South Tower, 000 Xxxxxxxxx Xxxxxx,
Xxxxxxx, XX 00000, or such other location as may be mutually
acceptable. Such delivery and payment shall be made at 9:00 a.m. New
York City time, on March 24, 2003 or at such other time on the same
date or such other date as shall be agreed upon by the Initial
Purchasers and the Issuers in writing. The time and date of such
delivery and the payment for the Series A Notes are herein called the
"Closing Date."
(b) One or more of the Series A Notes in definitive global form,
registered in the name of Cede & Co., as nominee of the Depository
Trust Company ("DTC"), having an aggregate principal amount
corresponding to the aggregate principal amount of the Series A Notes
(collectively, the "Global Note"), shall be delivered by the Issuers to
the Initial Purchasers (or as the Initial Purchasers direct) in each
case with any transfer taxes thereon duly paid by the Issuers against
payment by the Initial Purchasers of the Purchase Price thereof by wire
transfer in same day funds to the order of the Partnership. The Global
Note shall be made available to the Initial Purchasers for inspection
not later than 9:30 a.m., New York City time, on the business day
immediately preceding the Closing Date.
5. Agreements of the Issuers and the Subsidiary Guarantors. Each of the
Partnership, El Paso Finance and the Subsidiary Guarantors hereby
agrees with the Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if requested by the
Initial Purchasers, to confirm such advice in writing, (i) of the
issuance by any state securities commission of any stop order
suspending the qualification or exemption from qualification of any
Series A Notes for offering or sale in any jurisdiction designated by
the Initial Purchasers pursuant to Section 5(e) hereof, or the
initiation of any proceeding by any state securities commission or any
other federal or state regulatory authority for such purpose and (ii)
of the happening of any event during the period referred to in Section
5(c) below that makes any statement of a material fact made in the
Offering Memorandum untrue or that requires any additions to or changes
in the Offering Memorandum in order to make the statements therein not
misleading. The Issuers and the Subsidiary Guarantors shall use their
best efforts to prevent the issuance of any stop order or order
suspending the qualification or exemption of any Series A Notes under
any state securities or Blue Sky laws and, if at any time any state
securities commission or other federal or state regulatory authority
shall issue an order suspending the qualification or exemption of any
Series A Notes under any state securities or Blue Sky laws, the Issuers
and the Subsidiary Guarantors shall use their best efforts to obtain
the withdrawal or lifting of such order at the earliest possible time;
(b) To furnish the Initial Purchasers and those persons identified by
the Initial Purchasers to the Issuers as many copies of the Offering
Memorandum, and any amendments or supplements thereto, as the Initial
Purchasers may reasonably request for the time period specified in
Section 5(c). Subject to the Initial Purchasers' compliance with its
representations and warranties and agreements set forth in Section 7
hereof, the Issuers
4
consent to the use of the Offering Memorandum, and any amendments and
supplements thereto required pursuant hereto, by the Initial Purchasers
in connection with Exempt Resales;
(c) At any time prior to the completion of the initial offering of the
Series A Notes and in connection with market-making activities of the
Initial Purchasers for so long as any Series A Notes are outstanding,
(i) not to make any amendment or supplement to the Offering Memorandum
of which the Initial Purchasers shall not previously have been advised
or to which the Initial Purchasers shall reasonably object after being
so advised, provided, that this clause (i) shall not apply to any
filing by the Partnership of an Annual Report on Form 10-K, Quarterly
Report on Form 10-Q or Current Report on Form 8-K with respect to
matters unrelated to the Series A Notes and the offering or exchange
thereof, and (ii) to prepare promptly upon the Initial Purchasers'
reasonable request, any amendment or supplement to the Offering
Memorandum which may be necessary or advisable in connection with such
Exempt Resales or such market-making activities;
(d) If, during the period referred to in Section 5(c) above, any event
shall occur or condition shall exist as a result of which, in the
opinion of counsel to the Initial Purchasers, it becomes necessary to
amend or supplement the Offering Memorandum in order to make the
statements therein, in the light of the circumstances when such
Offering Memorandum is delivered to an Eligible Purchaser, not
misleading, or if, in the opinion of counsel to the Initial Purchasers,
it is necessary to amend or supplement the Offering Memorandum to
comply with any applicable law, forthwith to prepare, subject to
Section 5(c), an appropriate amendment or supplement to such Offering
Memorandum so that the statements therein, as so amended or
supplemented, will not, in the light of the circumstances when it is so
delivered, be misleading, or so that such Offering Memorandum will
comply with applicable law, and to furnish to the Initial Purchasers
and such other persons as the Initial Purchasers may designate such
number of copies thereof as the Initial Purchasers may reasonably
request;
(e) Prior to the sale of all Series A Notes pursuant to Exempt Resales
as contemplated hereby, to cooperate with the Initial Purchasers and
counsel to the Initial Purchasers in connection with the registration
or qualification of the Series A Notes for offer and sale to the
Initial Purchasers and pursuant to Exempt Resales under the securities
or Blue Sky laws of such jurisdictions as the Initial Purchasers may
request and to continue such registration or qualification in effect so
long as required for Exempt Resales and to file such consents to
service of process or other documents as may be necessary in order to
effect such registration or qualification; provided, however, that
neither the Issuers nor any Subsidiary Guarantor shall be required in
connection therewith to qualify as a foreign partnership, limited
liability company, trust or corporation in any jurisdiction in which it
is not now so qualified or to take any action that would subject it to
general consent to service of process or taxation other than as to
matters and transactions relating to the Offering Memorandum or Exempt
Resales, in any jurisdiction in which it is not now so subject;
(f) For so long as the Series A Notes are outstanding, to furnish or
make available to the Initial Purchasers copies of any annual reports,
quarterly reports and current reports filed
5
by the Partnership with the Commission on Forms 10-K, 10-Q and 8-K, and
such other documents, reports and information as shall be furnished by
the Company to the Trustee or to the holders of Series A Notes, in each
case pursuant to the Indenture;
(g) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid
all expenses incident to the performance of the obligations of the
Issuers and the Subsidiary Guarantors under this Agreement, including:
(i) the fees, disbursements and expenses of counsel to
the Issuers and the Subsidiary Guarantors and accountants of
the Issuers and the Subsidiary Guarantors in connection with
the sale and delivery of the Series A Notes to the Initial
Purchasers and pursuant to Exempt Resales, and all other fees
and expenses in connection with the preparation, printing,
filing and distribution of the Offering Memorandum and all
amendments and supplements to any of the foregoing (including
financial statements), including the mailing and delivery of
copies thereof to the Initial Purchasers and persons
designated by them in the quantities specified herein,
(ii) all costs and expenses related to the transfer and
delivery of the Series A Notes to the Initial Purchasers and
pursuant to Exempt Resales, including any transfer or other
taxes payable thereon,
(iii) all costs of printing or producing this Agreement,
the other Operative Documents and any other agreements or
documents in connection with the offering, purchase, sale or
delivery of the Series A Notes,
(iv) all expenses in connection with the registration or
qualification of the Series A Notes and the Series A
Guarantees for offer and sale under the securities or Blue Sky
laws of the several states and all costs of printing or
producing any preliminary and supplemental Blue Sky memoranda
in connection therewith (including the filing fees and fees
and disbursements of counsel for the Initial Purchasers in
connection with such registration or qualification and
memoranda relating thereto),
(v) the cost of printing certificates representing the
Series A Notes and the Series A Guarantees,
(vi) all expenses and listing fees in connection with the
application for quotation of the Series A Notes in the
National Association of Securities Dealers, Inc. ("NASD")
Automated Quotation System - PORTAL ("PORTAL"),
(vii) the fees and expenses of the Trustee and the
Trustee's counsel in connection with the Indenture, the Notes
and the Guarantees,
(viii) the costs and charges of any transfer agent,
registrar and/or depositary (including DTC),
6
(ix) any fees charged by rating agencies for the rating of
the Notes,
(x) all costs and expenses of the Exchange Offer and any
Registration Statement, as set forth in the Registration
Rights Agreement, and
(xi) all other costs and expenses incident to the
performance of the obligations of the Issuers and the
Subsidiary Guarantors hereunder for which provision is not
otherwise made in this Section;
(h) To use its best efforts to effect the inclusion of the Series A
Notes in PORTAL and to maintain the listing of the Series A Notes on
PORTAL for so long as the Series A Notes are outstanding;
(i) To obtain the approval of DTC for "book-entry" transfer of the
Notes, and to comply with all of its agreements set forth in the
representation letters of the Issuers and the Subsidiary Guarantors to
DTC relating to the approval of the Notes by DTC for "book-entry"
transfer;
(j) During the period beginning on the date hereof and continuing to
and including the Closing Date, not to offer, sell, contract to sell or
otherwise transfer or dispose of any debt securities of each of the
Issuers or any Subsidiary Guarantor or any warrants, rights or options
to purchase or otherwise acquire debt securities of the Issuers or any
Subsidiary Guarantor substantially similar to the Notes and the
Guarantees (other than (i) the Notes and the Guarantees, (ii)
commercial paper issued in the ordinary course of business and (iii)
the incurrence of debt in connection with the Credit Facility, the EPN
Holding Term Loan and the San Xxxx Acquisition Loan) without the prior
written consent of X.X. Xxxxxx Securities Inc. As used herein, the term
"Credit Facility" means the Sixth Amended and Restated Credit Agreement
among the Partnership, El Paso Finance, the several lenders from time
to time parties thereto, Credit Lyonnais New York Branch and Wachovia
Bank, National Association, as Co-Syndication Agents, Fleet National
Bank and Fortis Capital Corp., as Co-Documentation Agents, and JPMorgan
Chase Bank, as Administrative Agent, dated as of March 23, 1995, as
amended and restated through October 10, 2002, and the collateral
documents related thereto. As used herein, the term "EPN Holding Term
Loan" means the Amended and Restated Credit Agreement among EPN Holding
Company, L.P., the Lenders party thereto, Banc One Capital Markets,
Inc. and Wachovia Bank, National Association, as Co-Syndication Agents,
Fleet National Bank and Fortis Capital Corp., as Co-Documentation
Agents, and JPMorgan Chase Bank, as Administrative Agent, dated as of
April 8, 2002, as amended and restated through October 10, 2002, and
the related collateral documents. As used herein, the term "San Xxxx
Acquisition Loan" means the Senior Secured Acquisition Term Loan Credit
Agreement among the Partnership, El Paso Finance, the Lenders from time
to time parties thereto, Xxxxxxx Xxxxx Credit Partners L.P., as
Documentation Agent, UBS Warburg LLC and Wachovia Bank, National
Association, as Co-Syndication Agents and XX Xxxxxx Xxxxx Bank, as
Administrative Agent, dated as of November 27, 2002.
7
(k) Not to sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in the Act) that would
be integrated with the sale of the Series A Notes to the Initial
Purchasers or pursuant to Exempt Resales in a manner that would require
the registration of any such sale of the Series A Notes under the Act;
(l) Not to voluntarily claim, and to actively resist any attempts to
claim, the benefit of any usury laws against the holders of any Notes
and the related Guarantees;
(m) To comply with all of its agreements set forth in the Registration
Rights Agreement;
(n) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by it prior to
the Closing Date and to satisfy all conditions precedent to the
delivery of the Series A Notes and the Series A Guarantees; and
(o) Promptly following the Closing Date, apply the proceeds from the
issuance and sale of the Series A Notes as described in the Offering
Memorandum under "Use of Proceeds."
