ENTERPRISE PRODUCTS PARTNERS
L.P.
Representing Limited Partner
Interests
Morgan Stanley & Co.
Incorporated
Barclays Capital
Inc.
Citigroup Global Markets
Inc.
Wells Fargo Securities,
LLC
As Representatives of the several
Underwriters named in Schedule I
to the Underwriting Agreement,
c/o Morgan
Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Enterprise
Products Partners L.P., a Delaware limited partnership (the “
Partnership ”), proposes to issue and sell 7,250,000
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 1,087,500
Common Units, on the terms and for the purposes set forth in
Section 2 (the “ Option Units ”). The Firm
Units and the Option Units, if purchased, are hereinafter
collectively called the “ Units. ” Capitalized
terms used but not defined herein shall have the same meanings
given them in the Partnership Agreement (as defined
herein).
This is to confirm
the agreement among the Partnership, Enterprise Products OLPGP,
Inc., a Delaware corporation (the “ OLPGP ”),
and Enterprise Products Operating LLC, a Texas limited liability
company (the “ Operating LLC ” and collectively
with the Partnership and the OLPGP, the “ Enterprise
Parties ”), and the Underwriters concerning the purchase
of the Firm Units and the Option Units from the Partnership by the
Underwriters.
1.
Representations, Warranties and Agreements of the Enterprise
Parties . Each of the Enterprise Parties, jointly and
severally, represents and warrants to, and agrees with, the
Underwriters that:
(a) A
registration statement on Form S-3 (File No. 333-145709)
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 8:55 a.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 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);
(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 used or
referred to by the Partnership in connection with the offering of
the Units;
(iv) “
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;
(v) “
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;
(vi) “
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
(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
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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)
Well-Known Seasoned Issuer and Not an Ineligible Issuer .
The Partnership was at the time of the initial filing of the
Registration Statement and continues to be a “well-known
seasoned issuer” (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 Units, including
not having been an “ineligible issuer” (as defined in
Rule 405 under the Securities Act) at any such time or date.
The Partnership has not 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 the Partnership is not the subject of a pending proceeding
under Section 8A of the Securities Act in connection with the
offering of the Units.
(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.
(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 8(b).
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(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 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
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 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. 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 V 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
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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 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
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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 101.206 of the Texas Business Organization Code (the
“ Texas 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)
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
469,616,848 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-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); and
EPCO, Inc. (“EPCO”), Dan L. Duncan and their affiliates
(including EPE) collectively beneficially own 167,985,706 Common
Units free and clear of all liens, encumbrances, security
interests, equities, charges or claims, other than liens in favor
of lenders of EPCO and its affiliates.
(p) Valid
Issuance of the Units . At the First Delivery Date or the
Second Delivery Date, as the case may be, the Firm Units or the
Option Units, as the case may be, and the limited partner interests
represented thereby, will be duly authorized by the Partnership
and, when issued and delivered to the Underwriters against payment
therefor in accordance with the terms hereof, will be validly
issued, fully paid (to the extent required under the Partnership
Agreement) and non-assessable (except as such non-assessability may
be affected by Section 17-607 of the Delaware LP Act and as
otherwise disclosed in the Pricing Disclosure Package).
(q) No
Preemptive Rights, Registration Rights or Options . There are
no preemptive rights or other rights to subscribe for or to
purchase, nor any restriction upon the voting or transfer of, any
partnership or membership interests or capital stock in the
Partnership Entities, in each case pursuant to the organizational
documents or any agreement or other instrument to which any
Partnership Entity is a party or by which any of them may be bound,
except for such rights as have been effectively complied with or
waived. Neither the filing of the Registration Statement nor the
offering or sale of the Units as contemplated by this Agreement
gives rise to any rights for or relating to the registration of any
Common Units or other securities of the Partnership or any of its
Subsidiaries, except for such rights as have been effectively
complied with or waived. Except for options granted pursuant to
employee benefits plans, qualified unit option plans or other
employee compensation plans and rights to purchase Common Units
under
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the
Partnership’s distribution reinvestment plan (the “
DRIP ”) or rights to purchase securities pursuant to
the governing documents of the Partnership Entities or the Amended
and Restated Omnibus Agreement among Enterprise Products Operating
LLC, DEP Holdings, LLC, Duncan Energy Partners L.P., DEP OLPGP,
LLC, DEP Operating Partnership, L.P., Enterprise Lou-Tex Propylene
Pipeline L.P., Sabine Propylene Pipeline L.P., Acadian Gas, LLC,
Mont Belvieu Caverns, LLC, South Texas NGL Pipelines, LLC,
Enterprise Holding III, LLC, Enterprise Texas Pipeline LLC,
Enterprise Intrastate L.P. and Enterprise GC, LP, dated as of
February 5, 2007, as amended, there are no outstanding options
or warrants to purchase any partnership or membership interests or
capital stock in any Partnership Entity.
(r)
Authority . Each of the Enterprise Parties has all requisite
right, power and authority to execute and deliver this Agreement
and to perform its respective obligations hereunder. The
Partnership has all requisite power and authority to issue, sell
and deliver the Units in accordance with and upon the terms and
conditions set forth in this Agreement, the Partnership Agreement,
the Registration Statement, the Pricing Disclosure Package and the
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, (ii) the authorization, issuance, sale and
delivery of the Units and (iii) the consummation of the
transactions contemplated hereby has been duly and validly
taken.
(s)
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.
(t)
Authorization, Execution and Delivery of Agreement . This
Agreement has been duly authorized and validly executed and
delivered by each of the Enterprise Parties.
(u)
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
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each of the
OLPGP and the Partnership in accordance with its terms; provided
that, with respect to each such agreement listed in this Section
(u)(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).
(v) No
Conflicts or Violations . None of the (i) offering,
issuance and sale by the Partnership of the Units, (ii) the
execution, delivery and performance of this Agreement by the
Enterprise Parties, or (iii) consummation of the transactions
contemplated hereby (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 would materially impair the ability of
any of the Enterprise Parties to perform their obligations under
this Agreement.
(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 Enterprise Parties or (iii) the consummation by the
Enterprise Parties of the transactions contemplated by this
Agreement, 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.
(x) 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
8
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.
(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.
(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), 5(l) or 5(m) and any Issuer Free Writing
Prospectus set forth on Schedule V 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.
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(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
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 Our Common
Units,” “Cash Distribution Policy,”
“Description of Our Partnership Agreement” 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.
(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 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.
10
(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 (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 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
11
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.
(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 Enterprise 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 Enterprise 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 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
”).
(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
12
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
Enterprise Parties, threatened against or affecting any Partnership
Entity before any court or arbitrator or any governmental agency,
body or official, domestic or foreign, which could reasonably be
expected to interfere with or adversely affect the issuance of the
Units or in any manner draw into question the validity or
enforceability of this Agreement or any action taken or to be taken
pursuant hereto; and the Partnership has complied with any and all
requests by any securities authority in any jurisdiction for
additional information to be included in the most recent
Preliminary Prospectus.
(qq)
Other Sales; No Stabilizing Transactions . The Partnership
has not sold or issued any Common Units during the six-month period
preceding the date of the Prospectus other than (i) Common
Units issued pursuant to the EPCO Employee Unit Purchase Plan or
any employee benefit plans, qualified options plans or other
employee compensation plans, (ii) Common Units issued pursuant
to the Partnership’s DRIP or pursuant to outstanding options,
rights or warrants described in the most recent Preliminary
Prospectus, or (iii) as otherwise disclosed in the Pricing
Disclosure Package. 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 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
op
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