EXHIBIT 1.1
ENERGY TRANSFER PARTNERS,
L.P.
$400,000,000 6.125% Senior Notes
due 2017
$400,000,000 6.625% Senior Notes
due 2036
UNDERWRITING
AGREEMENT
October 18, 2006
C REDIT S UISSE S ECURITIES (USA) LLC
Banc of America Securities
LLC
Wachovia Capital Markets,
LLC
Deutsche Bank Securities
Inc.
Greenwich Capital Markets,
Inc.
UBS Securities LLC
As Representatives of the Several
Underwriters,
c/o Credit Suisse Securities (USA)
LLC,
Eleven
Madison Avenue
New York,
N.Y. 10010-3629
Ladies and Gentlemen:
1. Introductory . Energy
Transfer Partners, L.P., a Delaware limited partnership (“
Partnership ”), agrees with the several Underwriters
named in Schedule A hereto (“ Underwriters ”) to
issue and sell to the several Underwriters $400,000,000 principal
amount of its 6.125% Senior Notes due 2017 (“ Notes
”) and $400,000,000 principal amount of its 6.625% Senior
Notes due 2036 (“ Notes ” and together with the
2017 Notes, “ Notes ”), to be fully and
unconditionally guaranteed (“ Guarantees ”) on
an unsubordinated, unsecured basis by the entities listed on
Schedule B hereto (collectively, “ Guarantors ”)
and to be issued under an indenture, dated as of January 18,
2005, among the Partnership, the Guarantors and Wachovia Bank,
National Association, as Trustee, as supplemented through the
Closing Date (“ Indenture ”). The Notes and the
Guarantees are herein collectively called the “ Offered
Securities ”. Energy Transfer Partners GP, L.P., a
Delaware limited partnership (“ General Partner
”), is the general partner of the Partnership. Energy
Transfer Partners, L.L.C., a Delaware limited liability company, is
the general partner of the General Partner (“ ETP LLC
”). The General Partner, ETP LLC and the Partnership are
herein collectively called the “ Partnership Entities
.”
2. Representations and Warranties
of the Partnership and the Guarantors . The Partnership and the
Guarantors, jointly and severally, represent and warrant to, and
agree with, the several Underwriters that:
(a) Filing and Effectiveness of
Registration Statement; Certain Defined Terms . The Partnership
and the Guarantors have filed with the Commission a registration
statement on Form S-3 (No. 333-136429), including a related
prospectus or prospectuses, covering the registration of the
Offered Securities under the Act, which has become effective.
“ Registration Statement ” at any particular
time means such registration statement in the form then filed with
the Commission, including any amendment thereto, any document
incorporated by reference therein and all 430B Information and all
430C Information with respect to such registration statement, that
in any case has not been superseded or modified. “
Registration Statement ” without reference to a time
means the Registration Statement as of the Effective Date. For
purposes of this definition, 430B Information shall be considered
to be included in the Registration Statement as of the time
specified in Rule 430B.
For purposes of this
Agreement:
“ 430B Information
” means information included in a prospectus then deemed to
be a part of the Registration Statement pursuant to Rule 430B(e) or
retroactively deemed to be a part of the Registration Statement
pursuant to Rule 430B(f).
“ 430C Information
” means information included in a prospectus then deemed to
be a part of the Registration Statement pursuant to Rule
430C.
“ Act ” means the
Securities Act of 1933, as amended.
“ Applicable Time
” means 4:50 p.m. (Eastern time) on the date of this
Agreement.
“ Closing Date ”
has the meaning defined in Section 3 hereof.
“ Commission ”
means the Securities and Exchange Commission.
“ Effective Date
” of the Registration Statement relating to the Offered
Securities means the time of the first contract of sale for the
Offered Securities.
“ Exchange Act ”
means the Securities Exchange Act of 1934.
“ Final Prospectus
” means the Statutory Prospectus that discloses the public
offering price, other 430B Information and other final terms of the
Offered Securities and otherwise satisfies Section 10(a) of
the Act.
