Attached files
Exhibit
1.1
EL
PASO PIPELINE PARTNERS, L.P.
8,750,000
COMMON UNITS
REPRESENTING
LIMITED PARTNER INTERESTS
UNDERWRITING
AGREEMENT
January 13,
2010
January 13,
2010
Citigroup Global
Markets Inc.
Merrill Lynch,
Pierce, Fenner & Smith Incorporated
Barclays Capital
Inc.
UBS Securities
LLC
Wells Fargo
Securities, LLC
|
c/o
|
Citigroup
Global Markets Inc.
|
|
|
388 Greenwich
Street
|
|
|
New York, New
York 10013
|
El
Paso Pipeline Partners, L.P., a Delaware limited partnership (the “Partnership”),
proposes to issue and sell to the several Underwriters named in Schedule II
hereto (the “Underwriters”)
the number of common units representing limited partner interests set forth in
Schedule I hereto (the “Firm
Units”). The Partnership also proposes to issue and sell to
the several Underwriters not more than the number of additional common units set
forth in Schedule I hereto (the “Additional
Units”) if and to the extent that you, as Managers of the offering, shall
have determined to exercise, on behalf of the Underwriters, the right to
purchase such common units granted to the Underwriters in Section 2
hereof. The Firm Units and the Additional Units are hereinafter
collectively referred to as the “Units.”
The common units representing limited partner interests of the Partnership to be
outstanding after giving effect to the sales contemplated hereby are hereinafter
referred to as the “Common
Units.”
The Partnership and
El Paso Pipeline GP Company, L.L.C., a Delaware limited liability company
(“MLP
GP”) are hereinafter collectively referred to as the “Partnership
Parties.”
El
Paso Pipeline Partners Operating Company, L.L.C., a Delaware limited liability
company (“OLLC”),
WIC Holdings Company, L.L.C., a Delaware limited liability company (“WIC
Holdings”), El Paso Wyoming Gas Supply Company, L.L.C., a Delaware
limited liability company (“EP WGSC”),
Wyoming Interstate Company, Ltd., a Colorado limited partnership (“WIC”),
EPPP SNG GP Holdings, L.L.C., a Delaware limited liability company (“EPPP SNG”)
and EPPP CIG GP Holdings, L.L.C., a Delaware limited liability company (“EPPP
CIG”), Colorado Interstate Gas Company, a Delaware general partnership
(“CIG”),
WYCO Holding Company, L.L.C., a Delaware limited liability company (“WYCO
Holding”), WYCO Development LLC, a Colorado limited liability company
(“WYCO
Development”), CIG Finance Company, L.L.C., a Delaware limited liability
company (“CIG
Finance”), CIG Funding Company, L.L.C., a Delaware limited liability
company (“CIG Funding”)
and Colorado Interstate Issuing Corporation, a Delaware corporation (“CIG
Issuing”) are hereinafter collectively referred to as the “Subsidiaries.”
Southern Natural
Gas Company, a Delaware general partnership (“SNG”),
Southern Gas Storage Company, L.L.C., a Delaware limited liability company
(“SGSC”),
Bear Creek Storage Company, a Louisiana joint venture (“Bear Creek”),
SNG Finance Company, L.L.C., a Delaware limited liability company (“SNG
Finance”), SNG Funding Company, L.L.C., a Delaware limited liability
company (“SNG
Funding”) and Southern Natural Issuing Corporation, a Delaware
corporation (“SNG
Issuing”) are hereinafter collectively referred to as the “Unconsolidated
Affiliates.”
The Partnership
Parties, the Unconsolidated Affiliates and the Subsidiaries are hereinafter
collectively referred to as the “Partnership
Entities.”
The Partnership
Entities, El Paso Pipeline Holding Company, L.L.C., a Delaware
limited liability company (“El Paso
LLC”), El Paso Pipeline LP Holdings, L.L.C., a Delaware limited liability
company (“Holdings”)
and El Paso Corporation, a Delaware corporation (“El Paso”)
are hereinafter collectively referred to as the “El Paso
Entities.”
The Partnership has
filed with the Securities and Exchange Commission (the “Commission”)
a registration statement (File No. 333-156978), including a prospectus, on Form
S-3 relating to the securities (the “Shelf
Securities”), including the Units, to be issued from time to time by the
Partnership. The registration statement as amended to the date of
this Agreement, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A or
Rule 430B under the Securities Act of 1933 (the “Securities
Act”), is hereinafter referred to as the “Registration Statement,”
and the related prospectus covering the Shelf Securities dated March 24, 2009 in
the form first used to confirm sales of the Units (or in the form first made
available to the Underwriters by the Partnership to meet requests of purchasers
pursuant to Rule 173 under Securities Act) is hereinafter referred to as the
“Basic
Prospectus.” The Basic Prospectus, as supplemented by the
prospectus supplement specifically relating to the Units in the form first used
to confirm sales of the Units (or in the form first made available to the
Underwriters by the Partnership to meet requests of purchasers pursuant to Rule
173 under the Securities Act) is hereinafter referred to as the “Prospectus,”
and the term “preliminary
prospectus” means any preliminary form of the Prospectus. For
purposes of this Agreement, “Issuer Free
Writing Prospectus” means each “free writing prospectus” (as defined in
Rule 405 under the Securities Act) prepared by or on behalf of the Partnership
or used or referred to by the Partnership in connection with the offering of the
Units and “broadly available
road show” means a “bona fide electronic road show” as defined in Rule
433(h)(5) under the Securities Act that has been made available without
restriction to any person.
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At
or prior to the time when sales of the Units were first made (the “Time of
Sale”), the Partnership had prepared the following information
(collectively, the “Time of Sale
Prospectus”): the preliminary prospectus together with the pricing
information identified in Schedule I hereto and the free writing prospectuses,
if any, each identified in Schedule I hereto.
As
used herein, the terms “Registration Statement,” “preliminary prospectus,” “Time
of Sale Prospectus,” “Basic Prospectus” and “Prospectus” shall include the
documents, if any, incorporated by reference therein. The terms
“supplement,” “amendment”
and “amend” as
used herein with respect to the Registration Statement, the Basic Prospectus,
the Time of Sale Prospectus or any free writing prospectus shall include all
documents subsequently filed by the Partnership with the Commission pursuant to
the Securities Exchange Act of 1934 (the “Exchange
Act”), that are deemed to be incorporated by reference
therein.
1. Representations and
Warranties. The Partnership Parties, jointly and severally,
represent and warrant to and agree with each of the Underwriters
that:
(a) Registration
Statement. (i) The Registration Statement has been declared
effective under the Securities Act; (ii) no stop order of the Commission
preventing or suspending the use of any preliminary prospectus or the
effectiveness of the Registration Statement has been issued and no proceedings
for such purpose have been instituted or, to the Partnership’s knowledge, are
threatened by the Commission; (iii) the Registration Statement complied when it
became effective, complies and will comply, at the Closing Date (as defined in
Section 4) and any Optional Closing Date (as defined in Section 4), in all
material respects with the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder (the “Rules and
Regulations”); (iv) each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the Securities Act, complied when so filed
in all material respects with the Securities Act and Rules and Regulations; (v)
the Prospectus will comply, as of its date and at the Closing and any Optional
Closing Date, in all material respects with the requirements of the Securities
Act and the Rules and Regulations; (vi) each document filed or to be filed
pursuant to the Exchange Act and incorporated by reference in the Time of Sale
Prospectus or the Prospectus complied or will comply when so filed in all
material respects with the Exchange Act and the Rules and Regulations; (vii) any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or
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to be filed as
exhibits to the Registration Statement have been and will be so described or
filed; (viii) the Registration Statement did not when it became effective, does
not and will not, at
the Closing Date and any Optional Closing 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; (ix) the Time of Sale
Prospectus does not and will not, at the Time of Sale when the Prospectus is not
yet available to prospective purchasers, at the Closing Date and any Optional
Closing Date, the Time of Sale Prospectus as then amended or supplemented by the
Partnership, if applicable, will not contain an untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein
not misleading, in light of the circumstances under which they were made; (x)
each Issuer Free Writing Prospectus, if any, when considered together with the
Time of Sale Prospectus at the Time of Sale, did not contain an untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein not misleading, in light of the circumstances under which
they were made; and (xi) the Prospectus will not, as of its date and at the
Closing Date and any Optional Closing, contain an untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
provided, however, that the Partnership makes no representation or warranty with
respect to any statement contained in any preliminary prospectus, the
Registration Statement, the Time of Sale Prospectus, the Prospectus, any free
writing prospectus or any broadly available road show materials in reliance upon
and in conformity with information furnished in writing by or on behalf of an
Underwriter through you to the Partnership expressly for use in such preliminary
prospectus, the Registration Statement, the Time of Sale Prospectus or the
Prospectus.
