Enterprise Products Operating L.P. 7.034% Fixed/Floating Rate Junior Subordinated Notes due 2068 (“Notes”) guaranteed by Enterprise Products Partners L.P. UNDERWRITING AGREEMENT
Exhibit 1.1
Enterprise Products Operating L.P.
7.034% Fixed/Floating Rate Junior Subordinated Notes due 2068 (“Notes”)
guaranteed by
Enterprise Products Partners L.P.
7.034% Fixed/Floating Rate Junior Subordinated Notes due 2068 (“Notes”)
guaranteed by
Enterprise Products Partners L.P.
May 21, 2007
X.X. Xxxxxx Securities Inc.
Citigroup Global Markets Inc.
Xxxxxx Brothers Inc.
Wachovia Capital Markets, LLC
As Representatives of the several underwriters named in Schedule I
Citigroup Global Markets Inc.
Xxxxxx Brothers Inc.
Wachovia Capital Markets, LLC
As Representatives of the several underwriters named in Schedule I
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Enterprise Products Operating L.P., a Delaware limited partnership (the “Operating
Partnership”), proposes to issue and sell to the underwriters named in Schedule I hereto
(collectively, the “Underwriters”), for whom X.X. Xxxxxx Securities Inc., Citigroup Global
Markets Inc., Xxxxxx Brothers Inc. and Wachovia Capital Markets, LLC are acting as representatives
(the “Representatives”), $700,000,000 principal amount of the Operating Partnership’s
7.034% Fixed/Floating Rate Junior Subordinated Notes due 2068 (the “Notes”), as set forth
in Schedule I hereto, to be fully and unconditionally guaranteed on a junior subordinated,
unsecured basis by Enterprise Products Partners L.P., a Delaware limited partnership (the
“Partnership”) (the “Guarantee,” and together with the Notes, the
“Securities”).
The Securities are to be issued under the indenture dated as of October 4, 2004 (the “Base
Indenture”) among the Operating Partnership, as issuer, the Partnership, as parent guarantor,
and Xxxxx Fargo Bank, National Association, as trustee (the “Trustee”), as supplemented by
the Ninth Supplemental Indenture (the “Supplemental Indenture”), to be dated as of the
Delivery Date (as defined in Section 3) (the Base Indenture, as so supplemented, the
“Indenture”). Enterprise Products GP, LLC, a Delaware limited liability company (the
“General Partner”), is the general partner of the Partnership. Enterprise Products OLPGP,
Inc., a Delaware corporation (“OLPGP”), is the general partner of the Operating
Partnership. The General Partner, the Partnership, OLPGP and the Operating Partnership are
collectively referred to herein as the “Enterprise Parties.”
This is to confirm the agreement among the Enterprise Parties and the Underwriters concerning
the purchase of the Notes from the Operating Partnership by the Underwriters.
(a) The Partnership and the Operating Partnership have filed with the Securities and Exchange
Commission (the “Commission”) a registration statement on Form S-3 (file numbers 333-123150
and 333-123150-01), including a prospectus, relating to the Securities and the Partnership and the
Operating Partnership have filed with, or transmitted for filing to, or shall promptly hereafter
file with or transmit for filing to, the Commission a prospectus supplement (the “Prospectus
Supplement”) specifically relating to the Securities pursuant to Rule 424 under the Securities
Act of 1933, as amended (the “Securities Act”). The registration statement as amended at
the date of this underwriting agreement (the “Agreement”), including information, if any,
deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A
under the Securities Act, is hereinafter referred to as the “Registration Statement.” The term
“Base Prospectus” means the prospectus included in the Registration Statement. The term
“Prospectus” means the Base Prospectus together with the Prospectus Supplement dated May
21, 2007. The term “Preliminary Prospectus” means any preliminary prospectus supplement
specifically relating to the Securities, together with the Base Prospectus.
(b) As used in this Agreement:
(i) “Applicable Time” means 5:30 p.m. (New York City time) on the day of this
Agreement;
(ii) “Effective Date” means any date as of which any part of such registration
statement relating to the Notes became, or is deemed to have become, effective under the
Securities Act in accordance with the Rules and Regulations;
(iii) “Issuer Free Writing Prospectus” means each “free writing prospectus” (as
defined in Rule 405 of the Rules and Regulations) prepared by or on behalf of the
Partnership and the Operating Partnership or used or referred to by the Partnership and the
Operating Partnership in connection with the offering of the Securities (including, for the
avoidance of doubt, (a) the pricing term sheet attached as Exhibit A to this
Agreement and (b) road shows which are deemed to be free writing prospectuses pursuant to
Rule 433);
(iv) “Pricing Disclosure Package” means, as of the Applicable Time, the most
recent Preliminary Prospectus together with each Issuer Free Writing Prospectus filed with
the Commission by the Partnership and the Operating Partnership on or before the Applicable
Time and identified on Schedule II hereto and the “pricing term sheet” attached as
Exhibit A to this Agreement; and
(v) the term “Registration Statement” includes the various parts of the
registration statement referenced in Section 1(a), each as amended as of the
Effective Date for such part, including any Preliminary Prospectus or the Prospectus.
Any reference to the Registration Statement, the Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents incorporated by reference therein pursuant to Form S-3
under the Securities Act as of the date of such document, as the case may be. Any
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reference to the “most recent Preliminary Prospectus” shall be deemed to refer to the
latest Preliminary Prospectus included in the Registration Statement or filed pursuant to Rule
424(b) on or prior to the date hereof. Any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any document filed
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), after the date
of such Preliminary Prospectus or the Prospectus, as the case may be, and incorporated by reference
in such Preliminary Prospectus or the Prospectus, as the case may be; and any reference to any
amendment to the Registration Statement shall be deemed to include the most recent annual report of
the Partnership on Form 10-K filed with the Commission pursuant to Section 13(a) or 15(d) of the
Exchange Act after the Effective Date that is incorporated by reference in the Registration
Statement. The Commission has not issued any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending the effectiveness of the Registration
Statement, and no proceeding or examination for such purpose has been instituted or, to the
Partnership’s knowledge, threatened by the Commission. The Commission has not notified the
Partnership of any objection to the use of the Registration Statement.
(f) Prospectus. The Prospectus will not, as of its date and on the Delivery Date,
contain an 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; provided that no representation or warranty is made as to information contained in or
omitted from the Prospectus in reliance upon and in conformity with written information
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furnished to any of the Enterprise Parties through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein, which information is specified in Section 8(b).
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the “Partnership Entities,” and the subsidiaries of the Operating Partnership listed
on Schedule III hereto, the “Subsidiaries”) has been duly formed or incorporated,
as the case may be, and is validly existing in good standing under the laws of its respective
jurisdiction of formation or incorporation, as the case may be, with all corporate, limited
liability company or partnership, as the case may be, power and authority necessary to own or hold
its properties and conduct the businesses in which it is engaged and, in the case of the General
Partner and OLPGP, to act as general partner of the Partnership and the Operating Partnership,
respectively, in each case in all material respects as described in the Registration Statement and
the Prospectus. Each Partnership Entity is duly registered or qualified to do business and is in
good standing as a foreign corporation, limited liability company or limited partnership, as the
case may be, in each jurisdiction in which its ownership or lease of property or the conduct of its
businesses requires such qualification or registration, except where the failure to so qualify or
register would not, individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), results of operations, business or prospects of the Partnership
Entities taken as a whole (a “Material Adverse Effect”) or subject the limited partners of
the Partnership to any material liability or disability.