“ General Use Issuer Free
Writing Prospectus ” means any Issuer Free Writing
Prospectus that is intended for general distribution to prospective
investors, as evidenced by its being so specified in Schedule C to
this Agreement.
“ Issuer Free Writing
Prospectus ” means any “issuer free writing
prospectus,” as defined in Rule 433, relating to the
Offered Securities in the form filed or required to be filed with
the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to
Rule 433(g).
“ Limited Use Issuer Free
Writing Prospectus ” means any Issuer Free Writing
Prospectus that is not a General Use Issuer Free Writing
Prospectus.
“ Rules and Regulations
” means the rules and regulations of the
Commission.
“ Securities Laws
” means, collectively, the Sarbanes-Oxley Act of 2002
(“ Sarbanes-Oxley ”), the Act, the Exchange Act,
the Trust Indenture Act, the Rules and Regulations, the auditing
principles, rules, standards and practices applicable to auditors
of “issuers” (as defined in Sarbanes-Oxley) promulgated
or approved by the Public Company Accounting Oversight Board and,
as applicable, the rules of the New York Stock Exchange and the
NASDAQ Stock Market (“ Exchange Rules
”).
“ Statutory Prospectus
” with reference to any particular time means the prospectus
relating to the Offered Securities that is included in the
Registration Statement immediately prior to that time, including
all 430B Information and all 430C Information with
respect to the Registration Statement. For purposes of the
foregoing definition, 430B Information shall be considered to
be included in the Statutory Prospectus only as of the actual time
that form of prospectus (including a prospectus supplement) is
filed with the Commission pursuant to Rule 424(b) and not
retroactively.
“ Trust Indenture Act
” means the Trust Indenture Act of 1939.
Unless otherwise specified, a
reference to a “rule” is to the indicated rule under
the Act.
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(b) Compliance with
Securities Act Requirements . (i) (A) At the time the
Registration Statement initially became effective, (B) at the
time of each amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether by post-effective
amendment, incorporated report or form of prospectus), (C) on
the Effective Date relating to the Offered Securities and
(D) on the Closing Date, the Registration Statement conformed
and will conform in all respects to the requirements of the Act,
the Trust Indenture Act and the Rules and Regulations and did not
and will not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and
(ii) (A) on its date, (B) at the time of filing the Final
Prospectus pursuant to Rule 424(b) and (C) on the Closing
Date, the Final Prospectus will conform in all respects to the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations, and will not include any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading. The preceding sentence does not apply to statements in
or omissions from any such document based upon written information
furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood
and agreed that the only such information is that described as such
in Section 8(b) hereof.
(c) Shelf Registration
Statement . The date of the this Agreement is not more than
three years subsequent to the more recent of the initial effective
date of the Registration Statement or December 1, 2005. If,
immediately prior to the third anniversary of the more recent of
the initial effective date of the Registration Statement or
December 1, 2005, any of the Offered Securities remain unsold
by the Underwriters, the Company will prior to that third
anniversary file, if it has not already done so, a new shelf
registration statement relating to the Offered Securities, in a
form satisfactory to the Representatives, will use its best efforts
to cause such registration statement to be declared effective
within 180 days after that third anniversary, and will take all
other action necessary or appropriate to permit the public offering
and sale of the Offered Securities to continue as contemplated in
the expired registration statement relating to the Offered
Securities. References herein to the Registration Statement shall
include such new shelf registration statement.