(b) Issuer Free Writing Prospectuses
Conform to the Requirements of the Securities Act. The
Partnership is not an “ineligible issuer” in connection with the offering
pursuant to Rules 164, 405 and 433 under the Securities Act. 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 all prospectus
delivery requirements, any filing requirements and any record keeping
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 Managers identified in Schedule
I. The Partnership has retained in accordance with the Rules and
Regulations all Issuer Free Writing Prospectuses that were not required to be
filed with the Commission pursuant to the Rules and Regulations. The
Partnership has taken all actions necessary so that any “road show” (as defined
in Rule 433 of the Rules and Regulations) in connection with the offering of the
Units will not be required to be filed pursuant to the Rules and
Regulations. No Issuer Free Writing Prospectus includes any
information that conflicts with the information contained in the Time of Sale
Prospectus as of the Time of Sale.
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(c) Incorporated
Documents. The documents incorporated or deemed to be
incorporated by reference in the Prospectus at the time they were or hereafter
are filed with the Commission complied and will comply in all material respects
with the requirements of the Securities Act or the Exchange Act, as applicable,
and the Rules and Regulations.
(d) Formation and
Qualification. Each of the Partnership Entities has been duly
formed or incorporated, as the case may be, is validly existing and is in good
standing under the laws of its respective jurisdiction of formation or
incorporation, as applicable, with all corporate, limited liability company or
partnership, as the case may be, power and authority necessary to own or hold
its properties and to conduct the businesses in which it is engaged and, in the
case of MLP GP, to act as the general partner of the Partnership, in each case
in all material respects as described in the Registration Statement, the Time of
Sale Prospectus and the Prospectus. Each of the Partnership Entities is duly
registered or qualified to do business in and is in good standing as a foreign
limited partnership, general partnership, limited liability company or
corporation, as applicable, in each jurisdiction in which its ownership or lease
of property or the conduct of its business requires such qualification or
registration, except where the failure to be so qualified or registered could
not, individually or in the aggregate, have a material adverse effect on the
financial condition, securityholders’ equity, results of operations, properties,
business or prospects of the Partnership Entities taken as a whole (a “Material Adverse
Effect”), or subject the limited partners of the Partnership to any
material liability or disability.
(e) Ownership of El Paso
LLC. El Paso directly owns 99% of the issued and outstanding
limited liability company interests in El Paso LLC and indirectly, through a
wholly-owned subsidiary, owns 1% of the issued and outstanding limited liability
company interests in El Paso LLC; such limited liability company
interests are duly authorized and validly issued in accordance with El Paso
LLC’s LLC agreement (the “El Paso LLC LLC
Agreement”) and fully paid (to the extent required by the El Paso LLC LLC
Agreement) and non-assessable (except as such nonassessability may be affected
by Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act (the
“Delaware
LLC Act”)); and El Paso will own such limited liability company interests
free and clear of all liens, encumbrances, security interests, charges or claims
(“Liens”),
other than restrictions on transfers arising under applicable securities laws or
the El Paso LLC LLC Agreement.
(f) Ownership of MLP
GP. El Paso LLC owns 100% of the issued and outstanding
limited liability company interests in MLP GP; such limited liability company
interests is duly authorized and validly issued in accordance with MLP GP’s LLC
agreement the (“MLP GP LLC
Agreement”) and fully paid (to the extent required by the MLP GP LLC
Agreement) and non-assessable (except as such nonassessability may be affected
by Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act);
and El Paso LLC owns such limited liability company interests free and clear of
all Liens, other than restrictions on transfers arising under applicable
securities laws or the MLP GP LLC Agreement.
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(g) Ownership of the General Partner
Interest in the Partnership. MLP GP is the sole general
partner of the Partnership with a 2.0% general partner interest in the
Partnership; such general partner interest is duly authorized and validly issued
in accordance with the Partnership Agreement; and MLP GP owns such general
partner interest free and clear of all Liens, other than restrictions on
transfers arising under applicable securities laws or the Partnership
Agreement.
(h) Ownership of
Holdings. El Paso LLC owns 100% of the issued and outstanding
limited liability company interests in Holdings; such limited liability company
interests are duly authorized and validly issued in accordance with the Holdings
Limited Liability Company Agreement (the “Holdings LLC
Agreement”) and fully paid (to the extent required by the Holdings LLC
Agreement) and non-assessable (except as such nonassessability may be affected
by Sections 18-607 and 18-804 of the Delaware LLC Act); and El Paso LLC owns
such limited liability company interests free and clear of all Liens, other than
restrictions on transfers arising under applicable securities laws or the
Holdings LLC Agreement.
(i) Ownership of the El Paso Units and
the Incentive Distribution Rights. Holdings owns 55,326,397
Common Units (the “El Paso Common
Units”) and 27,727,411 subordinated units (as defined in the Partnership
Agreement, the “Subordinated
Units” and, together with the El Paso Common Units, the “El Paso
Units”) and MLP GP owns 100% of the Incentive Distribution Rights; the El
Paso Units and the Incentive Distribution Rights 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 nonassessable (except as such
nonassessability may be affected by Sections 17-607 and 17-804 of the Delaware
Revised Uniform Limited Partnership Act (the “Delaware LP
Act”)); and Holdings owns the El Paso Units and MLP GP owns the Incentive
Distribution Rights, in each case free and clear of all Liens, other than
restrictions on transfers arising under applicable securities laws or the
Partnership Agreement, that
certain Pledge Agreement dated as of August 13, 2009, between Holdings and GIP
Ranger Collateral Agent, LLC, as collateral agent, and other than the Lock-Up
Agreement referred to in Section 6(j).
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(j) Valid Issuance of the
Units. The Units and the limited partner interests represented
thereby, are duly authorized in accordance with the Partnership Agreement and,
when issued and delivered to the Underwriters against payment therefor in
accordance with this Agreement, will be duly and validly issued, fully paid (to
the extent required under the Partnership Agreement) and nonassessable (except
as such nonassessability may be affected by Sections 17-607 and 17-804 of the
Delaware LP Act).
(k) Capitalization. After
giving effect to the offering of the Firm Units as contemplated by this
Agreement and the concurrent capital contribution to the Partnership by MLP GP,
there will be 2,736,728 General Partner Units issued and outstanding, the issued
and outstanding Units of the Partnership will consist of 106,372,247 Common
Units and 27,727,411 Subordinated Units.
(l) Ownership of
OLLC. The Partnership owns 100% of the issued and outstanding
limited liability company interests in OLLC; such limited liability company
interests have been duly authorized and validly issued in accordance with the
OLLC Limited Liability Company Agreement and are fully paid (to the extent
required under the OLLC Limited Liability Company Agreement) and non-assessable
(except as such nonassessability may be affected by Sections 18-607 and 18-804
of the Delaware LLC Act); and the Partnership owns such limited liability
company interests free and clear of all Liens (except for restrictions on
transfer arising under applicable securities laws or the OLLC Limited Liability
Company Agreement, or described in the Time of Sale Prospectus, including under
the Credit Facility).
(m) Ownership of the
Subsidiaries. All of the equity interests in each of the
Subsidiaries and Unconsolidated Affiliates are owned as set forth on Exhibit A hereto; all
of such equity interests are duly and validly authorized and issued in
accordance with the general partnership, limited partnership or limited
liability company agreements of each such Subsidiaries and Unconsolidated
Affiliates (the “Organizational Agreements”),
are fully paid (to the extent required by the Organizational Agreements) and
nonassessable (except as such nonassessability may be affected by (i) Sections
18-607 and 18-804 of the Delaware LLC Act, (ii) Sections 17-607 and 17-804 of
the Delaware LP Act or (iii) Sections 15-309 and 15-807 of the Delaware Revised
Uniform Partnership Act (the “Delaware GP
Act”) or, in the case of the general partner interests in SNG and CIG, as
set forth in the partnership agreement of SNG and CIG, respectively); and such
equity interests are owned as set forth on Exhibit A free and
clear of all Liens (except for restrictions on transfer arising under applicable
Organizational Agreements or described in the Time of Sale Prospectus, including
under the Credit Facility).
(n) No Other
Subsidiaries. Other than its direct or indirect ownership
interests in the Subsidiaries and the Unconsolidated Affiliates and the 10%
non-economic voting interest in Elba Express Company, LLC, the Partnership does
not own, directly or indirectly, any equity or long-term debt securities of any
corporation, partnership, limited liability company, joint venture, association
or other entity, other than a note receivable held by SNG under the El Paso cash
management program and notes receivable from El Paso held by CIG and the
Partnership.
