Execution Copy
EL PASO ENERGY PARTNERS, L.P.
3,450,000 Common Units
Representing Limited Partner Interests
Underwriting Agreement
New York, New York
April 23, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
UBS WARBURG LLC
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
BANC OF AMERICA SECURITIES LLC
As Representatives of the several Underwriters
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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, 3,000,000 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 450,000 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).
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 Amendments
Nos. 1, 2 and 3 thereto on Form S-3 (the "Initial Registration
Statement"). At the respective times of the filing of each such
Amendment and on the Effective Date of the Initial Registration
Statement, the Partnership met the requirements for use of Form S-
3 under the Act. The Partnership will file with the Commission a
prospectus supplement relating to the offering of the Securities
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 and 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 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. The prospectus supplement
filed pursuant to Rule 424(b) will be identical to the prospectus
supplement provided to the Underwriters as of the Execution Time.
(b) No order preventing or suspending the effectiveness of the
Registration Statement or the use of any Prospectus has been
issued by the Commission.
(c) 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 and regulations
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.
(d) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as
the case may be, conformed in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder, and none
of such documents contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated
by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are
filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein , in
the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Partnership by an Underwriter through ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. expressly for use therein. The Partnership is
subject to and in full compliance with the reporting requirements
of Section 13 or Section 15(d) of the Exchange Act.
(e) 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.
(f) 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.
(g) 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.
(h) The General Partner, Sabine River Investors I, L.L.C.
("Sabine I"), Sabine River Investors II, L.L.C. ("▇▇▇▇▇▇ ▇▇"),
Crystal Gas Storage, Inc. ("Crystal") and El Paso Field Services
Holding ("EPFS Holding") own limited partner interests in the
Partnership represented by 10,590,307 Common Units and 125,392
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, Sabine I, ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇ and EPFS
Holding own such limited partner interests free and clear of any
lien, adverse claim, security interest or other encumbrance,
other than Permitted Encumbrances.
(i) 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, 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.
(j) 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 Corporation.
(k) 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 (other than any business trust)
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) or on Annex
A are owned by the Partnership, directly or indirectly through
one or more wholly-owned subsidiaries, free and clear of any
lien, adverse claim, security interest or other encumbrance,
other than Permitted Encumbrances.
(l) 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 (except with respect to general partnerships) 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
(except with respect to general partnerships) 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.
(m) The Partnership, through its Subsidiaries (including Delos
Offshore Company, L.L.C. ("Delos")), and the Chaco Liquids Plant
Trust possess title to, and other interests in, the Chaco
cryogenic natural gas processing plant, as described in the
Prospectus, subject to the Chaco Documents (included in Annex C).
El Paso Energy Partners Operating Company, L.L.C. is the trustee
of the Chaco Liquids Plant Trust. The Partnership, directly or
indirectly, is the sole beneficiary as provided in the
declaration of trust governing the Chaco Liquids Plant Trust.
(n) 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.
(o) 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.
(p) 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 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.
(q) 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 (except for the filing of the
Prospectus pursuant to Rule 424(b)) 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.
(r) 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) 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.
(s) (i) No holders of securities of the Partnership have rights
to the registration of such securities under the Registration
Statement except for such rights (A) of the General Partner and
its affiliates in Section 6.14 of the Partnership Agreement; (B)
of EPEC Deepwater Gathering Company ("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 ▇▇▇▇▇ Gathering Company; and (C) of Crystal pursuant to
the Registration Rights Agreement between Crystal and the
Partnership which was executed in connection with the acquisition
by the Partnership of the Crystal storage facilities, (ii) the
General Partner, Sabine I and ▇▇▇▇▇▇ ▇▇ 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 (iii)
the partnership interests held by Sabine I and ▇▇▇▇▇▇ ▇▇ are
subject to Permitted Encumbrances, the holders of which have not
waived such rights.
(t) 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 set forth
under the caption "Selected Historical 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.
(u) 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 respective properties 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).
(v) 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.
(w) 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 their respective
properties, 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.