6. Representations, Warranties and Agreements of the Partnership, El Paso
Finance and the Subsidiary Guarantors. As of the date hereof, each of
the Partnership, El Paso Finance and the Subsidiary Guarantors
represents and warrants to, and agrees with, the Initial Purchasers as
to the following:
(a) the Offering Memorandum does not, and any supplement or amendment
to it will not, contain any untrue statement of a material fact or omit
to state any 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, except that the representations
and warranties contained in this paragraph (a) shall not apply to
statements in or omissions from the Offering Memorandum (or any
supplement or amendment thereto) based upon information relating to the
Initial Purchasers furnished to the Issuers in writing by the Initial
Purchasers expressly for use therein. The parties hereto acknowledge
and agree that for purposes of this Agreement, including this Section
6(a) and Section 8(b) hereof, the only information furnished to the
Issuers in writing by the Initial Purchasers expressly for use in the
Offering Memorandum (or any amendment or supplement to it) is the
information set forth in the [third paragraph, the fifth and sixth
sentences in the ninth paragraph, and the eleventh paragraph] under the
caption "Plan of Distribution" in the Offering Memorandum. Furthermore,
the parties hereto acknowledge that for purposes of this Agreement,
including this Section 6(a) and Section 8(b) hereof, the Initial
Purchasers shall not be deemed to have provided any information (and
therefore are not responsible for any statements or omissions)
pertaining to any arrangement or agreement with respect to any party
other than the Initial Purchasers. No stop order preventing the use of
the Offering Memorandum, or any amendment or supplement thereto, or any
order asserting that any of the transactions contemplated by this
Agreement are subject to the registration requirements of the Act, has
been issued.
8
(b) Each of the Partnership and its Restricted Subsidiaries (as defined
in the Offering Memorandum) and El Paso Finance, as applicable, has
been duly formed or incorporated, is validly existing as a partnership,
corporation, business trust or limited liability company in good
standing under the laws of their respective jurisdictions of formation
or incorporation and has the partnership, corporate, trust or limited
liability company power and authority to carry on their respective
businesses as described in the Offering Memorandum and to own, lease
and operate their respective properties, and each (other than the
general partnerships) is duly qualified and is in good standing as a
foreign limited partnership, corporation, business trust or limited
liability company authorized to do business in each jurisdiction in
which the nature of each of their businesses or their ownership or
leasing of property requires such qualification, except where the
failure to be so qualified could reasonably be expected not to have a
material adverse effect on the business, financial condition or results
of operations of the Partnership, its subsidiaries and El Paso Finance,
taken as a whole (a "Material Adverse Effect").
(c) El Paso Energy Partners Company, a Delaware corporation, (the
"General Partner") has been duly incorporated and is validly existing
in good standing under the laws of the State of Delaware with full
corporate power and authority to carry on its businesses; to own, lease
and operate its properties; and to act as the general partner of the
Partnership in all material respects as described in the Offering
Memorandum. The General Partner is duly qualified and is in good
standing as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its businesses or its ownership or
leasing of property requires such qualification, except where the
failure to be so qualified could reasonably be expected not to (i) have
a Material Adverse Effect, or (ii) subject the limited partners of the
Partnership to any material liability or disability.
(d) All of the issued and outstanding shares of capital stock of the
General Partner have been duly and validly authorized and issued and
are fully paid and nonassessable, and are owned by DeepTech
International Inc. ("DeepTech") free and clear of any lien, adverse
claim, security interest equity or other encumbrance (each, a "Lien"),
except for any Permitted Encumbrances. DeepTech is a wholly-owned
subsidiary of El Paso Corporation. As used herein "Permitted
Encumbrances" means any lien or adverse claim established by or under
(i) the Credit Facility, (ii) the credit agreement to which Poseidon
Oil Pipeline Company, L.L.C., a Delaware limited liability company in
which a Subsidiary of the Partnership owns a 36% membership interest,
is party, and the collateral documents related thereto, (iii) the
credit agreement to which Deepwater Gateway, L.L.C., a Delaware limited
liability company in which a Subsidiary of the Partnership owns a 50%
membership interest, is party, and the collateral documents related
thereto, (iv) the financing arrangements to which Xxxxxx I or Xxxxxx XX
(each as defined below) or El Paso Corporation or any other
subsidiaries of El Paso Corporation are or will be parties, and the
collateral documents related thereto, (v) the EPN Holding Term Loan,
(vi) the Acquisition Term Loan, (vii) the indenture into which the
Partnership entered on May 27, 1999, as amended and supplemented,
(viii) the indenture into which the Partnership entered on May 17,
2001, as amended and supplemented, (ix) the indenture into which the
Partnership entered on November 27, 2002, as amended and supplemented,
and (x) the Indenture, as amended and supplemented.
9
(e) All outstanding shares of capital stock or partnership interests of
El Paso Finance or the Partnership, as applicable, have been duly
authorized and validly issued and are fully paid, non-assessable
(except, in the case of the partnership interests of the Partnership,
to the extent set forth in Section 17-303 of the Delaware Revised
Uniform Limited Partnership Act (the "DRULPA")) and not subject to any
preemptive or similar rights except as otherwise set forth in the
Partnership Agreement and disclosed in the Offering Memorandum.
(f) The entities listed on Schedule C hereto are the only subsidiaries,
direct or indirect, of the Partnership. All of the outstanding shares
of capital stock, limited partner interests, general partner interests
or limited liability company interests or other equity interests of
each of the Partnership's subsidiaries have been duly authorized and
validly issued and are fully paid and (except (i) as required to the
contrary by the Delaware Limited Liability Company Act and DRULPA and
(ii) with respect to any general partner interests) non-assessable, and
except as otherwise set forth in the Offering Memorandum (exclusive of
any supplement or amendment) or on Schedule C are owned by the
Partnership, directly or indirectly through one or more wholly-owned
subsidiaries or the General Partner, free and clear of any Lien, other
than Permitted Encumbrances.
(g) The General Partner is the sole general partner of the Partnership
with a 1.0% general partner interest in the Partnership, and such
general partner interest is duly authorized and validly issued to the
General Partner in accordance with the Second Amended and Restated
Agreement of Limited Partnership of El Paso Energy Partners, L.P. dated
as of February 19, 1993 as amended and restated effective as of August
31, 2000 (as amended, the "Partnership Agreement"). 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, except as (i) the enforceability thereof may be limited
by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability. The General Partner owns such general partner interest
free and clear of any Lien, other than Permitted Encumbrances.
(h) The General Partner, El Paso Field Services Holding Company ("EPFS
Holding"), Sabine River Investors I, L.L.C. ("Xxxxxx X") and Xxxxxx
Xxxxx Investors II, L.L.C. ("Xxxxxx XX") own limited partner interests
in the Partnership represented by 11,674,245 common units ("Common
Units"); all of such Common Units and the limited partner interests
represented thereby have been duly authorized and validly issued and
are fully paid (to the extent required by the Partnership Agreement)
and nonassessable (except (i) as required to the contrary by DRULPA and
(ii) as such nonassessablility may be affected by matters described in
the Offering Memorandum); and the General Partner and its affiliates
own such limited partner interests free and clear of any Lien, other
than Permitted Encumbrances.
(i) This Agreement has been duly authorized, executed and delivered by
each of the Issuers and each of the Subsidiary Guarantors and
constitutes a valid and binding obligation of each of the Issuers and
each of the Subsidiary Guarantors, enforceable in
10
accordance with its terms, except as (i) the enforceability thereof may
be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability.
(j) The Indenture has been duly authorized by each of the Issuers and
each of the Subsidiary Guarantors and, on the Closing Date, will have
been validly executed and delivered by each of the Issuers and each of
the Subsidiary Guarantors and will be a valid and binding agreement of
each of the Issuers and each of the Subsidiary Guarantors, enforceable
against each of the Issuers and each of the Subsidiary Guarantors in
accordance with its terms, except as (i) the enforceability thereof may
be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability. The Indenture conforms in all
material respects to the requirements of the Trust Indenture Act of
1939, as amended (the "TIA"), and the rules and regulations of the
Commission applicable to an indenture which is qualified thereunder.
(k) The Series A Notes have been duly authorized and, on the Closing
Date, will have been validly executed and delivered by each of the
Issuers. When the Series A Notes have been issued, executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Initial Purchasers in accordance with
the terms of this Agreement, the Series A Notes will be entitled to the
benefits of the Indenture and will be valid and binding obligations of
the Issuers, enforceable in accordance with their terms, except as (i)
the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability. On the Closing Date,
the Series A Notes will conform as to legal matters to the description
thereof contained in the Offering Memorandum.
(l) On the Closing Date, the Series B Notes will have been duly
authorized by each of the Issuers. When the Series B Notes are issued,
executed and authenticated in accordance with the terms of the Exchange
Offer and the Indenture, the Series B Notes will be entitled to the
benefits of the Indenture and will be the valid and binding obligations
of the Issuers, enforceable against the Issuers in accordance with
their terms, except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(m) The Series A Guarantee to be endorsed on the Series A Notes by each
Subsidiary Guarantor has been duly authorized by such Subsidiary
Guarantor and, on the Closing Date, will have been duly executed and
delivered by each such Subsidiary Guarantor. When the Series A Notes
have been issued, executed and authenticated in accordance with the
Indenture and delivered to and paid for by the Initial Purchasers in
accordance with the terms of this Agreement, the Series A Guarantee of
each Subsidiary Guarantor endorsed thereon will be entitled to the
benefits of the Indenture and will be the valid and
11
binding obligation of such Subsidiary Guarantor, enforceable against
such Subsidiary Guarantor in accordance with its terms, except as (i)
the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability. On the Closing Date,
the Series A Guarantees to be endorsed on the Series A Notes will
conform as to legal matters to the description thereof contained in the
Offering Memorandum.
(n) The Series B Guarantee to be endorsed on the Series B Notes by each
Subsidiary Guarantor has been duly authorized by such Subsidiary
Guarantor and, when issued, will have been duly executed and delivered
by each such Subsidiary Guarantor. When the Series B Notes have been
issued, executed and authenticated in accordance with the terms of the
Exchange Offer and the Indenture, the Series B Guarantee of each
Subsidiary Guarantor endorsed thereon will be entitled to the benefits
of the Indenture and will be the valid and binding obligation of such
Subsidiary Guarantor, enforceable against such Subsidiary Guarantor in
accordance with its terms, except as (i) the enforceability thereof may
be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability. When the Series B Notes are
issued, authenticated and delivered, the Series B Guarantees to be
endorsed on the Series B Notes will conform as to legal matters to the
description thereof in the Offering Memorandum.
(o) The Registration Rights Agreement has been duly authorized by each
of the Issuers and each of the Subsidiary Guarantors and, on the
Closing Date, will have been duly executed and delivered by each of the
Issuers and each of the Subsidiary Guarantors. When the Registration
Rights Agreement has been duly executed and delivered, the Registration
Rights Agreement will be a valid and binding agreement of each of the
Issuers and each of the Subsidiary Guarantors, enforceable against each
of the Issuers and each of the Subsidiary Guarantors in accordance with
its terms, except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability. On the Closing Date, the Registration Rights Agreement
will conform as to legal matters to the description thereof in the
Offering Memorandum.
(p) Neither the Issuers nor any of their subsidiaries is in violation
of its respective limited partnership agreement, limited liability
company agreement, charter, by-laws or similar organizational document
or in default in the performance of any obligation, agreement, covenant
or condition contained in any indenture, loan agreement, mortgage,
lease or other agreement or instrument that is material to the Issuers
and their subsidiaries, taken as a whole, to which the Issuers or any
of their subsidiaries is a party or by which the Issuers or any of
their subsidiaries or their respective property is bound, except with
respect to any such indenture, loan agreement, mortgage, lease or other
agreement or instrument, any default which could reasonably be expected
not to have a Material Adverse Effect.
