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EXHIBIT 1.1
EOTT Energy Partners, L.P.
EOTT Energy Finance Corp.
$235,000,000
11% Senior Notes due 2009
Underwriting Agreement
September 28, 1999
ING Barings LLC
Xxxxxx Brothers Inc.
PaineWebber Incorporated
c/o ING Barings LLC
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
EOTT Energy Partners, L.P., a Delaware limited partnership (the
"Partnership"), and EOTT Energy Finance Corporation, a Delaware corporation and
a wholly owned subsidiary of the Partnership (the "Finance Subsidiary" and
together with the Partnership, the "Issuers"), propose to sell to ING Barings
LLC, Xxxxxx Brothers Inc. and PaineWebber Incorporated (collectively, the
"Underwriters") $235,000,000 in aggregate principal amount of 11% Senior Notes
due 2009 (the "Securities"), to be issued under an indenture (the "Indenture")
dated as of October 1, 1999, among the Issuers and the Bank of New York, as
trustee (the "Trustee"), as supplemented by the First Supplemental Indenture
dated as of October 1, 1999 (the "Indenture Supplement"), among the Issuers,
EOTT Energy Operating Limited Partnership, a Delaware limited partnership
("Energy OLP"), EOTT Energy Pipeline Limited Partnership, a Delaware limited
partnership ("Pipeline OLP"), EOTT Energy Canada Limited Partnership, a Delaware
limited partnership ("Canada OLP" and, together with Energy OLP and Pipeline
OLP, the "Operating Partnerships" or the "Subsidiary Guarantors") and the
Trustee.
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The public offering price for the Securities and the purchase price for
the Securities to be paid by the Underwriters shall be agreed upon by the
Issuers and the Underwriters, and such agreement shall be set forth in a
separate written instrument substantially in the form of Exhibit A hereto (the
"Price Determination Agreement"). The Price Determination Agreement may take the
form of an exchange of any standard form of written telecommunication among the
Partnership and the Underwriters and shall specify such applicable information
as is indicated in Exhibit A hereto. The offering of the Securities will be
governed by this Agreement, as supplemented by the Price Determination
Agreement. From and after the date of the execution and delivery of the Price
Determination Agreement, this Agreement shall be deemed to incorporate, and,
unless the context otherwise indicates, all references contained herein to "this
Agreement" and to the phrase "herein" shall be deemed to include the Price
Determination Agreement.
Each of (i) the Partnership, (ii) EOTT Energy Corp., a Delaware
corporation (both in its capacity as general partner of the Partnership and the
Operating Partnerships and in its individual capacity, the "General Partner"),
(iii) the Finance Subsidiary, (iv) Energy OLP, (v) Pipeline OLP and (vi) Canada
OLP confirms as follows its agreements with the Underwriters. All of such
entities shall be referred to collectively as the "EOTT Entities."
1. Agreement to Sell and Purchase.
(a) On the basis of the representations, warranties and
agreements of the EOTT Entities herein contained and subject to all the terms
and conditions of this Agreement, the Issuers agree to sell to each Underwriter,
and each Underwriter, severally and not jointly, agrees to purchase from the
Issuers, at the purchase price for the Securities to be agreed upon by the
Underwriters and the Issuers in accordance with Section 1(b) hereof and set
forth in the Price Determination Agreement, the principal amount of Securities
set forth opposite the name of such Underwriter in Schedule I to this Agreement.
Schedule I may also be attached to the Price Determination Agreement.
(b) The public offering price for the Securities and the
purchase price for the Securities to be paid by the several Underwriters shall
be agreed upon and set forth in the Price Determination Agreement.
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2. Delivery and Payment. The Securities to be purchased by each
Underwriter hereunder, in book entry form, and in such authorized denominations
and registered in such names as ING Barings LLC may request, will be represented
by one or more definitive global certificates which will be deposited by or on
behalf of the Issuers with the Depository Trust Company ("DTC") or its
designated custodian. Delivery to the Underwriters of the Securities shall be
made by or on behalf of the Issuers by causing DTC to credit the Securities to
the account or accounts designated by ING Barings LLC at DTC, against payment of
the purchase price by wire transfer of Federal Funds or similar same day funds
to an account designated in writing by the Issuers to ING Barings LLC at least
one business day prior to the Closing Date (as hereinafter defined). Such
payment shall be made at 10:00 a.m., New York City time, on the third business
day (or fourth business day, if the Price Determination Agreement is executed
after 4:30 p.m.) after the date on which the first bona fide offering of the
Securities to the public is made by the Underwriters or at such time on such
other date, not later than ten business days after such date, as may be agreed
upon by the Issuers and the Underwriters (such date is hereinafter referred to
as the "Closing Date").
The cost of original issue tax stamps, if any, in connection with the
issuance and delivery of the Securities by the Issuers to the respective
Underwriters shall be borne by the Issuers. The Issuers will pay and save each
Underwriter and any subsequent holder of the Securities harmless from any and
all liabilities with respect to or resulting from any failure or delay in paying
Federal and state stamp and other transfer taxes, if any, which may be payable
or determined to be payable in connection with the original issuance or sale to
such Underwriter of the Securities.
3. Representations and Warranties of the EOTT Entities. Each of the
EOTT Entities represents, warrants and covenants to each Underwriter that:
(a) The Issuers meet the requirements for use of Form S-3 and
a registration statement (Registration No. 333-82269) on Form S-3 relating to
the Securities (and such amendments to such registration statement as may have
been required to the date of this Agreement) has been prepared by the Issuers in
accordance with the requirements of the Securities Act of 1933, as amended (the
"Act"), and the rules and regulations (collectively referred to as the "Rules
and Regulations") of the Securities and Exchange Commission (the "Commission")
thereunder, and has been filed with the Commission. Such registration statement
has been declared
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effective by the Commission. Copies of such registration statement and
amendments and of each related prospectus have been delivered to the
Underwriters. The term "Registration Statement" means the registration
statement, including all financial statements, exhibits and documents
incorporated by reference therein, as from time to time amended or supplemented
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), Rule 415 and Rule 434 of the Rules and Regulations, or otherwise, any
registration statement filed under Rule 462 of the Rules and Regulations as such
registration statement may be amended from time to time and all information
contained in the final prospectus filed with the Commission pursuant to Rule
424(b) of the Rules and Regulations. The term "Prospectus" means the prospectus
constituting a part of the Registration Statement and any amendments or
supplements to such prospectus, including without limitation the prospectus
supplement filed with the Commission in connection with the proposed sale of
Securities contemplated by this Agreement (the "Prospectus Supplement"), through
the date of such Prospectus Supplement. Any reference herein to the Registration
Statement or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act, on or before the date hereof or are so
filed hereafter. Any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement or the Prospectus shall
be deemed to refer to and include any such document filed or to be filed under
the Exchange Act after the date of the Prospectus, and deemed to be incorporated
therein by reference.
(b) On the date the Registration Statement was declared
effective by the Commission (the "Effective Date"), at all times subsequent to
and including the Closing Date and when any post-effective amendment to the
Registration Statement becomes effective or any amendment or supplement to the
Prospectus is filed with the Commission, the Registration Statement and the
Prospectus (as amended or as supplemented if the Issuers shall have filed with
the Commission any amendment or supplement thereto), including the financial
statements included or incorporated by reference in the Prospectus or the
Registration Statement, did or will comply with all applicable provisions of the
Act, the Exchange Act, the rules and regulations thereunder (the "Exchange Act
Rules and Regulations") and the Rules and Regulations and will contain all
statements required to be stated therein in accordance with the Act, the
Exchange Act, the Exchange Act Rules and Regulations and the Rules and
Regulations and in all material respects with the
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requirements of the Trust Indenture Act of 1939 (the "Trust Indenture Act") and
the rules thereunder. On the Effective Date and when any post-effective
amendment to the Registration Statement becomes effective, no part of the
Registration Statement or any such amendment did or will contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading. On the Effective Date, the date the Prospectus or any amendment or
supplement to the Prospectus is filed with the Commission and on the Closing
Date the Prospectus did not or will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. On the Closing Date, the Indenture and Indenture Supplement will
comply with the requirements of the Trust Indenture Act and the rules
thereunder. The foregoing representations and warranties in this Section 3(b) do
not apply to (i) that part of the Registration Statement which shall constitute
the Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) any statements or omissions made in
reliance on and in conformity with information relating to any Underwriter
furnished in writing to the Partnership by the Underwriters specifically for
inclusion in the Registration Statement or Prospectus or any amendment or
supplement thereto. For all purposes of this Agreement (i) the amounts of the
selling concession and reallowance set forth in the Prospectus (ii) the
paragraph regarding stabilization in the section captioned "Underwriting" in the
Prospectus, and (iii) the principal amount of Securities to be purchased by each
Underwriter set forth in the section captioned "Underwriting" in the Prospectus
constitute the only information relating to any Underwriter furnished in writing
to the Partnership by the Underwriters specifically for inclusion in the
Registration Statement or the Prospectus. The Issuers have not distributed any
offering material in connection with the offering or sale of the Securities
other than the Registration Statement and the Prospectus. No order preventing or
suspending the use of the Prospectus has been issued by the Commission.
(c) The documents which are incorporated by reference in the
Registration Statement and the Prospectus or from which information is so
incorporated by reference, when they became effective or were filed with the
Commission, as the case may be, complied in all material respects with the
requirements of the Act or the Exchange Act, as applicable, the Exchange Act
Rules and Regulations, the Rules and Regulations and the Trust Indenture Act and
the rules thereunder; and none of such
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documents contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statement
therein not misleading; and any further documents so filed and incorporated by
reference subsequent to the Closing Date shall, when they are filed with the
Commission, comply in all material respects with the requirements of the Act and
the Exchange Act, as applicable, the Exchange Act Rules and Regulations, the
Rules and Regulations and the Trust Indenture Act and the rules thereunder, and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statement
therein not misleading.
(d) The only subsidiaries (as defined in the Rules and
Regulations) of the Partnership are the Operating Partnerships and the Finance
Subsidiary. Each of the Partnership and the Operating Partnerships was duly
formed and is validly existing and in good standing under the Delaware Revised
Uniform Limited Partnership Act (the "Delaware Act"). Each of the Partnership
and the Operating Partnerships has, and at the Closing Date will have, full
power and authority to conduct the activities conducted by it, to own or lease
all the assets owned or leased by it and to conduct its business in all material
respects as described in the Registration Statement and the Prospectus. Each of
the Partnership and the Operating Partnerships is, and at the Closing Date will
be, duly licensed or qualified to do business and in good standing as a foreign
limited partnership in all jurisdictions in which the failure so to qualify or
register would have a material adverse effect upon it or subject it to any
material liability or disability. All of the outstanding shares of capital stock
of the Finance Subsidiary have been duly authorized and validly issued and are
fully paid and nonassessable and are owned by the Partnership free and clear of
all liens and encumbrances and claims whatsoever. The Partnership is the sole
limited partner of Energy OLP, and Energy OLP is the sole limited partner of
Pipeline OLP and Canada OLP, in each case with a limited partner interest of
99.0%. Such limited partner interests have been duly authorized by the
respective Amended and Restated Agreements of Limited Partnership of the
Operating Partnerships (the "Operating Partnership Agreements"), have been
validly issued in accordance with the respective Operating Partnership
Agreements and are fully paid and nonassessable, except to the extent such
nonassessability may be affected by Section 17-607 of the Delaware Act, as
amended. The Partnership owns such limited partner interests free and clear of
all liens, encumbrances, security interests, equities, charges or claims, except
for such liens, encumbrances, security
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interests, equities, charges or claims as are not, individually or in the
aggregate, material or except as described in the Prospectus. Except, in the
case of the Partnership, such limited partner interests and the stock of the
Finance Subsidiary, the Issuers do not own, and at the Closing Date will not
own, directly or indirectly, any shares of stock or any other equity or
long-term debt securities of any corporation or have an equity interest in any
firm, partnership, joint venture, association or other entity. Complete and
correct copies of the Amended and Restated Agreement of Limited Partnership of
the Partnership (the "Partnership Agreement"), each of the Operating Partnership
Agreements and the Certificate of Incorporation and Bylaws of the Finance
Subsidiary have been delivered to the Underwriters, and no changes therein will
be made subsequent to the date hereof and prior to the Closing Date.