(x) To the knowledge of the General Partner and the Partnership:
PricewaterhouseCoopers, LLP, who have certified certain financial
statements of the Partnership and its subsidiaries, Poseidon Oil
Pipeline Company, L.L.C., the General Partner and its
subsidiaries, El Paso Energy Partners Finance Corporation, EPGT
Texas Pipeline, L.P., El Paso Gas Storage Company, El Paso Hub
Services L.L.C., and the assets and businesses referred to as the
"El Paso Field Services gathering and processing businesses" in
the applicable financial statements, and delivered their report
with respect to the audited financial statements and schedules
for such entities, assets and businesses included in or
incorporated by reference into the Prospectus, are independent
public accountants within the meaning of the Act and the
applicable published rules and regulations thereunder; and ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, 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 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.
(y) 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.
(z) 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).
(aa) 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).
(bb) 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).
(cc) 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
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).
(dd) 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,
taken as a whole, 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.
(ee) The information which was supplied by the Partnership to
Netherland, ▇▇▇▇▇▇ & Associates, Inc. ("Netherland & ▇▇▇▇▇▇"),
independent petroleum engineers, for purposes of evaluating the
oil and gas reserves of the Partnership and its subsidiaries as
of December 31, 2001, including, without limitation, production,
costs of operation and development, current prices for
production, agreements relating to current and future operations
and sales of production, was, 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 & ▇▇▇▇▇▇ dated January 28, 2002 (the "Netherland &
▇▇▇▇▇▇ Letter"); to the General Partner's and the Partnership's
knowledge, Netherland & ▇▇▇▇▇▇ was, as of the date of the
Netherland & ▇▇▇▇▇▇ 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 & ▇▇▇▇▇▇ Letter and the reserve
report referenced therein; estimates of such reserves and present
values as described in the Prospectus and reflected in the
Netherland & ▇▇▇▇▇▇ 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.
(ff) 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.
(gg) 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.
(hh) 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.
(ii) 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).
(jj) Each of the Partnership, its Subsidiaries and the General
Partner has fulfilled its obligations, if any, under the minimum
funding standards of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 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.
(kk) 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
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.
(ll) 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.
(mm) 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.
(nn) (i) The Purchase, Sale and Merger Agreement dated April 1,
2002 between El Paso Tennessee Pipeline Co. ("EPTP") and the
Partnership has been duly authorized, executed and delivered by
EPTP and the Partnership and constitutes a valid and binding
obligation of EPTP and the Partnership enforceable against EPTP
and the Partnership in accordance with its terms, subject to
Enforceability Exceptions, (ii) The Contribution Agreement dated
April 1, 2002 between EPFS Holding and the Partnership has been
duly authorized, executed and delivered by EPFS Holding and the
Partnership and constitutes a valid and binding obligation of
EPFS Holding and the Partnership enforceable against EPFS Holding
and the Partnership in accordance with its terms, subject to
Enforceability Exceptions, and (iii) The Purchase and Sale
Agreement dated April 1, 2002 between El Paso Production GOM Inc.
("GOM") and the Partnership has been duly authorized, executed
and delivered by GOM and the Partnership and constitutes a valid
and binding obligation of GOM and the Partnership enforceable
against GOM and the Partnership in accordance with its terms,
subject to Enforceability Exceptions.
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 $36.251 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 450,000 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
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 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.
Notwithstanding the foregoing, if the option to purchase Option
Securities is exercised by the Underwriters in accordance with
this Section 2 of the Agreement, and any Option Securities are
delivered without the right to a cash distribution from the
Partnership to which holders of the Firm Units are entitled
arising prior to the Closing Date of the Option Securities, the
purchase price payable by the Underwriters shall be reduced by an
amount per Option Security equal to the distribution amount per
Firm Unit.
