EXHIBIT 1.1
EL PASO ENERGY PARTNERS, L.P.
3,000,000 Common Units
Representing Limited Partner Interests
UNDERWRITING AGREEMENT
UNDERWRITING AGREEMENT
April 8, 2003
UBS Warburg LLC
Citigroup Global Markets Inc.
RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
as Managing Underwriters
c/o UBS Warburg LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
El Paso Energy Partners, L.P., a Delaware limited partnership
(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 underwriters named in Schedule A annexed hereto (the
"Underwriters"), for whom you are acting as representative, an aggregate of
3,000,000 common units (the "Firm Units") representing limited partner interests
in the Partnership ("Common Units"). In addition, solely for the purpose of
covering over-allotments, the Partnership proposes to grant to the Underwriters
the option to purchase from the Partnership up to an additional 450,000 Common
Units (the "Additional Units"). The Firm Units and the Additional Units are
hereinafter collectively sometimes referred to as the "Units." The Units are
described in the Prospectus which is referred to below.
The General Partner, the Partnership and the Underwriters
agree as follows:
1. Sale and Purchase. Upon the basis of the representations and
warranties and subject to the terms and conditions herein set forth, the
Partnership agrees to issue and sell to the respective Underwriters and each of
the Underwriters, severally and not jointly, agrees to purchase from the
Partnership the aggregate number of Firm Units set forth opposite the name of
such Underwriter in Schedule A annexed hereto, subject to adjustment in
accordance with Section 8 hereof, in each case at a purchase price of $31.35 per
Unit. The Partnership is advised by you that the Underwriters intend (i) to make
a public offering of their respective portions of the Firm Units as soon after
the date of this Agreement as in your judgment is advisable and (ii) initially
to offer the Firm Units upon the terms set forth in the Prospectus. You may from
time to time increase or decrease the public offering price after the initial
public offering to such extent as you may determine.
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In addition, the Partnership hereby grants to the several
Underwriters the option to purchase, and upon the basis of the representations
and warranties and subject to the terms and conditions herein set forth, the
Underwriters shall have the right to purchase, severally and not jointly, from
the Partnership, ratably in accordance with the number of Firm Units to be
purchased by each of them, all or a portion of the Additional Units as may be
necessary to cover over-allotments made in connection with the offering of the
Firm Units, at the same purchase price per Additional Unit to be paid by the
Underwriters to the Partnership for the Firm Units. This option may be exercised
by UBS Warburg LLC ("UBS Warburg") on behalf of the several Underwriters at any
time and from time to time on or before the thirtieth day following the date
hereof, by written notice to the Partnership. Such notice shall set forth the
aggregate number of Additional Units as to which the option is being exercised,
and the date and time when the Additional Units are to be delivered (such date
and time being herein referred to as the "additional time of purchase");
provided, however, that the additional time of purchase shall not be earlier
than the time of purchase (as defined below) nor earlier than the second
business day after the date on which the option shall have been exercised nor
later than the tenth business day after the date on which the option shall have
been exercised. The number of Additional Units to be sold to each Underwriter
shall be the number that bears the same proportion to the aggregate number of
Additional Units being purchased as the number of Firm Units set forth opposite
the name of such Underwriter on Schedule A hereto bears to the total number of
Firm Units (subject, in each case, to such adjustment as you may determine to
eliminate fractional Units), subject to adjustment in accordance with Section 8
hereof.
2. Payment and Delivery. Payment of the purchase price for the Firm
Units shall be made to the Partnership by Federal Funds wire transfer, against
delivery of the certificates for the Firm Units to you through the facilities of
The Depository Trust Company ("DTC") for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York
City time, on April 11, 2003 (unless another time shall be agreed to by you and
the Partnership or unless postponed in accordance with the provisions of Section
8 hereof). The time at which such payment and delivery are to be made is
hereinafter sometimes called "the time of purchase." Electronic transfer of the
Firm Units shall be made to you at the time of purchase in such names and in
such denominations as you shall specify.
Payment of the purchase price for the Additional Units shall
be made at the additional time of purchase in the same manner and at the same
office as the payment for the Firm Units. Electronic transfer of the Additional
Units shall be made to you at the additional time of purchase in such names and
in such denominations as you shall specify.
Deliveries of the documents described in Section 6 hereof with
respect to the purchase of the Units shall be made at the offices of ▇▇▇▇▇▇ &
▇▇▇▇▇▇ L.L.P. at 2300 First City Tower, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, at
9:00 A.M., New York City time, on the date of the closing of the purchase of the
Firm Units or the Additional Units, as the case may be.
3. Representations and Warranties. Each of the Partnership and the
General Partner represents and warrants to, and agrees with, each of the
Underwriters that:
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(a) The Partnership has prepared and filed with the Securities
and Exchange Commission (the "Commission") a registration statement
(file number 333-81772) on Form S-3, including a related base
prospectus, for registration under the Securities Act of 1933, as
amended (the "Act"), of the offering and sale of the Units, and
Amendment No. 1 thereto on Form S-3 (the "Initial Registration
Statement"). At the time of the filing of Amendment No. 1 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 Initial
Registration Statement and any post-effective amendment thereto, each
in the form heretofore delivered to you, have been declared effective
by the Commission in such form. Other than (i) a registration
statement, if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement"), filed pursuant to Rule 462(b) under the Act,
which shall become effective upon filing, (ii) documents incorporated
by reference in the base prospectus contained in the Initial
Registration Statement, (iii) any amendment or supplement filed thereto
and any documents incorporated by reference to such amendment or
supplement, no other document with respect to the Initial Registration
Statement has heretofore been filed with the Commission. No stop order
suspending the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission. The various parts
of the Initial Registration Statement and the Rule 462(b) Registration
Statement, if any, including all exhibits thereto and including (x) the
information contained in the form of a final prospectus supplement to
the base prospectus included in the Initial Registration Statement,
filed with the Commission after the date hereof pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof and deemed by
virtue of Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective and (y)
the documents incorporated by reference in such final prospectus
supplement are hereinafter collectively called the "Registration
Statement." Such final prospectus supplement, in the form first filed
pursuant to Rule 424(b) under the Act, together with the base
prospectus included in the Initial Registration Statement, is
hereinafter called the "Prospectus." Any reference herein to the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under
the Act, as of the date of such Prospectus, as the case may be. Any
reference to any amendment or supplement to the Prospectus shall be
deemed to refer to and include any documents filed after the date of
such Prospectus, as the case may be, under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and incorporated by reference
in such Prospectus, as the case may be. Any reference to any amendment
or supplement to the Registration Statement or Prospectus shall be
deemed to refer to and include the filing of any document under the
Exchange Act after the effective date of the Initial Registration
Statement or the date of the Prospectus, as the case may be, deemed to
be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be, as well as the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the Act.
(b) The documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all material
respects to the requirements of
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the Exchange Act, 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 necessary to make
the statements therein, in the light of the circumstances under which
they were made, 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 are filed with the Commission,
as the case may be, will conform in all material respects to the
requirements of the Exchange Act 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 necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the foregoing
representations and warranties in this Section 3(b) shall not apply to
any statements or omissions made in reliance upon and in conformity
with information concerning an Underwriter furnished in writing to the
Partnership by such Underwriter through UBS Warburg expressly for use
therein.
(c) No order preventing or suspending the use of any
Prospectus has been issued by the Commission. The Registration
Statement conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement or the Prospectus will
conform, in all material respects to the requirements of the Act and
the rules and regulations of the Commission thereunder and do not and
will not: (i) with respect to the Registration Statement, as of the
applicable effective date as to the Registration Statement and any
amendment thereto 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 not misleading and (ii) with
respect to the Prospectus, as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, 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 the foregoing representations and
warranties in this Section 3(c) shall not apply to any statements or
omissions made in reliance upon and in conformity with information
concerning an Underwriter furnished in writing to the Partnership by
such Underwriter through UBS Warburg expressly for use therein.
(d) 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 as described in the
Registration Statement and as will be described in 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
that 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. "Subsidiary" of any
person or entity means any corporation, limited liability company,
partnership (general or limited), joint
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venture or other legal entity of which such person or entity (either
alone or through or together with any other Subsidiary), owns 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.
(e) The Partnership and its Subsidiaries have good and
marketable title to all property (real and personal) described the
Registration Statement and in the Prospectus as currently being owned
by each of them, free and clear of all liens, claims, security
interests or other encumbrances, except such as are described or
referred to in the Registration Statement and the Prospectus or except
as do not materially interfere with the ownership or benefits of
ownership of such property. All the property described in the
Registration Statement and the Prospectus as currently being held under
lease by the Partnership or a Subsidiary is held thereby under valid,
subsisting and enforceable leases, subject to (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 (such
exceptions described in clauses (i), (ii) and (iii) referred to as
"Enforceability Exceptions").
(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 as will be described in 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: (i) 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 (ii) 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 (as amended, the
"Partnership Agreement"), which Partnership Agreement, has been duly
authorized, executed and delivered by the General Partner and is a
valid and legally binding agreement of the General Partner, enforceable
against the General Partner in accordance with its terms, subject to
the 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 any lien, adverse claim,
security interest or
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other encumbrance created by or arising under (i) the Delaware Act;
(ii) the Sixth Amended and Restated Credit Agreement among the
Partnership, El Paso Energy Partners Finance Corporation, the several
lenders from time to time parties thereto, and JPMorgan Chase Bank, as
Administrative Agent, dated as of March 23, 1995, as amended and
restated through November 21, 2002, and the collateral documents
related thereto (the "Credit Agreement"); (iii) the Amended and
Restated Credit Agreement among EPN Holding Company, L.P., the lenders
party thereto, Banc One Capital Markets, Inc. and Wachovia Bank,
National Association, as Co-Syndication Agents, Fleet National Bank and
Fortis Capital Corp., as Co-Documentation Agents, and JPMorgan Chase
Bank, as Administrative Agent, dated April 8, 2002, as amended and
restated through November 21, 2002, and the related collateral
documents ("EPN Holdings Term Loan"); (iv) 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; (v) the financial arrangements to which Sabine River Investors
I, L.L.C. ("Sabine I"), Sabine River Investors II, L.L.C. ("▇▇▇▇▇▇
▇▇"), DeepTech International Inc. ("DeepTech"), El Paso EPN
Investments, L.L.C. ("EPN Investments") or El Paso Corporation, a
Delaware corporation ("El Paso Corporation") are parties; (vi) the
indenture into which the Partnership entered on May 27, 1999, as
amended and supplemented, and (vii) the indenture into which the
Partnership entered on May 17, 2001, as amended and supplemented,
(viii) the indenture into which the Partnership entered on March 24,
2003; and (ix) the credit agreement to which Deepwater Gateway, L.L.C.,
a Delaware limited liability company in which a Subsidiary of the
Partnership owns a 50% membership interest ((i)-(ix) the "Permitted
Encumbrances") all as disclosed in the Registration Statement and as
will be disclosed in the Prospectus.
(h) Sabine I and ▇▇▇▇▇▇ ▇▇ own 11,674,245 Common Units,
DeepTech owns 125,392 Series B preference units representing limited
partner interests in the Partnership ("Series B Preference Units"), and
EPN Investments owns 10,937,500 Series C units representing limited
partner interests in the Partnership ("Series C Units") all as
disclosed in the Registration Statement and as will be disclosed in the
Prospectus. All of such Common Units, Series B Preference Units and
Series C Units and the limited partner interests represented thereby
have been duly authorized and validly issued and are fully paid and
nonassessable (except as such nonassessability may be affected by the
Delaware Act); and Sabine I, ▇▇▇▇▇▇ ▇▇, DeepTech and EPN Investments
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 Registration Statement and as will be
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 Registration
Statement and as will be 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 the Delaware Act) and are free of any preemptive or similar rights,
except as set forth in the Partnership Agreement. The Units 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
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by the Delaware Act) and free of any preemptive rights or similar
rights, except as set forth in the Partnership Agreement, and the
Underwriters will acquire the Units free and clear of any lien, adverse
claim, security interest, equity or other encumbrance. 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: (i) as set forth in the
Partnership Agreement and (ii) those granted pursuant to compensation
or option plans disclosed in the Partnership's Annual Report on Form
10-K for the year ended December 31, 2002, the "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, 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) The entities listed on Schedule B 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 the Chaco Liquids Plant 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 Act and (ii) with respect to any general partner
interests) nonassessable, and, except as otherwise set forth in
Schedule B 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) Chaco Liquids Plant Trust has been properly constituted
under the laws of the State of Massachusetts. The Partnership is the
sole beneficiary of the Chaco Liquids Plant Trust, free and clear of
any lien, adverse claim, security interest or other encumbrance, other
than Permitted Encumbrances.
(m) 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 in the case of good standing 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 set forth in the Registration Statement and as will be
described in the Prospectus, and is duly qualified to do business as a
corporation, limited partnership, general partnership or limited
liability
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company and is in good standing (except in the case of good standing
with respect to general partnerships) under the laws of each
jurisdiction listed on Schedule C, which are the only jurisdictions
that 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.
(n) There is no material franchise, contract or other document
of a character required to be described in the Registration Statement
and as will be required to be described in the Prospectus, or to be
filed as an exhibit thereto, which is not described or filed as
required. The statements in the Registration Statement and as will be
in the Prospectus under the headings "Description of Limited Partner
Interests," "Certain Other Partnership Agreement Provisions," "Income
Tax Considerations," "Investments By Employee Benefits Plans" and
"Recent tax developments" 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 Units and the
application of the proceeds thereof as will be 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) promulgated under the Act) and such as may be
required by the New York Stock Exchange for listing the Units or under
the blue sky laws of any jurisdiction in connection with the purchase
and distribution of the Units by the Underwriters in the manner
contemplated herein and as will be contemplated in the Prospectus.
(r) Neither the issue and sale of the Units 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
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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), 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) No holders of securities of the Partnership have rights to
the registration of such securities under the Registration Statement,
except for such rights (i) of the General Partner and its affiliates in
Section 6.14 of the Partnership Agreement; (ii) of ▇▇▇▇▇▇ ▇▇ pursuant
to the Registration Rights Agreement executed in connection with the
acquisition by the Partnership of an additional interest in Viosca
▇▇▇▇▇ Gathering Company; (iii) of DeepTech pursuant to the Registration
Rights Agreement executed in connection with the acquisition by the
Partnership of the Crystal storage facilities; and (iv) of El Paso
Corporation pursuant to the Registration Rights Agreement between El
Paso Corporation and the Partnership dated as of November 27, 2002,
which relates to the Series C Units. All such rights have been waived
in connection with the offering of Units for 90 days hereafter pursuant
to letter agreements of even date herewith in the form of Exhibit A
hereto, except to the extent expressly set forth in the letter
agreement.
(t) The consolidated historical financial statements and
schedules of the Partnership and its consolidated subsidiaries included
in the Registration Statement and that will be included in the
Prospectus present fairly in all material respects the financial
condition, results of operations, cash flows and changes in financial
position of the Partnership and its consolidated 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).
(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 assets or 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
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Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
the Registration Statement or the Prospectus.
(v) Each of the Partnership, 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) Each of the Partnership and its Subsidiaries own, or have
obtained valid and enforceable licenses for, or other rights to use,
the inventions, patents, trademarks, tradenames, copyrights, trade
secrets and other proprietary information (collectively, "Intellectual
Property") described in the Registration Statement and the Prospectus
as being owned or licensed by them or which are necessary for the
conduct of their respective businesses, except where the failure to
own, license or have such rights 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. Neither the
Partnership nor any of its Subsidiaries has received any notice or is
otherwise aware of any infringement of or conflict with asserted rights
of others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of any of the Partnership or its
Subsidiaries, and which infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or invalidity or inadequacy,
singly or in the aggregate, could reasonably be expected to result in a
material adverse effect on the condition (financial or otherwise),
earnings, business or properties of the Partnership and its
Subsidiaries, taken as a whole.
(x) 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, 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 the 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.
-11-
(y) PricewaterhouseCoopers, LLP, who have certified certain
financial statements of each of the Partnership and its consolidated
subsidiaries, Poseidon Oil Pipeline Company, L.L.C., the General
Partner and its consolidated subsidiaries, El Paso Energy Partners
Finance Corporation, EPGT Texas Pipeline, L.P., El Paso Gas Storage
Company, El Paso Hub Services L.L.C., the assets and businesses
referred to as the "El Paso Field Services Gathering and Processing
Businesses," the "El Paso Field Services San ▇▇▇▇ Gathering and
Processing Businesses," the "Typhoon Gas Pipeline," the "Typhoon Oil
Pipeline" and the "Coastal Liquids Partners NGL Business" 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 as
required by the Act and the applicable published rules and regulations
thereunder. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP, who have previously certified certain
financial statements of Poseidon Oil Pipeline Company, L.L.C. and
previously 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. as required by the Act and the
applicable rules and regulations thereunder.
(z) The Partnership and each of its Subsidiaries maintains
insurance covering its properties, operations, personnel and businesses
as the Partnership deems adequate and as previously disclosed to the
Underwriters; such insurance insures against such losses and risks to
an extent which is consistent with insurance coverage maintained by
similar companies and businesses; all such insurance is fully in force
on the date hereof and will be fully in force at the time of purchase
and any additional time of purchase.
(aa) 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
Units.
(bb) 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 the Prospectus 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
the Registration Statement and as will be set forth in the Prospectus.
-12-
(cc) 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, to the Partnership's Knowledge or the General
Partner's Knowledge, 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
the Registration Statement and as will be set forth in the Prospectus.
(dd) 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 the
Registration Statement and as will be described in the Prospectus.
(ee) 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 license,
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 the Registration Statement and as will
be set forth in the Prospectus.
(ff) Except as otherwise set forth in the Registration
Statement and as will be set forth in the Prospectus, 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.
(gg) The information that 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,
2002, including, without limitation, production, costs of operation and
development, current prices for production, agreements relating to
current and future
-13-
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 24, 2003 (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 Registration
Statement and as will be 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 Registration Statement and as will be 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.
(hh) Any statistical and market-related data included in the
Registration Statement and the Prospectus are based on or derived from
sources that the Partnership believes to be reliable and accurate, and
the Partnership has obtained the written consent to the use of such
data from such sources to the extent required.
(ii) 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.
(jj) None of the Partnership, the General Partner or their
respective affiliates has 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 Units.
(kk) 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
-14-
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
the Prospectus. Except as set forth in the Registration Statement and
as will be set forth in the Prospectus, to the knowledge of the
Partnership or the General Partner, 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 1989, as amended.
(ll) 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 the Registration Statement
and as will be set forth in the Prospectus.
(mm) 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 and 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.
(nn) 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 as will be described in the Prospectus, subject to such
qualifications as will 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 fulfilled and performed all its material obligations with
respect to such
-15-
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 will be set forth in the Prospectus, none of
such rights-of-way contains any restriction that is materially
burdensome to the Partnership and its Subsidiaries, taken as a whole.
(oo) 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 Underwriters and (ii) does not intend to use any of
the proceeds from the sale of the Units hereunder to repay any
outstanding debt owed to any affiliate of the Underwriters.
(pp) The Partnership has not sent or received any
communication regarding termination of, or intent not to renew, any of
the contracts or agreements referred to or described in, or filed as an
exhibit to, the Registration Statement, and no such termination or
non-renewal has been threatened by the Partnership or, to the
Partnership's knowledge, any other party to any such contract or
agreement, except where such termination or non-renewal 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.
(qq) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
there has not been (i) any material adverse change, or any development
involving a prospective material adverse change, in the condition
(financial or otherwise), earnings, business properties or results of
operations of the Partnership and the Subsidiaries taken as a whole,
(ii) any transaction which is material to the Partnership and the
Subsidiaries taken as a whole, (iii) any obligation, direct or
contingent (including any off-balance sheet obligations), incurred by
the Company or the Subsidiaries, which is material to the Partnership
and the Subsidiaries taken as a whole, or (iv) any change in the
capital stock or outstanding indebtedness of the Partnership or the
Subsidiaries.
(rr) The Partnership has provided you true, correct, and
complete copies of all documentation pertaining to any outstanding
extension of credit in the form of a personal loan made, directly or
indirectly, by the Partnership to any executive officer of the
Partnership or director of the General Partner, or to any family member
or affiliate of any executive officer of the
-16-
Partnership or director of the General Partner. Since July 30, 2002,
the Partnership has not, directly or indirectly, including through any
subsidiary: (i) extended credit, arranged to extend credit, or renewed
any extension of credit, in the form of a personal loan, to or for any
executive officer of the Partnership or director of the General
Partner, or to or for any family member or affiliate of any executive
officer of the Partnership or director of the General Partner; or (ii)
made any material modification, including any renewal thereof, to any
term of any personal loan to any executive officer of the Partnership
or director of the General Partner, or any family member or affiliate
of any executive officer of the Partnership or director of the General
Partner, which loan was outstanding on July 30, 2002.
(ss) Neither the Partnership nor any of its Subsidiaries nor,
to the Partnership's knowledge, any employee or agent of the
Partnership or its Subsidiaries has made any payment of funds of the
Partnership or its Subsidiaries or received or retained any funds in
violation of any law, rule or regulation, which payment, receipt or
retention of funds is of a character required to be disclosed in the
Registration Statement or the Prospectus.
(tt) To the Partnership's knowledge, there are no
"affiliations" or "associations" (as defined in the NASD Conduct Rules)
between any member of the NASD and any of the Partnership's officers or
5% or greater securityholders or any of the directors of the General
Partner, except as set forth in the Registration Statement and the
Prospectus.
In addition, any certificate signed by any officer of the
General Partner or the Partnership and delivered to the Underwriters or
counsel for the Underwriters in connection with the offering of the
Units shall be deemed to be a representation and warranty by the
General Partner and the Partnership as to matters covered thereby, to
each Underwriter.
4. Certain Covenants of the Partnership and the General Partner. Each
of the General Partner and the Partnership hereby agrees with the Underwriters:
(a) to furnish such information as may be required and
otherwise to cooperate in qualifying the Units for offering and sale
under the securities or blue sky laws of such states as you may
designate and to maintain such qualifications in effect so long as
required for the distribution of the Units; provided that the
Partnership shall not be required to qualify as a foreign corporation
or to consent to the service of process under the laws of any such
state (except service of process with respect to the offering and sale
of the Units); and to promptly advise you of the receipt by the
Partnership of any notification with respect to the suspension of the
qualification of the Units for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as
soon as practicable after the date hereof, and thereafter from time to
time to furnish to the Underwriters, as many copies of the Prospectus
as the Underwriters may request for the purposes contemplated by the
Act; in case any Underwriter is required to deliver a
-17-
prospectus after the nine-month period referred to in Section 10(a)(3)
of the Act in connection with the sale of the Units, the Partnership
will prepare, at its expense, promptly upon request such amendment or
amendments to the Registration Statement and the Prospectus as may be
necessary to permit compliance with the requirements of Section
10(a)(3) of the Act;
(c) to prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act; to make no further amendment or any supplement (other
than a Current Report on Form 8-K disclosing the terms of this
Agreement) to the Registration Statement or Prospectus prior to the
time of purchase which shall be disapproved by you promptly after
reasonable notice thereof; provided that you will not unreasonably
disapprove any such amendment or supplement;
(d) to advise you promptly, confirming such advice in writing,
of any request by the Commission so long as a Prospectus is required to
be delivered in connection with this offering for amendments or
supplements to the Registration Statement or the Prospectus or for
additional information with respect thereto, or of notice so long as a
Prospectus is required to be delivered in connection with this offering
of institution of proceedings for, or the entry of a stop order,
suspending the effectiveness of the Registration Statement and, if the
Commission should enter a stop order suspending the effectiveness of
the Registration Statement so long as a Prospectus is required to be
delivered in connection with this offering, to use its best efforts to
obtain the lifting or removal of such order as soon as possible; to
advise you promptly of any proposal made so long as a Prospectus is
required to be delivered in connection with this offering to amend or
supplement the Registration Statement or the Prospectus, including by
filing any documents that would be incorporated therein by reference,
and to furnish you with drafts of such proposed amendment in advance of
such filing and to file no such amendment or supplement to which you
shall reasonably object in writing;
(e) subject to Section 4(d) hereof, to file promptly all
reports and any definitive proxy or information statement required to
be filed by the Partnership with the Commission to comply with the
Exchange Act subsequent to the date hereof and for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Units; to provide you with a copy of such reports and
statements and other documents to be filed by the Partnership pursuant
to Section 13, 14 or 15(d) of the Exchange Act during such period a
reasonable amount of time prior to any proposed filing, and to promptly
notify you of such filing;
(f) if necessary or appropriate, to file a registration
statement pursuant to Rule 462(b) under the Act;
(g) to advise the Underwriters promptly of the happening of
any event within the time during which a prospectus relating to the
Units is required to be delivered under
-18-
the Act that would require the making of any change in the Prospectus
then being used so that the Prospectus would not include an untrue
statement of material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they are made, not misleading, and, during such time, subject to
Section 4(d) hereof, to prepare and furnish, at the Partnership's
expense, to the Underwriters promptly such amendments or supplements to
such Prospectus as may be necessary to reflect any such change;
(h) to make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) of the Act), an earnings statement of the Partnership complying
with Section 11(a) of the Act;
(i) to furnish to its unitholders as soon as practicable after
the end of each fiscal year an annual report (including a consolidated
balance sheet and statements of income, unitholders' equity and cash
flow of the Partnership and the Subsidiaries for such fiscal year,
accompanied by a copy of the certificate or report thereon of
nationally recognized independent certified public accountants);
(j) to furnish to you one signed copy of the Registration
Statement, as initially filed with the Commission, and of each
amendment thereto (including all exhibits thereto and documents
incorporated by reference therein) and sufficient copies of the
foregoing (other than exhibits) for distribution of a copy to each of
the other Underwriters;
(k) to furnish or otherwise make available to you promptly
upon request, to each of the other Underwriters for a period of five
years from the date of this Agreement the following documents, provided
such documents are not otherwise publicly available via ▇▇▇▇▇: (i)
copies of any reports or other communications which the Partnership
shall send to its unitholders or shall from time to time publish or
publicly disseminate, (ii) copies of all annual, quarterly and current
reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such
other similar forms as may be designated by the Commission, (iii)
copies of documents or reports filed with any national securities
exchange on which any class of securities of the Partnership is listed,
and (iv) such other information as you may reasonably request regarding
the Partnership, its Subsidiaries or the General Partner;
(l) to furnish to you as early as practicable prior to the
time of purchase and any additional time of purchase, as the case may
be, but not later than two business days prior thereto, a copy of the
latest available unaudited interim and monthly consolidated financial
statements, if any, of the Partnership and the consolidated
Subsidiaries which have been read by the Partnership's independent
certified public accountants, as stated in their letter to be furnished
pursuant to Section 6(c) hereof;
(m) to apply the net proceeds from the sale of the Units in
the manner set forth under the caption "Use of Proceeds" in the
Prospectus;
-19-
(n) to pay all costs, expenses, fees and taxes (other than any
fees and disbursements of counsel for the Underwriters except as set
forth in (iii) and (iv) below and Section 5 hereof) in connection with
(i) the preparation and filing of the Registration Statement, the
Prospectus, and any amendments or supplements thereto, and the printing
and furnishing of copies of each thereof to the Underwriters and to
dealers (including costs of mailing and shipment), (ii) the
registration, issue, sale and delivery of the Units including any
transfer taxes and stamp or similar duties payable upon the sale,
issuance or delivery of the Units to the Underwriters, (iii) the
producing, word processing and/or printing of this Agreement, any
Agreement Among Underwriters, any dealer agreements, any Powers of
Attorney and any closing documents (including compilations thereof) and
the reproduction and/or printing and furnishing of copies of each
thereof to the Underwriters and (except closing documents) to dealers
(including costs of mailing and shipment), (iv) the qualification of
the Units for offering and sale under state or foreign laws and the
determination of their eligibility for investment under state or
foreign law as aforesaid (including the legal fees and filing fees and
other disbursements of counsel for the Underwriters) and the printing
and furnishing of copies of any blue sky surveys or legal investment
surveys to the Underwriters and to dealers, (v) any listing of the
Units on any securities exchange, (vi) any filing for review of the
public offering of the Units by the NASD, including the legal fees and
filing fees and other disbursements of counsel to the Underwriters,
(vii) the fees and disbursements of any transfer agent or registrar for
the Units, (viii) the costs and expenses of the Partnership relating to
presentations or meetings undertaken in connection with the marketing
of the offering and sale of the Units to prospective investors and the
Underwriters' sales forces, including, without limitation, expenses
associated with the production of road show slides and graphics, fees
and expenses of any consultants engaged in connection with the road
show presentations, travel, lodging and other expenses incurred by the
officers of the Partnership and any such consultants, and the cost of
any aircraft chartered in connection with the road show, and (ix) the
performance of the General Partner's and Partnership's other
obligations hereunder;
(o) not to, and to cause Sabine I, ▇▇▇▇▇▇ ▇▇, EPN Investments
and El Paso Corporation to agree not to, without the prior written
consent of UBS Warburg, 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, ▇▇▇▇▇▇ ▇▇, EPN Investments, El Paso Corporation 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, ▇▇▇▇▇▇ ▇▇, EPN Investments, El Paso Corporation 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
-20-
the time of purchase; provided, however, that: (i) 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 date and
time this Agreement is executed and the Partnership may issue Common
Units issuable upon the conversion of securities or the exercise of
warrants outstanding at the date and time this Agreement is executed
and (ii) the General Partner, Sabine I, ▇▇▇▇▇▇ ▇▇, El Paso Corporation
and EPN Investments may sell, assign or transfer Common Units to an
affiliate (as such term is defined in Rule 12b-2 promulgated under the
Exchange Act), and all such transferee affiliates may sell, assign or
transfer Common Units to any of their affiliates, provided that each
such transferee affiliate executes a lock-up with UBS Warburg in the
form of Exhibit C covering such Common Units; (iii) the foregoing shall
not prohibit the Partnership, the General Partner, Sabine I, ▇▇▇▇▇▇ ▇▇,
EPN Investments, El Paso Corporation or any of their affiliates 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;
(iv) the Partnership may issue to El Paso Corporation (or its designee)
Common Units in exchange for Series C Units (and El Paso Corporation
may request a unitholder vote with respect to such exchange), provided
that El Paso Corporation (or its designee) execute a lock-up with UBS
Warburg in the form of Exhibit C covering the Common Units issued in
exchange for Series C Units; (v) the Partnership may issue or sell
Common Units, warrants and other securities convertible into, or
exercisable, or exchangeable for, Common Units to unaffiliated
investors as disclosed in the Prospectus under the heading "Recent
developments", and in connection with any such issuance or sale, the
Partnership may file a shelf registration statement provided that no
Common Units, warrants or other securities convertible into, or
exercisable, or exchangeable for, Common Units are offered, sold or
issued under such registration statement within 90 days after the time
of purchase, provided further that such unaffiliated investors execute
an agreement with UBS Warburg in the form of Exhibit C on or prior to
the consummation of such issuance or sale covering such Common Units,
warrants or other securities convertible into, or exercisable, or
exchangeable for, Common Units; (vi) the Partnership may issue Common
Units or other securities convertible into, or exercisable, or
exchangeable for, Common Units in any transactions not registered under
the Act, provided that any purchaser of such unregistered securities
executes an agreement with UBS Warburg in the form of Exhibit C on or
prior to the consummation of such issuance of Common Units covering
such unregistered securities; and (vii) the Partnership may file a
post-effective amendment to an existing registration statement pursuant
to Rule 429 promulgated under the Act, provided that such registration
statement does not register additional Common Units or other securities
convertible into, or exercisable, or exchangeable for, Common Units,
and provided further that no Common Units or other securities
convertible into, or exercisable, or exchangeable for, Common Units are
offered, sold or issued under such registration statement within 90
days after the time of purchase.
-21-
(p) to use its best efforts to cause the Units to be listed on
the New York Stock Exchange; and
(q) to maintain a transfer agent and, if necessary under the
jurisdiction of formation of the Partnership, a registrar for the
Units.
5. Reimbursement of Underwriters' Expenses. If the Units are not
delivered for any reason other than the termination of this Agreement pursuant
to the fifth paragraph of Section 8 hereof or the default by one or more of the
Underwriters in its or their respective obligations hereunder, the General
Partner and the Partnership shall, in addition to paying the amounts described
in Section 4(n) hereof, reimburse the Underwriters for all of their
out-of-pocket expenses, including reasonable fees and disbursements of their
counsel that shall have been incurred by them in connection with the proposed
purchase and sale of the Units.
6. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of the General Partner and the Partnership on the
date hereof, at the time of purchase and, if applicable, at the additional time
of purchase, the performance by the General Partner and the Partnership of their
respective obligations hereunder and to the following additional conditions
precedent:
(a) The Partnership shall furnish to you at the time of
purchase and, if applicable, at the additional time of purchase, an
opinion of Akin, Gump, Strauss, ▇▇▇▇▇ ▇▇▇▇, L.L.P., counsel for the
Partnership, addressed to the Underwriters, and dated the time of
purchase or the additional time of purchase, as the case may be, with
reproduced copies for each of the other Underwriters and in form and
substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the
Underwriters, stating that:
(i) each of the Partnership and its Subsidiaries has
been duly formed or incorporated and is validly existing as a
partnership, corporation or limited liability company and in
good standing (other than 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 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 (other than good
standing with respect to general partnerships) as a foreign
limited partnership, corporation, limited liability company or
business trust authorized to do business in the respective
jurisdictions listed on Schedule C of this Agreement;
-22-
(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 Schedule C of this
Agreement;
(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, 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) Sabine I and ▇▇▇▇▇▇ ▇▇ own (of record) limited
partner interests in the Partnership represented by 11,674,245
Common Units, DeepTech owns 125,392 Series B Preference Units,
and EPN Investments owns 10,937,500 Series C Units; all of
such Common Units, Series B Preference Units and Series C
Units and the limited partner interests represented thereby
have been duly authorized and validly issued and are fully
paid and nonassessable (except as such nonassessability may be
affected by the Delaware Act). To such counsel's knowledge,
other than Permitted Encumbrances, Sabine I, ▇▇▇▇▇▇ ▇▇,
DeepTech and EPN Investments 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 Sabine I, ▇▇▇▇▇▇ ▇▇,
DeepTech and EPN Investments 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 are owned by DeepTech, 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
-23-
Delaware or Texas; DeepTech is an indirect, wholly-owned
subsidiary of El Paso Corporation, a Delaware corporation;
(vii) all the outstanding shares of capital stock,
limited liability company interests or other equity interests
of each Subsidiary of the Partnership (other than the Chaco
Liquids Plant Trust) have been duly and validly authorized and
issued and are (except with respect to partnership interests)
fully paid and (except as provided to the contrary by the
Delaware Act or the Delaware Limited Liability Company Act)
nonassessable, and, except as otherwise set forth in the
Prospectus 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 Company, Crystal Holding, L.L.C., EPGT Texas
Pipeline, L.P., EPN Gathering and Treating Company, L.P., EPN
Gathering and Treating GP Holding, L.L.C., EPN GP Holding,
L.L.C., EPN GP Holding I, L.L.C., EPN Holding Company, L.P.,
EPN Holding Company I, L.P., EPN NGL Storage, L.L.C., First
Reserve Gas, L.L.C., Flextrend Development Company, L.L.C.,
EPN Gulf Coast, L.P. (formerly Green Canyon Pipe Line Company,
L.P.), Hattiesburg Gas Storage Company, Hattiesburg Industrial
Gas Sales, L.L.C., High Island Offshore System, L.L.C., El
Paso Energy Intrastate, L.P., Manta Ray Gathering Company,
L.L.C., El Paso Offshore Gathering & Transmission, L.P., El
Paso Energy Partners Oil Transport, L.L.C., El Paso Energy
Partners Operating Company, L.L.C., Petal Gas Storage, L.L.C.,
EPN Pipeline GP Holding, L.L.C., Poseidon Pipeline Company,
L.L.C., Warwink Gathering and Treating Company, El Paso Energy
Warwink I Company, L.P., El Paso Energy Warwink II Company,
L.P., EPN Field Services, L.L.C. (formerly Delos Offshore
Company, L.L.C. and the surviving entity from its mergers with
Argo, L.L.C.; Argo I, L.L.C.; Argo II, L.L.C.; East Breaks
Gathering Company, L.L.C.; El Paso Energy Partners Deepwater,
L.L.C.; El Paso Hub Services Company, L.L.C.; VK-Deepwater
Gathering Company, L.L.C. and VK Deepwater Gathering Company,
L.L.C. and VK-Main Pass Gathering Company, 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 the Delaware Act) and are free of any preemptive or similar
rights, except as set forth in the Partnership Agreement; the
Units and the limited partner interests represented
-24-
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 the Delaware Act)
and free of any preemptive rights or similar rights, except as
set forth in the Partnership Agreement, and the Underwriters
will acquire the Units 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 information contained therein, as to which such
counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act
and the Exchange Act and the respective rules thereunder;
(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 Units 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 relating to the listing of the Units or
under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Units by the Underwriters
in the manner contemplated in this Agreement and in the
Prospectus and such other approvals as have been obtained;
(xiii) neither the (a) issue and sale of the Units,
(b) the execution, delivery or performance of this Agreement,
or (c) compliance by either of the Partnership and the General
Partner with the provisions hereof and consummation by either
of the Partnership and the General Partner of the transactions
contemplated hereby 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
-25-
Partnership or its Subsidiaries or the General Partner
pursuant to, (i) the partnership agreement, charter, by-laws
or similar organizational document of the Partnership or its
Subsidiaries or the General Partner, (ii) the terms of any
agreement, contract or similar document filed as exhibits to
the Registration Statement, the Partnership's Annual Report on
Form 10-K for the year ended December 31, 2002, or the
Partnership's Current Reports on Form 8-K from January 1, 2003
through the date of the 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
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) 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, which
rights have been waived with respect to the Registration
Statement; (ii) of ▇▇▇▇▇▇ ▇▇ pursuant to the Registration
Rights Agreement executed in connection with the acquisition
by the Partnership of an additional interest in Viosca ▇▇▇▇▇
Gathering Company, and which rights have been waived with
respect to the Registration Statement; (iii) of DeepTech
pursuant to the Registration Rights Agreement executed in
connection with the acquisition by the Partnership of the
Crystal storage facilities, and which rights have been waived
with respect to the Registration Statement; and (iv) of El
Paso Corporation pursuant to the Registration Rights Agreement
between El Paso Corporation and the Partnership dated as of
November 27, 2002, which rights have been waived with respect
to the Registration Statement; and
(xv) (a) to the knowledge of such counsel, 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," "Investment By Employee Benefit Plans" and
"Recent tax developments," insofar as such statements
summarize legal matters, agreements,
-26-
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, on the effective date or as of the
time of purchase or the additional time of purchase, as the case may be,
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 or as of the
time of purchase or the additional time of purchase, as the case may be,
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 time of purchase or the additional time of purchase, as the
case may be, 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, the notes and the schedules thereto, oil and gas reserve
information and other financial data included in the Registration Statement or
the Prospectus).
Such counsel shall also state that, with respect to (i), (ii) and (iv)
in paragraph (xiv) above, (a) the General Partner, ▇▇▇▇▇▇ ▇▇ and El Paso
Corporation have agreed not to exercise their registration rights with respect
to such securities in connection with the offering of Units for 90 days
hereafter pursuant to letter agreements of even date herewith, and (b) the
Common Units held by Sabine I and ▇▇▇▇▇▇ ▇▇ are subject to Permitted
Encumbrances, the holders of which have not waived such rights.
In rendering such opinion, such counsel may (A) rely as to matters
involving the application of laws of any jurisdiction other than the State of
Delaware or the Federal laws of the United States, to the extent they deem
proper and specified in such opinion, upon the opinion of other counsel of good
standing whom they believe to be reliable and who are satisfactory to counsel
for the Underwriters, of which a copy of any such opinion shall be delivered to
the Underwriters, (B) rely as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Partnership and public
officials, (C) assume that the signatures on all documents examined by such
counsel are genuine, which assumptions they may state they have not
independently verified, (D) state that their opinion is limited to federal laws,
the Delaware Act, the Delaware General Corporation Law, the Delaware Limited
Liability Company Act, New York law and Texas law, (E) state that they express
no opinion with respect to state or local taxes or tax statutes to which any of
the Partnership, the limited partners of the Partnership or the General Partner
may be subject and (F) state that their opinion is furnished as counsel for the
Partnership and the General Partner to the several Underwriters, and is solely
for the benefit of
-27-
the several Underwriters. References to the Registration Statement and the
Prospectus in this paragraph (b) include any amendments and supplements thereto
at the time of purchase or the additional time of purchase, as the case may be.
(b) The Partnership shall furnish to you at the time of
purchase and, if applicable, at the additional time of purchase, an
opinion of ▇▇▇▇ ▇. ▇▇▇▇▇, Esq., counsel for the Partnership, addressed
to the Underwriters, and dated the time of purchase or the additional
time of purchase, as the case may be, with reproduced copies for each
of the other Underwriters and in form and substance satisfactory to
▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Underwriters, stating that:
(i) there is no pending or, to the knowledge of such
counsel, 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 that
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 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 he 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 LLC 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 and the General Partner to the
several Underwriters, and is solely for the benefit of the several Underwriters.
(c) You shall have received from PricewaterhouseCoopers
letters dated, respectively, the date of this Agreement, the time of
purchase and, if applicable, the
-28-
additional time of purchase, and addressed to the Underwriters (with
reproduced copies for each of the Underwriters) in the forms heretofore
approved by UBS Warburg.
(d) You shall have received at the time of purchase and, if
applicable, at the additional time of purchase, the favorable opinion
of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Underwriters, dated the time
of purchase or the additional time of purchase, as the case may be,
with respect to such matters as you may reasonably require, and the
Partnership shall have furnished to such counsel such documents and
information as they may reasonably request for the purpose of enabling
them to pass upon such matters.
(e) No Prospectus or amendment or supplement to the
Registration Statement or the Prospectus, including documents deemed to
be incorporated by reference therein, shall have been filed to which
you object in writing.
(f) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) under the Act at or before 5:30 P.M., New York
City time, on the second full business day after the date of this
Agreement.
(g) Prior to the time of purchase, and, if applicable, the
additional time of purchase, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued
under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act; (ii) the Registration Statement and all amendments thereto
shall 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 not misleading; and (iii) the Prospectus
and all amendments or supplements thereto shall 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 are made, not
misleading.
(h) Between the time of execution of this Agreement and the
time of purchase or the additional time of purchase, as the case may
be, no material adverse change or any development involving a
prospective material adverse change (other than as disclosed in the
Registration Statement and Prospectus, exclusive of any amendments or
supplements subsequent to the date hereof) in the condition (financial
or otherwise), earnings, business, properties or results of operations
of the General Partner or the Partnership and the Subsidiaries taken as
a whole shall occur or become known.
(i) The Partnership will, at the time of purchase and, if
applicable, at the additional time of purchase, deliver to you a
certificate of the General Partner's Chief Executive Officer or Chief
Operating Officer and its Chief Financial Officer to the form attached
as Exhibit B hereto.
(j) The Partnership has obtained and delivered to the
Underwriters executed copies of an agreement from Sabine I, ▇▇▇▇▇▇ ▇▇,
El Paso Corporation and EPN Investments substantially to the effect set
forth in the form attached hereto as Exhibit A.
-29-
(k) The Partnership shall have furnished to you such other
documents and certificates as to the accuracy and completeness of any
statement in the Registration Statement and the Prospectus as of the
time of purchase and, if applicable, the additional time of purchase,
as you may reasonably request.
(l) The Units shall have been approved for listing on the New
York Exchange, subject only to notice of issuance at or prior to the
time of purchase or the additional time of purchase, as the case may
be.
(m) Between the time of execution of this Agreement and the
time of purchase or the additional time of purchase, as the case may
be, there shall not have occurred any downgrading, nor shall any notice
or announcement have been given or made of (i) any intended or
potential downgrading or (ii) any review or possible change that does
not indicate an improvement, in the rating accorded any securities of
or guaranteed by the Partnership or any of its Subsidiaries by any
"nationally recognized statistical rating organization," as that term
is defined in Rule 436(g)(2) under the Act.
7. Effective Date of Agreement; Termination. This Agreement shall
become effective when the parties hereto have executed and delivered this
Agreement.
The obligations of the several Underwriters hereunder shall be
subject to termination in the absolute discretion of UBS Warburg or any group of
Underwriters (which may include UBS Warburg) which has agreed to purchase in the
aggregate at least 50% of the Firm Units, if (x) since the time of execution of
this Agreement or the earlier respective dates as of which information is given
in the Registration Statement and the Prospectus, there has been any material
adverse change (other than as disclosed in the Registration Statement and
Prospectus, exclusive of any amendments or supplements subsequent to the date
hereof) or any development involving a prospective material adverse change in
the condition (financial or otherwise), earnings, business properties or results
of operations of the General Partner, the Partnership or its Subsidiaries taken
as a whole, which would, in UBS Warburg's judgment or in the judgment of such
group of Underwriters, make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Units on the terms and in the manner
contemplated in the Registration Statement and the Prospectus, or (y) there
shall have occurred: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange, the American Stock Exchange
or the NASDAQ; (ii) a suspension or material limitation in trading in the
Partnership's securities on the New York Stock Exchange; (iii) a general
moratorium on commercial banking activities declared by either federal or New
York State authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States; (iv) an
outbreak or escalation of hostilities or acts of terrorism involving the United
States or a declaration by the United States of a national emergency or war; (v)
any adverse change in economic conditions or in the financial markets in the
United States resulting from any current hostilities, conflicts or wars
involving the United States, including hostilities, conflicts and wars in and
around Iraq and Afghanistan, or (vi) any other calamity or crisis or any change
in financial, political or economic conditions in the United States or
elsewhere, if the effect of any such event specified in clause (iv), (v) or (vi)
in UBS Warburg's judgment or in the
-30-
judgment of such group of Underwriters makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Units on the terms and
in the manner contemplated in the Registration Statement and the Prospectus, or
(z) there shall have occurred any downgrading, or any notice or announcement
shall have been given or made of (i) any intended or potential downgrading or
(ii) any watch, review or possible change that does not indicate an affirmation
or improvement, in the rating accorded any securities of or guaranteed by the
General Partner, the Partnership or any of its Subsidiary by any "nationally
recognized statistical rating organization," as that term is defined in Rule
436(g)(2) under the Act.
If UBS Warburg or any group of Underwriters elects to
terminate this Agreement as provided in this Section 7, the Partnership and each
other Underwriter shall be notified promptly in writing.
If the sale to the Underwriters of the Units, as contemplated
by this Agreement, is not carried out by the Underwriters for any reason
permitted under this Agreement or if such sale is not carried out because the
General Partner or the Partnership shall be unable to comply with any of the
terms of this Agreement, neither the General Partner nor the Partnership shall
be under any obligation or liability under this Agreement (except to the extent
provided in Sections 4(n), 5 and 9 hereof), and the Underwriters shall be under
no obligation or liability to the General Partner or the Partnership under this
Agreement (except to the extent provided in Section 9 hereof) or to one another
hereunder.
8. Increase in Underwriters' Commitments. Subject to Sections 6 and 7
hereof, if any Underwriter shall default in its obligation to take up and pay
for the Firm Units to be purchased by it hereunder (otherwise than for a failure
of a condition set forth in Section 6 hereof or a reason sufficient to justify
the termination of this Agreement under the provisions of Section 7 hereof) and
if the number of Firm Units which all Underwriters so defaulting shall have
agreed but failed to take up and pay for does not exceed 10% of the total number
of Firm Units, the non-defaulting Underwriters shall take up and pay for (in
addition to the aggregate number of Firm Units they are obligated to purchase
pursuant to Section 1 hereof) the number of Firm Units agreed to be purchased by
all such defaulting Underwriters, as hereinafter provided. Such Units shall be
taken up and paid for by such non-defaulting Underwriters in such amount or
amounts as you may designate with the consent of each Underwriter so designated
or, if no such designation is made, such Units shall be taken up and paid for by
all non-defaulting Underwriters pro rata in proportion to the aggregate number
of Firm Units set opposite the names of such non-defaulting Underwriters in
Schedule A.
Without relieving any defaulting Underwriter from its
obligations hereunder, the Partnership agrees with the non-defaulting
Underwriters that it will not sell any Firm Units hereunder unless all of the
Firm Units are purchased by the Underwriters (or by substituted Underwriters
selected by you with the approval of the Partnership or selected by the
Partnership with your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Partnership for a defaulting Underwriter or Underwriters
in accordance with the foregoing provision, the Partnership or you shall have
the right to postpone the time of purchase for a
-31-
period not exceeding five business days in order that any necessary changes in
the Registration Statement and the Prospectus and other documents may be
effected.
The term Underwriter as used in this Agreement shall refer to
and include any Underwriter substituted under this Section 8 with like effect as
if such substituted Underwriter had originally been named in Schedule A.
If the aggregate number of Firm Units which the defaulting
Underwriter or Underwriters agreed to purchase exceeds 10% of the total number
of Firm Units which all Underwriters agreed to purchase hereunder, and if
neither the non-defaulting Underwriters nor the Partnership shall make
arrangements within the five business day period stated above for the purchase
of all the Firm Units which the defaulting Underwriter or Underwriters agreed to
purchase hereunder, this Agreement shall terminate without further act or deed
and without any liability on the part of the Partnership to any non-defaulting
Underwriter and without any liability on the part of any non-defaulting
Underwriter to the Partnership. Nothing in this paragraph, and no action taken
hereunder, shall relieve any defaulting Underwriter from liability in respect of
any default of such Underwriter under this Agreement.
9. Indemnity and Contribution.
(a) Each of the Partnership and the General Partner, jointly
and severally, agrees to indemnify, defend and hold harmless each
Underwriter, its partners, directors and officers, and any person who
controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and the successors and assigns of all
of the foregoing persons, from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation)
which, jointly or severally, any such Underwriter or any such person
may incur under the Act, the Exchange Act, the common law or otherwise,
insofar as such loss, damage, expense, liability or claim arises out of
or is based upon (i) any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment
thereof by the Partnership) or in a Prospectus (the term Prospectus for
the purpose of this Section 9 being deemed to include the Prospectus
and the Prospectus as amended or supplemented by the Partnership), or
arises out of or is based upon any omission or alleged omission to
state a material fact required to be stated in either such Registration
Statement or such Prospectus or necessary to make the statements made
therein not misleading, except insofar as any such loss, damage,
expense, liability or claim arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained in
and in conformity with information concerning such Underwriter
furnished in writing by or on behalf of such Underwriter through you to
the Partnership expressly for use in such Registration Statement or
such Prospectus or arises out of or is based upon any omission or
alleged omission to state a material fact in connection with such
information required to be stated in such Registration Statement or
such Prospectus or necessary to make such information not misleading,
(ii) any untrue statement or alleged untrue statement made by the
Partnership and the General Partner in Section 3 hereof or the failure
by the Partnership or the
-32-
General Partner to perform when and as required any agreement or
covenant contained herein, or (iii) any untrue statement or alleged
untrue statement of any material fact contained in any audio or visual
materials provided by the Partnership or the General Partner or based
upon written information furnished by or on behalf of the Partnership
including, without limitation, slides, videos, films or tape recordings
used in connection with the marketing of the Units ("Presentation
Materials"), provided that such Presentation Materials are approved by
the Partnership or the General Partner for use in connection with the
marketing of the Units. It being understood that the Partnership and
the General Partner have approved the Presentation Materials used on
April 7, 2003, by UBS Warburg LLC.
If any action, suit or proceeding (each, a "Proceeding") is
brought against an Underwriter or any such person in respect of which indemnity
may be sought against the Partnership or the General Partner pursuant to the
foregoing paragraph, such Underwriter or such person shall promptly notify the
Partnership in writing of the institution of such Proceeding and the Partnership
or the General Partner shall assume the defense of such Proceeding, including
the employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses; provided, however, that the omission to so
notify the Partnership shall not relieve the Partnership or the General Partner
from any liability which the Partnership or the General Partner may have to any
Underwriter or any such person or otherwise. Such Underwriter or such person
shall have the right to employ its or their own counsel in any such case, but
the fees and expenses of such counsel shall be at the expense of such
Underwriter or of such person unless the employment of such counsel shall have
been authorized in writing by the Partnership or the General Partner in
connection with the defense of such Proceeding or the Partnership or the General
Partner shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to have charge of the defense of such Proceeding
or such indemnified party or parties shall have reasonably concluded that there
may be defenses available to it or them which are different from, additional to
or in conflict with those available to the Partnership (in which case the
Partnership or the General Partner shall not have the right to direct the
defense of such Proceeding on behalf of the indemnified party or parties), in
any of which events such fees and expenses shall be borne by the Partnership or
the General Partner and paid as incurred (it being understood, however, that the
Partnership or the General Partner shall not be liable for the expenses of more
than one separate counsel (in addition to any local counsel) in any one
Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified parties who are parties to such Proceeding).
Neither the Partnership nor the General Partner shall be liable for any
settlement of any Proceeding effected without the written consent of either the
Partnership or the General Partner, but if settled with the written consent of
the Partnership or the General Partner, each of the Partnership and the General
Partner agrees to indemnify and hold harmless any Underwriter and any such
person from and against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second sentence of this
paragraph, then the indemnifying party agrees that it shall be liable for any
settlement of any Proceeding effected without its written consent if (i) such
settlement is entered into more than sixty (60) business days after receipt by
such indemnifying party of the aforesaid request, (ii) such indemnifying
-33-
party shall not have fully reimbursed the indemnified party in accordance with
such request prior to the date of such settlement and (iii) such indemnified
party shall have given the indemnifying party at least thirty (30) days' prior
notice of its intention to settle. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened Proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such Proceeding and does not include an admission of fault, culpability or a
failure to act, by or on behalf of such indemnified party.
(b) Each Underwriter severally agrees to indemnify, defend and
hold harmless the Partnership, the General Partner, their respective
directors and officers (as applicable), and any person who controls the
Partnership or the General Partner within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, and the successors and
assigns of all of the foregoing persons, from and against any loss,
damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Partnership, the
General Partner or any such person may incur under the Act, the
Exchange Act, the common law or otherwise, insofar as such loss,
damage, expense, liability or claim arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact
contained in and in conformity with information concerning such
Underwriter furnished in writing by or on behalf of such Underwriter
through you to the Partnership expressly for use in the Registration
Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Partnership) or in a
Prospectus, or arises out of or is based upon any omission or alleged
omission to state a material fact in connection with such information
required to be stated in such Registration Statement or such Prospectus
or necessary to make such information not misleading.
If any Proceeding is brought against the Partnership, the
General Partner or any such person in respect of which indemnity may be sought
against any Underwriter pursuant to the foregoing paragraph, the Partnership,
the General Partner or such person shall promptly notify such Underwriter in
writing of the institution of such Proceeding and such Underwriter shall assume
the defense of such Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses;
provided, however, that the omission to so notify such Underwriter shall not
relieve such Underwriter from any liability which such Underwriter may have to
the Partnership, the General Partner or any such person or otherwise. The
Partnership, the General Partner or such person shall have the right to employ
their own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of the Partnership, the General Partner or such person
unless the employment of such counsel shall have been authorized in writing by
such Underwriter in connection with the defense of such Proceeding or such
Underwriter shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to defend such Proceeding or such indemnified
party or parties shall have reasonably concluded that there may be defenses
available to it or them that are different from or additional to or in conflict
with those available to such Underwriter (in which case such Underwriter shall
not have the right to direct the defense of such Proceeding on behalf
-34-
of the indemnified party or parties, but such Underwriter may employ counsel and
participate in the defense thereof but the fees and expenses of such counsel
shall be at the expense of such Underwriter), in any of which events such fees
and expenses shall be borne by such Underwriter and paid as incurred (it being
understood, however, that such Underwriter shall not be liable for the expenses
of more than one separate counsel (in addition to any local counsel) in any one
Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified parties who are parties to such Proceeding). No
Underwriter shall be liable for any settlement of any such Proceeding effected
without the written consent of such Underwriter but if settled with the written
consent of such Underwriter, such Underwriter agrees to indemnify and hold
harmless the Partnership, the General Partner and any such person from and
against any loss or liability by reason of such settlement. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than sixty (60) business days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
not have reimbursed the indemnified party in accordance with such request prior
to the date of such settlement and (iii) such indemnified party shall have given
the indemnifying party at least thirty (30) days' prior notice of its intention
to settle. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened Proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such Proceeding.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and (b) of
this Section 9 or insufficient to hold an indemnified party harmless in
respect of any losses, damages, expenses, liabilities or claims
referred to therein, then each applicable indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, damages, expenses, liabilities or claims (i) in
such proportion as is appropriate to reflect the relative benefits
received by the Partnership or the General Partner on the one hand and
the Underwriters on the other hand from the offering of the Units or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the
relative fault of the Partnership or 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, damages,
expenses, liabilities or claims, as well as any other relevant
equitable considerations. The relative benefits received by the
Partnership or the General Partner on the one hand and the Underwriters
on the other shall be deemed to be in the same respective proportions
as the total proceeds from the offering (net of underwriting discounts
and commissions but before deducting expenses) received by the
Partnership or the General Partner and the total underwriting discounts
and commissions received by the Underwriters, bear to the aggregate
public offering price of the Units. The relative fault of the
Partnership or the General Partner on the one hand and of the
Underwriters on the
-35-
other shall be determined by reference to, among other things, whether
the untrue statement or alleged untrue statement of a material fact or
omission or alleged omission relates to information supplied by the
Partnership, the General Partner or by the Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
amount paid or payable by a party as a result of the losses, damages,
expenses, liabilities and claims referred to in this subsection shall
be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating, preparing to
defend or defending any Proceeding.
(d) Each of the Partnership, the General Partner and the
Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in subsection (c)
above. Notwithstanding the provisions of this Section 9, no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Units underwritten by such
Underwriter and distributed to the public were offered to the public
exceeds the amount of any damage which such Underwriter has otherwise
been required to pay by reason of such untrue statement or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 9 are several in
proportion to their respective underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in
this Section 9 and the covenants, warranties and representations of the
Partnership and the General Partner contained in this Agreement shall
remain in full force and effect regardless of any investigation made by
or on behalf of any Underwriter, its partners, directors or officers or
any person (including each partner, officer or director of such person)
who controls any Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, or by or on behalf of the
Partnership, the General Partner, its directors or officers or any
person who controls the Partnership or the General Partner within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and
shall survive any termination of this Agreement or the issuance and
delivery of the Units. Each of the Partnership, the General Partner and
each Underwriter agrees promptly to notify each other of the
commencement of any Proceeding against it and, in the case of the
Partnership or the General Partner, against any of the Partnership's or
the General Partner's officers or directors (as applicable) in
connection with the issuance and sale of the Units, or in connection
with the Registration Statement or the Prospectus.
10. Information Furnished by the Underwriters. The statements set forth
in the last paragraph on the cover page of the Prospectus and the statements set
forth in the fifth and eighth paragraphs under the caption "Underwriting" in the
Prospectus constitute the only information
-36-
furnished by or on behalf of the Underwriters as such information is referred to
in Sections 3 and 9 hereof.
11. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
UBS Warburg LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇, Attention:
Syndicate Department and, if to the Partnership or the General Partner, shall be
sufficient in all respects if delivered or sent to the Partnership at the
offices of the Partnership at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇: Chief Financial
Officer.
12. Governing Law; Construction. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
13. Submission to Jurisdiction. Except as set forth below, no Claim may
be commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and the Partnership and
the General Partner consent to the jurisdiction of such courts and personal
service with respect thereto. Each of the Partnership and the General Partner
hereby consents to personal jurisdiction, service and venue in any court in
which any Claim arising out of or in any way relating to this Agreement is
brought by any third party against UBS Warburg or any indemnified party. Each of
UBS Warburg, the Partnership and the General Partner (on its behalf and, to the
extent permitted by applicable law, the Partnership on behalf of the
Partnership's unitholders and affiliates) waives all right to trial by jury in
any action, proceeding or counterclaim (whether based upon contract, tort or
otherwise) in any way arising out of or relating to this Agreement. Each of the
Partnership and the General Partner agrees that a final judgment in any such
action, proceeding or counterclaim brought in any such court shall be conclusive
and binding upon the Partnership and the General Partner and may be enforced in
any other courts to the jurisdiction of which the Partnership and the General
Partner is or may be subject, by suit upon such judgment.
14. Parties at Interest. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the Partnership and the General
Partner and to the extent provided in Section 9 hereof the controlling persons,
directors and officers referred to in such section, and their respective
successors, assigns, heirs, personal representatives and executors and
administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from any of the Underwriters) shall
acquire or have any right under or by virtue of this Agreement.
15. Counterparts. This Agreement may be signed by the parties in one or
more counterparts which together shall constitute one and the same agreement
among the parties.
-37-
16. Successors and Assigns. This Agreement shall be binding upon the
Underwriters, the Partnership and the General Partner and their respective
successors and assigns and any successor or assign of any substantial portion of
the Partnership's, the General Partner's and any of the Underwriters' respective
businesses and/or assets.
17. Miscellaneous. UBS Warburg, an indirect, wholly-owned subsidiary of
UBS AG, is not a bank and is separate from any affiliated bank, including any
U.S. branch or agency of UBS AG. Because UBS Warburg is a separately
incorporated entity, it is solely responsible for its own contractual
obligations and commitments, including obligations with respect to sales and
purchases of securities. Securities sold, offered or recommended by UBS Warburg
are not deposits, are not insured by the Federal Deposit Insurance Corporation,
are not guaranteed by a branch or agency, and are not otherwise an obligation or
responsibility of a branch or agency.
-38-
If the foregoing correctly sets forth the understanding among the
Partnership, the General Partner and the Underwriters, please so indicate in the
space provided below for the purpose, whereupon this agreement and your
acceptance shall constitute a binding agreement among the Partnership, the
General Partner and the Underwriters, severally.
Very truly yours,
El Paso Energy Partners, L.P.
By: El Paso Energy Partners Company, its
General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Chief
Financial Officer
El Paso Energy Partners Company
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Chief
Financial Officer
Accepted and agreed to as of the date first above written, on behalf of itself
and the other several Underwriters named in Schedule A
UBS WARBURG LLC
By: UBS WARBURG LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Executive Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Title: Director
-39-
SCHEDULE A
Number of
Underwriter Firm Units
----------- ----------
UBS WARBURG LLC 1,200,000
CITIGROUP GLOBAL MARKETS INC. 1,200,000
RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇ INC. 600,000
---------
Total .......... 3,000,000
=========
SCHEDULE B
JURISDICTION OF
ENTITY NAME FORMATION OWNERSHIP
----------- --------------- ---------
Arizona Gas Storage, L.L.C. Delaware 60%
Chaco Liquids Plant Trust Massachusetts 100%
Crystal Holding, L.L.C. Delaware 100%
El Paso Energy Intrastate, L.P. Delaware 100%
El Paso Energy Partners Finance Corporation Delaware 100%
El Paso Energy Partners Oil Transport, L.L.C. Delaware 100%
El Paso Energy Partners Operating Company, L.L.C. Delaware 100%
El Paso Energy Warwink I Company, L.P. Delaware 100%
El Paso Energy Warwink II Company, L.P. Delaware 100%
El Paso Offshore Gathering and Transmission, L.P. Delaware 100%
El Paso South Texas, L.P. Delaware 100%
EPGT Texas Pipeline, L.P. Delaware 100%
EPN Alabama Intrastate, L.L.C. Delaware 100%
EPN Arizona Gas, L.L.C. Delaware 100%
EPN Field Services, L.L.C. Delaware 100%
EPN Gathering and Treating Company, L.P. Delaware 100%
EPN Gathering and Treating GP Holding, L.L.C. Delaware 100%
EPN GP Holding, L.L.C. Delaware 100%
EPN GP Holding I, L.L.C. Delaware 100%
EPN Gulf Coast, L.P. Delaware 100%
EPN Holding Company, L.P. Delaware 100%
EPN Holding Company I, L.P. Delaware 100%
EPN NGL Storage, L.L.C. Delaware 100%
EPN Pipeline GP Holding, L.L.C. Delaware 100%
First Reserve Gas, L.L.C. Delaware 100%
Flextrend Development Company, L.L.C. Delaware 100%
Hattiesburg Gas Storage Company Delaware 100%
Hattiesburg Industrial Gas Sales, L.L.C. Delaware 100%
High Island Offshore System, L.L.C. Delaware 100%
Manta Ray Gathering Company, L.L.C. Delaware 100%
Petal Gas Storage, L.L.C. Delaware 100%
Poseidon Pipeline Company, L.L.C. Delaware 100%
Warwink Gathering and Treating Company Texas 100%
SCHEDULE C
JURISDICTION OF FOREIGN QUALIFICATION
ENTITY NAME FORMATION JURISDICTIONS
----------- --------------- ---------------------
Arizona Gas Storage, L.L.C. Delaware Arizona, Louisiana
Chaco Liquids Plant Trust Massachusetts --
Crystal Holding, L.L.C. Delaware --
El Paso Energy Intrastate, L.P. Delaware Texas, Louisiana
El Paso Energy Partners Finance Corporation Delaware Texas
El Paso Energy Partners Oil Transport, L.L.C. Delaware Texas, Louisiana, Alabama
El Paso Energy Partners Operating Company, L.L.C. Delaware Texas, Louisiana, Massachusetts, New Mexico
El Paso Energy Warwink I Company, L.P. Delaware Texas
El Paso Energy Warwink II Company, L.P. Delaware Texas
El Paso Offshore Gathering & Transmission, L.P. Delaware Texas
El Paso South Texas, L.P. Delaware Texas
EPGT Texas Pipeline, L.P. Delaware Texas
EPN Alabama Intrastate, L.L.C. Delaware --
EPN Arizona Gas, L.L.C. Delaware --
EPN Field Services, L.L.C. Delaware Texas, Louisiana, New Mexico
EPN Gathering and Treating Company, L.P. Delaware Texas, New Mexico
EPN Gathering and Treating GP Holding, L.L.C. Delaware Texas
EPN GP Holding, L.L.C. Delaware Texas
EPN GP Holding I, L.L.C. Delaware Texas
EPN Gulf Coast, L.P. Delaware Texas, Louisiana, Alabama, New Mexico
EPN Holding Company, L.P. Delaware Texas
EPN Holding Company I, L.P. Delaware Texas
EPN NGL Storage, L.L.C. Delaware Mississippi, Nevada
EPN Pipeline GP Holding, L.L.C. Delaware Texas
First Reserve Gas, L.L.C. Delaware Mississippi
Flextrend Development Company, L.L.C. Delaware Texas, Louisiana, Alabama
Hattiesburg Gas Storage Company Delaware --
JURISDICTION OF FOREIGN QUALIFICATION
ENTITY NAME FORMATION JURISDICTIONS
----------- --------------- ---------------------
Hattiesburg Industrial Gas Sales, L.L.C. Delaware Mississippi
High Island Offshore System, L.L.C. Delaware Texas, Louisiana
Manta Ray Gathering Company, L.L.C. Delaware Texas, Louisiana
Petal Gas Storage, L.L.C. Delaware Mississippi
Poseidon Pipeline Company, L.L.C. Delaware Texas
Warwink Gathering and Treating Company Texas --
EXHIBIT A
EL PASO ENERGY PARTNERS, L.P.
Common Units
April 8, 2003
UBS Warburg LLC
Citigroup Global Markets Inc
RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc
c/o UBS Warburg LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This Lock-Up Letter Agreement is being delivered to you in
connection with the proposed
Underwriting Agreement (the "
Underwriting
Agreement") to be entered into by El Paso Energy Partners, L.P., a Delaware
limited liability partnership (the "Partnership"), El Paso Energy Partners
Company, a Delaware corporation (the "General Partner") and you, as
Representative of the several Underwriters named therein, with respect to the
public offering (the "Offering") of common units representing limited partner
interest in the Partnership (the "Common Units").
In order to induce you to enter into the
Underwriting
Agreement, the undersigned agrees that for a period of 90 days after the time of
purchase (as defined in the
Underwriting Agreement) the undersigned will not,
without the prior written consent of UBS Warburg, (i) 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), directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the Securities and
Exchange Commission (the "Commission") in respect of, or establishment or
increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission promulgated
thereunder with respect to, any Common Units or any securities convertible into,
or exercisable, or exchangeable for, Common Units, or warrants or other rights
to purchase Common Units, or (ii) publicly announce an intention to effect any
transaction specified in clause (i).
In addition, the undersigned hereby waives any rights the
undersigned may have to require registration of Common Units in connection with
the filing of a registration statement relating to the Offering. The undersigned
further agrees that, for a period of 90 days after the
time of purchase, the undersigned will not, without the prior written consent of
UBS Warburg, make any demand for, or exercise any right with respect to, the
registration of Common Units or any securities convertible into, for
exercisable, or exchangeable for Common Units, or warrants or other rights to
purchase Common Units.
Notwithstanding the foregoing, the covenants and restrictions
in the two preceding paragraphs shall not apply to (a) the registration of or
sale to the Underwriters of any Common Units pursuant to the Offering and the
Underwriting Agreement, (b) the issuance and sale of 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
date hereof; (c) bona fide gifts, provided the recipient thereof agrees in
writing with the Underwriters to be bound by the terms of this Lock-Up Letter
Agreement and confirm that he, she or it has been in compliance with the terms
of this Lock-Up Letter Agreement since the date hereof or (d) dispositions to
any trust for the direct or indirect benefit of the undersigned and/or the
immediate family of the undersigned, provided that such trust agrees in writing
with the Underwriters to be bound by the terms of this Lock-Up Letter Agreement
and confirms that it has been in compliance with the terms of this Lock-Up
Letter Agreement since the date hereof. Further, the foregoing shall not
prohibit or condition (i) the General Partner, Sabine I, ▇▇▇▇▇▇ ▇▇, El Paso
Corporation and EPN Investments from selling, assigning or transferring Common
Units to an affiliate (as such term is defined in Rule 12b-2 promulgated under
the Exchange Act), or all such transferee affiliates from selling, assigning or
transferring Common Units to any of their affiliates, provided that each such
transferee affiliate executes a lock-up with UBS Warburg in the form of Exhibit
C covering such Common Units; (ii) the Partnership, the General Partner, Sabine
I, ▇▇▇▇▇▇ ▇▇, EPN Investments, El Paso Corporation or any of their affiliates
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; (iii) the Partnership from issuing to El Paso Corporation (or its
designee) Common Units in exchange for Series C Units (and El Paso Corporation
from requesting a unitholder vote with respect to such exchange), provided that
El Paso Corporation (or its designee) executes a lock-up with UBS Warburg in the
form of Exhibit C covering the Common Units issued in exchange for Series C
Units; (iv) the Partnership from issuing or selling Common Units, warrants and
other securities convertible into, or exercisable, or exchangeable for, Common
Units to unaffiliated investors as disclosed in the Prospectus under the heading
"Recent developments", provided that such unaffiliated investors execute an
agreement with UBS Warburg in the form of Exhibit C on or prior to the
consummation of such issuance or sale covering such Common Units, warrants or
other securities convertible into, or exercisable, or exchangeable for, Common
Units; (v) the Partnership from issuing Common Units or other securities
convertible into, or exercisable, or exchangeable for, Common Units in any
transactions not registered under the Act, provided that any purchaser of such
unregistered securities executes an agreement with UBS Warburg in the form of
Exhibit C on or prior to the consummation of such issuance covering such
unregistered Common Units; and (vi) the Partnership from filing a post-effective
amendment to an existing registration statement pursuant to Rule 429 promulgated
under the Act, provided that such
registration statement does not register additional Common Units or other
securities convertible into, or exercisable, or exchangeable for, Common Units,
and provided further that no Common Units or other securities convertible into,
or exercisable, or exchangeable for, Common Units are offered, sold or issued
under such registration statement within 90 days after the time of purchase.
If for any reason (i) the Partnership notifies you in writing that it
does not intend to proceed with the Offering, (ii) the registration statement
filed with the Securities and Exchange Commission with respect to the Offering
is withdrawn or (iii) the
Underwriting Agreement shall be terminated prior to
the time of purchase (as defined in the
Underwriting Agreement), this Lock-Up
Letter Agreement shall be terminated and the undersigned shall be released from
its obligations hereunder.
Undefined capitalized terms used herein shall have the same meaning set
forth in the
Underwriting Agreement.
Yours very truly,
---------------------------------
Name:
EXHIBIT B
Officers' Certificate
1. I have reviewed the Registration Statement and the Prospectus.
2. The representations and warranties of each of the Partnership and the
General Partner as set forth in this Agreement are true and correct as
of the time of purchase and, if applicable, the additional time of
purchase.
3. Each of the Partnership and the General Partner has performed all of
its obligations under this Agreement as are to be performed at or
before the time of purchase and at or before the additional time of
purchase, as the case may be.
4. The conditions set forth in paragraphs (g) and (h) of Section 6 of this
Agreement have been met.
5. The financial statements and other financial information included in
the Registration Statement and the Prospectus fairly present in all
material respects the financial condition, results of operations, and
cash flows of the Partnership as of, and for, the periods presented in
the Registration Statement.
EXHIBIT C
(LETTERHEAD OF UNDERSIGNED)
[Date], 2003
UBS Warburg LLC
Citigroup Global Markets Inc
RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc
c/o UBS Warburg LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to that certain Underwriting Agreement dated
April 8, 2003, by and between El Paso Energy Partners, L.P., a Delaware limited
partnership (the "Partnership"), El Paso Energy Partners Company, a Delaware
corporation, and you, with respect to the public offering of common units
representing limited partner interests in the Partnership (the "Common Units").
This Lock-Up Letter Agreement is being delivered to you in connection with
[describe issuance/sale transaction] (the "Transaction").
As partial consideration for the Transaction, the undersigned
agrees that for a period beginning on the date of this Lock-Up Letter Agreement
and ending on July 10, 2003, the undersigned will not, without the prior written
consent of UBS Warburg, (i) 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), [directly or indirectly, including the filing) (or participation in
the filing) of a registration statement with the Securities and Exchange
Commission (the "Commission") in respect of,](1) or establishment or increase a
put equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder
with respect to, Common Units or any securities convertible into, or
exercisable, or exchangeable for Common Units, or warrants or other rights to
purchase Common Units received in the Transaction ("Transaction Securities"), or
(ii) publicly announce an intention to effect any transaction specified in
clause (i).
[In addition, for a period beginning on the date of this
Lock-Up Letter Agreement and ending on July 10, 2003, the undersigned hereby
waives any rights the undersigned may have
----------
(1) This language shall be deleted from any Lock-Up Letter Agreement executed
pursuant to Section 4(o)(v) of the Underwriting Agreement.
to require registration of any Transaction Securities in connection with the
filing of a registration statement relating to any Transaction Securities. The
undersigned further agrees that, for a period beginning on the date of this
Lock-Up Letter Agreement and ending on July 10, 2003, the undersigned will not,
without the prior written consent of UBS Warburg, make any demand for, or
exercise any right with respect to, the registration of any Transaction
Securities.](2)
Notwithstanding the foregoing, the covenants and restrictions
in the [two preceding paragraphs](3) shall not: (i) apply to the Transaction,
and (ii) prohibit the undersigned or any of its affiliates from pledging any
Transaction Securities 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 Transaction Securities, or any interest in such
entities, in connection with the exercise by the lender of any remedies as a
secured party.(4)
Yours very truly,
---------------------------------
Name:
---------
(2) This language shall be deleted from any Lock-Up Letter Agreement executed
pursuant to Section 4(o)(v) of the Underwriting Agreement.
(3) This language shall be replaced with "preceding paragraph" in any Lock-Up
Letter Agreement executed pursuant to Section 4(o)(v) of the Underwriting
Agreement.
(4) Any Lock-Up Letter Agreement executed pursuant to Section 4(o)(v) of the
Underwriting Agreement shall include the following subsection (iii) to
this paragraph:
(iii) waive any rights the undersigned may have to require registration of
any Transaction Securities, including making any demand for, or exercising
any rights with respect to, the registration of any Transaction
Securities, provided that no Transaction Securities are offered, sold or
issued under any registration statement prior to July 10, 2003.