12
(q) The execution, delivery and performance of this Agreement and the
other Operative Documents by each of the Issuers and each of the
Subsidiary Guarantors, compliance by each of the Issuers and each of
the Subsidiary Guarantors with all provisions hereof and thereof and
the consummation of the transactions contemplated hereby and thereby
did not and will not (i) require any consent, approval, authorization,
filing with or other order of, or qualification with, any court or
governmental body or agency (except such as may be required under the
securities or Blue Sky laws of the various states or, with respect to
the proposed offer to exchange the Exchange Notes for the Notes, the
federal securities laws), (ii) conflict with or constitute a breach of
any of the terms or provisions of, or a default under, the limited
partnership agreement, limited liability company agreement, charter,
by-laws or similar organizational document of the Partnership or any of
its Restricted Subsidiaries or El Paso Finance (collectively, the
"Organizational Documents") or any existing indenture, loan agreement,
mortgage, lease or other agreement or instrument that is material to
the Partnership and its Restricted Subsidiaries and El Paso Finance,
taken as a whole, to which the Partnership or any of its Restricted
Subsidiaries or El Paso Finance is a party or by which the Partnership
or any of its Restricted Subsidiaries or El Paso Finance or their
respective property is bound, (iii) violate or conflict with any
applicable existing law or any rule, regulation, judgment, order or
decree of any court or any governmental body or agency having
jurisdiction over the Partnership or any of its Restricted Subsidiaries
or El Paso Finance or their respective property, (iv) result in the
imposition or creation of (or the obligation to create or impose) a
Lien under, any existing agreement or instrument to which the
Partnership or any of its Restricted Subsidiaries or El Paso Finance is
a party or by which the Partnership or any of its Restricted
Subsidiaries or El Paso Finance or their respective property is bound
or (v) result in the termination, suspension or revocation of any
existing Authorization (as defined below) of the Partnership or any of
its Restricted Subsidiaries or El Paso Finance, or result in any other
impairment of the rights of the holder of any such Authorization,
except (other than in the case of clause (ii) above with respect to
Organizational Documents) to the extent they could reasonably be
expected not to have a Material Adverse Effect.
(r) No action, suit or governmental proceedings by or before any court
or governmental agency, authority or body is pending or, to our
knowledge, threatened to which the Partnership or any of its Restricted
Subsidiaries or El Paso Finance is or could be a party or to which any
of their respective property is or could be subject, except for such
proceedings which, singly or in the aggregate, could reasonably be
expected not to result in a Material Adverse Effect and except as set
forth in the Offering Memorandum.
(s) The Partnership, its Restricted Subsidiaries and El Paso Finance
are (i) in compliance with any and all foreign, federal, state or local
law or regulation relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (ii) have received
and are in compliance with all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) have not received notice of any actual
or potential liability under the Environmental Laws, in the case of (i)
through (iii), except where such non-compliance or liability, singly or
in the aggregate, could reasonably be expected not to result in a
Material Adverse Effect. None
13
of the Partnership, its Restricted Subsidiaries or El Paso Finance has
been named as a "potentially responsible party" under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended ("CERCLA"). The Partnership, its Restricted Subsidiaries and El
Paso Finance are not in violation of any provisions of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or any
provisions of the Foreign Corrupt Practices Act or the rules and
regulations promulgated thereunder, except for such violations which,
singly or in the aggregate, could reasonably be expected not to result
in a Material Adverse Effect.
(t) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or any Authorization, any related constraints
on operating activities and any potential liabilities to third parties)
which, singly or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect.
(u) Each of the Partnership and its Restricted Subsidiaries and El Paso
Finance has such permits, licenses, consents, exemptions, franchises,
authorizations and other approvals (each, an "Authorization") of, and
has made all filings with and notices to, all governmental or
regulatory authorities and self-regulatory organizations and all courts
and other tribunals, including without limitation, under any applicable
Environmental Laws, as are necessary to own, lease, license and operate
its respective properties and to conduct its business, except where the
failure to have any such Authorization or to make any such filing or
notice could, singly or in the aggregate, reasonably be expected not to
have a Material Adverse Effect. Each such Authorization is valid and in
full force and effect and each of the Partnership and its Restricted
Subsidiaries and El Paso Finance is in compliance with all the terms
and conditions thereof and with the rules and regulations of the
authorities and governing bodies having jurisdiction with respect
thereto; and no event has occurred (including, without limitation, the
receipt of any notice from any authority or governing body) which
allows or, after notice or lapse of time or both, would allow,
revocation, suspension or termination of any such Authorization or
results or, after notice or lapse of time or both, would result in any
other impairment of the rights of the holder of any such Authorization;
and such Authorizations contain no restrictions that are burdensome to
the Partnership or any of its Restricted Subsidiaries or El Paso
Finance; except where such failure to be valid and in full force and
effect or to be in compliance, the occurrence of any such event or the
presence of any such restriction could, singly or in the aggregate,
reasonably be expected not to have a Material Adverse Effect.
(v) Each of the Partnership and its Restricted Subsidiaries and El Paso
Finance owns or leases all such properties as are necessary to the
conduct of its operations as presently conducted, except where the lack
of ownership or leasing would not, individually or in the aggregate,
have a Material Adverse Effect.
(w) Each of the Partnership and its Restricted Subsidiaries and El Paso
Finance has, or at the Closing Date will have, such consents,
easements, rights-of-way or licenses from any person ("rights-of-way")
as are necessary to conduct its business in the manner described in the
Offering Memorandum, subject to such qualifications as may be set forth
in the
14
Offering Memorandum and except for such rights-of-way which, if not
obtained, could, singly or in the aggregate, reasonably be expected not
to have a Material Adverse Effect; each of the Partnership and its
subsidiaries and El Paso Finance has, or at the Closing Date will have,
fulfilled and performed all its material obligations with respect to
such rights-of-way and no event has occurred which allows, or after
notice or lapse of time would allow, revocation or termination thereof
or would result in any impairment of the rights of the holder of any
such rights-of-way, except for such revocations, terminations and
impairments that could reasonably be expected not to have a Material
Adverse Effect, subject in each case to such qualifications as may be
set forth in the Offering Memorandum; and except as described in the
Offering Memorandum, none of such rights-of-way contains any
restriction that is materially burdensome to the Partnership and its
subsidiaries and El Paso Finance considered as a whole.
(x) The accountants, PricewaterhouseCoopers LLP, that have certified
financial statements and supporting schedules included in the Offering
Memorandum are independent public accountants with respect to the
Issuers, the Subsidiary Guarantors and Poseidon Oil Pipeline Company,
L.L.C., as required by the Act and the Exchange Act. The historical
financial statements, together with related schedules and notes, set
forth in the Offering Memorandum comply as to form in all material
respects with the requirements applicable to registration statements on
Form S-3 under the Act.
(y) The historical financial statements, together with related
schedules and notes, forming part of the Offering Memorandum (and any
amendment or supplement thereto), present fairly the consolidated
financial position, results of operations and changes in financial
position of the Partnership and its subsidiaries (including El Paso
Finance) on the basis stated in the Offering Memorandum at the
respective dates or for the respective periods to which they apply;
such statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved, except as disclosed therein;
and the other financial and statistical information and data set forth
in the Offering Memorandum (and any amendment or supplement thereto)
are, in all material respects, accurately presented and prepared on a
basis consistent with such financial statements and the books and
records of the Partnership and El Paso Finance.
(z) The pro forma financial statements included in the Offering
Memorandum have been prepared on a basis consistent with the historical
financial statements of the Partnership and its subsidiaries and El
Paso Finance and give effect to assumptions used in the preparation
thereof on a reasonable basis and in good faith and present fairly the
historical transactions described therein; and such pro forma financial
statements comply as to form in all material respects with the
requirements applicable to pro forma financial statements included in
registration statements on Form S-3 under the Act. The other pro forma
financial and statistical information and data included in the Offering
Memorandum are, in all material respects, accurately presented and
prepared on a basis consistent with the pro forma financial statements.
(aa) Neither of the Issuers nor any of the Partnership's Restricted
Subsidiaries is or, after giving effect to the offering and sale of the
Series A Notes and the application of the
15
net proceeds thereof as described in the Offering Memorandum,
neither of the Issuers, will be, an "investment company," as such term
is defined in the Investment Company Act of 1940, as amended or a
"holding company" within the meaning of, or subject to regulation
under, the Public Utility Holding Company Act of 1935, as amended, and
the rules and regulations promulgated by the Commission thereunder.
(bb) There are no contracts, agreements or understandings between the
Issuers or any Subsidiary Guarantor, on the one hand, and any person,
on the other hand, granting such person the right to require the
Issuers or such Subsidiary Guarantor to file a registration statement
under the Act with respect to any securities of the Issuers or such
Subsidiary Guarantor other than the rights (i) of the General Partner
and its affiliates in Section 6.14 of the Partnership Agreement and in
the registration rights agreement executed in connection with the
November 2002 acquisition by the Partnership of the San Xxxx assets
(the "Series C RRA"); (ii) of EPEC Deepwater Gathering Company ("EPEC")
and its successors pursuant to a registration rights agreement between
EPEC and the Partnership executed in connection with the acquisition by
the Partnership of an additional interest in Viosca Xxxxx Gathering
Company; (iii) of Crystal Gas Storage, Inc. pursuant to the
registration rights agreement between Crystal Gas Storage, Inc. and the
Partnership which was executed in connection with the acquisition by
the Partnership of the Crystal storage facilities; provided, however,
that with respect to (i), (ii) and (iii) above, the General Partner,
EPEC, Xxxxxx X, Xxxxxx XX and Xxxxxxx Gas Storage, Inc. have agreed not
to exercise their rights with respect to such securities in connection
with the offering of the Notes for 90 days hereafter pursuant to letter
agreements of even date herewith; (iv) granted under the Credit
Facility, EPN Holding Term Loan, the San Xxxx Acquisition Loan and
related agreements; and (v) granted under the Registration Rights
Agreement. There are no contracts, agreements or understandings between
the Issuers or any Subsidiary Guarantor, on the one hand, and any
person, on the other hand, granting such person the right to require
the Issuers or such Subsidiary Guarantor to include such securities
with the Notes and Guarantees registered pursuant to any Registration
Statement, other than the rights of the General Partner and its
affiliates in Section 6.14 of the Partnership Agreement (which rights
have been waived in connection with any Registration Statement filed
pursuant to the Registration Rights Agreement).
(cc) Neither the Partnership nor any of its subsidiaries nor El Paso
Finance nor any agent thereof acting on the behalf of them has taken,
and none of them will take, any action that might cause this Agreement
or the issuance or sale of the Series A Notes to violate Regulation T
(12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or Regulation X
(12 C.F.R. Part 224) of the Board of Governors of the Federal Reserve
System.
(dd) No "nationally recognized statistical rating organization" as such
term is defined for purposes of Rule 436(g)(2) under the Act (i) has
imposed (or has informed the Issuers or any Subsidiary Guarantor that
it is considering imposing) any condition (financial or otherwise) on
the Issuers' or any Subsidiary Guarantor's retaining any rating
assigned to the Issuers or any Subsidiary Guarantor, any securities of
the Issuer or any Subsidiary Guarantor or (ii) has indicated to the
Issuers or any Subsidiary Guarantor that it is considering (a) the
downgrading, suspension, or withdrawal of, or any review for a
16
possible change that does not indicate the direction of the possible
change in, any rating so assigned or (b) any change in the outlook for
any rating of the Issuers, any Subsidiary Guarantor or any securities
of the Issuers or any Subsidiary Guarantor, other than, in the case of
this cause (ii), any such downgrading, suspension, withdrawal, review
or change that has been publicly announced by such organization as of
the time of the execution of this Agreement.
