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EXECUTION COPY
EL PASO ENERGY PARTNERS, L.P.
2,250,000 Common Units
Representing Limited Partner Interests
Underwriting Agreement
New York, New York
March 20, 2001
XXXXXXX XXXXX XXXXXX INC.
UBS WARBURG LLC
As Representatives of the several Underwriters
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
El Paso Energy Partners, L.P., a limited partnership organized under
the laws of Delaware (the "Partnership") of which El Paso Energy Partners
Company, a Delaware corporation (the "General Partner"), is the general partner,
proposes to issue and sell to the several underwriters named in Schedule I
hereto (the "Underwriters"), for whom you (the "Representatives") are acting as
representatives, 2,250,000 common units ("Firm Units") representing limited
partner interests in the Partnership ("Common Units") (said Firm Units to be
issued and sold by the Partnership being hereinafter called the "Underwritten
Securities"). The Partnership also proposes to grant to the Underwriters an
option to purchase up to 337,500 additional Common Units to cover
over-allotments (the "Option Securities"; the Option Securities, together with
the Underwritten Securities, being hereinafter called the "Securities"). To the
extent there are no additional Underwriters listed on Schedule I other than you,
the term Representatives as used herein shall mean you, as Underwriters, and the
terms Representatives and Underwriters shall mean either the singular or plural
as the context requires. 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 Execution Time with respect to the
Registration Statement and on or before the issue date of the Prospectus with
respect to the Prospectus, including any amendments and supplements thereto, as
the case may be; and 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 the filing of any document under the Exchange
Act after the Effective Date of the Registration Statement or the issue date of
the Prospectus, as the case may be, deemed to be incorporated therein by
reference. Certain terms used herein are defined in Section 17 hereof. Any
reference to the Registration Statement or the Prospectus followed by the
parenthetical phrase "(exclusive of any supplements thereto)" or any similar
parenthetical phrase shall be deemed to mean such document, exclusive of any
amendment or supplement which is filed after the Execution Time (with respect to
the Registration Statement) or after the issue date of the Prospectus (with
respect to the Prospectus).
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1. Representations and Warranties. Each of the Partnership and the
General Partner represents and warrants to, and agrees with, each Underwriter as
set forth below in this Section 1.
(a) The Partnership has prepared and filed with the Commission
a registration statement (file number 333-85987) on Form S-1, including
a related base prospectus, for registration under the Act of the
offering and sale of the Securities, and an Amendment No. 1 thereto on
Form S-3. At the time of the filing of such Amendment No. 1 and on the
Effective Date of such Registration Statement, the Partnership met the
requirements for use of Form S-3 under the Act. The Partnership may
have filed one or more additional amendments and supplements to the
Registration Statement, including a related prospectus supplement, each
of which has previously been furnished to you. The Partnership will
next file with the Commission a final prospectus supplement to the base
prospectus in the form included in such Registration Statement,
together with such base prospectus, in accordance with Rules 430A and
424(b). The Partnership has included in such Registration Statement, as
amended and supplemented at the Effective Date or the issue date of the
Prospectus, as applicable, all information (other than Rule 430A
Information) required by the Act and the rules thereunder to be
included in such Registration Statement. As filed, such final
prospectus supplement and base prospectus shall contain all Rule 430A
Information, together with all other such required information, and,
except to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes as the Partnership has advised
you, prior to the Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did, and
when the Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date (as defined herein) and on any date
on which Option Securities are purchased, if such date is not the
Closing Date (a "settlement date"), the Prospectus (as amended or
supplemented to such date) will, comply in all material respects with
the applicable requirements of the Act and the Exchange Act and the
respective rules thereunder; on the Effective Date and at the Execution
Time, the Registration Statement did not contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; and, on the date of any filing pursuant to Rule 424(b) and
on the Closing Date and any settlement date, the Prospectus will not
include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Partnership and the General Partner make no
representations or warranties as to the information contained in or
omitted from the Registration Statement, or the Prospectus in reliance
upon and in conformity with information furnished in writing to the
Partnership by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration
Statement or the Prospectus.
(c) The Partnership has been duly formed and is validly
existing as a limited partnership under the Delaware Revised Uniform
Limited Partnership Act (the "Delaware Act"), with full partnership
power and authority to own or lease, as the case may be, and to operate
its properties and conduct its business in each case as described in
the Registration Statement and the Prospectus, and has been qualified
or registered to do business as a foreign limited partnership and is in
good standing under the laws of each jurisdiction which requires such
qualification, other than any jurisdiction where the failure to be so
qualified would not, individually or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), earnings,
business or properties of the Partnership and its Subsidiaries, taken
as a whole, whether or not arising from transactions in the ordinary
course of business.
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(d) The General Partner has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with full corporate power and authority to own or lease,
as the case may be, and to operate its properties, to conduct its
business and to act as general partner of the Partnership, as described
in the Registration Statement and the Prospectus, and has been
qualified or registered to do business as a foreign corporation and is
in good standing under the laws of each jurisdiction which requires
such qualification, other than any jurisdiction where the failure to be
so qualified would not, individually or in the aggregate, have a
material adverse effect on the condition (financial or otherwise),
earnings, business or properties of the Partnership and its
Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, or subject the limited
partners of the Partnership to any material liability or disability.
(e) The General Partner is the sole general partner of the
Partnership with a 1.0% general partner interest in the Partnership;
such general partner interest is duly authorized and validly issued to
the General Partner in accordance with the Second Amended and Restated
Agreement of Limited Partnership of the Partnership dated as of August
31, 2000 (as amended, the "Partnership Agreement"), which Partnership
Agreement, at or before the Closing Date, has been duly authorized,
executed and delivered by the General Partner and is a valid and
legally binding agreement of the General Partner, enforceable against
the General Partner in accordance with its terms, subject to
Enforceability Exceptions; the General Partner owns such general
partner interest free and clear of any lien, adverse claim, security
interest or other encumbrance, other than Permitted Encumbrances.
(f) The General Partner, EPEC Deepwater Gathering Company
("EPEC"), Sabine River Investors I, L.L.C. ("Sabine I") and Sabine
River Investors II, L.L.C. ("Xxxxxx XX") own limited partner interests
in the Partnership represented by 8,953,764 Common Units and [___]
Series B Preference Units; all of such Common Units and Series B
Preference Units and the limited partner interests represented thereby
have been duly authorized and validly issued and are fully paid (to the
extent required by the Partnership Agreement) and nonassessable (except
as such nonassessability may be affected by matters described in the
Prospectus under the caption "Risk Factors-Risks Inherent in an
Investment in Our Limited Partner Interests. You may not have limited
liability in the circumstances described below and may be liable for
the return of distributions that cause our liabilities to exceed our
assets") (hereinafter referred to as "Risk Factors-Limited Liability");
and the General Partner and its affiliates own such limited partner
interests free and clear of any lien, adverse claim, security interest
or other encumbrance, other than Permitted Encumbrances.
(g) As of the Execution Time, the Partnership's authorized and
outstanding partnership interests are as set forth in the Prospectus;
the partnership interests of the Partnership and the Partnership
Agreement conform in all material respects to the descriptions thereof
contained in the Prospectus; all of the outstanding Common Units and
the limited partner interests represented thereby have been duly and
validly authorized and issued, are fully paid and nonassessable (except
as such nonassessability may be affected by matters described in the
Prospectus under the caption "Risk Factors-Limited Liability") and are
free of any preemptive or similar rights, except as otherwise set forth
in the Partnership Agreement; the Securities and the limited partner
interests represented thereby have been duly and validly authorized
and, when issued, delivered and paid for by the Underwriters pursuant
to this Agreement, will be fully paid and nonassessable (except as such
nonassessability may be affected by matters described in the Prospectus
under the caption "Risk Factors-Limited Liability") and free of any
preemptive rights or similar rights, except as set forth in the
Partnership Agreement, and the Underwriters will acquire the Securities
free and clear of any lien, adverse claim, security interest, equity or
other encumbrance; and,
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except as set forth in the Prospectus, no options, warrants or other
rights to purchase, agreements or other obligations to issue, or rights
to convert any obligations into or exchange any securities for,
partnership interests or ownership interests in the Partnership are
outstanding, other than Existing Commitments.