(o) Ownership of Operating Partnership. (i) OLPGP is the sole general partner of the
Operating Partnership with a 0.001% general partner interest in the Operating Partnership; such
general partner interest has been duly authorized and validly issued in accordance with the
agreement of limited partnership of the Operating Partnership, as amended and/or restated on or
prior to the date hereof (the “Operating Partnership Agreement”); and
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OLPGP owns such general partner interest free and clear of all liens, encumbrances, security
interests, equities, charges or claims; and (ii) the Partnership is the sole limited partner of the
Operating Partnership with a 99.999% limited partner interest in the Operating Partnership; such
limited partner interest has been duly authorized and validly issued in accordance with the
Operating Partnership Agreement and is fully paid (to the extent required under the Operating
Partnership Agreement) and non-assessable (except as such non-assessability may be affected by
Sections 17-607 and 17-804 of the Delaware Revised Uniform Limited Partnership Act (the
“Delaware LP Act”) and as otherwise described in the Prospectus); and the Partnership owns
such limited partner interest free and clear of all liens, encumbrances, security interests,
equities, charges or claims.
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partnership or agreement of limited partnership, certificate of formation or limited liability
company agreement, certificate or articles of incorporation or bylaws or other organizational
documents of any of the Partnership Entities, (B) conflicts or will conflict with or constitutes or
will constitute a breach or violation of, or a default (or an event that, with notice or lapse of
time or both, would constitute such a default) under, any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which any of the Partnership Entities is a
party or by which any of them or any of their respective properties may be bound, (C) violates or
will violate any statute, law or regulation or any order, judgment, decree or injunction of any
court, arbitrator or governmental agency or body having jurisdiction over any of the Partnership
Entities or any of their properties or assets, or (D) results or will result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of any of the Partnership
Entities, which conflicts, breaches, violations, defaults or liens, in the case of clauses (B) or
(D), would, individually or in the aggregate, have a Material Adverse Effect.
(z) Independent Registered Public Accounting Firm. Deloitte & Touche LLP, who has
audited the financial statements contained or incorporated by reference in the Registration
Statement and the most recent Preliminary Prospectus (or any amendment or supplement thereto)
(other than the interim unaudited financial statements included for the
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periods ended March 31, 2006 and March 31, 2007) is an independent registered public
accounting firm with respect to the Partnership and the General Partner within the meaning of the
Securities Act and the applicable rules and regulations thereunder adopted by the Commission and
the Public Company Accounting Oversight Board (United States) (the “PCAOB”).
(dd) Certain Transactions. Except as disclosed in the Registration Statement and the
most recent Preliminary Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration Statement and the most
recent Preliminary Prospectus (or any amendment or supplement thereto), (i) none of the Partnership
Entities has incurred any liability or obligation, indirect, direct or contingent, or entered into
any transactions, not in the ordinary course of business, that, individually or in the aggregate,
is material to the Partnership Entities, taken as a whole, and (ii) there has not been any material
change in the capitalization or material increase in the long-term
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debt of the Partnership Entities, or any dividend or distribution of any kind declared, paid
or made by the Partnership on any class of its partnership interests.
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(“permits”) as are necessary to own or lease its properties and to conduct its
business in the manner described in the most recent Preliminary Prospectus, subject to such
qualifications as may be set forth in the most recent Preliminary Prospectus and except for such
permits that, if not obtained, would not have, individually or in the aggregate, a Material Adverse
Effect; each of the Partnership Entities has fulfilled and performed all its material obligations
with respect to such permits in the manner described, and subject to the limitations contained in
the most recent Preliminary Prospectus, and no event has occurred that would prevent the permits
from being renewed or reissued or that allows, or after notice or lapse of time would allow,
revocation or termination thereof or results or would result in any impairment of the rights of the
holder of any such permit, except for such non-renewals, non-issues, revocations, terminations and
impairments that would not, individually or in the aggregate, have a Material Adverse Effect. None
of the Partnership Entities has received notification of any revocation or modification of any such
permit or has any reason to believe that any such permit will not be renewed in the ordinary
course.
(kk) Environmental Compliance. There has been no storage, generation, transportation,
handling, treatment, disposal or discharge of any kind of toxic or other wastes or other hazardous
substances by any of the Partnership Entities (or, to the knowledge of the Enterprise Parties, any
other entity (including any predecessor) for whose acts or omissions any of the Partnership
Entities is or could reasonably be expected to be liable) at, upon or from any of the property now
or previously owned or leased by any of the Partnership Entities or upon any other property, in
violation of any statute or any ordinance, rule, regulation, order, judgment, decree or permit or
which would, under any statute or any ordinance, rule (including rule of common law), regulation,
order, judgment, decree or permit, give rise to any liability, except for any violation or
liability that could not reasonably be expected to have, individually or in the aggregate with all
such violations and liabilities, a Material Adverse Effect; and there has been no disposal,
discharge, emission or other release of any kind onto such property or into the environment
surrounding such property of any toxic or other wastes or other hazardous substances with respect
to which any of the Enterprise Parties has knowledge, except for any such disposal, discharge,
emission or other release of any kind which could not reasonably be
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expected to have, individually or in the aggregate with all such discharges and other
releases, a Material Adverse Effect.
(qq) Absence of Certain Actions. No action has been taken and no statute, rule,
regulation or order has been enacted, adopted or issued by any governmental agency or body which
prevents the issuance or sale of the Securities in any jurisdiction; no injunction, restraining
order or order of any nature by any federal or state court of competent jurisdiction has been
issued with respect to any Partnership Entity which would prevent or suspend the issuance or sale
of the Securities or the use of the most recent Preliminary Prospectus in any jurisdiction; no
action, suit or proceeding is pending against or, to the knowledge of the Enterprise Parties,
threatened against or affecting any Partnership Entity before any court or arbitrator or any
governmental agency, body or official, domestic or foreign, which could reasonably be expected to
interfere with or adversely affect the issuance of the Securities or in any manner draw into
question the validity or enforceability of this Agreement or any action taken or to be taken
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pursuant hereto; and the Partnership has complied with any and all requests by any securities
authority in any jurisdiction for additional information to be included in the most recent
Preliminary Prospectus.
(ww) No Changes in Internal Controls. Since the date of the most recent evaluation of
such disclosure controls and procedures, there have been no significant changes in
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the Partnership’s internal controls that materially affected or are reasonably likely to
materially adversely affect the Partnership’s internal controls over financial reporting.
(b) The Operating Partnership understands that the Underwriters intend to make a public
offering of the Notes on the terms and conditions set forth in the Pricing Disclosure Package. The
Operating Partnership acknowledges and agrees that the Underwriters may offer and sell Notes to or
through any affiliate of an Underwriter and that any such affiliate may offer and sell Notes
purchased by it to or through any Underwriter.
(c) The Partnership and the Operating Partnership hereby confirm their engagement of Xxxxxx
Brothers Inc. and Xxxxxx Brothers Inc. hereby confirms its agreement with the Partnership and the
Operating Partnership to render services as, a “qualified independent underwriter” within the
meaning of Rule 2720(b)(15) of the National Association of Securities Dealers, Inc. (the “NASD”)
with respect to the offering and sale of the Notes. Xxxxxx Brothers Inc., in its capacity as
“qualified independent underwriter” and not otherwise, is referred to herein as the “Independent
Underwriter.”
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(d) Copies of Documents to the Underwriters. To deliver promptly to the Underwriters
such number of the following documents as the Underwriters shall reasonably request: (i) conformed
copies of the Registration Statement as originally filed with the Commission and each amendment
thereto (in each case excluding exhibits), (ii) each Preliminary Prospectus, the Prospectus and any
amended or supplemented Prospectus, (iii) each Issuer Free Writing Prospectus and (iv) any document
incorporated by reference in any Preliminary Prospectus or the Prospectus; and, if the delivery of
a prospectus is required at any time after the date hereof in connection with the offering or sale
of the Notes or any other securities relating thereto and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend
or supplement the Prospectus or to file
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under the Exchange Act any document incorporated by reference in the Prospectus in order to
comply with the Securities Act or the Exchange Act or with a request from the Commission, to notify
the Underwriters immediately thereof and to promptly prepare and, subject to Section 4(e) hereof,
file with the Commission an amended Prospectus or supplement to the Prospectus which will correct
such statement or omission or effect such compliance.