(e) The limited partners of the Partnership hold limited
partner interests in the Partnership aggregating 99%, such limited partner
interests being represented by 14,976,011 Common Units and 9,000,000 units
representing subordinated limited partner interests ("Subordinated Units") (the
Common Units and the Subordinated Units are collectively referred to as the
"Limited Partner Units"); the Limited Partner Units are the only limited partner
interests of the Partnership that are issued and outstanding; the Limited
Partner Units have been duly authorized and validly issued under the Partnership
Agreement, fully paid and nonassessable, except as such nonassessability may be
affected by Section 17-607 of the Delaware Act, and will not be subject to any
preemptive or similar right or voting or transfer restriction. The description
of the Common Units in the Registration Statement and the Prospectus is, and at
the Closing Date will be, complete and accurate in all material respects. Except
as set forth in the Prospectus, the Partnership does not have outstanding, and
at the Closing Date will not have outstanding, any options to purchase, or any
rights or warrants to subscribe for, or any securities or obligations
convertible into, or any contracts or commitments to issue or sell, any limited
partner interests or shares of stock in the Partnership, the Operating
Partnerships, or the Finance Subsidiary pursuant to the Partnership Agreement,
the Operating Partnership Agreements, any certificate of incorporation or other
governing documents or any agreement or other instrument to which any of the
EOTT entities is a party or by which any of them may be bound.
(f) Each of the General Partner and the Finance Subsidiary is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. Each
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of the General Partner and the Finance Subsidiary has, and at the Closing Date
will have, full power and authority to conduct all the activities conducted by
it, to own or lease all the assets owned or leased by it and to conduct its
business in all material respects as described in the Registration Statement and
the Prospectus. Each of the General Partner and the Finance Subsidiary is, and
at the Closing Date will be, duly licensed or qualified to do business and in
good standing as a foreign corporation in all jurisdictions in which the failure
so to qualify or register would have a material adverse effect upon it or
subject it to any material liability or disability. The General Partner is the
sole general partner of the Partnership and the Operating Partnerships, in each
case with a general partner interest of 1%. Such general partner interests have
been duly authorized by the Partnership Agreement and the respective Operating
Partnership Agreements, have been validly issued in accordance with the
Partnership Agreement and the respective Operating Partnership Agreements, and
are owned of record by the General Partner, free and clear of all liens,
encumbrances, security interests, equities, charges or claims, except for such
liens, encumbrances, security interests, equities, charges or claims as are not,
individually or in the aggregate, material or except as described in the
Prospectus. Complete and correct copies of the certificate of incorporation and
the by-laws of the General Partner and the Finance Subsidiary and all amendments
thereto have been delivered to the Underwriters, and no changes therein will be
made subsequent to the date hereof and prior to the Closing Date.
(g) The financial statements and schedules included or
incorporated by reference in the Registration Statement or the Prospectus
present fairly the consolidated financial condition of the Partnership as of the
respective dates thereof and the consolidated results of operations and cash
flows of the Partnership for the respective periods covered thereby, all in
conformity with generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the entire period involved, except as otherwise
disclosed therein or in the Prospectus. No other financial statements or
schedules are required by the Act, the Exchange Act or the Rules and Regulations
to be included in the Registration Statement or the Prospectus. Xxxxxx Xxxxxxxx
L.L.P. (the "Accountants"), who have reported on such financial statements and
schedules, are independent accountants with respect to the EOTT Entities, as
required by the Act and the Rules and Regulations. The statements included in
the Registration Statement with respect to the Accountants pursuant to Rule 509
of Regulation S-K of the
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Rules and Regulations are true and correct in all material respects.
(h) The Partnership maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(i) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus and prior to the
Closing Date, except as set forth in or contemplated by the Registration
Statement and the Prospectus, (i) there has not been and will not have been any
change in the capitalization of the EOTT Entities, or in the business,
properties, business prospects, condition (financial or otherwise) or results of
operations of the EOTT Entities, arising for any reason whatsoever, (ii) none of
the EOTT Entities has incurred nor will it incur any material liabilities or
obligations, direct or contingent, nor has it entered into nor will it enter
into any material transactions other than pursuant to this Agreement and the
transactions referred to herein, other than the issuance of 3,500,000 Common
Units as contemplated in the Prospectus and (iii) none of the EOTT Entities has
sustained any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus.
(j) None of the EOTT Entities is, nor at the Closing Date will
be, an "investment company" or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company" as that term is defined in
the Investment Company Act of 1940, as amended (the "Investment Company Act"),
and the rules and regulations thereunder.
(k) None of the EOTT Entities is, nor at the Closing Date will
be, a "public utility company," a "holding company" or an "affiliate" of a
holding company or a public utility company
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within the meaning of the Public Utility Holding Company Act of 1935, as
amended.
(l) Except as set forth in the Registration Statement and the
Prospectus, there are no actions, suits or proceedings pending or threatened
against or affecting any of the EOTT Entities or any of their respective
officers in their capacity as such, before or by any Federal or state court,
commission, regulatory body, administrative agency or other governmental body,
domestic or foreign, wherein an unfavorable ruling, decision or finding might
materially and adversely affect any of the EOTT Entities or its business,
properties, business prospects, condition (financial or otherwise) or results of
operations.
(m) Each of the EOTT Entities has, and at the Closing Date
will have, (i) all governmental licenses, permits, consents, orders, approvals
and other authorizations necessary to carry on its business as contemplated in
the Prospectus except for such certificates, permits or authorizations which, if
not obtained, would not reasonably be expected to have, individually or in the
aggregate, a material adverse effect upon the ability of the EOTT Entities to
conduct their businesses in all material respects as currently conducted and as
contemplated in the Prospectus to be conducted; and, except as described in the
Prospectus, none of the EOTT Entities has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit which, individually or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would be expected to have a
material adverse effect upon the ability of any of the EOTT Entities to conduct
their businesses in all material respects as currently conducted and as
contemplated by the Prospectus to be conducted, (ii) complied in all material
respects with all laws, regulations and orders applicable to it or its business
and (iii) performed in all material respects all its obligations required to be
performed by it, and is not, and at the Closing Date will not be, in default,
under any indenture, mortgage, deed of trust, voting trust agreement, loan
agreement, bond, debenture, note agreement, lease, contract or other agreement
or instrument (collectively, a "contract or other agreement") to which it is a
party or by which its property is bound or affected. To the best knowledge of
each of the EOTT Entities, no other party under any contract or other agreement
to which it is a party is in default in any respect thereunder. None of the EOTT
Entities is, nor at the Closing Date will any of them be, in violation of any
provision of its limited partnership agreement, certificate of incorporation or
by-laws.
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(n) No consent, approval, authorization or order of, or any
filing or declaration with, any court or governmental agency or body is required
in connection with the authorization, issuance, transfer, sale or delivery of
the Securities by the Issuers, in connection with the execution, delivery and
performance of this Agreement by any of the EOTT Entities or in connection with
the taking by any of the EOTT Entities of any action contemplated hereby, except
such as have been obtained under the Act or the Rules and Regulations and such
as may be required under state securities or Blue Sky laws.
(o) Each of the EOTT Entities, to the extent it is a party
thereto, has full corporate and partnership power and authority to enter into
and deliver this Agreement, the Indenture, the Indenture Supplement and the
Securities. This Agreement has been duly authorized, executed and delivered by
each of the EOTT Entities and constitutes a valid and binding agreement of each
of the EOTT Entities and is enforceable against each of the EOTT Entities in
accordance with the terms hereof. The Indenture has been duly authorized by each
of the Issuers and the Indenture Supplement has been duly authorized by each of
the Issuers and the Subsidiary Guarantors. When duly executed and delivered in
accordance with its terms by each of the parties thereto, each of the Indenture
and the Indenture Supplement will constitute a valid and legally binding
agreement of each of the Issuers and, with respect to the Indenture Supplement,
each of the Subsidiary Guarantors, enforceable against each such party in
accordance with the terms thereof, except to the extent that such enforceability
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors' rights
generally and by general equitable principles (whether considered in a
proceeding in equity or at law). The Securities have been duly authorized by
each of the Issuers and the Subsidiary Guarantors, and, when duly executed,
authenticated, issued and delivered as provided in the Indenture and Indenture
Supplement and paid for as provided for herein, will be duly and validly issued
and outstanding and will constitute valid and legally binding obligations of
each of the Issuers, as primary obligors, and each of the Subsidiary Guarantors,
as note guarantors, entitled to the benefits of the Indenture and the Indenture
Supplement and enforceable against each of the Issuers and the Subsidiary
Guarantors in accordance with the terms thereof, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws affecting
creditors' rights generally and by general equitable principles (whether
considered in a proceeding
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in equity or at law). The execution, delivery and performance of this Agreement,
the Indenture and the Indenture Supplement, the issuance and sale of the
Securities, the consummation of the transactions contemplated hereby and the
application of the net proceeds from the offering and sale of the Securities in
the manner set forth in the Prospectus under "Use of Proceeds" will not result
in the creation or imposition of any lien, charge or encumbrance upon any of the
assets of any of the EOTT Entities pursuant to the terms or provisions of,
result in a breach or violation of any of the terms or provisions of, constitute
a default under, give any other party a right to terminate any of its
obligations under or result in the acceleration of any obligation under, the
limited partnership agreement or certificate of incorporation or by-laws of any
of the EOTT Entities, any indenture, mortgage, deed of trust, loan agreement,
contract or other agreement or instrument to which any of the EOTT Entities is a
party or by which any of the EOTT Entities or any of its properties is bound or
affected, or violate or conflict with any judgment, ruling, decree, order,
statute, rule or regulation of any court or other governmental agency or body
applicable to the business or properties of any of the EOTT Entities. The
description of the Securities and the provisions of the Indenture and the
Indenture Supplement in the Registration Statement and the Prospectus are, and
at the Closing Date will be, complete and accurate in all material respects.
