EXHIBIT 1.1
ENTERPRISE PRODUCTS PARTNERS L.P.
__________ COMMON UNITS
REPRESENTING LIMITED PARTNER INTERESTS
FORM OF UNDERWRITING AGREEMENT FOR COMMON UNITS
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[Name and address of Underwriters]
Ladies and Gentlemen:
Enterprise Products Partners L.P., a Delaware limited partnership (the
"Partnership"), proposes to issue and sell to the several Underwriters named in
Schedule 1 hereto (the "Underwriters") _______ Common Units (the "Firm Units"),
each representing a limited partner interest in the Partnership (the "Common
Units"). In addition, the Partnership proposes to grant to the Underwriters an
option to purchase up to an additional ______ Common Units, on the terms and for
the purposes set forth in Section 2 (the "Option Units"). The Firm Units and the
Option Units, if purchased, are hereinafter collectively called the "Units."
Capitalized terms used but not defined herein shall have the same meanings given
them in the Partnership Agreement (as defined herein).
This is to confirm the agreement among Enterprise Products GP, LLC, a
Delaware limited liability company (the "General Partner"), the Partnership and
Enterprise Products Operating L.P., a Delaware limited partnership (the
"Operating Partnership"), (collectively, the "Enterprise Parties") and the
Underwriters concerning the purchase of the Firm Units and the Option Units from
the Partnership by the Underwriters.
1. Representations, Warranties and Agreements of the Enterprise Parties.
Each of the Enterprise Parties represents and warrants to, and agrees with, each
Underwriter that:
(a) Definitions. The Partnership and the Operating Partnership have filed
with the Securities and Exchange Commission (the "Commission") a registration
statement on Form S-3 (file number 333-102778), including a prospectus, relating
to the Units, and the Partnership has filed with, or transmitted for filing to,
or shall promptly hereafter file with or transmit for filing to, the Commission
a prospectus supplement (the "Prospectus Supplement") specifically relating to
the Units pursuant to Rule 424 under the Securities Act of 1933, as amended (the
"Securities Act"). The registration statement as amended at the date of the
Underwriting Agreement, including information, if any, deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act, is hereinafter referred to as the "Registration Statement."
The term "Basic Prospectus" means the prospectus included in the Registration
Statement. The term "Prospectus" means the Basic Prospectus together with the
Prospectus Supplement. The term "Preliminary Prospectus" means a preliminary
prospectus supplement specifically relating to the Units, together with the
Basic Prospectus. As used herein, the terms "Registration Statement," "Basic
Prospectus," "Prospectus" and "Preliminary Prospectus" shall include in each
case the documents, if any, incorporated by reference therein (the "Incorporated
Documents"). The terms "supplement,"
"amendment" and "amend" as used herein shall include the filing of all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Underwriting Agreement by the Partnership with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). For purposes of this Agreement, "Effective Time" means the date
and time the Registration Statement became effective.
(b) Effectiveness. The Registration Statement has become effective under
the Securities Act; no stop order suspending the effectiveness of the
Registration Statement is in effect; and no proceedings for such purpose are
pending before or, to the knowledge of the Enterprise Parties, threatened by the
Commission.
(c) No Material Misstatements or Omissions. The Registration Statement
conforms, and any further amendments or supplements to the Registration
Statement will, when they become effective, conform in all material respects to
the requirements of the Securities Act and the rules and regulations of the
Commission thereunder (the "Rules and Regulations") and do not and will not, as
of the applicable effective date, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. The Prospectus and any supplement or
amendment thereto when filed with the Commission under Rule 424(b) will conform
in all material respects to the requirements of the Securities Act and the Rules
and Regulations, and do not or 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. Each forward-looking statement (within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act) made by
the Partnership in such documents, including (but not limited to) any statements
with respect to future available cash or future cash distributions of the
Partnership or the anticipated ratio of taxable income to distributions, was
made or will be made with a reasonable basis and in good faith. Notwithstanding
the foregoing, no representation or warranty is made as to information contained
in or omitted from the Registration Statement or the Prospectus in reliance upon
and in conformity with written information furnished to the Partnership by or on
behalf of any Underwriter specifically for inclusion therein. The Incorporated
Documents heretofore filed with the Commission, when they were filed, conformed
in all material respects to the requirements of the Exchange Act and the rules
and regulations of the Commission thereunder and did not, as of the time each
such document was filed, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading. Any further Incorporated Documents so filed
will, when they are filed, conform in all material respects to the requirements
of the Exchange Act and the rules and regulations of the Commission thereunder
and will not, as of the time each such document is filed, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
(d) Formation and Qualification of the Partnership. Each of the General
Partner, the Partnership, the Operating Partnership and their respective
subsidiaries listed on Schedule 2 hereto (collectively, the "Partnership
Entities," and the subsidiaries listed on Schedule 2 hereto, the "Subsidiaries")
has been duly formed and is validly existing in good standing under the laws of
their respective jurisdictions of formation with all corporate, limited
liability company or partnership power and authority necessary to own or hold
their respective
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properties and conduct the businesses in which they are engaged and, in the case
of the General Partner, to act as general partner of the Partnership and the
Operating Partnership, in each case in all material respects as described in the
Registration Statement and the Prospectus. Each Partnership Entity is duly
qualified to do business and is in good standing as a foreign corporation,
limited liability company or partnership, as the case may be, in each
jurisdiction in which its ownership or lease of property or the conduct of its
businesses requires such qualification, except where the failure to so qualify
would not, individually or in the aggregate, have a material adverse effect on
the condition (financial or otherwise), results of operations, business or
prospects of the Partnership Entities taken as a whole (a "Material Adverse
Effect") or subject the limited partners of the Partnership to any material
liability or disability.
(e) Ownership of General Partner. EPC Partners II, Inc. owns ___% of the
issued and outstanding membership interests in the General Partner; Xxx Xxxxxx
LLC owns ___% of the issued and outstanding membership interests in the General
Partner; and Shell US Gas & Power LLC, a Delaware limited liability company and
an affiliate of Shell Oil Company, owns ___% of the issued and outstanding
membership interests in the General Partner; such membership interests have been
duly authorized and validly issued in accordance with the limited liability
company agreement of the General Partner; and each of EPC Partners II, Inc. and
Xxx Xxxxxx LLC owns such membership interests free and clear of all liens,
encumbrances, security interests, equities, charges or claims, in each case
other than liens in favor of Enterprise Products Company's lenders.
(f) Ownership of General Partner Interest in the Partnership. The General
Partner is the sole general partner of the Partnership with a 1.0% general
partner interest in the Partnership (including the right to receive Incentive
Distributions (as defined in the Partnership Agreement)); such general partner
interest has been duly authorized and validly issued in accordance with the
Amended and Restated Agreement of Limited Partnership of the Partnership, as
amended to date (as the same may be amended and restated at the Closing Date,
the "Partnership Agreement"); and the General Partner owns such general partner
interest free and clear of all liens, encumbrances, security interests,
equities, charges or claims.
(g) Ownership of Operating Partnership. The General Partner is the sole
general partner of the Operating Partnership with a 1.0101% general partner
interest in the Operating Partnership; such general partner interest has been
duly authorized and validly issued in accordance with the Amended and Restated
Agreement of Limited Partnership of the Partnership, as amended to date (as the
same may be amended and restated at the Closing Date, the "Operating Partnership
Agreement"); and the General Partner owns such general partner interest free and
clear of all liens, encumbrances, security interests, equities, charges or
claims. The Partnership is the sole limited partner of the Operating Partnership
with a 98.9899% limited partner interest in the Operating Partnership; such
limited partner interest has been duly authorized and validly issued in
accordance with the Operating Partnership Agreement and is fully paid (to the
extent required under the Operating Partnership Agreement) and non-assessable
(except as such non-assessability may be affected by Section 17-607 of the
Delaware Revised Uniform Limited Partnership Act (the "Delaware LP Act") and as
otherwise described in the Prospectus); and the Partnership owns such limited
partner interest free and clear of all liens, encumbrances, security interests,
equities, charges or claims.
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(h) Capitalization. As of the date hereof, the issued and outstanding
limited partner interest of the Partnership consists of _______ Common Units,
_______ Special Units and _______ Subordinated Units. All outstanding Common
Units, Special Units and Subordinated Units and the limited partner interests
represented thereby have been duly authorized and validly issued in accordance
with the Partnership Agreement and are fully and (to the extent required under
the Partnership Agreement) and non-assessable (except as such non-assessability
may be affected by Section 17-607 of the Delaware LP Act and as otherwise
disclosed in the Prospectus). Enterprise Products Company and Xxx X. Xxxxxx
collectively beneficially own _______ Common Units and _______ Subordinated
Units, in each case free and clear of all liens, encumbrances, security
interests, equities, charges or claims, other than liens in favor of Enterprise
Products Company's lenders.
(i) Valid Issuance of Firm Units. At the First Delivery Date or the Second
Delivery Date, as the case may be, the Firm Units or the Option Units, as the
case may be, and the limited partner interests represented thereby will be duly
authorized by the Partnership and, when issued and delivered to the Underwriters
against payment therefor in accordance with the terms hereof, will be validly
issued, fully paid (to the extent required under the Partnership Agreement) and
non-assessable (except as such non-assessability may be affected by Section
17-607 of the Delaware LP Act and as otherwise disclosed in the Prospectus).
(j) No Preemptive Rights, Registration Rights or Options. Except as
described in the Prospectus or for rights that have been waived, there are no
preemptive rights or other rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any partnership or membership
interests or capital stock in the Partnership Entities, in each case pursuant to
the organizational documents or any agreement or other instrument to which any
Partnership Entity is a party or by which any of them may be bound. Neither the
filing of the Registration Statement nor the offering or sale of the Units as
contemplated by this Agreement gives rise to any rights for or relating to the
registration of any Units or other securities of the Partnership or any of its
Subsidiaries, other than as provided in the Prospectus and the Partnership
Agreement or as have been waived. Except for options granted pursuant to
employee benefits plans, qualified unit option plans or other employee
compensation plans, there are no outstanding options or warrants to purchase any
partnership or membership interests or capital stock in any Partnership Entity.
Each of the Enterprise Parties has all requisite right, power and authority to
execute and deliver this Agreement and to perform its respective obligations
hereunder. The Partnership has all requisite power and authority to issue, sell
and deliver the Units in accordance with and upon the terms and conditions set
forth in this Agreement, the Partnership Agreement, the Registration Statement
and Prospectus. All action required to be taken by the Enterprise Parties or any
of their partners or members for the due and proper authorization, execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby has been duly and validly taken.
