Energy Transfer Partners, L.P. 12,350,000 Common Units1 Representing Limited Partner Interests UNDERWRITING AGREEMENT
Exhibit 1.1
12,350,000 Common Units1
Representing Limited Partner Interests
Representing Limited Partner Interests
March 29, 2011
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Citigroup Global Markets Inc.
Barclays Capital Inc.
Credit Suisse Securities (USA) LLC
Xxxxx Fargo Securities, LLC
X.X. Xxxxxx Securities LLC
As Representatives of the Several Underwriters
named in Schedule II,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Citigroup Global Markets Inc.
Barclays Capital Inc.
Credit Suisse Securities (USA) LLC
Xxxxx Fargo Securities, LLC
X.X. Xxxxxx Securities LLC
As Representatives of the Several Underwriters
named in Schedule II,
c/o Morgan Xxxxxxx & Co, Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Energy Transfer Partners, L.P., a Delaware limited partnership (the “Partnership”), proposes
to sell to the several underwriters named in Schedule II hereto (the “Underwriters”), for
whom Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Citigroup Global Markets Inc., Barclays Capital Inc., Credit Suisse Securities (USA) LLC, Xxxxx
Fargo Securities, LLC and X.X. Xxxxxx Securities LLC (the “Representatives”) are acting as
representatives, the number of common units representing limited partner interests in the
Partnership (“Units”), set forth in Schedule I hereto (said Units to be issued and sold by
the Partnership being hereinafter called the “Underwritten Securities”). The Partnership also
proposes to grant to the Underwriters an option to purchase up to the number of additional Units
set forth in Schedule I hereto (the “Option Securities”; the Option Securities, together
with the Underwritten Securities, being hereinafter called the “Securities”). Any reference herein
to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final
Prospectus shall be deemed to refer to and include the documents
| 1 | Plus an option to purchase from the Partnership, up to 1,852,500 Option Securities. |
incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the
Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be (the
“Incorporated Documents”); and any reference herein to the terms “amend,” “amendment” or
“supplement” with respect to the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the Registration Statement or the issue
date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may
be, deemed to be incorporated therein by reference. Certain terms used herein are defined in
Section 21 hereof.
Prior to the date hereof, ETP-Regency Midstream Holdings, LLC, a Delaware limited liability
company (“ETP-Regency”) and joint venture owned 70% by the Partnership and 30% by Regency Energy
Partners LP, a Delaware limited partnership (“Regency”), entered into a purchase agreement (the
“Purchase Agreement”) with Xxxxx Xxxxxxx Highbridge Energy LLC, a Delaware limited liability
company (“Xxxxx Xxxxxxx”), and LDH Energy Asset Holdings LLC, a Delaware limited liability company
and wholly owned subsidiary of Xxxxx Xxxxxxx (“LDH”), pursuant to which ETP-Regency agreed to
acquire from Xxxxx Xxxxxxx all of the membership interests in LDH for approximately $1.925 billion
in cash, subject to customary purchase price adjustments and closing conditions.
1. Representations and Warranties. The Partnership represents and warrants to, and
agrees with, each Underwriter as set forth below in this Section 1.
(a) The Partnership meets the requirements for use of Form S-3 under the Act and has
prepared and filed with the Commission an automatic shelf registration statement, as defined
in Rule 405, on Form S-3 (No. 333-171697), including a related Base Prospectus, for
registration under the Act of the offering and sale of the Securities. Such Registration
Statement, including any amendments thereto filed prior to the Execution Time, became
effective upon filing. The Partnership may have filed with the Commission, as part of an
amendment to the Registration Statement or pursuant to Rule 424(b), one or more preliminary
prospectus supplements relating to the Securities, each of which has previously been
furnished to the Representatives. The Partnership will file with the Commission a final
prospectus supplement relating to the Securities in accordance with Rule 424(b). As filed,
such final prospectus supplement shall contain all information required by the Act and the
rules thereunder, and, except to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to the
Representatives prior to the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other changes (beyond that
contained in the Base Prospectus and any Preliminary Prospectus) as the Partnership has
advised the Representatives, prior to the Execution Time, will be included or made therein.
The Registration Statement, at the Execution Time, meets the requirements set forth in Rule
415(a)(1)(x). The initial Effective Date of the Registration Statement was not earlier than
the date three years before the Execution Time.
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(b) On each Effective Date, the Registration Statement did, and when the Final
Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date (as defined
herein) and on any date on which Option Securities are purchased, if such date is not the
Closing Date (a “settlement date”), the Final Prospectus (and any supplement thereto) will,
comply in all material respects with the applicable requirements of the Act and the Exchange
Act and the respective rules thereunder; on each Effective Date and at the Execution Time,
the Registration Statement did not and will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading; and on the date of any filing pursuant to
Rule 424(b) and on the Closing Date and any settlement date, the Final Prospectus (together
with any supplement thereto) will not include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided,
however, that the Partnership makes no representations or warranties as to the
information contained in or omitted from the Registration Statement or the Final Prospectus
(or any supplement thereto) in reliance upon and in conformity with information furnished in
writing to the Partnership by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Final Prospectus (or any
supplement thereto), it being understood and agreed that the only such information furnished
by or on behalf of any Underwriter consists of the information described as such in
Section 8 hereof.
(c) The Disclosure Package and the price to the public, the number of Underwritten
Securities and the number of Option Securities to be included on the cover page of the Final
Prospectus, when taken together as a whole, does not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions from the Disclosure Package
in reliance upon and in conformity with information furnished in writing to the Partnership
by or on behalf of any Underwriter through the Representatives specifically for inclusion
therein, it being understood and agreed that the only such information furnished by or on
behalf of any Underwriter consists of the information described as such in Section 8
hereof.
(d) (i) At the time of filing the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act
(whether such amendment was by post-effective amendment, incorporated report filed pursuant
to Sections 13 or 15(d) of the Exchange Act or form of prospectus), and (iii) at the
Execution Time (with such date being used as the determination date for purposes of this
clause (iii)), the Partnership was or is (as the case may be) a “well-known seasoned
issuer” as defined in Rule 405. The Partnership agrees to pay the fees required by the
Commission relating to the Securities within the time required by Rule 456(b)(1) without
regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(e) (i) At the earliest time after the filing of the Registration Statement that the
Partnership or another offering participant made a bona fide offer (within the meaning of
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Rule 164(h)(2)) of the Securities and (ii) as of the Execution Time (with such date
being used as the determination date for purposes of this clause (ii)), the
Partnership was not and is not an “ineligible issuer” (as defined in Rule 405), without
taking account of any determination by the Commission pursuant to Rule 405 that it is not
necessary that the Partnership be considered an ineligible issuer.
(f) The Partnership has not received from the Commission any notice pursuant to Rule
401(g)(2) objecting to use of the automatic shelf registration statement form. If at any
time when Securities remain unsold by the Underwriters the Partnership receives from the
Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the
automatic shelf registration statement form, the Partnership will (i) promptly notify the
Representatives, (ii) promptly file a new registration statement or post-effective amendment
on the proper form relating to the Securities, in a form satisfactory to the
Representatives, (iii) use its best efforts to cause such registration statement or
post-effective amendment to be declared effective as soon as practicable, and (iv) promptly
notify the Representatives of such effectiveness. The Partnership will take all other
action necessary or appropriate to permit the public offering and sale of the Securities to
continue as contemplated in the registration statement that was the subject of the Rule
401(g)(2) notice or for which the Partnership has otherwise become ineligible. References
herein to the Registration Statement shall include such new registration statement or
post-effective amendment, as the case may be.
(g) Each Issuer Free Writing Prospectus does not include any information that conflicts
with the information contained in the Registration Statement, including any document
incorporated therein by reference and any prospectus supplement deemed to be a part thereof
that has not been superseded or modified. The foregoing sentence does not apply to
statements in or omissions from any Issuer Free Writing Prospectus in reliance upon and in
conformity with information furnished in writing to the Partnership by or on behalf of any
Underwriter through the Representatives specifically for inclusion therein, it being
understood and agreed that the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in Section 8 hereof. If
at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs
an event or development as a result of which such Issuer Free Writing Prospectus conflicted
or would conflict with the information then contained in the Registration Statement or as a
result of which such Issuer Free Writing Prospectus, if republished immediately following
such event or development, would include an untrue statement of a material fact or omitted
or would omit to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, (i) the
Partnership has promptly notified or will promptly notify the Representatives and (ii) the
Partnership has promptly amended or will promptly amend or supplement such Issuer Free
Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(h) At the Execution Time, the Partnership has an authorized and outstanding equity
capitalization as set forth in the sections of the Preliminary Prospectus entitled
“Capitalization” and “Description of Units” (and any similar sections or information, if
any, contained in any Issuer Free Writing Prospectus), and, as of the Closing Date and
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any settlement date, as the case may be, the Partnership shall have an authorized and
outstanding equity capitalization as set forth in the sections of the Registration
Statement, the Base Prospectus, the Preliminary Prospectus and the Final Prospectus entitled
“Capitalization” and “Description of Units” (and any similar sections or information, if
any, contained in any Issuer Free Writing Prospectus) (subject, in each case, to the
issuance of Units upon exercise of unit options and warrants disclosed as outstanding in the
Registration Statement (excluding the exhibits thereto), the Base Prospectus, the
Preliminary Prospectus, and the Final Prospectus, the grant of options or other equity
awards under existing unit option plans described in the Registration Statement (excluding
the exhibits thereto), the Base Prospectus, the Preliminary Prospectus and the Final
Prospectus and the issuance of Units upon exercise of the Underwriters’ option to purchase
additional Units); all of the issued and outstanding general partner interests, incentive
distribution rights and limited partner interests of the Partnership have been duly
authorized and validly issued and are fully paid (to the extent required under the Second
Amended and Restated Agreement of Limited Partnership of the Partnership (the “Partnership
Agreement”)) and non-assessable (except as such non-assessability may be affected by (i)
matters described in the Registration Statement, the Base Prospectus, the Preliminary
Prospectus, the Final Prospectus or any Issuer Free Writing Prospectus and (ii) Sections
17-303(a), 17-607 or 17-804 of the Delaware Revised Uniform Limited Partnership Act (the
“Delaware LP Act”)), have been issued in compliance with all applicable securities laws and
were not issued in violation of any preemptive right, resale right, right of first refusal
or similar right; and no further approval or authority of the security holders or the Board
of Directors of ETP LLC is required for the offering and sale of the Securities; the
Certificate of Limited Partnership of the Partnership and the Partnership Agreement, each as
filed with the Incorporated Documents, have been duly authorized and approved in accordance
with the Delaware LP Act and are in full force and effect; the Securities are duly listed,
and admitted and authorized for trading, subject to official notice of issuance, on the New
York Stock Exchange (the “NYSE”).
(i) Each of the ETP Entities has been duly formed and is validly existing in good
standing as a limited partnership or limited liability company, as the case may be, under
the laws of the State of Delaware, with all partnership or limited liability company power
and authority necessary, in the case of the Partnership, to own, lease and operate its
properties and conduct its business as described in the Registration Statement, the Base
Prospectus, the Preliminary Prospectus, the Final Prospectus and the Issuer Free Writing
Prospectuses, if any, and, in the case of the General Partner and ETP LLC, to act as general
partner of the Partnership and the General Partner, respectively, in each case in all
material respects as described in the Registration Statement, the Base Prospectus, the
Preliminary Prospectus, the Final Prospectus and the Issuer Free Writing Prospectuses, if
any.
(j) Each of the ETP Entities is duly registered or qualified to do business as a
foreign limited liability company or limited partnership, as the case may be, and is in good
standing in each jurisdiction where the ownership or leasing of its properties or the
conduct of its business requires such registration or qualification, except where the
failure to be so registered or qualified and in good standing would not, individually or in
the aggregate, (i) have a material adverse effect on the business, properties, financial
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condition, results of operations or prospects of the Partnership and the Subsidiaries
(as defined below), taken as a whole; (ii) prevent or materially interfere with the
consummation of the transactions contemplated by this Agreement, including the offering,
issuance and sale of the Securities; (iii) subject the limited partners of the Partnership
to any material liability or disability or (iv) result in the delisting of Units from the
NYSE (the occurrence of any such effect or any such prevention or interference or any such
result described in the foregoing clauses (i), (ii), (iii) and
(iv) being herein referred to as a “Material Adverse Effect”); insofar as the
foregoing representation relates to the registration or qualification of the ETP Entities,
the applicable jurisdictions are set forth on Schedule III hereto.
(k) The General Partner is the sole general partner of the Partnership with an
approximate 1.8% general partner interest in the Partnership (the “GP Interest”) existing
immediately prior to the time of purchase of the Securities under this Agreement; such GP
Interest has been duly authorized and validly issued in accordance with the Partnership
Agreement, and the General Partner owns such general partner interest free and clear of all
liens, claims, charges and encumbrances (“Liens”).