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(o) No Preemptive Rights, Registration
Rights or Options. Except as identified in the Time of Sale
Prospectus, there are no (i) preemptive rights or other rights to subscribe for
or to purchase, nor any restriction upon the voting or transfer of, any equity
interests in of any of the Partnership Entities or (ii) outstanding options or
warrants to purchase any securities of any of the Partnership Entities. Except
for such rights that have been waived or complied with, none of the filing of
the Registration Statement, the consummation of the transactions contemplated by
this Agreement, nor the offering or sale of the Units as contemplated by this
Agreement gives rise to any rights for or relating to the registration of any
Common Units or other securities of any of the Partnership
Entities.
(p) Authority and
Authorization. The Partnership has all requisite partnership
power and authority to issue, sell and deliver the Units, in accordance with and
upon the terms and conditions set forth in this Agreement, the Partnership
Agreement, the Registration Statement and the Time of Sale
Prospectus. Each of MLP GP and the Partnership has all requisite
right, power and authority to execute and deliver this Agreement and to perform
its respective obligations thereunder. All corporate, partnership and
limited liability company action, as the case may be, required to be taken by
Partnership Entities or any of their security holders, members or partners for
the authorization, issuance, sale and delivery of the Units and the consummation
of the transactions contemplated by this Agreement shall have been validly
taken.
(q) Authorization, Execution and
Delivery of this Agreement. This Agreement has been duly
authorized and validly executed and delivered by each of MLP GP and the
Partnership.
(r) No Conflicts. None
of (i) the offering, issuance and sale by the Partnership of the Units and the
application of the proceeds from the sale of the Units as described under “Use
of Proceeds” in Time of Sale Prospectus, (ii) the execution, delivery and
performance of this Agreement by the Partnership Entities party hereto or (iii)
the consummation of the transactions contemplated hereby (A) conflicts or will
conflict with or constitutes or will constitute a violation of the partnership
agreement, limited liability company agreement, certificate of formation or
conversion, certificate or articles of incorporation, bylaws or other
constituent document 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 may be bound, (C) violates or will violate any statute,
law or regulation or any order, judgment, decree or injunction of any court or
governmental agency or body directed to any of the Partnership Entities or any
of their properties in a proceeding to which any of them or their property is a
party or (D) results or will result in the creation or imposition of any Lien
upon any property or assets of any of the Partnership Entities (other than Liens
created pursuant to the Credit Facility), which conflicts, breaches, violations,
defaults or Liens, in the case of clauses (B), (C) or (D), would,
individually or in the aggregate have a Material Adverse Effect or materially
impair the ability of the Partnership Entities to perform their obligations
under this Agreement.
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(s) No Consents. No
permit, consent, approval, authorization, order, registration, filing or
qualification of or with any court, governmental agency or body having
jurisdiction over any of the Partnership Entities is required in connection with
(i) the offering, issuance or sale by the Partnership of the Units, (ii) the
application of the proceeds therefrom as described under “Use of Proceeds” in
the Time of Sale Prospectus, (iii) the execution and delivery of this
Agreement by the Partnership Entities party hereto and consummation
by such Partnership Entities of the transactions contemplated hereby, except for
(A) such permits, consents, approvals and similar authorizations as may be
required under the Securities Act or the Exchange Act and (B) for such
consents that, if not obtained, would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect or materially impair
the ability of the Partnership Entities to consummate the transactions provided
for in this Agreement.
(t) No Defaults. None
of the Partnership Entities (i) is in violation of its certificate of limited
partnership, agreement of limited partnership, limited liability company
agreement, certificate of incorporation or bylaws or other organizational
documents, (ii) is in violation of any law, statute, ordinance, administrative
or governmental rule or regulation applicable to it or of any decree of any
court or governmental agency or body having jurisdiction over it, or (iii) is in
breach, default (or an event which, with notice or lapse of time or both, would
constitute such an event) 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 clauses (ii) or
(iii), would, individually or in the aggregate, have a Material Adverse Effect
or materially impair the ability of the Partnership Entities to consummate the
transactions provided for in this Agreement.
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(u) Conformity of Units to Description
in the Time of Sale Prospectus and Prospectus. The Units, when
issued and delivered in accordance with the terms of the Partnership Agreement
and this Agreement against payment therefor as provided therein and herein, will
conform in all material respects to the description thereof contained in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus.
(v) No Material Adverse
Change. None of the Partnership Entities has sustained, since
the date of the latest audited financial statements included in the Time of Sale
Prospectus, any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, and since such date,
there has not been any change in the capitalization or increase in the long-term
debt of any of the Partnership Entities or any adverse change in or affecting
the condition (financial or otherwise), results of operations, securityholders’
equity, properties, management, prospects or business of the Partnership
Entities, taken as a whole, in each case except as could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse
Effect.
(w) Conduct of
Business. Except as disclosed in or contemplated by the
Registration Statement and Time of Sale Prospectus, since the date as of which
information is given in the Time of Sale Prospectus, none of the Partnership
Entities has (i) incurred any liability or obligation, direct or contingent,
that, individually or in the aggregate, is material to the Partnership Entities
taken as a whole, other than liabilities and obligations that were incurred in
the ordinary course of business, (ii) entered into any transaction not in the
ordinary course of business that, individually or in the aggregate, is material
to the Partnership Entities taken as a whole, or (iii) declared, paid or made
any dividend or distribution on any class of security.
(x) Financial
Statements. The historical financial statements (including the
related notes and supporting schedules) included in the Registration Statement
and Time of Sale Prospectus (i) comply in all material respects with the
applicable requirements under the Securities Act and the Exchange Act, (ii)
present fairly in all material respects the financial condition, results of
operations and cash flows of the entities purported to be shown thereby on the
basis shown therein at the dates or for the periods indicated, and (iii) have
been prepared in accordance with accounting principles generally accepted in the
United States consistently applied throughout the periods involved except for changes in accounting principles as described
therein. The summary historical financial data included in the Time of
Sale Prospectus under the captions “Summary—Summary Historical Financial Data”
and “Summary—Results of Operations” are fairly presented in all material
respects and prepared on a basis consistent with the audited and unaudited
historical financial statements from which they have been derived.
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(y) Statistical and Market-Related
Data. The statistical and market-related data included in the
Time of Sale Prospectus are based on or derived from sources that the
Partnership Entities believe to be reliable and accurate in all material
respects.
(z) Independent Registered Public
Accounting Firm. Ernst & Young LLP, who has audited the
audited financial statements contained in the Registration Statement and the
Time of Sale Prospectus, whose report appears in the Time of Sale Prospectus and
the Prospectus and who has delivered the initial letter referred to in Section
5(e) hereof, is, and was during the periods covered by the financial statements
covered by such reports, an independent registered public accounting firm 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) Title to
Properties. Each Partnership Entity has good and indefeasible
title to all its interests in real property, other than real property held under
lease, subject to recordation of individual conveyances and assignments, and
good title to all its personal property (excluding easements or rights-of-way),
in each case free and clear of all Liens except (i) as described, and subject to
the limitations contained, in the Time of Sale Prospectus, (ii) for Liens that
arise under the Credit Facility, or (iii) such as do not materially interfere
with the use of such properties taken as a whole as they have been used in the
past and are proposed to be used in the future as described in the Registration
Statement or the Time of Sale Prospectus; and all assets held under lease by the
Partnership Entities are held by them under valid, subsisting and enforceable
leases, with such exceptions as do not materially interfere with the use made
and proposed to be made of such assets by the Partnership Entities.
(bb) Rights-of-Way. Each
of the Partnership Entities has such consents, easements, rights-of-way or
licenses from any person (collectively, “rights-of-way”)
as are necessary to conduct its business in the manner described in and subject
to the limitations contained in the Time of Sale Prospectus, except for (i)
qualifications, reservations and encumbrances that would not have, individually
or in the aggregate, a Material Adverse Effect, and (ii) such rights-of-way
that, if not obtained, would not have, individually or in the aggregate, a
Material Adverse Effect; other than as set forth, and subject to the limitations
contained in the Time of Sale Prospectus, at the Time of Sale, each Partnership
Entity has fulfilled and performed all its material obligations with respect to
such rights-of-way required to be fulfilled or performed 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 would not have a Material Adverse Effect; and except as
described in the Time of Sale Prospectus, and none of such rights-of-way will
contain any restriction that is materially burdensome to the Partnership
Entities, taken as a whole.
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(cc) 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 Time of Sale Prospectus, subject to such
qualifications as may be set forth in the Time of Sale Prospectus and except for
such permits, consents, franchises, certificates and authorizations which if not
obtained, would not have, individually or in the aggregate, a Material Adverse
Effect; each of the Partnership Entities has fulfilled and performed in all
material respects all its obligations with respect to such permits in the manner
described, and subject to the limitations contained in the Time of Sale
Prospectus, and to the knowledge of the Partnership Entities 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. None of the Partnership Entities has received written
notification of any revocation or modification of any such permit.
(dd) Environmental Compliance.