(k) Ownership of Subsidiaries. All of the outstanding shares of capital
stock, partnership interests or membership interests, as the case may be, of
each Subsidiary have been duly and validly authorized and issued, and are fully
paid and non-assessable (except as such non-assessability may be affected by
Section 17-607 of the Delaware LP Act, in the case of partnership interests, or
Section 18-607 of the Delaware Limited Liability Company Act (the "Delaware LLC
Act"), in the case of membership interests, and except as otherwise disclosed in
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the Prospectus), except that, for each Subsidiary of which the Operating
Partnership and/or the Partnership owns 50% or less of the outstanding capital
stock, partnership interests or membership interests, as the case may be, such
representation and warranty is limited to the ownership interest set forth on
Schedule 2 hereto. The Partnership and/or the Operating Partnership, as the case
may be, owns the shares of capital stock, partnership interests or membership
interests in each Subsidiary as set forth on Schedule 2 hereto free and clear of
any lien, charge, encumbrance (other than contractual restrictions on transfer),
security interest, restriction upon voting or any other claim of any third
party. None of the Enterprise Parties has any subsidiaries other than as set
forth on Schedule 2 hereto that, individually or in the aggregate, would be
deemed to be a "significant subsidiary" as such term is defined in Rule 405 of
the Act.
(l) Enforceability of Agreement. This Agreement has been duly authorized
and validly executed and delivered by each of the Enterprise Parties.
(m) Partnership Agreement. The Partnership Agreement has been duly
authorized, executed and delivered by the General Partner and is a valid and
legally binding agreement of the General Partner, enforceable against the
General Partner in accordance with its terms; the Operating Partnership
Agreement has been duly authorized, executed and delivered by the General
Partner and the Partnership and is a valid and legally binding agreement of the
General Partner and the Partnership in accordance with its terms; provided that,
with respect to each such agreement, the enforceability thereof may be limited
by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
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).
(n) No Conflicts. None of the offering, issuance and sale by the
Partnership of the Units, the execution, delivery and performance of this
Agreement by the Enterprise Parties, or the consummation of the transactions
contemplated hereby (i) conflicts or will conflict with or constitutes or will
constitute a violation of the agreement of limited partnership, limited
liability company agreement, certificate or articles of incorporation or bylaws
or other organizational documents of any of the Partnership Entities, (ii)
conflicts or will conflict with or constitutes or will constitute a breach or
violation of, or a default (or an event that, with notice or lapse of time or
both, would constitute such a default) under, any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which any of
the Partnership Entities is a party or by which any of them or any of their
respective properties may be bound, (iii) violates or will violate any statute,
law or regulation or any order, judgment, decree or injunction of any court,
arbitrator or governmental agency or body having jurisdiction over any of the
Partnership Entities or any of their properties or assets, or (iv) results or
will result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of any of the Partnership Entities, which conflicts,
breaches, violations, defaults or liens, in the case of clauses (ii), (iii) or
(iv), would, individually or in the aggregate, have a Material Adverse Effect.
(o) No Consents. No permit, consent, approval, authorization, order,
registration, filing or qualification ("consent") of or with any court,
governmental agency or body having jurisdiction over the Partnership Entities or
any of their respective properties is required in connection with the offering,
issuance and sale by the Partnership of the Units, the
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execution, delivery and performance of this Agreement by the Enterprise Parties
or the consummation by the Enterprise Parties of the transactions contemplated
by this Agreement, except (i) for such consents required under the Securities
Act, the Exchange Act and state securities or Blue Sky laws in connection with
the purchase and distribution of the Units by the Underwriters and (ii) for such
consents that have been, or prior to such Delivery Date will be, obtained.
(p) No Default. None of the Partnership Entities is (i) in violation of
its certificate or agreement of limited partnership, limited liability company
agreement, certificate or articles of incorporation or bylaws or other
organizational documents, (ii) in violation of any law, statute, ordinance,
administrative or governmental rule or regulation applicable to it or of any
order, judgment, decree or injunction of any court or governmental agency or
body having jurisdiction over it or has failed to obtain any license, permit,
certificate, franchise or other governmental authorization or permit necessary
to the ownership of its property or to the conduct of its business, or (iii) in
breach, default (and no event that, with notice or lapse of time or both, would
constitute such a default has occurred or is continuing) or violation in the
performance of any obligation, agreement or condition contained in any bond,
debenture, note or any other evidence of indebtedness or in any agreement,
indenture, lease or other instrument to which it is a party or by which it or
any of its properties may be bound, which breach, default or violation, in the
case of clause (ii) or (iii), would, if continued, have a Material Adverse
Effect, or could materially impair the ability of any of the Partnership
Entities to perform their obligations under this Agreement.
(q) Independent Public Accountants. The accountants, Deloitte & Touche
LLP, who have certified or shall certify the audited financial statements
included in the Registration Statement, any Preliminary Prospectus and the
Prospectus (or any amendment or supplement thereto) are independent certified
public accountants with respect to the Partnership and the General Partner as
required by the Securities Act and the Rules and Regulations.
(r) Financial Statements. The historical financial statements (including
the related notes and supporting schedules) contained or incorporated by
reference in the Registration Statement and the Prospectus (and any amendment or
supplement thereto) comply in all material respects with the applicable
requirements under the Securities Act and the Exchange Act (except that certain
supporting schedules are omitted) and present fairly in all material respects
the financial position, results of operations and cash flows of the entities
purported to be shown thereby on the basis stated therein at the respective
dates or for the respective periods and have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved, except to the extent disclosed therein. The financial
information contained or incorporated by reference in the Registration Statement
and the Prospectus (and any amendment or supplement thereto) under the caption
"Selected Historical and Pro Forma Financial and Operating Data" are derived
from the accounting records of the Partnership and its Subsidiaries and fairly
present the information purported to be shown thereby. The pro forma financial
information contained or incorporated by reference in the Registration Statement
and the Prospectus has been prepared on a basis consistent with the historical
financial statements contained or incorporated by reference in the Prospectus
(except for the pro forma adjustments specified therein), includes all material
adjustments to the historical financial information required by Rule 11-02 of
Regulation S-X
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under the Securities Act and the Exchange Act to reflect the transactions
described in the Prospectus, gives effect to assumptions made on a reasonable
basis and fairly presents the transactions described in the Prospectus. The
other historical financial and statistical information and data included or
incorporated by reference in the Prospectus are, in all material respects,
fairly presented.
(s) No Distribution of Other Offering Materials. None of the Partnership
Entities has distributed or, prior to the completion of the distribution of the
Units, will distribute, any prospectus (as defined under the Securities Act) in
connection with the offering and sale of the Units other than the Registration
Statement, any Preliminary Prospectus, the Prospectus or other materials, if
any, permitted by the Securities Act, including Rule 134 of the Rules and
Regulations.
(t) Conformity to Description of Units. The Units, when issued and
delivered against payment therefor as provided herein, will conform in all
material respects to the descriptions thereof contained in the Prospectus.
(u) Certain Transactions. Except as disclosed in the Registration
Statement and the Prospectus (or any amendment or supplement thereto),
subsequent to the respective dates as of which such information is given in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto), (i) none of the Partnership Entities has incurred any liability or
obligation, indirect, direct or contingent, or entered into any transactions,
not in the ordinary course of business, that, individually or in the aggregate,
is material to the Partnership Entities, taken as a whole, or (ii) there has not
been any material change in the capitalization or material increase in the
long-term debt of the Partnership Entities or any dividend or distribution of
any kind declared, paid or made by the Partnership on any class of its
partnership interests.
(v) No Omitted Descriptions. There are no legal or governmental
proceedings pending or, to the knowledge of the Enterprise Parties, threatened
or contemplated, against any of the Partnership Entities, or to which any of the
Partnership Entities is a party, or to which any of their respective properties
or assets is subject, that are required to be described in the Registration
Statement or the Prospectus but are not described as required, and there are no
agreements, contracts, indentures, leases or other instruments that are required
to be described in the Registration Statement or the Prospectus or to be filed
as an exhibit to the Registration Statement that are not described or filed as
required by the Securities Act or the Rules and Regulations.
(w) Title to Properties. Each Partnership Entity has (i) good and
indefeasible title to all its interests in its properties that are material to
the operations of the Partnership Entities, taken as a whole, and (ii) good and
marketable title in fee simple to, or valid rights to lease or otherwise use,
all items of other real and personal property which are material to the business
of the Partnership Entities, in each case free and clear of all liens,
encumbrances, claims and defects and imperfections of title except such as (1)
do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the
Partnership Entities, (2) could not reasonably be expected to have a Material
Adverse Effect or (3) are described, and subject to the limitations contained,
in the Prospectus.
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(x) Right-of-Way. Each of the Partnership Entities has such consents,
easements, rights-of-way or licenses from any person ("rights-of-way") as are
necessary to conduct its business in the manner described in the Prospectus,
subject to such qualifications as may be set forth in the Prospectus and except
for such rights-of-way the failure of which to have obtained would not have,
individually or in the aggregate, a Material Adverse Effect; each of the
Partnership Entities has fulfilled and performed all its material obligations
with respect to such rights-of-way and no event has occurred which allows, or
after notice or lapse of time would allow, revocation or termination thereof or
would result in any impairment of the rights of the holder of any such
rights-of-way, except for such revocations, terminations and impairments that
will not have a Material Adverse Effect, subject in each case to such
qualification as may be set forth in the Prospectus; and, except as described in
the Prospectus, none of such rights-of-way contains any restriction that is
materially burdensome to the Partnership Entities, taken as a whole.
(y) Permits. Each of the Partnership Entities has such material permits,
consents, licenses, franchises, certificates and authorizations of governmental
or regulatory authorities ("permits") as are necessary to own or lease its
properties and to conduct its business in the manner described in the
Prospectus, subject to such qualifications as may be set forth in the Prospectus
and except for such permits that, if not obtained, would not have, individually
or in the aggregate, a Material Adverse Effect; each of the Partnership Entities
has fulfilled and performed all its material obligations with respect to such
permits in the manner described, and subject to the limitations contained in the
Prospectus, and no event has occurred that would prevent the permits from being
renewed or reissued or that allows, or after notice or lapse of time would
allow, revocation or termination thereof or results or would result in any
impairment of the rights of the holder of any such permit, except for such
non-renewals, non-issues, revocations, terminations and impairments that would
not, individually or in the aggregate, have a Material Adverse Effect. None of
the Partnership Entities has received notification of any revocation or
modification of any such permit or has any reason to believe that any such
permit will not be renewed in the ordinary course.