(l) The limited partners of the Partnership existing immediately prior to the time of
purchase will own 194,268,429 Units and 8,853,832 Class E Units (the “Existing Units”),
representing an approximate 98.2% limited partner interest in the Partnership, 50,226,967
Units of which are owned by Energy Transfer Equity, L.P., a Delaware limited partnership
(“ETE”), free and clear of all Liens, other than Liens arising under the Credit Agreement,
dated as of September 20, 2010, among ETE, Credit Suisse AG (as administrative agent) and
the other lenders party thereto and the Pledge and Security Agreement, dated as of September
20, 2010, by and among ETE, ETP LLC, ETE GP Acquirer LLC, ETE Services Company, LLC and
Regency GP LLC (as the grantors) and Credit Suisse AG, Cayman Islands Branch (as collateral
agent) (collectively, the “ETE Credit Agreement”).
(m) All of the Existing Units and the limited partner interests represented thereby
have been duly authorized and validly issued in accordance with the Partnership Agreement,
and have been fully paid (to the extent required under the Partnership Agreement) and
non-assessable (except as such non-assessability may be affected by (i) matters described in
the Registration Statement, the Base Prospectus, the Preliminary Prospectus, the Final
Prospectus or any Issuer Free Writing Prospectus and (ii) Sections 17-303(a), 17-607 or
17-804 of the Delaware LP Act).
(n) ETE owns 100% of the issued and outstanding membership interests in ETP LLC; such
membership interests have been duly authorized and validly issued in accordance with the ETP
LLC limited liability company agreement and are fully paid (to the extent required under the
ETP LLC limited liability company agreement) and non-assessable (except as such
non-assessability may be affected by matters described in Section 18-607 of the Delaware
Limited Liability Company Act (the “Delaware LLC Act”)); and ETE owns such membership
interests free and clear of all Liens, other than Liens under the ETE Credit Agreement.
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(o) (i) ETP LLC is the sole general partner of the General Partner, with a 0.01%
general partner interest in the General Partner; (ii) such interest has been duly authorized
and validly issued in accordance with the General Partner’s agreement of limited
partnership; (iii) ETP LLC owns such general partner interest free and clear of all Liens;
(iv) ETE owns 100% of the Class A limited partner interests of the General Partner and 100%
of the Class B limited partner interests of the General Partner; (v) such limited partner
interests have been duly authorized and validly issued in accordance with the General
Partner’s agreement of limited partnership and are fully paid (to the extent required under
the General Partner’s agreement of limited partnership) and non-assessable (except as such
non-assessability may be affected by Sections 17-303(a), 17-607 or 17-804 of the Delaware LP
Act and as otherwise described in the Registration Statement, the Base Prospectus, the
Preliminary Prospectus, the Final Prospectus or any Issuer Free Writing Prospectus); and
(vi) ETE owns such limited partner interests free and clear of all Liens, other than Liens
arising under the ETE Credit Agreement.
(p) The Partnership has no direct or indirect subsidiaries (as defined under the Act)
other than the subsidiaries listed in Schedule VI hereto (collectively, sometimes
referred to herein as the “Subsidiaries”); other than the Subsidiaries, the Partnership does
not own, directly or indirectly, any shares of stock or any other equity interests or
long-term debt securities of any corporation, firm, partnership, joint venture, association
or other entity; complete and correct copies of the formation and governing documents of
each of the ETP Entities and all amendments thereto have been delivered to the
Representatives, and, no changes thereto will be made on or after the date hereof, through
and including the time of purchase, or, if later, any additional time of purchase; and each
of the ETP Entities is in compliance with the laws, orders, rules, regulations and
directives issued or administered by such jurisdictions, except where the failure to be in
compliance would not, individually or in the aggregate, have a Material Adverse Effect.
Attached hereto as Schedule IV is a listing of all material Subsidiaries of the
Partnership.
(q) As of the Closing Date or any settlement date, the Securities to be sold by the
Partnership pursuant hereto have been duly and validly authorized and issued and after they
are delivered against payment therefor as provided herein, will be fully paid,
non-assessable (except as such non-assessability may be affected by (i) matters described in
the Registration Statement, the Base Prospectus, the Preliminary Prospectus, the Final
Prospectus or any Issuer Free Writing Prospectus and (ii) Sections 17-303(a), 17-607 or
17-804 of the Delaware LP Act) and free of statutory and contractual preemptive rights,
resale rights, rights of first refusal and similar rights; the Securities to be sold by the
Partnership pursuant hereto are and, after they are delivered against payment therefor as
provided herein, will be free of any restriction upon the voting or transfer thereof
pursuant to the Partnership’s formation and governing documents or any agreement or other
instrument to which the Partnership is a party or by which it or its properties may be bound
or affected.
(r) The Securities conform in all material respects to each description thereof, if
any, contained or incorporated by reference in the Registration Statement, the Base
Prospectus, the Preliminary Prospectus, the Final Prospectus and the Issuer Free Writing
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Prospectuses, if any; and the certificates, if any, for the Securities are in due and
proper form.
(s) This Agreement has been duly authorized and executed and validly delivered by the
Partnership.
(t) The Purchase Agreement has been duly authorized, executed and delivered by
ETP-Regency and constitutes a valid and binding agreement of ETP-Regency, enforceable
against ETP-Regency in accordance with its terms, except as the enforceability thereof may
be limited (A) by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and other similar laws relating to or affecting creditors’ rights generally and by general
principles of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and (B) with respect to the indemnity, contribution and
exoneration provisions therein, by public policy and applicable laws relating to fiduciary
duties and indemnification.
(u) None of the ETP Entities or any Subsidiary is (A) in violation of its respective
formation, governing or any other organizational documents, or (B) in breach of, in default
under or in violation of, nor has any event occurred which with notice, lapse of time or
both would result in any breach of, default under or violation of or give the holder of any
indebtedness (or a person acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or any part of such indebtedness under any
indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or instrument to which any
of the ETP Entities or any Subsidiary is a party or by which it or its properties may be
bound or affected, or (C) in violation of any federal, state, local or foreign law,
regulation or rule, or (D) in violation of any rule or regulation of any self-regulatory
organization or other non-governmental regulatory authority (including, without limitation,
the rules and regulations of the NYSE), or (E) in violation of any decree, judgment or order
applicable to any of the ETP Entities or any Subsidiary or any of their respective
properties, except any such breach, default or violation, in the case of clauses
(B), (C), (D) and (E) above, that would, if continued, not have,
individually or in the aggregate, a Material Adverse Effect or would not materially impair
the ability of the Partnership to perform its obligations under this Agreement or the
transactions contemplated by the Purchase Agreement; and none of (i) the execution, delivery
and performance of this Agreement by the Partnership, (ii) the execution, delivery and
performance of the Purchase Agreement by ETP-Regency, (iii) the offering, issuance and sale
of the Securities, or (iv) the consummation of the transactions contemplated hereby and by
the Purchase Agreement will conflict with, result in any breach or violation of or
constitute a default under, nor constitute any event which with notice, lapse of time or
both would result in any breach or violation of or constitute a default under or give the
holder of any indebtedness (or a person acting on such holder’s behalf) the right to require
the repurchase, redemption or repayment of all or a part of such indebtedness under, or
result in the creation or imposition of a Lien on any property or assets of any of the ETP
Entities pursuant to (I) any formation, governing or any other organizational document of
any of the ETP Entities, or (II) any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any license, lease, contract
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or other agreement or instrument to which any of the ETP Entities is a party or by
which any of them or any of their respective properties may be bound or affected, or (III)
any federal, state, local or foreign law, regulation or rule, or (IV) any rule or regulation
of any self-regulatory organization or other non-governmental regulatory authority
(including, without limitation, the rules and regulations of the NYSE), or (V) any decree,
judgment or order applicable to any of the ETP Entities or any of their respective
properties, except for any such conflicts, breaches, violations or defaults, in the case of
clause (II) above, that would not have, individually or in the aggregate, a Material
Adverse Effect.
(v) No approval, authorization, consent or order of or filing with any federal, state,
local or foreign governmental or regulatory commission, board, body, authority or agency, or
of or with any self-regulatory organization or other non-governmental regulatory authority
having jurisdiction over any ETP Entity or its property (including, without limitation, the
NYSE) (each, a “Consent”) or any approval of the security holders of the Partnership or any
party to the Equity Distribution Agreement between the Partnership and Credit Suisse
Securities (USA) LLC, dated December 6, 2010, is required in connection with the offering,
issuance or sale of the Securities or the consummation by the Partnership of the
transactions contemplated hereby and the execution, delivery and performance of the Purchase
Agreement by ETP-Regency or the consummation by ETP-Regency of the transactions contemplated
thereby other than (i) registration of the Securities under the Act, which has been effected
(or, with respect to any registration statement to be filed hereunder pursuant to Rule
462(b) under the Act, will be effected in accordance herewith), (ii) any necessary
qualification under the securities or blue sky laws of the various jurisdictions in which
the Securities are being offered by the Underwriters or under the Conduct Rules of the
Financial Industry Regulatory Authority, Inc. (the “FINRA”) (iii) such Consents that have
been obtained prior to the date hereof and (iv) such Consents in connection with the
transactions contemplated by the Purchase Agreement that are (A) of a routine or
administrative nature, (B) not customarily obtained or made prior to the consummation of the
transactions contemplated by the Purchase Agreement and (C) expected in the reasonable
judgment of the Partnership to be obtained in the ordinary course of business subsequent to
the consummation of the transactions contemplated by the Purchase Agreement..
(w) Except as described in the Registration Statement (excluding the exhibits thereto),
the Base Prospectus, the Preliminary Prospectus and the Final Prospectus, (i) no person has
the right, contractual or otherwise, to cause the Partnership to issue or sell to it Units
or other equity interests of the Partnership, (ii) no person has any preemptive rights,
rights of first refusal or other rights to purchase any Units or other equity interests in
the Partnership, (iii) no person has any resale rights in respect of the Units that would be
required to be disclosed in the Registration Statement and are not so disclosed and (iv) no
person has the right to act as an underwriter or as a financial advisor to the Partnership
in connection with the offer, issuance and sale of the Securities; no person has the right,
contractual or otherwise, to cause the Partnership to register under the Act any Units or
other equity interests in the Partnership, or to include any such Units or other interests
in the Registration Statement or the offering and sale of the Securities, that have not been
waived in writing; except for options, warrants or other rights granted pursuant to employee
benefits plans, qualified option plans or other employee compensation plans of
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the Partnership, there are no outstanding options or warrants to purchase any
partnership or membership interests or other securities of the ETP Entities.
(x) The Partnership and each of the Subsidiaries have all necessary licenses,
authorizations, consents and approvals (each, a “Permit”) and have made all necessary
filings required under any applicable law, regulation or rule, and have obtained all
necessary Permits from other persons, in order to conduct their businesses, except for such
permits that, if not obtained, would not have a Material Adverse Effect; none of the
Partnership or any of the Subsidiaries is in violation of, is in default under, and has
received notice of any proceedings relating to revocation or modification of, any such
Permit or any federal, state, local or foreign law, regulation or rule or any decree, order
or judgment applicable to any of the ETP Entities or any Subsidiary, except where such
violation, default, revocation or modification would not, individually or in the aggregate,
have a Material Adverse Effect.
(y) All legal or governmental proceedings, affiliate transactions, off-balance sheet
transactions (including, without limitation, transactions related to, and the existence of,
“variable interest entities” within the meaning of Financial Accounting Standards Board
Interpretation No. 46), contracts, licenses, agreements, properties, leases or documents of
a character required to be described in the Registration Statement, the Base Prospectus, the
Preliminary Prospectus and the Final Prospectus or to be filed as an exhibit to the
Registration Statement have been so described or filed as required; and the statements
included in the Registration Statement, the Base Prospectus, the Preliminary Prospectus and
the Final Prospectus (i) under the headings “Description of Units,” “Cash Distribution
Policy,” “Material Income Tax Considerations” and “Material Tax Considerations,” and (ii) in
the Partnership’s Annual Report on Form 10-K for the year ended December 31, 2010 under the
captions “Business — Natural Gas Operations Segments — Regulation” and “Legal
Proceedings,” in each case, (i) as such matters have been updated by any subsequent Current
Report on Form 8-K filed by the Partnership with the Commission and (ii) including any
similar information, if any, contained in any Issuer Free Writing Prospectus, 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.