(ee) Since the respective dates as of which information is given in the
Offering Memorandum other than as set forth in the Offering Memorandum
(exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement), (i) there has not occurred any material
adverse change or any development involving a prospective material
adverse change in the condition, financial or otherwise, or the
earnings, business, management or operations of the Partnership and its
subsidiaries and El Paso Finance, taken as a whole, (ii) there has not
been any material adverse change or any development involving a
prospective material adverse change in the capital stock, limited
liability company interests or partnership units, as applicable, or in
the long-term debt of the Partnership or any of its subsidiaries or El
Paso Finance and (iii) neither the Partnership, any of its subsidiaries
nor El Paso Finance has incurred any material liability or obligation,
direct or contingent.
(ff) The Offering Memorandum, as of its date, contains all the
information specified in, and meets all of the requirements of, Rule
144A(d)(4) under the Act.
(gg) The Offering Memorandum, as of its date, contains all of the
information specified in, and complies in all material respects with,
the applicable requirements of the Act as if such document were filed
using a registration statement on Form S-3.
(hh) Upon execution and delivery by the parties thereto, the Indenture
will comply as to form in all material respects with the requirements
of the TIA, and the rules and regulations of the Commission applicable
to an indenture which is qualified thereunder. It is not necessary in
connection with the offer, sale and delivery of the Series A Notes to
the Initial Purchasers in the manner contemplated by this Agreement or
in connection with the initial placement of the Series A Notes by the
Initial Purchasers in the manner contemplated by the Offering
Memorandum pursuant to Exempt Resales to qualify the Indenture under
the TIA.
(ii) The statements under the captions "Description of Notes,"
"Description of Other Indebtedness," "United States Federal Income and
Estate Tax Considerations" and "Plan of Distribution" in the Offering
Memorandum, insofar as such statements purport to constitute a summary
of the legal matters, documents or proceedings referred to therein,
fairly present in all material respects such legal matters, documents
and proceedings.
(jj) When the Series A Notes and the Series A Guarantees are issued and
delivered pursuant to this Agreement, neither the Series A Notes nor
the Series A Guarantees will be of the same class (within the meaning
of Rule 144A under the Act) as any security of the Issuers or the
Subsidiary Guarantors that is listed on a national securities exchange
17
registered under Section 6 of the Exchange Act or that is quoted in a
United States automated inter-dealer quotation system.
(kk) No form of general solicitation or general advertising (as defined
in Regulation D under the Act) was used by the Issuers, the Subsidiary
Guarantors or any of their respective representatives (other than the
Initial Purchasers, as to whom the Issuers and the Subsidiary
Guarantors make no representation) in connection with the offer and
sale of the Series A Notes contemplated hereby, including, but not
limited to, articles, notices or other communications published in any
newspaper, magazine, or similar medium or broadcast over television or
radio, or any seminar or meeting whose attendees have been invited by
any general solicitation or general advertising. No securities of the
same class as the Series A Notes have been issued and sold by the
Issuers within the six-month period immediately prior to the date
hereof.
(ll) None of the Issuers, the Subsidiary Guarantors nor any of their
respective affiliates or any person acting on its or their behalf
(other than the Initial Purchasers, as to whom the Issuers and the
Subsidiary Guarantors make no representation) has engaged or will
engage in any directed selling efforts within the meaning of Regulation
S under the Act ("Regulation S") with respect to the Series A Notes or
the Series A Guarantees.
(mm) The Issuers, the Subsidiary Guarantors and their respective
affiliates and all persons acting on their behalf (other than the
Initial Purchasers, as to whom the Issuers and the Subsidiary
Guarantors make no representation) have complied with and will comply
with the offering restrictions requirements of Regulation S in
connection with the offering of the Series A Notes outside the United
States and, in connection therewith, the Offering Memorandum will
contain the disclosure required by Regulation S.
(nn) The Partnership is a "reporting issuer," as defined in Rule 902
under the Act.
(oo) The Series A Notes offered and sold in reliance on Regulation S
have been and will be offered and sold only in offshore transactions.
(pp) The sale of the Series A Notes pursuant to Regulation S is not
part of a plan or scheme to evade the registration provisions of the
Act.
(qq) No registration under the Act of the Series A Notes or the Series
A Guarantees is required for the sale of the Series A Notes and the
Series A Guarantees to the Initial Purchasers as contemplated hereby or
for the Exempt Resales assuming the accuracy of the Initial Purchasers'
representations and warranties and agreements set forth in Section 7
hereof.
(rr) Each certificate signed by any officer of the Issuers or any
Subsidiary Guarantor and delivered to the Initial Purchasers or counsel
for the Initial Purchasers shall be deemed to be a representation and
warranty by the Issuers or such Subsidiary Guarantor to the Initial
Purchasers as to the matters covered thereby.
(ss) Except as otherwise set forth in the Offering Memorandum or such
as are not material to the business, prospects, financial condition or
results of operations of the Partnership
18
and its subsidiaries (taken as a whole), and except for liens created
by operation and maintenance agreements, space lease agreements and
other similar types of agreements ordinary and customary to the
operations of the General Partner, the Partnership and its
subsidiaries, the Partnership and the Subsidiary Guarantors have good
and defensible title to their interests in their oil and gas
properties.
(tt) The information which was supplied by the Partnership to
Netherland, Xxxxxx & Associates, Inc. ("Netherland & Xxxxxx"),
independent petroleum engineers, for purposes of evaluating the oil and
gas reserves of the Partnership and the Subsidiary Guarantors as of
December 31, 2001, including, without limitation, production, costs of
operation and development, current prices for production, agreements
relating to current and future operations and sales of production, was
true and correct in all material respects on the dates such estimates
were made and such information was supplied and was prepared in
accordance with customary industry practices, as indicated in the
letter of Netherland & Xxxxxx dated January 28, 2002 (the "Netherland &
Xxxxxx Letter"); Netherland & Xxxxxx was, as of the date of the
Netherland & Xxxxxx Letter, and is, as of the date hereof, independent
with respect to the Partnership and the Subsidiary Guarantors; other
than normal production of the reserves and intervening spot market
product price fluctuations, the Partnership is not aware of any facts
or circumstances that would result in a materially adverse change in
the reserves, or the present value of future net cash flows therefrom,
as described in the Offering Memorandum and as reflected in the
Netherland & Xxxxxx Letter and the reserve report referenced therein;
estimates of such reserves and present values as described in the
Offering Memorandum and reflected in the Netherland & Xxxxxx Letter and
the reserve report referenced therein comply in all material respects
to the applicable requirements of Regulation S-X and Industry Guide 2
under the Securities Act.
(uu) The Partnership and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; and neither the Partnership nor
any of its subsidiaries (i) has received notice from any insurer or
agent of such insurer that substantial capital improvements or other
material expenditures will have to be made in order to continue such
insurance or (ii) has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers at a cost that
could reasonably be expected not to have a Material Adverse Effect;
(vv) Except as disclosed in the Offering Memorandum, no relationship,
direct or indirect, exists between or among the Partnership or any of
its subsidiaries on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Partnership or any of its
subsidiaries, on the other hand, which would be required by the Act to
be described in the Offering Memorandum if the Offering Memorandum were
a prospectus included in a registration statement on Form S-1 filed
with the Commission.
(ww) There is no (i) significant unfair labor practice complaint,
grievance or arbitration proceeding pending or threatened against the
Partnership or any of its subsidiaries before the National Labor
Relations Board or any state or local labor relations board, (ii)
strike,
19
labor dispute, slowdown or stoppage pending or threatened against the
Partnership or any of its subsidiaries or (iii) union representation
question existing with respect to the employees of the Partnership or
any of its subsidiaries, except in the case of clauses (i), (ii) and
(iii) for such actions which, singly or in the aggregate, could
reasonably be expected not to have a Material Adverse Effect. To the
best knowledge of the Partnership, no collective bargaining organizing
activities are taking place with respect to the Partnership or any of
its subsidiaries.
(xx) The Issuers and each of their subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's
general or specific 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 management's 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.
(yy) All material tax returns required to be filed by the Issuers and
each of their subsidiaries in any jurisdiction have been filed, other
than those filings being contested in good faith, and all material
taxes, including withholding taxes, penalties and interest,
assessments, fees and other charges due pursuant to such returns or
pursuant to any assessment received by the Issuers or any of their
subsidiaries have been paid, other than those being contested in good
faith and for which adequate reserves have been provided. 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 paid in connection with the execution and delivery of this Agreement
or the issuance and sale of the Notes.
(zz) All indebtedness of the Partnership that will be repaid with the
proceeds of the issuance and sale of the Series A Notes was incurred,
and the indebtedness represented by the Series A Notes is being
incurred, for proper purposes and in good faith and each of the Issuers
and the Subsidiary Guarantors was, at the time of the incurrence of
such indebtedness that will be repaid with the proceeds of the issuance
and sale of the Series A Notes, and will be on the Closing Date (after
giving effect to the application of the proceeds from the issuance of
the Series A Notes) solvent, and had at the time of the incurrence of
such indebtedness that will be repaid with the proceeds of the issuance
and sale of the Series A Notes and will have on the Closing Date (after
giving effect to the application of the proceeds from the issuance of
the Series A Notes) sufficient capital for carrying on their respective
business and were, at the time of the incurrence of such indebtedness
that will be repaid with the proceeds of the issuance and sale of the
Series A Notes, and will be on the Closing Date (after giving effect to
the application of the proceeds from the issuance of the Series A
Notes) able to pay their respective debts as they mature.
(aaa) No action has been taken and no law, statute, rule or regulation
or order has been enacted, adopted or issued by any governmental agency
or body which prevents the execution, delivery and performance of any
of the Operative Documents, or the issuance
20
of the Series A Notes or the Series A Guarantees, or suspends the sale
of the Series A Notes or the Series A Guarantees in any jurisdiction
referred to in Section 5(e); and no injunction, restraining order or
other order or relief of any nature by a federal or state court or
other tribunal of competent jurisdiction has been issued with respect
to the Issuers or any of their subsidiaries which would prevent or
suspend the issuance or sale of the Series A Notes or the Series A
Guarantees in any jurisdiction referred to in Section 5(e).
The Issuers acknowledge that the Initial Purchasers and, for purposes
of the opinions to be delivered to the Initial Purchasers pursuant to Section 9
hereof, counsel to the Issuers and the Subsidiary Guarantors and counsel to the
Initial Purchasers will rely upon the accuracy and truth of the foregoing
representations and hereby consents to such reliance.