(z) Books and Records. Each of the Partnership and the Operating
Partnership (i) makes and keeps books, records and accounts that, in reasonable
detail, accurately and fairly reflect the transactions and dispositions of
assets and (ii) maintains systems of internal accounting controls sufficient to
provide reasonable assurances that (A) transactions are executed in accordance
with management's general or specific authorization; (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets; (C) access to assets is permitted only in accordance
with management's general or specific authorization; and (D) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(aa) Related Party Transactions. No relationship, direct or indirect,
exists between or among the Partnership Entities on the one hand, and the
directors, officers, partners, customers or suppliers of the General Partner and
its Affiliates (other than the Partnership Entities) on the other hand, which is
required to be described in the Prospectus which is not so described.
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(bb) Environmental Compliance. There has been no storage, generation,
transportation, handling, treatment, disposal or discharge of any kind of toxic
or other wastes or other hazardous substances by any of the Partnership Entities
(or, to the knowledge of the Enterprise Parties, any other entity (including any
predecessor) for whose acts or omissions any of the Partnership Entities is or
could reasonably be expected to be liable) at, upon or from any of the property
now or previously owned or leased by any of the Partnership Entities or upon any
other property, in violation of any statute or any ordinance, rule, regulation,
order, judgment, decree or permit or which would, under any statute or any
ordinance, rule (including rule of common law), regulation, order, judgment,
decree or permit, give rise to any liability, except for any violation or
liability that could not reasonably be expected to have, individually or in the
aggregate with all such violations and liabilities, a Material Adverse Effect;
and there has been no disposal, discharge, emission or other release of any kind
onto such property or into the environment surrounding such property of any
toxic or other wastes or other hazardous substances with respect to which any of
the Enterprise Parties has knowledge, except for any such disposal, discharge,
emission or other release of any kind which could not reasonably be expected to
have, individually or in the aggregate with all such discharges and other
releases, a Material Adverse Effect.
(cc) Insurance. The Partnership Entities maintain insurance covering their
properties, operations, personnel and businesses against such losses and risks
as are reasonably adequate to protect them and their businesses in a manner
consistent with other businesses similarly situated. Except as disclosed in the
Prospectus, none of the Partnership Entities has received notice from any
insurer or agent of such insurer that substantial capital improvements or other
expenditures will have to be made in order to continue such insurance; all such
insurance is outstanding and duly in force on the date hereof and will be
outstanding and duly in force on each Delivery Date.
(dd) Litigation. There are no legal or governmental proceedings pending to
which any Partnership Entity is a party or of which any property or assets of
any Partnership Entity is the subject that, individually or in the aggregate, if
determined adversely to such Partnership Entity, could reasonably be expected to
have a Material Adverse Effect; and to the knowledge of the Enterprise Parties,
no such proceedings are threatened or contemplated by governmental authorities
or threatened by others.
(ee) No Labor Dispute. Except as disclosed in the Prospectus, no labor
dispute with the employees of the Partnership Entities that are engaged in the
business of the Partnership exists or, to the knowledge of the Enterprise
Parties, is imminent or threatened that is reasonably likely to result in a
Material Adverse Effect.
(ff) Intellectual Property. Each Partnership Entity owns or possesses
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 respect
with, and no Partnership Entity has received any notice of any claim of conflict
with, any such rights of others.
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(gg) Investment Company/Public Utility Holding Company. None of the
Partnership Entities is now, or after sale of the Units to be sold by the
Partnership hereunder and application of the net proceeds from such sale as
described in the Prospectus under the caption "Use of Proceeds" will be, (i) an
"investment company" or a company "controlled by" an "investment company" within
the meaning of the Investment Company Act of 1940, as amended (the "Investment
Company Act"), or (ii) a "holding company" or a "subsidiary company" or
"affiliate" of a "holding company" under the Public Utility Holding Company Act
of 1935, as amended.
(hh) NYSE Listing. The Units have been approved for listing on the New
York Stock Exchange, subject only to official notice of issuance.
(ii) Absence of Certain Actions. No action has been taken and no statute,
rule, regulation or order has been enacted, adopted or issued by any
governmental agency or body which prevents the issuance or sale of the Units in
any jurisdiction; no injunction, restraining order or order of any nature by any
federal or state court of competent jurisdiction has been issued with respect to
any Partnership Entity which would prevent or suspend the issuance or sale of
the Units or the use of the Preliminary Prospectus or the Prospectus in any
jurisdiction; no action, suit or proceeding is pending against or, to the
knowledge of the Enterprise Parties, threatened against or affecting any
Partnership Entity before any court or arbitrator or any governmental agency,
body or official, domestic or foreign, which could reasonably be expected to
interfere with or adversely affect the issuance of the Units or in any manner
draw into question the validity or enforceability of this Agreement or any
action taken or to be taken pursuant hereto; and the Partnership has complied
with any and all requests by any securities authority in any jurisdiction for
additional information to be included in the Preliminary Prospectus and the
Prospectus.
(jj) Other Sales. The Partnership has not sold or issued any Common Units
during the six-month period preceding the date of the Prospectus other than
Common Units issued pursuant to the Underwriting Agreement dated October 2, 2002
by and among the General Partner, the Partnership, the Operating Partnership and
the underwriters party thereto, employee benefit plans, qualified options plans
or other employee compensation plans or pursuant to outstanding options, rights
or warrants described in the Prospectus.
(kk) Form S-3. The conditions for the use of Form S-3, as set forth in the
General Instructions thereto, have been satisfied.
2. Purchase of the Units. On the basis of the representations and
warranties contained in, and subject to the terms and conditions of, this
Agreement, the Partnership agrees to sell _______ Firm Units to the several
Underwriters, and each of the Underwriters, severally and not jointly, agrees to
purchase the number of Firm Units set forth opposite that Underwriter's name in
Schedule 1 hereto. The respective purchase obligations of the Underwriters with
respect to the Firm Units shall be rounded among the Underwriters to avoid
fractional shares, as the Underwriters' representative (the "Representative")
may determine.
In addition, the Partnership grants to the Underwriters an option to
purchase up to _______ Option Units. Such option is granted for the purpose of
covering over-allotments in the
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sale of Firm Units and is exercisable as provided in Section 4 hereof. Option
Units shall be purchased severally for the account of the Underwriters in
proportion to the number of Firm Units set forth opposite the names of such
Underwriters in Schedule 1 hereto. The respective purchase obligations of each
Underwriter with respect to the Option Units shall be adjusted by the
Representative so that no Underwriter shall be obligated to purchase Option
Units other than in 100 Unit amounts.
The price of both the Firm Units and any Option Units shall be $_______
per Unit.
The Partnership shall not be obligated to deliver any of the Units to be
delivered on any Delivery Date, as the case may be, except upon payment for all
the Units to be purchased on such Delivery Date as provided herein.
3. Offering of Units by the Underwriters. Upon authorization by the
Representative of the release of the Firm Units, the several Underwriters
propose to offer the Firm Units for sale upon the terms and conditions set forth
in the Prospectus.
4. Delivery of and Payment for the Units. Delivery of and payment for the
Firm Units shall be made at the offices of Xxxxxx & Xxxxxx L.L.P. at _______
A.M., Houston, Texas time, on _______, 2003 or at such other date or place as
shall be determined by agreement between the Representative and the Partnership.
This date and time are sometimes referred to as the "First Delivery Date." On
the First Delivery Date, the Partnership shall deliver or cause to be delivered
the Firm Units to the Representative for the account of each Underwriter in book
entry form through Full Fast Program of the facilities of The Depository Trust
Company ("DTC") against payment to or upon the order of the Partnership of the
purchase price by wire transfer of immediately available funds. Time shall be of
the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter
hereunder.
The option granted in Section 2 will expire 30 days after the date of this
Agreement and may be exercised in whole or in part from time to time by written
notice being given to the Partnership by the Representative. Such notice shall
set forth the aggregate number of Option Units as to which the option is being
exercised, the names in which the Option Units are to be registered, the
denominations in which the Option Units are to be issued and the date and time,
as determined by the Representative, when the Option Units are to be delivered;
provided, however, that this date and time shall not be earlier than the First
Delivery Date nor earlier than the second business day after the date on which
the option shall have been exercised nor later than the fifth business day after
the date on which the option shall have been exercised.
The date and time the Option Units are delivered are sometimes referred to
as the "Second Delivery Date," and the First Delivery Date and the Second
Delivery Date are sometimes each referred to as a "Delivery Date."
Delivery of and payment for the Option Units shall be made at the place
specified in the first sentence of the first paragraph of this Section 4 (or at
such other place as shall be determined by agreement between the Representative
and the Partnership) at 9:00 A.M.,
-00-
Xxxxxxx, Xxxxx time, on the Second Delivery Date. On the Second Delivery Date,
the Partnership shall deliver or cause to be delivered the Option Units to the
Representative for the account of each Underwriter in book entry form through
the facilities of the DTC against payment to or upon the order of the
Partnership of the purchase price by wire transfer of immediately available
funds. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligation of
each Underwriter.
5. Further Agreements of the Enterprise Parties. Each of the Enterprise
Parties covenants and agrees with each Underwriter:
(a) Preparation of Prospectus and Registration Statement. (i) To prepare
the Prospectus in a form approved by the Underwriters and to file such
Prospectus pursuant to Rule 424(b) under the Securities Act not later than
Commission's close of business on the second business day following the
execution and delivery of this Agreement or, if applicable, such earlier time as
may be required by Rule 430A(a)(3) under the Securities Act; (ii) to make no
further amendment or any supplement to the Registration Statement or to the
Prospectus except as permitted herein; (iii) to advise the Underwriters,
promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed and to furnish the
Underwriters with copies thereof; (iv) to advise the Underwriters promptly after
it receives notice thereof of the issuance by the Commission of any stop order
or of any order preventing or suspending the use of any Preliminary Prospectus
or the Prospectus, of the suspension of the qualification of the Units for
offering or sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose or of any request by the Commission for the
amending or supplementing of the Registration Statement or the Prospectus or for
additional information; and (v) in the event of the issuance of any stop order
or of any order preventing or suspending the use of any Preliminary Prospectus
or the Prospectus or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal.