(z) Except as described in the Registration Statement, there are no actions, suits,
claims, investigations or proceedings pending or, to the knowledge of the Partnership after
due inquiry, threatened or contemplated to which any of the ETP Entities, any Subsidiary or
any of ETP LLC’s directors or officers is or would be a party or of which any of their
respective properties is or would be subject at law or in equity, before or by any federal,
state, local or foreign governmental or regulatory commission, board, body, authority or
agency, or before or by any self-regulatory organization or other non-governmental
regulatory authority (including, without limitation, the rules and regulations of the NYSE),
except for any such action, suit, claim, investigation or proceeding which, if resolved
adversely to any ETP Entity or any Subsidiary, would not, individually or in the aggregate,
have a Material Adverse Effect.
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(aa) Xxxxx Xxxxxxxx LLP, who has audited the consolidated financial statements of the
Partnership as of December 31, 2010, 2009 and 2008, are independent registered public
accountants as required by the Act and by the rules of the Public Company Accounting
Oversight Board (United States) (the “PCAOB”).
(bb) The financial statements incorporated by reference in the Registration Statement,
the Base Prospectus, the Preliminary Prospectus, the Final Prospectus and the Issuer Free
Writing Prospectuses, if any, together with the related notes and schedules, present fairly
in all material respects the consolidated financial position of the Partnership and the
Subsidiaries as of the dates indicated and the consolidated results of operations, cash
flows and changes in partners’ equity of the Partnership and the Subsidiaries for the
periods specified and have been prepared in compliance with the requirements of the Act and
Exchange Act and in conformity with U.S. generally accepted accounting principles applied on
a consistent basis during the periods involved, except to the extent expressly disclosed
therein; the other financial and statistical data set forth in or incorporated by reference
into the Registration Statement, the Base Prospectus, the Preliminary Prospectus, the Final
Prospectus and the Issuer Free Writing Prospectuses, if any, are accurately and fairly
presented and prepared on a basis consistent with the financial statements and books and
records of the Partnership. No other financial statements are required to be included in
the Registration Statement, the Base Prospectus, the Preliminary Prospectus, the Final
Prospectus or the Issuer Free Writing Prospectuses, if any, pursuant to the applicable
accounting requirements of the Act, the Exchange Act and the rules and regulations
thereunder.
(cc) Subsequent to the respective dates as of which information is given in the
Registration Statement, the Base Prospectus, the Preliminary Prospectus, the Final
Prospectus and the Issuer Free Writing Prospectuses, if any, in each case excluding any
amendments or supplements to the foregoing made after the execution of this Agreement, there
has not been (i) any material adverse change, or any development involving, singly or in the
aggregate, a prospective material adverse change, in the business, properties, management,
financial condition, prospects, net worth or results of operations of the ETP Entities
individually or in the aggregate, on the one hand, and/or the Partnership and the
Subsidiaries (taken as a whole), on the other hand, (ii) any transaction that is material to
the Partnership or any Subsidiary (taken as a whole), (iii) any obligation or liability,
direct or contingent (including any off-balance sheet obligations), incurred by any of the
ETP Entities or any of the Subsidiaries that is material to the Partnership and the
Subsidiaries (taken as a whole), (iv) any material change in the capitalization, ownership
or outstanding indebtedness of any of the ETP Entities or (v) any dividend or distribution
of any kind declared, paid or made on the securities of the Partnership or any Subsidiary,
in each case whether or not arising from transactions in the ordinary course of business.
(dd) The Partnership has obtained for the benefit of the Underwriters the agreement (a
“Lock-Up Agreement”), in the form set forth as Exhibit A hereto, of each of ETP
LLC’s directors and “officers” (within the meaning of Rule 16a-1(f) under the Exchange Act)
and each beneficial owner of more than 5% of the Units named in Exhibit A-1 hereto.
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(ee) Neither the Partnership nor any Subsidiary is, and at no time during which a
prospectus is required by the Act to be delivered (whether physically or through compliance
with Rule 172 under the Act or any similar rule) in connection with any sale of Units will
any of them be, and, after giving effect to the offering and sale of the Securities, none of
them will be, an “investment company” or an entity “controlled” by an “investment company,”
as such terms are defined in the Investment Company Act of 1940, as amended.
(ff) The Partnership and each of the Subsidiaries have good and marketable title to all
real property and good title to all personal property described in the Registration
Statement, the Base Prospectus, the Preliminary Prospectus, the Final Prospectus and the
Issuer Free Writing Prospectuses, if any, as being owned by it, free and clear of all Liens
except (i) as described in the Registration Statement, the Base Prospectus, the Preliminary
Prospectus, the Final Prospectus and the Issuer Free Writing Prospectuses, if any, (ii) as
provided in the Security Agreement dated June 28, 1996, among Heritage Holdings, Inc.,
Heritage Operating, L.P., a Delaware limited partnership, and Wilmington Trust Company, and
(iii) as do not materially interfere with the use of such properties, taken as a whole, as
described in the Registration Statement, the Base Prospectus, the Preliminary Prospectus,
the Final Prospectus and the Issuer Free Writing Prospectuses, if any, including Liens
pursuant to mortgage and/or security agreements given as security for certain non-compete
agreements with the prior owners of certain businesses previously acquired by the
Partnership and the Subsidiaries; provided, that, with respect to title to pipeline
rights-of-way, the Partnership represents only that (A) each applicable Subsidiary has
sufficient title to enable it to use and occupy the pipeline rights-of-way as they have been
used and occupied in the past and are to be used and occupied in the future as described in
the Registration Statement, the Base Prospectus, the Preliminary Prospectus, the Final
Prospectus and the Issuer Free Writing Prospectuses, if any, and (B) any lack of title to
the pipeline rights-of-way will not have a Material Adverse Effect. All of the real
property and buildings held under lease by the Partnership and each Subsidiary are held
under valid and subsisting and enforceable leases, with such exceptions as would not
materially interfere with the use of such properties, taken as a whole, as described in the
Registration Statement, the Base Prospectus, the Preliminary Prospectus, the Final
Prospectus and the Issuer Free Writing Prospectuses, if any.
(gg) The Partnership and each of the Subsidiaries own or possess adequate rights to use
all material patents, patent applications, trademarks, service marks, trade names, trademark
registrations, service xxxx registrations, copyrights, licenses and know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) necessary for the conduct of their respective
businesses; and the conduct of their respective businesses will not conflict in any material
sense with, and neither the Partnership nor any Subsidiary has received any notice of
conflict with, any such rights of others.
(hh) No labor disputes with the employees that are engaged in the businesses of the
Partnership and the Subsidiaries exist or, to the knowledge of the Partnership, are imminent
or threatened except for those that would not, individually or in the aggregate,
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have a Material Adverse Effect. To the Partnership’s knowledge after due inquiry,
there has been no violation of any federal, state, local or foreign law relating to
discrimination in the hiring, promotion or pay of employees, any applicable wage or hour
laws or any provision of the Employee Retirement Income Security Act of 1974 or the rules
and regulations promulgated thereunder concerning the employees providing services to the
Partnership or any Subsidiary.
(ii) Except as described in the Registration Statement, the Base Prospectus, the
Preliminary Prospectus and the Final Prospectus, the Partnership and the Subsidiaries (i)
are in compliance with any and all applicable laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received and are in
compliance with all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses as they are currently being
conducted and (iii) have not received written notice of any, and to the knowledge of the
Partnership after due inquiry there are no, pending events or circumstances that could
reasonably be expected to form the basis for 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, and (iv) are not subject to any pending or, to the
knowledge of the Partnership after due inquiry, threatened actions, suits, demands, orders
or proceedings relating to any Environmental Laws against the ETP Entities (collectively,
“Proceedings”), except where such non-compliance with Environmental Laws, failure to receive
required permits, licenses or other approvals, actual or potential liability or Proceedings
could not, individually or in the aggregate, be reasonably expected to have a Material
Adverse Effect. Except as set forth in the Registration Statement, the Base Prospectus, the
Preliminary Prospectus or the Final Prospectus and except for the Newmark Groundwater
Contamination Superfund site (as to which an affiliate of the Partnership received a request
for information under Section 104(2) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (“CERCLA”) in May 2001), none of the ETP
Entities nor any of the Subsidiaries is currently named as a “potentially responsible party”
under CERCLA.
(jj) All tax returns required to be filed by the Partnership and the Subsidiaries
through the date hereof have been timely filed (or extensions have been timely obtained with
respect to such tax returns), and all taxes and other assessments of a similar nature
(whether imposed directly or through withholding) including any interest, additions to tax
or penalties applicable thereto due or claimed to be due from such entities have been timely
paid, other than those being contested in good faith and for which adequate reserves have
been provided.
(kk) The Partnership and each of the Subsidiaries maintain insurance covering their
properties, operations, personnel and businesses as they reasonably deem adequate; such
insurance insures against such losses and risks to an extent that is adequate in accordance
with customary industry practice to protect the Partnership and each of the Subsidiaries and
their business; 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; the
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Partnership does not have reason to believe that it or any Subsidiary will not be able
to renew any such insurance as and when such insurance expires.
(ll) None of the Partnership nor any Subsidiary has sustained since the date of the
last audited financial statements included in the Registration Statement, the Base
Prospectus, the Preliminary Prospectus, the Final Prospectus or the Issuer Free Writing
Prospectuses, if any, any material loss or interference with its respective business from
fire, explosion, flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree.
(mm) Except as described in the Registration Statement, the Base Prospectus, the
Preliminary Prospectus or the Final Prospectus, none of the ETP Entities or any of the
Subsidiaries has sent or received any communication regarding termination of, or intent not
to renew, any of the contracts or agreements filed as an exhibit to the Registration
Statement, the Base Prospectus, the Preliminary Prospectus, the Final Prospectus or the
Issuer Free Writing Prospectuses, if any, and no such termination or non-renewal has been
threatened by any of the ETP Entities or any Subsidiary. To the knowledge of the
Partnership after due inquiry, no third party to any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which any of the ETP Entities or any of the Subsidiaries is a
party or bound or to which their respective properties are subject, is in breach, default or
violation under any such agreement (and no event has occurred that, with notice or lapse of
time or both, would constitute such an event), except for any such breach, default or
violation that would not, individually or in the aggregate, have a Material Adverse Effect.
(nn) The Partnership maintains a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in accordance with
management’s general or specific authorization; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management’s general or specific authorization; and (iv)
the recorded accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(oo) The Partnership has established and maintains and evaluates “disclosure controls
and procedures” (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act)
and “internal control over financial reporting” (as such term is defined in Rule 13a-15 and
15d-15 under the Exchange Act); such disclosure controls and procedures are designed to
ensure that material information relating to the Partnership (including the Subsidiaries) is
made known to the Chief Executive Officer and the Chief Financial Officer of ETP LLC, and
such disclosure controls and procedures are effective to perform the functions for which
they were established; the Partnership’s auditors and the Audit Committee of the Board of
Directors of ETP LLC have been advised of: (i) all significant deficiencies, if any, in the
design or operation of internal controls that could adversely affect the Partnership’s
ability to record, process, summarize and report financial data; (ii) all fraud, if any,
whether or not material, that involves management or
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other employees who have a role in the Partnership’s internal controls; and (iii) all
material weaknesses, if any, in internal controls that have been identified for the
Partnership’s auditors; since the date of the most recent evaluation of such disclosure
controls and procedures and internal controls, there have been no significant changes in
internal controls or in other factors that could significantly affect internal controls,
including any corrective actions with regard to significant deficiencies and material
weaknesses; the principal executive officers (or their equivalents) and principal financial
officers (or their equivalents) of the Partnership have made all certifications required by
the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”) and any related rules and
regulations promulgated by the Commission, and the statements contained in any such
certification are complete and correct; the Partnership, the Subsidiaries and the directors
and officers of ETP LLC, in their capacity as such, are each in compliance in all material
respects with all applicable effective provisions of the Xxxxxxxx-Xxxxx Act and the rules
and regulations of the Commission and the NYSE promulgated thereunder; and the Partnership
has taken all necessary actions to ensure that, upon and at all times after effectiveness of
the Registration Statement, the Partnership, the Subsidiaries and the officers and directors
of ETP LLC, in their capacities as such, will be in compliance in all material respects with
the provisions of the Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated
thereunder.
(pp) On or after July 30, 2002, none of the ETP Entities has 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 director or executive
officer of ETP LLC, or to or for any family member or affiliate of any director or executive
officer of ETP LLC; or (ii) made any material modification, including any renewal thereof,
to the term of any personal loan to any director or executive officer of ETP LLC, or any
family member or affiliate of any director or executive officer, which loan was outstanding
on July 30, 2002.
(qq) Each “forward-looking statement” contained or incorporated by reference in the
Registration Statement, the Base Prospectus, the Preliminary Prospectus, the Final
Prospectus or the Issuer Free Writing Prospectuses, if any, has been made or reaffirmed with
a reasonable basis and in good faith.