(h) All of the issued and outstanding shares of capital stock
of the General Partner have been duly and validly authorized and issued
and are fully paid and nonassessable, and are owned by DeepTech
International Inc. ("DeepTech "), free and clear of any lien, adverse
claim, security interest, equity or other encumbrance, except for
Permitted Encumbrances. DeepTech is an indirect, wholly-owned
subsidiary of El Paso Energy Corporation.
(i) As of the Execution Time, the entities listed on Annex A
are the only Subsidiaries of the Partnership. All of the outstanding
shares of capital stock, limited partner interests, general partner
interests or limited liability company interests of each of the
Partnership's Subsidiaries have been duly and validly authorized and
issued and are fully paid and (except (i) as required to the contrary
by the Delaware Limited Liability Company Act and the Delaware Revised
Uniform Limited Partnership Act and (ii) with respect to any general
partner interests) nonassessable, and, except as otherwise set forth in
the Prospectus (exclusive of any supplement) are owned by the
Partnership, directly or indirectly through one or more wholly-owned
subsidiaries, or the General Partner, free and clear of any lien,
adverse claim, security interest or other encumbrance, other than
Permitted Encumbrances.
(j) Each of the Partnership's Subsidiaries has been duly
formed or incorporated and is validly existing as a corporation,
limited partnership, general partnership or limited liability company
in good standing (other than Viosca Xxxxx Gathering Company) under the
laws of the jurisdiction in which it is chartered or organized, with
full entity power and authority to own or lease, as the case may be,
and to operate its properties and conduct its business as described in
the Prospectus, and is duly qualified to do business as a corporation,
limited partnership, general partnership or limited liability company
and is in good standing under the laws of each jurisdiction listed on
Annex B, which are the only jurisdictions which require such
qualification, other than any jurisdiction where the failure to be so
qualified would not, individually or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), earnings,
business or properties of the Partnership and its Subsidiaries, taken
as a whole, whether or not arising from transactions in the ordinary
course of business.
(k) There is no material franchise, contract or other document
of a character required to be described in the Registration Statement
or Prospectus, or to be filed as an exhibit thereto, which is not
described or filed as required; the statements in the Prospectus under
the headings "Description of Limited Partner Interests," "Certain Other
Partnership Agreement Provisions," and "Income Tax Considerations,"
insofar as such statements summarize legal matters, agreements,
documents or proceedings discussed therein, are accurate and fair
summaries of such legal matters, agreements, documents or proceedings.
(l) This Agreement has been duly authorized, executed and
delivered by the Partnership and the General Partner and constitutes a
valid and binding obligation of the Partnership and the General Partner
enforceable against the Partnership and the General Partner in
accordance with its terms, subject to Enforceability Exceptions.
(m) Each of the Partnership and the General Partner is not
and, after giving effect to the offering and sale of the Securities and
the application of the proceeds thereof as described in the Prospectus,
will not be (i) an "investment company" as defined in the Investment
Company Act
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of 1940, as amended or (ii) a "holding company" within the meaning of,
or subject to regulation under, the Public Utility Holding Company Act
of 1935, as amended, and the rules and regulations promulgated by the
Commission thereunder.
(n) No consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in connection
with the transactions contemplated herein, except such as have been
obtained under the Act and such as may be required by the New York
Stock Exchange or under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated herein and in the Prospectus.
(o) Neither the issue and sale of the Securities nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof will conflict with, or result in a
breach or violation or imposition of any lien, charge or encumbrance
upon any property or assets of the Partnership or any of its
Subsidiaries or the General Partner pursuant to, (i) the partnership
agreement, limited liability company agreement, charter, by-laws or
similar organizational document of the Partnership or any of its
Subsidiaries or the General Partner, as applicable, (ii) the terms of
any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which the Partnership or any of its
Subsidiaries or the General Partner is a party or bound or to which its
or their property is subject, or (iii) to the knowledge of the General
Partner and the Partnership, any statute, law, rule, regulation,
judgment, order or decree applicable to the Partnership or any of its
Subsidiaries or the General Partner of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Partnership or any of its Subsidiaries or
the General Partner or any of its or their properties, except, in the
case of (ii) or (iii), where such conflict, breach, violation or
imposition would not, individually or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), earnings,
business or properties of the Partnership and its Subsidiaries, taken
as a whole, whether or not arising from transactions in the ordinary
course of business.
(p) No holders of securities of the Partnership have rights to
the registration of such securities under the Registration Statement
except for such rights (i) of the General Partner and its affiliates in
Section 6.14 of the Partnership Agreement; (ii) of EPEC and its
successors pursuant to the Registration Rights Agreement between EPEC
and the Partnership which was executed in connection with the
acquisition by the Partnership of an additional interest in Viosca
Xxxxx Gathering Company; and (iii) of Crystal Gas Storage, Inc.
pursuant to the Registration Rights Agreement between Crystal Gas
Storage, Inc and the Partnership which was executed in connection with
the acquisition by the Partnership of the Crystal storage facilities,
(a) the General Partner, EPEC, Sabine I and Xxxxxx XX have agreed not
to exercise their rights with respect to such securities in connection
with the offering of Securities for 90 days hereafter pursuant to
letter agreements of even date herewith, and (b) the partnership
interests held by the General Partner, EPEC, Sabine I and Xxxxxx XX are
subject to Permitted Encumbrances, the holders of which have not waived
such rights.
(q) The consolidated historical financial statements and
schedules of the Partnership and its consolidated subsidiaries included
in the Prospectus and the Registration Statement present fairly in all
material respects the financial condition, results of operations and
changes in financial position of the Partnership and its Subsidiaries
as of the dates and for the periods indicated, comply as to form with
the applicable accounting requirements of the Act and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved (except
as otherwise noted therein). The selected financial data
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set forth under the caption "Selected Historical Consolidated Financial
Data" in the Prospectus and Registration Statement fairly present, on
the basis stated in the Prospectus and the Registration Statement, the
information included therein.
(r) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Partnership or any of its Subsidiaries or the General Partner or its or
their property is pending or, to the knowledge of the Partnership or
the General Partner, threatened that (i) would reasonably be expected
to have a material adverse effect on the performance of this Agreement
or the consummation of any of the transactions contemplated hereby or
(ii) would reasonably be expected to have a material adverse effect on
the condition (financial or otherwise), earnings, business or
properties of the Partnership and its Subsidiaries, 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 Registration
Statement or the Prospectus (exclusive of any supplement thereto).
(s) Each of the Partnership and its Subsidiaries and the
General Partner owns or leases all such properties as are necessary to
the conduct of its operations as presently conducted, except where the
lack of such ownership or leasing would not, individually or in the
aggregate, have a material adverse effect on the condition (financial
or otherwise), earnings, business or properties of the Partnership and
its Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business.
(t) None of the Partnership, any of its Subsidiaries or the
General Partner is in violation or default of (i) any provision of its
partnership agreement, limited liability company agreement, charter,
by-laws or similar organizational document of the Partnership or any of
its Subsidiaries or the General Partner, as applicable, (ii) the terms
of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or, to the knowledge of the General Partner
and the Partnership, any other agreement, obligation, condition,
covenant or instrument to which it is a party or bound or to which its
property is subject, or (iii) to knowledge of the General Partner and
the Partnership, any statute, law, rule, regulation, judgment, order or
decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction
over the Partnership or such Subsidiary or the General Partner or any
of its properties, as applicable, except, in the case of (ii) and
(iii), where such violation or default would not, individually or in
the aggregate, have a material adverse effect on the condition
(financial or otherwise), earnings, business or properties of the
Partnership and its Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business.