(p) Each of the Partnership, Finance Subsidiary, the Operating
Partnerships and the General Partner has good and indefeasible title to all real
and personal property owned by it, free and clear of all liens, claims,
encumbrances and defects except (1) as described in the Prospectus and (2) such
as do not materially interfere with the use of such properties as they have been
used in the past and are proposed to be used in the future as described in the
Prospectus, provided that (a) with respect to the crude oil transmission
pipelines and right-of-way interests thereto (the "Pipeline Properties"), the
foregoing shall only constitute a representation that, except as described in
the Prospectus, (i) Pipeline OLP will have sufficient title to enable it to use
such Pipeline Properties as they have been used in the past and are proposed to
be used in the future as described in the Prospectus, and (ii) any lack of title
has not had and will not have any material adverse effect on the ability of
Pipeline OLP to use such Pipeline Properties as they have been used in the past
and are proposed to be used in the future as described in the Prospectus and
will not materially increase the cost of such use, and (b) with respect to any
real property, buildings and equipment held under lease by the Issuers, the
Operating
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Partnerships, or the General Partner, such real property, buildings and
equipment are held by such person under valid, subsisting and enforceable leases
with such exceptions as are not material and do not interfere with the use made
and proposed to be made of such real property, buildings and equipment by such
person;
(q) There is no document or contract of a character required
to be described in the Registration Statement or the Prospectus or to be filed
as an exhibit to the Registration Statement which is not described or which has
not been filed as required.
(r) None of the EOTT Entities, nor any of their directors,
officers or controlling persons has taken, directly or indirectly, any action
intended, or which might reasonably be expected, to cause or result, under the
Act or otherwise, in, or which has constituted, stabilization or manipulation of
the price of any security of the Issuers to facilitate the sale or resale of the
Securities.
(s) No holder of securities of the Partnership has rights to
the registration of any securities of the Partnership because of the filing of
the Registration Statement that have not been waived.
(t) Each of the EOTT Entities is in compliance with all
federal, state and local employment and labor laws, including, but not limited
to, laws relating to non-discrimination in hiring, promotion and pay of
employees; no labor dispute with the employees of any of the EOTT Entities
exists or, to the knowledge of any of the EOTT Entities, is imminent or
threatened; and each of the EOTT Entities is not aware of any existing, imminent
or threatened labor disturbance by the employees of any of its principal
suppliers, manufacturers or contractors that could result in a material adverse
effect on the condition (financial or otherwise) or on the earnings, business,
properties, business prospects or operations of the EOTT Entities, taken as a
whole.
(u) Each of the EOTT Entities owns, or is licensed or
otherwise has the full exclusive right to use, the material patents, patent
rights, licenses, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, services marks and trade names
(collectively, "patent and proprietary rights") presently
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employed by it or which are necessary in connection with the conduct of the
business now operated by it, and none of the EOTT Entities has received any
written notice or otherwise has actual knowledge of any infringement of or
conflict with asserted rights of others or any other claims with respect to any
patent or proprietary rights, or of any basis for rendering any patent and
proprietary rights invalid or inadequate to protect the interest of any of the
EOTT Entities.
(v) The Issuers have complied, and until the completion of the
distribution of the Securities will comply, with all of the provisions of
(including, without limitation, filing all forms required by) Section 517.075 of
the Florida Securities and Investor Protection Act and Regulation 3E-900.001
issued thereunder with respect to the offering and sale of the Securities.
(w) Each of the EOTT Entities (i) is in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
imposing liability or standards of conduct concerning any Hazardous Material (as
hereinafter defined) ("Environmental Laws"), (ii) has received all permits,
licenses or other approvals required of it under Environmental Laws to conduct
its business and (iii) is in compliance with all terms and conditions of any
such permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals would not, individually or in the aggregate result in a
material adverse effect on the condition (financial or otherwise) or on the
earnings, business, properties, business prospects or operations of the EOTT
Entities, taken as a whole. The term "Hazardous Material" means (A) any
"hazardous substance" as defined by the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, (B) any "hazardous waste"
as defined by the Resource Conservation and Recovery Act, as amended, (C) any
petroleum or petroleum product, (D) any polychlorinated biphenyl and (E) any
pollutant or contaminant or hazardous, dangerous, or toxic chemical, material,
waste or substance regulated under or within the meaning of any other
Environmental Laws.
(x) In the ordinary course of its business, the Partnership
conducts a periodic review of the effect of Environmental Laws on the business,
operations and properties of each of the EOTT Entities, in the course of which
it identifies
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and evaluates associated costs and liabilities (including, without limitation,
any capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties (collectively, "Environmental Liabilities")).
Except as set forth in the Registration Statement and the Prospectus, there are
no Environmental Liabilities which would, singly or in the aggregate, have a
material adverse effect on the condition (financial or otherwise) or on the
earnings, business, properties, business prospects or operations of the EOTT
Entities, taken as a whole.
(y) Each of the EOTT Entities maintains insurance with respect
to its properties and business of the types and in amounts generally deemed
adequate for its business and consistent with insurance coverage maintained by
similar companies and businesses, all of which insurance is in full force and
effect.
(z) Each of the EOTT Entities has filed all material federal,
state and foreign income and franchise tax returns and has paid all taxes shown
as due thereon, other than taxes which are being contested in good faith and for
which adequate reserves have been established in accordance with GAAP; and none
of the EOTT Entities has any knowledge of any tax deficiency which has been or
might be asserted or threatened against any of the EOTT Entities. There are no
tax returns of any of the EOTT Entities that are currently being audited by
state, local or federal taxing authorities or agencies with respect to which any
of the EOTT Entities has received notice, where the findings of such audit, if
adversely determined, would result in a material adverse effect on the condition
(financial or otherwise) or on the earnings, business, properties, business
prospects or operations of the EOTT Entities, taken as a whole.
(aa) With respect to each employee benefit plan, program and
arrangement (including, without limitation, any "employee benefit plan" as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA")) maintained or contributed to by any of the EOTT Entities,
or with respect to which any of the EOTT Entities could incur any liability
under ERISA (collectively, the "Benefit Plans"), no event has occurred and, to
the best knowledge of each of the EOTT Entities, there exists no condition or
set of circumstances, in connection with which any of the EOTT Entities could be
subject to any liability under the terms of such Benefit Plans, applicable law
(including, without limitation, ERISA
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and the Internal Revenue Code of 1986, as amended) or any applicable agreement
that could materially adversely affect the business, properties, business
prospects, condition (financial or otherwise) or results of operations of the
EOTT Entities, taken as a whole.
(bb) Each of the EOTT Entities has reviewed its operations and
those of any third parties with which the EOTT Entities have a material
relationship to evaluate the extent to which the business or operations of the
EOTT Entities will be affected by the Year 2000 Problem. As a result of such
review, the EOTT Entities have no reason to believe, and do not believe, that
(other than as described in the Prospectus) the Year 2000 Problem will have a
material adverse effect on the general affairs, management, the current or
future consolidated financial position, partners' capital or results of
operations of the EOTT Entities or result in any material loss or interference
with any of the EOTT Entities' business or operations. The "Year 2000 Problem"
as used herein means any significant risk that computer hardware or software
used in the receipt, transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the operation of mechanical or
electrical systems of any kind will not, in the case of dates or time periods
occurring after December 31, 1999, function at least as effectively as in the
case of dates or time periods occurring prior to January 1, 2000.
(cc) (i) The Partnership Agreement is a valid and legally
binding agreement of the General Partner, enforceable against the General
Partner in accordance with its terms and (ii) each of the Operating Partnership
Agreements is a valid and legally binding agreement of such parties, enforceable
against the General Partner and the Partnership in accordance with its terms,
except as the enforceability of such agreements may be affected by bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights and general equitable principles.
(dd) Pursuant to Rule 2710(b)(7)(C)(i) of the Conduct Rules of
the National Association of Securities Dealers, Inc., as of the date hereof and
as of the Closing Date, the Partnership meets, and will meet, the standards for
use of Form S-3 as in effect prior to October 21, 1992.
4. Agreements of the EOTT Entities. The EOTT Entities agree with the
several Underwriters as follows:
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(a) The Issuers will not, either prior to the Closing Date or
thereafter, during such period as the Prospectus is required by law to be
delivered in connection with sales of the Securities by an Underwriter or any
dealer, file any amendment or supplement to the Registration Statement or the
Prospectus, unless a copy thereof shall first have been submitted to the
Underwriters within a reasonable period of time prior to the filing thereof and
the Underwriters shall not have objected thereto in good faith.
(b) The Issuers will notify the Underwriters promptly, and
will confirm such advice in writing, (1) when any post-effective amendment to
the Registration Statement becomes effective, (2) of any request by the
Commission for amendments or supplements to the Registration Statement or the
Prospectus or for additional information, (3) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose or the threat thereof, (4) of
the happening of any event during the period mentioned in the second sentence of
Section 4(e) that in the judgment of the Issuers makes any statement made in the
Registration Statement or the Prospectus untrue or that requires the making of
any changes in the Registration Statement or the Prospectus in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading and (5) of receipt by the Issuers or any representative or
attorney of the Issuers of any other communication from the Commission relating
to the Issuers, the Registration Statement or the Prospectus. If at any time the
Commission shall issue any order suspending the effectiveness of the
Registration Statement, the Issuers will make every reasonable effort to obtain
the withdrawal of such order at the earliest possible moment.
(c) The Issuers will furnish to the Underwriters, without
charge, two signed copies of the Registration Statement and of any
post-effective amendment thereto, including financial statements and schedules,
and all exhibits thereto (including any document filed under the Exchange Act
and deemed to be incorporated by reference into the Prospectus).
(d) The Issuers will comply with all the provisions of any
undertakings contained in the Registration Statement.
(e) The Issuers will deliver to each of the Underwriters,
without charge, as many copies of the Prospectus or any amendment or supplement
thereto as the Underwriters may
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reasonably request. The Issuers consent to the use of the Prospectus or any
amendment or supplement thereto by the several Underwriters and by all dealers
to whom the Securities may be sold, both in connection with the offering or sale
of the Securities and for any period of time thereafter during which the
Prospectus is required by law to be delivered in connection therewith. If during
such period of time any event shall occur which in the judgment of the Issuers
or counsel to the Underwriters should be set forth in the Prospectus in order to
make any statement therein, in the light of the circumstances under which it was
made, not misleading, or if it is necessary to supplement or amend the
Prospectus to comply with law, the Issuers will forthwith prepare and duly file
with the Commission an appropriate supplement or amendment thereto, and will
deliver to each Underwriter, without charge, such number of copies thereof as
the Underwriters may reasonably request. The Issuers shall not file any document
under the Exchange Act before the completion of the distribution of the
Securities by the Underwriters if such document would be deemed to be
incorporated by reference into the Prospectus unless the filing of such document
is approved by the Underwriters after reasonable notice thereof.
(f) Prior to any public offering of the Securities by the
Underwriters, the Issuers will cooperate with the Underwriters and counsel to
the Underwriters in connection with the registration or qualification of the
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Underwriters may request; provided, that in no event shall
the Issuers be obligated to qualify to do business in any jurisdiction where it
is not now so qualified or to take any action which would subject it to general
service of process in any jurisdiction where it is not now so subject.
(g) During the period of three years commencing on the Closing
Date, the Partnership will, upon request, furnish to the Underwriters a copy of
such financial statements and other periodic and special reports as the
Partnership may from time to time distribute generally to the holders of any
class of its limited partnership interests, and will furnish to the Underwriters
who so request a copy of each annual or other report it shall be required to
file with the Commission.