(d) Ineligible Issuer Status
. (i) At the earliest time after the filing of the
Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of Rule
164(h)(2)) of the Offered Securities and (ii) at the date of
this Agreement, the Company was not and is not an “ineligible
issuer,” as defined in Rule 405, including (x) the
Company or any other subsidiary in the preceding three years not
having been convicted of a felony or misdemeanor or having been
made the subject of a judicial or administrative decree or order as
described in Rule 405 and (y) the Company in the preceding
three years not having been the subject of a bankruptcy petition or
insolvency or similar proceeding, not having had a registration
statement be the subject of a proceeding under Section 8 of
the Act and not being the subject of a proceeding under
Section 8A of the Act in connection with the offering of the
Offered Securities, all as described in Rule 405. At the time the
Company or any person acting on its behalf (within the meaning, for
this sentence only, of Rule 163(c)) made any offer in reliance on
the exemption of Rule 163, the Company was a “well known
seasoned issuer” as defined in Rule 405, including not having
been an “ineligible issuer” as defined in Rule
405.
(e) General Disclosure
Package . As of the Applicable Time, neither (i) the
General Use Issuer Free Writing Prospectus(es) issued at or prior
to the Applicable Time, the preliminary prospectus supplement,
dated October 18, 2006, including the base prospectus, dated
August 18, 2006 (which is the most recent Statutory Prospectus
distributed to investors generally), and the other information, if
any, stated in Schedule C to this Agreement to be included in the
General Disclosure Package, all considered together (collectively,
the “ General Disclosure Package ”), nor
(ii) any individual Limited Use Issuer Free Writing
Prospectus, when considered together with the General Disclosure
Package, included any untrue statement of a material fact or
omitted to state
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any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The preceding sentence
does not apply to statements in or omissions from any Statutory
Prospectus or any Issuer Free Writing Prospectus in reliance upon
and in conformity with written information furnished to the Company
by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the
information described as such in Section 8(b)
hereof.
(f) Issuer Free Writing
Prospectuses . Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of
the public offer and sale of the Offered Securities or until any
earlier date that the Company notified or notifies the
Representatives as described in the next sentence, did not, does
not and will not include any information that conflicted, conflicts
or will conflict with the information then contained in the
Registration Statement. If at any time following issuance of an
Issuer Free Writing Prospectus there occurred or occurs an event or
development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information then
contained in the Registration Statement or as a result of which
such Issuer Free Writing Prospectus, if republished immediately
following such event or development, would include an untrue
statement of a material fact or omitted or would omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, (i) the Company has promptly notified or will
promptly notify the Representatives and (ii) the Company has
promptly amended or will promptly amend or supplement such Issuer
Free Writing Prospectus to eliminate or correct such conflict,
untrue statement or omission.
(g) No Stabilization
Activities . None of the Partnership Entities or the Guarantors
has taken, directly or indirectly, any action designed to cause or
that would constitute or that might reasonably be expected to cause
or result in, under the Exchange Act or otherwise, the
stabilization or manipulation of the price of any security of the
Partnership to facilitate the sale or resale of the Offered
Securities.
(h) Formation and
Qualification . Each of the Partnership Entities, the
Guarantors and each of the other subsidiaries of the Partnership
has been duly formed and is validly existing in good standing as a
corporation, limited liability company or limited partnership under
the laws of its jurisdiction of formation with full corporate,
limited liability company or limited partnership power and
authority necessary to own or lease, as the case may be, and to
operate its properties and conduct its business and, in the case of
the General Partner and ETP LLC, to act as general partner of the
Partnership and the General Partner, respectively, in each case in
all material respects as described in the General Disclosure
Package and the Final Prospectus, and is duly qualified to do
business as a foreign corporation, limited liability company or
limited partnership, as the case may be, and is in good standing
under the laws of each jurisdiction which requires such
qualification, except where the failure to so qualify and be in
good standing would not have a material adverse effect on the
condition (financial or other), business, prospects, properties,
net worth or results of operations of the Partnership and its
subsidiaries, taken as a whole (a “Material Adverse
Effect”).