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6. Expenses. The Operating Partnership agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Notes and any taxes payable in that
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connection; (b) the costs incident to the preparation, printing and filing under the
Securities Act of the Registration Statement, any amendments and exhibits thereto, and except as
provided in the proviso to this Section 6, the Preliminary Prospectus and Prospectus; (c) the costs
of printing and distributing the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereof (including, in each case, exhibits); (d) the
costs of producing and distributing this Agreement, any underwriting and selling group documents
and any other related documents in connection with the offering, purchase, sale and delivery of the
Notes; (e) the filing fees incident to securing the review, if applicable, by the NASD of the terms
of sale of the Notes; (f) any applicable listing or other similar fees; (g) the fees and expenses
of preparing, printing and distributing a Blue Sky Memorandum (including related fees and expenses
of counsel to the Underwriters); (h) the cost of printing certificates representing the Notes; (i)
the costs and charges of any transfer agent or registrar or the Independent Underwriter (in its
capacity as such), if any; (j) the costs and expenses of the Partnership and the Operating
Partnership relating to investor presentations on any “road show” undertaken in connection with the
marketing of the offering of the Notes, including, without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval of the Operating Partnership or
the Partnership, travel and lodging expenses of the representatives and officers of the Partnership
and any such consultants; and (k) all other costs and expenses incident to the performance of the
obligations of the Enterprise Parties under this Agreement; provided that, except as provided in
this Section 6 and in Section 12 hereof, the Underwriters shall pay (i) their own costs and
expenses, including the costs and expenses of their counsel, any transfer taxes on the Notes which
they may sell and the expenses of advertising any offering of the Notes made by the Underwriters
and (ii) the Operating Partnership in the amount of $875,000 in respect of certain of the Operating
Partnership’s offering expenses.
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section
4(a); no stop order suspending the effectiveness of the Registration Statement or preventing or
suspending the use of the Prospectus or any Issuer Free Writing Prospectuses or any part thereof
shall have been issued and no proceeding for that purpose shall have been initiated or threatened
by the Commission; any request of the Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall have been complied with to the
reasonable satisfaction of the Underwriters; and the Commission shall not have notified the
Enterprise Parties of any objection to the use of the form of the Registration Statement.
(b) The Underwriters shall not have discovered and disclosed to the Enterprise Parties on or
prior to the Delivery Date that the Registration Statement, the Prospectus or the Pricing
Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact
which, in the opinion of counsel for the Underwriters, is material or omits to
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state any fact which, in the opinion of such counsel, is material and is required to be stated
therein or in the documents incorporated by reference therein or is necessary to make the
statements therein not misleading.
(c) All corporate, partnership and limited liability company proceedings and other legal
matters incident to the authorization, execution and delivery of this Agreement, the authorization,
execution and filing of the Registration Statement, the Prospectus and any Issuer Free Writing
Prospectus, and all other legal matters relating to this Agreement and the transactions
contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Enterprise Parties shall have furnished to such counsel all documents and
information that they or their counsel may reasonably request to enable them to pass upon such
matters.
(d) Xxxxxxxxx & Xxxxxxxx LLP, special counsel to the Enterprise Parties, shall have furnished
to the Underwriters its written opinion addressed to the Underwriters and dated the Delivery Date,
in form and substance satisfactory to the Underwriters, substantially to the effect set forth in
Exhibit B to this Agreement.
(f) The Underwriters shall have received from Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel for
the Underwriters, such opinion or opinions, dated the Delivery Date, with respect to such matters
as the Underwriters may reasonably require, and the Enterprise Parties shall have furnished to such
counsel such documents and information as they may reasonably request for the purpose of enabling
them to pass upon such matters.
(g) At the time of execution of this Agreement, the Underwriters shall have received from
Deloitte & Touche LLP a letter or letters, in form and substance satisfactory to the Underwriters,
addressed to the Underwriters and dated the date hereof (i) confirming that they are an independent
registered public accounting firm within the meaning of the Securities Act and are in compliance
with the applicable rules and regulations thereunder adopted by the Commission and the PCAOB, and
(ii) stating, as of the date hereof (or, with respect to matters involving changes or developments
since the respective dates as of which specified financial information is given in the most recent
Preliminary Prospectus and the Prospectus, as of a date not more than five days prior to the date
hereof), the conclusions and findings of such firm with respect to the financial information of the
Partnership and other matters ordinarily covered by accountants’ “comfort letters” to underwriters
in connection with registered public offerings.
(h) With respect to the letter or letters of Deloitte & Touche LLP referred to in the
preceding paragraph and delivered to the Underwriters concurrently with the execution of this
Agreement (the “initial letters”), such accounting firm shall have furnished to the
Underwriters a letter (the “bring-down letter”) of Deloitte & Touche LLP, addressed to the
Underwriters and dated the Delivery Date, (i) confirming that they are an independent registered
public accounting firm within the meaning of the Securities Act and are in compliance with the
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applicable rules and regulations thereunder adopted by the Commission and the PCAOB, (ii)
stating, as of the date of the bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date of the bring-down letter), the
conclusions and findings of such firm with respect to the financial information of the Partnership
and other matters covered by the initial letters and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letters.
(i) The Partnership and the Operating Partnership shall have furnished to the Underwriters a
certificate, dated the Delivery Date, of the chief executive officer and the chief financial
officer of the General Partner and OLPGP stating that: (i) such officers have carefully examined
the Registration Statement, the Prospectus and the Pricing Disclosure Package; (ii) in their
opinion, (1) the Registration Statement, including the documents incorporated therein by reference,
as of the most recent Effective Date, (2) the Prospectus, including any documents incorporated by
reference therein, as of the date of the Prospectus and as of the Delivery Date, and (3) the
Pricing Disclosure Package, as of the Applicable Time, did not and do not include any untrue
statement of a material fact and did not and do not omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading; (iii) as of the Delivery Date, the representations and warranties of the Enterprise
Parties in this Agreement are true and correct; (iv) the Enterprise Parties have complied with all
their agreements contained herein and satisfied all conditions on their part to be performed or
satisfied hereunder on or prior to the Delivery Date; (v) no stop order suspending the
effectiveness of the Registration Statement or suspending or preventing the use of the Prospectus
or any Issuer Free Writing Prospectus has been issued and no proceedings for that purpose have been
instituted or, to the best of such officer’s knowledge, are threatened; (vi) the Commission has not
notified the Partnership of any objection to the use of the form of the Registration Statement or
any post-effective amendment thereto; (vii) since the date of the most recent financial statements
included or incorporated by reference in the Prospectus, there has been no material adverse effect
on the condition (financial or otherwise), results of operations, business or prospects of the
Partnership Entities, taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Prospectus; and (viii) since the
Effective Date, no event has occurred that is required under the Rules and Regulations or the Act
to be set forth in a supplement or amendment to the Registration Statement, the Prospectus or any
Issuer Free Writing Prospectus that has not been so set forth.
(j) If any event shall have occurred on or prior to the Delivery Date that requires the
Partnership or the Operating Partnership under Section 4(e) to prepare an amendment or supplement
to the Prospectus, such amendment or supplement shall have been prepared, the Underwriters shall
have been given a reasonable opportunity to comment thereon as provided in Section 4(e) hereof, and
copies thereof shall have been delivered to the Underwriters reasonably in advance of the Delivery
Date.
(k) No action shall have been taken and no statute, rule, regulation or order shall have been
enacted, adopted or issued by any governmental agency or body which would, as of the Delivery Date,
prevent the issuance or sale of the Notes; and no injunction, restraining
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order or order of any other nature by any federal or state court of competent jurisdiction
shall have been issued as of the Delivery Date which would prevent the issuance or sale of the
Notes.
(l) Subsequent to the execution and delivery of this Agreement, if any debt securities of any
of the Partnership Entities are rated by any “nationally recognized statistical rating
organization,” as that term is defined by the Commission for purposes of Section 3(a)(62) of the
Exchange Act, (i) no downgrading shall have occurred in the rating accorded such debt securities
(including the Notes) and (ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of any securities of any of
the Partnership Entities.