(rr) All statistical or market-related data included or incorporated by reference in
the Registration Statement, the Base Prospectus, the Preliminary Prospectus, the Final
Prospectus and the Issuer Free Writing Prospectuses, if any, are based on or derived from
sources that the Partnership believes to be reliable and accurate in all material respects,
and the Partnership has obtained the written consent to the use of such data from such
sources to the extent required.
(ss) Neither the Partnership nor any Subsidiary is currently prohibited, directly or
indirectly, from making distributions in respect of its equity securities, except in each
case as described in (i) the Registration Statement, the Base Prospectus, the Preliminary
Prospectus or the Final Prospectus or (ii) the organizational documents of the Partnership
and the Subsidiaries.
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(tt) Immediately after the issuance and sale of the Securities as contemplated hereby,
no preferred securities of the Partnership shall be issued or outstanding; and the issuance
and sale of the Securities as contemplated hereby will not cause any holder of Units,
securities convertible into or exchangeable or exercisable for Units, or options, warrants
or other rights to purchase Units or any other securities of the Partnership to have any
right to acquire any preferred securities of the Partnership.
(uu) The Partnership is in compliance with the rules of the NYSE, including, without
limitation, the requirements for initial and continued listing of the Securities on the
NYSE.
(vv) Except pursuant to this Agreement, none of the ETP Entities or the Subsidiaries
has incurred any liability for any finder’s or broker’s fees or agent’s commissions in
connection with the execution and delivery of this Agreement or the consummation of the
transactions contemplated by this Agreement.
(ww) None of the ETP Entities nor any of their respective Affiliates (as such term in
defined in Rule 405 promulgated under the Act) has taken, directly or indirectly, any action
designed, or that has constituted or could reasonably be expected to cause or result in,
under the Exchange Act or otherwise, the stabilization or manipulation of the price of any
security of the Partnership to facilitate the sale or resale of the Securities.
(xx) To the knowledge of the Partnership after due inquiry, there are no affiliations
or associations between (i) any member of the FINRA and (ii) the Partnership, any of ETP
LLC’s officers or directors, any 5% or greater securityholders of the Partnership, or any
beneficial owner of the Partnership’s unregistered equity securities that were acquired at
any time on or after the 180th day immediately preceding the date the Registration Statement
was initially filed with the Commission, except as disclosed in the Registration Statement
(excluding the exhibits thereto), the Base Prospectus, the Preliminary Prospectus and the
Final Prospectus.
(yy) The Partnership has not distributed and will not distribute, prior to the later to
occur of (i) the time of purchase and additional time of purchase and (ii) the completion of
the distribution of the Securities, any prospectus (as defined under the Act) in connection
with the offering and sale of the Securities other than the Registration Statement, the Base
Prospectus, the Preliminary Prospectus, the Issuer Free Writing Prospectuses, if any, or
other materials, if any, permitted by the Act, including Rule 134 promulgated thereunder.
(zz) The operations of the ETP Entities and the Subsidiaries are and have been
conducted at all times in compliance with applicable financial recordkeeping and reporting
requirements and the money laundering statutes and rules and regulations thereunder and any
related or similar rules, regulations or guidelines issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering Laws”), and no action, suit or
proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving any of the ETP Entities or any of the
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Subsidiaries with respect to the Money Laundering Laws is pending or, to the best
knowledge of the Partnership, threatened.
(aaa) None of the ETP Entities or any Subsidiary nor, to the knowledge of the
Partnership, any director, officer, agent, employee or affiliate of any of the ETP Entities
or any Subsidiary is aware of or has taken any action, directly or indirectly, that would
result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as
amended, and the rules and regulations thereunder (the “FCPA”), including, without
limitation, making use of the mails or any means or instrumentality of interstate commerce
corruptly in furtherance of an offer, payment, promise to pay or authorization of the
payment of any money, or other property, gift, promise to give, or authorization of the
giving of anything of value to any “foreign official” (as such term is defined in the FCPA)
or any foreign political party or official thereof or any candidate for foreign political
office, in contravention of the FCPA; and the ETP Entities, the Subsidiaries and, to the
knowledge of the Partnership, their affiliates have instituted and maintain policies and
procedures designed to ensure, and which are reasonably expected to continue to ensure,
continued compliance therewith.
(bbb) None of the ETP Entities or any Subsidiary, nor to the knowledge of the
Partnership, any director, officer, agent, employee or affiliate of any ETP Entity or any
Subsidiary, is currently subject to any sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“OFAC”); and the Partnership will not
directly or indirectly use the proceeds of the sale of the Securities, or lend, contribute
or otherwise make available such proceeds to any subsidiary, joint venture partner or other
person or entity, for the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC.
Any certificate signed by any officer of ETP LLC and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the Securities shall be deemed a
representation and warranty by the Partnership, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Partnership agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Partnership, at the
purchase price set forth in Schedule I hereto, the number of Underwritten Securities
set forth opposite such Underwriter’s name in Schedule II hereto.
(b) Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Partnership hereby grants an option to the several
Underwriters to purchase, severally and not jointly, up to the number of Option Securities
set forth in Schedule I hereto at the same purchase price per share as the
Underwriters shall pay for the Underwritten Securities. Said option may be exercised in
whole or in part at any time on or before the 30th day after the date of the Final
Prospectus upon written or telegraphic notice by the Representatives to the Partnership
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setting forth the number of Option Securities as to which the several Underwriters are
exercising the option and the settlement date. The number of Option Securities to be
purchased by each Underwriter shall be the same percentage of the total number of Option
Securities to be purchased by the several Underwriters as such Underwriter is purchasing of
the Underwritten Securities, subject to such adjustments as the Representatives in their
absolute discretion shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the Underwritten Securities and
the Option Securities (if the option provided for in Section 2(b) hereof shall have been
exercised on or before the third Business Day immediately preceding the Closing Date) shall be made
on the date and at the time specified in Schedule I hereto or at such time on such later
date not more than four Business Days after the foregoing date as the Representatives shall
designate, which date and time may be postponed by agreement between the Representatives and the
Partnership or as provided in Section 9 hereof (such date and time of delivery and payment
for the Securities being herein called the “Closing Date”). Delivery of the Securities shall be
made to the Representatives for the respective accounts of the several Underwriters against payment
by the several Underwriters through the Representatives of the purchase price thereof to or upon
the order of the Partnership by wire transfer payable in same-day funds to an account specified by
the Partnership. Delivery of the Underwritten Securities and the Option Securities shall be made
through the facilities of The Depository Trust Company unless the Representatives shall otherwise
instruct.
If the option provided for in Section 2(b) hereof is exercised after the third Business Day
immediately preceding the Closing Date, the Partnership will deliver the Option Securities (at the
expense of the Partnership) to the Representatives, c/o Morgan Xxxxxxx & Co. Incorporated, on the
date specified by the Representatives (which shall be within three Business Days after exercise of
said option) for the respective accounts of the several Underwriters, against payment by the
several Underwriters through the Representatives of the purchase price thereof to or upon the order
of the Partnership by wire transfer payable in same-day funds to an account specified by the
Partnership. If settlement for the Option Securities occurs after the Closing Date, the
Partnership will deliver to the Representatives on the settlement date for the Option Securities,
and the obligation of the Underwriters to purchase the Option Securities shall be conditioned upon
receipt of, supplemental opinions, certificates and letters confirming as of such date the
opinions, certificates and letters delivered on the Closing Date pursuant to Section 6
hereof.
4. Offering by Underwriters. It is understood that the several Underwriters propose
to offer the Securities for sale to the public as set forth in the Final Prospectus.
5. Agreements. The Partnership agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Partnership will
not file any amendment of the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Prospectus) to their Base Prospectus unless the Partnership
has furnished the Representatives a copy for your review prior to filing and will not file
any such proposed amendment or supplement to which the Representatives reasonably object.
The Partnership will cause the Final Prospectus, properly completed, and any supplement
thereto to be filed in a form approved by the Representatives with
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the Commission pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the Representatives of such
timely filing. The Partnership will promptly advise the Representatives (i) when the Final
Prospectus, and any supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been filed or become
effective, (iii) prior to termination of the offering of the Securities, of any request by
the Commission or its staff for any amendment of the Registration Statement, or any Rule
462(b) Registration Statement, or for any supplement to the Final Prospectus or for any
additional information, (iv) prior to termination of the offering of the Securities, of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any notice objecting to its use or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by the Partnership of
any notification with respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the institution or threatening of any proceeding for such
purpose. The Partnership will use its best efforts to prevent the issuance of any such stop
order or the occurrence of any such suspension or objection to the use of the Registration
Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as
possible the withdrawal of such stop order or relief from such occurrence or objection,
including, if necessary, by filing an amendment to the Registration Statement or a new
registration statement and using its best efforts to have such amendment or new registration
statement declared effective as soon as practicable.
(b) If, at any time prior to the filing of the Final Prospectus pursuant to Rule
424(b), any event occurs as a result of which the Disclosure Package would include any
untrue statement of a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made or the
circumstances then prevailing not misleading, the Partnership will: (i) notify promptly the
Representatives so that any use of the Disclosure Package may cease until it is amended or
supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or
omission; and (iii) supply any amendment or supplement to the several Underwriters in such
quantities as they may reasonably request.
(c) If, at any time when a prospectus relating to the Securities is required to be
delivered under the Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the circumstances
under which they were made at such time not misleading, or if it shall be necessary to amend
the Registration Statement, file a new registration statement or supplement the Final
Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder,
including in connection with use or delivery of the Final Prospectus, the Partnership
promptly will (i) notify the Representatives of any such event, (ii) prepare and file with
the Commission, subject to the second sentence of paragraph (a) of this Section
5, an amendment or supplement or new registration statement that will correct such
statement or omission or effect such compliance, (iii) use its best efforts to have any
amendment to the Registration Statement or new registration statement declared
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effective as soon as practicable in order to avoid any disruption in use of the Final
Prospectus and (iv) supply any supplemented Final Prospectus to the several Underwriters in
such quantities as they may reasonably request. Neither the Representatives’ consent to nor
the Underwriters’ delivery of any such amendment or supplement shall constitute a waiver of
any of the conditions set forth in Section 6 hereof.
(d) As soon as practicable, but not later than 16 months after the date of this
Agreement, the Partnership will make generally available to its security holders and to the
Representatives an earnings statement or statements of the Partnership and the Subsidiaries
that will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(e) The Partnership will furnish to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration Statement (including
exhibits thereto) and to each other Underwriter a copy of the Registration Statement
(without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act (including in circumstances where such requirement may be
satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final
Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the
Representatives may reasonably request. The Partnership will pay the expenses of printing
or other production of all documents relating to the offering.
(f) The Partnership will arrange, if necessary, for the qualification of the Securities
for sale under the laws of such jurisdictions as the Representatives may designate and will
maintain such qualifications in effect so long as required for the distribution of the
Securities; provided that in no event shall the Partnership be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(g) The Partnership agrees that, unless it has or shall have obtained the prior written
consent of the Representatives, and each Underwriter, severally and not jointly, agrees with
the Partnership that, unless it has or shall have obtained, as the case may be, the prior
written consent of the Partnership, it has not made and will not make any offer relating to
the Securities that would constitute an Issuer Free Writing Prospectus or that would
otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be
filed by the Partnership with the Commission or retained by the Partnership under Rule 433;
provided that the prior written consent of the parties hereto shall be deemed to have been
given in respect of the Free Writing Prospectuses included in Schedule V hereto and
any electronic road show. Any such free writing prospectus consented to by the
Representatives or the Partnership is hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Partnership agrees that (x) it has treated and will treat, as the case may
be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it
has complied and will comply, as the case may be, with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including in respect of timely filing
with the Commission, legending and record keeping.
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(h) The Partnership will not, without the prior written consent of Xxxxxx Xxxxxxx & Co.
Incorporated, 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 or any affiliate of the Partnership or any
person in privity with the Partnership or any affiliate of the Partnership, directly or
indirectly, including the filing (or participation in the filing) of a registration
statement with the Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the meaning of Section
16 of the Exchange Act, any other Units or any securities convertible into, or exercisable
or exchangeable for, Units; or publicly announce an intention to effect any such
transaction, until the Business Day set forth on Schedule I hereto (the “Lock-up Period”),
provided, however, that the Partnership (i) may issue and sell Units upon the exercise of
options or warrants, or the conversion of other securities, disclosed as outstanding as of
the Execution Time and may issue or register restricted units, employee options or other
equity awards not exercisable during the Lock-up Period pursuant to the Amended and Restated
2004 Unit Plan described in the Registration Statement (excluding the exhibits thereto), the
Base Prospectus, the Preliminary Prospectus and the Final Prospectus, (ii) may issue or
register restricted units, employee options or other equity awards not exercisable during
the Lock-up Period pursuant to the Amended and Restated 2004 Unit Plan or the 2008 Long-Term
Incentive Plan described in the Partnership’s definitive proxy statement filed with the
Commission on November 21, 2008, and (iii) may file a registration statement on Form S-3, or
any amendment or prospectus supplement thereto (but not issue any Units or any securities
convertible into or exercisable or exchangeable for Units thereunder), for the purposes of
registering up to 5,750,000 Units and may publicly announce an intention to effect such
transaction.
(i) The Partnership will not take, directly or indirectly, any action designed to or
that would constitute or that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price of any security of the
Partnership to facilitate the sale or resale of the Securities.
(j) The Partnership will use the net proceeds received in connection with the Offering
in the manner described in the “Use of Proceeds” section of the Disclosure Package and,
except as disclosed in the Disclosure Package, the Partnership does not intend to use any of
the proceeds from the sale of the Securities hereunder to repay any outstanding debt owed to
any affiliate of any Underwriter.
(k) The Partnership agrees to pay the costs and expenses relating to the following
matters: (i) the preparation, printing or reproduction and filing with the Commission of
the Registration Statement (including financial statements and exhibits thereto), each
Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and
each amendment or supplement to any of them; (ii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting and packaging) of
such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus
and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them,
as may, in each case, be reasonably
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requested for use in connection with the offering and sale of the Securities; (iii) the
preparation, printing, authentication, issuance and delivery of certificates for the
Securities, including any stamp or transfer taxes in connection with the original issuance
and sale of the Securities; (iv) the printing (or reproduction) and delivery of this
Agreement, any blue sky memorandum and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering of the Securities; (v) the
registration of the Securities under the Exchange Act and the listing of the Securities on
the NYSE; (vi) any registration or qualification of the Securities for offer and sale under
the securities or blue sky laws of the several states (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters relating to such registration
and qualification); (vii) any filings required to be made with the FINRA (including filing
fees and the reasonable fees and expenses of counsel for the Underwriters relating to such
filings); (viii) the transportation and other expenses incurred by or on behalf of
Partnership representatives in connection with presentations to prospective purchasers of
the Securities; (ix) the fees and expenses of the Partnership’s accountants and the fees and
expenses of counsel (including local and special counsel) for the Partnership; and (x) all
other costs and expenses incident to the performance by the Partnership of its obligations
hereunder.
6. Conditions to the Obligations of the Underwriters. The obligations of the
Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be,
shall be subject to the accuracy of the representations and warranties on the part of the
Partnership contained herein as of the Execution Time, the Closing Date and any settlement date
pursuant to Section 3 hereof, to the accuracy of the statements of the Partnership or ETP
LLC made in any certificates pursuant to the provisions hereof, to the performance by the
Partnership of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and
within the time period required by Rule 424(b); and any material required to be filed by the
Partnership pursuant to Rule 433(d) under the Act, shall have been filed with the Commission
within the applicable time periods prescribed for such filings by Rule 433; and no stop
order suspending the effectiveness of the Registration Statement or any notice objecting to
its use shall have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Partnership shall have requested and caused (i) Xxxxxx & Xxxxxxx LLP, counsel
for the Partnership, to have furnished to the Representatives their opinions and negative
assurance letter, dated the Closing Date or any settlement date, as the case may be, and
addressed to the Underwriters, in the forms set forth in Exhibits X-0, X-0,
and B-3 hereto, and (ii) Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel
to the Partnership, to have furnished to the Representatives their opinion dated the Closing
Date or any settlement date, as the case may be, and addressed to the Underwriters, that the
Partnership Agreement constitutes a valid and binding obligation of the General Partner, and
is enforceable against the General Partner, in its capacity as general partner of the
Partnership, in accordance with its terms.
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(c) The Partnership shall have furnished to the Representatives an opinion of Xxxxxx X.
Xxxxx, Vice President, General Counsel and Secretary of ETP LLC, addressed to the
Underwriters, and dated the Closing Date or any settlement date, as the case may be, in the
form set forth in Exhibit C hereto.
(d) The Representatives shall have received from Xxxxxxx Xxxxx LLP, counsel for the
Underwriters, such opinion or opinions, dated the Closing Date and addressed to the
Underwriters, with respect to the issuance and sale of the Securities, the Registration
Statement, the Disclosure Package, the Final Prospectus (together with any supplement
thereto) and other related matters as the Representatives may reasonably require, and the
Partnership shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(e) The Partnership shall have furnished to the Representatives a certificate of ETP
LLC, signed by the Chief Executive Officer and the Chief Financial Officer, dated the
Closing Date or any settlement date, as the case may be, to the effect that the signers of
such certificate have carefully examined the Registration Statement, the Disclosure Package,
the Final Prospectus and any supplements or amendments thereto, as well as each electronic
road show used in connection with the offering of the Securities, and this Agreement and
that:
(i) the representations and warranties of the Partnership in this Agreement are
true and correct on and as of the Closing Date or any settlement date, as the case
may be, with the same effect as if made on the Closing Date or any settlement date,
as the case may be, and the Partnership has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied at or prior to
the Closing Date or any settlement date, as the case may be;
(ii) no stop order suspending the effectiveness of the Registration Statement
or any notice objecting to its use has been issued and no proceedings for that
purpose have been instituted or, to the Partnership’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the
Disclosure Package and the Final Prospectus (exclusive of any supplement thereto),
there has been no Material Adverse Effect, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated in the
Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) The Partnership shall have requested and caused Xxxxx Xxxxxxxx LLP to have
furnished to the Representatives, at the Execution Time and at the Closing Date or any
settlement date, as the case may be, letters addressed (which may refer to letters
previously delivered to one or more of the Representatives), dated respectively as of the
Execution Time and as of the Closing Date or any settlement date, as the case may be, in
form and substance satisfactory to the Representatives, which letters shall, (i) confirm
that they are independent public accountants within the meaning of the Act and are in
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compliance with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) state, as of the
date of such letters (or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is given in the Disclosure
Package and the Final Prospectus, as of a date not more than five days prior to the date of
such letters), the conclusions and findings of such firm with respect to the financial
information and other matters ordinarily covered by accountants’ “comfort letters” to
underwriters in connection with public offerings of securities.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information
is given in the Registration Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i)
any material change or material decrease specified in the letter or letters referred to in
paragraph (f) of this Section 6, or (ii) any change, or any development
involving a prospective change, in or affecting the condition (financial or otherwise),
earnings, business or properties of the Partnership and the Subsidiaries taken as a whole,
whether or not arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of
any amendment or supplement thereto), the effect of which, in any case referred to in
clause (i) or (ii) above, is, in the sole judgment of the Representatives,
so material and adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus
(exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the
rating of any of the Partnership’s or its Subsidiaries’ debt securities by any “nationally
recognized statistical rating organization” (as defined for purposes of Rule 436(g)(2) under
the Act) or any notice given of any intended or potential decrease in any such rating or of
a possible change in any such rating that does not indicate the direction of the possible
change.
(i) The Partnership shall have furnished to the Representatives such other documents
and certificates as to the accuracy and completeness of any statement in the Registration
Statement, the Base Prospectus, the Preliminary Prospectus, the Final Prospectus and any
Issuer Free Writing Prospectus as of the time of purchase and, if applicable, the additional
time of purchase, as the Representatives may reasonably request.
(j) The Securities shall have been listed and admitted and authorized for trading on
the NYSE, and satisfactory evidence of such actions shall have been provided to the
Representatives.
(k) At the Execution Time, the Partnership shall have furnished to the Representatives
each of the signed Lock-Up Agreements referred to in Section 1(cc) hereof, and each
such Lock-Up Agreement shall be in full force and effect at the Execution Time, the Closing
Date and the settlement date, as the case may be.
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(l) FINRA shall not have raised any objection with respect to the fairness or
reasonableness of the underwriting, or other arrangements of the transaction contemplated
hereby.
If any of the conditions specified in this Section 6 shall not have been fulfilled
when and as provided in this Agreement, or if any of the opinions and certificates mentioned above
or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Partnership in writing or by
telephone or facsimile confirmed in writing.
7. Reimbursement of Underwriters’ Expenses. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied, because of any termination pursuant to
Section 10 hereof or because of any refusal, inability or failure on the part of the
Partnership to perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Partnership will reimburse the Underwriters
severally through Xxxxxx Xxxxxxx & Co. Incorporated on demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution.
(a) The Partnership agrees to indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of each Underwriter, affiliates of any Underwriter
who have, or who are alleged to have, participated in the distribution of the Units as
underwriters, and each person who controls any Underwriter within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material fact contained
in the registration statement for the registration of the Securities as originally filed or
in any amendment thereof, or in the Base Prospectus, any Preliminary Prospectus or any other
preliminary prospectus supplement relating to the Securities, the Final Prospectus, any
Issuer Free Writing Prospectus, or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading,
and agrees to reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the
Partnership will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Partnership by or on behalf of any
Underwriter through the
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Representatives specifically for inclusion therein. This indemnity agreement will
be in addition to any liability which the Partnership may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless
the Partnership, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Partnership within the meaning of either the Act
or the Exchange Act, to the same extent as the foregoing indemnity from the Partnership to
each Underwriter, but only with reference to written information relating to such
Underwriter furnished to the Partnership by or on behalf of such Underwriter through the
Representatives specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. The Partnership acknowledges that the statements set forth
(i) in the last paragraph of the cover page regarding delivery of the Securities and, under
the heading “Underwriting” or “Plan of Distribution,” (ii) the list of Underwriters and
their respective participation in the sale of the Securities, (iii) the sentences related to
concessions and reallowances and (iv) the paragraph related to stabilization, syndicate
covering transactions and penalty bids in any Preliminary Prospectus, the Final Prospectus
or any Issuer Free Writing Prospectus constitute the only information furnished in writing
by or on behalf of the several Underwriters for inclusion in any Preliminary Prospectus, the
Final Prospectus or any Issuer Free Writing Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 8, notify
the indemnifying party in writing of the commencement thereof; but the failure so to notify
the indemnifying party (i) will not relieve it from liability under paragraph (a) or
(b) above unless and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to
represent the indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and expenses of
any separate counsel retained by the indemnified party or parties except as set forth
below); provided, however, that such counsel shall be satisfactory to the
indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have the right to
employ separate counsel (including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets
of, any such action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
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employed counsel satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action) unless such
settlement, compromise or consent (i) includes an unconditional release of the indemnified
party from all liability arising out of such action, suit, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure to act, by
or on behalf of any indemnified party.
(d) In the event that the indemnity provided in paragraph (a), (b) or
(c) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Partnership and the Underwriters severally agree to
contribute to the aggregate losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with investigating or defending the same)
(collectively “Losses”) to which the Partnership and one or more of the Underwriters may be
subject in such proportion as is appropriate to reflect the relative benefits received by
the Partnership on the one hand and by the Underwriters on the other from the offering of
the Securities; provided, however, that in no case shall any Underwriter
(except as may be provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting discount or
commission applicable to the Securities purchased by such Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is unavailable for any reason, the
Partnership and the Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative fault of the
Partnership on the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Partnership shall be deemed to be equal
to the total net proceeds from the offering (before deducting expenses) received by it, and
benefits received by the Underwriters shall be deemed to be equal to the total underwriting
discounts and commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to, among other things, whether
any untrue or any alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by the Partnership on the
one hand or the Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such untrue statement
or omission. The Partnership and the Underwriters agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 8, each person who controls an Underwriter within the
meaning of either the Act or the Exchange Act and each
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director, officer, employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls the Partnership within the
meaning of either the Act or the Exchange Act, each officer of the Partnership who shall
have signed the Registration Statement and each director of the Partnership shall have the
same rights to contribution as the Partnership, subject in each case to the applicable terms
and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall fail to purchase
and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be obligated severally to
take up and pay for (in the respective proportions which the amount of Securities set forth
opposite their names in Schedule II hereto bears to the aggregate amount of Securities set
forth opposite the names of all the remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however, that
in the event that the aggregate amount of Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate amount of Securities
set forth in Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter or the Partnership. In the event of a default
by any Underwriter as set forth in this Section 9, the Closing Date shall be postponed for
such period, not exceeding five Business Days, as the Representatives shall determine in order that
the required changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any
defaulting Underwriter of its liability, if any, to the Partnership and any nondefaulting
Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the absolute
discretion of the Representatives, by notice given to the Partnership prior to delivery of and
payment for the Securities, if at any time prior to such delivery and payment (i) trading in the
Partnership’s Units shall have been suspended by the Commission or the NYSE or trading in
securities generally on the NYSE shall have been suspended or limited or minimum prices shall have
been established on such exchange, (ii) a banking moratorium shall have been declared either by
Federal or New York State authorities, or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis, the effect of which is such as to make it, in the sole judgment of the
Representatives, impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by any Preliminary Prospectus or the Final Prospectus (exclusive of any
amendment or supplement thereto).
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Partnership or the officers of
ETP LLC and of the Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of any Underwriter or the
Partnership or any of the officers, directors, employees, agents or controlling persons referred to
in Section 8 hereof, and will survive delivery of and payment for the Securities. The
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provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Representatives, will be mailed, delivered or telefaxed to the
Representatives, Xxxxxx Xxxxxxx & Co. Incorporated, Attention: Global Capital Markets Syndicate
Desk, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000; Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Attention: Syndicate Registration, Copy to: ECM Legal, Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000;
Citigroup Global Markets Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General
Counsel, Facsimile No. (000) 000-0000; Barclays Capital Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Syndicate Registration, Facsimile No. (000) 000-0000; Credit Suisse
Securities (USA) LLC, 00 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: LCD-IBD, (Facsimile No.
(000) 000-0000); Xxxxx Fargo Securities, LLC, 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000;
and X.X. Xxxxxx Securities LLC, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity
Syndicate Desk, Facsimile No. (000) 000-0000; or, if sent to the Partnership, will be mailed,
delivered or telefaxed to it at Energy Transfer Partners, L.P., 0000 Xxx Xxxx Xxxxxx, Xxxxxx, Xxxxx
00000, Attention: General Counsel, Facsimile No. (000) 000-0000 and confirmed to it at (000)
000-0000, attention of the Legal Department.
13. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors, employees, agents and
controlling persons referred to in Section 8 hereof, and no other person will have any
right or obligation hereunder.
14. Representation of Underwriters. The Representatives will act for the several
Underwriters in connection with this financing, and any action under this Agreement taken by the
Representatives will be binding upon all the Underwriters.
15. No Fiduciary Duty. The Partnership hereby acknowledges that (a) the purchase and
sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between
the Partnership, on the one hand, and the Underwriters and any affiliate through which it may be
acting, on the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary
of the Partnership and (c) the Partnership’s engagement of the Underwriters in connection with the
offering and the process leading up to the offering is as independent contractors and not in any
other capacity. Furthermore, the Partnership agrees that it is solely responsible for making its
own judgments in connection with the offering (irrespective of whether any of the Underwriters has
advised or is currently advising the Partnership on related or other matters). The Partnership
agrees that it will not claim that the Underwriters have rendered advisory services of any nature
or respect, or owe an agency, fiduciary or similar duty to the Partnership, in connection with such
transaction or the process leading thereto.
16. Integration. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Partnership and the Underwriters, or any of them, with
respect to the subject matter hereof.
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17. Applicable Law. This Agreement will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed within the
State of New York. The Partnership hereby submits to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit or proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby. The
Partnership irrevocably and unconditionally waives any objection to the laying of venue of any suit
or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby
in Federal and state courts in the Borough of Manhattan in The City of New York and irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that any such suit or
proceeding in any such court has been brought in an inconvenient forum.
18. Waiver of Jury Trial. The Partnership hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby.
19. Counterparts. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
agreement.
20. Headings. The section headings used herein are for convenience only and shall not
affect the construction hereof.
21. Definitions. The terms that follow, when used in this Agreement, shall have the
meanings indicated.
“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder.
“Base Prospectus” shall mean the base prospectus referred to in paragraph 1(a) above
contained in the Registration Statement at the Execution Time.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day
on which banking institutions or trust companies are authorized or obligated by law to close in New
York City or Houston, Texas.
“Commission” shall mean the Securities and Exchange Commission.
“Disclosure Package” shall mean (i) the Base Prospectus, (ii) the Preliminary Prospectus used
most recently prior to the Execution Time, (iii) the Issuer Free Writing Prospectuses, if any, and
pricing information identified in Schedule V hereto, and (iv) any other Free Writing
Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of
the Disclosure Package.
“Effective Date” shall mean each date and time that the Registration Statement and any
post-effective amendment or amendments thereto became or becomes effective.
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“ETP Entities” shall mean, collectively, the Partnership, the General Partner and ETP LLC.
“ETP LLC” shall mean Energy Transfer Partners, L.L.C., a Delaware limited liability company
and general partner of the General Partner.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“Execution Time” shall mean the date and time that this Agreement is executed and delivered by
the parties hereto.
“Final Prospectus” shall mean the prospectus supplement relating to the Securities that was
first filed pursuant to Rule 424(b) after the Execution Time, together with the Base Prospectus.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“General Partner” shall mean Energy Transfer Partners GP, L.P., a Delaware limited partnership
and the general partner of the Partnership.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in
Rule 433.
“Preliminary Prospectus” shall mean any preliminary prospectus supplement to the Base
Prospectus referred to in paragraph 1(a) above which is used prior to the filing of the
Final Prospectus, together with the Base Prospectus.
“Registration Statement” shall mean the registration statement referred to in paragraph
1(a) above, including exhibits and financial statements and any prospectus supplement relating
to the Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part of such
registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event
any post-effective amendment thereto becomes effective prior to the Closing Date, shall also mean
such registration statement as so amended.
“Rule 158,” “Rule 163,” “Rule 164,” “Rule 172,” “Rule 405,” “Rule 415,” “Rule 424,” “Rule
430B” and “Rule 433” refer to such rules under the Act.
“Well-Known Seasoned Issuer” shall mean a well-known seasoned issuer, as defined in Rule 405.
-31-
If the foregoing is in accordance with the Representatives’ understanding of our agreement,
kindly sign and return to the Partnership one of the counterparts hereof, whereupon it will become
a binding agreement between the Partnership and the several Underwriters in accordance with its
terms.
| Very truly yours, Energy Transfer Partners, L.P. |
||||
| By: | Energy Transfer Partners GP, L.P., | |||
| its general partner | ||||
| By: | Energy Transfer Partners, L.L.C. | |||
| its general partner | ||||
| By: | /s/ Xxxxxx Xxxxxxx, Xx. | |||
| Name: | Xxxxxx Xxxxxxx, Xx. | |||
| Title: | Chief Financial Officer | |||
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
| Xxxxxx Xxxxxxx & Co. Incorporated |
||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Vice President | |||
| Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated |
||||
| By: | /s/ Xxxxx Xxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxx | |||
| Title: | Managing Director | |||
| Citigroup Global Markets Inc. |
||||
| By: | /s/ Xxxxxx Xxxx | |||
| Name: | Xxxxxx Xxxx | |||
| Title: | Managing Director | |||
| Barclays Capital Inc. |
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Managing Director | |||
-33-
| Credit Suisse Securities (USA) LLC |
||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Managing Director | |||
| Xxxxx Fargo Securities, LLC |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Director | |||
| X.X. Xxxxxx Securities LLC |
||||
| By: | /s/ Xxx Xxxxxxx-Xxxxx | |||
| Name: | Xxx Xxxxxxx-Xxxxx | |||
| Title: | Managing Director | |||
For themselves and the other
several Underwriters,
named in Schedule II to the
foregoing Agreement.
several Underwriters,
named in Schedule II to the
foregoing Agreement.
-34-
SCHEDULE I
Underwriting Agreement dated March 29, 2011
Registration Statement No. 333-171697
Representatives:
|
Xxxxxx Xxxxxxx & Co. Incorporated | |
| Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx | ||
Incorporated |
||
| Citigroup Global Markets Inc. | ||
| Barclays Capital Inc. | ||
| Credit Suisse Securities (USA) LLC | ||
| Xxxxx Fargo Securities, LLC | ||
| X.X. Xxxxxx Securities LLC |
Title, Purchase Price and Description of Securities:
Title: Common Units representing limited partnership interests
Number of Underwritten Securities to be sold by the Partnership: 12,350,000
Number of Option Securities to be sold by the Partnership: 1,852,500
Price per Unit to Public: $50.52
Price per Unit to the Underwriters — total: $48.97
Other provisions:
Closing Date, Time and Location: April 1, 2011 at 9:00 a.m. at the offices of Xxxxxx & Xxxxxxx LLP,
000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx 00000.
Type of Offering: Non-Delayed
Date referred to in Section 5(h) after which the Partnership may offer or sell securities issued by
the Partnership without the consent of: Xxxxxx Xxxxxxx & Co. Incorporated: May 13, 2011
Modification of items to be covered by the letter from Xxxxx Xxxxxxxx LLP delivered pursuant to
Section 6(f) at the Execution Time: March 28, 2011
Schedule I-1
SCHEDULE II
| Number of Underwritten | ||||
| Underwriters | Securities to be Purchased | |||
Xxxxxx Xxxxxxx & Co. Incorporated |
1,914,250 | |||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated |
1,605,500 | |||
Citigroup Global Markets Inc. |
1,605,500 | |||
Barclays Capital Inc. |
1,265,875 | |||
Credit Suisse Securities (USA) LLC |
1,265,875 | |||
Xxxxx Fargo Securities, LLC |
1,265,875 | |||
X.X. Xxxxxx Securities LLC |
1,111,500 | |||
RBC Capital Markets, LLC |
741,000 | |||
UBS Securities LLC |
741,000 | |||
Xxxxxxx Xxxxxxxx and Company |
277,875 | |||
Xxxxxx Xxxxxx & Company Inc. |
277,875 | |||
Xxxxxxxxxxx & Co. Inc. |
277,875 | |||
Total |
12,350,000 | |||
Schedule II-1
SCHEDULE III
| Entity | Jurisdiction in which registered | |
Energy Transfer Partners, L.L.C. |
Delaware | |
Energy Transfer Partners GP, L.P. |
Delaware | |
| Delaware |
Schedule III-1
SCHEDULE IV
Material Subsidiaries
| Entity | Jurisdiction in which registered | |
La Grange Acquisition, L.P. |
Texas | |
Heritage Operating, L.P. |
Delaware | |
Heritage ETC, L.P. |
Delaware | |
Energy Transfer Interstate Holdings, LLC |
Delaware | |
Titan Energy GP, L.L.C. |
Delaware | |
Titan Energy Partners, L.P. |
Delaware | |
Transwestern Pipeline Company, LLC |
Delaware | |
ETC Texas Pipeline, Ltd. |
Texas | |
Oasis Pipe Line Company Texas L.P. |
Texas | |
Energy Transfer Fuel, LP |
Delaware | |
HPL Houston Pipe Line Company, LLC |
Delaware | |
E T Fuel Pipeline, L.P. |
Delaware |
Schedule IV-1
SCHEDULE V
Schedule of Free Writing Prospectuses included in the Disclosure Package
Free Writing Prospectuses:
None.
Other information to be included in the Disclosure Package:
Price per Unit to Public: $50.52
Number of Units offered: 12,350,000
Schedule V-1
SCHEDULE VI
•
|
Xxxxxxxx Gathering Company, LLC, a Texas limited liability company | |
•
|
Energy Transfer del Peru S.R.L., a Peruvian limited liability company | |
•
|
Energy Transfer Fuel GP, LLC, a Delaware limited liability company | |
•
|
Energy Transfer Fuel, LP, a Delaware limited partnership | |
•
|
Energy Transfer Group, LLC, a Texas limited liability company | |
•
|
Energy Transfer International Holdings LLC, a Delaware limited liability company | |
•
|
Energy Transfer Interstate Holdings, LLC, a Delaware limited liability company | |
•
|
Energy Transfer Mexicana, LLC, a Delaware limited liability company | |
•
|
Energy Transfer Peru LLC, a Delaware limited liability company | |
•
|
Energy Transfer Retail Power, LLC, a Delaware limited liability company | |
•
|
Energy Transfer Technologies, Ltd., a Texas limited partnership | |
•
|
Energy Transfer Water Solutions JV, LLC, a Delaware limited liability company (50% interest) | |
•
|
ET Company I, Ltd., a Texas limited partnership | |
•
|
ET Fuel Pipeline, L.P., a Delaware limited partnership | |
•
|
ETC Canyon Pipeline, LLC, a Delaware limited liability company | |
•
|
ETC Compression, LLC, a Delaware limited liability company | |
•
|
ETC Energy Transfer, LLC, a Delaware limited liability company | |
•
|
ETC Fayetteville Express Pipeline, LLC, a Delaware limited liability company | |
•
|
ETC Fayetteville Operating Company, LLC, a Delaware limited liability company | |
•
|
ETC Gas Company Ltd., a Texas limited partnership | |
•
|
ETC Gathering, LLC, a Texas limited liability company | |
•
|
ETC Interstate Procurement Company, LLC, a Delaware limited liability company | |
•
|
ETC Intrastate Procurement Company, LLC, a Delaware limited liability company | |
•
|
ETC Katy Pipeline, Ltd., a Texas limited partnership | |
•
|
ETC Lion Pipeline, LLC, a Delaware limited liability company | |
•
|
ETC Marketing, Ltd., a Texas limited partnership | |
•
|
ETC Midcontinent Express Pipeline, L.L.C., a Delaware limited liability company | |
•
|
ETC Midcontinent Express Pipeline II, L.L.C., a Delaware limited liability company | |
•
|
ETC New Mexico Pipeline, L.P., a New Mexico limited partnership | |
•
|
ETC NGL Transport, LLC, a Texas limited liability company | |
•
|
ETC Northeast Pipeline, LLC, a Delaware limited liability company | |
•
|
ETC Oasis GP, LLC a Texas limited liability company | |
•
|
ETC Oasis, L.P., a Delaware limited partnership | |
•
|
ETC Texas Pipeline, Ltd., a Texas limited partnership | |
•
|
ETC Tiger Pipeline, LLC, a Delaware limited liability company | |
•
|
ETC Water Solutions, LLC, a Delaware limited liability company | |
•
|
ETP-Regency Midstream Holdings, LLC, a Delaware limited liability company (70% interest) | |
•
|
Fayetteville Express Pipeline, LLC, a Delaware limited liability company (50% interest) | |
•
|
FEP Arkansas Pipeline, LLC, an Arkansas limited liability company (50% interest of the sole member) | |
•
|
Fermaca Pipeline Anahauc, S. del X.X.xx CV, a Mexico limited liability company (50% interest acquired 5/2010) | |
•
|
Five Dawaco, LLC, a Texas limited liability company |
Schedule VI-1
•
|
Heritage Energy Resources, L.L.C., an Oklahoma limited liability company | |
•
|
Heritage ETC GP, L.L.C., a Delaware limited liability company | |
•
|
Heritage ETC, L.P., a Delaware limited partnership | |
•
|
Heritage Holdings, Inc., a Delaware corporation | |
•
|
Heritage LP, Inc., a Delaware corporation | |
•
|
Heritage Operating L.P., a Delaware limited partnership | |
•
|
Heritage Service Corp., a Delaware corporation | |
•
|
Houston Pipe Line Company LP, a Delaware limited partnership | |
•
|
HP Houston Holdings, L.P., a Delaware limited partnership | |
•
|
HPL Asset Holdings LP, a Delaware limited partnership | |
•
|
HPL Consolidation LP, a Delaware limited partnership | |
•
|
HPL GP, LLC, a Delaware limited liability company | |
•
|
HPL Holdings GP, L.L.C., a Delaware limited liability company | |
•
|
HPL Houston Pipe Line Company, LLC, a Delaware limited liability company | |
•
|
HPL Leaseco LP, a Delaware limited partnership | |
•
|
HPL Resources Company LP, a Delaware limited partnership | |
•
|
HPL Storage GP LLC, a Delaware limited liability company | |
•
|
LA GP, LLC, a Texas limited liability company | |
•
|
La Grange Acquisition, L.P., a Texas limited partnership | |
•
|
LG PL, LLC, a Texas limited liability company | |
•
|
LGM, LLC, a Texas limited liability company | |
•
|
M-P Oils Ltd., an Alberta corporation | |
•
|
Oasis Partner Company, a Delaware corporation | |
•
|
Oasis Pipe Line Company Texas L.P., a Texas limited partnership | |
•
|
Oasis Pipe Line Company, a Delaware corporation | |
•
|
Oasis Pipe Line Finance Company, a Delaware corporation | |
•
|
Oasis Pipe Line Management Company, a Delaware corporation | |
•
|
Oasis Pipeline, LP, a Texas limited partnership | |
•
|
SEC General Holdings, LLC, a Texas limited liability company | |
•
|
SEC Energy Realty GP, LLC, a Texas limited liability company | |
•
|
SEC Energy Products & Services, L.P., a Texas limited partnership | |
•
|
SEC-EP Realty Ltd., a Texas limited partnership | |
•
|
TETC, LLC, a Texas limited liability company | |
•
|
Texas Energy Transfer Company, Ltd., a Texas limited partnership | |
•
|
Texas Energy Transfer Power, LLC, a Texas limited liability company | |
•
|
Thunder River Venture III, LLC, a Colorado limited liability company | |
•
|
Titan Energy GP, L.L.C., a Delaware limited liability company | |
•
|
Titan Energy Partners, L.P., a Delaware limited partnership | |
•
|
Titan Propane LLC, a Delaware limited partnership | |
•
|
Titan Propane Services, Inc., a Delaware corporation | |
•
|
Transwestern Pipeline Company, LLC, a Delaware limited liability company | |
•
|
Whiskey Bay Gathering Company, LLC, a Texas limited liability company | |
•
|
Whiskey Bay Gas Company Ltd., a Texas limited partnership |
Schedule VI-2
EXHIBIT A
Energy Transfer Partners, L.P.
Public Offering of Units
Public Offering of Units
_________, 2011
Xxxxxx Xxxxxxx & Co. Incorporated,
As Representative of the several Underwriters,
As Representative of the several Underwriters,
c/o Morgan Xxxxxxx & Co, Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed Underwriting Agreement
(the “Underwriting Agreement”), between Energy Transfer Partners, L.P., a Delaware limited
partnership (the “Partnership”), and you as representatives of a group of Underwriters named
therein, relating to an underwritten public offering of common units representing limited partner
interests in the Partnership (the “Units”).
In order to induce you and the other Underwriters to enter into the Underwriting Agreement,
the undersigned will not, without the prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated,
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
undersigned or any affiliate of the undersigned or any person in privity with the undersigned or
any affiliate of the undersigned), directly or indirectly, including the filing (or participation
in the filing) of a registration statement with the Securities and Exchange Commission in respect
of, or establish 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 Securities and Exchange Commission promulgated thereunder with
respect to, any Units or any securities convertible into or exercisable or exchangeable for Units,
or publicly announce an intention to effect any such transaction, for a period of 45 days after the
date of the Underwriting Agreement (the “Lock-Up Period”). The foregoing sentence shall not apply
to (a) the registration of the offer and sale of Units as contemplated by the Underwriting
Agreement and the sale of the Units to the Underwriters (as defined in the Underwriting Agreement)
in the Offering, (b) bona fide gifts, provided the recipient thereof agrees in writing with the
Underwriters to be bound by the terms of this Lock-Up Agreement, (c) 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 Agreement or
Exhibit A
(d)transfers of Units by any holder of a Unit to any affiliate of the undersigned or any transferee in
a private transaction with the undersigned, in each case who delivers a written instrument agreeing
to be bound by the terms of this Lock-Up Agreement, provided that no filing under Section 16(a) of
the Exchange Act reporting a reduction in beneficial ownership of Units, shall be required or
shall be voluntarily made in respect of the transfer or distribution during the Lock-Up Period.
For purposes of this paragraph, “immediate family” shall mean the undersigned and the spouse, any
lineal descendent, father, mother, brother or sister of the undersigned.
If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as
defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated.
| Yours very truly, |
||||
| Name: | ||||
| Address: | ||||
Exhibit A
EXHIBIT A-1
LIST OF PARTIES SUBJECT TO LOCK-UPS
| Name | Position | |
Energy Transfer Equity, L.P. |
||
Xxxxx X. Xxxxxx
|
Chief Executive Officer and Chairman of the Board of Directors | |
Xxxxxxxx X. XxXxxx, III
|
Director, President and Chief Operating Officer | |
Xxxxxx Xxxxxxx, Xx.
|
Chief Financial Officer | |
Xxxxx X. Xxxxxxx
|
Chief Administrative and Compliance Officer | |
Xxxxxx X. Xxxxx
|
Vice President, General Counsel and Secretary | |
Xxx X. Xxxxx
|
Director | |
Xxxx X. Xxxxx
|
Director | |
Xxxxx X. Xxxxx
|
Director | |
Xxxx X. Xxxxxx
|
Director | |
K. Xxxx Xxxxxx
|
Director | |
Xxx Xxxxxxx, Jr.
|
Director | |
Xxxxxxx Xxxxx
|
Director |
Exhibit X-0
XXXXXXX X-0
OPINION OF XXXXXX & XXXXXXX LLP
(1) ETP LLC is a limited liability company under the laws of the State of Delaware, with
limited liability company power and authority to (A) own its properties and to conduct its business
as described in the Registration Statement, the Preliminary Prospectus and the Prospectus and (B)
act as the general partner of the General Partner. With your consent, based solely on certificates
from public officials, such counsel confirmed that ETP LLC is validly existing and in good standing
under the laws of the State of Delaware.
(2) Each of the General Partner and the Partnership is a limited partnership under the laws of
the State of Delaware, with limited partnership power and authority to (A) own its properties and
to conduct its business as described in the Registration Statement, the Preliminary Prospectus and
the Prospectus and (B) (i) in the case of the General Partner, to act as the general partner of the
Partnership, and (ii) in the case of the Partnership, to perform its obligations under the
Underwriting Agreement. With your consent, based solely on certificates from public officials,
such counsel confirmed that each of the General Partner and the Partnership is validly existing and
in good standing under the laws of the State of Delaware.
(3) The General Partner is the sole general partner of the Partnership, and the General
Partner owns an approximately 1.8% general partner interest in the Partnership (the “GP Interest”)
and all of the incentive distribution rights in the Partnership (the “Incentive Distribution
Rights”); such GP Interest and Incentive Distribution Rights have been duly authorized and validly
issued in accordance with the Partnership Agreement; and the General Partner is the record holder
of such GP Interest and Incentive Distribution Rights free and clear of all liens, claims, charges
and encumbrances (A) in respect of which a financing statement under the Uniform Commercial Code of
the State of Delaware naming the General Partner as debtor is on file with the Secretary of State
of the State of Delaware or (B) otherwise known to such counsel, other than those created by or
arising under the Delaware LP Act or the Partnership Agreement.
(4) The execution, delivery and performance of the Underwriting Agreement have been duly
authorized by all necessary limited partnership action and limited liability company action of the
Partnership and the General Partner, as applicable, and the Underwriting Agreement has been duly
executed and delivered by the Partnership.
(5) The Units to be issued and sold by the Partnership pursuant to the Underwriting Agreement
and the limited partner interests represented thereby have been duly authorized by all necessary
limited partnership action and limited liability company action of the Partnership and the General
Partner, as applicable, and, when issued to and paid for by you and the other Underwriters in
accordance with the terms of the Underwriting Agreement, will be validly issued in accordance with
the Partnership Agreement, fully paid (to the extent required under the Partnership Agreement) and
nonassessable (except as such nonassessability may be affected by Sections 17-303(a), 17-607 and
17-804 of the Delaware LP Act).
Exhibit B-1
(6) The equity securities of the Partnership, including the Units, conform in all material
respects to the description thereof contained in the Registration Statement, the Preliminary
Prospectus and the Prospectus.
(7) The Registration Statement has become effective under the Act. With your consent, based
solely on a telephonic confirmation by a member of the Staff of the Commission on April 1, 2011,
such counsel confirmed that no stop order suspending the effectiveness of the Registration
Statement has been issued under the Act and no proceedings therefore have been initiated by the
Commission. The Preliminary Prospectus has been filed in accordance with Rule 424(b) under the
Act, and the Prospectus has been filed in accordance with Rule 424(b) and Rule 430B under the Act.
(8) The Registration Statement at March 29, 2011, including the information deemed to be a
part thereof pursuant to Rule 430B under the Act, the Time of Sale Prospectus, as of March 29,
2011, and the Prospectus, as of its date, each appeared on their face to be appropriately
responsive in all material respects to the applicable form requirements for registration statements
on Form S-3 under the Act and the rules and regulations of the Commission thereunder; it being
understood, however, that such counsel expresses no view with respect to Regulation S-T or the
financial statements, schedules, or other financial data included in, incorporated by reference in
or omitted from the Registration Statement, the Time of Sale Prospectus or the Prospectus.
(9) The execution and delivery of the Underwriting Agreement and the issuance and sale of the
Units by the Partnership to you and the other Underwriters pursuant to the Underwriting Agreement
do not, on the date hereof, (i) violate the Governing Documents, (ii) result in the breach of or a
default under any of the Specified Agreements, (iii) violate any federal statute, law or
regulation, the laws of the State of New York or the laws of the State of Texas, the Delaware LP
Act, or the Delaware LLC Act or (iv) result in the creation of any security in, or lien upon, any
property or assets of the Partnership or any of its subsidiaries under any Specified Agreement.