Except as described in the Time of Sale Prospectus or for which adequate
reserves have been established in accordance with generally accepted accounting
principles, each of the Partnership Entities, with respect to the assets owned
or leased by the Partnership Entities at the Time of Sale, (i) is, and at all
times prior hereto was, in compliance with any and all applicable federal, state
and local laws and regulations relating to the protection of human health and
safety and the environment or imposing liability or standards of conduct
concerning any Hazardous Materials (as defined below) (“Environmental
Laws”), (ii) has received all permits required of them under applicable
Environmental Laws to conduct their respective businesses, (iii) is in
compliance with all terms and conditions of any such permits and (iv) has not
received written notice, or to the knowledge of the Partnership Entities, oral
notification of any actual or alleged violation of Environmental Law, except
where such noncompliance with Environmental Laws, failure to receive required
permits, failure to comply with the terms and conditions of such permits could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The term “Hazardous Material” means (A) any
“hazardous substance” as defined in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, (B) any “hazardous waste” as
defined in the Resource Conservation and Recovery Act, as amended, (C) any
petroleum or petroleum product, (D) any polychlorinated biphenyl and (E) any
pollutant or contaminant or hazardous, dangerous or toxic chemical, material,
waste or substance regulated under or within the meaning of any other
Environmental Law.
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(ee) Insurance. The
Partnership Entities carry or are entitled to the benefits of insurance relating
to the assets owned or leased by the Partnership Entities at the Time of Sale in
such amounts and covering such risks as is commercially reasonable, and all
insurance is in full force and effect. None of the Partnership
Entities believe that they will not be able (i) to renew their existing
insurance coverage relating to the assets owned or leased by the Partnership
Entities at the Time of Sale as and when such policies expire or (ii) to obtain
comparable coverage relating to the assets owned or leased by the Partnership
Entities at the Time of Sale from similar institutions as may be necessary or
appropriate to conduct such business as now conducted and at a cost that would
not reasonably be expected to have a Material Adverse Effect.
(ff) Litigation. Except
as described in the Time of Sale Prospectus, there is (i) no action, suit or
proceeding before or by any court, arbitrator or governmental agency, body or
official, domestic or foreign, now pending or, to the knowledge of any of the
Partnership Entities, threatened, to which any of the Partnership Entities is or
may be a party or to which the business or property of any of the Partnership
Entities is or may be subject, (ii) no statute, rule, regulation or order that
has been enacted, adopted or issued by any governmental agency and (iii) no
injunction, restraining order or order of any nature issued by a federal or
state court or foreign court of competent jurisdiction to which any of the
Partnership Entities is or may be subject, that, in the case of clauses (i),
(ii) and (iii) above, is reasonably expected to (A) individually or in the
aggregate be expected to have a Material Adverse Effect, (B) prevent or result
in the suspension of the offering and issuance of the Units, or (C) in any
manner draw into question the validity of this Agreement.
(gg) Related Party
Transactions. No relationship, direct or indirect, exists
between or among the El Paso Entities on the one hand, and the directors,
officers, partners, customers or suppliers of MLP GP and its affiliates (other
than the Partnership Entities) on the other hand, which is required to be
described in the Time of Sale Prospectus or the Prospectus and which is not so
described.
(hh) No Labor
Disputes. No labor dispute with the employees that are engaged
in the business of the Partnership Entities exists or, to the knowledge of the
Partnership Entities, is imminent or threatened. None of the
Partnership Entities is in violation of or has received notice of any violation
with respect to any federal or state law relating to discrimination in the
hiring, promotion or pay of employees, nor any applicable federal or state wage
and hour laws, nor any state law precluding the denial of credit due to the
neighborhood in which a property is situated, the violation of any of which
could reasonably be expected to have a Material Adverse Effect.
(ii) Tax Returns. Each
of the Partnership Entities has filed (or has obtained extensions with respect
to) all material federal, state, local and foreign income and franchise tax
returns required to be filed through the date hereof, which returns are complete
and correct in all material respects, and has timely paid all taxes due thereon,
other than those which are being contested in good faith and for which adequate
reserves have been established in accordance with generally accepted accounting
principles.
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(jj) No Omitted Descriptions; Legal
Proceedings. There are no legal or governmental proceedings
pending or contracts or other documents of a character required to be described
in the Registration Statement or the Time of Sale Prospectus or, in the case of
documents, to be filed as exhibits to the Registration Statement, that are not
described and filed as required. None of the Partnership Entities has
knowledge that any other party to any such contract, agreement or arrangement
has any intention not to render full performance as contemplated by the terms
thereof except, in each case, as would not reasonably be expected to have a
Material Adverse Effect; and that statements made in the Time of Sale Prospectus
under the captions “Conflicts of Interest and Fiduciary Duties,” “Provisions of
Our Partnership Agreement Relating to Cash Distributions,” “Material Provisions
of Our Partnership Agreement,” “Certain Relationships and Related Party
Transactions,” “Description of the Common Units,” “Underwriting,” and “Material
Tax Considerations” insofar as they purport to constitute summaries of the terms
of statutes, rules or regulations, legal or governmental proceedings or
contracts and other documents, constitute accurate summaries of the terms of
such statutes, rules and regulations, legal and governmental proceedings and
contracts and other documents in all material respects.
(kk) Books and
Records. The Partnership Entities (i) make and keep accurate
books and records and (ii) maintain and has maintained a system of internal
accounting controls sufficient to provide reasonable assurance that
(A) transactions are executed in accordance with management’s general or
specific authorization, (B) transactions are recorded as necessary to permit
preparation of the Partnership Entities’ financial statements in conformity with
accounting principles generally accepted in the United States and to maintain
accountability for its assets, (C) access to the assets of the Partnership
Entities is permitted only in accordance with management’s general or specific
authorization and (D) the recorded accountability for the assets of the
Partnership Entities is compared with existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(ll) Disclosure Controls and
Procedures. (i) The Partnership Entities have established and
maintain disclosure controls and procedures (as such term is defined in Rule
13a-15 under the Exchange Act), (ii) such disclosure controls and procedures are
designed to ensure that the information required to be disclosed by the
Partnership Entities in the reports they file or submit under the Exchange Act
is accumulated and communicated to their respective management, including their
respective principal executive officers and principal financial officers, as
appropriate, to allow timely decisions regarding required disclosure to be made
and (iii) such disclosure controls and procedures are effective in all material
respects to perform the functions for which they were established.
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(mm) No Changes in Internal
Controls. Since the date of the most recent balance sheet of
the Partnership reviewed or audited by Ernst & Young LLP, (i) none of the
Partnership Entities has been advised of (A) any significant deficiencies
in the design or operation of internal controls that could adversely affect the
ability of any of the Partnership Entities to record, process, summarize and
report financial data, or any material weaknesses in internal controls and (B)
any fraud, whether or not material, that involves management or other employees
who have a significant role in the internal controls of the Partnership
Entities, and (ii) since that date, there have been no significant changes in
internal controls or in other factors that could significantly affect internal
controls, including any corrective actions with regard to significant
deficiencies and material weaknesses.
(nn) Sarbanes-Oxley Act of
2002. There is and has been no failure on the part of the
Partnership and any of MLP GP’s directors or officers, in their capacities as
such, to comply with the applicable provisions of the Sarbanes-Oxley Act of 2002
and the rules and regulations promulgated in connection therewith.
(oo) No Distribution of Other Offering
Materials. None of the Partnership Entities has distributed nor, prior to
the later to occur of the Closing Date and completion of the distribution of the
Units, will distribute any offering material in connection with the offering and
sale of the Units other than any Preliminary Prospectus, the Prospectus, any
free writing prospectus to which the Managers have consented in accordance with
Section 1(b) or 6(c), any other materials, if any, permitted by the Securities
Act, including Rule 134.
(pp) Market
Stabilization. None of MLP GP, 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 or to facilitate the sale or resale of the
Units.
(qq) Listing on the New York Stock
Exchange. The Units have been approved for listing on the New York Stock
Exchange, subject to official notice of issuance.
(rr) 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 Time of Sale 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”), and the rules and regulations of the Commission
thereunder.
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(ss) No Foreign Operations. None
of the Partnership Entities conducts business operations outside the United
States.
(tt) ERISA. Each
Partnership Entity is in compliance in all material respects with all presently
applicable provisions of the Employee Retirement Income Security Act of 1974
(“ERISA”);
no “reportable event” (as defined in ERISA) has occurred with respect to any
“pension plan” (as defined in ERISA) for which any Partnership Entity would have
any liability, excluding any reportable event for which a waiver could apply; no
Partnership Entity expects to incur liability under Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the “Code”);
and each “pension plan” for which any Partnership Entity would have any
liability that is intended to be qualified under Section 401(a) of the Code has
been determined by the Internal Revenue Service to be so qualified and nothing
has occurred, whether by action or by failure to act, which could reasonably be
expected to cause the loss of such qualification.