(u) To the knowledge of the General Partner and the
Partnership: PricewaterhouseCoopers, LLP, who have certified certain
financial statements of the Partnership and Neptune Pipeline Company,
L.L.C., and delivered their report with respect to the audited
consolidated financial statements and schedules included in or
incorporated by reference into the Prospectus, are independent public
accountants with respect to the Partnership and Neptune Pipeline
Company, L.L.C. within the meaning of the Act and the applicable
published rules and regulations thereunder; Deloitte & Touche LLP, who
have certified certain financial statements of Western Gulf Holdings,
L.L.C. and delivered their report with respect to the audited
consolidated financial statements and schedules included in or
incorporated by reference into the Prospectus, are independent public
accountants with respect to Western Gulf Holdings, L.L.C. within the
meaning of the Act and the applicable published rules and regulations
thereunder; Xxxxxx Xxxxxxxx LLP, who have certified certain financial
statements of Poseidon Oil Pipeline Company, L.L.C. and delivered their
report with respect to the audited financial statements and schedules
included in or incorporated by reference into the Prospectus, are
independent public
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accountants with respect to Poseidon Oil Pipeline Company, L.L.C.
within the meaning of the Act and the applicable published rules and
regulations thereunder; and KPMG LLP, who have certified certain
financial statements of First Reserve Gas Company and subsidiaries,
Petal Gas Storage Company, and Crystal Properties & Trading Company and
delivered their report with respect to the audited combined financial
statements and schedules included in or incorporated by reference into
the Prospectus, are independent public accountants with respect to
First Reserve Gas Company and subsidiaries, Petal Gas Storage Company,
and Crystal Properties & Trading Company within the meaning of the Act
and the applicable published rules and regulations thereunder.
(v) There are no transfer taxes or other similar fees or
charges under Federal law or the laws of any state, or any political
subdivision thereof, required to be paid in connection with the
execution and delivery of this Agreement or the issuance or sale of the
Securities.
(w) Each of the Partnership, its Subsidiaries and the General
Partner has filed all foreign, federal, state and local tax returns
that are required to be filed or has requested extensions thereof
(except in any case in which the failure so to file would not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), earnings, business or properties of
the Partnership and its Subsidiaries, 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 (exclusive of any
supplement thereto) and has paid all taxes required to be paid by it
and any other assessment, fine or penalty levied against it, to the
extent that any of the foregoing is due and payable, except for any
such assessment, fine or penalty that is currently being contested in
good faith or as would not, individually or in the aggregate, have a
material adverse effect on the condition (financial or otherwise),
earnings, business or properties of the Partnership and its
Subsidiaries, 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 (exclusive of any supplement
thereto).
(x) No labor problem or dispute with the employees of the
Partnership or any of its Subsidiaries or the General Partner exists or
is threatened or imminent, and neither the Partnership nor the General
Partner is aware of any existing or imminent labor disturbance by the
employees of any of its or its Subsidiaries' principal suppliers,
contractors or customers, that would, individually or in the aggregate,
have a material adverse effect on the condition (financial or
otherwise), earnings, business or properties of the Partnership and its
Subsidiaries, 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 (exclusive of any supplement
thereto).
(y) [Intentionally omitted]
(z) Except as contemplated in the documents under which
Permitted Encumbrances arise, no Subsidiary of the Partnership is
currently prohibited, directly or indirectly, from paying any dividends
to the Partnership, from making any other distribution on such
Subsidiary's capital stock, limited liability company interests or
other equity interests, from repaying to the Partnership any loans or
advances to such Subsidiary from the Partnership or from transferring
any of such Subsidiary's property or assets to the Partnership or any
other Subsidiary of the Partnership, except as described in or
contemplated by the Prospectus (exclusive of any supplement thereto).
(aa) Each of the Partnership, its Subsidiaries and the General
Partner (i) possesses all licenses, certificates, permits and other
authorizations issued by the appropriate federal, state or
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foreign regulatory authorities necessary to conduct their respective
businesses, and (ii) has not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit which, in the case of (i) and (ii) singly or in
the aggregate, if the subject of an unfavorable decision, ruling or
finding, or otherwise, would have a material adverse effect on the
condition (financial or otherwise), earnings, business or properties of
the Partnership and its Subsidiaries, 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 (exclusive of any
supplement thereto).
(bb) Except as otherwise set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto), such as are not
material to the condition (financial or otherwise), earnings, business
or properties of the Partnership and its Subsidiaries, or as do not
materially interfere with ownership or benefits of ownership of such
properties, taken as a whole, and except for Permitted Encumbrances,
the Partnership and its Subsidiaries have good and defensible title to
their interests in their oil and gas properties.
(cc) The information which was supplied by the Partnership to
Netherland, Xxxxxx & Associates, Inc. ("Netherland & Xxxxxx"),
independent petroleum engineers, for purposes of evaluating the oil and
gas reserves of the Partnership and its subsidiaries as of December 31,
1999, including, without limitation, production, costs of operation and
development, current prices for production, agreements relating to
current and future operations and sales of production, was, to the
knowledge of the General Partner and the Partnership, true and correct
in all material respects on the dates such estimates were made and such
information was supplied and was prepared in accordance with customary
industry practices, as indicated in the letter of Netherland & Xxxxxx
dated February 21, 2000 (the "Netherland & Xxxxxx Letter"); to the
General Partner's and the Partnership's knowledge, Netherland & Xxxxxx
was, as of the date of the Netherland & Xxxxxx Letter, and is, as of
the date hereof, independent with respect to the Partnership and its
Subsidiaries; other than normal production of the reserves and
intervening spot market product price fluctuations, the Partnership is
not aware of any facts or circumstances that would result in a
materially adverse change in the reserves, or the present value of
future net cash flows therefrom, as described in the Prospectus and as
reflected in the Netherland & Xxxxxx Letter and the reserve report
referenced therein; estimates of such reserves and present values as
described in the Prospectus and reflected in the Netherland & Xxxxxx
Letter and the reserve report referenced therein comply in all material
respects to the applicable requirements of Regulation S-X and Industry
Guide 2 under the Act.
(dd) Each of the Partnership and its Subsidiaries 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 authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(ee) Each of the Partnership and the General Partner and their
respective affiliates has not taken, directly or indirectly, any action
designed to or which has constituted or which would reasonably be
expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the
Partnership to facilitate the sale or resale of the Securities.
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(ff) To the knowledge of the General Partner and the
Partnership, the Partnership, its Subsidiaries and the General Partner
are (i) 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 hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental
Laws"), (ii) have received and are in compliance with all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii)
have not received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants, except where
such non- compliance with Environmental Laws, failure to receive
required permits, licenses or other approvals, or liability would not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), earnings, business or properties of
the Partnership and its Subsidiaries, 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 (exclusive of any
supplement thereto). Except as set forth in the Prospectus (exclusive
of any supplement thereto), to the knowledge of the General Partner and
the Partnership, none of the Partnership, any of its Subsidiaries or
the General Partner have been named as a "potentially responsible
party" under the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended.
(gg) In the ordinary course of its business, the Partnership
periodically reviews the effect of Environmental Laws on the business,
operations and properties of the Partnership and its Subsidiaries, in
the course of which it identifies 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). On the basis of such review, the
Partnership has reasonably concluded that such associated costs and
liabilities would not, singly or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), earnings,
business or properties of the Partnership and its Subsidiaries, 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 (exclusive of any supplement thereto).
(hh) Each of the Partnership, its Subsidiaries and the General
Partner has fulfilled its obligations, if any, under the minimum
funding standards of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Employee
Retirement Income Security Act of 1974 ("ERISA") and the regulations
and published interpretations thereunder with respect to each "plan"
(as defined in Section 3(3) of ERISA and such regulations and published
interpretations) in which employees of the Partnership, its
Subsidiaries and the General Partner are eligible to participate and
each such plan is in compliance in all material respects with the
presently applicable provisions of ERISA and such regulations and
published interpretations. The Partnership, its Subsidiaries and the
General Partner have not incurred any unpaid liability to the Pension
Benefit Guaranty Corporation (other than for the payment of premiums in
the ordinary course) or to any such plan under Title IV of ERISA.
(ii) [Intentionally deleted.]