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 April 26, 2002, 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 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, Sabine I,
▇▇▇▇▇▇ ▇▇ and EPFS Holding will not, without the prior written
consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., offer, sell, contract to
sell, pledge, or otherwise dispose of (or enter into any
transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or
otherwise) by the Partnership, the General Partner, Sabine I,
▇▇▇▇▇▇ ▇▇, EPFS Holding 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,
Sabine I, ▇▇▇▇▇▇ ▇▇, EPFS Holding or any of their respective
affiliates), 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 (i) the Partnership may issue and
sell Common Units to the General Partner as described in the
Prospectus and (ii) 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 Sabine I or ▇▇▇▇▇▇ ▇▇ 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.
(b) The Partnership shall have requested and caused Akin, Gump,
Strauss, ▇▇▇▇▇ & ▇▇▇▇, 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 (other than any
business trust) has been duly formed or incorporated and is
validly existing as a partnership, corporation or limited
liability company and in good standing (other than any general
partnership) under the laws of 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 any
general partnership) is duly qualified or registered to do
business as a foreign limited partnership, corporation, limited
liability company, or business trust, as the case may be, and,
based solely on the various certificates from public officials of
Texas, Louisiana, Mississippi, New Mexico and Alabama (the "Good
Standing Certificates"), is in good standing as a foreign limited
partnership, corporation, limited liability company or business
trust authorized to do business in the respective jurisdictions
listed on Annex B;
(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, based
solely on the Good Standing Certificates, is in good standing
under the laws of each jurisdiction listed opposite its name on
Annex B;
(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 and legally binding agreement of the General Partner,
enforceable against the General Partner in accordance with its
terms, subject to Enforceability Exceptions; to such counsel's
knowledge, 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 Delaware or Texas naming the
General Partner as debtor is on file in the office of the
Secretary of State of the State of Delaware or Texas;
(v) The General Partner, Sabine I, ▇▇▇▇▇▇ ▇▇ and EPFS Holding
own (of record) limited partner interests in the Partnership
represented by 10,590,307 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"); to such counsel's knowledge, other than
Permitted Encumbrances, the General Partner, Sabine I, ▇▇▇▇▇▇ ▇▇
and EPFS Holding 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 Delaware or
Texas naming the General Partner, Sabine I, ▇▇▇▇▇▇ ▇▇ or EPFS
Holding as debtor is on file in the office of the Secretary of
State of the State of Delaware or 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, to our
knowledge, other than Permitted Encumbrances, are owned by
DeepTech 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 Delaware or Texas naming DeepTech as debtor is on file
in the office of the Secretary of State of the State of Delaware
or Texas; all of the issued and outstanding shares of capital
stock of DeepTech are owned (of record) by El Paso Corporation;
(vii) all the outstanding shares of capital stock, limited
liability company interests or other equity interests of each
Subsidiary (other than any business trust) 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 Act or 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, and to such counsel's knowledge, other than
Permitted Encumbrances, are owned 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 Delaware or Texas naming the Partnership, El Paso
Energy Partners Deepwater, L.L.C., Crystal Holding, L.L.C., EPGT
Texas Pipeline, L.P., EPN Gathering & Treating GP Holding,
L.L.C., EPN GP Holding, L.L.C., EPN GP Holding I, L.L.C., EPN
Holding Company, L.P., EPN Holding Company I, L.P., EPN Pipeline
GP Holding, L.L.C., First Reserve Gas, L.L.C., Green Canyon Pipe
Line Company, L.P., Hattiesburg Industrial Gas Sales Company,
L.L.C., Argo II, L.L.C. or Argo I, L.L.C. as debtors is on file
in the office of the Secretary of State of the State of Delaware
or 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 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) 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 the notes thereto, oil and gas reserve
information and the schedules and other financial data 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;
(x) this Agreement has been duly authorized, executed and
delivered by each of the Partnership and the General Partner;
(xi) 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 an "investment company" as defined in the
Investment Company Act of 1940, as amended;
(xii) 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;
(xiii) 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 except such counsel need express no
opinion in clause (iii) with respect to antifraud provisions of