(i) Ownership of Guarantors and
Other Subsidiaries. All the outstanding shares of capital
stock, limited liability company interests and partner interests of
each of the Guarantors and each of the other subsidiaries of the
Partnership, direct and indirect, have been duly authorized and
validly issued and are fully paid (to the extent required under
their respective partnership agreement, limited liability company
agreement or other organizational documents) and nonassessable
(except as such nonassessability may be affected by
Section 18-607 of the Delaware Limited Liability Company Act
(the “Delaware LLC Act”), Section 17-607 of the
Delaware Revised Uniform Limited Partnership Act (the
“Delaware LP Act”), Section 5.09 of the Texas
Limited Liability Company Act (the “Texas LLC Act”) or
Section 6.07 of the Texas Revised
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Limited Partnership Act (the
“Texas LP Act”)); and, except (i) as provided in
the Security Agreement dated June 28, 1996 among Heritage
Holdings, Inc., Heritage Operating, L.P., a Delaware limited
partnership (the “Heritage Operating Partnership”) and
Wilmington Trust Company (the “Security Agreement”),
(ii) for M-P Energy Partnership (in which M-P Oils, Ltd. owns
a general partnership interest of 60%), and (iii) as provided
in the Second Amended and Restated Credit Agreement of the Heritage
Operating Partnership dated as of December 31, 2003, as
amended, the Partnership owns all of such shares and interests,
directly or indirectly, free and clear of any perfected security
interest or any other security interests, claims, liens or
encumbrances. M-P Oils, Ltd. owns a 60% general partner interest in
M-P Energy Partnership; such general partner interest has been duly
authorized and validly issued in accordance with the partnership
agreement of M-P Energy Partnership; and, except as encumbered by
the provisions of the Security Agreement, M-P Oils, Ltd. owns such
general partner interest free and clear of any perfected security
interest or any other security interests, claims, liens or
encumbrances.
(j) No Omitted Descriptions.
There is no agreement, contract or other document of a character
required to be described in the General Disclosure Package or the
Final Prospectus, or to be filed as an exhibit to any documents
incorporated therein by reference, which is not described or filed
as required; and the statements in the General Disclosure Package
and the Final Prospectus under the headings “Description of
Notes” and “Certain United Stated Federal Tax
Considerations” and in the Partnership’s Annual Report
on Form 10-K for the year ended August 31, 2005 under the
captions “Business – The Midstream and Transportation
and Storage Segments – Regulation,” “Business
– Government Regulation and Environmental Matters” and
“Legal Proceedings,” insofar as such statements
summarize legal matters, agreements, documents or proceedings
discussed therein, are accurate and fair summaries of such legal
matters, agreements, documents or proceedings.
(k) Due Authorization of this
Agreement. This Agreement has been duly authorized, executed
and delivered by each of the Partnership and the
Guarantors.
(l) Authority of Partnership and
Guarantors. Each of the Partnership and the Guarantors has all
requisite corporate, limited liability company or limited
partnership power and authority to issue and deliver the Securities
in accordance with and upon the terms and conditions set forth in
this Agreement and the Indenture, and to execute, deliver and
perform its obligations under this Agreement, the Indenture and the
Offered Securities.
(m) Enforceability of Indenture
and Offered Securities . The execution and delivery of, and the
performance by the Partnership and the Guarantors of their
respective obligations under, the Indenture have been duly and
validly authorized by each of the Partnership and the Guarantors,
and the Indenture, assuming due authorization, execution and
delivery thereof by the Trustee, when executed and delivered by the
Partnership and the Guarantors, will have been duly executed and
delivered by each of the Partnership and the Guarantors and will
constitute the valid and legally binding agreements of the
Partnership and the Guarantors, enforceable against the Partnership
and the Guarantors in accordance with its terms; provided
that, with respect to each, 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). The Indenture has
been duly qualified under the Trust Indenture Act. The Offered
Securities have been duly authorized for issuance and sale to the
Underwriters, and, when executed by the Partnership and the
Guarantors and authenticated by the Trustee in accordance with the
provisions of the Indenture and delivered to and paid for by the
Underwriters, will have been duly executed and delivered by each of
the Partnership and the Guarantors, and will constitute the valid
and legally binding obligations of the Partnership and the
Guarantors entitled to the benefits of the Indenture;
provided that, with respect to each, 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).