(h) The Partnership will make generally available to holders
of its securities as soon as may be practicable but in no event later than the
last day of the fifteenth full calendar month following the calendar quarter in
which the Effective Date
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falls, an earnings statement (which need not be audited but shall be in
reasonable detail) for a period of twelve months ended commencing after the
Effective Date, and satisfying the provisions of Section 11(a) of the Act
(including Rule 158 of the Rules and Regulations).
(i) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Partnership will
pay, or reimburse if paid by the Underwriters, all costs and expenses incident
to the performance of the obligations of the EOTT Entities under this Agreement,
including but not limited to costs and expenses of or relating to (1) the
preparation, printing and filing of the Registration Statement and exhibits
thereto and the Prospectus and any amendment or supplement thereto, (2) the
preparation and delivery of certificates representing the Securities, (3) the
word processing, printing and reproduction of this Agreement, the Indenture, the
Indenture Supplement, the Agreement Among Underwriters, and any Dealer
Agreements and the Underwriters' Questionnaire, (4) furnishing (including costs
of shipping, mailing and courier) such copies of the Registration Statement, the
Prospectus and all amendments and supplements thereto, as may be requested for
use in connection with the offering and sale of the Securities by the
Underwriters or by dealers to whom Securities may be sold, (5) any filings
required to be made by the Underwriters with the NASD, if any, and the fees,
disbursements and other charges of counsel for the Underwriters in connection
therewith, (6) the registration or qualification of the Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions designated
pursuant to Section 4(f), if any are so required, including the fees,
disbursements and other charges of counsel to the Underwriters in connection
therewith, and the preparation and printing of preliminary, supplemental and
final Blue Sky memoranda, (7) counsel to the EOTT Entities, and (8) the
Accountants.
(j) If (1) this Agreement shall be terminated by the Issuers
pursuant to any of the provisions hereof, (2) for any reason the Issuers shall
be unable to perform its obligations hereunder, (3) any other condition of the
Underwriters' obligations hereunder required to be fulfilled by any of the EOTT
Entities is not fulfilled or (4) this Agreement shall be terminated pursuant to
Section 7(i), the Partnership will reimburse the several Underwriters for all
out-of-pocket expenses (including the fees, disbursements and other charges of
counsel to the Underwriters) reasonably incurred by them in connection herewith;
provided, however, that if this Agreement shall be
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terminated pursuant to Section 8 by reason of the default of one or more
Underwriters, the Partnership shall not be obligated to reimburse any defaulting
Underwriter on account of these expenses.
(k) The Issuers will not at any time, directly or indirectly,
take any action intended, or which might reasonably be expected, to cause or
result in, or which will constitute, stabilization of the price of the
Securities to facilitate the sale or resale of any of the Securities.
(l) The Issuers will apply the net proceeds from the offering
and sale of the Securities to be sold by the Issuers in the manner set forth in
the Prospectus Supplement under "Use of Proceeds."
(m) During the period of 30 days commencing at the Closing
Date, each of the EOTT Entities will not, without the prior written consent of
ING Barings LLC, (i) directly or indirectly, sell, offer to sell, grant any
option for the sale of, or otherwise dispose of, or announce the offering of,
any debt securities issued or guaranteed by any of the EOTT Entities or (ii)
enter into any agreement which contemplates any of the foregoing.
(n) The Partnership will exercise fully all, and will not
waive any, of its rights under Section 10.12 of the Purchase and Sale Agreement
dated September 21, 1998 by and among the Partnership, EOTT Energy Operating
Limited Partnership, Xxxx Oil Company and Xxxx Pipeline Company (together,
"Xxxx"), regarding deferral of the filing of a requested registration of Common
Units or the inclusion of any Common Units held by Xxxx in a registration
statement until the earlier of either of the following: (i) 180 days after the
Closing Date and (ii) March 1, 2000.
5. Conditions of the Obligations of the Underwriters. In addition to
the execution and delivery of the Price Determination Agreement, the obligations
of each Underwriter hereunder are subject to the following conditions:
(a) Notification that all filings required by Rule 424 of the
Rules and Regulations shall have been made.
(b) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall be pending or threatened by
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the Commission, (ii) no order suspending the effectiveness of the Registration
Statement or the qualification or registration of the Securities under the
securities or Blue Sky laws of any jurisdiction shall be in effect and no
proceeding for such purpose shall be pending before or threatened or
contemplated by the Commission or the authorities of any such jurisdiction,
(iii) any request for additional information on the part of the staff of the
Commission or any such authorities shall have been complied with to the
satisfaction of the staff of the Commission or such authorities and (iv) after
the date hereof no amendment or supplement to the Registration Statement or the
Prospectus shall have been filed unless a copy thereof was first submitted to
the Underwriters and the Underwriters did not object thereto in good faith, and
the Underwriters shall have received certificates, dated the Closing Date signed
by the Chief Executive Officer or the Chairman of the Board of Directors of the
General Partner and the Chief Financial Officer of the General Partner (who may,
as to proceedings threatened, rely upon the best of their information and
belief), to the effect of clauses (i), (ii) and (iii).
(c) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) there shall not have
been, and no development shall have occurred which could reasonably be expected
to result in, a material adverse change in the general affairs, business,
business prospects, properties, management, condition (financial or otherwise),
partners' capital or results of operations of the EOTT Entities, taken as a
whole, whether or not arising from transactions in the ordinary course of
business, in each case other than as set forth in or contemplated by the
Registration Statement and the Prospectus and (ii) none of the EOTT Entities
shall have sustained any loss or interference with its business or properties
from fire, explosion, flood or other casualty, whether or not covered by
insurance, or from any labor dispute or any court or legislative or other
governmental action, order or decree, which is not set forth in the Registration
Statement and the Prospectus, if in the judgment of the Underwriters any such
development described in clause (i) or (ii) makes it impracticable or
inadvisable to consummate the sale and delivery of the Securities by the
Underwriters at the public offering price.
(d) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall have been no
litigation or other proceeding instituted against any of the EOTT Entities or
any of their respective
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officers or directors in their capacities as such, before or by any Federal,
state or local court, commission, regulatory body, administrative agency or
other governmental body, domestic or foreign, in which litigation or proceeding
an unfavorable ruling, decision or finding could materially and adversely affect
the business, properties, business prospects, condition (financial or otherwise)
or results of operations of the EOTT Entities, taken as a whole.
(e) Each of the representations and warranties of the EOTT
Entities contained herein shall be true and correct in all material respects at
the Closing Date and all covenants and agreements herein contained to be
performed on the part of the EOTT Entities and all conditions herein contained
to be fulfilled or complied with by the EOTT Entities at or prior to the Closing
Date shall have been duly performed, fulfilled or complied with; provided,
however, that if any such representation or warranty is already qualified by
materiality, for purposes of determining whether this condition has been
satisfied, such representation or warranty as so qualified must be true and
correct in all respects.
(f) The Underwriters shall have received an opinion, dated the
Closing Date and satisfactory in form and substance to counsel for the
Underwriters, from Xxxxxx & Xxxxxx L.L.P., counsel to the EOTT Entities, to the
effect set forth in Exhibit B.
(g) The Underwriters shall have received an opinion, dated the
Closing Date and satisfactory in form and substance to counsel for the
Underwriters, from Xxxxxxx X. Xxxxx, Esq., General Counsel of the General
Partner, to the effect set forth in Exhibit C.
(h) The Underwriters shall have received an opinion and
letter, dated the Closing Date, from Xxxxxxx, Xxxxxx & Xxxxx, counsel to the
Underwriters, which opinion shall be satisfactory in all respects to the
Underwriters.
(i) On the date of this Agreement, the Accountants shall have
furnished to the Underwriters a letter, dated the date of its delivery,
addressed to the Underwriters and in form and substance satisfactory to the
Underwriters, confirming that they are independent accountants with respect to
the EOTT Entities as required by the Act and the Rules and Regulations, and with
respect to the financial and other statistical and numerical information
contained in the Registration Statement or
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incorporated by reference therein. At the Closing Date the Accountants shall
have furnished to the Underwriters a letter, dated the date of its delivery,
which shall confirm, on the basis of a review in accordance with the procedures
set forth in the letter from the Accountants, that nothing has come to their
attention during the period from the date of the letter referred to in the prior
sentence to a date (specified in the letter) not more than five days prior to
the Closing Date which would require any change in their letter dated the date
hereof, if it were required to be dated and delivered at the Closing Date. The
Accountants shall have furnished to the Underwriters a review report with
respect to the interim financial statements for the six-month period ended June
30, 1999 and such review report shall be included in the Prospectus.
(j) At the Closing Date there shall be furnished to the
Underwriters an accurate certificate, dated the date of its delivery, signed by
each of the Chief Executive Officer and the Chief Financial Officer of the
General Partner, in form and substance satisfactory to the Underwriters, to the
effect that:
(i) Each signer of such certificate has carefully
examined the Registration Statement, the Prospectus (including any
documents filed under the Exchange Act and deemed to be incorporated by
reference into the Prospectus) and (A) as of the date of such
certificate, such documents are true and correct in all material
respects and do not omit to state a material fact required to be stated
therein or necessary in order to make the statements therein not untrue
or misleading and (B) since the Effective Date, no event has occurred
as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein not untrue or
misleading in any material respect and there has been no document
required to be filed under the Exchange Act and the Exchange Act Rules
and Regulations that upon such filing would be deemed to be
incorporated by reference into the Prospectus that has not been so
filed;
(ii) Each of the representations and warranties of
the EOTT Entities contained in this Agreement were, when originally
made, and are, at the time such certificate is delivered, true and
correct in all material respects; provided, however, that if any
representation or warranty is already qualified by materiality, such
representation or warranty was, when originally made, and
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is, at the time such certificate is delivered, true and correct in all
respects;
(iii) Each of the covenants required herein to be
performed by the EOTT Entities on or prior to the delivery of such
certificate has been duly, timely and fully performed and each
condition herein required to be complied with by the EOTT Entities on
or prior to the date of such certificate has been duly, timely and
fully complied with; and
(iv) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
(A) there has not been, and no development has occurred which could
reasonably be expected to result in, a material adverse change in the
general affairs, business, business prospects, properties, management,
condition (financial or otherwise) or results of operations of the EOTT
Entities, taken as a whole, whether or not arising from transactions in
the ordinary course of business, in each case other than as set forth
in or contemplated by the Registration Statement and the Prospectus
and (B) none of the EOTT Entities has sustained any material loss or
interference with its business or properties from fire, explosion,
flood or other casualty, whether or not covered by insurance, or from
any labor dispute or any court or legislative or other governmental
action, order or decree, which is not set forth in the Registration
Statement and the Prospectus;
and such other matters as the Underwriters may reasonably request.
(k) The Securities shall be qualified for sale in such states
as the Underwriters may reasonably request, each such qualification shall be in
effect and not subject to any stop order or other proceeding on the Closing
Date.
