DUNCAN ENERGY PARTNERS
L.P.
8,000,000 Common Units
Representing Limited Partner Interests
UBS Securities
LLC
Barclays Capital Inc.
Citigroup Global Markets Inc.
Morgan Stanley & Co. Incorporated
Wachovia Capital Markets, LLC
As Representatives of the several
Underwriters named in Schedule I
attached hereto,
c/o UBS
Securities LLC
299 Park Avenue
New York, New York 10171
Duncan Energy
Partners L.P., a Delaware limited partnership (the “
Partnership ”), proposes to issue and sell 8,000,000
common units (the “ Firm Units ”), each
representing a limited partner interest in the Partnership (the
“ Common Units ”), to the underwriters listed on
Schedule I hereto (the “ Underwriters
”). In addition, the Partnership proposes to grant to the
Underwriters an option to purchase up to an additional 1,200,000
Common Units, on the terms and for the purposes set forth in
Section 3 (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 the Partnership, DEP Operating Partnership,
L.P., a Delaware limited partnership (the “ Operating
Partnership ”), DEP OLPGP, LLC, a Delaware limited
liability company and the general partner of the Operating
Partnership (“ OLPGP ”, and collectively with
the Partnership and the Operating Partnership, the “ DEP
Parties ”), and Enterprise Products Operating LLC, a
Texas limited liability company (“ EPO ”), and
the Underwriters concerning the purchase of the Firm Units and the
Option Units from the Partnership by the Underwriters.
It is understood
and agreed to by all of the parties hereto that the Partnership,
EPO and Enterprise GTM Holdings L.P., a Delaware limited
partnership and a subsidiary of EPO (“ Enterprise GTM
,” and together with EPO, the “ Enterprise
Entities ”), have entered into a Common Unit Purchase
Agreement dated as of the date hereof (the “ Common Unit
Purchase Agreement ” and together with this Agreement,
the “ Transaction Documents ”).
1.
Representations, Warranties and Agreements of the DEP
Parties . Each of the DEP Parties, jointly and severally,
represents and warrants to, and agrees with, the Underwriters
that:
(a) A registration
statement on Form S-3 (File No. 333-149583) relating to the
Units (i) has been prepared by the Partnership pursuant to the
requirements of the Securities Act of 1933, as amended (the “
Securities Act ”), and the rules and regulations (the
“ Rules and Regulations ”) of the Securities and
Exchange Commission (the “ Commission ”)
thereunder; (ii) has been filed with the Commission under the
Securities Act; and (iii) is effective under the Securities
Act. Copies of such registration statement and any amendment
thereto have been made available by the Partnership to you as the
representatives (the “ Representatives ”) of the
Underwriters. As used in this Agreement:
(i) “
Applicable Time ” means 4:30 p.m. (New York City time)
on the date of this Agreement;
(ii) “
Base Prospectus ” means the base prospectus included
in the Registration Statement at the Applicable Time;
(iii) “
Effective Date ” means any date as of which any part
of such registration statement relating to the Units became, or is
deemed to have become, effective under the Securities Act in
accordance with the Rules and Regulations (including for the
avoidance of doubt, any effective date with respect to the
Underwriters);
(iv) “
Issuer Free Writing Prospectus ” means each
“free writing prospectus” (as defined in Rule 405
of the Rules and Regulations) or “issuer free writing
prospectus” (as defined in Rule 433 of the Rules and
Regulations) prepared by or on behalf of the Partnership or used or
referred to by the Partnership in connection with the offering of
the Units;
(v) “
Preliminary Prospectus ” means any preliminary
prospectus relating to the Units included in such registration
statement or filed with the Commission pursuant to Rule 424(b) of
the Rules and Regulations, including the Base Prospectus and any
preliminary prospectus supplement thereto relating to the
Units;
(vi) “
Pricing Disclosure Package ” means (i) the Base
Prospectus, (ii) the Preliminary Prospectus as amended or
supplemented as of the Applicable Time, and (iii) the pricing
information and the Issuer Free Writing Prospectus, if any,
identified in Schedule II hereto;
(vii) “
Prospectus ” means the final prospectus relating to
the Units, including the Base Prospectus and any prospectus
supplement thereto relating to the Units, as filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations;
and
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(viii) “
Registration Statement ” means, collectively, the
various parts of the registration statement referred to in this
Section 1(a), each as amended as of the Effective Date for
such part, including any Preliminary Prospectus or the Prospectus
and all exhibits to such registration statement.
Any reference
to any Preliminary Prospectus, the Pricing Disclosure Package or
the Prospectus shall be deemed to refer to and include any
documents incorporated by reference therein pursuant to Form S-3
under the Securities Act as of the date of such Preliminary
Prospectus or the Prospectus, as the case may be, or in the case of
the Pricing Disclosure Package, as of the Applicable Time. Any
reference to the “ most recent Preliminary Prospectus
” shall be deemed to refer to the latest Preliminary
Prospectus included in the Registration Statement or filed pursuant
to Rule 424(b) on or prior to the date hereof. Any reference to any
amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any document
filed under the Securities Exchange Act of 1934, as amended (the
“ Exchange Act ”), after the date of such
Preliminary Prospectus or the Prospectus, as the case may be, and
incorporated by reference in such Preliminary Prospectus or the
Prospectus, as the case may be; and any reference to any amendment
to the Registration Statement shall be deemed to include the most
recent annual report of the Partnership on Form 10-K filed with the
Commission pursuant to Section 13(a) or 15(d) of the Exchange Act
after the original Effective Date that is incorporated by reference
in the Registration Statement. The Commission has not issued any
order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending the effectiveness of the
Registration Statement, and no proceeding or examination for such
purpose has been instituted or, to the Partnership’s
knowledge, threatened by the Commission. The Commission has not
notified the Partnership of any objection to the use of the form of
the Registration Statement.
(b) Partnership
Not an Ineligible Issuer . For purposes of firm commitment
underwritten offerings contemplated under the Registration
Statement, the Partnership was not at the time of the initial
filing of the Registration Statement and at the earliest time
thereafter that the Partnership or another offering participant
made a bona fide offer (within the meaning of Rule 164(h)(2)
of the Rules and Regulations) of the Units, is not on the date
hereof and will not be on the applicable Delivery Date (as defined
in Section 4), an “ineligible issuer” (as defined
in Rule 405 of the Rules and Regulations).
(c) Form of
Documents . The Registration Statement conformed and will
conform in all material respects on each Effective Date and on the
applicable Delivery Date, and any amendment to the Registration
Statement filed after the date hereof will conform in all material
respects when filed, to the requirements of the Securities Act and
the Rules and Regulations. The most recent Preliminary Prospectus
conformed, and the Prospectus will conform, in all material
respects when filed with the Commission pursuant to Rule 424(b) to
the requirements of the Securities Act and the Rules and
Regulations. The documents incorporated by reference in any
Preliminary Prospectus or the Prospectus conformed, and any further
documents so incorporated will conform, when filed with the
Commission, in all material respects to the requirements of the
Exchange Act or the Securities Act, as applicable, and the rules
and regulations of the Commission thereunder.
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(d)
Registration Statement . The Registration Statement did not,
as of each 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; provided that no representation or warranty is made as
to information contained in or omitted from the Registration
Statement in reliance upon and in conformity with written
information furnished to the Partnership through the
Representatives by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in Section
9(c).
(e)
Prospectus . The Prospectus will not, as of its date and on
the applicable Delivery Date, contain an untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that no
representation or warranty is made as to information contained in
or omitted from the Prospectus in reliance upon and in conformity
with written information furnished to the Partnership through the
Representatives by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in
Section 9(c).
(f) Documents
Incorporated by Reference . The documents incorporated by
reference in any Preliminary Prospectus or the Prospectus did not,
and any further documents filed and incorporated by reference
therein will not, when filed with the Commission, contain an 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.
(g) Pricing
Disclosure Package . The Pricing Disclosure Package did not, as
of the Applicable Time, contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that no
representation or warranty is made as to information contained in
or omitted from the Pricing Disclosure Package in reliance upon and
in conformity with written information furnished to the Partnership
through the Representatives by or on behalf of any Underwriters
specifically for inclusion therein, which information is specified
in Section 9(c).
(h) Issuer Free
Writing Prospectus and Pricing Disclosure Package . Each Issuer
Free Writing Prospectus (including, without limitation, any road
show that is a free writing prospectus under Rule 433), when
considered together with the Pricing Disclosure Package as of the
Applicable Time, did not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that no
representation or warranty is made as to information contained in
or omitted from any Issuer Free Writing Prospectus in reliance upon
and in conformity with written information furnished to the
Partnership through the Representatives by or on behalf of any
Underwriters specifically for inclusion therein, which information
is specified in Section 9(c).
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(i) Each Issuer
Free Writing Prospectus . Each Issuer Free Writing Prospectus
conformed or will conform in all material respects to the
requirements of the Securities Act and the Rules and Regulations on
the date of first use, and the Partnership has complied with any
filing requirements applicable to such Issuer Free Writing
Prospectus pursuant to the Rules and Regulations. The Partnership
has not made any offer relating to the Units that would constitute
an Issuer Free Writing Prospectus without the prior written consent
of the Representatives, except as set forth on
Schedule VI hereto. The Partnership has retained in
accordance with the Rules and Regulations all Issuer Free Writing
Prospectuses that were not required to be filed pursuant to the
Rules and Regulations (it being understood that, as of the date
hereof, the Partnership has not retained any Issuer Free Writing
Prospectus for the three-year period required thereby). Each Issuer
Free Writing Prospectus does not and will not include any
information that conflicts with the information contained in the
Registration Statement or the Pricing Disclosure Package, including
any document incorporated therein and any prospectus supplement
deemed to be a part thereof that has not been superseded or
modified. The foregoing sentence does not apply to statements in or
omissions from any Issuer Free Writing Prospectus based upon and in
conformity with written information furnished to the Partnership by
the Underwriters through the Representatives specifically for
inclusion therein, which information consists solely of the
information specified in Section 9(c).
(j) Formation
and Qualification of the Significant DEP Entities . Each of the
Partnership, DEP Holdings LLC, a Delaware limited liability company
and the general partner of the Partnership (the “ General
Partner ”), the Operating Partnership, OLPGP, Evangeline
Gas Corp., a Texas corporation (“ Evangeline ”),
and Evangeline Gas Pipeline Company, L.P., a Delaware limited
partnership (“ Evangeline Pipeline ”) and the
subsidiaries listed on Schedule III hereto (the “
Operating Subsidiaries ”) (each, a “
Significant DEP Entity ”, and together with the
subsidiaries of the Operating Subsidiaries listed on
Schedule IV , the “ Partnership Entities
”), has been duly formed or incorporated, as the case may be,
and is validly existing in good standing under the laws of its
respective jurisdiction of formation or incorporation, as the case
may be, with all corporate, limited liability company or
partnership, as the case may be, power and authority necessary to
own or hold its properties and conduct the businesses in which it
is engaged and, in the case of the General Partner and OLPGP, to
act as general partner of the Partnership and the Operating
Partnership, respectively, in each case in all material respects as
described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus. Each Significant DEP Entity is duly
registered or qualified to do business and is in good standing as a
foreign corporation, limited liability company or limited
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 or registration, except where the
failure to so qualify or register 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.
(k) Ownership
of General Partner . EPO owns 100% of the issued and
outstanding membership interests in the General Partner; such
membership interests have
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been duly
authorized and validly issued in accordance with the Second Amended
and Restated Limited Liability Company Agreement of the General
Partner, (the “ GP LLC Agreement ”) and fully
paid (to the extent required under the GP LLC Agreement) and
non-assessable (except as such nonassessability may be affected by
Sections 18-607 and 18-804 of the Delaware Limited Liability
Company Act (the “ Delaware LLC Act ”)); and EPO
owns such membership interests free and clear of all liens,
encumbrances, security interests, charges or claims (“
Liens ”).
(l) Ownership
of General Partner Interest in the Partnership . The General
Partner is the sole general partner of the Partnership with a 0.7%
general partner interest in the 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 (the “ Partnership
Agreement ”); and the General Partner owns such general
partner interest free and clear of all Liens (except for
restrictions on transferability described in the Pricing Disclosure
Package).
(m) Ownership
of OLPGP . The Partnership owns 100% of the issued and
outstanding membership interests in the OLPGP; such membership
interests have been duly authorized and validly issued in
accordance with the OLPGP LLC Agreement and are fully paid (to the
extent required under the OLPGP LLC Agreement) and non-assessable
(except as such nonassessability may be affected by
Sections 18-607 and 18-804 of the Delaware LLC Act); and the
Partnership owns such membership interests free and clear of all
Liens (except for restrictions on transferability described in the
Pricing Disclosure Package).
(n) Ownership
of the Operating Partnership . (i) OLPGP is the sole
general partner of the Operating Partnership with a 0.001% general
partner interest in the Operating Partnership; such general partner
interest has been duly authorized and validly issued in accordance
with the agreement of limited partnership of the Operating
Partnership, as amended and/or restated on or prior to the date
hereof (the “ Operating Partnership Agreement
”); and OLPGP owns such general partner interest free and
clear of all Liens (except for such restrictions on transferability
described in the Pricing Disclosure Package); and (ii) the
Partnership is the sole limited partner of the Operating
Partnership with a 99.999% 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
Sections 17-303, 17-607 and 17-804 of the Delaware LP Act);
and the Partnership owns such limited partner interest free and
clear of all Liens (except for restrictions on transferability
described in the Pricing Disclosure Package).
(o)
Capitalization . As of the date hereof and immediately prior
to the issuance of Units pursuant to this Agreement, the issued and
outstanding limited partner interests of the Partnership consist of
57,676,987 Common Units. All of such outstanding Common 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-
6
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); EPO and its subsidiaries (other than
the Partnership Entities) collectively beneficially own 42,726,987
Common Units, and to the knowledge of the DEP Parties, own such
Common Units free and clear of all Liens (other than those Liens
set forth in the filings on Schedule 13D by Dan L. Duncan, EPO
and other joint filers); and EPCO, Inc. (“ EPCO
”), to the knowledge of the DEP Parties, Dan L. Duncan and
their affiliates (other than EPO and its subsidiaries) collectively
beneficially own 385,600 Common Units free and clear of all Liens
(other than Liens in favor of lenders of EPCO and its affiliates or
Liens otherwise set forth in the filings on Schedule 13D by
Dan L. Duncan and other joint filers).
(p) Valid
Issuance of the Units . At the First Delivery Date or on each
Option 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 Sections 17-303, 17-607 and 17-804 of the
Delaware LP Act and as otherwise disclosed in the Pricing
Disclosure Package).
(q) No
Preemptive Rights, Registration Rights or Options . Except as
identified in the Pricing Disclosure Package, there are no
(i) preemptive rights or other rights to subscribe for or to
purchase, nor any restriction upon the voting or transfer of, any
equity interests in any of the Significant DEP Entities or
(ii) outstanding options or warrants to purchase any
securities of any of the Significant DEP Entities. Except for such
rights that have been waived or complied with, none of 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 Common Units or other
securities of any of the Significant DEP Entities.
(r)
Authority . Each of the DEP Parties has all requisite right,
power and authority to execute and deliver the Transaction
Documents to which it is a party, and to perform its respective
obligations hereunder and thereunder. 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, the Pricing Disclosure Package and the Prospectus. All
action required to be taken by the DEP Parties or any of their
security holders, partners or members for (i) the due and
proper authorization, execution and delivery of the Transaction
Documents, (ii) the authorization, issuance, sale and delivery
of the Units, and (iii) the consummation of the transactions
contemplated by the Transaction Documents has been duly and validly
taken.
(s) Ownership
of the Operating Entities . All of the outstanding shares of
capital stock, partnership interests or membership interests, as
the case may be, of each Operating Subsidiary, Evangeline and
Evangeline Pipeline (each an “ Operating Entity
,” and collectively, the “ Operating Entities
”) have been duly authorized and validly issued in accordance
with the articles of incorporation and by-laws, limited liability
company
7
agreement or
agreement of limited partnership, as the case may be, of the
Operating Entities (the “ Operating Entities Formation
Agreements ”), and are fully paid (to the extent required
under the Operating Entities Formation Agreements) and
non-assessable (except as such non-assessability may be affected by
Sections 17-303, 17-607 and 17-804 of the Delaware LP Act, in
the case of partnership interests in a Delaware limited
partnership; Sections 18-607 and 18-804 of the Delaware LLC
Act, in the case of membership interests in a Delaware limited
liability company; Section 153.210 of the Texas Business
Organizations Code, in the case partnership interests in a Texas
limited partnership; Section 101.206 of the Texas Business
Organizations Code, in the case of membership interests in a Texas
limited liability company; and except as otherwise disclosed in the
Pricing Disclosure Package). Except as described in the Pricing
Disclosure Package, the Partnership and the Operating Partnership,
as the case may be, directly or indirectly, owns the shares of
capital stock, partnership interests or membership interests in
each Operating Entity in such amounts as are indicated in
Schedules III and IV hereto free and clear of all
liens, encumbrances (other than contractual restrictions on
transfer contained in the applicable constituent documents),
security interests, equities, charges, claims or restrictions upon
voting or any other claim of any third party. Other than its
ownership of its 0.7% general partner interest in the Partnership,
the General Partner does not own, and at each Delivery Date will
not own, directly or indirectly, any equity or long-term debt
securities of any corporation, partnership, limited liability
company, joint venture, association or other entity. Other than
(i) the Partnership’s ownership of a 99.999% limited
partnership interest in the Operating Partnership and a 100%
membership interest in OLPGP, and (ii) the Operating
Partnership’s ownership of the outstanding membership
interests or partnership interests, as the case may be, in each of
the Operating Subsidiaries in such amounts as are set forth on
Schedule III hereto, neither the Partnership nor the
Operating Partnership owns, and at each Delivery Date will directly
own, any equity or long-term debt securities of any corporation,
partnership, limited liability company, joint venture, association
or other entity. Other than the Significant DEP Entities, neither
the Partnership nor the Operating Partnership has, or will have at
each Delivery Date, directly or indirectly, any subsidiaries which,
individually or considered as a whole, would be deemed to be a
significant subsidiary of the Partnership (as such term is defined
in Section 1-02(w) of Regulation S-X of the Securities
Act).
(t)
Authorization, Execution and Delivery of Agreement . This
Agreement has been duly authorized and validly executed and
delivered by each of the DEP Parties.
(u)
Authorization, Execution and Enforceability of Agreements .
(i) The GP LLC Agreement has been duly authorized, executed
and delivered by EPO and is a valid and legally binding agreement
of EPO, enforceable against EPO in accordance with its terms,
(ii) 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;
(iii) the Operating Partnership Agreement has been duly
authorized, executed and delivered by each of OLPGP and the
Partnership and is a valid and legally binding agreement of each of
OLPGP and the Partnership, enforceable against each of OLPGP and
the Partnership in accordance with its terms; and (iv) the
Common Unit Purchase Agreement has been
8
duly
authorized, executed and delivered by the Partnership and is a
valid and legally binding agreement of the Partnership, enforceable
against each of the Partnership in accordance with its terms;
provided that, with respect to each such agreement listed in this
Section (u)(i)-(iv), 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).
(v) No
Conflicts or Violations . None of the (i) offering,
issuance and sale by the Partnership of the Units,
(ii) execution, delivery and performance of this Agreement by
the DEP Parties, (iii) execution, delivery and performance of
the Common Unit Purchase Agreement by the Partnership, or
(iv) consummation of the transactions contemplated by the
Transaction Documents (A) conflicts or will conflict with or
constitutes or will constitute a violation of the certificate of
limited partnership or agreement of limited partnership,
certificate of formation or limited liability company agreement,
certificate or articles of incorporation or bylaws or other
organizational documents of any of the Partnership Entities,
(B) 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 or assets may be bound, (C) 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 respective properties or
assets, or (D) 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 (B) or
(D), would, individually or in the aggregate, have a Material
Adverse Effect or materially impair the ability of any of the DEP
Parties to consummate the transactions contemplated by the
Transaction Documents.
(w) 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 (i) the
offering, issuance and sale by the Partnership of the Units in the
manner contemplated in this Agreement and in the Registration
Statement, the Pricing Disclosure Package and the Prospectus,
(ii) the execution, delivery and performance of this Agreement
by the DEP Parties, (iii) the execution, delivery and
performance of the Common Unit Purchase Agreement by the
Partnership, or (iv) the consummation by the DEP Parties of
the transactions contemplated by the Transaction Documents, except
for (A) such consents required under the Securities Act, the
Exchange Act (all of which have been obtained) and state securities
or Blue Sky laws in connection with the purchase and distribution
of the Units by the Underwriters and (B) such consents that
have been, or prior to any such Delivery Date will be,
obtained.
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(x) No
Default . None of the Significant DEP Entities is (i) in
violation of its certificate of limited partnership or agreement of
limited partnership, certificate of formation or 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 DEP
Parties to perform their obligations under the Transaction
Documents.
(y) Independent
Registered Public Accounting Firm . Deloitte & Touche LLP,
who has audited the audited financial statements contained or
incorporated by reference in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, is an independent
registered public accounting firm with respect to the Partnership
and the General Partner within the meaning of the Securities Act
and the applicable rules and regulations thereunder adopted by the
Commission and the Public Company Accounting Oversight Board
(United States) (the “ PCAOB ”).
(z) Financial
Statements . The historical financial statements (including the
related notes and supporting schedule) contained or incorporated by
reference in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, (i) comply in all material
respects with the applicable requirements under the Securities Act
and the Exchange Act (except that certain supporting schedules are
omitted), (ii) 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
(iii) have been prepared in accordance with accounting
principles generally accepted in the United States of America
consistently applied throughout the periods involved, except to the
extent disclosed therein. The other financial information of the
General Partner and the Partnership and its subsidiaries, including
non-GAAP financial measures, if any, contained or incorporated by
reference in the Registration Statement, the Pricing Disclosure
Package and the Prospectus has been derived from the accounting
records of the General Partner, the Partnership and its
subsidiaries, and fairly presents the information purported to be
shown thereby. Nothing has come to the attention of any of the
Partnership Entities that has caused them to believe that the
statistical and market-related data included in the Registration
Statement, the Pricing Disclosure Package and the Prospectus is not
based on or derived from sources that are reliable and accurate in
all material respects.
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(aa) 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 offering
material in connection with the offering and sale of the Units
other than the Registration Statement, any Preliminary Prospectus,
the Prospectus, any Issuer Free Writing Prospectus to which the
Representatives have consented in accordance with
Section 1(i), 6(l) or 6(m) and any Issuer Free Writing
Prospectus set forth on Schedule VI hereto and any
other materials, if any, permitted by the Securities Act, including
Rule 134 of the Rules and Regulations.
(bb) 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 or
incorporated by reference in the Registration Statement, the
Pricing Disclosure Package and the Prospectus.
(cc) Certain
Transactions . Except as disclosed in the Prospectus and the
Pricing Disclosure Package, subsequent to the respective dates as
of which such information is given in the Registration Statement
and the Pricing Disclosure Package, (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, and (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.
(dd) No Omitted
Descriptions; Legal Descriptions . There are no legal or
governmental proceedings pending or, to the knowledge of the DEP
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, the Pricing Disclosure Package 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, the Pricing Disclosure
Package 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 or the Exchange
Act or the rules and regulations thereunder. The statements
included in or incorporated by reference into the Registration
Statement, the Pricing Disclosure Package and the Prospectus under
the headings “Description of Common Units,” “How
We Make Cash Distributions,” “The Partnership
Agreement” and “Material Tax Consequences,”
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.
(ee) Title to
Properties . Each Partnership Entity has good and indefeasible
title to all 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 (A) do not materially affect the value of
such property and do not materially interfere with the use made and
proposed to be made of
11
such property
by the Partnership Entities, (B) could not reasonably be
expected to have a Material Adverse Effect or (C) are
described, and subject to the limitations contained, in the Pricing
Disclosure Package.
(ff)
Rights-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 Pricing Disclosure Package
and the Prospectus, subject to such qualifications as may be set
forth in the Pricing Disclosure Package 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
Pricing Disclosure Package and the Prospectus; and, except as
described in the Pricing Disclosure Package and the Prospectus,
none of such rights-of-way contains any restriction that is
materially burdensome to the Partnership Entities, taken as a
whole.
(gg)
Permits . Each of the Partnership Entities has such 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 Pricing Disclosure Package
and the Prospectus, subject to such qualifications as may be set
forth in the Pricing Disclosure Package and 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 Pricing
Disclosure Package and 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.
(hh) Books and
Records; Accounting Controls . The Partnership Entities
(i) make and keep books, records and accounts that, in
reasonable detail, accurately and fairly reflect the transactions
and dispositions of assets, and (ii) maintain 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 accounting
principles generally accepted in the United States of America and
to maintain accountability for assets; (C) access to assets is
permitted only in accordance with management’s general or
specific authorization; and
12
(D) the
recorded accountability for assets is compared with existing assets
at reasonable intervals and appropriate action is taken with
respect to any differences.
(ii) 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 Pricing Disclosure Package and the Prospectus and which is not
so described.
(jj)
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 DEP 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 DEP 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.
(kk)
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 Pricing
Disclosure Package and 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.
(ll)
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 DEP Parties, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(mm) No Labor
Disputes . No labor dispute with the employees that are engaged
in the business of the Partnership or its subsidiaries exists or,
to the knowledge of the
13
DEP Parties, is
imminent or threatened that is reasonably likely to result in a
Material Adverse Effect.
(nn)
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 mark 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.
(oo) Investment
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
Pricing Disclosure Package under the caption “Use of
Proceeds” will be, 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 ”).
(pp) 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 Pricing Disclosure Package in any jurisdiction; no
action, suit or proceeding is pending against or, to the knowledge
of the DEP 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 most recent
Preliminary Prospectus.
(qq) Market
Stabilization . None of the General Partner, the Partnership or
any of their affiliates has taken, directly or indirectly, any
action designed to or which has constituted or which would
reasonably be expected to cause or result, under the Exchange Act
or otherwise, in stabilization or manipulation of the price of any
securities of the Partnership to facilitate the sale or resale of
the Units.
(rr)
Form S-3 . The conditions for the use of Form S-3 by
the Partnership, as set forth in the General Instructions thereto,
have been satisfied.
(ss) Disclosure
Controls . The General Partner and the Partnership have
established and maintain disclosure controls and procedures (as
such term is defined in Rule 13a-15(e) and 15d-15(e) under the
Exchange Act) which (i) are designed to ensure that material
information relating to the Partnership, including its
consolidated
14
subsidiaries,
is made known to the General Partner’s principal executive
officer and its principal financial officer by others within those
entities, particularly during the periods in which the periodic
reports required under the Exchange Act are being prepared;
(ii) have been evaluated for effectiveness as of the end of
the period covered by the Partnership’s most recent annual
report filed with the Commission; and (iii) are effective in
achieving reasonable assurances that the Partnership’s
desired control objectives as described in Item 9A of the
Partnership’s Annual Report on Form 10-K for the period ended
December 31, 2008 (the “ 2008 Annual Report
”) have been met.
(tt) No
Deficiency in Internal Controls . Based on the evaluation of
its internal controls and procedures conducted in connection with
the preparation and filing of the 2008 Annual Report, neither the
Partnership nor the General Partner is aware of (i) any
significant deficiencies or material weaknesses in the design or
operation of its internal controls over financial reporting (as
defined in Rule 13a-15(f) and 15d-15(f) under the Exchange
Act) that are likely to adversely affect the Partnership’s
ability to record, process, summarize and report financial data; or
(ii) any fraud, whether or not material, that involves
management or other employees who have a role in the
Partnership’s internal controls over financial
reporting.
(uu) No Changes
in Internal Controls . Since the date of the most recent
evaluation of the disclosure controls and procedures described in
Section 1(tt) hereof, there have been no significant changes
in the Partnership’s internal controls that materially
affected or are reasonably likely to materially affect the
Partnership’s internal controls over financial
reporting.
(vv)
Sarbanes-Oxley Act . The principal executive officer and
principal financial officer of the General Partner have made all
certifications required by the Sarbanes-Oxley Act of 2002 (the
“ Sarbanes-Oxley Act ”) and any related rules
and regulations promulgated by the Commission, and the statements
contained in any such certification are complete and correct. The
Partnership and the General Partner are otherwise in compliance in
all material respects with all applicable provisions of the
Sarbanes-Oxley Act that are effective.
(ww) No Foreign
Operations . None of the Partnership Entities conducts business
operations outside of the United States.
Any certificate
signed by any officer of any DEP Party and delivered to the
Representatives or counsel for the Underwriters pursuant to this
Agreement shall be deemed a representation and warranty by the DEP
Parties signatory thereto, as to the matters covered thereby, to
each Underwriter.
2.
Representations, Warranties and Agreements of EPO. EPO
represents and warrants to, and agrees with, the Underwriters
that:
(a)
Formation . Each of the Enterprise Entities has been duly
formed and is validly existing in good standing under the laws of
its respective jurisdiction of formation
15
with all
limited liability company or partnership, as the case may be, power
and authority necessary to own or hold its properties and conduct
the businesses in which it is engaged.
(b)
Authority . Each of the Enterprise Entities has all
requisite right, power and authority to execute and deliver the
Transaction Documents to which it is a party, and to perform its
respective obligations hereunder and thereunder. All action
required to be taken by each of the Enterprise Entities or any of
its respective security holders, partners or members for
(i) the due and proper authorization, execution and delivery
of the Transaction Documents, (ii) the sale and delivery of
the Common Units pursuant to the Common Unit Purchase Agreement,
and (iii) the consummation of the transactions contemplated by
the Transaction Documents has been duly and validly
taken.
(c) Ownership
of Enterprise GTM . EPO indirectly owns 100% of the equity
interests in Enterprise GTM.
(d)
Authorization, Execution and Delivery of Agreement . This
Agreement has been duly authorized and validly executed and
delivered by EPO.
(e)
Enforceability . The Common Unit Purchase Agreement has been
duly authorized, executed and delivered by each of the Enterprise
Entities and is a valid and legally binding agreement of such
Enterprise Entity, enforceable against such Enterprise Entity in
accordance with its terms; provided that 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).
(f) No
Conflicts or Violations . None of the (i) execution,
delivery and performance of this Agreement by EPO,
(ii) execution, delivery and performance of the Common Unit
Purchase Agreement by the Enterprise Entities, or
(iii) consummation of the transactions contemplated by the
Transaction Documents (A) conflicts or will conflict with or
constitutes or will constitute a violation of the certificate of
limited partnership or agreement of limited partnership,
certificate of formation or limited liability company agreement or
other organizational documents of either Enterprise Entity,
(B) 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 either
Enterprise Entity is a party or by which any of them or any of
their respective properties or assets may be bound,
(C) 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 either
Enterprise Entity or any of their respective properties or assets,
or (D) results or will result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of
either Enterprise Entity, which conflicts, breaches, violations,
defaults or liens, in the case of clauses (B) or (D), would,
individually or in the aggregate, have a Material Adverse Effect or
materially impair the ability of either Enterprise Entity to
consummate the transactions contemplated by the Transaction
Documents.
16
(g) No
Consents . No consent of or with any court, governmental agency
or body having jurisdiction over the Enterprise Entities or any of
their respective properties is required in connection with
(i) the execution, delivery and performance of this Agreement
by EPO, (ii) the execution, delivery and performance of the
Common Unit Purchase Agreement by the Enterprise Entities, or
(iii) the consummation by the Enterprise Entities of the
transactions contemplated by the Transaction Documents, except for
(A) such consents required under the Securities Act, the
Exchange Act (all of which have been obtained) and state securities
or Blue Sky laws in connection with the purchase and distribution
of the Units by the Underwriters and (B) such consents that
have been, or prior to any such Delivery Date will be,
obtained.
(h) Title to
Common Units . The Enterprise Entities collectively own
42,726,987 Common Units and own such Common Units free and clear of
all Liens. (i) Each of the Enterprise Entities now is, and at
the time of delivery to the Partnership of Common Units being sold
pursuant to the Common Unit Purchase Agreement, will be the lawful
owner of the number of Common Units to be sold by the Enterprise
Entities pursuant to the Common Unit Purchase Agreement and has,
and at the time of delivery of such Common Units, will have valid
and marketable title to such Common Units, and (ii) upon
delivery of and payment for such Common Units, the Partnership will
acquire valid and marketable title to such Common Units, free and
clear of any Liens.
(i)
Misstatements or Omissions . (i) The Registration
Statement did not, as of each Effective Date, contain an untrue
statement of material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; (ii) the Prospectus will not, as of
its date and on the applicable Delivery Date, contain an untrue
statement of material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; (iii) the Pricing Disclosure Package did
not, as of the Applicable Time, contain an 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; and (iv) each
Issuer Free Writing Prospectus, when considered together with the
Pricing Disclosure Package as of the Applicable Time, did not
contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that (a) the representations
and warranties in this Section 2(i) shall only apply as to written
information furnished to the Partnership or the Underwriter by EPO
with respect to the Enterprise Entities directly or through
EPO’s representatives, specifically for inclusion therein,
and (b) no representation or warranty is made as to
information contained in or omitted from the Registration
Statement, the Prospectus in reliance upon and in conformity with
written information furnished to the Partnership through the
Representatives by or on behalf of any Underwriter specifically for
inclusions therein, which information is specified in
Section 9(b).
(j) Basis of
Sale of Common Units . EPO (i) is familiar with the
Registration Statement, the Prospectus, the Pricing Disclosure
Package and any Issuer Free Writing Prospectus, (ii) has no
knowledge of any material fact, condition or
17
information not
disclosed in such Registration Statement, as of the Effective Date
thereof, the Prospectus, as of its date and on the applicable
Delivery Date, the Pricing Disclosure Package, as of the Applicable
Time, or any Issuer Free Writing Prospectus, when considered
together with the Pricing Disclosure Package as of the Applicable
Time, which has adversely affected or may adversely affect the
business of any Partnership Entity, and (iii) is not prompted
to sell its Common Units by any information concerning any of the
Partnership Entities which is not set forth in the Registration
Statement, Prospectus, Pricing Disclosure Package or any Issuer
Free Writing Prospectus.
(k) Market
Stabilization . Neither Enterprise Entity has taken and will
not take, directly or indirectly, directly or indirectly, any
action designed to or which has constituted or which would
reasonably be expected to cause or result, under the Exchange Act
or otherwise, in stabilization or manipulation of the price of any
securities of the Partnership to facilitate the sale or resale of
the Units.
Any certificate
signed by any officer of EPO and delivered to the Representatives
or counsel for the Underwriters pursuant to this Agreement shall be
deemed a representation and warranty by EPO, as to the matters
covered thereby, to each Underwriter.
3.
Purchase of the Firm Units.
(a) 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 to the several Underwriters, and each of the Underwriters,
severally and not jointly, agrees to purchase from the Partnership,
at a purchase price of $15.36 per Unit, the amount of the Firm
Units set forth opposite that Underwriter’s name in
Schedule I hereto.
(b) On the basis
of the representations and warranties contained in, and subject to
the terms and conditions of, this Agreement, the Partnership hereby
grants an option to the Underwriters to purchase up to 1,200,000
Option Units at the same purchase price per Unit as the
Underwriters shall pay for the Firm Units. Said option may be
exercised only to cover over-allotments in the sale of the Firm
Units by the Underwriters. Said option may be exercised in whole or
in part at any time on or before the 30th day after the date of the
Prospectus upon written or facsimile notice by the Underwriters to
the Partnership setting forth the number of Option Units as to
which the Underwriters are exercising the option and the settlement
date. Each Underwriter agrees, severally and not jointly, to
purchase the number of Option Units (subject to such adjustments to
eliminate fractional Units as the Representatives may determine)
that bears the same proportion to the total number of Option Units
to be sold on such Delivery Date as the number of Firm Units set
forth in Schedule I hereto opposite the name of such
Underwriter bears to the total number of Firm Units.
(c) 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.
18
4.
Offering of Units by the Underwriters . It is
understood that the Underwriters propose to offer the Units for
sale to the public as set forth in the Prospectus.
5.
Delivery of and Payment for the Units . Delivery of
and payment for the Firm Units (including any Option Units provided
for in Section 3(b) hereof that have been exercised) shall be made
at the office of Andrews Kurth LLP, Houston, Texas, at
10:00 A.M., New York City time, on June 19, 2009 or such other
date and time and place as shall be determined by agreement between
the Underwriters and the Partnership (such date and time of
delivery and payment for the Firm Units being herein called the
“ First Delivery Date ”). Delivery of the Firm
Units shall be made to the Underwriters against payment by the
Underwriters of the purchase price thereof to or upon the order of
the Partnership by wire transfer in immediately available funds to
an account specified by the Partnership. Delivery of the Firm Units
shall be made in book-entry form through the Full Fast Program of
the facilities of The Depository Trust Company (“ DTC
”) unless the Underwriters shall otherwise instruct. 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 the Underwriters.
If the option
provided for in Section 3(b) hereof is exercised after the third
business day prior to the First Delivery Date, the Partnership will
deliver to UBS Securities LLC at the place and on the date
specified by the Underwriters in the notice given pursuant to
Section 3(b) hereof (which shall be within five business days after
exercise of said option) (the “ Option Delivery Date
”, and together with the First Delivery Date, each a “
Delivery Date ”) the number of Option Units specified
in such notice against payment by the Underwriters of the purchase
price thereof to or upon the order of the Partnership by wire
transfer payable in same-day funds to an account specified by the
Partnership. If settlement for the Option Units occurs after the
First Delivery Date, the Partnership will deliver to the
Underwriters on the settlement date for the Option Units, and the
obligation of the Underwriters to purchase the Option Units shall
be conditioned upon receipt of, supplemental opinions, certificates
and letters confirming as of such date the opinions, certificates
and letters delivered on the First Delivery Date pursuant to
Section 8 hereof.
6.
Further Agreements of the Parties. Each of the DEP
Parties, jointly and severally, covenants and agrees with the
Underwriters:
(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
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