(m) On or after the Applicable Time, the Notes shall have been accorded a rating of not less
than BB by Standard & Poor’s Ratings Group and not less than Bal by Xxxxx’x Investors Service, Inc.
(n) Subsequent to the execution and delivery of this Agreement, (i) neither the Partnership
nor any of its subsidiaries shall have sustained any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree and (ii) except as set forth in the
Prospectus, there shall not have been any change in the capital or long-term debt of the
Partnership or any of its subsidiaries or any change, or any development involving a prospective
change, in or affecting the condition (financial or otherwise), results of operations, unitholders’
equity, properties, management, business or prospects of the Partnership and its subsidiaries taken
as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the
judgment of the Representatives, so material and adverse as to make it impracticable or inadvisable
to proceed with the public offering or the delivery of the Notes being delivered on the Delivery
Date on the terms and in the manner contemplated in the Prospectus.
(o) Subsequent to the execution and delivery of this Agreement there shall not have occurred
any of the following: (i) trading in securities generally on the New York Stock Exchange or the
American Stock Exchange shall have been suspended or materially limited or the settlement of such
trading generally shall have been materially disrupted or minimum prices shall have been
established on the New York Stock Exchange, (ii) a banking moratorium shall have been declared by
federal or New York State authorities, (iii) a material disruption in commercial banking or
clearance services in the United States, (iv) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving the United States or
there shall have been a declaration of a national emergency or war by the United States or (v) a
calamity or crisis the effect of which on the financial markets is such as to make it, in the sole
judgment of the Representatives, impracticable or inadvisable to proceed with the offering or
delivery of the Notes being delivered on the Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(p) The Operating Partnership, the Partnership and the Trustee shall have executed and
delivered the Notes and the Supplemental Indenture.
All such opinions, certificates, letters and documents mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in
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form and substance reasonably satisfactory to the Underwriters and to counsel for the Underwriters.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless each
Enterprise Party, the directors of the General Partner and OLPGP, the respective officers of the
General Partner and OLPGP who signed the Registration Statement, and each person who controls the
Enterprise Parties within the meaning of either the Securities Act or the Exchange Act to the same
extent as the foregoing indemnity from the Partnership to the Underwriters, but only with reference
to written information relating to the Underwriters furnished to the Partnership by the
Underwriters through the Representatives specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition to any liability which the
Underwriters may otherwise have. The Enterprise Parties acknowledge that the statements set forth
in the most recent Preliminary Prospectus and the Prospectus (i) in the last paragraph of the cover
page regarding delivery of the Notes and (ii) under the heading “Underwriting,” (A) the list of
names of each of the Underwriters and (B) the statements in the fourth, sixth, seventh and eighth
paragraphs regarding discounts, short sales, stabilization and penalty bids constitute the only
information furnished in writing by or on behalf of the Underwriters for inclusion in any
Preliminary Prospectus, the Registration Statement, the Pricing Disclosure Package, the Prospectus,
any Issuer Free Writing Prospectuses or in any amendment or supplement thereto.
-22-
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of any claim
or the commencement of any action, such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantive rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent
the indemnified party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the reasonable fees, costs and expenses
of any separate counsel retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the reasonable fees, costs and
expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of interest, (ii) the
actual or potential defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the indemnifying party shall
not have employed counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of such action or (iv)
the indemnifying party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability arising out of such
claim, action, suit or proceeding.
(d) In the event that the indemnity provided in this Section 8 is unavailable to or
insufficient to hold harmless an indemnified party for any reason, the Enterprise Parties, the
Underwriters agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively, the “Losses”) to which the Enterprise Parties and the
Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits
received by the Enterprise Parties on the one hand and by the Underwriters on the other from the
offering of the Notes; provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Enterprise Parties and the Underwriters shall
contribute in such proportion as is appropriate to reflect not only such relative
-23-
benefits but also the relative fault of the Enterprise Parties on the one hand and of the
Underwriters on the other in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received by the Enterprise
Parties shall be deemed to be equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by the Underwriters shall be deemed to be equal to
the total underwriting discounts and commissions, in each case as set forth on the cover page of
the Prospectus. Relative fault shall be determined by reference to, among other things, whether
any untrue or any alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information provided by the Enterprise Parties on the one hand
or the Underwriters through the Representatives on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent such untrue
statement or omission. The Enterprise Parties and each of the Underwriters agree that it would not
be just and equitable if contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 8, each person who controls any Underwriter within the meaning of either the
Securities Act or the Exchange Act and each director, officer, employee and agent of any
Underwriter shall have the same rights to contribution as the Underwriters, and each person who
controls the Enterprise Parties within the meaning of either the Securities Act or the Exchange
Act, each officer of the General Partner and OLPGP who shall have signed the Registration Statement
and each director of the General Partner and OLPGP shall have the same rights to contribution as
the Enterprise Parties, subject in each case to the applicable terms and conditions of this
paragraph (d).
(e) Without limitation of and in addition to its obligations under the other paragraphs of
this Section 8, each of the Enterprise Parties, jointly and severally, agree to indemnify and hold
harmless Xxxxxx Brothers Inc., in its capacity as Independent Underwriter, and its directors,
officers and employees and each person who controls the Independent Underwriter within the meaning
of Section 15 of the Securities Act from and against any and all loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of the Notes) to which the Independent
Underwriter, director, officer, employee or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, the Independent Underwriter’s acting as a “qualified independent underwriter”
(within the meaning of NASD Conduct Rule 2720) in connection with the offering contemplated by this
Agreement, and agrees to reimburse each such indemnified party promptly upon demand for any legal
or other expenses reasonably incurred by them in connection with investigating or defending or
preparing to defend any such loss, claim, damage, liability or action; provided, however, that the
Enterprise Parties shall not be liable in any such case to the extent that it is determined in a
final judgment by a court of competent jurisdiction that such loss, claim, damage, liability or
action resulted directly from the gross negligence or willful misconduct of the Independent
Underwriter.
-24-
Notes. The Enterprise Parties further acknowledge that each Underwriter is acting pursuant to
a contractual relationship created solely by this Agreement entered into on an arm’s-length basis
and in no event do the parties intend that each Underwriter acts or be responsible as a fiduciary
to any of the Partnership Entities, their management, unitholders, creditors or any other person in
connection with any activity that each Underwriter may undertake or have undertaken in furtherance
of the purchase and sale of the Notes, either before or after the date hereof. Each Underwriter
hereby expressly disclaims any fiduciary, advisory or similar obligations to any of the Partnership
Entities, either in connection with the transactions contemplated by this Agreement or any matters
leading up to such transactions, and the Partnership hereby confirms its understanding and
agreement to that effect. The Enterprise Parties and the Underwriters agree that they are each
responsible for making their own independent judgments with respect to any such transactions and
that any opinions or views expressed by the Underwriters to any of the Partnership Entities
regarding such transactions, including but not limited to any opinions or views with respect to the
price or market for the Notes, do not constitute advice or recommendations to any of the
Partnership Entities. The Enterprise Parties hereby waive and release, to the fullest extent
permitted by law, any claims that they may have against each Underwriter with respect to any breach
or alleged breach of any fiduciary, advisory or similar duty to any of the Enterprise Parties in
connection with the transactions contemplated by this Agreement or any matters leading up to such
transactions and agree that they will not claim that the Underwriters have rendered advisory
services of any nature or respect, or owe an agency, fiduciary or similar duty to the Enterprise
Parties, in connection with such transaction or the process leading thereto.
-25-
Schedule I hereto that, pursuant to this Section 10, purchases Notes that a defaulting
Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have
to the Enterprise Parties for damages caused by its default. If other Underwriters are obligated
or agree to purchase the Notes of a defaulting or withdrawing Underwriter, either the
Representatives or the Enterprise Parties may postpone the Delivery Date for up to seven full
business days in order to effect any changes that in the opinion of counsel for the Enterprise
Parties or counsel for the Underwriters may be necessary in the Registration Statement, the
Prospectus or in any other document or arrangement.