(uu) Foreign Corrupt Practices
Act. None of the Partnership Entities, nor, to the knowledge
of the Partnership Entities, any director, officer, agent, employee or other
person associated with or acting on behalf of any of the Partnership Entities,
has (i) used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity; or (ii)
violated or is in violation of any provision of the U.S. Foreign Corrupt
Practices Act of 1977.
(vv) Money Laundering
Laws. The operations of the Partnership Entities are and have
been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of
all jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by
any governmental agency (collectively, the “Money Laundering
Laws”) and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving any of the
Partnership Entities with respect to the Money Laundering Laws is pending or, to
the knowledge of the Partnership Entities, threatened, except, in each case, as
would not reasonably be expected to have a Material Adverse Effect.
(ww) Office of Foreign Assets
Control. None of the Partnership Entities nor, to the
knowledge of the Partnership Entities, any director, officer, agent, employee or
affiliate of the any of the Partnership Entities is currently the subject of any
sanctions administered by the Office of Foreign Assets Control of the U.S.
Treasury Department (“OFAC”);
and the Partnership will not directly or indirectly use the proceeds of the
offering, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person or entity, for the purpose of
financing the activities of any person or entity that, at the time of such
funding, is the subject of any sanctions administered by OFAC.
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2. Agreements to Sell and
Purchase. The Partnership hereby agrees to sell to the several
Underwriters, and each Underwriter, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
agrees, severally and not jointly, to purchase from the Partnership the
respective numbers of Firm Units set forth in Schedule I hereto opposite
its name at the purchase price set forth in Schedule I hereto (the “Purchase
Price”).
On
the basis of the representations and warranties contained in this Agreement, and
subject to its terms and conditions, the Partnership agrees to sell to the
Underwriters the Additional Units, and the Underwriters shall have the right to
purchase, severally and not jointly, up to the number of Additional Units set
forth in Schedule I hereto at the Purchase Price. The Managers
identified in Schedule I may exercise this right on behalf of the Underwriters
in whole or from time to time in part by giving written notice not later than 30
days after the date of this Agreement. Any exercise notice shall
specify the number of Additional Units to be purchased by the Underwriters and
the date on which such units are to be purchased. Each purchase date
must be at least one business day after the written notice is given and may not
be earlier than the closing date for the Firm Units nor later than ten business
days after the date of such notice. Additional Units may be purchased
as provided in Section 4 hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm
Units. On each day, if any, that Additional Units are to be purchased
(an “Option
Closing Date”), each Underwriter agrees, severally and not jointly, to
purchase the number of Additional Units (subject to such adjustments to
eliminate fractional Units as you may determine) that bears the same proportion
to the total number of Additional Units to be purchased on such Option Closing
Date as the number of Firm Units set forth in Schedule II hereto opposite
the name of such Underwriter bears to the total number of Firm
Units.
3. Terms of Public
Offering. The Partnership is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Units as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Partnership is
further advised by you that the Units are to be offered to the public upon the
terms set forth in the Prospectus.
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4. Payment and
Delivery. Payment for the Firm Units shall be made to the
Partnership in Federal or other funds immediately available in New York City
against delivery of such Firm Units for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on the closing date set forth in
Schedule I hereto, or at such other time on the same or such other date, not
later than the fifth business day thereafter, as shall be designated in writing
by you. The time and date of such payment are hereinafter referred to
as the “Closing
Date.”
Payment for any
Additional Units shall be made to the Partnership in Federal or other funds
immediately available in New York City against delivery of such Additional Units
for the respective accounts of the several Underwriters at 10:00 a.m., New York
City time, on the date specified in the corresponding notice described in
Section 2 or at such other time on the same or on such other date, in any event
not later than the tenth business day thereafter, as shall be designated in
writing by you.
The Firm Units and
Additional Units shall be registered in such names and in such denominations as
you shall request in writing not later than one full business day prior to the
Closing Date or the applicable Option Closing Date, as the case may
be. The Firm Units and Additional Units shall be delivered to you in
book entry form through the facilities of The Depository Trust Company on the
Closing Date or an Option Closing Date, as the case may be, for the respective
accounts of the several Underwriters, with any transfer taxes payable in
connection with the transfer of the Units to the Underwriters duly paid, against
payment of the Purchase Price therefor.
5. Conditions to the Underwriters’
Obligations. The several obligations of the Underwriters are
subject to the following conditions:
(a) Subsequent to the
execution and delivery of this Agreement and prior to the Closing
Date:
(i) there shall not
have occurred any downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded
any of the securities of the Partnership Entities by any “nationally recognized
statistical rating organization,” as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act; and
(ii) except as set forth
in or contemplated by the Time of Sale Prospectus, as of the date of this
Agreement, there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise, or in
the earnings, business or operations of the Partnership Entities, taken as a
whole, from that set forth in the Time of Sale Prospectus as of the date of this
Agreement that, in your judgment, is material and adverse and that makes it, in
your judgment, impracticable to market the Units on the terms and in the manner
contemplated in the Time of Sale Prospectus.
18
(b) The Underwriters
shall have received on the Closing Date a certificate, dated the Closing Date
and signed by the Chief Executive Officer and Chief Financial Officer of the
General Partner stating that:
(i) the
representations, warranties and agreements of the Partnership Parties in Section
1 of this Agreement are true and correct on and as of the Closing Date, and the
Partnership Parties have satisfied all the conditions on their part to be
performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order
suspending the effectiveness of the Registration Statement has been issued; and
no proceedings or examination for that purpose have been instituted or, to the
knowledge of such officers, threatened;
(iii) since the date of
the most recent financial statements included in the Time of Sale Prospectus,
there has been no Material Adverse Effect; and
(iv) they have carefully
examined the Registration Statement, the Time of Sale Prospectus and the
Prospectus, and, in their opinion, (A) (1) the Registration Statement, as of its
effective date and as of the Closing Date, (2) the Time of Sale Prospectus, as
of the Time of Sale, and (3) the Prospectus, as of the date of the
Prospectus and as of the Closing Date, did not and do not contain any untrue
statement of a material fact and did not and do not omit to state a material
fact required to be stated therein or necessary to make the statements therein
(except in the case of the Registration Statement, in the light of the
circumstances under which they were made) not misleading, and (B) since the
Registration Statement’s effective date, no event has occurred that should have
been set forth in a supplement or amendment to the Registration Statement, the
Prospectus or any free writing prospectus that has not been so set
forth.
(c) The Underwriters
shall have received on the Closing Date an opinion of Andrews Kurth LLP, outside
counsel for the Partnership, dated the Closing Date, substantially in the form
attached hereto as Exhibit
B;
19
(d) The Underwriters
shall have received on the Closing Date an opinion of Vinson & Elkins
L.L.P., counsel for the Underwriters, dated the Closing Date, covering such
matters with respect to the issuance and sale of the Units, the Registration
Statement, the Time of Sale Prospectus and the Prospectus and other related
matters as the Managers may reasonably require, and the Partnership Entities
shall have furnished to such counsel such documents as they may request for the
purpose of enabling them to pass upon such matters.
(e) The Underwriters
shall have received, on each of the date hereof and the Closing Date, a letter
dated the date hereof or the Closing Date, as the case may be, in form and
substance satisfactory to the Underwriters, from Ernst & Young LLP,
independent public accountants, containing statements and information of the
type ordinarily included in accountants’ “comfort letters” to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement, the Time of Sale Prospectus and the Prospectus;
provided that the
letter delivered on the Closing Date shall use a “cut-off date” not earlier than
the date hereof.
(f) The “lock-up”
agreements, each substantially in the form of Exhibit C hereto,
between you and El Paso, El Paso LLC, Holdings, MLP GP and each officer and
director of MLP GP relating to sales and certain other dispositions of Units of
Common Units or certain other securities, delivered to you on or before the date
hereof, shall be in full force and effect on the Closing Date.
(g) The Underwriters shall have
received on the Closing Date a certificate relating to certain historical
financial statements of the Partnership incorporated by reference in the
Registration Statement and Time of Sale Prospectus, dated the Closing Date and
signed by the Chief Financial Officer.
The several
obligations of the Underwriters to purchase Additional Units hereunder are
subject to the delivery to you on the applicable Option Closing Date of such
documents as you may reasonably request with respect to the good standing of the
Partnership Entities, the due authorization and issuance of the Additional Units
to be sold on such Option Closing Date and other matters related to the issuance
of such Additional Units.
6. Covenants of the Partnership
Parties. The Partnership Parties covenant with each
Underwriter as follows:
(a) To furnish to you,
without charge, a signed copy of the Registration Statement (including exhibits
thereto and documents incorporated by reference) and to deliver to each of the
Underwriters during the period mentioned in Section 6(e) or 6(f) below, as many
copies of the Time of Sale Prospectus, the Prospectus, any documents
incorporated by reference therein and any supplements and amendments thereto or
to the Registration Statement as you may reasonably request.