(jj) Each of the Partnership, its Subsidiaries and the General
Partner has such consents, easements, rights-of-way or licenses from
any person ("rights-of-way") as are necessary to conduct its business
in the manner described in the Prospectus, subject to such
qualifications as may be set forth in the Prospectus, except for such
rights-of-way which, if not obtained, would, singly or in the
aggregate, be expected not to have a have a material adverse effect on
the condition (financial or otherwise), earnings, business or
properties of the Partnership and its
10
Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business; each of the
Partnership, its Subsidiaries and the General Partner has, or at the
Closing Date will have, fulfilled and performed all its material
obligations with respect to such rights-of-way and no event has
occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or would result in any impairment of
the rights of the holder of any such rights-of- way, except for such
revocations, terminations and impairments that would not have a
material adverse effect on the condition (financial or otherwise),
earnings, business or properties of the Partnership and its
Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, subject in each case
to such qualifications as may be set forth in the Prospectus; and
except as set forth in the Prospectus, none of such rights-of-way
contains any restriction that is materially burdensome to the
Partnership and its Subsidiaries considered as a whole.
(kk) Except as disclosed in the Registration Statement and the
Prospectus, each of the Partnership and the General Partner (i) does
not have any material lending relationship with any bank or lending
affiliate of the Representatives and (ii) does not intend to use any of
the proceeds from the sale of the Securities hereunder to repay any
outstanding debt owed to any affiliate of the Representatives.
(ll) Since the respective dates as of which information is
given in the Prospectus (exclusive of any supplement thereto) and
except as set forth in or contemplated in the Prospectus (exclusive of
any supplement thereto), as of the Execution Time, (i) there has been
no material adverse effect on the condition (financial or otherwise),
earnings, business or properties of the Partnership and its
Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, (ii) there has been no
material adverse effect on the capital stock or in the long-term debt
of the Partnership or any of its Subsidiaries or the General Partner
and (iii) neither the Partnership nor any of its Subsidiaries nor the
General Partner has incurred any material liability or obligation,
direct or contingent, except for liability for indebtedness incurred in
the ordinary course of business.
Any certificate signed by any officer of the General Partner
on behalf of the Partnership or by the General Partner on its own
behalf and delivered to the Representatives or counsel for the
Underwriters in connection with the offering of the Securities shall be
deemed a representation and warranty by the Partnership or the General
Partner, as applicable, as to matters covered thereby, to each
Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the
Partnership agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Partnership, at a purchase price
of $29.68 per Common Unit, the amount of the Underwritten Securities set forth
opposite such Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Partnership
hereby grants an option to the several Underwriters to purchase,
severally and not jointly, up to 337,500 Option Securities at the same
purchase price per Common Unit as the Underwriters shall pay for the
Underwritten Securities. Said option may be exercised only to cover
over-allotments in the sale of the Underwritten Securities by the
Underwriters. Said option may be exercised in whole or in part at any
time (but not more than once) on or before the 30th day after the date
of the Prospectus upon written or telegraphic notice by the
Representatives to the Partnership setting forth the number of the
Option Securities as to which the several Underwriters are exercising
the option and the settlement date. The number of
11
Option Securities to be purchased by each Underwriter shall be the same
percentage of the total number of Option Securities to be purchased by
the several Underwriters as such Underwriter is purchasing of the
Underwritten Securities, subject to such adjustments as you in your
absolute discretion shall make to eliminate any fractional Common
Units.
3. Delivery and Payment. Delivery of and payment for the Underwritten
Securities and the Option Securities (if the option provided for in Section 2(b)
hereof shall have been exercised on or before the third Business Day prior to
the Closing Date) shall be made at 10:00 AM, New York City time, on March 23,
2001, or at such time on such later date not more than three Business Days after
the foregoing date as the Representatives shall designate, which date and time
may be postponed by agreement between the Representatives and the Partnership or
as provided in Section 9 hereof (such date and time of delivery and payment for
the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Partnership by wire transfer payable in same-day funds to an account specified
by the Partnership. Delivery of the Underwritten Securities and the Option
Securities shall be made through the facilities of The Depository Trust Company
unless the Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Partnership will deliver
the Option Securities (at the expense of the Partnership) to the Representatives
through the facilities of the Depository Trust Company on the date specified by
the Representatives (which shall be within three Business Days after exercise of
said option) for the respective accounts of the several Underwriters, against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Partnership by wire transfer payable
in same-day funds to an account specified by the Partnership. If settlement for
the Option Securities occurs after the Closing Date, the Partnership will
deliver to the Representatives on the settlement date for the Option Securities,
and the obligation of the Underwriters to purchase the Option Securities shall
be conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
5. Agreements. Each of the Partnership and the General Partner agrees
with the several Underwriters that:
(a) Each of the Partnership and the General Partner will use
its best efforts to cause the Registration Statement, if not effective
at the Execution Time, and any amendment thereof, to become effective.
Prior to the termination of the offering of the Securities, the
Partnership will not file any amendment of the Registration Statement
or supplement to the Prospectus or any Rule 462(b) Registration
Statement (other than (i) a Current Report on Form 8-K containing only
this Agreement and (ii) a prospectus supplement containing Rule 430A
Information) unless the Partnership has furnished you a copy for your
review prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object; provided that your consent
shall not be unreasonably withheld or delayed. Subject to the foregoing
sentence, if the Registration Statement has become or becomes effective
pursuant to Rule 430A, or filing of the Prospectus is otherwise
required under Rule 424(b), the Partnership will cause the Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to
the Representatives of such timely filing. The Partnership will
promptly advise the
12
Representatives (1) when the Registration Statement, if not effective
at the Execution Time, shall have become effective, (2) when the
Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) or when any Rule
462(b) Registration Statement shall have been filed with the
Commission, (3) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (4) of any request by the Commission or its
staff for any amendment of the Registration Statement or any Rule
462(b) Registration Statement, or for any supplement to the Prospectus,
or for any additional information, (5) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (6) of the receipt by the Partnership
of any notification with respect to the suspension of the qualification
of the Securities for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. Each of the Partnership
and the General Partner will use its best efforts to prevent the
issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then supplemented would include
any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement or supplement the
Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Partnership promptly will (1) notify the
Representatives of such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 5, an amendment or supplement that will correct such statement
or omission or effect such compliance and (3) supply any supplemented
Prospectus to you in such quantities as you may reasonably request.
(c) As soon as practicable, the Partnership will make
generally available to its security holders and to the Representatives
a consolidated earnings statement or statements, which need not be
audited, of the Partnership and its Subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Partnership will furnish to the Representatives and
counsel for the Underwriters, without charge, signed copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, as many copies of the Prospectus and
any supplement thereto as the Representatives may reasonably request.
The Partnership will pay the expenses of printing or other production
of all documents relating to the offering.
(e) The Partnership and the General Partner will arrange, if
necessary, for the qualification of the Securities for sale under the
laws of such jurisdictions as the Representatives may designate, will
maintain such qualifications in effect so long as required for the
distribution of the Securities and will pay any fee of the National
Association of Securities Dealers, Inc., in connection with its review
of the offering; provided that in no event shall the Partnership be
obligated to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action that would subject it to service
of process in suits, other than those arising out of the offering or
sale of the Securities, in any jurisdiction where it is not now so
subject.
(f) Each of the Partnership, the General Partner, EPEC, Sabine
I and Xxxxxx XX will not, without the prior written consent of Xxxxxxx
Xxxxx Barney Inc., offer, sell,
13
contract to sell, pledge, or otherwise dispose of (or enter into any
transaction which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the
Partnership, the General Partner, EPEC, Sabine I, Xxxxxx XX or any of
their subsidiaries or controlled affiliates, or any person in privity
(with respect to the Common Units) with the Partnership, the General
Partner, EPEC, Sabine I, Xxxxxx XX or any of their respective
affiliates, of), directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the
Commission in respect of, or establishment or increase of a put
equivalent position or liquidation or decrease of a call equivalent
position within the meaning of Section 16 of the Exchange Act with
respect to, any other Common Units or any securities convertible into,
or exercisable, or exchangeable for, Common Units; or publicly announce
an intention to effect any such transaction, for a period of 90 days
after the Execution Time; provided, however, that the Partnership may
issue and sell Common Units pursuant to any employment agreement or
other employment arrangement, employee option plan, ownership plan or
dividend reinvestment plan of the Partnership in effect at the
Execution Time and the Partnership may issue Common Units issuable upon
the conversion of securities or the exercise of warrants outstanding at
the Execution Time; and provided, further, that the foregoing shall not
prohibit (i) the Partnership or EPEC from transferring their Common
Units to Sabine I or Xxxxxx XX, or (ii) Sabine I or Xxxxxx XX from
pledging any Common Units now or hereafter owned by them, or a parent
of such entities from pledging its interest in such entities, to secure
certain loans to such entities in connection with any financing
arrangements to which such entities are parties, as amended or
otherwise modified from time to time, or the disposition of any such
pledged Common Units, or any interest in such entities, in connection
with the exercise by the lender of any remedies as a secured party.