(l) The EOTT Entities shall have furnished to the Underwriters
such certificates, in addition to those specifically mentioned herein, as the
Underwriters may have reasonably requested as to the accuracy and completeness
at the Closing Date of any statement in the Registration Statement or the
Prospectus or any documents filed under the Exchange Act and deemed to be
incorporated by reference into the Prospectus, as to the accuracy at the Closing
Date of the representations and warranties of the EOTT Entities herein, as to
the performance by the EOTT Entities
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of its obligations hereunder, or as to the fulfillment of the conditions
concurrent and precedent to the obligations hereunder of the Underwriters.
(m) The Partnership shall have confirmed as of the Closing
Date the rating of the Securities as BB by Standard and Poor's Corporation
("S&P") and Ba2 by Xxxxx'x Investors Service, Inc. ("Moody's") and, there shall
not have been any decrease in the related outlook of the Securities by S&P or
Moody's.
(n) The Partnership shall have consummated an offering of
3,500,000 Common Units and received net proceeds, before expenses, therefrom in
an amount equal to at least $52,920,000 as contemplated in the Prospectus.
6. Indemnification. (a) The EOTT Entities will, jointly and severally,
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person, if any, who controls each
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act from and against any and all losses, claims, liabilities, expenses
and damages (including, but not limited to, any and all investigative, legal and
other expenses reasonably incurred in connection with, and any and all amounts
paid in settlement of, any action, suit or proceeding between any of the
indemnified parties and any indemnifying parties or between any indemnified
party and any third party, or otherwise, or any claim asserted), as and when
incurred, to which any Underwriter, or any such person, may become subject under
the Act, the Exchange Act or other Federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, liabilities,
expenses or damages arise out of or are based on (i) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus or any amendment or supplement to the Registration
Statement or the Prospectus or in any documents filed under the Exchange Act and
deemed to be incorporated by reference into the Prospectus, or in any
application or other document executed by or on behalf of any of the EOTT
Entities or based on written information furnished by or on behalf of any of the
EOTT Entities filed in any jurisdiction in order to qualify the Securities under
the Securities Laws thereof or filed with the Commission, (ii) the omission or
alleged omission to state in such document a material fact required to be stated
in it or necessary to make the statements in it not misleading or (iii) any act
or failure to act or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Securities or
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the offering contemplated hereby, and which is included as part of or referred
to in any loss, claim, liability, expense or damage arising out of or based upon
matters covered by clause (i) or (ii) above (provided that the EOTT Entities
shall not be liable under this clause (iii) to the extent it is finally
judicially determined by a court of competent jurisdiction that such loss,
claim, liability, expense or damage resulted directly from any such acts or
failures to act undertaken or omitted to be taken by such Underwriter through
its gross negligence or willful misconduct); provided that the EOTT Entities
will not be liable to the extent that such loss, claim, liability, expense or
damage (A) arises from the sale of the Securities in the public offering to any
person by an Underwriter and is based on an untrue statement or omission or
alleged untrue statement or omission made in reliance on and in conformity with
information relating to any Underwriter furnished in writing to the Partnership
by any Underwriter expressly for inclusion in the Registration Statement or the
Prospectus, which information consists solely of the information specified in
Section 3(b) or (B) results solely from an untrue statement of a material fact
contained in, or the omission of a material fact from, such preliminary
prospectus, which untrue statement or omission was completely corrected in the
Prospectus (as then amended or supplemented) if the Issuers shall sustain the
burden of proving that the Underwriters sold Securities to the person alleging
such loss, claim, liability, expense or damage without sending or giving, at or
prior to the written confirmation of such sale, a copy of the Prospectus (as
then amended or supplemented) if the Issuers had previously furnished copies
thereof to the Underwriters within a reasonable amount of time prior to such
sale or such confirmation, and the Underwriters failed to deliver the corrected
Prospectus, if required by law to have so delivered it and if delivered would
have been a complete defense against the person asserting such loss, claim,
liability, expense or damage. This indemnity agreement will be in addition to
any liability that the EOTT Entities might otherwise have.
(b) Each Underwriter, severally and not jointly, will
indemnify and hold harmless the EOTT Entities, each person, if any, who controls
the EOTT Entities within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, each director of the EOTT Entities and each officer of the
EOTT Entities who signed the Registration Statement to the same extent as the
foregoing indemnity from the EOTT Entities to each Underwriter, but only insofar
as losses, claims, liabilities, expenses, or damages arise out of or are based
on any untrue statement or omission or alleged untrue statement or omission of
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a material fact made in reliance on and in conformity with information relating
to such Underwriter furnished in writing to the Partnership by such Underwriter
expressly for use in the Registration Statement or the Prospectus. This
indemnity will be in addition to any liability that each Underwriter might
otherwise have; provided, however, that in no case shall any Underwriter be
liable or responsible for any amount in excess of the underwriting discounts and
commissions received by such Underwriter.
(c) Any party that proposes to assert the right to be
indemnified under this Section 6 will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim is to
be made against an indemnifying party or parties under this Section 6, notify
each such indemnifying party of the commencement of such action, enclosing a
copy of all papers served, but the omission so to notify such indemnifying party
will not relieve it from any liability that it may have to any indemnified party
under the foregoing provisions of this Section 6 unless, and only to the extent
that, such omission results in the forfeiture of substantive rights or defenses
by the indemnifying party. If any such action is brought against any indemnified
party and it notifies the indemnifying party of its commencement, the
indemnifying party will be entitled to participate in and, to the extent that it
elects by delivering written notice to the indemnified party promptly after
receiving notice of the commencement of the action from the indemnified party,
jointly with any other indemnifying party similarly notified, to assume the
defense of the action, with counsel satisfactory to the indemnified party, and
after notice from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided below and
except for the reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense. The indemnified party will
have the right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel will be at the expense of such
indemnified party unless (1) the employment of counsel by the indemnified party
has been authorized in writing by the indemnifying party, (2) the indemnified
party has reasonably concluded (based on advice of counsel) that there may be
legal defenses available to it or other indemnified parties that are different
from or in addition to those available to the indemnifying party, (3) a conflict
or potential conflict exists (based on advice of counsel to the indemnified
party) between the indemnified party and the indemnifying party (in which case
the
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indemnifying party will not have the right to direct the defense of such action
on behalf of the indemnified party) or (4) the indemnifying party has not in
fact employed counsel to assume the defense of such action within a reasonable
time after receiving notice of the commencement of the action, in each of which
cases the reasonable fees, disbursements and other charges of counsel will be at
the expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm (in addition to
local counsel) admitted to practice in such jurisdiction at any one time for all
such indemnified party or parties. All such fees, disbursements and other
charges will be reimbursed by the indemnifying party promptly as they are
incurred. An indemnifying party will not be liable for any settlement of any
action or claim effected without its written consent (which consent will not be
unreasonably withheld). No indemnifying party shall, without the prior written
consent of each indemnified party, settle or compromise or consent to the entry
of any judgment in any pending or threatened claim, action or proceeding
relating to the matters contemplated by this Section 6 (whether or not any
indemnified party is a party thereto), unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising or that may arise out of such claim, action or proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 6 is applicable in accordance with its terms but for
any reason is held to be unavailable from the EOTT Entities or the Underwriters,
the EOTT Entities and the Underwriters will contribute to the total losses,
claims, liabilities, expenses and damages (including any investigative, legal
and other expenses reasonably incurred in connection with, and any amount paid
in settlement of, any action, suit or proceeding or any claim asserted, but
after deducting any contribution received by the EOTT Entities from persons
other than the Underwriters, such as persons who control the EOTT Entities
within the meaning of the Act, officers of the EOTT Entities who signed the
Registration Statement and directors of the EOTT Entities, who also may be
liable for contribution) to which the EOTT Entities and any one or more of the
Underwriters may be subject in such proportion as shall be appropriate to
reflect the relative benefits received by the EOTT Entities on the one hand and
the Underwriters on the
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29
other. The relative benefits received by the EOTT Entities on the one hand and
the Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by
the Issuers bear to the total underwriting discounts and commissions received by
the Underwriters, in each case as set forth in the table on the cover page of
the Prospectus Supplement. If, but only if, the allocation provided by the
foregoing sentence is not permitted by applicable law, the allocation of
contribution shall be made in such proportion as is appropriate to reflect not
only the relative benefits referred to in the foregoing sentence but also the
relative fault of the EOTT Entities, on the one hand, and the Underwriters, on
the other, with respect to the statements or omissions which resulted in such
loss, claim, liability, expense or damage, or action in respect thereof, as well
as any other relevant equitable considerations with respect to such offering.
Such relative fault shall be determined by reference to whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the EOTT Entities or
the Underwriters, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The EOTT Entities and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 6(d) were to be determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, liability,
expense or damage, or action in respect thereof, referred to above in this
Section 6(d) shall be deemed to include, for purpose of this Section 6(d), any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6(d), no Underwriter shall be
required to contribute any amount in excess of the underwriting discounts and
commissions received by it and no person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) will be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as provided in
this Section 6(d) are several in proportion to their respective underwriting
obligations and not joint. For purposes of this Section 6(d), any person who
controls a party to this Agreement within the meaning of the Act will have the
same rights to contribution as that party, and each officer of the EOTT Entities
who signed the Registration
29
30
Statement will have the same rights to contribution as the EOTT Entities,
subject in each case to the provisions hereof. Any party entitled to
contribution, promptly after receipt of notice of commencement of any action
against such party in respect of which a claim for contribution may be made
under this Section 6(d), will notify any such party or parties from whom
contribution may be sought, but the omission so to notify will not relieve the
party or parties from whom contribution may be sought from any other obligation
it or they may have under this Section 6(d). Except for a settlement entered
into pursuant to the last sentence of Section 6(c) hereof, no party will be
liable for contribution with respect to any action or claim settled without its
written consent (which consent will not be unreasonably withheld).
(e) The indemnity and contribution agreements contained in
this Section 6 and the representations and warranties of the EOTT Entities
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any investigation made by or on behalf of the Underwriters,
(ii) acceptance of the Securities and payment therefore or (iii) any termination
of this Agreement.
7. Termination. The obligations of the several Underwriters under this
Agreement may be terminated at any time on or prior to the Closing Date, by
notice to the Issuers from the Underwriters, without liability on the part of
any Underwriter to the EOTT Entities, if, prior to delivery and payment for the
Securities, the Underwriters shall decline to purchase the Securities for any
reason permitted under this Agreement or, in the sole judgment of the
Underwriters, (i) there has been, since the respective dates as of which
information is given in the Registration Statement, any material adverse change
in any of the EOTT Entities' properties, business prospects, condition
(financial or otherwise) or results of operations, (ii) trading in any of the
equity securities of the Partnership shall have been suspended by the
Commission, the NASD or by the New York Stock Exchange, (iii) trading in
securities generally on the New York Stock Exchange or the Nasdaq Stock Market
shall have been suspended or limited or minimum or maximum prices shall have
been generally established on such exchange or over the counter market, or
additional material governmental restrictions, not in force on the date of this
Agreement, shall have been imposed upon trading in securities generally by such
exchange or by order of the Commission or the NASD or any court or other
governmental authority, (iv) a general banking moratorium shall have been
declared by either Federal or New York State authorities or
30
31
(v) any material adverse change in the financial or securities markets in the
United States or in political, financial or economic conditions in the United
States or any outbreak or material escalation of hostilities or declaration by
the United States of a national emergency or war or other calamity or crisis
shall have occurred the effect of any of which is such as to make it, in the
sole judgment of the Underwriters, impracticable or inadvisable to market the
Securities on the terms and in the manner contemplated by the Prospectus.