20
(b) Before amending or
supplementing the Registration Statement, the Time of Sale Prospectus or the
Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to which
you reasonably object.
(c) To furnish to you a
copy of each proposed free writing prospectus to be prepared by or on behalf of,
used by, or referred to by the Partnership and not to use or refer to any
proposed free writing prospectus to which you reasonably object.
(d) Not to take any
action that would result in an Underwriter or the Partnership being required to
file with the Commission pursuant to Rule 433(d) under the Securities Act a free
writing prospectus prepared by or on behalf of the Underwriter that the
Underwriter otherwise would not have been required to file
thereunder.
(e) If the Time of Sale
Prospectus is being used to solicit offers to buy the Units at a time when the
Prospectus is not yet available to prospective purchasers and any event shall
occur or condition exist as a result of which it is necessary to amend or
supplement the Time of Sale Prospectus in order to make the statements therein,
in the light of the circumstances, not misleading, or if any event shall occur
or condition exist as a result of which the Time of Sale Prospectus conflicts
with the information contained in the Registration Statement then on file, or
if, in the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Time of Sale Prospectus to comply with applicable law, forthwith
to prepare, file with the Commission and furnish, at its own expense, to the
Underwriters and to any dealer upon request, either amendments or supplements to
the Time of Sale Prospectus so that the statements in the Time of Sale
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Time of Sale Prospectus is delivered to a prospective
purchaser, be misleading or so that the Time of Sale Prospectus, as amended or
supplemented, will no longer conflict with the Registration Statement, or so
that the Time of Sale Prospectus, as amended or supplemented, will comply with
applicable law.
(f) If, during such
period after the first date of the public offering of the Units as in the
opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the
notice referred to in Rule 173(a) of the Securities Act) is required by law to
be delivered in connection with sales by an Underwriter or dealer, any event
shall occur or condition exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in the light
of the circumstances when the Prospectus (or in lieu thereof the notice referred
to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not
misleading, or if, in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply with applicable law,
forthwith to prepare, file with the Commission and furnish, at its own expense,
to the Underwriters and to the dealers (whose names and addresses you will
furnish to the Partnership) to which Units may have been sold by you on behalf
of the Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the
Securities Act) is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with applicable
law.
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(g) To endeavor to
qualify the Units for offer and sale under the securities or Blue Sky laws of
such jurisdictions as you shall reasonably request, provided that, none of the
Partnership Parties shall be required to qualify as a foreign entity or to take
any action that would subject any of the Partnership Parties to service of
process in any such jurisdiction where any such entity is not presently
qualified or where any such entity would be subject to taxation as a foreign
entity.
(h) To make generally
available to the Partnership’s security holders and to you as soon as
practicable an earning statement covering a period of at least twelve months
beginning with the first fiscal quarter of the Partnership occurring after the
date of this Agreement which shall satisfy the provisions of Section 11(a)
of the Securities Act and the rules and regulations of the Commission
thereunder.
(i) Whether or not the
transactions contemplated in this Agreement are consummated or this Agreement is
terminated, to pay or cause to be paid all expenses incident to the performance
of its obligations under this Agreement, including: (i) the fees, disbursements
and expenses of the Partnership’s counsel and the Partnership’s accountants in
connection with the registration and delivery of the Units under the Securities
Act and all other fees or expenses in connection with the preparation and filing
of the Registration Statement, any preliminary prospectus, the Time of Sale
Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf
of, used by, or referred to by the Partnership and amendments and supplements to
any of the foregoing, including all printing costs associated therewith, and the
mailing and delivering of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified, (ii) all costs and expenses related to the
transfer and delivery of the Units to the Underwriters, including any transfer
or other taxes payable thereon, (iii) the cost of printing or producing any Blue
Sky or Legal Investment memorandum in connection with the offer and sale of the
Units under state securities laws and all expenses in connection with the
qualification of the Units for offer and sale under state securities laws as
provided in Section 6(g) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky or Legal Investment
memorandum, (iv) all filing fees and the reasonable fees and disbursements of
22
counsel to the
Underwriters incurred in connection with the review and qualification of the
offering of the Units by the Financial Industry Regulatory Authority, (v) all
costs and expenses incident to listing the Units on the NYSE (vi) the cost of
printing certificates representing the Units, (vii) the costs and charges of any
transfer agent, registrar or depositary, (viii) the costs and expenses of the
Partnership relating to investor presentations on any “road show” undertaken in
connection with the marketing of the offering of the Units, including, without
limitation, expenses associated with the preparation or dissemination of any
electronic road show, expenses associated with the production of road show
slides and graphics, fees and expenses of any consultants engaged in connection
with the road show presentations with the prior approval of the Partnership,
travel and lodging expenses of the representatives and officers of the
Partnership and any such consultants, and the cost of any aircraft chartered in
connection with the road show, (ix) the document production charges and expenses
associated with printing this Agreement and (x) all other costs and expenses
incident to the performance of the obligations of the Partnership hereunder for
which provision is not otherwise made in this Section. It is
understood, however, that except as provided in this Section, Section 8
entitled “Indemnity and Contribution” and the last paragraph of Section 10
below, the Underwriters will pay all of their costs and expenses, including fees
and disbursements of their counsel, stock transfer taxes payable on resale of
any of the Units by them and any advertising expenses connected with any offers
they may make.
(j) Not to, without the
prior written consent of Citigroup Global Markets Inc. on behalf of the
Underwriters, during the period ending 60 days after the date of the
Prospectus
(the “Lock-up
Period”),
(a) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, lend, or otherwise transfer or dispose of, directly or
indirectly, any Common Units or any securities convertible into or exercisable
or exchangeable for Common Units, or (b) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Common Units, whether any such transaction
described in clause (a) or (b) above is to be settled by delivery of Common
Units or such other securities, in cash or otherwise or (c) file any
registration statement with the Commission relating to the offering of any Units
of Common Units or any securities convertible into or exercisable or
exchangeable for Common Units (other than any registration statement on Form S-8
or Form S-4). The foregoing sentence shall not apply to (a) the
Common Units to be sold hereunder, (b) the issuance by the Partnership of Common
Units or any securities convertible into or exercisable or exchangeable for
Common Units pursuant to the El Paso Pipeline GP Company, L.L.C. Long-Term
Incentive Plan, (c) issuances of Common Units, or securities convertible into or
exercisable or exchangeable for Common Units, pursuant to a Form S-4 in
connection with a business combination or acquisition, provided that, such
issuances not exceed 5% of the total number of outstanding common units and the
recipient agrees to hold the balance of any Common Units sold pursuant to a Form
S-4 for the remainder of the Lock-up Period, (d) issuances of Common Units or
other rights to acquire Common Units in private transactions in connection with
future acquisitions by the Partnership, provided that the persons receiving
Common Units or other rights to acquire Common Units shall have agreed in
writing to be bound by the terms of these lock-up provisions for the remainder
of the Lock-up Period, or (e) the establishment of a trading plan pursuant to
Rule 10b5-1 under the Exchange Act for the transfer of Common Units, provided
that such plan does not provide for the transfer of Common Units during the 60
day restricted period.
23
7. Covenants of the
Underwriters. Each Underwriter severally covenants with the
Partnership not to take any action that would result in the Partnership being
required to file with the Commission under Rule 433(d) a free writing prospectus
prepared by or on behalf of such Underwriter that otherwise would not be
required to be filed by the Partnership thereunder, but for the action of the
Underwriter.
8. Indemnity and
Contribution.
(a) Each of the
Partnership Parties agrees, jointly and severally, to indemnify and hold
harmless each Underwriter, the directors, officers, employees and agents of each
Underwriter, each person, if any, who controls any Underwriter within
the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act and affiliates of any Underwriter who have, or who are
alleged to have, participated in the distribution of the Units as underwriters,
from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or any amendment thereof, any preliminary prospectus,
the Time of Sale Prospectus, any issuer free writing prospectus as defined in
Rule 433(h) under the Securities Act, any Partnership information that the
Partnership has filed, or is required to file, pursuant to Rule 433(d) under the
Securities Act, or the Prospectus or any amendment or supplement thereto, or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Underwriter furnished to the
Partnership in writing by such Underwriter through you expressly for use
therein.