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(n) No Conflicts . None of
the offering, issuance and sale by the Partnership and the
Guarantors of the Offered Securities, the execution, delivery and
performance of this Agreement, the Indenture and the Offered
Securities by the Partnership and the Guarantors, or the
consummation of the transactions contemplated hereby and thereby or
the fulfillment of the terms hereof and thereof will conflict with,
result in a breach, default or violation (or an event that, with
notice or lapse of time or both, would constitute such breach,
default or violation) or the imposition of any lien, charge or
encumbrance upon any property or assets of the Partnership
Entities, any of the Guarantors or any of the other subsidiaries of
the Partnership pursuant to (i) the certificate or agreement
of limited partnership, certificate of formation, limited liability
company agreement, certificate or articles of incorporation or
bylaws or other organizational documents of any of the Partnership
Entities, the Guarantors or any of the other subsidiaries of the
Partnership, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which
any of the Partnership Entities, the Guarantors or any of the
Partnership’s other subsidiaries is a party or bound or to
which any of their respective properties is subject, or
(iii) any statute, law, rule or regulation or any judgment,
order or decree applicable to any of the Partnership Entities, the
Guarantors or any of the other subsidiaries of the Partnership of
any court, regulatory body, administrative agency or governmental
body, arbitrator or other authority having jurisdiction over any of
the Partnership Entities, the Guarantors or the other Subsidiaries
of the Partnership or any of their properties, which conflicts,
breaches, violations, defaults or liens, in the case of clauses
(ii) and (iii), would, individually or in the aggregate, have
a Material Adverse Effect, or could materially impair the ability
of the Partnership or any of the Guarantors to perform its
obligations under this Agreement, the Indenture or the Offered
Securities.
(o) No Consents . No permit,
consent, approval, authorization, order, registration, filing or
qualification (“consent”) of or with any court,
governmental agency or body is required in connection with the
offering, issuance and sale by the Partnership and the Guarantors
of the Offered Securities in the manner contemplated herein and in
the General Disclosure Package, the execution, delivery and
performance of this Agreement, the Indenture and the Offered
Securities by the Partnership and the Guarantors, or the
consummation of the transactions contemplated hereby and thereby,
except (i) for such consents as may be required under state
securities or “Blue Sky” laws, (ii) for such
consents that have been, or prior to the Closing Date will be,
obtained, and (iii) for such consents which, if not obtained,
would not, individually or in the aggregate, have a Material
Adverse Effect.
(p) Investment Company. None
of the Partnership Entities, the Guarantors or any of the other
subsidiaries of the Partnership is now, nor after giving effect to
the offering and sale of the Offered Securities and the application
of the proceeds thereof as described in the General Disclosure
Package and the Final Prospectus, will be, an “investment
company” as defined in the Investment Company Act of 1940, as
amended.
(q) No Third Party Defaults.
To the knowledge of the Partnership and the Guarantors, no third
party to any indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which any of the Partnership,
the Guarantors or any of the other subsidiaries of the Partnership
is a party or bound or to which their respective properties are
subject, is in breach, default or violation under any such
agreement (and no event has occurred that, with notice or lapse of
time or otherwise, would constitute such an event), which breach,
default or violation would have a Material Adverse
Effect.
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(r) Financial Statements. At
May 31, 2006, the Partnership had on an actual basis, and
would have had on the pro forma and pro forma, as adjusted basis
indicated in the General Disclosure Package, a capitalization as
set forth therein. The historical financial statements and
schedules and the related notes included or incorporated by
reference in the General Disclosure Package 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 as of the respective dates or for the
respective periods indicated, comply as to form in all material
respects with the applicable accounting requirements of the Act,
the Exchange Act and the Rules and Regulations of thereunder and
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved (except as otherwise noted therein). The selected
historical financial data included under the caption
“Selected Financial Data” in the Partnership’s
Annual Report on Form 10-K for the fiscal year ended
August 31, 2005 fairly present in all material respects, on
the basis stated therein, the information included therein. The pro
forma financial statements included or incorporated by reference in
the General Disclosure Package comply in all material respects with
the applicable accounting requirements of Article 11 of
Regulation S-X of the Commission; the assumptions used in the
preparation of such pro forma financial statements are, in the
opinion of the management of the Partnership, reasonable; the pro
forma adjustments give appropriate effect to those assumptions; and
the pro forma adjustments reflected in such pro forma financial
statements have been properly applied to the historical amounts in
compilation of such pro forma financial statements.
(s) Material Change. Except
as disclosed in the General Disclosure Package and the Final
Prospectus, subsequent to the date as of which such information is
given in the General Disclosure Package and the Final Prospectus,
(i) none of the Partnership, the Guarantors or any of the
other subsidiaries of the Partnership has incurred any liability or
obligation, indirect, direct or contingent, or entered into any
transactions not in the ordinary course of business that, singly or
in the aggregate, is material to the Partnership and its
subsidiaries, taken as a whole, (ii) there has not been any
material change in the capitalization or material increase in the
short-term or long-term debt of the Partnership and its
subsidiaries and (iii) there has not been any Material Adverse
Effect, or any development involving or which may reasonably be
expected to involve, singly or in the aggregate, a prospective
Material Adverse Effect, whether or not arising from transactions
in the ordinary course of business.
(t) Material Proceedings. No
action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving any of the
Partnership Entities, the Guarantors or any of the other
subsidiaries of the Partnership or any of their respective property
is pending or, to the knowledge of any of the Partnership and the
Guarantors, threatened that (i) could reasonably be expected
to have a material adverse effect on the performance by the
Partnership and the Guarantors of this Agreement, the Indenture or
the Offered Securities or the consummation of any of the
transactions contemplated hereby or thereby or (ii) could
reasonably be expected to have a Material Adverse Effect, except as
set forth in or contemplated in the General Disclosure Package and
the Final Prospectus.
(u) No Omitted Proceedings.
There are no legal or governmental proceedings pending or, to the
knowledge of the Partnership and the Guarantors, threatened,
against any of the Partnership Entities, the Guarantors or any of
their subsidiaries, or to which any of the Partnership Entities,
the Guarantors or any of the other subsidiaries of the Partnership
is a party, or to which any of their respective properties is
subject, that are required to be described in the General
Disclosure Package and the Final Prospectus but are not described
as required.
(v) Title to Property. The
Partnership and its subsidiaries have good and marketable title to
all real property and good title to all personal property described
in the General Disclosure Package and the Final Prospectus as being
owned or to be owned by them, free and clear of any perfected
security interest or any other security interests, claims, liens or
encumbrances except
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(i) as described in the General
Disclosure Package and the Final Prospectus, (ii) pursuant to
the Security Agreement, (iii) pursuant to the Second Amended
and Restated Credit Agreement of the Heritage Operating Partnership
dated December 31, 2003, as amended and (iv) such as do
not materially interfere with the use of such properties taken as a
whole as described in the General Disclosure Package and the Final
Prospectus, including security interests, claims, liens and
encumbrances pursuant to mortgage and/or security agreements given
as security for certain non-compete agreements with the prior
owners of certain businesses previously acquired by the Partnership
and its subsidiaries; provided, that, with respect to title to
pipeline rights-of-way, the Partnership and the Guarantors
represent only that (A) each applicable subsidiary has
sufficient title to enable it to use and occupy the pipeline
rights-of-way as they have been used and occupied in the past and
are to be used and occupied in the future as described in the
General Disclosure Package and (B) any lack of title to the
pipeline rights-of-way will not have a Material Adverse Effect; and
all real property and buildings held under lease by any of the
Partnership or any of its subsidiaries are held under valid and
subsisting and enforceable leases with such exceptions as do not
materially interfere with the use of such properties taken as a
whole as described in the General Disclosure Package and the Final
Prospectus.