(b) Signed Copies of Registration Statements. To furnish promptly to each
of the Underwriters and to counsel for the Underwriters a signed copy of the
Registration Statement as originally filed with the Commission, and each
amendment thereto filed with the Commission, including all consents and exhibits
filed therewith.
(c) Exchange Act Reports. To file promptly all reports and any definitive
proxy or information statements required to be filed by the Partnership with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
("Exchange Act Reports") subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the offering
or sale of the Units.
(d) Copies of Documents to Underwriters. To deliver promptly to the
Underwriters such number of the following documents as the Underwriters shall
reasonably request: (i) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in each case
excluding exhibits) and (ii) each Preliminary Prospectus, the Prospectus and any
amended or supplemented Prospectus; and, if the delivery of a prospectus is
required at any time after the Effective Time in connection with the offering or
sale of the Units or any other securities relating thereto and if at such time
any events
-12-
shall have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be necessary
to amend or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply with the
Securities Act or the Exchange Act or with a request from the Commission, to
notify the Underwriters immediately thereof and to promptly prepare and, subject
to Section 5(e) hereof, file with the Commission an amended Prospectus or
supplement to the Prospectus which will correct such statement or omission or
effect such compliance.
(e) Filing of Amendment or Supplement. To file promptly with the
Commission any amendment to the Registration Statement or the Prospectus or any
supplement to the Prospectus that may, in the judgment of the Partnership or the
Underwriters, be required by the Securities Act or the Exchange Act or requested
by the Commission. Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus, any document
incorporated by reference in the Prospectus or any Prospectus pursuant to Rule
424 of the Rules and Regulations, to furnish a copy thereof to the Underwriters
and counsel for the Underwriters and not to file any such document to which the
Underwriters shall reasonably object after having been given reasonable notice
of the proposed filing thereof unless the Partnership is required by law to make
such filing.
(f) Reports to Security Holders. As soon as practicable after the
Effective Date, to make generally available to the Partnership's security
holders an earnings statement of the Partnership and its Subsidiaries (which
need not be audited) complying with Section 11(a) of the Securities Act and the
Rules and Regulations (including, at the option of the Partnership, Rule 158).
(g) Copies of Reports. For a period of two years following the Effective
Date, to furnish to the Underwriters copies of all materials furnished by the
Partnership to its security holders and all reports and financial statements
furnished by the Partnership to the principal national securities exchange upon
which the Units may be listed pursuant to requirements of or agreements with
such exchange or to the Commission pursuant to the Exchange Act or any rule or
regulation of the Commission thereunder.
(h) Blue Sky Laws. Promptly to take from time to time such actions as the
Underwriters may reasonably request to qualify the Units for offering and sale
under the securities or Blue Sky laws of such jurisdictions as the Underwriters
may designate and to continue such qualifications in effect for so long as
required for the resale of the Units; and to arrange for the determination of
the eligibility for investment of the Units under the laws of such jurisdictions
as the Underwriters may reasonably request; provided that no Partnership Entity
shall be obligated to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified or to file a general consent to service of process
in any jurisdiction.
(i) Lock-up Period; Lock-up Letters. For a period of 90 days from the date
of the Prospectus, not to, directly or indirectly, (i) offer for sale, sell,
pledge or otherwise dispose of (or enter into any transaction or device that is
designed to, or could be expected to, result in the
-13-
disposition by any person at any time in the future of) any Common Units or
securities convertible into, or exchangeable for Common Units, or sell or grant
options, rights or warrants with respect to any Common Units or securities
convertible into or exchangeable for Common Units (other than the grant of
options pursuant to option plans existing on the date hereof), or (ii) enter
into any swap or other derivatives transaction that transfers to another, in
whole or in part, any of the economic benefits or risks of ownership of such
Common Units, whether any such transaction described in clause (i) or (ii) above
is to be settled by delivery of Common Units or other securities, in cash or
otherwise, in each case without the prior written consent of the Representative
on behalf of the Underwriters; provided, however, that the foregoing
restrictions do not apply to: (A) the sale of Common Units by the Partnership to
the Underwriters in connection with the public offering contemplated hereby or
(B) Common Units, phantom units, restricted units and options to be issued by
the Partnership to employees and directors of Enterprise Products Company and
its affiliates under the Enterprise Products 1998 Long-Term Incentive Plan.
Enterprise Products Company, Enterprise Products Delaware Holdings L.P., Xxxxxx
Family 2000 Trust (formerly Enterprise Products 2000 Rabbi Trust), Xxxxxx Family
1998 Trust (formerly Enterprise Products 1998 Unit Option Trust), Enterprise
Products 1999 Unit Option Trust and each executive officer and director of the
General Partner shall furnish to the Underwriters, prior to the First Delivery
Date, a letter or letters, substantially in the form of Exhibit C hereto,
pursuant to which each such person shall agree not to, directly or indirectly,
(1) offer for sale, sell, pledge or otherwise dispose of (or enter into any
transaction or device that is designed to, or could be expected to, result in
the disposition by any person at any time in the future of) any Common Units or
securities convertible into or exchangeable for Common Units or (2) enter into
any swap or other derivatives transaction that transfers to another, in whole or
in part, any of the economic benefits or risks of ownership of such Common
Units, whether any such transaction described in clause (1) or (2) above is to
be settled by delivery of Common Units or other securities, in cash or
otherwise, in each case for a period of 90 days from the date of the Prospectus,
without the prior written consent of the Representative on behalf of the
Underwriters.
(j) Application of Proceeds. To apply the net proceeds from the sale of
the Units as set forth in the Prospectus.
(k) Investment Company. To take such steps as shall be necessary to ensure
that no Partnership Entity shall become an "investment company" as defined in
the Investment Company Act.
6. Expenses. The Partnership agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Units and any taxes payable in
that connection; (b) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement and any amendments and
exhibits thereto; (c) the costs of printing and distributing the Registration
Statement as originally filed and each amendment thereto and any post-effective
amendments thereof (including, in each case, exhibits), each Preliminary
Prospectus, the Prospectus and any amendment or supplement to the Prospectus,
all as provided in this Agreement; (d) the costs of producing and distributing
this Agreement, any underwriting and selling group documents and any other
related documents in connection with the offering, purchase, sale and delivery
of the Units; (e) the filing fees incident to securing the review, if
applicable, by the National Association of Securities Dealers, Inc. of the terms
of sale of the
-14-
Units; (f) any applicable listing or other similar fees; (g) the fees and
expenses of preparing, printing and distributing a Blue Sky Memorandum
(including related fees and expenses of counsel to the Underwriters); (h) the
cost of printing certificates representing the Units; (i) the costs and charges
of any transfer agent or registrar; (j) the costs and expenses of the
Partnership relating to investor presentations on any "road show" undertaken in
connection with the marketing of the offering of the Units, including, without
limitation, expenses associated with the production of road show slides and
graphics, fees and expenses of any consultants engaged in connection with the
road show presentations with the prior approval of the Partnership, travel and
lodging expenses of the representatives and officers of the Partnership and any
such consultants; and (k) all other costs and expenses incident to the
performance of the obligations of the Partnership under this Agreement; provided
that, except as provided in this Section 6 and in Section 11 hereof, the
Underwriters shall pay their own costs and expenses, including the costs and
expenses of their counsel, any transfer taxes on the Units which they may sell
and the expenses of advertising any offering of the Units made by the
Underwriters.
7. Conditions of Underwriters' Obligations. The respective obligations of
the Underwriters hereunder are subject to the accuracy, when made and on each
Delivery Date, of the representations and warranties of the Enterprise Parties
contained herein, to the accuracy of the statements of the Enterprise Parties
and the officers of the General Partner made in any certificates delivered
pursuant hereto, to the performance by each of the Enterprise Parties of its
obligations hereunder and to each of the following additional terms and
conditions:
(a) The Prospectus shall have been timely filed with the Commission in
accordance with Section 5(a); no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus or otherwise shall
have been complied with to the reasonable satisfaction of the Underwriters.
(b) None of the Underwriters shall have discovered and disclosed to the
Partnership on or prior to such Delivery Date that the Prospectus or any
amendment or supplement thereto contains an untrue statement of a fact which, in
the opinion of counsel for the Underwriters, is material or omits to state any
fact which, in the opinion of such counsel, is material and is required to be
stated therein or is necessary to make the statements therein not misleading.
(c) All corporate, partnership and limited liability company proceedings
and other legal matters incident to the authorization, form and validity of this
Agreement, the Registration Statement and the Prospectus, and all other legal
matters relating to this Agreement and the transactions contemplated hereby
shall be reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Partnership shall have furnished to such counsel all
documents and information that they or their counsel may reasonably request to
enable them to pass upon such matters.
(d) Xxxxxx & Xxxxxx L.L.P. shall have furnished to the Underwriters their
written opinion, as counsel for the General Partner, addressed to the
Underwriters and dated such
-15-
Delivery Date, in form and substance satisfactory to the Underwriters,
substantially to the effect set forth in Exhibit A to this Agreement.
(e) Xxxxxxx X. Xxxxxxxx, Esq., shall have furnished to the Underwriters
his written opinion, as Chief Legal Officer of the Partnership, addressed to the
Underwriters and dated such Delivery Date, in form and substance reasonably
satisfactory to the Underwriters, substantially to the effect set forth in
Exhibit B hereto.
(f) The Underwriters shall have received from _______, counsel for the
Underwriters, such opinion or opinions, dated such Delivery Date, with respect
to such matters as the Underwriters may reasonably require, and the Partnership
shall have furnished to such counsel such documents and information as they may
reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Underwriters shall
have received from Deloitte & Touche LLP a letter or letters, in form and
substance satisfactory to the Underwriters, addressed to the Underwriters and
dated the date hereof (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance with
the applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date
hereof (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date hereof), the
conclusions and findings of such firm with respect to the financial information
and other matters ordinarily covered by accountants' "comfort letters" to
underwriters in connection with registered public offerings.