securities laws;
(xiv) (a) The Purchase, Sale and Merger Agreement dated April
1, 2002 between El Paso Tennessee Pipeline Co. ("EPTP") and the
Partnership has been duly authorized, executed and delivered by
EPTP and the Partnership and constitutes a valid and binding
obligation of EPTP and the Partnership enforceable against EPTP
and the Partnership in accordance with its terms, subject to
Enforceability Exceptions, (b) The Contribution Agreement dated
April 1, 2002 between EPFS Holding and the Partnership has been
duly authorized, executed and delivered by EPFS Holding and the
Partnership and constitutes a valid and binding obligation of
EPFS Holding and the Partnership enforceable against EPFSF
Holding and the Partnership in accordance with its terms, subject
to Enforceability Exceptions, (c) The Purchase and Sale Agreement
dated April 1, 2002 between El Paso Production GOM Inc. ("GOM")
and the Partnership has been duly authorized, executed and
delivered by GOM and the Partnership and constitutes a valid and
binding obligation of GOM and the Partnership enforceable against
GOM and the Partnership in accordance with its terms, subject to
Enforceability Exceptions;
(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 ▇▇▇▇▇ Gathering Company and (iii) of Crystal pursuant to
the Registration Rights Agreement between Crystal and the
Partnership which was executed in connection with the acquisition
by the Partnership of the Crystal storage facilities; and
(xvi) to the knowledge of such counsel: (a) 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 (b) the statements included or incorporated by
reference in the Prospectus under the headings "Description of
Limited Partner Interests", "Certain Other Partnership Agreement
Provisions", "Income Tax Considerations", "Tax Considerations"
and "Recent Tax Developments", insofar as such statements
summarize legal matters, agreements, documents or proceedings
discussed therein, are, in all material respects, accurate and
fair summaries of such legal matters, agreements, documents or
proceedings.
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 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, oil and gas
reserve information and the schedules and other financial
data included in the Registration Statement or the
Prospectus).
Such counsel shall also state that, with respect to (i) and
(ii) in paragraph (xv) above, (a) the General Partner, Sabine I,
▇▇▇▇▇▇ ▇▇ and EPFS Holding have executed and delivered lockup
agreements of even date herewith regarding the non-exercise of
their registration rights with respect to such securities in
connection with the offering of Units for 90 days hereafter, and
(b) the Common Units held by the General Partner, Sabine I and
▇▇▇▇▇▇ ▇▇ may be subject to Permitted Encumbrances, the holders
of which have may not have waived such rights.
In rendering such opinion, such counsel may (A) rely as to
matters of fact, to the extent they deem proper, on certificates
of responsible officers of the Partnership and public officials,
(B) assume that the signatures on all documents examined by such
counsel are genuine, which assumptions they may state they have
not independently verified, (C) state that their opinion is
limited to federal laws, the Delaware Act, the Delaware General
Corporation Law, the Delaware Limited Liability Company Act, the
Delaware Revised Uniform Partnership Act and New York and Texas
law, (D) 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 (E) 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 ▇▇▇▇▇▇▇ &
▇▇▇▇▇, Mayor, Day, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ 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) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., counsel for the Partnership, or such
other counsel for the Partnership reasonably satisfactory to the
Representatives, shall have furnished to you his written opinion,
dated such Time of Delivery, in form and substance satisfactory
to you, to the effect that:
(i) to the knowledge of such counsel 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 (a) 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 (b) 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); and
(ii) each of the Partnership and the General Partner is not and
after giving effect to the offering and sale of the Units and the
application of the proceeds thereof as described in the
Prospectus, will not 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.
In rendering such opinion, such counsel may (A) rely as to
matters of fact, to the extent he deems proper, on
certificates of responsible officers of the Partnership and
public officials, (B) assume that the signatures on all
documents examined by such counsel are genuine, which
assumptions they may state they have not independently
verified, (C) state that his opinion is limited to federal
laws, the Delaware Act, the Delaware General Corporation
Law, the Delaware Limited Liability Company Act, the
Delaware Revised Uniform Partnership Act and Texas law, (D)
state that he expresses 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 (E) state that his opinion is
furnished as counsel for the Partnership or the General
Partner to you, as Representatives of the several
Underwrites, and is solely for the benefit of the several
Underwriters.