(10) The execution and delivery of the Underwriting Agreement and the issuance and sale of the
Units by the Partnership to you and the other Underwriters pursuant to the Underwriting Agreement
do not, on the date hereof, require any consents, approvals, or authorizations to be obtained by
the Partnership from, or any registrations, declarations or filings to be made by the Partnership
with, any governmental authority under any federal statute, law or regulation, the laws of the
State of New York, the laws of the State of Texas, the Delaware LP Act or the Delaware LLC Act
applicable to the Partnership, except such as have been obtained under the Act, such as may be
required under the blue sky laws under any jurisdiction in connection with the purchase and
distribution of the Units by the Underwriters in the manner contemplated in the Underwriting
Agreement and in the Registration Statement, the Preliminary Prospectus and the Prospectus and such
other consents, approvals or authorizations as have been obtained or made.
(11) The statements included in the Preliminary Prospectus and the Prospectus under the
captions “Description of Units” and “Cash Distribution Policy,” insofar as such statements
Exhibit B-1
purport to constitute a summary of the terms of the Units are accurate summaries in all
material respects.
(12) The Partnership is not, and immediately after giving effect to the sale of the Units in
accordance with the Underwriting Agreement and the application of the proceeds as described in the
Time of Sale Prospectus and the Prospectus under the caption “Use of Proceeds,” will not be
required to be registered as an “investment company” within the meaning of the Investment Company
Act of 1940, as amended.
Exhibit B-1
EXHIBIT B-2
NEGATIVE ASSURANCE LETTER OF XXXXXX & XXXXXXX LLP
Based on our participation, review and reliance as described above, we advise you that no
facts came to our attention that caused us to believe that:
| • | the Registration Statement, as of March 29, 2011, including the information deemed to be a part of the Registration Statement pursuant to Rule 430B under the Act (together with the Incorporated Documents as of such date), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; | ||
| • | the Preliminary Prospectus, as of March 29, 2011, together with the Incorporated Documents at that date and the information included in Schedule V to the Underwriting Agreement, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; or | ||
| • | the Prospectus, as of its date or as of the date hereof (together with the Incorporated Documents at those dates), contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; |
it being understood that we express no belief with respect to the financial statements, schedules,
or other financial data included or incorporated by reference in, or omitted from, or any other
financial or accounting information included in or omitted from, the Registration Statement, the
Preliminary Prospectus, the Prospectus or the Incorporated Documents.
Exhibit B-2
EXHIBIT B-3
TAX OPINION OF XXXXXX & XXXXXXX
Based on the facts and subject to the qualifications, assumptions and limitations set forth
herein and in the Registration Statement, the Preliminary Prospectus Supplement and the Final
Prospectus, our opinion that is filed as Exhibit 8.1 to the Registration Statement is confirmed,
and the Underwriters may rely upon such opinion as if it were addressed to them.
Exhibit B-3
EXHIBIT C
OPINION OF XXXXXX X. XXXXX
1. The limited partners of the Partnership existing immediately prior to the time of
purchase set forth in this Agreement will own 194,268,429 Units and 8,853,832 Class E Units
(the “Existing Units”), representing an approximate 98.2% limited partner interest
in the Partnership.
2. Each of the entities listed on Annex II hereto has been duly incorporated or formed,
as the case may be, and is validly existing as a limited partnership or limited liability
company, as the case may be, and in good standing under the laws of its jurisdiction of
formation, with full power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement, the Disclosure Package and
the Final Prospectus.
3. Each of the ETP Entities is duly registered or qualified to do business as a foreign
limited liability company or limited partnership, as the case may be, for the transaction of
business under the laws of the jurisdictions set forth opposite its name on Annex I hereto,
and is in good standing in each jurisdiction where the ownership or leasing of its
properties or the conduct of its businesses requires such qualification, except where the
failure to be so registered or qualified and in good standing would not, individually or in
the aggregate, have a Material Adverse Effect.
4. The Partnership has an authorized and outstanding capitalization as set forth in the
Registration Statement, the Disclosure Package and the Final Prospectus; all of the issued
and outstanding Units have been duly authorized and validly issued, are fully paid (to the
extent required under the Partnership Agreement) and nonassessable (except as such
nonassessability may be affected by Sections 17-303(a), 17-607 or 17-804 of the Delaware LP
Act). Except for rights that have been effectively complied with or waived, there are no
preemptive rights, resale rights, rights of first refusal or similar rights to subscribe for
or to purchase, nor any restriction upon the voting or transfer of, any partnership or
member interests of any of the ETP Entities. None of the of the filing of the Registration
Statement or the offering, issuance and sale of the Units as contemplated by the
Underwriting Agreement and the Partnership Agreement gives rise to any rights for or
relating to the registration of any Units or other securities of the ETP Entities, other
than as have been waived or complied with.
5. Energy Transfer Equity, L.P. (“ETE”) owns 100% of the issued and outstanding
membership interests in ETP LLC; such membership interests have been duly authorized and
validly issued in accordance with the ETP LLC limited liability company agreement and are
fully paid (to the extent required under the ETP LLC limited liability company agreement)
and nonassessable (except as such nonassessability may be affected by matters described in
Section 18-607 of the Delaware LLC Act), free and clear of all liens, claims, charges or
encumbrances (“Liens”) except Liens arising under the ETE Credit Agreement.
Exhibit C
6. (a) ETP LLC is the sole general partner of the General Partner, with a 0.01% general
partner interest in the General Partner; (b) ETP LLC’s general partner interest has been
duly authorized and validly issued in accordance with the agreement of limited partnership
of the General Partner; (c) ETP LLC owns such general partner interest free and clear of all
Liens; (d) ETE owns 100% of the Class A limited partner interests of the General Partner and
100% of the Class B limited partner interests of the General Partner; and (e) such limited
partner interests have been duly authorized and validly issued in accordance with the
General Partner’s agreement of limited partnership and are fully paid (to the extent
required under the General Partner’s agreement of limited partnership) and nonassessable
(except as such nonassessability may be affected by Sections 17-303(a), 17-607 and 17-804 of
the Delaware LP Act and as otherwise described in the Registration Statement, the Base
Prospectus, the Preliminary Prospectus, the Final Prospectus or any Issuer Free Writing
Prospectus), free and clear of all Liens other than the Liens under the ETE Credit
Agreement.
7. (a) LA GP, LLC, a Texas limited liability company (“LA GP”), is the sole
general partner of ETC OLP, with a 0.1% general partner interest in ETC OLP, and such
general partner interest has been duly authorized and validly issued in accordance with the
ETC OLP LP Agreement; (b) the General Partner is the sole general partner of XXXX, with a
non-economic general partner interest in XXXX, and such general partner interest has been
duly authorized and validly issued in accordance with the XXXX XX Agreement; (c) Heritage
ETC is the sole member of ETIH OLP, and such membership interest has been duly authorized
and validly issued in accordance with the ETIH OLP LLC Agreement; (d) Titan GP is the sole
general partner of Titan OLP, with a 0.01% general partner interest in Titan OLP, and such
general partner interest has been duly authorized and validly issued in accordance with the
Titan OLP LP Agreement; (e) LA GP, the General Partner and Titan GP own their general
partner interests in ETC OLP, XXXX and Titan OLP, respectively, free and clear of all Liens
(i) in respect of which a financing statement under the Uniform Commercial Code of the State
of Delaware naming LA GP, the General Partner and Titan GP as debtor is on file in the
office of the Secretary of State of the State of Delaware or (ii) otherwise known to the
undersigned without independent investigation, other than those created by or arising under
Sections 17-303(a), 17-607 and 17-804 of the Delaware LP Act; (f) Heritage ETC and Heritage
LP are the sole limited partners of XXXX with a 99.999% limited partner interest and a
0.001% limited partner interest, respectively, in XXXX; (g) Heritage ETC is the sole limited
partner of ETC OLP, with a 99.9% limited partner interest in ETC OLP; (h) Heritage ETC is
the sole limited partner of Titan OLP, with a 99.99% limited partner interest in Titan OLP;
(i) the limited partner interests in ETC OLP, ETIH OLP and Titan OLP have been duly
authorized and validly issued in accordance with their respective limited partnership
agreements and are fully paid and nonassessable; and (j) such limited partner interests are
owned free and clear of all Liens (x) in respect of which a financing statement under the
Uniform Commercial Code of the State of Delaware naming Heritage ETC and Heritage LP as
debtor is on file in the office of the Secretary of State of the State of Delaware or (y)
otherwise known to the undersigned without independent
investigation, other than those created by or arising under Sections 17-303(a), 17-607
and 17-804 of the Delaware LP Act or Liens arising under the ETE Credit Agreement.
Exhibit C
8. The Units are duly listed, and admitted and authorized for trading, on the NYSE.
9. To the undersigned’s knowledge, there are no contracts, licenses, agreements, leases
or documents of a character which are required to be described in the Registration
Statement, the Disclosure Package or the Final Prospectus or to be filed as an exhibit to
the Registration Statement or any Incorporated Document which have not been so described or
filed as required.
10. To the undersigned’s knowledge, (i) none of the ETP Entities nor any Subsidiary are
a party to any legal or governmental action or proceeding that challenges the validity or
enforceability, or seeks to enjoin the performance, of the Underwriting Agreement; and (ii)
there are no actions, suits, claims, investigations or proceedings pending, threatened or
contemplated to which any of the ETP Entities or any of the Subsidiaries or any of their
respective directors or officers is or would be a party or to which any of their respective
properties is or would be subject at law or in equity, before or by any federal, state,
local or foreign governmental or regulatory commission, board, body, authority or agency
which are required to be described in the Registration Statement, the Disclosure Package or
the Final Prospectus but are not so described as required.
11. The Registration Statement, the Disclosure Package and the Final Prospectus (except
as to the financial statements and schedules, and other financial data derived therefrom,
contained in the Registration Statement, the Disclosure Package and the Prospectus, as to
which the undersigned expresses no opinion) comply as to form in all material respects with
the requirements of the Exchange Act and the rules and regulations promulgated thereunder;
and the conditions to the use of Form S-3 in connection with the offering and sale of the
Units as contemplated in the Underwriting Agreement have been satisfied.
The undersigned has participated in conferences with officers and other representatives of the
ETP Entities, representatives of the independent public accountants of the ETP Entities and
representatives of the Underwriters at which the contents of the Registration Statement, the
Disclosure Package and the Final Prospectus were discussed and, although the undersigned need not
pass upon and need not assume responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, the Disclosure Package or the Final Prospectus,
on the basis of the foregoing, nothing has come to the attention of the undersigned that causes the
undersigned to believe that (i) the Registration Statement, on the Effective Date, contained an
untrue statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, (ii) the Disclosure
Package (together with (a) the aggregate number of Units offered for sale pursuant to the Final
Prospectus and (b) the public offering price per unit, in the case of each of clause (a) and clause
(b), as reflected on the cover page of the Final Prospectus), as of as of the date of the
Underwriting Agreement and as of the date hereof, included or includes an untrue statement of a
material fact or omitted or omits 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 or
(iii) the Final Prospectus, as of its date and the date hereof, included or includes an untrue
statement of a
Exhibit C
material fact or omitted or omits 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 the undersigned need not express any opinion in this paragraph with
respect to the financial statements and schedules, and other financial data derived therefrom,
included in the Registration Statement, the Disclosure Package or the Final Prospectus).
Exhibit C
ANNEX I
| ETP Entities | Jurisdiction of Formation | Jurisdictions of Foreign Qualifications or Registration | ||
Energy Transfer Partners, L.L.C.
|
Delaware | Alabama, Arizona, California, Colorado, Florida, Georgia, Idaho, Illinois, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Vermont, Virginia, Washington, Wyoming | ||
Energy Transfer Partners GP,
L.P.
|
Delaware | Alabama, Arizona, California, Colorado, Florida, Georgia, Illinois, Indiana, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Vermont, Virginia, Washington, and Wyoming | ||
| Delaware | Kentucky (registered under ET Partners LP), Louisiana, New York, Oklahoma (registered under ETP Partners LP), Texas |
Annex I
ANNEX II
Material Subsidiaries
| Entity | Jurisdiction in which registered | |
La Grange Acquisition, L.P.
|
Texas | |
Heritage Operating, L.P.
|
Delaware | |
Heritage ETC, L.P.
|
Delaware | |
Energy Transfer Interstate Holdings, LLC
|
Delaware | |
Titan Energy GP, L.L.C.
|
Delaware | |
Titan Energy Partners, L.P.
|
Delaware | |
Transwestern Pipeline Company, LLC
|
Delaware | |
ETC Texas Pipeline, Ltd.
|
Texas | |
Oasis Pipe Line Company Texas L.P.
|
Texas | |
Energy Transfer Fuel, LP
|
Delaware | |
HPL Houston Pipe Line Company, LLC
|
Delaware | |
E T Fuel Pipeline, L.P.
|
Delaware |
Annex II