-26-
customers and hold long or short positions in debt or equity securities of the companies that
may be the subject of the transactions contemplated by this Agreement.
(a) if to the Underwriters, shall be delivered or sent by mail or facsimile transmission to
(i) X.X. Xxxxxx Securities Inc. 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: High Grade
Syndicate (Fax: 000-000-0000), with a copy to the General Counsel’s office at the same address;
(ii) Citigroup Global Markets Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, (Fax: (000)
000 0000); (iii) Xxxxxx Brothers Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Debt
Capital Markets, Power Group (Fax: 000-000-0000) (with a copy to the General Counsel at the same
address);(iv) Wachovia Capital Markets, LLC, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000-0000 Attention: Debt Capital Markets (Fax: 000-000-0000) and (v) a copy to Cadwalader,
Xxxxxxxxxx & Xxxx LLP, Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X.
Xxxxxxxxxx, Esq. (Fax: 000-000-0000);
(b) if to the Enterprise Parties, shall be delivered or sent by mail or facsimile transmission
to Enterprise Products Partners L.P., 0000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx
00000, Attention: Chief Legal Officer (Fax: 000-000-0000), with a copy to Bracewell & Xxxxxxxx
LLP, 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000-0000, Attention: Xxxxxxx X. Xxxxx, Esq.
(Fax: 000-000-0000);
provided, however, that any notice to any Underwriter pursuant to Section 8(c) shall be delivered
or sent by mail, telex or facsimile transmission to such Underwriters at its address set forth in
its acceptance telex to the Underwriters, which address will be supplied to any other party hereto
by the Underwriters upon request. Any such statements, requests, notices or agreements shall take
effect at the time of receipt thereof.
The Enterprise Parties shall be entitled to rely upon any request, notice, consent or
agreement given or made by the Representatives on behalf of the Underwriters.
-27-
Agreement or any investigation made by or on behalf of any of them or any person controlling
any of them. The Underwriters acknowledge and agree that the obligations of the Enterprise Parties
hereunder are non-recourse to the General Partner.
17. Definition of the Terms “Business Day” and “Subsidiary”. For purposes of this
Agreement, (a) “business day” means any day on which the New York Stock Exchange, Inc. is
open for trading and (b) “affiliate” and “subsidiary” have their respective
meanings set forth in Rule 405 of the Rules and Regulations.
18. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
19. Jurisdiction; Venue. The parties hereby consent to (i) nonexclusive jurisdiction
in the courts of the State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, (ii) nonexclusive personal service
with respect thereto, and (iii) personal jurisdiction, service and venue in any court in which any
claim arising out of or in any way relating to this Agreement is brought by any third party against
the Underwriters or any indemnified party. Each of the parties (on its behalf and, to the extent
permitted by applicable law, on behalf of its limited partners and affiliates) waives all right to
trial by jury in any action, proceeding or counterclaim (whether based upon contract, tort or
otherwise) in any way arising out of or relating to this Agreement. The parties agree that a final
judgment in any such action, proceeding or counterclaim brought in any such court shall be
conclusive and binding upon the parties and may be enforced in any other courts to the jurisdiction
of which the parties is or may be subject, by suit upon such judgment.
[Signature Pages to Follow]
-28-
If the foregoing correctly sets forth the agreement among the Enterprise Parties and the
Underwriters please indicate your acceptance in the space provided for that purpose below.
Very truly yours, ENTERPRISE PRODUCTS PARTNERS L.P. |
||||
By: | Enterprise Products GP, LLC, its general partner | |||
By: | /s/ W. Xxxxxxx Xxxxxx | |||
Name: | W. Xxxxxxx Xxxxxx | |||
Title: | Senior Vice President and Treasurer | |||
ENTERPRISE PRODUCTS OPERATING L.P. |
||||
By: | Enterprise Products OLPGP, Inc., its general partner | |||
By: | /s/ W. Xxxxxxx Xxxxxx | |||
Name: | W. Xxxxxxx Xxxxxx | |||
Title: | Senior Vice President and Treasurer | |||
ENTERPRISE PRODUCTS OLPGP, INC. |
||||
By: | /s/ W. Xxxxxxx Xxxxxx | |||
Name: | W. Xxxxxxx Xxxxxx | |||
Title: | Senior Vice President and Treasurer | |||
ENTERPRISE PRODUCTS GP, LLC |
||||
By: | /s/ W. Xxxxxxx Xxxxxx | |||
Name: | W. Xxxxxxx Xxxxxx | |||
Title: | Senior Vice President and Treasurer | |||
-29-
For themselves and the other Representatives,
as Representatives of the several Underwriters named
in Schedule I hereto.
as Representatives of the several Underwriters named
in Schedule I hereto.
X.X. XXXXXX SECURITIES INC. | ||||
By:
|
/s/ Xxxx X. Xxxxxxx | |||
Name: Xxxx X. Xxxxxxx | ||||
Title: Vice President |
-30-
Schedule I
Principal Amount | ||||
of Notes | ||||
Underwriters | to be Purchased | |||
X.X. Xxxxxx Securities Inc.
|
175,000,000 | |||
Citigroup Global Markets Inc.
|
112,000,000 | |||
Xxxxxx Brothers Inc.
|
112,000,000 | |||
Wachovia Capital Markets, LLC
|
112,000,000 | |||
Mizuho Securities USA Inc.
|
42,000,000 | |||
Xxxxxxx Xxxxx & Associates, Inc.
|
42,000,000 | |||
BNP Paribas Securities Corp.
|
21,000,000 | |||
Daiwa Securities America Inc.
|
21,000,000 | |||
HVB Capital Markets, Inc.
|
21,000,000 | |||
ING Financial Markets LLC
|
21,000,000 | |||
Xxxxx Fargo Securities, LLC
|
21,000,000 | |||
TOTAL
|
$ | 700,000,000 |
I-1
Schedule II
Issuer Free Writing Prospectuses Included in Disclosure Package
None, other than the pricing term sheet attached as Exhibit A.
II-1
Schedule III
Subsidiaries of the Operating Partnership
Jurisdiction of | Ownership Interest | |||||
Subsidiary | Formation | Percentage | ||||
Enterprise Gas Processing, LLC
|
Delaware | 100.00 | % | |||
Enterprise GTM Holdings L.P.
|
Delaware | 100.00 | % | |||
Enterprise Hydrocarbons L.P.
|
Delaware | 100.00 | % | |||
Enterprise Field Services, L.L.C.
|
Delaware | 100.00 | % | |||
Enterprise Products Texas Operating L.P.
|
Delaware | 100.00 | % | |||
Enterprise Texas Pipeline L.P.
|
Delaware | 100.00 | % | |||
Mapletree, LLC
|
Delaware | 100.00 | % | |||
Mid-America Pipeline Company, LLC
|
Delaware | 100.00 | % |
III-1
Schedule IV
Issuer Free Writing Prospectuses
other than those to which the Underwriters provided their consent
other than those to which the Underwriters provided their consent
None.
IV-1
EXHIBIT A
Filed Pursuant to Rule 433
File Numbers 333-123150
333-123150-01
Filed Pursuant to Rule 433
File Numbers 333-123150
333-123150-01
May 21, 2007
Enterprise Products Operating L.P.