(h) With respect to the letter of Deloitte & Touche LLP referred to in the
preceding paragraph and delivered to the Underwriters concurrently with the
execution of this Agreement (the "initial letters"), the Partnership shall have
furnished to the Underwriters a letter (the "bring-down letter") of such
accountants, addressed to the Underwriters and dated such Delivery Date (i)
confirming that they are independent public accountants within the meaning of
the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation S-X
of the Commission, (ii) stating, as of the date of the bring-down letter (or,
with respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the Prospectus, as
of a date not more than five days prior to the date of the bring-down letter),
the conclusions and findings of such firm with respect to the financial
information and other matters covered by the initial letters and (iii)
confirming in all material respects the conclusions and findings set forth in
the initial letters.
(i) The Partnership shall have furnished to the Underwriters a
certificate, dated such Delivery Date, of the chief executive officer and the
chief financial officer of its general partner stating that (A) such officers
have carefully examined the Registration Statement and the Prospectus, (B) in
their opinion, the Registration Statement, including the documents incorporated
therein by reference, as of the Effective Time, did not include any untrue
statement of a material fact and did not omit to state a material fact required
to be stated therein or necessary in order to make the statements therein not
misleading, and the Prospectus, including
-16-
the Incorporated Documents, as of the date of the Prospectus and as of such
Delivery Date, did not and does not include any untrue statement of a material
fact and did not and does not omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, and (C) as of such Delivery Date, the
representations and warranties of the Enterprise Parties in this Agreement are
true and correct, the Enterprise Parties have complied with all their agreements
contained herein and satisfied all conditions on their part to be performed or
satisfied hereunder on or prior to such Delivery Date, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to the best of such
officer's knowledge, are contemplated by the Commission, and subsequent to the
date of the most recent financial statements contained in the Prospectus, there
has been no material adverse change in the financial position or results of
operations of the Partnership Entities, taken as a whole, or any change, or any
development involving a prospective material adverse change, in or affecting the
condition (financial or otherwise), results of operations or business of the
Partnership Entities, taken as a whole, except as set forth in the Prospectus.
(j) If any event shall have occurred on or prior to such Delivery Date
that requires the Partnership under Section 5(e) to prepare an amendment or
supplement to the Prospectus, such amendment or supplement shall have been
prepared, the Underwriters shall have been given a reasonable opportunity to
comment thereon as provided in Section 5(e) hereof, and copies thereof shall
have been delivered to the Underwriters reasonably in advance of such Delivery
Date.
(k) None of the Partnership Entities shall have sustained since the date
of the latest audited financial statements included or incorporated by reference
in the Prospectus any loss or interference with its business from fire, flood,
explosion or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, investigation, order or decree,
otherwise than as set forth or contemplated in the Prospectus; nor shall there
have been a change in the partners' capital, members' interests or long-term
debt of any of the Partnership Entities or any change, or any development
involving a prospective change, in or affecting the general affairs, management,
financial position, net worth or results of operations of the Partnership
Entities, otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any case under this Section 7(k), is, in the judgment of the
Representative, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Units
being delivered on such Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(l) No action shall have been taken and no statute, rule, regulation or
order shall have been enacted, adopted or issued by any governmental agency or
body which would, as of such Delivery Date, prevent the issuance or sale of the
Units; and no injunction, restraining order or order of any other nature by any
federal or state court of competent jurisdiction shall have been issued as of
such Delivery Date which would prevent the issuance or sale of the Units.
(m) Subsequent to the execution and delivery of this Agreement there shall
not have occurred any of the following: (i) trading in securities generally on
the New York Stock Exchange or the American Stock Exchange or in the
over-the-counter market or trading in any securities of the Partnership on any
exchange or in the over-the-counter market shall have been
-17-
suspended, the settlement of such trading generally shall have been materially
disrupted or minimum prices shall have been established on any such exchange or
such market by the Commission, by such exchange or by any other regulatory body
or governmental authority having jurisdiction, (ii) a banking moratorium shall
have been declared by federal or state authorities, (iii) the United States
shall have become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions including, without limitation, as a result of terrorist
activities after the date hereof (or the effect of international conditions on
the financial markets in the United States shall be such), as to make it, in the
judgment of the Representative, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or sale of the
Units being delivered on such Delivery Date on the terms and in the manner
contemplated by the Prospectus.
(n) The New York Stock Exchange shall have approved the Units for listing,
subject only to official notice of issuance.
All such opinions, certificates, letters and documents mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to the Underwriters and to counsel for the Underwriters.
8. Indemnification and Contribution.
(a) Each of the Enterprise Parties, jointly and severally, shall indemnify
and hold harmless each Underwriter, its officers and employees and each person,
if any, who controls any Underwriter within the meaning of the Securities Act,
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of Units), to which
that Underwriter, officer, employee or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in (A) any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (B) any written or electronically produced materials or
information electronically provided to investors by, or with the approval of,
the Partnership in connection with the marketing of the offering of the Common
Units ("Marketing Materials") including any road show or investor presentations
made to investors by the Partnership (whether in person or electronically), (ii)
the omission or alleged omission to state in the Registration Statement, or in
any amendment or supplement thereto, any material fact required to be stated
therein or necessary to make the statements therein not misleading, (iii) the
omission or alleged omission to state in any Preliminary Prospectus, the
Prospectus or in any amendment or supplement thereto any material fact necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading, or (iv) any act or failure to act or any alleged act
or failure to act by any Underwriter in connection with, or relating in any
manner to, the Units or the offering contemplated hereby, and which is included
as part of or referred to in any loss, claim, damage, liability or action
arising out of or based upon matters covered by clause (i), (ii) or (iii) above
(provided that no Enterprise Party shall be liable under this clause (iv) to the
extent
-18-
that it is determined in a final judgment by a court of competent jurisdiction
that such loss, claim, damage, liability or action resulted directly from any
such acts or failures to act undertaken or omitted to be taken by such
Underwriter through its gross negligence or willful misconduct), and shall
reimburse each Underwriter and each such officer, employee or controlling person
promptly upon demand for any legal or other expenses reasonably incurred by that
Underwriter, officer, employee or controlling person in connection with
investigating or defending or preparing to defend against or appearing as a
third-party witness in connection with any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that no Enterprise
Party shall be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement in or omission or alleged omission from
any such documents in reliance upon and in conformity with written information
concerning such Underwriter furnished to the Partnership through the
Underwriters by or on behalf of any Underwriter specifically for inclusion
therein which information consists solely of the information specified in
Section 8(e); provided, however, that the Enterprise Parties shall not be liable
to any Underwriter under the indemnity agreement in this Section 8(a) to the
extent, but only to the extent, that (x) such loss, claim, damage, or liability
of such Underwriter results from an untrue statement of a material fact or an
omission of a material fact contained in the Preliminary Prospectus, which
untrue statement or omission was completely corrected in the Prospectus dated
the Effective Date (the "Final Prospectus") and (y) the Partnership had
previously furnished sufficient quantities (as requested by the Underwriters) of
the Final Prospectus to the Underwriters within a reasonable amount of time
prior to such sale or such confirmation and (z) such Underwriter failed to
deliver the Final Prospectus, if required by law to have so delivered it, and
such delivery would have been a complete defense against the person asserting
such loss, claim, liability, expense or damage.
(b) Each Underwriter, severally and not jointly, shall indemnify and hold
harmless each Enterprise Party, the respective officers of the General Partner
who signed the Registration Statement, the directors of the General Partner, and
each person, if any, who controls the Enterprise Parties within the meaning of
the Securities Act or the Exchange Act (collectively referred to for purposes of
this Section 8(b) and Section 8(d) as the Partnership), from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which such person may become subject, whether commenced or
threatened, under the Securities Act, the Exchange Act, any other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement or the Prospectus or in
any amendment or supplement thereto, (ii) the omission or alleged omission to
state in the Registration Statement, or any amendment or supplement thereto, any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, or (iii) the omission or alleged omission to
state in any Preliminary Prospectus, the Prospectus or in any amendment or
supplement thereto any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning such Underwriter furnished to the
Partnership through the Underwriters by or on behalf of any Underwriter
specifically for inclusion therein which information consists solely of the
information specified in Section 8(e), and shall reimburse the Enterprise
Parties for any legal or other expenses
-19-
reasonably incurred by the Enterprise Parties in connection with investigating
or defending or preparing to defend against or appearing as a third party
witness in connection with any such loss, claim, damage, liability or action as
such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by such
failure and, provided further, that the failure to notify the indemnifying party
shall not relieve it from any liability which it may have to an indemnified
party otherwise than under this Section 8. If any such claim or action shall be
brought against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying party
to the indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that an indemnified party
shall have the right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel for the indemnified party will be at
the expense of such indemnified party unless (1) the employment of counsel by
the indemnified party has been authorized in writing by the indemnifying party,
(2) the indemnified party has reasonably concluded (based upon advice of counsel
to the indemnified party) that there may be legal defenses available to it or
other indemnified parties that are different from or in addition to those
available to the indemnifying party, (3) a conflict or potential conflict exists
(based upon advice of counsel to the indemnified party) between the indemnified
party and the indemnifying party (in which case the indemnifying party will not
have the right to direct the defense of such action on behalf of the indemnified
party) or (4) the indemnifying party has not in fact employed counsel reasonably
satisfactory to the indemnified party to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the indemnifying party or parties.
It is understood that the indemnifying party or parties shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees, disbursements and other charges of more than one
separate firm of attorneys (in addition to any local counsel) at any one time
for all such indemnified party or parties. Each indemnified party, as a
condition of the indemnity agreements contained in Sections 8(a) and 8(b), shall
use all reasonable efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall be liable for
any settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld), effect any
settlement,
-20-
compromise or consent to the entry of any judgment with respect to any pending
or threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement, compromise or consent includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
The obligations of the Enterprise Parties and the Underwriters in this
Section 8 are in addition to any other liability that the Enterprise Parties or
the Underwriters, as the case may be, may otherwise have, including in respect
of any breaches of representations, warranties and agreements made herein by any
such party.