(w) No Defaults. None of the
Partnership Entities, the Guarantors and the other subsidiaries of
the Partnership is in violation or default (and, to the knowledge
of the Partnership and the Guarantors, no event has occurred that,
with notice or lapse of time or otherwise, would constitute such an
event) of (i) any provision of its certificate or agreement of
limited partnership, certificate of formation, limited liability
company agreement, certificate or articles of incorporation or
bylaws or other organizational documents, (ii) the terms of
any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which it is a party or bound
or to which its property is subject, or (iii) any statute,
law, rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over any of the
Partnership Entities, the Guarantors or such subsidiaries or any of
their respective properties in any material respect, as applicable,
which violation or default would, in the cases of clauses
(ii) or (iii), have a Material Adverse Effect, or could
materially impair the ability of any of the Partnership or the
Guarantors to perform its obligations under this Agreement, the
Indenture or the Offered Securities.
(x) Independent Public
Accountants – Grant Thornton. Grant Thornton LLP, who
have audited (i) the consolidated financial statements of the
Partnership as of August 31, 2005 and 2004 and for the years
then ended and for the eleven months ended August 31, 2003;
(ii) the consolidated balance sheet of the General Partner as
of August 31, 2005; (iii) the consolidated balance sheet
of ETP LLC as of August 31, 2005; and (iv) the
consolidated financial statements of HPL Consolidation LP as of
August 31, 2005 and for the periods from January 26, 2005
through August 31, 2005 and January 1, 2005 through
January 25, 2005 and delivered their reports with respect
thereto, are independent public accountants with respect to the
Partnership, the General Partner, ETP LLC, HPL Consolidation LP and
their subsidiaries within the meaning of the Act and the applicable
published Rules and Regulations thereunder.
(y) Independent Public
Accountants – PricewaterhouseCoopers LLP.
PricewaterhouseCoopers LLP, who have audited the consolidated
financial statements of Titan Energy Partners LP as of
June 30, 2005 and for the periods from December 20, 2004
to June 30, 2005 and from July 1, 2004 to
December 19, 2004 and delivered their reports with respect
thereto, are independent public accountants with respect to Titan
Energy Partners LP within the meaning of the Act and the applicable
published Rules and Regulations thereunder.
(z) Independent Public
Accountants – Deloitte & Touche.
Deloitte & Touche LLP, who have audited the consolidated
financial statements of HPL Consolidation LP as of
December 31, 2004 and 2003 and for each of the three years in
the period ended December 31, 2004 and delivered
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their reports with respect thereto,
are independent public accountants with respect to HPL
Consolidation LP within the meaning of the Act and the applicable
published Rules and Regulations thereunder.
(aa) Insurance. The
Partnership, the Guarantors and the other subsidiaries of the
Partnership 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. None
of the Partnership, the Guarantors and the other subsidiaries of
the Partnership 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, and all such insurance is outstanding and duly in force
on the date hereof and will be outstanding and duly in force on the
Closing Date (except with respect to those policies for which the
failure to be in effect would not have, individually or in the
aggregate, a Material Adverse Effect).
(bb) Permits. The
Partnership, the Guarantors and the other subsidiaries of the
Partnership possess all licenses, certificates, permits and other
authorizations issued by the appropriate foreign, federal, state or
local regulatory authorities necessary to conduct their respective
businesses in the manner described in the General Disclosure
Package and the Final Prospectus, subject to such qualifications as
may be set forth in the General Disclosure Package and the Final
Prospectus and except for such licenses, certificates, permits and
other authorizations the failure of which to have obtained would
not have, individually or in the aggregate, a Material Adverse
Effect. None of the Partnership, the Guarantors or any of the other
subsidiaries of the Partnership have received any notice of
pr