7.034% Fixed/Floating Rate Junior Subordinated Notes due 2068
7.034% Fixed/Floating Rate Junior Subordinated Notes due 2068
Issuer: | Enterprise Products Operating L.P. |
|
Guarantor | Enterprise Products Partners L.P.
will guarantee, on a junior
subordinated basis, payment of the
principal of, premium, if any, and
interest on the notes. |
|
Principal Amount: | $700,000,000 |
|
Security Type: | Junior Subordinated Notes due 2068 |
|
Ratings (Xxxxx’x / S&P / Fitch): | Ba1 / BB (expected) / BB+ |
|
A securities rating is not a
recommendation to buy, sell, or
hold securities and may be subject
to review, revision, suspension,
reduction, or withdrawal at any
time by the assigning rating
agency. |
||
Minimum Denomination: | $1,000 |
|
Pricing Date: | May 21, 2007 |
|
Settlement Date: | May 24, 2007 (T + 3) |
|
Maturity Date: | January 15, 2068 |
|
Treasury Benchmark: | T 4.500% due May 15, 2017 |
|
Benchmark Yield: | 4.784% |
|
Spread to Benchmark: | 225 basis points (2.25%) |
|
Yield to Maturity: | 7.034% |
|
Coupon: | 7.034% |
|
Interest during Fixed Rate Period: | From May 24, 2007 to January 15,
2018, at an annual rate of 7.034%,
payable semi-annually in arrears on
January 15 and July 15 of each
year, commencing on January 15,
2008, subject to the Issuer’s right
to defer interest payments on one
or more occasions for up to ten
consecutive years. |
|
Interest during Floating Rate Period: | From January 15, 2018 through
maturity, at an annual floating
rate equal to the greater of (a)
the 3-month LIBOR Rate plus a
spread of 268 basis points, reset
quarterly, or (b) 7.034% per annum,
payable quarterly in arrears on
January 15, April 15, July 15 and
October 15 of each year, commencing
on April 15, 2018, subject to the
Issuer’s right to defer interest
payments on one or more occasions
for up to ten consecutive years. |
|
Underwriting Discount: | 1.375%; $9,625,000 in the aggregate |
|
Price to Public: | 99.979% |
|
Net Proceeds to Issuer After Deducting Underwriting Commissions and Net Estimated Offering Expenses: | $690,228,000 |
|
A-1
Optional Redemption: | In whole or in part at any time on or after
January 15, 2018, at a redemption price equal
to 100% of their principal amount plus accrued
and unpaid interest; |
• | in whole or in part at any
time prior to January 15, 2018, at a
redemption price equal to the “Make-Whole
Redemption Price”; or |
|||
• | in whole but not in part prior
to January 15, 2018, after the occurrence of a
Tax Event or Rating Agency Event at a
redemption price equal to the “Special Event
Make-Whole Redemption Price.” |
The “Make-Whole Redemption Price” will be
equal to (a) all accrued and unpaid interest
to but not including the redemption date, plus
(b) the greater of (i) 100% of the principal
amount of the Notes being redeemed and (ii) as
determined by the Independent Investment
Banker, the sum of the present values of
remaining scheduled payments of principal and
interest on the Notes (exclusive of interest
accrued to the redemption date) being redeemed
from the redemption date to January 15, 2018,
discounted to the redemption date on a
semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the
Treasury Yield plus 0.50%. |
||
The “Special Event Make-Whole Redemption
Price” for the Notes if redeemed prior January
15, 2018 in connection with a Rating Agency
Event or Tax Event will be equal to (a) all
accrued and unpaid interest to but not
including the redemption date, plus (b) the
greater of (i) 100% of the principal amount of
the Notes being redeemed and (ii) as
determined by the Independent Investment
Banker, the sum of the present values of
remaining scheduled payments of principal and
interest on the Notes (exclusive of interest
accrued to the redemption date) being redeemed
from the redemption date to January 15, 2018,
discounted to the redemption date on a
semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the
Treasury Yield plus 0.50%. |
||
CUSIP: | 000000XX0 |
|
ISIN: | US293791AW97 |
|
Joint Bookrunning Managers: | X.X. Xxxxxx Securities Inc. Citigroup Global Markets Inc. Xxxxxx Brothers Inc. Wachovia Capital Markets, LLC |
|
Senior Co-Managers: | Mizuho Securities USA Inc. Xxxxxxx Xxxxx & Associates, Inc. |
|
Co-Managers: | BNP Paribas Securities Corp. Daiwa Securities America Inc. HVB Capital Markets, Inc. ING Financial Markets LLC Xxxxx Fargo Securities, LLC |
|
************************
The issuer has filed a registration statement (including a base prospectus and a prospectus
supplement) with the U.S. Securities and Exchange Commission (SEC) for the offering to which this
communication relates. Before you invest, you should read the prospectus supplement for this
offering, the prospectus in that registration statement and any other documents the issuer has
filed with the SEC for more complete information about the issuer and this offering. You may get
these documents for free by searching the SEC online data base (XXXXX) on the SEC web site at
xxxx://xxx.xxx.xxx. Alternatively, the issuer, any underwriter or any dealer participating in the
offering will arrange to send you the prospectus supplement and prospectus if you
request it by calling X.X. Xxxxxx Securities Inc. collect at (000) 000-0000, Citigroup Global
Markets Inc. toll-free at (000) 000-0000, Xxxxxx Brothers Inc. toll-free at (000) 000-0000, or
Wachovia Capital Markets, LLC toll-free at (000) 000-0000.
A-2
EXHIBIT B
FORM OF BRACEWELL & XXXXXXXX LLP’S OPINION
1. Each of the General Partner, the Partnership, the Operating Partnership and OLPGP is
validly existing in good standing as a limited liability company, limited partnership or
corporation, as applicable, under the laws of the State of Delaware with all necessary limited
liability company, limited partnership or corporate, as the case may be, power and authority to own
or lease its properties and conduct its businesses and, in the case of the General Partner, to act
as the general partner of the Partnership and, in the case of OLPGP, to act as the general partner
of the Operating Partnership, in each case in all material respects as described in the
Registration Statement and the Prospectus. Each of the General Partner, the Partnership, the
Operating Partnership and OLPGP is duly registered or qualified as a foreign limited liability
company, limited partnership or corporation, as the case may be, for the transaction of business
and is in good standing under the laws of the State of Texas.
2. There are no preemptive rights under U.S. federal law or under the Delaware LP Act to
subscribe for or purchase the Notes. There are no preemptive or other rights to subscribe for or
to purchase the Notes included in the Operating Partnership’s limited partnership agreement. To
such counsel’s knowledge, neither the filing of the Registration Statement nor the offering or sale
of the Notes as contemplated by the Underwriting Agreement gives rise to any rights for the
registration of any securities of the Partnership or any of its subsidiaries, other than as have
been waived, effectively complied with or satisfied.
3. To such counsel’s knowledge and other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Partnership or any of its subsidiaries is a
party or of which any property of the Partnership or any of its subsidiaries is the subject that,
individually or in the aggregate, could reasonably be expected by such counsel to have a material
adverse effect on the financial condition or results of operations of the Partnership and its
subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are
threatened.
4. The Partnership and the Operating Partnership have all requisite partnership power and
authority to issue, sell and deliver the Securities in accordance with and upon the terms and
conditions set forth in the Agreement, the Partnership Agreement, the Operating Partnership
Agreement, the Indenture, the Registration Statement and Prospectus.
5. The Notes have been duly authorized and executed by the Operating Partnership and, when
authenticated by the Trustee and issued and delivered in the manner provided in the Indenture
against payment of the consideration therefor, will constitute valid and legally binding
obligations of the Operating Partnership, enforceable against the Operating Partnership in
accordance with their terms, and will be entitled to the benefits provided by the Indenture.
6. The Indenture has been duly authorized, executed and delivered by each of the Partnership
and the Operating Partnership and has been duly qualified under the Trust
B-1
Indenture Act and, assuming the due authorization, execution and delivery thereof by the
Trustee, constitutes a valid and binding agreement of each of the Partnership and the Operating
Partnership, enforceable against each of the Partnership and the Operating Partnership in
accordance with its terms.
7. The Guarantee has been duly authorized, executed and delivered by the Partnership and when
the Notes (including the notations of the Guarantee thereon) are executed and authenticated in
accordance with the Indenture against payment of the consideration therefor in accordance with the
terms of this Agreement, the Guarantee endorsed by the notations on the Notes will be entitled to
the benefits of the Indenture and will constitute legal, valid, binding and enforceable obligations
of the Partnership.