(d) If the indemnification provided for in this Section 8 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 8(a) or 8(b) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action in respect thereof, (i) in such proportion
as shall be appropriate to reflect the relative benefits received by the
Partnership, on the one hand, and the Underwriters, on the other hand, from the
offering of the Units or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Partnership on the one hand and the Underwriters on the
other with respect to the statements or omissions that resulted in such loss,
claim, damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the
Partnership on the one hand and the Underwriters on the other with respect to
such offering shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Units purchased under this Agreement (before
deducting expenses) received by the Partnership, on the one hand, and the total
underwriting discounts and commissions received by the Underwriters with respect
to the Units purchased under this Agreement, on the other hand, bear to the
total gross proceeds from the offering of the Units under this Agreement, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Partnership or the
Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Partnership and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8 were to be determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage,
liability, or action in respect thereof, referred to above in this Section 8
shall be deemed to include, for purposes of this Section 8(d), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Units
underwritten by it and distributed to the public was offered to the public
exceeds the amount of any damages which such Underwriter has otherwise paid or
become liable to pay by reason of any untrue or alleged untrue statement or
omission or
-21-
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as provided in
this Section 8(d) are several in proportion to their respective underwriting
obligations and not joint.
(e) The Underwriters severally confirm and the Enterprise Parties
acknowledge that the statements with respect to the public offering of the Units
by the Underwriters set forth on the cover page of the Prospectus Supplement and
the statements in the table in the first paragraph, the concession and
reallowance figures in the _______ paragraph, and the statements in the ______
paragraphs under the "Underwriting" section of the Prospectus are correct and
constitute the only information concerning the Underwriters furnished in writing
to the Partnership by or on behalf of the Underwriters specifically for
inclusion in the Registration Statement and the Prospectus.
9. Defaulting Underwriters.
If, on either Delivery Date, any Underwriter defaults in the performance
of its obligations under this Agreement, the remaining non-defaulting
Underwriters shall be obligated to purchase the Units which the defaulting
Underwriter agreed but failed to purchase on such Delivery Date in the
respective proportions which the number of Firm Units set opposite the name of
each remaining non-defaulting Underwriter in Schedule 1 hereto bears to the
total number of Firm Units set opposite the names of all the remaining
non-defaulting Underwriters in Schedule 1 hereto; provided, however, that the
remaining non-defaulting Underwriters shall not be obligated to purchase any of
the Units on such Delivery Date if the total number of Units which the
defaulting Underwriter or Underwriters agreed but failed to purchase on such
date exceeds 9.09% of the total number of Units to be purchased on such Delivery
Date, and any remaining non-defaulting Underwriter shall not be obligated to
purchase more than 110% of the number of the Units which it agreed to purchase
on such Delivery Date pursuant to the terms of Section 2. If the foregoing
maximums are exceeded, the remaining non-defaulting Underwriters, or those other
underwriters satisfactory to the Representative who so agree, shall have the
right, but shall not be obligated, to purchase, in such proportion as may be
agreed upon among them, all the Units to be purchased on such Delivery Date. If
the remaining Underwriters or other underwriters satisfactory to the
Underwriters do not elect to purchase the Units which the defaulting Underwriter
or Underwriters agreed but failed to purchase on such Delivery Date, this
Agreement (or, with respect to the Second Delivery Date, the obligation of the
Underwriters to purchase, and of the Partnership to sell, the Option Units)
shall terminate without liability on the part of any non-defaulting Underwriter
or any Enterprise Party except that the Partnership will continue to be liable
for the payment of expenses to the extent set forth in Sections 6 and 11. As
used in this Agreement, the term "Underwriter" includes, for all purposes of
this Agreement unless the context requires otherwise, any party not listed in
Schedule 1 hereto who, pursuant to this Section 9, purchases Firm Units which a
defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Enterprise Parties for damages, including expenses
paid by the Partnership
-22-
pursuant to Sections 6 and 11, caused by its default. If other underwriters are
obligated or agree to purchase the Units of a defaulting Underwriter, either the
non-defaulting Underwriters or the Partnership may postpone the Delivery Date
for up to seven full business days in order to effect any changes that in the
opinion of counsel for the Partnership or counsel for the Underwriters may be
necessary in the Registration Statement, the Prospectus or in any other document
or arrangement.
10. Termination. The obligations of the Underwriters hereunder may be
terminated by the Representative by notice given to and received by the
Partnership prior to delivery of and payment for the Firm Units if, prior to
that time, any of the events described in Sections 7(l) or (m) shall have
occurred and be continuing or if the Underwriters shall decline to purchase the
Units for any reason permitted under this Agreement.
11. Reimbursement of Underwriters' Expenses. If the Partnership shall fail
to tender the Units for delivery to the Underwriters by reason of any failure,
refusal or inability on the part of any Enterprise Party to perform any
agreement on its part to be performed, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled by the Enterprise
Parties (including, without limitation, with respect to the transactions) is not
fulfilled, the Partnership will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including fees and disbursements of counsel) incurred by
the Underwriters in connection with this Agreement and the proposed purchase of
the Units, and upon demand the Partnership shall pay the full amount thereof to
the Underwriters. If this Agreement is terminated pursuant to Section 9 by
reason of the default of one or more Underwriters, the Partnership shall not be
obligated to reimburse any defaulting Underwriter on account of those expenses.
12. Notices. All statements, requests, notices and agreements hereunder
shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail or telecopy
transmission to _______ (Fax: _______) with a copy, in the case of any notice
pursuant to Section 8(c), to _______ (Fax: _______); and
(b) if to the Enterprise Parties, shall be delivered or sent by mail or
telecopy transmission to Enterprise Products Partners L.P., 0000 Xxxxx Xxxx
Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000-0000, Attention: Chief Legal Officer
(telecopier no.: 713-880-6570);
(c) provided, however, that any notice to an Underwriter pursuant to
Section 8(c) shall be delivered or sent by mail, telex or facsimile transmission
to such Underwriter at its address set forth in its acceptance telex to the
Underwriters, which address will be supplied to any other party hereto by the
Underwriters upon request. Any such statements, requests, notices or agreements
shall take effect at the time of receipt thereof. The Enterprise Parties shall
be entitled to act and rely upon any request, consent, notice or agreement given
or made on behalf of the Underwriters by the Representative on behalf of the
Underwriters.
13. Persons Entitled to Benefit of Agreement. This Agreement shall inure
to the benefit of and be binding upon the Underwriters, the Enterprise Parties
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only
-23-
those persons, except as provided in Section 8 with respect to affiliates,
officers, directors, employees, representatives, agents and controlling persons
of the Partnership, the Operating Partnership and the Underwriters. Nothing in
this Agreement is intended or shall be construed to give any person, other than
the persons referred to in this Section 13, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision contained
herein.
14. Survival. The respective indemnities, representations, warranties and
agreements of the Enterprise Parties and the Underwriters contained in this
Agreement or made by or on behalf on them, respectively, pursuant to this
Agreement or any certificate delivered pursuant hereto, shall survive the
delivery of and payment for the Units and shall remain in full force and effect,
regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any of them or any person controlling any
of them.
15. Definition of the Terms "Business Day" and "Subsidiary". For purposes
of this Agreement, (a) "business day" means any day on which the New York Stock
Exchange, Inc. is open for trading, and (b) "affiliate" and "subsidiary" have
their respective meanings set forth in Rule 405 of the Rules and Regulations.
16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
17. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. Amendments. No amendment or waiver of any provision of this Agreement,
nor any consent or approval to any departure therefrom, shall in any event be
effective unless the same shall be in writing and signed by the parties hereto.
19. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
-24-
If the foregoing correctly sets forth the agreement among the Enterprise
Parties, and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
ENTERPRISE PRODUCTS GP, LLC
By:
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President, Chief
Legal Officer and Secretary
ENTERPRISE PRODUCTS PARTNERS L.P.
By: Enterprise Products GP, LLC, its
general partner
By:
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President, Chief
Legal Officer and Secretary
ENTERPRISE PRODUCTS OPERATING L.P.
By: Enterprise Products GP, LLC, its
general partner
By:
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President, Chief
Legal Officer and Secretary
Accepted:
By:
By:
----------------------------
Authorized Representative
SCHEDULE 1
ENTERPRISE PRODUCTS PARTNERS L.P.
Number of Firm
Underwriters Units to be Purchased
------------ ---------------------
---------------
TOTAL:
===============
SCHEDULE 2
SUBSIDIARIES OF THE PARTNERSHIP AND/OR THE OPERATING PARTNERSHIP
SUBSIDIARY OWNERSHIP INTEREST PERCENTAGE (IN %)
---------- ------------------------------------
EXHIBIT A
FORM OF OPINION OF XXXXXX & XXXXXX L.L.P.
1. Each of the General Partner, the Partnership and the Operating
Partnership has been duly formed and is validly existing in good standing as a
limited liability company or limited partnership under the laws of the State of
Delaware with all necessary limited liability company or limited partnership
power and authority to own or lease its properties and conduct its businesses
and, in the case of the General Partner, to act as the general partner of the
Partnership and the Operating Partnership, in each case in all material respects
as described in the Registration Statement and the Prospectus. Each of the
General Partner, the Partnership and the Operating Partnership is duly
registered or qualified as a foreign limited liability company or foreign
limited partnership for the transaction of business under the laws of the
jurisdictions set forth under its name on Annex 1 attached hereto.
2. The General Partner is the sole general partner of the Partnership with
a 1.0% general partner interest in the Partnership (including the right to
receive Incentive Distributions, as defined in the Partnership Agreement); such
general partner 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, encumbrances, security
interests, charges or claims (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 in the office of the Secretary of State of the State of
Delaware or (B) otherwise known to such counsel, without independent
investigation, other than those created by or arising under the Delaware LP Act.
3. To the knowledge of such counsel: EPC Partners II, Inc. owns ___% of
the issued and outstanding membership interests of the General Partner; Xxx
Xxxxxx LLC owns ___% of the issued and outstanding membership interests of the
General Partner; and Shell US Gas & Power LLC, a Delaware limited liability
company and an affiliate of Shell Oil Company, owns ___% of the issued and
outstanding membership interests of the General Partner; such membership
interests have been duly authorized and validly issued in accordance with the GP
LLC Agreement; and each of EPC Partners II, Inc. and Xxx Xxxxxx LLC owns such
membership interests free and clear of all liens, encumbrances, security
interests, charges or claims (A) in respect of which a financing statement under
the Uniform Commercial Code of the State of Delaware naming EPC Partners II,
Inc. or Xxx Xxxxxx LLC as debtor is on file in the office of the Secretary of
State of the State of Delaware or (B) otherwise known to such counsel, without
independent investigation, other than those created by or arising under the
Delaware LLC Act and those in favor of Enterprise Products Company's and Xxx
Xxxxxx LLC's lenders.