7. Initial Purchasers' Representations and Warranties. Each of the Initial
Purchasers, severally and not jointly, represents and warrants to each
of the Issuers and the Subsidiary Guarantors, and agrees that:
(a) Such Initial Purchaser is a QIB with such knowledge and experience
in financial and business matters as is necessary in order to evaluate
the merits and risks of an investment in the Series A Notes;
(b) Such Initial Purchaser (A) is not acquiring the Series A Notes with
a view to any distribution thereof or with any present intention of
offering or selling any of the Series A Notes in a transaction that
would violate the Act or the securities laws of any state of the United
States or any other applicable jurisdiction and (B) will be reoffering
and reselling the Series A Notes only to (x) QIBs in reliance on the
exemption from the registration requirements of the Act provided by
Rule 144A, and (y) in offshore transactions in reliance upon Regulation
S under the Act;
(c) Such Initial Purchaser agrees that no form of general solicitation
or general advertising (within the meaning of Regulation D under the
Act) has been or will be used by such Initial Purchaser or any of its
representatives in connection with the offer and sale of the Series A
Notes pursuant hereto, including, but not limited to, articles, notices
or other communications published in any newspaper, magazine or similar
medium or broadcast over television or radio, or any seminar or meeting
whose attendees have been invited by any general solicitation or
general advertising;
(d) Such Initial Purchaser agrees that, in connection with Exempt
Resales, such Initial Purchaser will solicit offers to buy the Series A
Notes only from, and will offer to sell the Series A Notes only to,
Eligible Purchasers. Each Initial Purchaser further agrees that it will
offer to sell the Series A Notes only to, and will solicit offers to
buy the Series A Notes only from (A) Eligible Purchasers that the
Initial Purchaser reasonably believes are QIBs, and (B) Regulation S
Purchasers, in each case, that will be deemed to have agreed that (x)
the Series A Notes purchased by them may be offered, resold, pledged or
otherwise transferred, only (i) to the Partnership, El Paso Finance, or
any subsidiary of the Partnership, (ii) in the United States to a
person whom the seller reasonably believes is a Qualified Institutional
Buyer (as defined in Rule 144A under the Securities Act) in a
21
transaction meeting the requirements of Rule 144A, (iii) outside the
United States in an offshore transaction in accordance with Rule 904
under the Securities Act, (iv) pursuant to an exemption from
registration under the Securities Act provided by Rule 144 thereunder
(if available) or (v) pursuant to an effective registration statement
under the Securities Act, in each of cases (i) through (v) in
accordance with any applicable securities laws of any state of the
United States, and (y) they will deliver to each person to whom such
Series A Notes or an interest therein is transferred a notice
substantially to the effect of the foregoing;
(e) Such Initial Purchaser and its affiliates or any person acting on
its or their behalf have not engaged or will not engage in any directed
selling efforts within the meaning of Regulation S with respect to the
Series A Notes or the Series A Guarantees;
(f) The Series A Notes offered and sold by such Initial Purchaser
pursuant hereto in reliance on Regulation S have been and will be
offered and sold only in offshore transactions;
(g) The sale of the Series A Notes offered and sold by such Initial
Purchaser pursuant hereto in reliance on Regulation S is not part of a
plan or scheme to evade the registration provisions of the Act;
(h) Such Initial Purchaser agrees that it has not offered or sold and
will not offer or sell the Series A Notes in the United States or to,
or for the benefit or account of, a U.S. Person (other than a
distributor), in each case, as defined in Rule 902 under the Act (i) as
part of its distribution at any time and (ii) otherwise until 40 days
after the later of the commencement of the offering of the Series A
Notes pursuant hereto and the Closing Date, other than in accordance
with Regulation S of the Act or another exemption from the registration
requirements of the Act. Such Initial Purchaser agrees that, during
such 40-day restricted period, it will not cause any advertisement with
respect to the Series A Notes (including any "tombstone" advertisement)
to be published in any newspaper or periodical or posted in any public
place and will not issue any Memorandum relating to the Series A Notes,
except such advertisements as are permitted by and include the
statements required by Regulation S;
(i) Such Initial Purchaser agrees that, at or prior to confirmation of
a sale of Series A Notes by it to any distributor, dealer or person
receiving a selling concession, fee or other remuneration during the
40-day restricted period referred to in Rule 903(b) under the Act, it
will send to such distributor, dealer or person receiving a selling
concession, fee or other remuneration a confirmation or notice to
substantially the following effect:
"The Series A Notes covered hereby have not been registered
under the U.S. Securities Act of 1933, as amended (the
"Securities Act"), and may not be offered and sold within the
United States or to, or for the account or benefit of, U.S.
persons (i) as part of your distribution at any time or (ii)
otherwise until 40 days after the later of the commencement of
the Offering and the Closing Date, except in either case in
accordance with Regulation S under the Securities Act (or Rule
144A or to institutional accredited investors as defined in
Rule 501(a)(1), (2), (3)
22
or (7) under the Securities Act, in transactions that are
exempt from the registration requirements of the Securities
Act), and in connection with any subsequent sale by you of the
Series A Notes covered hereby in reliance on Regulation S
during the period referred to above to any distributor, dealer
or person receiving a selling concession, fee or other
remuneration, you must deliver a notice to substantially the
foregoing effect. Terms used above have the meanings assigned
to them in Regulation S."; and
(j) Such initial purchaser:
(i) has not offered or sold and, prior to the date six
months after the date of issuance of the Series A Notes, will
not offer or sell any notes to persons in the United Kingdom
except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities
Regulations 1995 (as amended);
(ii) has only communicated or caused to be communicated
and will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity
(within the meaning of Section 21 of the Financial Services
and Markets Act 2000 received by it in connection with the
issue or sale of any Series A Notes in circumstances in which
Section 21(1) of the Financial Services and Markets Act 2000
does not apply to us or the guarantors; and
(iii) has complied and will comply with all applicable
provisions of the Financial Services and Markets Act 2000 with
respect to anything done by it in relation to the Series A
Notes in, from or otherwise involving the United Kingdom.
Each Initial Purchaser acknowledges that the Issuers and the Subsidiary
Guarantors and, for purposes of the opinions to be delivered to each Initial
Purchaser pursuant to Section 9 hereof, counsel to the Issuers and the
Subsidiary Guarantors and counsel to the Initial Purchasers will rely upon the
accuracy and truth of the foregoing representations and the Initial Purchasers
hereby consent to such reliance.
8. Indemnification.
(a) Each of the Issuers and each Subsidiary Guarantor agree, jointly
and severally, to indemnify and hold harmless the Initial Purchasers,
their directors, affiliates, their officers and each person, if any,
who controls such Initial Purchasers within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, from and against any and
all losses, claims, damages, liabilities and judgments (including,
without limitation, any legal or other expenses incurred in connection
with investigating or defending any matter, including any action, that
could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Offering Memorandum (or any
amendment or supplement thereto)
23
or any information provided by the Issuers or any Subsidiary Guarantor
to any holder or prospective purchaser of Series A Notes pursuant to
Section 5(f), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or judgments are caused by any
such untrue statement or omission or alleged untrue statement or
omission based upon information relating to the Initial Purchasers
furnished in writing to the Issuers by such Initial Purchaser (and not
with respect to the information provided by any other Initial
Purchaser).
(b) The Initial Purchasers agree, severally and not jointly, to
indemnify and hold harmless the Issuers and the Subsidiary Guarantors,
and their respective directors and officers and each person, if any,
who controls (within the meaning of Section 15 of the Act or Section 20
of the Exchange Act) the Issuers or the Subsidiary Guarantors, to the
same extent as the foregoing indemnity from the Issuers and the
Subsidiary Guarantors to the Initial Purchasers but only with reference
to information relating to the Initial Purchaser furnished in writing
to the Issuers by such Initial Purchaser expressly for use in the
Offering Memorandum and not with respect to the information provided by
any other Initial Purchaser.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or
8(b) (the "indemnified party"), the indemnified party shall promptly
notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party shall
assume the defense of such action, including the employment of counsel
reasonably satisfactory to the indemnified party and the payment of all
fees and expenses of such counsel, as incurred (except that in the case
of any action in respect of which indemnity may be sought pursuant to
both Sections 8(a) and 8(b), the Initial Purchasers shall not be
required to assume the defense of such action pursuant to this Section
8(c), but may employ separate counsel and participate in the defense
thereof, but the fees and expenses of such counsel, except as provided
below, shall be at the expense of the Initial Purchasers). Any
indemnified party shall have the right to employ separate counsel in
any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the indemnified
party unless (i) the employment of such counsel shall have been
specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such
action or employ counsel reasonably satisfactory to the indemnified
party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the
indemnifying party, and the indemnified party shall have been advised
by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have
the right to assume the defense of such action on behalf of the
indemnified party). In any such case, the indemnifying party shall not,
in connection with any one action or separate but substantially similar
or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to
any local counsel) for all indemnified parties and all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by X.X. Xxxxxx Securities
24
Inc., in the case of the parties indemnified pursuant to Section 8(a),
and by the Issuers, in the case of parties indemnified pursuant to
Section 8(b). The indemnifying party shall indemnify and hold harmless
the indemnified party from and against any and all losses, claims,
damages, liabilities and judgments by reason of any settlement of any
action (i) effected with its written consent or (ii) effected without
its written consent if the settlement is entered into more than twenty
business days after the indemnifying party shall have received a
request from the indemnified party for reimbursement for the fees and
expenses of counsel (in any case where such fees and expenses are at
the expense of the indemnifying party) and, prior to the date of such
settlement, the indemnifying party shall have failed to comply with
such reimbursement request. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement
or compromise of, or consent to the entry of judgment with respect to,
any pending or threatened action in respect of which the indemnified
party is or could have been a party and indemnity or contribution may
be or could have been sought hereunder by the indemnified party, unless
such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability on claims that are
or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a
failure to act, by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this Section 8 is
unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages, liabilities or judgments referred to therein,
then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages,
liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Issuers and the
Subsidiary Guarantors, on the one hand, and the Initial Purchasers on
the other hand from the offering of the Series A Notes or (ii) if the
allocation provided by clause 8(d)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause 8(d)(i) above but also
the relative fault of the Issuers and the Subsidiary Guarantors, on the
one hand, and the Initial Purchasers, on the other hand, in connection
with the statements or omissions which resulted in such losses, claims,
damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Issuers
and the Subsidiary Guarantors, on the one hand and the Initial
Purchasers, on the other hand, shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Series A
Notes (after discounts and commissions received by the Initial
Purchasers, but before deducting expenses) received by the Issuers, and
the total discounts and commissions received by the Initial Purchasers
bear to the total price to investors of the Series A Notes, in each
case as set forth in the table on the cover page of the Offering
Memorandum. The relative fault of the Issuers and the Subsidiary
Guarantors, on the one hand, and the Initial Purchasers, on the other
hand, shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Issuers or the Subsidiary Guarantors, on
the one hand, or the Initial Purchasers, on the other hand, and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
25
The Issuers and the Subsidiary Guarantors, and the Initial Purchasers
agree that it would not be just and equitable if contribution pursuant
to this Section 8(d) were determined by pro rata allocation, even if
the Initial Purchasers were treated as one entity for such purpose, or
by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or judgments
referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses incurred by such indemnified party in connection with
investigating or defending any matter, including any action, that could
have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 8, the
Initial Purchasers shall not be required to contribute any amount in
excess of the amount by which the total discounts and commissions
received by such Initial Purchasers exceeds the amount of any damages
which each Initial Purchaser has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Initial Purchasers' obligations to contribute
pursuant to this Section 8(d) are several in proportion to the
respective principal amount of Series A Notes purchased by each of the
Initial Purchasers hereunder and not joint.
(e) The remedies provided for in this Section 8 are not exclusive and
shall not limit any rights or remedies which may otherwise be available
to any indemnified party at law or in equity.
9. Conditions of Initial Purchasers' Obligations. The obligations of each
of the Initial Purchasers to purchase the Series A Notes under this
Agreement are subject to the satisfaction of each of the following
conditions:
(a) All the representations and warranties of the Issuers and the
Subsidiary Guarantors contained in this Agreement shall be true and
correct in all material respects on the Closing Date with the same
force and effect as if made on and as of the Closing Date, provided
that the representations and warranties qualified by "materiality"
shall be true and correct on the Closing Date;
(b) On or after the date hereof, there shall not have occurred (i) any
downgrading, suspension or withdrawal of, nor shall any notice have
been given of any potential or intended downgrading, suspension or
withdrawal of, or of any review (or of any potential or intended
review) for a possible change that either does not indicate the
direction of the possible change or indicates a negative change in, any
rating of the Issuers or any Subsidiary Guarantor or any securities of
the Issuers or any Subsidiary Guarantor (including, without limitation,
the placing of any of the foregoing ratings on credit watch with
negative or developing implications or under review with an uncertain
or negative direction) by any "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2)
under the Act, (ii) any change, nor shall any notice have been given of
any potential or intended change, in the outlook for any rating of the
Issuers or any Subsidiary Guarantor or any securities of the Issuers or
any
26
Subsidiary Guarantor by any such rating organization and (iii) no such
rating organization shall have given notice that it has assigned (or is
considering assigning) a lower rating to the Notes than that on which
the Notes were marketed; (iv) any change in U.S. or international
financial, political or economic conditions or currency exchange rates
or exchange controls as would, in the judgment of X.X. Xxxxxx
Securities Inc., be likely to prejudice materially the success of the
proposed issue, sale or distribution of the Notes, whether in the
primary market or in respect of dealings in the secondary market; (v)
any material suspension or material limitation of trading in securities
generally on the New York Stock Exchange or any setting of minimum
prices for trading on such exchange, or any suspension of trading of
any securities of the Issuers on any exchange or in the
over-the-counter market; (vi) any banking moratorium declared by U.S.