8. The Underwriting Agreement has been duly authorized, executed and delivered by each of the
Enterprise Parties.
9. The authorization, execution and delivery of the Notes, the Indenture, and the Underwriting
Agreement by the Enterprise Parties do not, and the issuance of the Notes by the Operating
Partnership in accordance with the Indenture and their sale to the Underwriters in accordance with
the Underwriting Agreement and the performance by the Enterprise Parties of their respective
obligations under the Notes, the Indenture, the Guarantee and the Underwriting Agreement will not,
(i) violate the certificate of limited partnership or agreement of limited partnership, certificate
of formation or limited liability company agreement, certificate or articles of incorporation or
bylaws, as applicable, of the General Partner, the Partnership, the Operating Partnership or OLPGP,
each as amended to the date hereof; or (ii) violate any applicable provisions of existing U.S.
federal law, the laws of the State of Texas or the State of New York, the Delaware LP Act, the
Delaware LLC Act or the DGCL (except, in the case of this clause (ii), where such violations would
not, individually or in the aggregate, (a) have a material adverse effect on the financial
condition, business or results of operations of the Partnership Entities, taken as a whole, or (b)
materially impair the ability of the Enterprise Parties to perform their respective obligations
under the Underwriting Agreement).
10. No consent, approval, authorization or order of, or filing with, any U.S. federal or Texas
governmental authority or agency having jurisdiction over the Enterprise Parties or, to our
knowledge, any U.S. federal or Texas court is required to be obtained or made and has not been
obtained or made by the Enterprise Parties for (i) the issue and sale by the Operating Partnership
to the Underwriters of the Notes and (ii) the execution, delivery and performance by the Enterprise
Parties of the Underwriting Agreement, except as may be required under state securities or “blue
sky” laws in connection with the purchase and distribution of the Securities by the Underwriters,
as to which such counsel need not express any opinion.
11. The Partnership and the Operating Partnership are not and, after giving effect to the
issue and sale of the Notes to the Underwriters and the application of the proceeds from the sale
of the Notes as described under the caption “Use of Proceeds” in the Prospectus, will not be, an
“investment company” within the meaning of the Investment Company Act.
12. The statements made in the Prospectus under the caption “Description of Debt Securities”
and “Description of the Notes” insofar as they purport to constitute summaries
B-2
of the terms of the Notes, the Indenture, and the Guarantee, constitute accurate summaries of
such terms in all material respects.
13. The statements made in the Prospectus under the caption “Certain United States Federal
Income Tax Considerations,” insofar as they purport to constitute summaries of matters of U.S.
federal tax law and regulations, constitute accurate summaries of the matters described therein in
all material respects.
14. The Registration Statement became effective under the Securities Act on March 23, 2005,
and the Prospectus was filed with the Commission pursuant to Rule 424(b)(5) under the Securities
Act on [___]. To such counsel’s knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities Act and no proceeding for such purpose
has been instituted or threatened by the Commission.
15. The Registration Statement, as of the date it became effective under the Securities Act,
the Preliminary Prospectus, as of its date, and the Prospectus, as of its date, appeared on their
face to be appropriately responsive, in all material respects, to the requirements of the
Securities Act and the Rules and Regulations, except that in each case such counsel need express no
opinion with respect to the financial statements and the notes and schedules thereto or other
financial, accounting or statistical data contained or incorporated or deemed incorporated by
reference in or omitted from the Registration Statement, the Preliminary Prospectus or the
Prospectus.
Such counsel may state that the enforceability of the obligations of the Enterprise Parties
under the Notes, the Indenture and the Guarantee are subject to the effect of any applicable
bankruptcy (including, without limitation, fraudulent conveyance and preference), insolvency,
reorganization, rehabilitation, moratorium or similar laws and decisions relating to or affecting
the enforcement of creditors’ rights generally and to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law), including, without
limitation, concepts of materiality, reasonableness, good faith and fair dealing, and the possible
unavailability of specific performance or injunctive relief. Such principles are of general
application, and in applying such principles a court, among other things, might decline to order
the Enterprise Parties to perform covenants. Such counsel need not express any opinion as to the
validity, binding effect or enforceability of any provisions of the Notes, the Indenture or the
Guarantee that requires or relates to the payment of liquidated damages or additional interest at a
rate or in an amount that a court would determine in the circumstances under applicable law to be
commercially unreasonable or a penalty or a forfeiture. Further, such counsel need not express any
opinion with respect to the enforceability of provisions in the Notes, the Indenture or the
Guarantee with respect to waiver, delay, extension or omission of notice of enforcement of rights
or remedies or waivers of defenses or waivers of benefits of stay, extension, moratorium,
redemption, statutes of limitations or other nonwaivable benefits provided by operation of law. In
addition, the enforceability of any exculpation, indemnification or contribution provisions
contained in the Indenture or the Guarantee may be limited by applicable law or public policy.
Because the primary purpose of such counsel’s engagement was not to establish or confirm
factual matters or financial or accounting matters and because of the wholly or partially non-legal
character of many of the statements contained in the Registration Statement, the
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Prospectus and the Pricing Disclosure Package, such counsel need not pass upon and does not
assume any responsibility for the accuracy, completeness or fairness of the statements contained in
the Registration Statement, the Prospectus or the Pricing Disclosure Package (except to the extent
expressly set forth in paragraphs 12 and 13 above), and such counsel need not independently verify
the accuracy, completeness or fairness of such statements (except as aforesaid). Without limiting
the foregoing, such counsel need not assume any responsibility for, and has not independently
verified and has not been asked to comment on the accuracy, completeness or fairness of the
financial statements, schedules and other financial or accounting data included in the Registration
Statement, the Prospectus or the Pricing Disclosure Package or the exhibits to the Registration
Statement or the documents incorporated by reference therein, and such counsel has not examined the
accounting, financial or other records from which such financial statements, schedules and other
financial or accounting data and information were derived. Such counsel may state that they are
not experts with respect to any portion of the Registration Statement, the Prospectus or the
Pricing Disclosure Package, including, without limitation, such financial statements and supporting
schedules and related data and other financial or accounting data included therein. Such counsel
may state that they did not participate in the preparation of the documents incorporated by
reference into the Registration Statement. However, such counsel shall state that they have
participated in conferences with officers and other representatives of the Partnership Entities,
the independent registered public accounting firm for the Partnership, the Underwriters’
representatives and the Underwriters’ counsel at which the contents of the Registration Statement,
the Prospectus and the Pricing Disclosure Package and related matters were discussed. Based upon
such participation and review, and relying as to materiality in part upon the factual statements of
officers and other representatives of the Partnership Entities and upon the Underwriter’s
representatives, such counsel shall advise the Underwriters that no facts have come to such
counsel’s attention that have caused such counsel to believe that (i) the Registration Statement
(including the documents incorporated by reference therein, but excluding the financial statements,
schedules and related data and other financial or accounting data, as to which such counsel has not
been asked to comment), as of the Effective Date (as defined in the Underwriting Agreement),
contained an untrue statement of a material fact or omitted to state a material fact necessary to
make the statements therein not misleading, (ii) the Prospectus (including the documents
incorporated by reference therein, but excluding the financial statements, schedules and related
data and other financial or accounting data, as to which such counsel has not been asked to
comment), as of the date of the Prospectus and as of the time of delivery of such counsel’s letter,
contained an untrue statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they were made, not
misleading or (iii) the Pricing Disclosure Package, considered together (including the documents
incorporated by reference therein, but excluding the financial statements, schedules and related
data and other financial or accounting data, as to which such counsel has not been asked to
comment), as of the Applicable Time, contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading,
except that the public offering price of and interest rate of the Notes and disclosures directly
relating thereto that are included on the cover page of the Prospectus are not included in the most
recent Preliminary Prospectus.