8. Substitution of Underwriters. If any one or more of the Underwriters
shall fail or refuse to purchase any of the Securities which it or they have
agreed to purchase hereunder, and the aggregate principal amount of Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate principal amount of
Securities, the other Underwriters shall be obligated, severally, to purchase
the Securities which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase, in the proportions which the principal amount of
Securities which they have respectively agreed to purchase pursuant to Section 1
bears to the aggregate principal amount of Securities which all such
non-defaulting Underwriters have so agreed to purchase, or in such other
proportions as such non-defaulting Underwriters may specify; provided that in no
event shall the maximum principal amount of Securities which any Underwriter has
become obligated to purchase pursuant to Section 1 be increased pursuant to this
Section 8 by more than one-ninth of the principal amount of Securities agreed to
be purchased by such Underwriter without the prior written consent of such
Underwriter. If any Underwriter or Underwriters shall fail or refuse to purchase
any principal amount of Securities and the aggregate principal amount of
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase exceeds one-tenth of the aggregate principal amount of
the Securities and arrangements satisfactory to the non-defaulting Underwriters
and the Issuers for the purchase of such Securities are not made within 48 hours
after such default, this Agreement will terminate without liability on the part
of any non-defaulting Underwriter or the Issuers for the purchase or sale of any
Securities under this Agreement. In any such case either the Underwriters 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
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken pursuant to this Section 8 shall
not relieve any defaulting
31
32
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
9. Miscellaneous. Notice given pursuant to any of the provisions of
this Agreement shall be in writing and, unless otherwise specified, shall be
mailed or delivered (a) if to the EOTT Entities, at the office of 0000 Xxxx Xxx
Xxxxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, Attention: Xxxxx Xxxxx or (b) if to
the Underwriters, at the offices of ING Barings LLC, 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Debt Capital Markets. Any such notice shall be
effective only upon receipt. Any notice under Section 7 or 8 hereof may be made
by telex or telephone, but if so made shall be subsequently confirmed in
writing.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the EOTT Entities and of the controlling persons,
directors and officers referred to in Section 6, and their respective successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. The term "successors and assigns" as used in this
Agreement shall not include a purchaser, as such purchaser, of Securities from
any of the several Underwriters.
All representations, warranties and agreements of the EOTT Entities
contained herein or in certificates or other instruments delivered pursuant
hereto, shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or any of its controlling
persons and shall survive delivery of and payment for the Securities hereunder.
Any action required or permitted to be taken by the Underwriters under
this Agreement may be taken by them jointly or by ING Barings LLC.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS
PRINCIPLES OF SUCH STATE.
This Agreement may be signed in two or more counterparts with the same
effect as if the signatures thereto and hereto were upon the same instrument.
In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and
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33
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
The EOTT Entities and the Underwriters each hereby irrevocably waive
any right they may have to a trial by jury in respect of any claim based upon or
arising out of this Agreement or the transactions contemplated hereby.
This Agreement may not be amended or otherwise modified or any
provision hereof waived except by an instrument in writing signed by the EOTT
Entities and the Underwriters.
Please confirm that the foregoing correctly sets forth the agreement
among the EOTT Entities and the several Underwriters.
Very truly yours,
EOTT ENERGY PARTNERS, L.P.,
By: EOTT ENERGY CORP., its General
Partner,
By /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief
Executive Officer
EOTT ENERGY FINANCE CORP.,
By /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief
Executive Officer
EOTT ENERGY CORP.,
By /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief
Executive Officer
EOTT ENERGY OPERATING LIMITED
PARTNERSHIP,
By: EOTT ENERGY CORP., its General
Partner,
By /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief
Executive Officer
33
34
EOTT ENERGY PIPELINE LIMITED
PARTNERSHIP,
By: EOTT ENERGY CORP., its General
Partner,
By /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief
Executive Officer
EOTT ENERGY CANADA LIMITED
PARTNERSHIP,
By: EOTT ENERGY CORP., its General
Partner,
By /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief
Executive Officer
Confirmed as of the date first
above mentioned:
ING BARINGS LLC
XXXXXX BROTHERS INC.
PAINEWEBBER INCORPORATED
By: ING BARINGS LLC
By /s/ Xxx Xxxxxx
------------------------------------
Name: Xxx Xxxxxx
Title: Managing Director
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35
SCHEDULE I
UNDERWRITERS
PRINCIPAL AMOUNT
OF SECURITIES TO
NAME OF UNDERWRITERS BE PURCHASED
-------------------- ------------
ING Barings LLC $ 99,875,000
Xxxxxx Brothers Inc. $ 99,875,000
PaineWebber Incorporated $ 35,250,000
------------
Total $235,000,000
36
EXHIBIT A
EOTT ENERGY PARTNERS, L.P.
EOTT ENERGY FINANCE CORPORATION
PRICE DETERMINATION AGREEMENT
September 28, 1999
ING BARINGS LLC
XXXXXX BROTHERS INC.
PAINEWEBBER INCORPORATED
c/o ING Barings LLC
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Reference is made to the Underwriting Agreement, dated September 28,
1999 (the "Underwriting Agreement"), among the EOTT Entities and the several
Underwriters named in Schedule I thereto (the "Underwriters"). The Underwriting
Agreement provides for the purchase by the Underwriters from the Issuers,
subject to the terms and conditions set forth therein, of $235,000,000 in
aggregate principal amount of their 11% Senior Notes due 2009 (the
"Securities"). This Agreement is the Price Determination Agreement referred to
in the Underwriting Agreement. Capitalized terms used herein but not defined
shall have the meanings assigned to such terms in the Underwriting Agreement.
Pursuant to Section 1 of the Underwriting Agreement, the undersigned
agree as follows:
The public offering price of the Securities will be 100.00% of the
principal amount thereof.
The purchase price for the Securities to be paid by the Underwriters
shall be 97.50% of the principal amount thereof.
The EOTT Entities represent and warrant to the Underwriters that the
representations and warranties of the EOTT Entities set forth in Section 3 of
the Underwriting
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37
Agreement are accurate, as though expressly made at and as of the date hereof.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS
PRINCIPLES OF SUCH STATE.
If the foregoing is in accordance with your understanding of the
agreement among the EOTT Entities and the Underwriters, please sign and return
to the Issuers a counterpart hereof, whereupon this instrument along with all
counterparts and together with the Underwriting Agreement shall be a binding
agreement among the EOTT Entities and the Underwriters in accordance with its
terms and the terms of the Underwriting Agreement.
Very truly yours,
EOTT ENERGY PARTNERS, L.P.,
By: EOTT ENERGY CORP., its General
Partner,
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief
Executive Officer
EOTT ENERGY FINANCE CORP.,
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief
Executive Officer
EOTT ENERGY CORP.,
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief
Executive Officer
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EOTT ENERGY OPERATING LIMITED
PARTNERSHIP,
By: EOTT ENERGY CORP., its General
Partner,
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief
Executive Officer
EOTT ENERGY PIPELINE LIMITED
PARTNERSHIP,
By: EOTT ENERGY CORP., its General
Partner,
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief
Executive Officer
EOTT ENERGY CANADA LIMITED
PARTNERSHIP,
By: EOTT ENERGY CORP., its General
Partner,
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief
Executive Officer
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Confirmed as of the date first
above mentioned:
ING BARINGS LLC
XXXXXX BROTHERS INC.
PAINEWEBBER INCORPORATED
By: ING BARINGS LLC
By /s/ Xxxx X. Xxxx
-----------------------------------
Name: Xxxx X. Xxxx
Title: Director
A-4
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EXHIBIT B
, 1999
ING BARINGS LLC
XXXXXX BROTHERS INC.
PAINEWEBBER INCORPORATED
c/o ING Barings LLC
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This opinion is provided to you pursuant to Section 5(f) of that
certain Underwriting Agreement, dated September 28, 1999 (the "Underwriting
Agreement"), among EOTT Energy Partners, L.P., a Delaware limited partnership
(the "Partnership"), EOTT Energy Finance Corporation, a Delaware corporation and
a wholly owned subsidiary of the Partnership (the "Finance Subsidiary" and
together with the Partnership, the "Issuers"), EOTT Energy Operating Limited
Partnership, a Delaware limited partnership ("Energy OLP"), EOTT Energy Pipeline
Limited Partnership, a Delaware limited partnership ("Pipeline OLP"), EOTT
Energy Canada Limited Partnership, a Delaware limited partnership ("Canada
OLP"), EOTT Energy Corp., a Delaware corporation (the "General Partner"), and
ING Barings LLC, Xxxxxx Brothers Inc., and PaineWebber Incorporated (the
"Underwriters"). Any capitalized term used in this opinion and not defined shall
have the meaning assigned to such term in the Underwriting Agreement. This
opinion is being provided for the closing contemplated by the Underwriting
Agreement of the offer and sale of the Securities (the "Closing Date").
We have acted as counsel to the Issuers, the Operating Partnerships,
and the General Partner in connection with the offer and sale by the Issuers of
$235,000,000 in aggregate principal amount of 11% Senior Notes Due 2009 (the
"Securities"). In connection with the opinions expressed below, we have examined
the following:
(a) executed originals or counterparts of the Partnership Agreement
and the Operating Partnership Agreements (the "Partnership Agreements");
B-1
41
(b) a copy of the Certificate of Limited Partnership of the
Partnership, as filed with the Secretary of State of the State of Delaware;
(c) a copy of the Certificate of Limited Partnership of each of the
Operating Partnerships, as filed with the Secretary of State of the State
of Delaware;
(d) copies of letters, certificates or telegrams of recent dates
received by us from public officials of various States as to the
qualification or registration therein of Energy OLP, Pipeline OLP, Canada
OLP, the Partnership, and the General Partner;
(e) copies of letters, certificates or telegrams of recent dates
received by us from public officials in the State of Delaware as to the due
formation and valid existence of the Partnership and each of the Operating
Partnerships;
(f) a copy of the Certificate of Incorporation and Bylaws of each of
the General Partner and the Finance Subsidiary;
(g) copies of letters, certificates or telegrams of recent dates
received by us from public officials in the State of Delaware as to the due
incorporation, valid existence and good standing of each of the General
Partner and the Finance Subsidiary;
(h) the Registration Statement, the Prospectus, the Indenture, the
Indenture Supplement and a specimen copy of the Securities;
(i) evidence satisfactory to us of the effectiveness of the
Registration Statement under the Act;
(j) reports, dated as of recent dates, prepared by CT Corporation
purporting to describe all financing statements on file as of the dates
thereof in the office of the Secretary of State of the State of Delaware
naming the Partnership or the General Partner, or both of them, as debtors;
(k) a certificate from an authorized officer of the Partnership, dated
as of a recent date, (i) identifying all indentures, mortgages, deeds of
trusts, loan
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42
agreements, bonds, debentures, note agreements, capital leases and other
evidences of indebtedness for borrowed money to which any of the EOTT
Entities is a party or by which any EOTT Entity is bound or to which any
property or assets of any EOTT Entity is subject, (ii) certifying that
there are no voting trust arrangements to which any of the EOTT Entities is
a party, (iii) certifying that the only subsidiaries (as defined in the
Rules and Regulations) of the Partnership are the Operating Partnerships
and the Finance Subsidiary, and (iv) certifying that except for the limited
partner interests in the Operating Partnerships and the stock of the
Finance Subsidiary, the Partnership does not own at the Closing Date,
directly or indirectly, any shares of stock or any other equity or
long-term debt securities of any corporation or have any equity interest in
any firm, partnership, joint venture, association or other entity; and
(l) such other documents and records as we have deemed necessary or
advisable for purposes of the opinions expressed below.