24
(b) Each Underwriter
agrees, severally and not jointly, to indemnify and hold harmless each of the
Partnership Parties and each of their directors, each of their officers who sign
the Registration Statement and each person, if any, who controls the Partnership
Parties within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Partnership to such Underwriter, but only with reference to
information relating to such Underwriter furnished to the Partnership in writing
by such Underwriter through you expressly for use in the Registration Statement,
any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing
prospectus or the Prospectus or any amendment or supplement
thereto. The Partnership Parties acknowledge that the statements set
forth (i) in the last paragraph of the cover page regarding delivery of the
Securities and, under the heading “Underwriting”, (ii) the sentences
related to concessions and reallowances and (iii) the paragraph related to
stabilization, syndicate covering transactions and penalty bids in any
preliminary prospectus, Time of Sale Prospectus, any issuer free writing
prospectus or the Prospectus or any amendment or supplement thereto constitute
the only information furnished in writing by or on behalf of the several
Underwriters for inclusion in the Registration Statement, any preliminary
prospectus, the Time of Sale Prospectus, any issuer free writing prospectus or
the Prospectus or any amendment or supplement thereto.
(c) In case any
proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
Section 8(a) or 8(b), such person (the “indemnified
party”) shall promptly notify the person against whom such indemnity may
be sought (the “indemnifying
party”) in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by Citigroup
Global Markets Inc., in the case of parties indemnified pursuant to
Section 8(a), and by the Partnership, in
25
the case of parties
indemnified pursuant to Section 8(b). The indemnifying party shall
not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement (i)
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) To the extent the
indemnification provided for in Section 8(a) or 8(b) is unavailable to an
indemnified party or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Partnership Parties
on the one hand and the Underwriters on the other hand from the offering of the
Units or (ii) if the allocation provided by clause 8(d)(i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause 8(d)(i) above but also the
relative fault of the Partnership Parties on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits
received by the Partnership Parties on the one hand and the Underwriters on the
other hand in connection with the offering of the Units shall be deemed to be in
the same respective proportions as the net proceeds from the offering of the
Units (before deducting expenses) received by the Partnership Parties and the
total underwriting discounts and commissions received by the Underwriters bear
to the aggregate initial public offering price of the Units set forth in the
Prospectus. The relative fault of the Partnership Parties on the one
hand and the Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Partnership Parties or by the Underwriters and the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Underwriters’
respective obligations to contribute pursuant to this Section 8 are several
in proportion to the respective number of Units they have purchased hereunder,
and not joint.
26
(e) The Partnership
Parties and the Underwriters agree that it would not be just or equitable if
contribution pursuant to this Section 8 were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable considerations
referred to in Section 8(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 8(d) shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this
Section 8, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Units underwritten by
it and distributed to the public were offered to the public exceeds the amount
of any damages that such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 8
are not exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
(f) The indemnity and
contribution provisions contained in this Section 8 and the
representations, warranties and other statements of the Partnership Parties
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter, any person controlling any Underwriter or
any affiliate of any Underwriter or by or on behalf of the Partnership Parties,
each of their officers or directors or any person controlling the Partnership
Parties and (iii) acceptance of and payment for any of the Units.
9. Termination. The
Underwriters may terminate this Agreement by notice given by the Managers
identified in Schedule I to the Partnership, if after the execution and delivery
of this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on, or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the NASDAQ Global Market,
the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of the Partnership shall
have been suspended on any exchange or in any over-the-counter market, (iii) a
material disruption in securities settlement, payment or clearance services in
the United States shall have occurred, (iv) any moratorium on commercial banking
activities shall have been declared by Federal or New York State authorities or
(v) there shall have occurred any outbreak or escalation of hostilities, or any
change in financial markets or any calamity or crisis that, in your judgment, is
material and adverse and which, singly or together with any other event
specified in this clause (v), makes it, in your judgment, impracticable or
inadvisable to proceed with the offer, sale or delivery of the Units on the
terms and in the manner contemplated in the Time of Sale Prospectus or the
Prospectus.
27
10. Effectiveness; Defaulting
Underwriters. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
If, on the Closing
Date or an Option Closing Date, as the case may be, any one or more of the
Underwriters shall fail or refuse to purchase Units that it has or they have
agreed to purchase hereunder on such date, and the aggregate number of Units
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate number of the Units to
be purchased on such date, the other Underwriters shall be obligated severally
in the proportions that the number of Firm Units set forth opposite their
respective names in Schedule II bears to the aggregate number of Firm Units
set forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as you may specify, to purchase the Units which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided
that in no event shall the number of Units that any Underwriter has agreed to
purchase pursuant to this Agreement be increased pursuant to this
Section 10 by an amount in excess of one-ninth of such number of Units
without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase Firm
Units and the aggregate number of Firm Units with respect to which such default
occurs is more than one-tenth of the aggregate number of Firm Units to be
purchased on such date, and arrangements satisfactory to you and the Partnership
for the purchase of such Firm Units are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Partnership. In any such case
either you or the Partnership shall have the right to postpone the Closing Date,
but in no event for longer than seven days, in order that the required changes,
if any, in the Registration Statement, in the Time of Sale Prospectus, in the
Prospectus or in any other documents or arrangements may be
effected. If, on an Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Units and the aggregate
number of Additional Units with respect to which such default occurs is more
than one-tenth of the aggregate number of Additional Units to be purchased on
such Option Closing Date, the non-defaulting Underwriters shall have the option
to (i) terminate their obligation hereunder to purchase the Additional Units to
be sold on such Option Closing Date or (ii) purchase not less than the number of
Additional Units that such non-defaulting Underwriters would have been obligated
to purchase in the absence of such default. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
28
If the Partnership shall fail to
tender the Units for delivery to the Underwriters by reason of any failure,
refusal or inability on the part of any of the Partnership Entities to perform
any agreement on its part to be performed, or because any other condition to the
Underwriters’ obligations hereunder required to be fulfilled by the Partnership
Entities is not fulfilled for any reason or (b) the Underwriters shall decline
to purchase the Units for any reason permitted under this Agreement, then,
except as specified in the following sentence, the Partnership Entities will
reimburse the Underwriters for all reasonable out-of-pocket expenses (including
fees and disbursements of counsel) incurred by Underwriters in connection with
this Agreement and the proposed purchase of the Units, and upon demand the
Partnership Entities shall pay the full amount thereof to the Representatives.
If this Agreement is terminated (i) pursuant to Section 9 because of the
occurrence of any event specified in Section 9 (other than as specified in
Sections 9(ii)), the Partnership Entities shall not be obligated to reimburse
the Underwriters for any expenses specified in the immediately preceding
sentence or (ii) pursuant to this Section 10 by reason of the default of
one or more Underwriters, the Partnership Entities shall not be obligated to
reimburse any defaulting Underwriter on account of those expenses.
11. Entire
Agreement.
(a) This Agreement,
together with any contemporaneous written agreements and any prior written
agreements (to the extent not superseded by this Agreement) that relate to the
offering of the Units, represents the entire agreement between the Partnership
and the Underwriters with respect to the preparation of any preliminary
prospectus, the Time of Sale Prospectus, the Prospectus, the conduct of the
offering, and the purchase and sale of the Units.
(b) The Partnership
acknowledges that in connection with the offering of the Units: (i) the
Underwriters have acted at arms length, are not agents of, and owe no fiduciary
duties to, the Partnership or any other person, (ii) the Underwriters owe the
Partnership only those duties and obligations set forth in this Agreement and
prior written agreements (to the extent not superseded by this Agreement), if
any, and (iii) the Underwriters may have interests that differ from those of the
Partnership. The Partnership waives to the full extent permitted by
applicable law any claims it may have against the Underwriters arising from an
alleged breach of fiduciary duty in connection with the offering of the
Units.
29
12. Counterparts. This
Agreement may be signed in two or more counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.
13. Applicable
Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
14. Headings. The
headings of the sections of this Agreement have been inserted for convenience of
reference only and shall not be deemed a part of this
Agreement.
15. Notices. All
communications hereunder shall be in writing and effective only upon receipt and
if to the Underwriters shall be delivered, mailed or sent to you at the address
set forth in Schedule I hereto; and if to the Partnership shall be delivered,
mailed or sent to the address of the Partnership set forth in the Registration
Statement, Attention: Robert W. Baker
(Fax: 713.420.5043).
[Signature
page follows]
30
| Very truly yours, | |||
|
EL
PASO PIPELINE PARTNERS, L.P.
|
|||
|
By: El Paso
Pipeline GP Company, L.L.C.,
its general partner |
|||
|
|
By:
|
/s/ John R. Sult | |
| Name: John R. Sult | |||
| Title: Senior Vice President and Chief Financial Officer | |||
|
EL
PASO PIPELINE GP COMPANY, L.L.C.
|
|||
| By: | /s/ John R. Sult | ||
| Name: John R. Sult | |||
| Title: Senior Vice President and Chief Financial Officer | |||
31
|
Accepted as
of the date hereof
Citigroup
Global Markets Inc.
Merrill
Lynch, Pierce, Fenner & Smith Incorporated
Barclays
Capital Inc.