4. The General Partner is the sole general partner of the Operating
Partnership with a 1.0101% general partner interest in the Operating
Partnership; such general partner interest has been duly authorized and validly
issued in accordance with the Operating Partnership Agreement; and the General
Partner owns such general partner
A-1
interest free and clear of all liens, encumbrances, security interests, charges
or claims (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 in the office of the Secretary of State of the State of Delaware or (B)
otherwise known to such counsel, without independent investigation, other than
those created by or arising under the Delaware LP Act. The Partnership is the
sole limited partner of the Operating Partnership with a 98.9899% limited
partner interest in the Operating Partnership; such limited partner interest has
been duly authorized and validly issued in accordance with the Operating
Partnership Agreement and is fully paid (to the extent required under the
Operating Partnership Agreement) and non-assessable (except as such
non-assessability may be affected by Section 17-607 of the Delaware LP Act); and
the Partnership owns such limited partner interest free and clear of all liens,
encumbrances, security interests, charges or claims (A) in respect of which a
financing statement under the Uniform Commercial Code of the State of Delaware
naming the Partnership as debtor is on file in the office of the Secretary of
State of the State of Delaware or (B) otherwise known to such counsel, without
independent investigation, other than those created by or arising under the
Delaware LP Act.
5. The Partnership Agreement has been duly authorized, executed and
delivered by the General Partner and is a valid and legally binding agreement of
the General Partner, enforceable against the General Partner in accordance with
its terms; the Operating Partnership Agreement has been duly authorized,
executed and delivered by the General Partner and the Partnership and is a valid
and legally binding agreement of the General Partner and the Partnership in
accordance with its terms; provided that, with respect to each such agreement,
the enforceability thereof may be limited by (A) bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and 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) public policy, applicable law relating to fiduciary
duties and indemnification and an implied covenant of good faith and fair
dealing.
6. As of the date hereof, the issued and outstanding limited partner
interest of the Partnership consists of _______ Common Units, _______ Special
Units and _______ Subordinated Units. All outstanding Common Units, Special
Units and Subordinated Units and the limited partner interests represented
thereby have been duly authorized and validly issued in accordance with the
Partnership Agreement and are fully paid (to the extent required under the
Partnership Agreement) and non-assessable (except as such non-assessability may
be affected by Section 17-607 of the Delaware LP Act and as described in the
Prospectus). Enterprise Products Company and Xxx X. Xxxxxx collectively
beneficially own _______ and _______ Subordinated Units, in each case free and
clear of all liens, encumbrances, security interests, charges or claims (A) in
respect of which a financing statement under the Uniform Commercial Code of the
State of Texas naming Enterprise Products Company as debtor is on file in the
office of the Secretary of State of the State of Texas or (B) otherwise known to
such counsel, without independent investigation, other than those created by or
arising under the Delaware LP Act and those in favor of Enterprise Products
Company's lenders.
A-2
7. The Firm Units and the limited partner interests represented thereby
have been duly authorized by the Partnership Agreement and, when issued and
delivered to the Underwriters against payment therefor in accordance with the
terms of this Agreement, will be validly issued, fully paid (to the extent
required under the Partnership Agreement) and non-assessable (except as such
non-assessability may be affected by Section 17-607 of the Delaware LP Act and
as described in the Prospectus).
8. Except as described in the Prospectus and for rights that have been
waived, there are no preemptive rights or other rights to subscribe for or to
purchase, nor any restriction upon the voting or transfer of, any partnership or
membership interests or capital stock in the Enterprise Parties, in each case
pursuant to the organizational documents of such entity. To such counsel's
knowledge, neither the filing of the Registration Statement nor the offering or
sale of the Firm Units as contemplated by this Agreement gives rise to any
rights for or relating to the registration of any Firm Units or other securities
of the Partnership or any of its subsidiaries, other than as provided in the
Prospectus and the Partnership Agreement or as have been waived. The Partnership
has all requisite power and authority to issue, sell and deliver the Firm Units
in accordance with and upon the terms and conditions set forth in this
Agreement, the Partnership Agreement, the Registration Statement and Prospectus.
9. This Agreement has been duly authorized and validly executed and
delivered by each of the Enterprise Parties.
10. None of the offering, issuance and sale by the Partnership of the Firm
Units, the execution, delivery and performance of this Agreement by the
Enterprise Parties, or the consummation of the transactions contemplated hereby
(i) conflicts or will conflict with or constitutes or will constitute a
violation of the agreement of limited partnership, limited liability company
agreement or other organizational documents of any of the Enterprise Parties or
(ii) results or will result in any violation of the Delaware LP Act, the
Delaware LLC Act, the Delaware General Corporation Law (the "DGCL"), the laws of
the State of Texas or federal law, which violations, in the case of clause (ii),
would, individually or in the aggregate, have a material adverse effect on the
financial condition, business or results of operations of the Partnership
Entities, taken as a whole or could materially impair the ability of any of the
Enterprise Parties to perform its obligations under this Agreement; provided,
however, that for purposes of this paragraph 10, such counsel need not express
an opinion with respect to Federal or state securities laws or other antifraud
laws.
11. No permit, consent, approval, authorization, order, registration,
filing or qualification ("consent") of or with any federal, Delaware or Texas
court, governmental agency or body having jurisdiction over the Partnership
Entities or any of their respective properties is required in connection with
the offering, issuance and sale by the Partnership of the Units, the execution,
delivery and performance of this Agreement by the Partnership or the
consummation of the transactions contemplated by this Agreement, except for such
consents required under state securities or "Blue Sky" laws, as to which such
counsel need not express an opinion.
A-3
12. The statements in the Registration Statement under the caption
"Description of Common Units," insofar as they constitute a description of
agreements or refer to statements of law or legal conclusions, are accurate and
complete in all material respects, and the Units, the Common Units, the
Subordinated Units and the Special Units conform in all material respects to the
descriptions thereof contained in the Registration Statement.
13. The opinion of Xxxxxx & Xxxxxx L.L.P. that is filed as Exhibit 5.1 to
the Registration Statement is confirmed and the Underwriters may rely upon such
opinion as if it were addressed to them.
14. The Registration Statement was declared effective under the Act on
_______; to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or threatened by the Commission; and any
required filing of the Prospectus pursuant to Rule 424(b) has been made in the
manner and within the time period required by such Rule.
15. The Registration Statement and the Prospectus (except for the
financial statements and the notes and the schedules thereto and the other
financial and statistical information included in the Registration Statement or
the Prospectus, as to which such counsel need not express any opinion) comply as
to form in all material respects with the requirements of the Act and the rules
and regulations promulgated thereunder.
16. None of the Partnership Entities is (i) an "investment company" as
such term is defined in the Investment Company Act of 1940, as amended, or (ii)
a "public utility holding company" or "holding company" within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Partnership Entities
and the independent public accountants of the Partnership and your
representatives, at which the contents of the Registration Statement and the
Prospectus and related matters were discussed, and although such counsel has not
independently verified, is not passing on, and is not assuming any
responsibility for the accuracy, completeness or fairness of the statements
contained in, the Registration Statement and the Prospectus (except to the
extent specified in the foregoing opinion), no facts have come to such counsel's
attention that lead such counsel to believe that the Registration Statement
(other than (i) the financial statements included or incorporated by reference
therein, including the notes and schedules thereto and the auditors' reports
thereon, and (ii) the other financial and statistical information included or
incorporated by reference therein, as to which such counsel need not comment),
as of its 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, or that the Prospectus (other than
(i) the financial statements included or incorporated by reference therein,
including the notes and schedules thereto and the auditors' reports thereon, and
(ii) the other financial and
A-4
statistical information included or incorporated by reference therein, as to
which such counsel need not comment), as of its issue date and the Closing Date
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.
In rendering such opinion, such counsel may (A) rely in respect of matters
of fact upon certificates of officers and employees of the Partnership Entities
and upon information obtained from public officials, (B) assume that all
documents submitted to them as originals are authentic, that all copies
submitted to them conform to the originals thereof, and that the signatures on
all documents examined by them are genuine, (C) state that their opinion is
limited to federal laws, the Delaware LP Act, the Delaware LLC Act, the DGCL and
the laws of the States of New York and Texas, (D) with respect to the opinion
expressed in paragraph 1 above as to the due qualification or registration as a
foreign limited partnership or limited liability company, as the case may be, of
the General Partner, the Partnership and the Operating Partnership, state that
such opinions are based upon certificates of foreign qualification or
registration provided by the Secretary of State of the States listed on Annex 1
(each of which shall be dated as of a date not more than fourteen days prior to
the Closing Date and shall be provided to you) and (E) state that they express
no opinion with respect to (i) any permits to own or operate any real or
personal property or (ii) state or local taxes or tax statutes to which any of
the limited partners of the Partnership or any of the Partnership Entities may
be subject.
A-5
EXHIBIT B
FORM OF OPINION OF XXXXXXX X. XXXXXXXX
1. Each of the Partnership Entities (other than the Enterprise Parties)
has been duly formed and is validly existing and in good standing under the laws
of its respective jurisdiction of formation with all necessary corporate,
limited liability company or limited partnership power and authority to own or
lease its properties and conduct its business, in each case in all material
respects as described in the Registration Statement and the Prospectus. Each of
the Partnership Entities (other than the Enterprise Parties) is duly registered
or qualified as a foreign corporation, foreign limited partnership or foreign
limited liability company for the transaction of business under the laws of each
jurisdiction in which its ownership or lease of property or the conduct of its
businesses requires such qualification, except where the failure to so qualify
would not, individually or in the aggregate, have a Material Adverse Effect.
2. All of the outstanding shares of capital stock, partnership interest or
membership interest, as the case may be, of each Subsidiary have been duly and
validly authorized and issued, are fully paid and non-assessable, except that,
for each Subsidiary of which the Operating Partnership and/or the Partnership
own 50% or less of the outstanding capital stock, partnership interest or
membership interest, as the case may be, this opinion is limited to the
ownership interest set forth on Schedule 2 of the Underwriting Agreement. The
Operating Partnership and/or the Partnership, as the case may be, owns the
shares of capital stock, partnership interests or membership interests in each
Subsidiary as set forth on Schedule 2 hereto free and clear of any lien, charge,
encumbrance (other than contractual restrictions on transfer), security
interest, restriction upon voting or any other claim of any third party.