Based on the foregoing, and subject to the qualifications and limitations
set forth below, we are of the opinion that:
(1) Each of the Partnership and the Operating Partnerships has been
duly formed and is validly existing and in good standing as a limited
partnership under the Delaware Revised Uniform Limited Partnership Act, as
amended (the "Delaware Act"), with partnership power and authority under
the Delaware Act and the Partnership Agreement or its Operating Partnership
Agreement, respectively, necessary to own, lease and operate its properties
and conduct its business as described in the Prospectus.
(2) The Partnership has been registered as a foreign limited
partnership for the transaction of business under the laws of each
jurisdiction in which the failure to so register would have a material
adverse effect upon the Partnership or subject it to any material liability
or disability.
(3) Energy OLP has been qualified or registered as a foreign limited
partnership for the transaction of business under the laws of each
jurisdiction in which the failure to so register would have a material
adverse
B-3
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effect upon Energy OLP or subject it to any material liability or
disability; Pipeline OLP has been qualified or registered as a foreign
limited partnership for the transaction of business under the laws of each
jurisdiction in which the failure to so register would have a material
adverse effect upon Pipeline OLP or subject it to any material liability or
disability; and Canada OLP has been qualified or registered as a foreign
limited partnership for the transaction of business under the laws of each
jurisdiction in which the failure to so register would have a material
adverse effect upon Canada OLP or subject it to any material liability or
disability.
(4) Each of the General Partner and Finance Subsidiary has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with corporate power and authority
necessary to own, hold or lease its properties and, in all material
respects as described in the Prospectus, to conduct the business in which
it is engaged and, in the case of the General Partner, to act as a general
partner of the Partnership and each of the Operating Partnerships. The
General Partner is duly qualified to do business and is in good standing as
a foreign corporation under the laws of each jurisdiction in which the
failure to so register would have a material adverse effect upon the
General Partner or subject it to any material liability or disability, and
Finance Subsidiary has not been qualified to do business as a foreign
corporation under any jurisdiction.
(5) The General Partner is the sole general partner of the Partnership
and each of the Operating Partnerships with a general partner interest in
the Partnership of 1.0% and a general partner interest in each of the
Operating Partnerships of 1.0% (subject to the provisions of the
Partnership Agreement and the Operating Partnership Agreements,
respectively); such general partner interests are duly authorized by the
Partnership Agreement and the Operating Partnership Agreements,
respectively, are validly issued and are owned of record by the General
Partner free and clear of all liens, encumbrances, security interests,
equities, charges or claims of record (except as provided in the
Partnership Agreement, the Operating Partnership Agreements or pursuant to
Section 17-607 of the Delaware Act, as amended) (A) in respect of which a
financing statement under the Uniform Commercial
B-4
44
Code of the State of Delaware naming the General Partner as debtor is on
file in the offices of the Secretary of State of the State of Delaware or
(B) otherwise known to us.
(6) To our knowledge, the only subsidiaries (as defined in the Rules
and Regulations) of the Partnership are the Operating Partnerships and the
Finance Subsidiary. All of the outstanding shares of capital stock of the
Finance Subsidiary have been duly authorized and validly issued and are
fully paid and nonassessable and are owned by the Partnership free and
clear of all liens and encumbrances and claims. As of the Closing Date, the
Partnership is the sole limited partner of Energy OLP, and Energy OLP is
the sole limited partner of Pipeline OLP and Canada OLP, in each case with
a limited partner interest of 99.0% (subject to the provisions of the
respective Operating Partnership Agreements); each such limited partner
interest is duly authorized by the applicable Operating Partnership
Agreement and is validly issued, fully paid and nonassessable, except as
such nonassessability may be affected by Section 17-607 of the Delaware
Act; and, at the Closing Date, the Partnership or Energy OLP, as the case
may be, owns such limited partner interest in the Operating Partnership
free and clear of all liens, encumbrances, security interests, equities,
charges or claims of record (except as provided in the applicable Operating
Partnership Agreement or pursuant to the Delaware Act) (A) in respect of
which a financing statement under the Uniform Commercial Code of the State
of Delaware naming the Partnership as debtor is on file in the offices of
the Secretary of State of the State of Delaware or (B) otherwise known to
us. Except for such limited partner interests and the stock of the Finance
Subsidiary, the Partnership does not, to our knowledge, own at the Closing
Date, directly or indirectly, any shares of stock or any other equity or
long-term debt securities of any corporation or have any equity interest in
any firm, partnership, joint venture, association or other entity.
(7) Immediately prior to the Closing Date, the limited partners of the
Partnership hold limited partner interests in the Partnership aggregating
99.0% (subject to the provisions of the Partnership Agreement), such
limited partner interests being represented by 18,476,011 Common Units and
9,000,000 Subordinated Units. As of the Closing
B-5
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Date, such limited partner interests are the only limited partner interests
of the Partnership that are issued and outstanding. As of the Closing Date,
the Units are authorized by the Partnership Agreement and are validly
issued, fully paid and nonassessable, except as such nonassessability may
be affected by Section 17-607 of the Delaware Act.
(8) Insofar as such descriptions relate to legal matters or
descriptions of provisions of the governing instruments, the Common Units
and the Subordinated Units conform in all material respects to the
descriptions thereof contained in the Prospectus.
(9) Except as described in the Prospectus or Section 4.3 of the
Partnership Agreement and except for the Underwriters' over-allotment
option, there are no preemptive or other rights to subscribe for or to
purchase, nor any restriction upon the voting or transfer of, any limited
partner interests of the Partnership or any of the Operating Partnerships
pursuant to (i) the statutes, judicial and administrative decisions, and
the rules and regulations of the governmental agencies of the State of
Delaware, (ii) the Partnership Agreements or (iii) any agreement, document,
contract or instrument referred to in, filed as an exhibit to or
incorporated by reference in, the Registration Statement.
(10) To our knowledge, and other than as set forth in or contemplated
by the Prospectus, there are no legal or governmental proceedings pending
or threatened (i) to which any of the EOTT Entities is a party or of which
any property of any of such entities is the subject, or to which any of
their officers or directors in their capacities as such is a party, which,
if adversely determined to such entity, might have a material adverse
effect on the consolidated financial position, results of operations, cash
flows, business or prospects of the Partnership, the Finance Subsidiary and
the Operating Partnerships considered as a whole or (ii) which seek to
challenge to legality or enforceability of the Underwriting Agreement.
(11) The Registration Statement was declared effective under the Act
on September 2, 1999; the Prospectus was filed with the Commission pursuant
to subparagraphs (2) and (5) of Rule 424(b) of the Rules and Regulations on
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46
September 29, 1999; and no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for that purpose
is pending or, to our knowledge, threatened by the Commission.
(12) The Registration Statement and the Prospectus, including any
documents incorporated by reference into the Prospectus, at the time they
were filed (other than the financial statements and related schedules or
other financial or statistical data and the projected data included
therein, as to which we express no opinion) comply or complied as to form
in all material respects with the requirements of the Act, the Rules and
Regulations, the Exchange Act, and the Exchange Act Rules and Regulations.
(13) To our knowledge, there are no contracts or other documents that
are required to be summarized or described in the Prospectus or filed as
exhibits or incorporated by reference into to the Registration Statement by
the Act or by the rules and regulations of the Commission thereunder that
have not been summarized or described in all material respects in the
Prospectus or filed as exhibits to the Registration Statement or
incorporated by reference therein.
(14) The statements contained in the Prospectus under the caption "Tax
Considerations," insofar as they describe federal statutes, rules and
regulations, constitute a fair summary thereof that is accurate in all
material respects; our opinion filed as Exhibit 8 to the Registration
Statement is confirmed; and the Underwriters may rely upon such opinion as
if it were addressed to them.
(15) The Underwriting Agreement has been duly authorized, executed and
delivered by each of the EOTT Entities.
(16) The Indenture and the Supplemental Indenture have been duly
qualified under the Trust Indenture Act. The Indenture has been duly
authorized, executed and delivered by each of the Issuers and the Indenture
Supplement has been duly authorized, executed and delivered by each of the
Issuers and the Subsidiary Guarantors. Assuming due authorization,
execution and delivery of the Indenture and the Supplemental Indenture by
the Trustee, each of the Indenture and the Indenture Supplement constitutes
a valid
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and legally binding agreement of each of the Issuers and the Subsidiary
Guarantors, enforceable against each such party in accordance with the
terms thereof, except to the extent that such enforceability may be limited
by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether considered in
a proceeding in equity or at law).
(17) The Securities have been duly authorized, executed, issued and
delivered by each of the Issuers and have been duly authorized by the
Subsidiary Guarantors, and, assuming due authentication of the Securities
by the Trustee and upon payment and delivery in accordance with the
Underwriting Agreement, the Securities will be duly and validly issued and
outstanding and will constitute valid and legally binding obligations of
each of the Issuers, as primary obligors, and each of the Subsidiary
Guarantors, as note guarantors, entitled to the benefits of the Indenture
and the Indenture Supplement and enforceable against each of the Issuers
and the Subsidiary Guarantors in accordance with their terms, except to the
extent that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors' rights generally and by general equitable
principles (whether considered in a proceeding in equity or at law).
(18) The Indenture, the Indenture Supplement and the Securities
conform in all material respects to the description thereof contained in
the Prospectus.
(19) The execution and delivery by each of the EOTT Entities of the
Underwriting Agreement, the execution and delivery of the Indenture and the
Indenture Supplement by each of the Issuers and, in the case of the
Indenture Supplement, each of the Subsidiary Guarantors, the issuance and
sale of the Securities and the compliance by each of the EOTT Entities with
all of the provisions of such agreements to the extent a party thereto do
not and will not, with the passage of time or upon stated contingency or
otherwise, (i) conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, (x) any
indenture, mortgage, deed of trust, loan agreement, bond, debenture,
B-8
48
note agreement, capital lease or other evidence of indebtedness for
borrowed money, of which we have knowledge, to which any of the EOTT
Entities is a party or by which any EOTT Entity is bound or to which any
property or assets of any EOTT Entity is subject, (y) any contract or other
agreement to which any of the EOTT Entities is a party that restricts the
ability of the Partnership to issue securities and of which we have
knowledge or (z) any document filed as an exhibit to, or incorporated by
reference in, the Registration Statement, (ii) result in any breach or
violation of the provisions of the agreement or certificate of limited
partnership or articles of incorporation or bylaws of any such entity or
(iii) result in any breach or violation of any statute or any rule or
regulation of any governmental agency or body having jurisdiction over any
such entity or its properties that a lawyer exercising customary
professional diligence would reasonably recognize as being directly
applicable to the Partnership, the Finance Subsidiary, any of the Operating
Partnerships or the General Partner or to the transactions contemplated by
the Underwriting Agreement, or to both, excluding in each case any breaches
or violations which, individually or in the aggregate, would not have a
material adverse effect on the limited partners or the financial condition,
results of operation, business or prospects (as described in the
Prospectus) of the Partnership, the Finance Subsidiary and the Operating
Partnerships considered as a whole.