(g) None of the Partnership, the General Partner or any of
their respective affiliates will take, directly or indirectly, any
action designed to or which constitutes or which would reasonably be
expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the
Partnership to facilitate the sale or resale of the Securities.
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Underwritten Securities and the Option
Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Partnership and the General
Partner contained herein as of the Execution Time, the Closing Date and any
settlement date pursuant to Section 3 hereof, to the accuracy of the statements
of the Partnership and the General Partner made in any certificates pursuant to
the provisions hereof, to the performance by each of the Partnership and the
General of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 PM New York City time on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 PM New York City time on such date or (ii)
9:30 AM on the Business Day following the day on which the public
offering price was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of the Prospectus,
or any supplement thereto, is required pursuant to Rule 424(b), the
Prospectus, and any such supplement, will be filed in the manner and
within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened.
14
(b) The Partnership shall have requested and caused Akin,
Gump, Strauss, Xxxxx & Xxxx, L.L.P., counsel for the Partnership and
the General Partner, to have furnished to the Representatives their
opinion, dated the Closing Date and addressed to the Representatives,
to the effect that:
(i) each of the Partnership and its Subsidiaries has
been duly formed or incorporated and is validly existing as a
partnership, corporation or limited liability company and in
good standing (other than Viosca Xxxxx Gathering Company)
under the laws of the jurisdiction in which it is formed,
chartered or organized, with full partnership, corporate or
limited liability company power and authority to own or lease,
as the case may be, and to operate its properties and conduct
its business as described in the Registration Statement and
the Prospectus;
(ii) each of the Partnership and its Subsidiaries
(other than Viosca Xxxxx Gathering Company) is duly qualified
or registered to do business as a foreign limited partnership,
corporation or limited liability company, as the case may be,
and, based solely on the various certificates from public
officials of Texas, Louisiana and Alabama (the "Good Standing
Certificates"), is in good standing as a foreign limited
partnership, corporation or limited liability company
authorized to do business in the respective jurisdictions
listed on Annex B, which, to counsel's knowledge, are the only
jurisdictions (other than offshore in the Gulf of Mexico) in
which the businesses of the Partnership and its Subsidiaries
or their respective ownership or leasing of property requires
such qualification, except where the failure to be so
qualified would not, individually or in the aggregate, be
likely in the reasonable judgment of such counsel to have a
material adverse effect on the condition (financial or
otherwise), earnings, business or properties of the
Partnership and its Subsidiaries, taken as a whole, whether or
not arising from transactions in the ordinary course of
business;
(iii) the General Partner has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with full corporate
power and authority to own or lease, as the case may be, and
to operate its properties, to conduct its business and to act
as general partner of the Partnership, as described in the
Registration Statement and the Prospectus, and has been duly
qualified or registered as a foreign corporation for the
transaction of business and is in good standing under the laws
of each jurisdiction listed opposite its name on Annex B,
which, to the knowledge of such counsel, are the only
jurisdictions (other than offshore in the Gulf of Mexico) in
which the businesses of the General Partner or its ownership
or leasing of property requires such qualification, other than
any jurisdiction where the failure to be so qualified would
not, individually or in the aggregate, be likely to have, in
the reasonable judgment of such counsel, a material adverse
effect on the condition (financial or otherwise), earnings,
business or properties of the Partnership and its
Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, or would be
reasonably expected, in the reasonable judgment of such
counsel, to subject the limited partners of the Partnership to
any material liability or disability;
(iv) the General Partner is the sole general partner
of the Partnership and owns (of record) a 1.0% general partner
interest in the Partnership; such general partner interest is
duly authorized and validly issued to the General Partner in
accordance with the Partnership Agreement, which Partnership
Agreement, at or before the Closing Date, has been duly
authorized, executed and delivered by the General Partner and
is a valid
15
and legally binding agreement of the General Partner,
enforceable against the General Partner in accordance with its
terms, subject to Enforceability Exceptions; other than
Permitted Encumbrances, the General Partner owns such general
partner interest free and clear of any lien, adverse claim,
security interest or other encumbrance of record in respect of
which a financing statement under the Uniform Commercial Code
of the State of Texas naming the General Partner as debtor is
on file in the office of the Secretary of State of the State
of Texas;
(v) the General Partner, EPEC, Sabine I and Xxxxxx XX
own (of record) limited partner interests in the Partnership
represented by 8,953,764 Common Units; all of such Common
Units and the limited partner interests represented thereby
have been duly authorized and validly issued and are fully
paid (to the extent required by the Partnership Agreement) and
nonassessable (except as such nonassessability may be affected
by matters described in the Prospectus under the caption "Risk
Factors-Limited Liability"); other than Permitted
Encumbrances, the General Partner, EPEC, Sabine I and Xxxxxx
XX own such limited partner interests free and clear of any
lien, adverse claim, security interest or other encumbrance of
record in respect of which a financing statement under the
Uniform Commercial Code of the State of Texas naming the
General Partner, EPEC, Sabine I or Xxxxxx XX as debtor is on
file in the office of the Secretary of State of the State of
Texas;
(vi) all of the issued and outstanding shares of
capital stock of the General Partner have been duly and
validly authorized and issued and are fully paid and
nonassessable, and other than Permitted Encumbrances, are
owned by DeepTech free and clear of any lien, adverse claim,
security interest, equity or other encumbrance of record in
respect of which a financing statement under the Uniform
Commercial Code of the State of Texas naming DeepTech as
debtor is on file in the office of the Secretary of State of
the State of Texas; DeepTech is an indirect, wholly- owned
subsidiary of El Paso Corporation;
(vii) all the outstanding shares of capital stock,
limited liability company interests or other equity interests
of each Subsidiary have been duly and validly authorized and
issued and are (except with respect to partnership interests)
fully paid and (except (i) as provided to the contrary by the
Delaware Limited Liability Company Act or (ii) with respect to
partnership interests) nonassessable, and, except as otherwise
set forth in the Prospectus (exclusive of any supplement) are
owned by the Partnership directly or indirectly through one or
more Subsidiaries or the General Partner, other than Permitted
Encumbrances, free and clear of any security interest, claim,
lien or other encumbrance of record in respect of which a
financing statement under the Uniform Commercial Code of the
State of Texas naming the Partnership or the General Partner
as debtor is on file in the office of the Secretary of State
of the State of Texas;
(viii) the Partnership's authorized and outstanding
partnership interests are, to the knowledge of such counsel,
as set forth in the Prospectus; the partnership interests of
the Partnership and the Partnership Agreement conform in all
material respects to the descriptions thereof contained in the
Prospectus; all of the outstanding Common Units and the
limited partner interests represented thereby have been duly
and validly authorized and issued, are fully paid and
nonassessable (except as such nonassessability may be affected
by matters described in the Prospectus under the caption "Risk
Factors-Limited Liability") and are free of any preemptive or
similar rights, except as set forth in the Partnership
Agreement; the Securities and the limited partner interests
represented
16
thereby have been duly and validly authorized and, when
issued, delivered and paid for by the Underwriters pursuant to
this Agreement, will be fully paid and nonassessable (except
as such nonassessability may be affected by matters described
in the Prospectus under the caption "Risk Factors-Limited
Liability") and free of any preemptive rights or similar
rights, except as set forth in the Partnership Agreement, and
the Underwriters will acquire the Securities free and clear of
any lien, adverse claim, security interest or other
encumbrance; and, except as set forth in the Prospectus, no
options, warrants or other rights to purchase, agreements or
other obligations to issue, or rights to convert any
obligations into or exchange any securities for, partnership
interests or ownership interests in the Partnership are
outstanding, other than Existing Commitments.