Federal or New York authorities; (vii) any major disruption of
settlements of securities or clearance services in the United States or
(viii) any attack on, outbreak or escalation of hostilities or act of
terrorism involving the United States, any declaration of war by
Congress or any other national or international calamity or emergency
if, in the judgment of X.X. Xxxxxx Securities Inc., the effect of any
such attack, outbreak, escalation, act, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with
completion of the offering or sale of and payment for the Series A
Notes on the terms and in the manner contemplated in the Offering
Memorandum.
(c) Since the respective dates as of which information is given in the
Offering Memorandum other than as set forth in the Offering Memorandum
(exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement), (i) there shall not have occurred any change
or any development involving a prospective change in the condition,
financial or otherwise, or the earnings, business, management or
operations of the Partnership and its subsidiaries and El Paso Finance,
taken as a whole, (ii) there shall not have been any change or any
development involving a prospective change in the capital stock,
limited liability company interests or partnership units, as
applicable, or in the long-term debt of the Issuers or any of their
subsidiaries and (iii) neither the Issuers nor any of their
subsidiaries shall have incurred any liability or obligation, direct or
contingent, the effect of which, in any such case described in clause
9(c)(i), 9(c)(ii) or 9(c)(iii), in your judgment, is material and
adverse and, in your judgment, makes it or impracticable or inadvisable
to proceed with the completion of the offering and sale and payment for
market the Series A Notes on the terms and in the manner contemplated
in the Offering Memorandum;
(d) You shall have received on the Closing Date a certificate dated the
Closing Date, signed by the President or a Senior Vice President and
the Chief Financial Officer of the Partnership and El Paso Finance and
each of the Subsidiary Guarantors, confirming the matters set forth in
Sections 6(cc), 9(a) and 9(b)(i), (ii) and (iii) and stating that each
of the Issuers and the Subsidiary Guarantors has complied with all the
agreements and satisfied all of the conditions herein contained and
required to be complied with or satisfied on or prior to the Closing
Date;
(e) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Initial Purchasers), dated the
Closing Date, of Xxxx, Xxxx, Xxxxxxx,
27
Xxxxx & Xxxx, L.L.P., counsel for the Issuers and the Subsidiary
Guarantors, to the effect that:
(i) Each of the Partnership and its Restricted
Subsidiaries (other than any business trust) and El Paso
Finance, as applicable, has been duly formed or incorporated
and is validly existing as a partnership, corporation or
limited liability company and in good standing (other than any
general partnership) under the laws of its jurisdiction of
formation or incorporation and has the partnership, corporate
or limited liability company power and authority to conduct
its business and to own, lease and operate its properties, in
each case as described in the Offering Memorandum;
(ii) Each of the Partnership and its Restricted
Subsidiaries (other than general partnerships) and El Paso
Finance, as applicable, is duly qualified or registered to do
business as a foreign limited partnership, corporation,
limited liability company or business trust, as the case may
be, and, based solely on the various certificates from public
officials of Texas, Louisiana, Mississippi, New Mexico,
Massachusetts, Nevada and Alabama (the "Good Standing
Certificates"), is in good standing as a foreign limited
partnership, corporation, limited liability company or
business trust authorized to do business in the respective
jurisdictions listed on Schedule D hereto;
(iii) The General Partner has been duly incorporated and is
validly existing in good standing under the laws of the State
of Delaware with full corporate power and authority to carry
on its businesses; to own, lease and operate its properties;
and to act as the general partner of the Partnership in all
material respects as described in the Offering Memorandum. The
General Partner is duly qualified and, based solely on the
Good Standing Certificates, is in good standing as a foreign
corporation authorized to do business in the jurisdictions
listed on Schedule D hereto;
(iv) The General Partner is the sole general partner of
the Partnership and owns (of record) a 1.0% general partner
interest in the Partnership;
(v) the Series A Notes have been duly authorized by each
of the Issuers and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered
to and paid for by the Initial Purchasers in accordance with
the terms of this Agreement, will be entitled to the benefits
of the Indenture and will be valid and binding obligations of
the Issuers, enforceable in accordance with their terms except
as may be limited by (i) applicable bankruptcy, insolvency,
fraudulent transfer and conveyance, reorganization, moratorium
and similar laws affecting creditors' rights and remedies
generally; (ii) general principles of equity, including
principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity); (iii) commercial
reasonableness and unconscionability and an implied covenant
of good faith and fair dealing; (iv) the power of the courts
to award damages in lieu of equitable remedies; and (v)
28
securities laws and public policy underlying such laws with
respect to rights to indemnification and contribution (the
"General Exceptions");
(vi) The Series A Guarantees have been duly authorized
and, when the Series A Notes are executed and authenticated in
accordance with the provisions of the Indenture and delivered
to and paid for by the Initial Purchasers in accordance with
the terms of this Agreement, the Series A Guarantees endorsed
by the notations on the Series A Notes will be entitled to the
benefits of the Indenture and will be valid and binding
obligations of the Subsidiary Guarantors, enforceable in
accordance with their terms except as may be limited by the
General Exceptions;
(vii) The Series B Guarantees have been duly authorized
and, when the Series B Notes are executed and authenticated in
accordance with the provisions of the Indenture and delivered
to and paid for by the Initial Purchasers in accordance with
the terms of this Agreement, the Series B Guarantees endorsed
by the notations on the Series B Notes will be entitled to the
benefits of the Indenture and will be valid and binding
obligations of the Subsidiary Guarantors, enforceable in
accordance with their terms except as may be limited by the
General Exceptions;
(viii) The Indenture has been duly authorized, executed and
delivered by each of the Issuers and each Subsidiary Guarantor
and is a valid and binding agreement of each of the Issuers
and each Subsidiary Guarantor, enforceable against each of the
Issuers and each Subsidiary Guarantor in accordance with its
terms except as may be limited by the General Exceptions;
(ix) This Agreement has been duly authorized, executed and
delivered by each of the Issuers and the Subsidiary
Guarantors;
(x) The Registration Rights Agreement has been duly
authorized, executed and delivered by each of the Issuers and
the Subsidiary Guarantors and is a valid and binding agreement
of each of the Issuers and each Subsidiary Guarantor,
enforceable against each of the Issuers and each Subsidiary
Guarantor in accordance with its terms, except as may be
limited by the General Exceptions;
(xi) The Series B Notes have been duly authorized by each
of the Issuers;
(xii) The statements under the captions "Description of
Notes," "Description of Other Indebtedness," "United States
Federal Income and Estate Tax Considerations" and "Plan of
Distribution" in the Offering Memorandum, insofar as such
statements purport to constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly
present in all material respects such legal matters, documents
and proceedings;
(xiii) To the knowledge of such counsel, neither the
Partnership nor any of its Restricted Subsidiaries nor El Paso
Finance is in violation of its respective partnership
agreement, limited liability company agreement, charter or
by-laws or
29
other organizational documents, as applicable and, neither the
Partnership nor any of its subsidiaries nor El Paso Finance is
in default in the performance of any obligation, agreement,
covenant or condition contained in any of the material
agreements attached as exhibits to the Partnership's 2001
Annual Report on Form 10-K or any Current Report on Form 8-K
or Quarterly Report on Form 10-Q filed since January 1, 2002
(the "Material Agreements");
(xiv) The execution, delivery and performance of this
Agreement and the other Operative Documents by each of the
Issuers and each of the Subsidiary Guarantors, the compliance
by each of the Issuers and each of the Subsidiary Guarantors
with all provisions hereof and thereof and the consummation by
the Issuers and the Subsidiary Guarantors, of the transactions
contemplated by this Agreement and the other Operative
Documents will not, to the knowledge of such counsel, (i)
require any consent, approval, authorization, filing with or
other order of, or qualification with, any court or
governmental body or agency (except (x) such as may be
required under the securities or Blue Sky laws of the various
states or, with respect to the proposed offer to exchange the
Exchange Notes for the Notes, the federal securities laws or
the TIA, (y) routine corporate, partnership and limited
liability company filings required after the date thereof, and
(z) routine filings under the Exchange Act), (ii) conflict
with or constitute a breach of any of the terms or provisions
of, or a default under, the partnership agreement, limited
liability company agreement, charter or by-laws or other
organizational documents, as applicable, of the Partnership or
any of its Restricted Subsidiaries or El Paso Finance or any
Material Agreement, or (iii) result in the imposition or
creation of (or the obligation to create or impose) a Lien
under any Material Agreement; and except that such counsel
need express no opinion regarding antifraud provisions of
federal or state securities or blue sky laws with respect to
clause (i) of this paragraph (xiii);
(xv) Neither of the Issuers is and, after giving effect to
the offering and sale of the Series A Notes, the application
of the net proceeds thereof as described in the Offering
Memorandum, neither of the Issuers will be, an "investment
company" as such term is defined in the Investment Company Act
of 1940, as amended;
(xvi) To the knowledge of such counsel, there are no
contracts, agreements or understandings between the
Partnership, El Paso Finance, any Subsidiary Guarantor and any
person granting such person the right to require the
Partnership, El Paso Finance or such Subsidiary Guarantor to
file a registration statement under the Act with respect to
any securities of the Partnership, El Paso Finance or such
Subsidiary Guarantor (other than the rights (i) of the General
Partner and its affiliates in Section 6.14 of the Partnership
Agreement and in the Series C RRA; (ii) of EPEC and its
successors pursuant to a registration rights agreement between
EPEC and the Partnership executed in connection with the
acquisition by the Partnership of an additional interest in
Viosca Xxxxx Gathering Company; (iii) of Crystal Gas Storage,
Inc. pursuant to the registration rights agreement between
Crystal Gas Storage, Inc. and the Partnership which was
executed in connection with the acquisition by the Partnership
of the Crystal
30
storage facilities; provided, however, that with respect to
(i), (ii) and (iii) above, the General Partner, EPEC, Xxxxxx
X, Xxxxxx XX and Xxxxxxx Gas Storage, Inc. have agreed not to
exercise their rights with respect to such securities in
connection with the offering of the Notes for 90 days
hereafter pursuant to letter agreements of even date herewith;
(iv) granted under the Credit Facility, the EPN Holding Term
Loan, the San Xxxx Acquisition Loan and related agreements;
and (v) granted under the Registration Rights Agreement); and
to the knowledge of such counsel there are no contracts,
agreements or understandings between the Partnership, El Paso
Finance or any Subsidiary Guarantor and any person granting
such person the right to require the Partnership, El Paso
Finance or such Subsidiary Guarantor include such securities
with the Notes and Guarantees registered pursuant to any
Registration Statement other than the rights of the General
Partner and its affiliates in Section 6.14 of the Partnership
Agreement and in the Series C RRA (which rights have been
waived in connection with any Registration Statement filed
pursuant to the Registration Rights Agreement).