(20) Except as described in the Prospectus or Section 6.13 of the
Partnership Agreement and except for the registration rights referred to in
Section 4(n) of the Underwriting Agreement, to our knowledge there are no
contracts, agreements or understandings between the Partnership, the
Finance Subsidiary, the Operating Partnerships or the General Partner and
any person granting such person the right to require the Partnership to
file a registration statement under the Act with respect to any securities
of the Partnership or the Finance Subsidiary or to require the Partnership
or the Finance Subsidiary to include such securities in the securities to
be registered pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration statement filed by the
Partnership or the Finance Subsidiary under the Act.
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49
(21) Neither the Partnership, the Finance Subsidiary nor any of the
Operating Partnerships is an "investment company" or an "affiliated person"
of, or "promoter" or "principal underwriter" for, an "investment company,"
as such terms are defined in the Investment Company Act and the rules and
regulations thereunder, and the General Partner is either (A) not an
"investment company"or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are
defined in the Investment Company Act and the rules and regulations
thereunder or (B) exempt from the Investment Company Act.
(22) None of the Partnership, the Finance Subsidiary, the Operating
Partnerships or the General Partner is a "public utility company," a
"holding company" or an "affiliate" of a holding company or a public
utility company within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
(23) No consent, approval, authorization, order, registration or
qualification of or with any federal governmental agency or body or any
governmental agency or body of the States of Texas, New York or Delaware is
required for the sale of the Securities or the execution and delivery of
the Underwriting Agreement and the consummation by any of the EOTT Entities
of the transactions contemplated by the Underwriting Agreement and the
Prospectus, except (1) such consents, approvals, authorizations, orders,
registrations or qualifications (a) as have been obtained, (b) as may be
required under the Act or state securities or Blue Sky laws, (c) as are of
a routine or administrative nature and either are (i) not customarily
obtained or made prior to the consummation of similar transactions or (ii)
expected in our reasonable judgment to be obtained in the ordinary course
of business subsequent to the consummation of the transactions, or (d)
which, if not obtained, would not, individually or in the aggregate, have a
material adverse effect upon the ability of the Partnership, the Finance
Subsidiary and the Operating Partnerships taken as a whole to conduct their
business as described in the Prospectus, or (2) as described, set forth or
contemplated in the Prospectus as not having been obtained.
(24) (i) The Partnership Agreement is a valid and legally binding
agreement of the General Partner,
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enforceable against the General Partner in accordance with its terms and
(ii) each of the Operating Partnership Agreements is a valid and legally
binding agreement of such parties, enforceable against the General Partner
and the Partnership in accordance with its terms, subject to the
qualifications that (A) the enforceability of each such agreement may be
limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws of general applicability relating to or
affecting the rights of creditors generally, (B) the enforceability of each
such agreement may be limited by public policy, applicable law relating to
fiduciary duties and the judicial imposition of an implied covenant of good
faith and fair dealing, (C) the enforceability of equitable rights and
remedies provided for in each such agreement is subject to equitable
defenses and judicial discretion, and (D) the enforceability of certain
other provisions of each such agreement may be limited by applicable laws
and court decisions, none of which should materially and adversely
interfere with the practical realization of the material benefits intended
to be provided by such agreements.
(25) The descriptions (i) in "Item 1. Business -- Environmental
Matters" and "Item 1. Business -- Regulation" from the Partnership's Annual
Report on Form 10-K for the year ended December 31, 1998 and (ii) under
"Cash Distribution Policy" and "Description of Our Partnership Agreement"
in the Prospectus, insofar as such descriptions relate to legal matters or
descriptions of the provisions of the Partnership Agreement, are accurate
and fairly present the information required to be shown.
The opinions expressed herein are qualified in the following respects:
(A) We have relied, without independent investigation or verification,
in respect of factual matters upon certificates of officers of the General
Partner and upon information obtained from public officials, upon opinions
of other counsel issued in connection with the transactions (copies of
which have been furnished to you and your counsel) and other sources
believed by us to be responsible.
(B) We have assumed, without independent verification, that the
certificates for the Securities conform to the
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specimens thereof examined by us and have been duly authenticated by the
Trustee and duly registered by a registrar of the Securities.
(C) We express no opinion with respect to state or local taxes or tax
statutes to which any of the Partnership, the limited partners, any of the
Operating Partnerships, the Finance Subsidiary or the General Partner may
be subject.
(D) For purposes of the foregoing opinions, we have conducted such
investigation as in our judgment is necessary to enable us to render the
foregoing opinions. References herein to our knowledge shall mean the
actual knowledge of our attorneys substantially participating in the work
of this firm as counsel with respect to the matters relating to the
transactions and without in any manner having conducted any investigation
other than as described herein.
(E) We have assumed that (a) each document submitted to us for review
is accurate and complete, each such document that is an original is
authentic, each such document that is a copy conforms to an authentic
original and all signatures on each such document are genuine, (b) each
certificate from governmental officials reviewed by us is accurate,
complete and authentic, and all official public records are accurate and
complete, (c) all parties to the Underwriting Agreement will act in
accordance with, and will refrain from taking any action that is forbidden
by, the terms and conditions of the Underwriting Agreement, and (d) no
party to the Underwriting Agreement will in the future take any
discretionary action (including a decision not to act) permitted under the
Underwriting Agreement that would result in a violation of law or
constitute a breach or default under any other agreement to which such
party is a party or by which it or its property is bound or under any court
or administrative order, writ, judgment or decree that names such party or
is directed to it or its property.
(F) This opinion is limited in all respects to federal laws, the
Delaware Act, the Delaware General Corporation Law, the laws of the States
of New York and Texas (excluding rules, regulations and ordinances of
counties, towns, municipalities and other special political subdivisions of
the States of New York and Texas).
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52
(G) In giving the opinion expressed in paragraph (22) above, we have
relied upon certificates from authorized officers of the General Partner,
dated as of recent dates.
Since we have not conducted any independent investigation with regard to
the information set forth in the Registration Statement or Prospectus (except
with respect to the opinions set forth herein), we are not (except as aforesaid)
passing upon and do not assume any responsibility for the accuracy, completeness
or fairness of the statements contained therein. We have participated, however,
in conferences with officers and other representatives of the General Partner,
representatives of the independent public accountants of the General Partner and
your representatives, at which the contents of the Registration Statement and
Prospectus and related matters were discussed. On the basis of the foregoing
(relying, as to materiality, to the extent we deem appropriate upon the opinions
of the officers and other representatives of the General Partner), we advise you
that no facts have come to our attention that have led us to believe that the
Registration Statement, at the time such Registration Statement became
effective, contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading or that, as of its date, the Prospectus
contained an untrue statement of a material fact or omitted a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading or that,
as of the date hereof, either the Registration Statement contains an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or the
Prospectus contains an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. We express no comment with respect to the financial statements and
related schedules and other financial data included or incorporated by reference
in the Registration Statement or in the Prospectus or any further amendment or
supplement thereto (including, without limitation, statements relating to
projected cash distributions to the limited partners) or any statement contained
therein or omitted therefrom in reliance upon and in conformity with written
information furnished to the Partnership by any Underwriter through you
expressly for use therein.
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53
This opinion is furnished to the several Underwriters and is solely for the
benefit of the several Underwriters in connection with the transactions
contemplated by the Underwriting Agreement and may not be relied upon in
connection with any other transaction or by any other person or entity or
furnished to anyone else without the prior written consent of the undersigned.
Very truly yours,
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54
EXHIBIT C
[Form of Opinion of General Counsel
of the Partnership]
(1) To my knowledge, each of the EOTT Entities is operating in compliance,
in all material respects, with all certificates, authorizations or permits
which have been issued by local, state, federal or foreign regulatory
agencies or bodies in connection with the business currently being operated
by it. To my knowledge, there are no certificates, authorizations or
permits which have not been obtained for any such business, where the
absence of same could, in my opinion, reasonably be expected to have,
individually or in the aggregate, a material adverse effect upon the
ability of the EOTT Entities to conduct their businesses in all material
respects as currently conducted, and, except as disclosed in the
Prospectus, the EOTT Entities have not, to my knowledge, received any
notice of proceedings relating to the revocation or modification of any
certificate, authorization or permit which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, could, in my
opinion, reasonably be expected to have a material adverse effect upon the
ability of the EOTT Entities to conduct their businesses in all material
respects as currently conducted, and as described in the Prospectus.
(2) Except as set forth to in the Prospectus, there are, to my knowledge,
no legal or governmental proceedings pending or threatened to which any of
the EOTT Entities is a party or of which any property of the EOTT Entities
is the subject which, if determined adversely, could, in my opinion, be
reasonably expected to have a material adverse effect on the consolidated
financial position, results of operations, cash flows, business or
prospects of the EOTT Entities.
(3) To my knowledge, and except as otherwise set forth in the Prospectus,
the consummation of the transactions contemplated in the Underwriting
Agreement and in the Prospectus will not, with the passage of time or upon
a stated contingency or otherwise, conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or
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55
other agreement or instrument to which any of the EOTT Entities is a party
or by which any EOTT Entity is bound or to which any property or assets of
any EOTT Entity is subject, nor, to my knowledge, will such actions result
in any violation of the provisions of the Partnership Agreement or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over any of the EOTT Entities or any of
their properties, excluding, in each case, any breach(es) or violation(s)
which, individually or in the aggregate, could not be reasonably expected
to have a material adverse effect on the limited partners or the financial
condition, results of operation, business or prospects (as described in the
Prospectus) of the EOTT Entities, considered as a whole.
Since I have not conducted any independent investigation with regard to the
information set forth in the Registration Statement or Prospectus, I am not
(except as expressly set forth above), passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained therein. In addition to the foregoing opinions, however, I hereby
advise you that during the course of my representation of the EOTT Entities no
facts have come to my attention that have led me to believe that the
Registration Statement, at the time such Registration Statement or any
amendments thereto became effective prior to the date hereof, contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or that, as of its date, the Prospectus or any further amendment or supplement
thereto made prior to the date hereof contained an untrue statement of a
material fact or omitted a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, or that, as of the date hereof, either the
Registration Statement or any further amendment thereto made prior to the date
hereof, contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein
C-2
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not misleading or the Prospectus or any further supplement thereto made prior to
the date hereof, contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The foregoing
notwithstanding, I express no comment with respect to the financial statements
and related schedules and other financial data included or incorporated by
reference in the Registration Statement or in the Prospectus or any further
amendment or supplement thereto (including, without limitation, statements
relating to income, profits, cash flows and projected cash distributions to the
limited partners of the Partnership) or any statement contained therein or
omitted therefrom in reliance upon and in conformity with written information
furnished to the Issuers by you expressly for use therein.
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