(ix) to the knowledge of such counsel: (a) there is
no pending or threatened action, suit or proceeding by or
before any court or governmental agency, authority or body or
any arbitrator involving the Partnership or any of its
Subsidiaries or the General Partner or its or their property
of a character required to be disclosed in the Prospectus
which is not adequately disclosed in the Prospectus, except
those that (i) would not be likely to have, in the reasonable
judgment of such counsel, a material adverse effect on the
performance of this Agreement or the consummation of any of
the transactions contemplated hereby or (ii) would not be
likely to have, in the reasonable judgment of such counsel, a
material adverse effect on the condition (financial or
otherwise), earnings, business or properties of the
Partnership and its Subsidiaries, 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 (exclusive of any supplement thereto); (b) there is
no franchise, contract or other document of a character
required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit thereto, which is not
described or filed as required; and (c) the statements
included or incorporated by reference in the Prospectus under
the headings "Description of Limited Partner Interests",
"Certain Other Partnership Agreement Provisions", and "Income
Tax Considerations", insofar as such statements summarize
legal matters, agreements, documents or proceedings discussed
therein, are accurate and fair summaries of such legal
matters, agreements, documents or proceedings.
(x) the Registration Statement has become effective
under the Act; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b);
to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued,
no proceedings for that purpose have been instituted or
threatened and the Registration Statement and the Prospectus
(other than the financial statements and other financial
information contained therein, as to which such counsel need
express no opinion) comply as to form in all material respects
with the applicable requirements of the Act and the Exchange
Act and the respective rules thereunder;
(xi) this Agreement has been duly authorized,
executed and delivered by each of the Partnership and the
General Partner, and constitutes a valid and binding
obligation of the Partnership and the General Partner
enforceable against the Partnership and the General Partner in
accordance with its terms, subject to Enforceability
Exceptions;
(xii) each of the Partnership and the General Partner
is not and, after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof
1
17
as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940, as
amended;
(xiii) to the knowledge of such counsel, no consent,
approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the
transactions contemplated herein, except such as have been
obtained under the Act and such as may be required by the New
York Stock Exchange or under the blue sky laws of any
jurisdiction in connection with the purchase and distribution
of the Securities by the Underwriters in the manner
contemplated in this Agreement and in the Prospectus and such
other approvals as have been obtained;
(xiv) none of (a) the issue and sale of the
Securities, (b) the consummation of any other of the
transactions herein contemplated and (c) the fulfillment of
the terms hereof will conflict with, or result in a breach or
violation of or imposition of any lien, charge or encumbrance
upon any property or assets of the Partnership or its
Subsidiaries or the General Partner pursuant to, (i) the
partnership agreement, limited liability company agreement,
charter, by-laws or similar organizational document of the
Partnership or any of its Subsidiaries or the General Partner,
as applicable, (ii) the terms of any Material Agreement, or
(iii) to such counsel's knowledge, any statute, law, rule,
regulation, judgment, order or decree applicable to the
Partnership or any of its Subsidiaries or the General Partner
of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having
jurisdiction over the Partnership or any of its Subsidiaries
or the General Partner or any of its or their properties,
except, in the case of (ii) or (iii), where such conflict,
breach, violation or imposition would not, individually or in
the aggregate, be likely to have, in the reasonable judgment
of such counsel, a material adverse effect on the condition
(financial or otherwise), earnings, business or properties of
the Partnership and its Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary
course of business; and
(xv) to the knowledge of such counsel, no holders of
securities of the Partnership have rights to the registration
of Common Units under the Registration Statement except for
the rights (i) of the General Partner and its affiliates and
successors in Section 6.14 of the Partnership Agreement, (ii)
of EPEC and its successors pursuant to the Registration Rights
Agreement between EPEC and the Partnership which was executed
in connection with the acquisition by the Partnership of an
additional interest in Viosca Xxxxx Gathering Company and
(iii) of Crystal Gas Storage, Inc. pursuant to the
Registration Rights Agreement between Crystal Gas Storage, Inc
and the Partnership which was executed in connection with the
acquisition by the Partnership of the Crystal storage
facilities; provided, however, that with respect to (i) and
(ii) above, (a) the General Partner, EPEC, Sabine I and Xxxxxx
XX have agreed not to exercise their rights with respect to
such securities in connection with the offering of Securities
for 90 days hereafter pursuant to letter agreements of even
date herewith, and (b) the Common Units held by the General
Partner, EPEC, Sabine I and Xxxxxx XX are subject to Permitted
Encumbrances, the holders of which have not waived such
rights.
Such counsel shall also state that although such counsel has not
undertaken, except as otherwise indicated in their opinion, to
determine independently, and does not assume any responsibility for,
the accuracy or completeness of the statements in the Registration
Statement and the Prospectus, such counsel has participated in the
preparation of the Registration Statement and the Prospectus, including
review and discussion of the contents thereof, and nothing has come to
the attention of such counsel that has caused them to believe: (i) that
the Registration Statement, at
18
the Effective Date or Execution Time, contained any 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) that the Prospectus, as of its date and as of the
Closing Date, 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, in light of the circumstances
under which they were made, not misleading, or (iii) that any amendment
or supplement to the Prospectus, as of its respective date, and as of
the Closing Date, contained any untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; (it being understood that such counsel need
express no opinion with respect to the financial statements and the
notes thereto and the schedules and other financial data included in
the Registration Statement or the Prospectus).
In rendering such opinion, such counsel may (A) rely as to matters
involving the application of laws of any jurisdiction other than the
State of Delaware or the Federal laws of the United States, to the
extent they deem proper and specified in such opinion, upon the opinion
of other counsel of good standing whom they believe to be reliable and
who are satisfactory to counsel for the Underwriters, of which a copy
of any such opinion shall be delivered to the Underwriters, (B) rely as
to matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Partnership and public officials, (C)
assume that the signatures on all documents examined by such counsel
are genuine, which assumptions they may state they have not
independently verified, (D) state that their opinion is limited to
federal laws, the Delaware Act, the Delaware General Corporation Law,
the Delaware Limited Liability Company Act and Texas law, (E) state
that they express no opinion with respect to state or local taxes or
tax statutes to which any of the Partnership, the limited partners of
the Partnership or the General Partner may be subject and (F) state
that their opinion is furnished as counsel for the Partnership and the
General Partner to you, as Representatives of the several Underwriters,
and is solely for the benefit of the several Underwriters. References
to the Registration Statement and the Prospectus in this paragraph (b)
include any amendments and supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx &
Xxxxx L.L.P., counsel for the Underwriters, such opinion or opinions,
dated the Closing Date and addressed to the Representatives, with
respect to the issuance and sale of the Securities, the Registration
Statement, the Prospectus and other related matters as the
Representatives may reasonably require, and the Partnership shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(d) The Partnership and the General Partner shall have
furnished to the Representatives a certificate of the Partnership and
the General Partner, as applicable, signed by any officer holding a
position of at least Senior Vice President and the principal financial
or accounting officer of the General Partner, dated the Closing Date,
to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectus, any supplements to
the Prospectus and this Agreement and that:
(i) the representations and warranties of the
Partnership and the General Partner, as applicable, in this
Agreement are true and correct on and as of the Closing Date
with the same effect as if made on the Closing Date (except
(i) to the extent that a representation or warranty is given
as of a specific date, in which case such representation or
warranty shall be given as of such date and (ii) to the extent
that a representation or warranty refers to the Prospectus,
such representation or warranty shall be deemed to refer to
the Prospectus as of the Closing Date) and each of the
Partnership
19
and the General Partner, as applicable, has complied in all
material respects with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Partnership's
or the General Partner's knowledge, threatened; and
(iii) since the respective dates as of which
information is given in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of
this Agreement) and except as set forth in or contemplated in
the Registration Statement and the Prospectus (exclusive of
any supplement thereto): (i) there has been no event which
would have a material adverse effect on the condition
(financial or otherwise), earnings, business or properties of
the Partnership and its Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary
course of business, (ii) there has been no material adverse
effect on the limited partner interests or in the long-term
debt of the Partnership or any of its Subsidiaries or the
General Partner and (iii) none of the Partnership, any of its
Subsidiaries or the General Partner has incurred any material
liability or obligation, direct or contingent, which would
have a material adverse effect on the condition (financial or
otherwise), earnings, business or properties of the
Partnership or its Subsidiaries, taken as a whole, whether or
not arising from transactions in the ordinary course of
business.
(e) The Company shall have requested and caused
PricewaterhouseCoopers LLP, at the Execution Time and at the Closing
Date, and shall have requested Xxxxxx Xxxxxxxx LLP, Deloitte & Touche
LLP and KPMG LLP, at the Closing Date, to have furnished to the
Representatives letters, dated as of the Execution Time and as of the
Closing Date, as the case may be, in form and substance satisfactory to
the Representatives, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the respective
applicable rules and regulations adopted by the Commission thereunder
with respect to the Partnership, Partnership Subsidiary or Partnership
joint venture whose financial statements they have respectively audited
and containing the information and statements of the type ordinarily
included in accountants' "comfort letters" to the Representatives with
respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus.
(f) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Prospectus (exclusive of
any supplement thereto), there shall not have been, other than as
disclosed in or contemplated by the Registration Statement or the
Prospectus, (i) (A) since September 30, 2000, any increase in the short
term or long term debt of the Partnership and its Subsidiaries, any
change in the capitalization of the Partnership or any decrease in the
partners' capital of the Partnership as compared with the amounts shown
on the September 30, 2000 consolidated balance sheet included or
incorporated by reference in the Registration Statement and the
Prospectus, or (B) for the period from October 1, 2000 to the Execution
Time, any decrease, as compared with the corresponding period in the
preceding year, in operating revenues, operating income, adjusted
EBITDA (as defined in the Prospectus), or in total or per Common Unit
amounts of net income of the Partnership and its Subsidiaries, or (ii)
any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Partnership and its Subsidiaries, 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
(exclusive of any supplement thereto) the effect of
20
which, in any case referred to in clause (i) or (ii) above, is, in the
sole judgment of the Representatives, so material and adverse as to
make it impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Registration
Statement (exclusive of any amendment thereof) and the Prospectus
(exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Partnership and the General
Partner shall have furnished to the Representatives such further
information, certificates and documents as the Representatives may
reasonably request.
(h) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Partnership's debt
securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act) or
any notice given of any intended or potential decrease in any such
rating or of a possible change in any such rating that does not
indicate the direction of the possible change.
(i) At the Execution Time, the Partnership shall have
furnished to the Representatives a letter, in form and substance
satisfactory to the Representatives, from each of the Partnership, the
General Partner, EPEC, Sabine I and Xxxxxx XX addressed to the
Representatives, confirming the agreements described in Section 5(f)
hereof.
(j) The Partnership shall have requested and caused Netherland
& Xxxxxx to have furnished to the Representatives, at the Execution
Time and at the Closing Date, letters, dated respectively as of the
Execution Time and as of the Closing Date, in form and substance
satisfactory to the Representatives.
(k) The Partnership shall have requested and caused in-house
counsel for the Partnership and the General Partner to have furnished
to the Representatives his opinion, dated the Closing Date and
addressed to the Representatives, to the effect that neither the
Partnership nor the General Partner is or, after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Prospectus, will be a "holding company"
within the meaning of, or subject to regulation under, the Public
Utility Holding Company Act of 1935, as amended, and the rules and
regulations promulgated by the Commission thereunder.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Partnership in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Xxxxxxx & Xxxxx L.L.P., counsel for the Underwriters,
at 000 Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000 on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated (other than by reason of a
default or breach by any of the Underwriters or because of any termination
pursuant to Section 10 hereof) because any condition to the obligations of the
Underwriters set forth in Section 6 hereof is not satisfied, or because of any
refusal, inability or failure on the part of the Partnership to perform any
agreement herein or comply with any provision hereof, the Partnership will
reimburse the Underwriters severally through Xxxxxxx Xxxxx Xxxxxx Inc. on demand
for
21
all out- of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
8. Indemnification and Contribution. (a) Each of the Partnership and
the General Partner, jointly and severally, agrees to indemnify and hold
harmless each Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Partnership and the General Partner will not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Partnership by or on behalf of any Underwriter
through the Representatives specifically for inclusion therein; and provided
further, that with respect to any untrue statement or omission of material fact
made in any Preliminary Prospectus, the indemnity agreement contained in this
Section 8(a) shall not inure to the benefit of any Underwriter from whom the
person asserting any such loss, claim, damage or liability purchased the
Securities concerned, to the extent that any such loss, claim, damage or
liability of such Underwriter occurs under the circumstance where it shall have
been determined by a court of competent jurisdiction by final and nonappealable
judgment that (w) the Partnership had previously furnished copies of the
Prospectus to the Representatives, (x) delivery of the Prospectus was required
by the Act to be made to such person, (y) the untrue statement or omission of a
material fact contained in the Preliminary Prospectus was corrected in the
Prospectus and (z) there was not sent or given to such person, at or prior to
the written confirmation of the sale of such securities to such person, a copy
of the Prospectus. This indemnity agreement will be in addition to any liability
which the Partnership or the General Partner may otherwise have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless each of the Partnership and the General
Partner, each of the directors of the General Partner, each of the
officers of the General Partner who signs the Registration Statement,
and each person who controls the Partnership or the General Partner
within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Partnership and the General
Partner to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Partnership
by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to
any liability which any Underwriter may otherwise have. Each of the
Partnership and the General Partner acknowledges that the statements
set forth in the last paragraph of the cover page regarding delivery of
the Securities and, under the heading "Underwriting" or "Plan of
Distribution," (i) the list of Underwriters and their respective
participation in the sale of the Securities, (ii) the sentences related
to concessions and reallowances and (iii) the paragraph related to
stabilization, syndicate covering transactions and penalty bids in the
Prospectus constitute the only information furnished in writing by or
on behalf of the several Underwriters for inclusion in the Prospectus.
22
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify
the indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying
party shall be entitled to appoint counsel of the indemnifying 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 fees
and expenses of any separate counsel retained by the indemnified party
or parties except as set forth below); provided, however, that such
counsel shall be 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 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 paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Partnership and the
General Partner and the Underwriters severally agree to contribute to
the aggregate losses, claims, damages and liabilities (including legal
or other expenses reasonably incurred in connection with investigating
or defending same) (collectively "Losses") to which the Partnership,
the General Partner and one or more of the Underwriters may be subject
in such proportion as is appropriate to reflect the relative benefits
received by the Partnership and the General Partner on the one hand and
by the Underwriters on the other from the offering of the Securities;
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
Partnership, the General Partner and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Partnership
and the General Partner 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 Partnership and the General Partner shall be
deemed to be equal to the total net
23
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 Partnership and the General Partner on the one hand or
the Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Partnership, the General
Partner and the Underwriters agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Partnership within the
meaning of either the Act or the Exchange Act, each officer of the
General Partner who shall have signed the Registration Statement and
each director of the General Partner shall have the same rights to
contribution as the Partnership and the General Partner, subject in
each case to the applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Partnership or the General Partner. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding five Business Days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Partnership and the General Partner and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Partnership
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in the Partnership's Common Units shall have been
suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange, (ii) a
banking moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Representatives, impractical or inadvisable
to
24
proceed with the offering or delivery of the Securities as contemplated by the
Registration Statement and the Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Partnership, the General Partner or its officers and of the Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or the Partnership or the General Partner or any of the officers, directors,
employees, agents or controlling persons referred to in Section 8 hereof, and
will survive delivery of and payment for the Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancellation of this
Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the Xxxxxxx Xxxxx Xxxxxx Inc. General Counsel (fax
no.: (000) 000-0000) and confirmed to the General Counsel, Xxxxxxx Xxxxx Barney
Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: General
Counsel; or, if sent to the Partnership or the General Partner, will be mailed,
delivered or telefaxed to El Paso Energy Partners, L.P., El Paso Building, 0000
Xxxxxxxxx, Xxxxxxx, Xxxxx 00000, Attention: Chief Financial Officer (fax no.:
(000) 000-0000) and confirmed to it at El Paso Energy Partners, L.P., El Paso
Building, 1001 Louisiana, Xxxxxxx, Xxxxx 00000, attention of the Legal
Department.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City.