(e) 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 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.
(f) The Partnership shall have requested and caused
PricewaterhouseCoopers LLP, at the Execution Time and at the
Closing Date, and shall have requested ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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 (with
respect to PricewaterhouseCoopers LLP) 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.
(g) 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 December 31, 2001, 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 December
31, 2001 consolidated balance sheet included or incorporated by
reference in the Registration Statement and the Prospectus, or
(B) for the period from January 1, 2002 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 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).
(h) The Securities to be sold at such Closing Date shall have
been duly listed, subject to notice of issuance, on the New York
Stock Exchange.
(i) 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.
(j) 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)(2) under
the Act) or any notice given of any intended or potential
decrease in any such rating or of a possible change in any such
rating that does not indicate the direction of the possible
change.
(k) 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, Sabine I, ▇▇▇▇▇▇ ▇▇ and EPFS
Holding addressed to the Representatives, confirming the
agreements described in Section 5(f) hereof.
(l) The Partnership shall have requested and caused Netherland &
▇▇▇▇▇▇ 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, confirming that
they are independent petroleum engineers with respect to
evaluating the oil and gas reserves of the Partnership and its
Subsidiaries as of December 31, 2001 contained in the
Registration Statement and the Prospectus.
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 ▇▇▇▇▇▇▇ & ▇▇▇▇▇, Mayor, Day,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., Counsel for the Underwriters, at ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ 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
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. on demand for 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.
(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 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
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
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. General Counsel (fax no.: (212) 816-
7912) and confirmed to the General Counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, 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., Four ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Financial Officer (fax no.: (832)
▇▇▇-▇▇▇▇) and confirmed to it at El Paso Energy Partners, L.P.,
Four ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, 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 Fifth 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 New York
Branch and First Union National Bank, as Co-Syndication
Agents, Fleet National Bank and Fortis Capital Corp., as Co-
Documentation Agents, and JPMorgan Chase Bank, as
Administrative Agent, dated as of March 23, 1995, as amended
and restated through May 16, 2001, and as further amended
through March 28, 2002, 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, 2001 or the
Partnership's Current Reports on Form 8-K prior to the
Execution Time, including any and all amendments or
supplements to such agreements that are in effect 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 Poseidon Oil Pipeline
Company, L.L.C., a Delaware limited liability company in
which a Subsidiary of the Partnership owns a 36% membership
interest, is party, and the collateral documents related
thereto, (iii) the financing arrangements to which Sabine I
and ▇▇▇▇▇▇ ▇▇ are parties, (iv) the credit agreement to
which EPN Holding Company, L.P., a Delaware limited
partnership and a wholly owned indirect subsidiary of the
Partnership, is party, and the collateral documents related
thereto, (v) the indenture into which the Partnership
entered on May 27, 1999, as amended and supplemented, and
(vi) the indenture into which the Partnership entered on May
17, 2001, 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.
"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. To the extent that any representation,
warranty, covenant or other agreement made in this Agreement
refers to the Prospectus at the Execution Time, such term
shall be deemed to include the prospectus supplement in the
form provided to the Underwriters as of the Execution Time
and filed pursuant to Rule 424(b).
"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 the information in
the prospectus supplement filed pursuant to Rule 424(b) and
any Rule 430A Information deemed to be included in the
Registration Statement 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]
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: El Paso Energy Partners
Company,
its General Partner
By: D. ▇▇▇▇ ▇▇▇▇▇▇
/s/ D. ▇▇▇▇ ▇▇▇▇▇▇
Name: D. ▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President and
Controller
EL PASO ENERGY PARTNERS COMPANY
By: D. ▇▇▇▇ ▇▇▇▇▇▇
/s/ D. ▇▇▇▇ ▇▇▇▇▇▇
Name: D. ▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President and
Controller
The foregoing Agreement is hereby confirmed and accepted as
of the date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
UBS WARBURG LLC
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ &
▇▇▇▇▇
INCORPORATED
BANC OF AMERICA SECURITIES LLC
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
/s/ ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Director
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement