ENTERPRISE PRODUCTS OPERATING
LLC
$500,000,000 4.60% Senior Notes
due 2012
Barclays
Capital Inc.
DnB NOR Markets, Inc.
Mizuho Securities USA Inc.
RBS Securities Inc.
Scotia Capital (USA) Inc.
Wachovia Capital Markets, LLC
SunTrust Robinson Humphrey, Inc.
As Representatives of the several
Underwriters named in Schedule I attached
hereto,
c/o Barclays
Capital Inc.
745 Seventh Avenue
New York, New York 10019
Enterprise
Products Operating LLC, a Texas limited liability company (the
“ Operating LLC ”), proposes to issue and sell
to the underwriters listed on Schedule I hereto
(collectively, the “ Underwriters ”)
$500,000,000 aggregate principal amount of the Operating
LLC’s 4.60% Senior Notes due 2012 (the “ Notes
”), as set forth on Schedule I hereto, to be
fully and unconditionally guaranteed on a senior unsecured basis by
Enterprise Products Partners L.P., a Delaware limited partnership
(the “ Partnership ”), (the “
Guarantees ,” together with the Notes, the “
Securities ”).
The Securities are
to be issued under the Indenture dated as of October 4, 2004
among the Operating LLC (as successor to Enterprise Products
Operating L.P.), as issuer, the Partnership, as parent guarantor,
and Wells Fargo Bank, N.A., as trustee (the “ Trustee
”) (collectively, as amended and supplemented by the Tenth
Supplemental Indenture, dated as of June 30, 2007, providing
for the Operating LLC as the successor issuer to Enterprise
Products Operating L.P., the “ Base Indenture
”), and the Fifteenth Supplemental Indenture to be dated as
of the Delivery Date (the “ Supplemental Indenture
”) (the Base Indenture, as amended and supplemented as of the
Delivery Date, the “ Indenture ”).
This is to confirm
the agreement among the Partnership, Enterprise Products OLPGP,
Inc., a Delaware corporation and managing member of the Operating
LLC (the “ OLPGP ”), and the Operating LLC
(collectively with the Partnership and the OLPGP, the “
Enterprise Parties ”),
and the
Underwriters concerning the purchase of the Securities from the
Partnership and the Operating LLC by the Underwriters.
1.
Representations, Warranties and Agreements of the Enterprise
Parties . Each of the Enterprise Parties jointly and
severally represents and warrants to, and agrees with, the
Underwriters that:
(a) A
registration statement on Form S-3 (File Nos. 333-145709 and
333-145709-01) relating to the Securities (i) has been
prepared by the Partnership and the Operating LLC 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 and the
Operating LLC to you as the representatives (the “
Representatives ”) of the Underwriters. As used in
this Agreement:
(i) “
Applicable Time ” means 2:00 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;
(ii) “
Effective Date ” means any date as of which any part
of such registration statement relating to the Securities 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);
(iii) “
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 the
Operating LLC or used or referred to by the Partnership or the
Operating LLC in connection with the offering of the
Securities;
(iv) “
Preliminary Prospectus ” means any preliminary
prospectus relating to the Securities 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
Securities;
(v) “
Pricing Disclosure Package ” means (i) the Base
Prospectus, (ii) the Preliminary Prospectus as amended or
supplemented as of the Applicable Time, (iii) the Issuer Free
Writing Prospectuses, if any, identified in Schedule II
hereto, and (iv) the final term sheet attached as
Schedule IV hereto.
(vi) “
Prospectus ” means the final prospectus relating to
the Securities, including the Base Prospectus and any prospectus
supplement thereto relating to the Securities, as filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations;
and
(vii) “
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 or the Operating LLC of any objection to
the use of the form of the Registration Statement.
(b)
Well-Known Seasoned Issuer and Not an Ineligible Issuer .
Each of the Partnership and the Operating LLC were at the time of
the initial filing of the Registration Statement and continue to be
a “well-known seasoned issuers” (as defined in
Rule 405 under the Securities Act) eligible to use an
“automatic shelf registration statement” (as defined in
Rule 405 under the Securities Act) for the registration of the
Securities, including not having been an “ineligible
issuer” (as defined in Rule 405 under the Securities
Act) at any such time or date. Neither the Partnership nor the
Operating LLC has received from the Commission any notice pursuant
to Rule 401(g)(2) under the Securities Act objecting to the
use of the automatic shelf registration statement form. The
Registration Statement is not the subject of a pending proceeding
or examination under Section 8(d) or 8(e) of the Securities Act,
and neither the Partnership nor the Operating LLC is the subject of
a pending proceeding under Section 8A of the Securities Act in
connection with the offering of the Securities.
(c) Form
of Documents. The Registration Statement conformed and will
conform in all material respects on each Effective Date and on the
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. The Registration Statement and the Prospectus conform
in all material respects to the requirements applicable to them
under the Trust Indenture Act of 1939, as amended (the “Trust
Indenture Act”).
(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 and the Operating LLC
through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein, which information is specified
in Section 8(b).
(e)
Prospectus. The Prospectus will not, as of its date and on
the 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 and the Operating LLC
through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein, which information is specified
in Section 8(b).
(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
and the Operating LLC through the Representatives by or on behalf
of any Underwriters specifically for inclusion therein, which
information is specified in Section 8(b).
(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 and the
Operating LLC
through the Representatives by or on behalf of any Underwriters
specifically for inclusion therein, which information is specified
in Section 8(b).
(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.
Neither the Partnership nor the Operating LLC has made any offer
relating to the Securities that would constitute an Issuer Free
Writing Prospectus without the prior written consent of the
Representatives, except as set forth on Schedule IV
hereto. The Partnership and the Operating LLC have 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 and the Operating LLC have 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 and the Operating LLC by the Underwriters through
the Representatives specifically for inclusion therein, which
information consists solely of the information specified in
Section 8(b).
(j)
Formation and Qualification of the Partnership Entities .
Each of Enterprise Products GP, LLC, a Delaware limited liability
company (the “ General Partner ”), the
Partnership, the OLPGP, the Operating LLC and their respective
subsidiaries listed on Schedule III hereto (each, a
“ Partnership Entity ” and collectively, the
“ Partnership Entities, ” and the subsidiaries
of the Partnership listed on Schedule III hereto, the
“ Subsidiaries ”) 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 the OLPGP, to act as general partner of the Partnership
and managing member of the Operating LLC, respectively, in each
case in all material respects as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus. Each
Partnership 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 . Enterprise GP Holdings L.P.,
a Delaware limited partnership (“ EPE ”), owns
100% of the issued and outstanding membership interests in the
General Partner; such membership interests have been duly
authorized and validly issued in
accordance with
the limited liability company agreement of the General Partner, as
amended and/or restated on or prior to the date hereof (the “
GP LLC Agreement ”); and EPE owns such membership
interests free and clear of all liens, encumbrances, security
interests, equities, charges or claims other than those in favor of
lenders of EPE.
(l)
Ownership of General Partner Interest in the Partnership .
The General Partner is the sole general partner of the Partnership
with a 2.0% general partner interest in the Partnership (including
the right to receive Incentive Distributions (as defined in the
Partnership Agreement) (the “ Incentive Distribution
Rights ”)); such general partner interest has been duly
authorized and validly issued in accordance with the agreement of
limited partnership of the Partnership, as amended and/or restated
on or prior to the date hereof (the “ Partnership
Agreement ”); and the General Partner owns such general
partner interest free and clear of all liens, encumbrances,
security interests, equities, charges or claims.
(m)
Ownership of the OLPGP . The Partnership owns 100% of the
issued and outstanding capital stock in the OLPGP; such capital
stock has been duly authorized and validly issued in accordance
with the bylaws of the OLPGP, as amended or restated on or prior to
the date hereof (the “ OLPGP Bylaws ”), and the
certificate of incorporation of the OLPGP, as amended and restated
on or prior to the date hereof (the “ OLPGP Certificate of
Incorporation ”), and is fully paid and non-assessable;
and the Partnership owns such capital stock free and clear of all
liens, encumbrances, security interests, equities, charges or
claims.
(n)
Ownership of Operating LLC . The OLPGP owns 0.001% of the
membership interests in the Operating LLC and the Partnership owns
99.999% of the membership interests in the Operating LLC; such
membership interests have been duly authorized and validly issued
in accordance with the agreement of limited liability company
agreement of the Operating LLC, as amended and/or restated on or
prior to the date hereof (the “ Operating LLC
Agreement ”) and are fully paid and non-assessable
(except as such non-assessability may be affected by
Section 18-607 of the Delaware LLC Act); and the OLPGP and the
Partnership own such membership interests free and clear of all
liens, encumbrances, security interests, equities, charges or
claims.
(o) No
Registration Rights . Neither the filing of the Registration
Statement nor the offering of the Securities as contemplated by
this Agreement gives rise to any rights for or relating to the
registration of any securities of the Partnership, the Operating
LLC or any of their Subsidiaries, except such rights as have been
waived.
(p)
Authority . Each of the Enterprise Parties has all requisite
power and authority to execute and deliver this Agreement and to
perform its respective obligations hereunder, and the Partnership
and the Operating LLC have all requisite power and authority to
execute and deliver the Base Indenture and the Supplemental
Indenture and to perform their respective obligations thereunder.
The Partnership and the Operating LLC have all requisite power and
authority to issue, sell and deliver the Guarantees and the Notes,
respectively, in accordance with and upon the terms and conditions
set forth in this Agreement, the Partnership Agreement, the
Operating LLC Agreement, the Indenture, the Registration Statement,
the Pricing Disclosure Package and Prospectus. All action required
to be taken by the Enterprise Parties or any of their security
holders, partners or members for (i) the due and proper
authorization, execution and delivery of this Agreement and the
Indenture, (ii) the authorization, issuance, sale and delivery
of the
Securities and
(iii) the consummation of the transactions contemplated hereby
and thereby has been duly and validly taken.
(q)
Ownership of Subsidiaries . All of the outstanding shares of
capital stock, partnership interests or membership interests, as
the case may be, of each Subsidiary have been duly and validly
authorized and issued, and are fully paid and non-assessable
(except as such non-assessability may be affected by
Section 17-607 of the Delaware LP Act, in the case of
partnership interests, or Section 18-607 of the Delaware LLC
Act, in the case of membership interests, and except as otherwise
disclosed in the Pricing Disclosure Package and the Prospectus).
Except as described in the Pricing Disclosure Package and the
Prospectus, the Partnership and the Operating LLC, as the case may
be, directly or indirectly, owns the shares of capital stock,
partnership interests or membership interests in each Subsidiary as
set forth on Schedule III 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. None of the
Enterprise Parties has any subsidiaries other than as set forth on
Schedule III hereto that, individually or in the aggregate,
would be deemed to be a “ significant subsidiary
” as such term is defined in Rule 405 of the Securities
Act.
(r)
Authorization, Execution and Delivery of Agreement . This
Agreement has been duly authorized and validly executed and
delivered by each of the Enterprise Parties.
(s)
Authorization, Execution and Enforceability of Agreements .
(i) The GP LLC Agreement has been duly authorized, executed
and delivered by EPE and is a valid and legally binding agreement
of EPE, enforceable against EPE 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; and (iii) the Operating
LLC Agreement has been duly authorized, executed and delivered by
each of the OLPGP and the Partnership and is a valid and legally
binding agreement of each of the OLPGP and the Partnership,
enforceable against each of the OLPGP and the Partnership in
accordance with its terms; provided that, with respect to each such
agreement listed in this Section (s)(i)-(iii), 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).
(t)
Enforceability of Indenture. The Base Indenture has been
duly authorized, executed and delivered by (i) the Partnership
and (ii) the predecessor of the Operating LLC and the
Operating LLC, as applicable. The Supplemental Indenture has been
duly authorized, executed and delivered by each of the Partnership
and the Operating LLC. The execution and delivery of, and the
performance by the Operating LLC and the Partnership of their
respective obligations under the Indenture have been duly and
validly authorized by each of the Operating LLC and the
Partnership. The Indenture, assuming due authorization, execution
and delivery thereof by the Trustee, when executed and delivered by
the Operating LLC and the Partnership, will constitute a valid and
legally binding agreement of the Operating LLC and the Partnership,
enforceable against the Operating LLC and the Partnership 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). The Indenture is
duly qualified under the Trust Indenture Act.
(u) Valid
Issuance of the Notes. The Notes have been duly authorized for
issuance and sale to the Underwriters, and, when executed by the
Operating LLC and authenticated by the Trustee in accordance with
the provisions of the Indenture and delivered to and paid for by
the Underwriters in accordance with the terms of this Agreement,
will have been duly executed and delivered by the Operating LLC,
and will constitute the valid and legally binding obligations of
the Operating LLC entitled to the benefits of the Indenture and
enforceable against the Operating LLC in accordance with their
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).
(v) Valid
Issuance of the Guarantees. The Guarantees by the Partnership
have been duly authorized by the General Partner on behalf of the
Partnership and, on the Delivery Date, will have been duly executed
and delivered by the Partnership; when the Notes have been issued,
executed and authenticated in accordance with the Indenture and
delivered to and paid for by the Underwriters in accordance with
the terms of this Agreement, the Guarantees will constitute the
valid and legally binding obligations of the Partnership entitled
to the benefits of the Indenture and will be enforceable against
the Partnership in accordance with their 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).
(w) No
Conflicts or Violations. None of the (i) offering,
issuance and sale by the Operating LLC and the Partnership of the
Securities, (ii) the execution, delivery and performance of
this Agreement, the Indenture and the Securities by the Enterprise
Parties that are parties hereto or thereto, or
(iii) consummation of the transactions contemplated hereby and
thereby (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.
(x) 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 Operating LLC and the
Partnership of the Securities 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, the Indenture and the Securities by
the Enterprise Parties that are parties thereto or (iii) the
consummation by the Enterprise Parties of the transactions
contemplated by this Agreement, the Indenture and the Securities,
except for (A) such consents required under the Securities
Act, the Exchange Act, the Trust Indenture Act (all of which have
been obtained) and state securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the
Underwriters and (B) such consents that have been, or prior to
the Delivery Date (as defined herein) will be, obtained.
(y) No
Default . None of the Partnership 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
Partnership Entities to perform their obligations under this
Agreement or the Base Indenture together with the Supplemental
Indenture.
(z)
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
”).
(aa)
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 most recent Preliminary Prospectus and the
Prospectus is not based on or derived from sources that are
reliable and accurate in all material respects.
(bb) No
Distribution of Other Offering Materials . None of the
Partnership Entities has distributed or, prior to the completion of
the distribution of the Securities, will distribute, any offering
material in connection with the offering and sale of the Securities
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), 5(b) or 5(l) and the Issuer Free Writing
Prospectus set forth on Schedule IV hereto and any
other materials, if any, permitted by the Securities Act, including
Rule 134 of the Rules and Regulations.
(cc)
Conformity to Description of the Securities . The
Securities, when issued and delivered against payment therefor as
provided in this Agreement and in the Indenture, 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.
(dd)
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.
(ee) No
Omitted Descriptions; Legal Descriptions . There are no legal
or governmental proceedings pending or, to the knowledge of the
Enterprise Parties, threatened or contemplated, against any of the
Partnership Entities, or to which any of the Partnership Entities
is a party, or to which any of their respective properties or
assets is subject, that are required to be described in the
Registration Statement, 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 the
Notes,” “Description of Debt
Securities,”
“Certain
ERISA Considerations” and “Material U.S. 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.
(ff)
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 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.
(gg)
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 the Prospectus and
except for such rights-of-way the failure of which to have obtained
would not have, individually or in the aggregate, a Material
Adverse Effect; each of the Partnership Entities has fulfilled and
performed all its material obligations with respect to such
rights-of-way and no event has occurred which allows, or after
notice or lapse of time would allow, revocation or termination
thereof or would result in any impairment of the rights of the
holder of any such rights-of-way, except for such revocations,
terminations and impairments that will not have a Material Adverse
Effect, subject in each case to such qualification as may be set
forth in the 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.
(hh)
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.
(ii)
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 (D) the recorded
accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences.
(jj)
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.
(kk)
Environmental Compliance . There has been no storage,
generation, transportation, handling, treatment, disposal or
discharge of any kind of toxic or other wastes or other hazardous
substances by any of the Partnership Entities (or, to the knowledge
of the Enterprise Parties, any other entity (including any
predecessor) for whose acts or omissions any of the Partnership
Entities is or could reasonably be expected to be liable) at, upon
or from any of the property now or previously owned or leased by
any of the Partnership Entities or upon any other property, in
violation of any statute or any ordinance, rule, regulation, order,
judgment, decree or permit or which would, under any statute or any
ordinance, rule (including rule of common law), regulation, order,
judgment, decree or permit, give rise to any liability, except for
any violation or liability that could not reasonably be expected to
have, individually or in the aggregate with all such violations and
liabilities, a Material Adverse Effect; and there has been no
disposal, discharge, emission or other release of any kind onto
such property or into the environment surrounding such property of
any toxic or other wastes or other hazardous substances with
respect to which any of the Enterprise Parties has knowledge,
except for any such disposal, discharge, emission or other release
of any kind which could not reasonably be expected to have,
individually or in the aggregate with all such discharges and other
releases, a Material Adverse Effect.
(ll)
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 the Delivery
Date.
(mm)
Litigation . There are no legal or governmental proceedings
pending to which any Partnership Entity is a party or of which any
property or assets of any Partnership Entity is the subject that,
individually or in the aggregate, if determined adversely to such
Partnership Entity, could reasonably be expected to have a Material
Adverse Effect; and to the knowledge of the Enterprise Parties, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(nn) 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 Enterprise Parties, is imminent
or threatened that is reasonably likely to result in a Material
Adverse Effect.
(oo)
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.
(pp)
Investment Company . None of the Partnership Entities is
now, or after sale of the Securities to be sold by the Partnership
and the Operating LLC hereunder and application of the net proceeds
from such sale as described in the most recent Preliminary
Prospectus 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
”).
(qq)
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 Securities 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 Securities 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
Enterprise Parties, threatened against or affecting any Partnership
Entity before any court or arbitrator or any governmental agency,
body or official, domestic or foreign, which could reasonably be
expected to interfere with or adversely affect the issuance of the
Securities or in any manner draw into question the validity or
enforceability of this Agreement or the Indenture or any action
taken or to be taken pursuant hereto or thereto; and the
Partnership and the Operating LLC have 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.
(rr) No
Stabilizing Transactions . None of the General Partner, the
Partnership, the Operating LLC 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 or
the Operating LLC to facilitate the sale or resale of the
Securities.
(ss)
Form S-3 . The conditions for the use of Form S-3 by
the Partnership and the Operating LLC, as set forth in the General
Instructions thereto, have been satisfied.
(tt)
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 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.
(uu) 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.
(vv) 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.
(ww)
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.
(xx)
Rating of Notes. In accordance with Rule 2720(c)(3)(C)
of the Conduct Rules of the National Association of Securities
Dealers, Inc., the Notes have been rated in an investment grade
category by Moody’s Investors Service, Fitch Ratings and
Standard & Poor’s Ratings Services.
Any certificate
signed by any officer of any Enterprise Party and delivered to the
Representatives or counsel for the Underwriters pursuant to this
Agreement shall be deemed a representation and warranty by the
Enterprise Parties signatory thereto, as to the matters covered
thereby, to each Underwriter.
2.
Purchase and Sale of the Notes . On the basis of the
representations and warranties contained in, and subject to the
terms and conditions of, this Agreement, the Operating LLC agrees
to issue and sell the Notes to the several Underwriters and each of
the Underwriters, severally and not jointly, agrees to purchase
from the Operating LLC the principal amount of the Notes set forth
opposite that Underwriter’s name in Schedule I
hereto at a price equal to 99.600% of the principal amount thereof,
plus accrued interest, if any, from the Delivery
Date. The
Operating LLC shall not be obligated to deliver any of the Notes
except upon payment for all the Notes to be purchased as provided
herein.
The Operating LLC
understands that the Underwriters intend to make a public offering
of the Notes as soon after the effectiveness of this Agreement as
in the judgment of the Representatives is advisable, and initially
to offer the Notes on the terms and conditions set forth in the
Pricing Disclosure Package and the Prospectus.
3.
Offering of Securities by the Underwriters . It is
understood that the Underwriters propose to offer the Securities
for sale to the public as set forth in the Prospectus.
4.
Delivery of and Payment for the Notes . Delivery of
and payment for the Notes shall be made at the office of Andrews
Kurth LLP, Houston, Texas, beginning at 10:00 A.M., New York
City time, on June 10, 2009 or such other date and time and
place as shall be determined by agreement between the Underwriters
and the Partnership and the Operating LLC (such date and time of
delivery and payment for the Notes being herein called the “
Delivery Date ”). Payment for the Notes shall be made
by wire transfer in immediately available funds to the account(s)
specified by the Partnership and the Operating LLC to the
Representatives against delivery to the nominee of The Depository
Trust Company, for the account of the Underwriters, of one or more
global notes representing the Securities (collectively, the “
Global Note ”), with any transfer taxes payable in
connection with the sale of the Notes duly paid by the Operating
LLC. The Global Note will be made available for inspection by the
Representatives not later than 1:00 p.m., New York City time, on
the business day prior to the Delivery Date.
5.
Further Agreements of the Parties. Each of the
Enterprise Parties 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 of this Agreement or, if applicable, such earlier time as
may be required by Rule 430A(a)(3) under the Securities Act;
(ii) to make no further amendment or any supplement to the
Registration Statement or to the Prospectus except as permitted
herein; (iii) to advise the Underwriters, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been
filed and to furnish the Underwriters with copies thereof;
(iv) to advise the Underwriters promptly after it receives
notice thereof of the issuance by the Commission of any stop order
or of any order preventing or suspending the use of the Prospectus
or any Issuer Free Writing Prospectus, of the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding
for any such purpose or of any request by the Commission for the
amending or supplementing of the Registration Statement, the
Prospectus or any Issuer Free Writing Prospectus or for additional
information; and (v) in the event of the issuance of any stop
order or of any order preventing or suspending the use of the
Prospectus or any Issuer Free Writing Prospectus or suspending any
such qualification, to use promptly its best efforts to obtain its
withdrawal.
(b) Final
Term Sheet and Issuer Free Writing Prospectuses. (i) To
prepare a final term sheet, containing a description of final terms
of the Securities and the offering thereof, in the form approved by
the Representatives and attached as Schedule IV hereto,
and to file such term sheet pursuant to Rule 433 under the
Securities Act within the time required by such Rule; and (ii) not
to make any offer relating to the Securities that would constitute
an Issuer Free Writing Prospectus without the prior written consent
of the Representatives.
(c)
Copies of Registration Statements . To furnish promptly to
the Underwriters and to counsel for the Underwriters, upon request,
a signed copy or conformed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto
filed with the Commission, including all consents and exhibits
filed therewith.
(d)
Exchange Act Reports . To file promptly all reports and any
definitive proxy or information statements required to be filed by
the Partnership or, if any, the Operating LLC, with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the
offering or sale of the Securities.
(e)
Copies of Documents to the Underwriters . To deliver
promptly to the Underwriters such number of the following documents
as the Underwriters shall reasonably request: (i) conformed
copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case
exclud
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