(xvii) The Indenture complies as to form in all material
respects with the requirements of the TIA, and the rules and
regulations of the Commission applicable to an indenture which
is qualified thereunder. It is not necessary in connection
with the offer, sale and delivery of the Series A Notes to the
Initial Purchasers in the manner contemplated by this
Agreement or in connection with the initial placement of the
Series A Notes by the Initial Purchasers in the manner
contemplated by the Offering Memorandum pursuant to Exempt
Resales to qualify the Indenture under the TIA (it being
understood that such counsel need express no opinion as to any
other offer or sale);
(xviii) No registration under the Act of the Series A Notes
is required for the sale of the Series A Notes to the Initial
Purchasers as contemplated by this Agreement or for the Exempt
Resales assuming that (i) each Initial Purchaser is a QIB, or
a Regulation S Purchaser, (ii) the accuracy of, and compliance
with, the Initial Purchasers' representations and agreements
contained in Section 7 of this Agreement and (iii) the
accuracy of the representations and agreements of each of the
Issuers and the Subsidiary Guarantors set forth in Sections
5(f) and (k) and 6(dd), (gg), (hh), (jj), (kk), (ll) and (mm)
of this Agreement;
(xix) The Offering Memorandum, as of its date, and each
amendment or supplement thereto, as of its date, complied as
to form in all material respects with the applicable
requirements of Rule 144A(d)(4) of the Act (it being
understood that such counsel need express no opinion with
respect to this paragraph (xix) regarding the financial
statements and the notes thereto, oil and gas reserve
information and the schedules and other financial data
included in the Offering Memorandum);
(xx) A court applying Texas conflict of laws rules in a
properly presented and argued case should give effect to the
express choice of law provisions contained in the Operative
Documents to the extent that such provisions provide that the
31
laws of the State of New York are to govern issues under the
Operative Documents.
In addition, such counsel shall include a statement in such opinion
letter to the effect that although such counsel has not undertaken,
except as otherwise indicated in their opinion, to determine
independently, and does not assume any responsibility for, the accuracy
or completeness of the statements in the Offering Memorandum, such
counsel has participated in the preparation of the Offering Memorandum
and any amendments or supplements thereto, including review and
discussion of the contents thereof, and nothing has come to the
attention of such counsel that has caused them to believe that, as of
the date of the Offering Memorandum or as of the Closing Date, the
Offering Memorandum, as amended or supplemented, if applicable,
contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading (it being understood that such counsel
need express no opinion with respect to the financial statements and
notes thereto, oil and gas reserve information and the schedules and
other financial data included in the Offering Memorandum).
The opinion of Xxxx, Xxxx, Xxxxxxx, Xxxxx & Xxxx, L.L.P. described in
Section 9(e) above (i) may be subject to customary qualifications,
assumptions and limitations and (ii) shall be rendered to you at the
request of the Issuers and the Subsidiary Guarantors and shall so state
therein.
(f) The Initial Purchasers shall have received on the Closing Date an
opinion, dated the Closing Date, of Xxxxxxx X. Xxxxx, counsel for the
Partnership, to the effect that: (i) except as set forth in the
Offering Memorandum, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Partnership
or any of its Restricted Subsidiaries or El Paso Finance is a party or
to which any of their respective property is subject, except for those
which, singly or in the aggregate, could reasonably be expected not to
result in a Material Adverse Effect;
(ii) The execution, delivery and performance of this
Agreement and the other Operative Documents by each of the
Issuers and each of the Subsidiary Guarantors, the compliance
by each of the Issuers and each of the Subsidiary Guarantors
with all provisions hereof and thereof and the consummation by
the Issuers and the Subsidiary Guarantors, of the transactions
contemplated by this Agreement and the other Operative
Documents will not, to the knowledge of such counsel, (i)
violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over the
Partnership, any of its Restricted Subsidiaries or El Paso
Finance or their respective property or (ii) result in the
termination, suspension or revocation of any Authorization of
the Partnership or any of its Restricted Subsidiaries or El
Paso Finance or result in any other impairment of the rights
of the holder of any such Authorization, except for those
which, singly or in the aggregate, could reasonably be
expected not to result in a Material Adverse Effect; and
except that such counsel need express no opinion regarding
antifraud
32
provisions of federal or state securities or blue sky laws
with respect to clause (i) of this paragraph (ii);
(iii) To the knowledge of such counsel, (A) each of the
Partnership and its Restricted Subsidiaries and El Paso
Finance has such Authorizations of, and has made all filings
with and notices to, all governmental or regulatory
authorities and self-regulatory organizations and all courts
and other tribunals, including without limitation, under any
applicable Environmental Laws, as are necessary to own, lease,
license and operate its respective properties and to conduct
its business, except where the failure to have any such
Authorization or to make any such filing or notice could,
singly or in the aggregate, reasonably be expected not to have
a Material Adverse Effect; (B) each such Authorization known
to us is valid and in full force and effect and, to the
knowledge of such counsel, each of the Partnership and its
Restricted Subsidiaries and El Paso Finance is in compliance
with all the terms and conditions thereof and with the rules
and regulations of the authorities and governing bodies having
jurisdiction with respect thereto; (C) no event has occurred
(including the receipt of any notice from any authority or
governing body) which allows or, after notice or lapse of time
or both, would allow, revocation, suspension or termination of
any such Authorization or results or, after notice or lapse of
time or both, would result in any other material impairment of
the rights of the holder of any such Authorization; and (D)
such Authorizations contain no restrictions that are
materially burdensome to the Partnership or any of its
Restricted Subsidiaries or El Paso Finance; except in the case
of (A) through (D) above those which could reasonably be
expected not to, singly or in the aggregate, have a Material
Adverse Effect; and
(iv) Neither the General Partner nor the Partnership is a
"holding company" or, after giving effect to the offering and
sale of the Series A Notes and the application of the proceeds
thereof as described in the Offering Memorandum will be a
"holding company," within the meaning of, or subject to
regulation under, the Public Holding Utility Company Act of
1935, as amended, and the rules and regulations promulgated by
the Commission thereunder.
(g) The Initial Purchasers shall have received on the Closing Date an
opinion, dated the Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel
for the Initial Purchasers, in form and substance reasonably
satisfactory to the Initial Purchasers.
(h) The Initial Purchasers shall have received, at the time this
Agreement is executed and at the Closing Date, letters dated the date
hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Initial Purchasers containing the information and
statements of the type ordinarily included in accountants' "comfort
letters" to the Initial Purchasers from PricewaterhouseCoopers LLP,
independent public accountants, with respect to the financial
statements of the Issuers and their subsidiaries, and certain financial
information contained in the Offering Memorandum.
33
(i) The Initial Purchasers shall have received, at the time of this
Agreement is executed and at the Closing Date, letters dated the date
hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Initial Purchasers from Netherland & Xxxxxx.
(j) The Series A Notes shall have been approved by the NASD for trading
and duly listed in PORTAL.
(k) The Issuers, the Subsidiary Guarantors and the Trustee shall have
executed the Indenture.
(l) The Issuers and the Subsidiary Guarantors shall have executed the
Registration Rights Agreement and the Initial Purchasers shall have
received an original copy thereof, duly executed by the Issuers and the
Subsidiary Guarantors.
(m) Neither the Issuers nor the Subsidiary Guarantors shall have failed
at or prior to the Closing Date to perform or comply with any of the
agreements herein contained and required to be performed or complied
with by each of the Issuers or the Subsidiary Guarantors, as the case
may be, at or prior to the Closing Date.
10. Effectiveness of Agreement and Termination. This Agreement shall become
effective upon the execution and delivery of this Agreement by the parties
hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by the Initial Purchasers by written notice to the Issuers if any of the
following has occurred: (i) any outbreak or escalation of hostilities or other
national or international calamity or crisis or change in economic conditions or
in the financial markets of the United States or elsewhere that, in any of the
Initial Purchasers' judgment, is material and adverse and, in any of the Initial
Purchasers' judgment, makes it impracticable or inadvisable to proceed with the
completion of the offering and sale and payment for the Series A Notes on the
terms and in the manner contemplated in the Offering Memorandum, (ii) the
suspension or material limitation of trading in securities or other instruments
on the New York Stock Exchange, the American Stock Exchange, the Chicago Board
of Options Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade
or the Nasdaq National Market or limitation on prices for securities or other
instruments on any such exchange or the Nasdaq National Market, (iii) the
suspension of trading of any securities of the Issuers or any Subsidiary
Guarantor on any exchange or in the over-the-counter market, (iv) the enactment,
publication, decree or other promulgation of any federal or state statute,
regulation, rule or order of any court or other governmental authority which in
your opinion materially and adversely affects, or will materially and adversely
affect, the business, prospects, financial condition or results of operations of
the Issuers and their subsidiaries, taken as a whole, (v) the declaration of a
banking moratorium by either federal or New York State authorities or (vi) the
taking of any action by any federal, state or local government or agency in
respect of its monetary or fiscal affairs which in your opinion has a material
adverse effect on the financial markets in the United States.
If on the Closing Date any one or more of the Initial Purchasers shall
fail or refuse to purchase the Series A Notes which it or they have agreed to
purchase hereunder on such date and the aggregate principal amount of the Series
A Notes which such defaulting Initial Purchaser or
34
Initial Purchasers, as the case may be, agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of the Series A
Notes to be purchased on such date by all Initial Purchasers, each
non-defaulting Initial Purchaser shall be obligated severally, in the proportion
which the principal amount of the Series A Notes set forth opposite its name in
Schedule B bears to the aggregate principal amount of the Series A Notes which
all the non-defaulting Initial Purchasers, as the case may be, have agreed to
purchase, or in such other proportion as you may specify, to purchase the Series
A Notes which such defaulting Initial Purchaser or Initial Purchasers, as the
case may be, agreed but failed or refused to purchase on such date; provided
that in no event shall the aggregate principal amount of the Series A Notes
which any Initial Purchaser has agreed to purchase pursuant to Section 2 hereof
be increased pursuant to this Section 10 by an amount in excess of one-ninth of
such principal amount of the Series A Notes without the consent of such Initial
Purchaser. If on the Closing Date any Initial Purchaser or Initial Purchasers
shall fail or refuse to purchase the Series A Notes and the aggregate principal
amount of the Series A Notes with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of the Series A Notes to be
purchased by all Initial Purchasers and arrangements satisfactory to the Initial
Purchasers and the Issuers for purchase of such Series A Notes are not made
within 48 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Initial Purchaser and the Issuers.
In any such case which does not result in termination of this Agreement, either
you or the Issuers shall have the right to postpone the Closing Date, but in no
event for longer than seven days, in order that the required changes, if any, in
the Offering Memorandum or any other documents or arrangements may be effected.
Any action taken under this paragraph shall not relieve any defaulting Initial
Purchaser from liability in respect of any default of any such Initial Purchaser
under this Agreement.
This Agreement may be terminated at any time on or prior to the Closing
Date by the Issuers by written notice to the Initial Purchasers if, there is a
failure to obtain any consent or waiver under, or amendment of, the Credit
Facility, that is required in order for the issuance of the Notes to not
constitute a default thereunder.
11. Miscellaneous.
(a) Notices given pursuant to any provision of this Agreement shall be
addressed as follows:
(i) if to the Issuers or any Subsidiary Guarantor, to:
El Paso Energy Partners, L.P.
0 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Chief Financial Officer;
With a copy to (which shall not constitute notice):
Akin Gump Xxxxxxx Xxxxx & Xxxx, LLP
0000 Xxxxxxxx Xxxxx, South Tower
000 Xxxxxxxxx Xxxxxx
35
Houston, Texas 77002
Attention: X. Xxxxxxx Xxxxxxxx
(ii) if to the Initial Purchasers, to:
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxx
or in any case to such other address as the person to be notified may
have requested in writing.