In rendering such opinions, such counsel may (A) rely in respect of matters of fact
exclusively upon certificates of officers and employees for the Partnership Entities and upon
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information obtained from public officials, (B) assume that all documents submitted to them as
originals are authentic, that all copies submitted to them conform to the originals thereof, and
that the signatures on all documents examined by them are genuine, (C) state that their opinion is
based on and limited to the Delaware LP Act, the Delaware LLC Act, the DGCL and the laws of the
State of Texas, the applicable laws of the United States of America and, with respect to the
opinion set forth in paragraph 13 above, United States federal income tax law, and, with respect to
the opinions set forth in paragraphs 4, 5, 6 and 9, the relevant contract law of the State of New
York, (D) state that they express no opinion with respect to the state securities or blue sky laws
of any jurisdiction or with respect to the anti-fraud provisions of the federal securities laws,
(E) with respect to the opinion expressed in paragraph 1 above as to the due qualification or
registration under the laws of the State of Texas as a foreign limited partnership, limited
liability company or corporation, as the case may be, of the General Partner, the Partnership, the
Operating Partnership and OLPGP, state that such opinions are based solely on certificates of
foreign qualification or registration for each such entity provided by the Secretary of State of
the State of Texas, and (F) state that such counsel expresses no opinion with respect to (i) any
permits to own or operate any real or personal property or (ii) state or local taxes or tax
statutes to which any of the limited partners of the Partnership or any of the Partnership Entities
may be subject.
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EXHIBIT C
1. Each of the Partnership Entities (other than the Enterprise Parties) has been duly formed
or incorporated, as the case may be, and is validly existing and in good standing under the laws of
its respective jurisdiction of formation with all necessary corporate, limited liability company or
limited partnership, as the case may be, power and authority to own or lease its properties and
conduct its business, in each case in all material respects as described in the Registration
Statement and the Prospectus. Each of the Partnership Entities is duly registered or qualified as
a foreign corporation, limited partnership or limited liability company, as the case may be, for
the transaction of business under the laws of each jurisdiction in which its ownership or lease of
property or the conduct of its businesses requires such qualification or registration, except where
the failure to so qualify or register would not, individually or in the aggregate, have a Material
Adverse Effect.
2. All of the outstanding shares of capital stock, partnership interests or membership
interests, as the case may be, of each of the Partnership Entities have been duly and validly
authorized and issued, are fully paid and non-assessable. Except as described in the Prospectus,
the Operating Partnership and/or the Partnership, as the case may be, directly or indirectly, owns
the shares of capital stock, partnership interests or membership interests, as applicable, in each
of the Partnership Entities as set forth on Schedule III, free and clear of any lien,
charge, encumbrance, security interest, restriction upon voting or any other claim.
3. Each of the Enterprise Parties has all requisite right, power and authority to execute and
deliver the Underwriting Agreement and to perform its respective obligations thereunder. The
Partnership has all requisite partnership power and authority to issue and deliver the Guarantee in
accordance with and upon the terms and conditions set forth in the Indenture, the Partnership
Agreement, the Registration Statement and the Prospectus. The Operating Partnership has all
requisite partnership power and authority to issue, sell and deliver the Notes in accordance with
and upon the terms and conditions set forth in the Indenture, the Operating Partnership Agreement,
the Registration Statement and the Prospectus. All action required to be taken by the Enterprise
Parties or any of their security holders, partners or members for (i) the due and proper
authorization, execution and delivery of the Underwriting Agreement, (ii) the authorization,
issuance, sale and delivery of the Securities and (iii) the consummation of the transactions
contemplated hereby, has been duly and validly taken.
4. None of (i) the offering, issuance and sale by the Operating Partnership of the Notes, (ii)
the issuance by the Partnership of the Guarantee, (iii) the execution, delivery and performance of
the Underwriting Agreement by the Enterprise Parties or the consummation of the transactions
contemplated thereby or (iv) the execution, delivery and performance of the Indenture by the
Partnership and the Operating Partnership or the consummation of the transactions contemplated
thereby (A) conflicts or will conflict with or constitutes or will constitute a violation of the
certificate of limited partnership or agreement of limited partnership, certificate of formation or
limited liability company agreement, certificate or articles of incorporation or bylaws or other
organizational documents of any of the Partnership Entities
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(other than the Enterprise Parties), (B) conflicts or will conflict with or constitutes or
will constitute a breach or violation of, or a default (or an event that, with notice or lapse of
time or both, would constitute such a default) under, any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument known to such counsel to which any of the
Partnership Entities is a party or by which any of them or any of their respective properties may
be bound, (C) will result, to the knowledge of such counsel, in any violation of any judgment,
order, decree, injunction, rule or regulation of any court, arbitrator or governmental agency or
body having jurisdiction over any of the Partnership Entities or any of their assets or properties,
or (D) results or will result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of any of the Partnership Entities, which conflicts, breaches, violations,
defaults or liens, in the case of clauses (B), (C) or (D), would, individually or in the aggregate,
have a material adverse effect on the financial condition, business or results of operations of the
Partnership Entities, taken as a whole, or could materially impair the ability of any of the
Enterprise Parties to perform its obligations under the Underwriting Agreement.
5. To the knowledge of such counsel, (a) there is no legal or governmental proceeding pending
or threatened to which any of the Partnership Entities is a party or to which any of their
respective properties is subject that is required to be disclosed in the Registration Statement or
the Prospectus and is not so disclosed and (b) there are no agreements, contracts or other
documents to which any of the Partnership Entities is a party that are required to be described in
the Registration Statement or the Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required.
In addition, such counsel shall state that he has participated in conferences with officers
and other representatives of the Partnership Entities, the independent registered public accounting
firm for the General Partner and the Partnership, your counsel and your representatives, at which
the contents of the Registration Statement, the Pricing Disclosure Package and the Prospectus and
related matters were discussed, and, although such counsel has not independently verified, is not
passing upon and does not assume any responsibility for the accuracy, completeness or fairness of,
the statements contained or incorporated by reference in, the Registration Statement, the Pricing
Disclosure Package and the Prospectus (except as and to the extent set forth in certain opinions
above), on the basis of the foregoing (relying to a limited extent with respect to factual matters
upon statements by officers and other representatives of the Partnership Entities and their
subsidiaries), no facts have come to such counsel’s attention that have led him to believe that (i)
the Registration Statement, as of the Effective Date (as defined in the Underwriting Agreement),
contained an untrue statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading, (ii) the Pricing
Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or
omitted to state any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the public offering price of
and interest rate of the Notes and disclosures directly relating thereto that are included on the
cover page of the Prospectus are not included in the most recent Preliminary Prospectus, or (iii)
the Prospectus, as of its date and as of the Delivery Date, contained or contains an untrue
statement of a material fact or omitted or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
it being understood that such counsel expresses no statement or belief in this letter with respect
to (i) the financial statements and related schedules,
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including the notes and schedules thereto and the auditor’s report thereon, any other
financial, accounting or statistical data, included or incorporated or deemed incorporated by
reference in, or excluded from, the Registration Statement or the Prospectus or the Pricing
Disclosure Package, and (ii) representations and warranties and other statements of fact included
in the exhibits to the Registration Statement or to the Incorporated Documents.
In rendering such opinion, such counsel may (A) rely on certificates of officers and
representatives of the Partnership Entities and upon information obtained from public officials,
(B) assume that all documents submitted to him as originals are authentic, that all copies
submitted to him conform to the originals thereof, and that the signatures on all documents
examined by him are genuine, (C) state that his opinion is limited to federal laws, the Delaware LP
Act, the Delaware LLC Act, the DGCL and the laws of the State of Texas, and (D) state that such
counsel expresses no opinion with respect to: (i) any permits to own or operate any real or
personal property, (ii) the title of any of the Partnership Entities to any of their respective
real or personal property, other than with regard to the opinions set forth above regarding the
ownership of capital stock, partnership interests and membership interests, or with respect to the
accuracy or descriptions of real or personal property or (iii) state or local taxes or tax statutes
to which any of the limited partners of the Partnership or any of the Partnership Entities may be
subject.
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