"Commission" shall mean the Securities and Exchange
Commission.
"Credit Agreement" shall mean the Fourth Amended and Restated
Credit Agreement among the Partnership, El Paso Energy Partners Finance
Corporation, the several lenders from time to time parties thereto,
Credit Lyonnais, as Syndication Agent, BankBoston, N.A., as
Documentation Agent, and The Chase Manhattan Bank, as Administrative
Agent, dated as of
25
March 23, 1995, as amended and restated through September 30, 2000, and
the collateral documents related thereto.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Enforceability Exceptions" shall mean (i) applicable
bankruptcy, insolvency, fraudulent transfer and conveyance,
reorganization, moratorium and similar laws affecting creditors' rights
and remedies generally, (ii) general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought in a proceeding at law or
in equity) and (iii) securities laws and public policy underlying such
laws with respect to rights to indemnification and contribution.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Existing Commitments" shall mean options, warrants or other
rights to purchase, agreements or other obligations to issue, or rights
to convert any obligations into or exchange any securities for,
partnership interests or ownership interests in the Partnership
included or described in any of the Partnership Agreement and employee
or non-employee director option plans, employment agreements and other
employment arrangements to which the Partnership, the General Partner
or their affiliates are party with respect to the Partnership.
"Material Agreements" shall mean the agreements, contracts and
other similar documents filed as exhibits to the Registration
Statement, the Partnership's Annual Report on Form 10-K for the year
ended December 31, 1999, or the Partnership's Quarterly Reports on Form
10-Q for the quarters ended March 31, 2000, June 30, 2000, and
September 30, 2000, or the Partnership's Current Reports on Form 8-K
prior to the Execution Time.
"Permitted Encumbrances" shall mean any lien, adverse claim,
security interest or other interest created in connection with or
permitted under (i) the Credit Agreement, (ii) the credit agreement to
which Deepwater Holdings, L.L.C., a Delaware limited liability company
in which a Subsidiary of the Partnership owns a 50% membership
interest, is party, and the collateral documents related thereto, (iii)
the credit agreement to which Poseidon Oil Pipeline Company, L.L.C., a
Delaware limited liability company in which a Subsidiary of the
Partnership owns a 36% membership interest, is party, and the
collateral documents related thereto, (iv) the financing arrangements
to which Sabine I and Xxxxxx XX are parties, (v) the credit agreement
to which Argo, L.L.C., a Delaware limited liability company and a
wholly owned indirect subsidiary of the Partnership, is party, and the
collateral documents related thereto, and (vi) the indenture into which
the Partnership entered on May 27, 1999, as amended and supplemented.
"Preliminary Prospectus" shall mean any preliminary prospectus
supplement to the base prospectus included in the Registration
Statement at the Effective Date, together with such base prospectus,
that describes the Securities and the offering thereof, is filed
pursuant to Rule 424(b) and is used prior to the filing of the
Prospectus.
26
"Prospectus" shall mean the prospectus supplement to the base
prospectus included in the Registration Statement at the Effective
Date, together with such base prospectus, that describes the Securities
and the offering thereof, and that is first filed pursuant to Rule
424(b) after the Execution Time.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
"Subsidiary" of any person or entity means any corporation,
limited liability company, partnership, joint venture or other legal
entity of which such person or entity (either alone or through or
together with any other Subsidiary), owns, directly or indirectly, more
than 50% of the stock or other equity interests the holder of which is
generally entitled to vote for the election of the board of directors
or other governing body of such corporation, limited liability company,
partnership, joint venture or other legal entity.
[SIGNATURE PAGE IMMEDIATELY FOLLOWS]
27
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Partnership, the General Partner and the several Underwriters.
Very truly yours,
EL PASO ENERGY PARTNERS, L.P.
By: D. Xxxx Xxxxxx
/s/ D. Xxxx Xxxxxx
--------------------------------------
Name: D. Xxxx Xxxxxx
Title: Senior Vice President and
Controller
EL PASO ENERGY PARTNERS COMPANY
By: D. Xxxx Xxxxxx
/s/ D. Xxxx Xxxxxx
--------------------------------------
Name: D. Xxxx Xxxxxx
Title: Senior Vice President and
Controller
The foregoing Agreement is hereby confirmed and accepted as of the date
first above written.
XXXXXXX XXXXX XXXXXX INC.
UBS WARBURG LLC
By: Xxxxxxx Xxxxx Barney Inc.
/s/ Xxxx Xxxxxx
--------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
For themselves and the other several
Underwriters named in Schedule I to
the foregoing Agreement.
28
ANNEX A
SUBSIDIARIES
1. Argo, L.L.C.
2. Argo I, L.L.C.
3. Argo II, L.L.C.
4. Crystal Holding, L.L.C.
5. Crystal Properties and Trading Company, L.L.C.
6. Delos Offshore Company, L.L.C.
7. El Paso Energy Partners Deepwater, L.L.C.
8. El Paso Energy Partners Finance Corporation
9. El Paso Energy Partners Oil Transport, L.L.C.
10. El Paso Energy Partners Operating Company, L.L.C.
11. Xxxxx Bank Gathering Company, L.L.C.
12. First Reserve Gas, L.L.C.
13. Flextrend Development Company, L.L.C.
14. Green Canyon Pipe Line Company, L.P.
15. Hattiesburg Gas Storage Company
16. Hattiesburg Industrial Gas Sales Company, L.L.C.
17. Petal Gas Storage Company, L.L.C.
18. Poseidon Pipeline Company, L.L.C.
19. VK Deepwater Gathering Company, L.L.C.
20. Viosca Xxxxx Gathering Company, L.L.C.
21. VK-Main Pass Gathering Company, L.L.C.
29
ANNEX B
JURISDICTION OTHER JURISDICTIONS IN WHICH
ENTITY NAME OF FORMATION ENTITY IS QUALIFIED TO DO BUSINESS
----------- ------------ ----------------------------------
El Paso Energy Partners, L.P. Delaware Texas, Louisiana
El Paso Energy Partners Company Delaware Texas, Louisiana
Argo, L.L.C. Delaware
Argo I, L.L.C. Delaware
Argo II, L.L.C. Delaware
Crystal Holding, L.L.C. Delaware
Crystal Properties and
Trading Company, L.L.C. Delaware Mississippi
Delos Offshore Company, L.L.C. Delaware Texas, Louisiana
El Paso Energy Partners
Deepwater, L.L.C. Delaware Texas, Louisiana
El Paso Energy Finance
Corporation Delaware Texas
El Paso Energy Partners
Operating Company, L.L.C. Delaware Texas, Louisiana
El Paso Energy Partners Oil
Transport, L.L.C. Delaware Texas, Louisiana
Xxxxx Bank Gathering Company,
L.L.C. Delaware Texas, Louisiana
First Reserve Gas, L.L.C. Delaware Mississippi
Flextrend Development Company,
L.L.C. Delaware Texas, Louisiana, Alabama
Green Canyon Pipe Line
Company, L.P. Delaware Texas, Louisiana, Alabama
Hattiesburg Gas Storage Company Delaware Mississippi
Hattiesburg Industrial Gas
Sales Company, L.L.C. Delaware Mississippi
Petal Gas Storage Company, L.L.C. Delaware Mississippi
Poseidon Pipeline Company, L.L.C. Delaware Texas
Viosca Xxxxx Gathering Company Delaware Texas, Louisiana
VK-Main Pass Gathering
Company, L.L.C. Delaware Texas, Louisiana, Alabama
VK Deepwater Gathering
Company, L.L.C. Delaware Texas
30
SCHEDULE I
Number of Underwritten
Underwriters Securities to be Purchased
------------ --------------------------
Xxxxxxx Xxxxx Barney Inc. 1,125,000
UBS Warburg LLC 1,125,000
---------
Total 2,250,000