(b) The respective indemnities, contribution agreements,
representations, warranties and other statements of the Issuers, the
Subsidiary Guarantors and the Initial Purchasers, set forth in or made
pursuant to this Agreement shall remain operative and in full force and
effect, and will survive delivery of and payment for the Series A
Notes, regardless of (i) any investigation, or statement as to the
results thereof, made by or on behalf of the Initial Purchasers, the
officers or directors of the Initial Purchasers, any person controlling
the Initial Purchasers, the Issuers, any Subsidiary Guarantor, the
officers or directors of the Issuers or any Subsidiary Guarantor, or
any person controlling the Issuers or any Subsidiary Guarantor, (ii)
acceptance of the Series A Notes and payment for them hereunder and
(iii) termination of this Agreement.
(c) If for any reason the Series A Notes are not delivered by or on
behalf of the Issuers as provided herein (other than as a result of any
termination of this Agreement pursuant to Section 10), the Issuers and
each Subsidiary Guarantor, jointly and severally, agree to reimburse
the Initial Purchasers for all out-of-pocket expenses (including the
fees and disbursements of counsel) incurred by them. Notwithstanding
any termination of this Agreement, the Issuers shall be liable for all
expenses which they have agreed to pay pursuant to Section 5(i) hereof.
Each of the Issuers and each Subsidiary Guarantor also agrees, jointly
and severally, to reimburse each of the Initial Purchasers and its
officers, directors and each person, if any, who controls such Initial
Purchasers within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act for any and all fees and expenses (including without
limitation the fees and expenses of counsel) incurred by them in
connection with enforcing their rights under this Agreement (including
without limitation its rights under Section 8).
(d) Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Partnership, El
Paso Finance, the Subsidiary Guarantors, the Initial Purchasers, each
of the Initial Purchasers' affiliates, directors and officers, any
controlling persons referred to herein, the directors of the Issuers
and the Subsidiary Guarantors and their respective successors and
assigns, all as and to the extent provided in this Agreement, and no
other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a
purchaser of any of the Series A Notes from the Initial Purchasers
merely because of such purchase.
36
(e) This Agreement shall be governed and construed in accordance with
the laws of the State of New York.
(f) This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
(Signatures Page Follows)
37
Please confirm that the foregoing correctly sets forth the agreement
among the Partnership, El Paso Finance, the Subsidiary Guarantors and the
Initial Purchasers.
Very truly yours,
Issuers:
EL PASO ENERGY PARTNERS, L.P.
By: /s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Vice President and Chief Financial Officer
EL PASO PARTNERS FINANCE CORPORATION
By: /s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Vice President and Chief Financial Officer
38
Subsidiary Guarantors:
CRYSTAL HOLDING, L.L.C.*
CHACO LIQUIDS PLANT TRUST
By: EL PASO ENERGY PARTNERS OPERATING
COMPANY, L.L.C., in its capacity as trustee of the
Chaco Liquids Plant Trust*
EL PASO ENERGY INTRASTATE, L.P.*
EL PASO ENERGY PARTNERS OIL TRANSPORT, L.L.C.*
EL PASO ENERGY PARTNERS OPERATING
COMPANY, L.L.C.*
EL PASO ENERGY WARWINK I COMPANY, L.P.*
EL PASO ENERGY WARWINK II COMPANY, L.P.*
EL PASO OFFSHORE GATHERING & TRANSMISSION, L.P.*
EL PASO SOUTH TEXAS, L.P.*
EPGT TEXAS PIPELINE, L.P.*
EPN ALABAMA INTRASTATE, L.L.C.*
EPN FIELD SERVICES, L.L.C.*
EPN GATHERING AND TREATING COMPANY, L.P.*
EPN GATHERING AND TREATING GP HOLDING, L.L.C.*
EPN GP HOLDING, L.L.C.*
EPN GP HOLDING I, L.L.C.*
EPN GULF COAST, L.P.*
EPN HOLDING COMPANY, L.P.*
EPN HOLDING COMPANY I, L.P.*
EPN NGL STORAGE, L.L.C.*
EPN PIPELINE GP HOLDING, L.L.C.*
FIRST RESERVE GAS, L.L.C.*
FLEXTREND DEVELOPMENT COMPANY, L.L.C.*
HATTIESBURG GAS STORAGE COMPANY*
By: FIRST RESERVE GAS, L.L.C., in its capacity as 50%
general partner of Hattiesburg Gas Storage Company*
By: HATTIESBURG INDUSTRIAL GAS SALES, L.L.C., in its
capacity as 50% general partner of Hattiesburg Gas
Storage Company*
HATTIESBURG INDUSTRIAL GAS SALES, L.L.C.*
HIGH ISLAND OFFSHORE SYSTEM, L.L.C.
By: EL PASO ENERGY PARTNERS, L.P.,
its sole member*
MANTA RAY GATHERING COMPANY, L.L.C.*
PETAL GAS STORAGE, L.L.C.*
POSEIDON PIPELINE COMPANY, L.L.C.*
WARWINK GATHERING AND TREATING COMPANY*
By: EL PASO ENERGY WARWINK I COMPANY, L.P., in its
capacity as 99% general partner of Warwink Gathering
and Treating Company*
39
By: EL PASO ENERGY WARWINK II COMPANY, L.P., in its
capacity as 1% general partner of Warwink Gathering
and Treating Company*
*By: /s/Xxxxx Xxxxxx
---------------
Name: Xxxxx Xxxxxx
Title: Vice President and Chief Financial Officer
40
Initial Purchasers:
X.X. XXXXXX SECURITIES INC.
XXXXXXX, XXXXX & CO.
UBS WARBURG LLC
WACHOVIA SECURITIES, INC.
By: X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxx Xxxxxxx
----------------
Title: Vice President
41
SCHEDULE A
SUBSIDIARY GUARANTORS
Chaco Liquids Plant Trust
Crystal Holding, L.L.C.
El Paso Energy Intrastate, L.P.
El Paso Energy Partners Oil Transport, L.L.C.
El Paso Energy Partners Operating Company, L.L.C
El Paso Energy Warwink I Company, L.P.
El Paso Energy Warwink II Company, L.P.
El Paso Offshore Gathering & Transmission, L.P.
El Paso South Texas, L.P.
EPGT Texas Pipeline, L.P.
EPN Alabama Intrastate, L.L.C.
EPN Field Services, L.L.C.
EPN Gathering and Treating Company, L.P.
EPN Gathering and Treating GP Holding, L.L.C.
EPN GP Holding, L.L.C.
EPN GP Holding I, L.L.C.
EPN Gulf Coast, L.P.
EPN Holding Company, L.P.
EPN Holding Company I, L.P.
EPN NGL Storage, L.L.C.
EPN Pipeline GP Holding, L.L.C.
First Reserve Gas, L.L.C.
Flextrend Development Company, L.L.C.
Hattiesburg Gas Storage Company
Hattiesburg Industrial Gas Sales, L.L.C.
High Island Offshore System, L.L.C.
Manta Ray Gathering Company, L.L.C.
Petal Gas Storage, L.L.C.
Poseidon Pipeline Company, L.L.C.
Warwink Gathering and Treating Company
Schedule A - Page 1
SCHEDULE B
Principal Amount
Initial Purchaser of Notes
----------------- ----------------
X.X. Xxxxxx Securities Inc............................. $ 85,000,000
Xxxxxxx, Xxxxx & Co.................................... 85,000,000
UBS Warburg LLC........................................ 85,000,000
Wachovia Securities, Inc............................... 45,000,000
Total.................................................. $ 300,000,000
=============
Schedule B - Page 1
SCHEDULE C
JURISDICTION OF
ENTITY NAME FORMATION OWNERSHIP
----------- --------------- ---------
Chaco Liquids Plant Trust Massachusetts 100%
Crystal Holding, L.L.C. Delaware 100%
El Paso Energy Intrastate, L.P. Delaware 100%
El Paso Energy Partners Oil Transport, L.L.C. Delaware 100%
El Paso Energy Partners Operating Company, L.L.C. Delaware 100%
El Paso Energy Warwink I Company, L.P. Delaware 100%
El Paso Energy Warwink II Company, L.P. Delaware 100%
El Paso Offshore Gathering and Transmission, L.P. Delaware 100%
El Paso South Texas, L.P. Delaware 100%
EPGT Texas Pipeline, L.P. Delaware 100%
EPN Alabama Intrastate, L.L.C. Delaware 100%
EPN Field Services, L.L.C. Delaware 100%
EPN Gathering and Treating Company, L.P. Delaware 100%
EPN Gathering and Treating GP Holding, L.L.C. Delaware 100%
EPN GP Holding, L.L.C. Delaware 100%
EPN GP Holding I, L.L.C. Delaware 100%
EPN Gulf Coast, L.P. Delaware 100%
EPN Holding Company, L.P. Delaware 100%
EPN Holding Company I, L.P. Delaware 100%
EPN NGL Storage, L.L.C. Delaware 100%
EPN Pipeline GP Holding, L.L.C. Delaware 100%
First Reserve Gas, L.L.C. Delaware 100%
Flextrend Development Company, L.L.C. Delaware 100%
Hattiesburg Gas Storage Company Delaware 100%
Hattiesburg Industrial Gas Sales, L.L.C. Delaware 100%
High Island Offshore System, L.L.C. Delaware 100%
Manta Ray Gathering Company, L.L.C. Delaware 100%
Petal Gas Storage, L.L.C. Delaware 100%
Poseidon Pipeline Company, L.L.C. Delaware 100%
Warwink Gathering and Treating Company Texas 100%
Schedule C - Page 1
SCHEDULE D
JURISDICTION OF FOREIGN QUALIFICATION
ENTITY NAME FORMATION JURISDICTIONS
----------- --------------- -----------------------
El Paso Energy Partners, L.P. Delaware Texas, Louisiana
El Paso Energy Partners Company Delaware Texas, Louisiana
Chaco Liquids Plant Trust Massachusetts --
Crystal Holding, L.L.C. Delaware --
El Paso Energy Intrastate, L.P. Delaware Texas, Louisiana
El Paso Energy Partners Finance Corporation Delaware Texas
El Paso Energy Partners Oil Transport, L.L.C. Delaware Texas, Louisiana, Alabama
El Paso Energy Partners Operating Company, L.L.C. Delaware Texas, Louisiana,
Massachusetts, New Mexico
El Paso Energy Warwink I Company, L.P. Delaware Texas
El Paso Energy Warwink II Company, L.P. Delaware Texas
El Paso Offshore Gathering & Transmission, L.P. Delaware Texas
El Paso South Texas, L.P. Delaware Texas
EPGT Texas Pipeline, L.P. Delaware Texas
EPN Alabama Intrastate, L.L.C. Delaware --
EPN Field Services, L.L.C. Delaware Texas, Louisiana, New
Mexico
EPN Gathering and Treating Company, L.P. Delaware Texas, New Mexico
EPN Gathering and Treating GP Holding, L.L.C. Delaware Texas
EPN GP Holding, L.L.C. Delaware Texas
EPN GP Holding I, L.L.C. Delaware Texas
EPN Gulf Coast, L.P. Delaware Texas, Louisiana,
Alabama, New Mexico
EPN Holding Company, L.P. Delaware Texas
EPN Holding Company I, L.P. Delaware Texas
EPN NGL Storage, L.L.C. Delaware Mississippi, Nevada
EPN Pipeline GP Holding, L.L.C. Delaware Texas
First Reserve Gas, L.L.C. Delaware Mississippi
Flextrend Development Company, L.L.C. Delaware Texas, Louisiana,
Alabama
Hattiesburg Gas Storage Company Delaware --
Hattiesburg Industrial Gas Sales, L.L.C. Delaware Mississippi
High Island Offshore System, L.L.C. Delaware Texas, Louisiana
Schedule D - Page 1
Manta Ray Gathering Company, L.L.C. Delaware Texas, Louisiana
Petal Gas Storage, L.L.C. Delaware Mississippi
Poseidon Pipeline Company, L.L.C. Delaware Texas
Warwink Gathering and Treating Company Texas --
Schedule D - Page 2
EXHIBIT A
Registration Rights Agreement