3. Except as described in the Prospectus and for rights that have been
waived, there are no preemptive rights or other rights to subscribe for or to
purchase, nor any restriction upon the voting or transfer of, any partnership or
membership interests or capital stock (a) in the Subsidiaries pursuant to the
organizational documents of any such entity or (b) in the Partnership Entities
pursuant to any agreement or other instrument known to such counsel to which any
Partnership Entity is a party or by which any of them may be bound (other than
the organizational documents of such entity). To such counsel's knowledge,
neither the filing of the Registration Statement nor the offering or sale of the
Units as contemplated by this Agreement gives rise to any rights for or relating
to the registration of any Units or other securities of the Partnership or any
of its subsidiaries, other than as provided in the Prospectus and the
Partnership Agreement or as have been waived. To such counsel's knowledge,
except for options granted pursuant to employee benefits plans, qualified unit
option plans or other employee compensations plants, there are no outstanding
options or warrants to purchase any partnership or membership interests or
capital stock in any Partnership Entity. The Partnership has all requisite power
and authority to issue, sell and deliver the Units in accordance with and upon
the terms and conditions set forth in this Agreement, the Partnership Agreement,
the Registration Statement and Prospectus.
4. None of the offering, issuance and sale by the Partnership of the
Units, the execution, delivery and performance of this Agreement by the
Enterprise Parties, or the consummation of the transactions contemplated hereby
(i) conflicts or will conflict with or
B-1
constitutes or will constitute a violation of the agreement of limited
partnership, limited liability company agreement, certificate or articles of
incorporation or bylaws or other organizational documents of any of the
Partnership Entities (other than the Enterprise Parties), (ii) conflicts or will
conflict with or constitutes or will constitute a breach or violation of, or a
default (or an event that, with notice or lapse of time or both, would
constitute such a default) under, any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument known to such counsel to which
any of the Partnership Entities is a party or by which any of them or any of
their respective properties may be bound, (iii) will result, to the knowledge of
such counsel, in any violation of any judgment, order, decree, rule or
regulation of any court or arbitrator or governmental agency having jurisdiction
over the Partnership Entities or any of their assets or properties, or (iv)
results or will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of any of the Partnership Entities,
which conflicts, breaches, violations, defaults or liens, in the case of clauses
(ii), (iii) or (iv), would, individually or in the aggregate, have a material
adverse effect on the financial condition, business or results of operations of
the Partnership Entities, taken as a whole or could materially impair the
ability of any of the Enterprise Parties to perform its obligations under this
Agreement.
5. To the knowledge of such counsel, (a) there is no legal or governmental
proceeding pending or threatened to which any of the Partnership Entities is a
party or to which any of their respective properties is subject that is required
to be disclosed in the Prospectus and is not so disclosed and (b) there are no
agreements, contracts or other documents to which any of the Partnership
Entities is a party that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required.
In addition, such counsel shall state that he has participated in
conferences with officers and other representatives of the Partnership Entities
and the independent public accountants of the Partnership and your
representatives, at which the contents of the Registration Statement and the
Prospectus and related matters were discussed, and although such counsel has not
independently verified, is not passing on, and is not assuming any
responsibility for the accuracy, completeness or fairness of the statements
contained in, the Registration Statement and the Prospectus (except to the
extent specified in the foregoing opinion), no facts have come to such counsel's
attention that lead such counsel to believe that the Registration Statement
(other than (i) the financial statements included or incorporated by reference
therein, including the notes and schedules thereto and the auditors' reports
thereon, and (ii) the other financial and statistical information included or
incorporated by reference therein, as to which such counsel need not comment),
as of its 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, or that the Prospectus (other than
(i) the financial statements included or incorporated by reference therein,
including the notes and schedules thereto and the auditors' reports thereon, and
(ii) the other financial and statistical information included or incorporated by
reference therein, as to which such counsel need not comment), as of its issue
date and the Closing Date 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.
B-2
In rendering such opinion, such counsel may (A) rely on certificates of
officers and employees of the Partnership Entities and upon information obtained
from public officials, (B) assume that all documents submitted to him as
originals are authentic, that all copies submitted to him conform to the
originals thereof, and that the signatures on all documents examined by him are
genuine, (C) state that his opinion is limited to federal laws, the Delaware LP
Act, the Delaware LLC Act, the DGCL and the laws of the State of Texas, (D)
state that he expresses no opinion with respect to any permits to own or operate
any real or personal property, (E) state that he expresses no opinion with
respect to the title of any of the Partnership Entities to any of their
respective real or personal property or with respect to the accuracy or
descriptions of real or personal property and (F) state that he expresses no
opinion with respect to state or local taxes or tax statutes to which any of the
limited partners of the Partnership or any of the Partnership Entities may be
subject.
B-3
EXHIBIT C
FORM OF LOCK-UP LETTER AGREEMENT
Dear Sirs:
The undersigned understands that you, as underwriters (the "Underwriters"),
propose to enter into an Underwriting Agreement (the "Underwriting Agreement")
with the Enterprise Parties providing for the purchase by you and such other
Underwriters of common units, each representing a limited partner interest (the
"Common Units") in the Partnership, and that the Underwriters propose to reoffer
the Common Units to the public (the "Offering"). Capitalized terms used but not
defined herein have the meanings given to them in the Underwriting Agreement.
In consideration of the execution of the Underwriting Agreement by the
Underwriters, and for other good and valuable consideration, the undersigned
hereby irrevocably agrees that, without the prior written consent of the
Representative, on behalf of the Underwriters, the undersigned will not,
directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of
(or enter into any transaction or device that is designed to, or could be
expected to, result in the disposition by any person at any time in the future
of) any Common Units (including, without limitation, Common Units that may be
deemed to be beneficially owned by the undersigned in accordance with the rules
and regulations of the Securities and Exchange Commission and Common Units that
may be issued upon exercise of any option or warrant) or securities convertible
into or exchangeable for Common Units owned by the undersigned on the date of
execution of this Lock-up Letter Agreement or on the date of the completion of
the Offering, or (2) enter into any swap or other derivatives transaction that
transfers to another, in whole or in part, any of the economic benefits or risks
of ownership of such Common Units, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Units or other
securities, in cash or otherwise, for a period of 90 days from the date of the
Prospectus.
In furtherance of the foregoing, the Partnership and its Transfer Agent are
hereby authorized to decline to make any transfer of securities if such transfer
would constitute a violation or breach of this Lock-Up Letter Agreement.
It is understood that, if the Partnership notifies you that it does not intend
to proceed with the Offering, if the Underwriting Agreement does not become
effective, or if the Underwriting Agreement (other than the provisions thereof
that survive termination) shall terminate or be terminated prior to payment for
and delivery of the Common Units, the undersigned will be released from
[his/her] obligations under this Lock-Up Letter Agreement.
The undersigned understands that the Partnership and the Underwriters will
proceed with the Offering in reliance on this Lock-Up Letter Agreement.
Whether or not the Offering actually occurs depends on a number of factors,
including market conditions. Any Offering will only be made pursuant to an
Underwriting Agreement, the terms of which are subject to negotiation between
the Partnership and the Underwriters.
C-1
The undersigned hereby represents and warrants that the undersigned has full
power and authority to enter into this Lock-Up Letter Agreement and that, upon
request, the undersigned will execute any additional documents necessary in
connection with the enforcement hereof. Any obligations of the undersigned shall
be binding upon the [heirs and personal representatives] (FOR INDIVIDUALS)
[successors and assigns] (FOR NONNATURAL PERSONS) of the undersigned.
Yours very truly,
C-2
EXHIBIT D
FORM OF LETTER AGREEMENT FOR AFFILIATE PURCHASE
Dear Sirs:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement") among Enterprise Products
GP, LLC, Enterprise Products Partners L.P. (the "Partnership") and Enterprise
Products Operating L.P., relating to an underwritten public offering (the
"Offering") of _______ common units representing limited partner interests (the
"Common Units"), of the Partnership. Capitalized terms used herein have the
meanings given them in the Underwriting Agreement.
Simultaneously with the closing of the public Offering, the Underwriters
agree, severally, to sell to and to purchase from the Underwriters, at a price
of $____ per Unit (which is the purchase price per Affiliate Unit paid by the
Underwriters to the Partnership in the public Offering), _______ Common Units
(the "Affiliate Units").
In consideration of the execution of the Underwriting Agreement by the
Underwriters, and for other good and valuable consideration, the undersigned
hereby irrevocably agrees that, without the prior written consent of the
Representative, on behalf of the Underwriters, the undersigned will not,
directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of
(or enter into any transaction or device that is designed to, or could be
expected to, result in the disposition by any person at any time in the future
of) any Affiliate Units (including, without limitation, Affiliate Units that may
be deemed to be beneficially owned by the undersigned in accordance with the
rules and regulations of the Securities and Exchange Commission and Common Units
that may be issued upon exercise of any option or warrant) or securities
convertible into or exchangeable for Affiliate Units owned by the undersigned on
the date of execution of this letter agreement or on the date of the completion
of the Offering, or (2) enter into any swap or other derivatives transaction
that transfers to another, in whole or in part, any of the economic benefits or
risks of ownership of such Affiliate Units, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of Affiliate
Units or other securities, in cash or otherwise, for a period of 90 days from
the date of the Prospectus.
In furtherance of the foregoing, the Partnership and its Transfer Agent
are hereby authorized to decline to make any transfer of securities if such
transfer would constitute a violation or breach of this letter agreement.
It is understood that, if the Partnership notifies you that it does not
intend to proceed with the Offering, if the Underwriting Agreement does not
become effective, or if the Underwriting Agreement (other than the provisions
thereof that survive termination) shall terminate or be terminated prior to
payment for and delivery of the Affiliate Units, the undersigned will be
released from its obligations under this letter agreement.
D-1
The undersigned understands that the Partnership and the Underwriters will
proceed with the Offering in reliance on this letter agreement.
Whether or not the Offering actually occurs depends on a number of
factors, including market conditions. Any Offering will only be made pursuant to
an Underwriting Agreement, the terms of which are subject to negotiation between
the Partnership and the Underwriters.
represents and warrants that it is purchasing the Affiliate Units for investment
purposes only and has no present intention to resell the Affiliate Units. The
undersigned further represents that it is not an "affiliate" (as defined in
Conduct Rule 2720 of the NASD Manual) of an NASD member (as defined in Article 1
of the Bylaws of the NASD) or an "associated person" (as defined in Article 1 of
the Bylaws of the NASD) of an NASD member.
Yours very truly,
By:
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Name:
Title:
D-2