UBS
Securities LLC
Wells Fargo
Securities, LLC
|
||
|
Acting
severally on behalf of themselves and the
several Underwriters named in Schedule II hereto.
|
||
|
By:
|
Citigroup
Global Markets Inc.
|
|
|
By:
|
/s/ John
Ciolek
|
|
|
Name: John
Ciolek
|
|
|
|
Title:
Managing
Director
|
|
|
|
By:
|
Merrill
Lynch, Pierce, Fenner & Smith Incorporated
|
|
|
By:
|
/s/ Dave
McShane
|
|
|
Name: Dave
McShane
|
|
|
|
Title:
Managing
Director
|
|
|
|
By:
|
Barclays
Capital Inc.
|
|
|
By:
|
/s/ Victoria
Hale
|
|
|
Name: Victoria
Hale
|
|
|
|
Title:
Vice
President
|
|
|
|
[continued
on the next page]
|
||
32
|
By:
|
UBS
Securities LLC
|
|
|
By:
|
/s/ Michael
Jamieson
|
|
|
Name: Michael
Jamieson
|
|
|
|
Title:
Managing
Director
|
|
|
|
By:
|
/s/
Christopher C. Juban
|
|
|
Name: Christopher
C. Juban
|
|
|
|
Title:
Executive
Director
|
|
|
|
By:
|
Wells Fargo
Securities, LLC
|
|
|
By:
|
/s/ David
Herman
|
|
|
Name: David
Herman
|
|
|
|
Title:
Director
|
|
|
33
SCHEDULE
I
|
Managers
authorized to consent under
Section
1(b):
|
Citigroup
Global Markets Inc.
Merrill
Lynch, Pierce, Fenner & Smith Incorporated
Barclays
Capital Inc.
UBS
Securities LLC
Wells Fargo
Securities, LLC
|
|
|
Managers
authorized to exercise right to purchase Additional Units under
Section 2:
|
Citigroup
Global Markets Inc.
Merrill
Lynch, Pierce, Fenner & Smith Incorporated
Barclays
Capital Inc.
UBS
Securities LLC
Wells Fargo
Securities, LLC
|
|
|
Managers
authorized to deliver notice of termination under Section
9:
|
Citigroup
Global Markets Inc.
Merrill
Lynch, Pierce, Fenner & Smith Incorporated
Barclays
Capital Inc.
UBS
Securities LLC
Wells Fargo
Securities, LLC
|
|
|
Time of Sale
Prospectus:
|
The
preliminary prospectus supplement dated January 12, 2010 relating to the
Units.
Schedule of Free
Writing Prospectuses included in the Time of Sale Prospectus:
None.
Pricing information to
be included in the Time of Sale Prospectus:
Price per
Unit to the Public: $24.48
Number of
Units offered: 8,750,000
|
|
|
Title of
Units to be Purchased:
|
Common Units
Representing Limited Partner Interests
|
|
|
Number of
Firm Units:
|
8,750,000
|
I-1
|
Number of
Additional Units:
|
1,312,500
|
|
|
Purchase
Price:
|
$23.46
|
|
|
Initial
Public Offering Price:
|
$24.48
|
|
|
Selling
Concession:
|
$0.612
|
|
|
Closing Date
and Time:
|
10:00 a.m.,
New York City time, January 19, 2010
|
|
|
Closing
Location:
|
Andrews Kurth
LLP
600
Travis
Houston, TX
77002
|
|
|
Address for
Notices to Underwriters:
|
Citigroup
Global Markets Inc.
Attention:
General Counsel
388 Greenwich
Street
New York, NY
10013
Merrill
Lynch, Pierce, Fenner & Smith Incorporated
Attention:
Syndicate Department
One Bryant
Park
New York, NY
10036
Facsimile No.
(646) 855-3073
with a copy
to:
Attention:
ECM Legal
Facsimile No.
(212) 230-8370
Barclays
Capital Inc.
Attention :
Syndicate Registration
745 Seventh
Avenue
New York, NY
1001 9
with a copy,
in case of notice pursuant to Section 8 hereof, to:
Barclays
Capital Inc .
Attention :
Director of Litigation, Office of the
General
Counsel
745 Seventh
Avenue
New York, NY
10019
|
2
|
|
UBS
Securities LLC
Attention :
Legal Department
299 Park
Avenue
New York, NY
10173
Wells Fargo
Securities, LLC
Attention:
Equity Syndicate Department
375 Park
Avenue
New York, New
York 10152
Facsimile No.
(212) 214-5918
|
3
|
SCHEDULE
II
|
||
|
Underwriter
|
Number
of Firm Units To Be Purchased
|
|
|
Citigroup
Global Markets
Inc.
|
1,435,000
|
|
|
Merrill
Lynch, Pierce, Fenner & Smith Incorporated
|
1,435,000
|
|
|
Barclays
Capital
Inc.
|
1,435,000
|
|
|
UBS
Securities
LLC
|
1,435,000
|
|
|
Wells Fargo
Securities,
LLC
|
1,435,000
|
|
|
Goldman,
Sachs &
Co.
|
525,000
|
|
|
J.P. Morgan
Securities
Inc.
|
525,000
|
|
|
Morgan
Stanley & Co. Incorporated
|
525,000
|
|
|
Total:
|
8,750,000
|
II-1
EXHIBIT
A
OWNERSHIP
BY THE PARTNERSHIP
OF
SUBSIDIARIES AND UNCONSOLIDATED AFFILIATES
Ownership
of Subsidiaries:
|
Entity
|
Equity Owned
by Identified Partnership Entity
|
|
OLLC
|
100% of
limited liability company interests owned by the
Partnership
|
|
EPPP
SNG
|
100% of
limited liability company interests owned by OLLC
|
|
EPPP
CIG
|
100% of
limited liability company interests owned by OLLC
|
|
WIC
Holdings
|
100% of
limited liability company interests owned by OLLC
|
|
EP
WGSC
|
100% of
limited liability company interests owned by OLLC
|
|
WIC
|
50% general
partner interest owned by WIC Holdings
50% limited
partner interest owned by EP WGSC
|
|
CIG
|
58% general
partner interest owned by EPPP CIG
42% general
partner interest owned by El Paso Noric Investments III,
L.L.C.
|
|
WYCO
Holding
|
100% of
limited liability company interests owned by CIG
|
|
WYCO
Development
|
50% of
limited liability company interests owned by WYCO
|
|
CIG
Finance
|
50% of
limited liability company interests owned by an affiliate of Public
Service Co. of Colorado
100% of
limited liability company interests owned by CIG
|
|
CIG
Funding
|
100% of
limited liability company interests owned by CIG
Finance
|
|
CIG
Issuing
|
100% of
capital stock owned by CIG
|
Ownership
of Unconsolidated Affiliates:
|
Entity
|
Equity Owned
by Identified Partnership Entity
|
|
SNG
|
25% general
partner interest owned by EPPP SNG
75% general
partner interest owned by El Paso SNG Holding Company,
L.L.C.
|
|
SGSC
|
100% of
limited liability company interests owned by SNG
|
|
Bear
Creek
|
50% of the
outstanding capital stock owned by SGSC
50% of the
outstanding capital stock owned by Tennessee Storage
Co.
|
|
SNG
Finance
|
100% of
limited liability company interests owned by SNG
|
|
SNG
Funding
|
100% of
limited liability company interests owned by SNG
Finance
|
|
SNG
Issuing
|
100% of
capital stock owned by SNG
|
EXHIBIT B
FORM OF OPINION OF ANDREWS
KURTH LLP
(i) Formation and
Qualification. Each of MLP GP, the Partnership, Holdings and
the OLLC has been duly formed is validly existing and is in good standing under
the laws of the State of Delaware, with all limited liability company or limited
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 to
consummate the transactions contemplated by this Agreement and, in the case of
MLP GP, to act as general partner of the Partnership in all material respects as
described in the Time of Sale Prospectus. Each of MLP GP, the Partnership,
Holdings and the OLLC is duly registered or qualified to do business in and is
in good standing as a foreign limited partnership or limited liability company,
as applicable, in each jurisdiction set forth opposite its name on Annex A to
this opinion;
(ii) Ownership of
Holdings. El Paso LLC owns 100% of the issued and outstanding
member interests in Holdings; such limited liability company interests have been
duly authorized and validly issued in accordance with the Holdings LLC Agreement
and are fully paid (to the extent required by the Holdings LLC Agreement) and
non-assessable (except as such nonassessability may be affected by Sections
18-607 and 18-804 of the Delaware LLC Act); and El Paso LLC owns such member
interests free and clear of all Liens (A) other than restrictions on transfer
under the Holdings LLC Agreement or applicable securities laws, (B) in respect
of which a financing statement under the Uniform Commercial Code of the State of
Delaware naming El Paso LLC as a debtor is on file in the office of the
Secretary of State of the State of Delaware or (C) otherwise known to such
counsel without independent investigation, other than those created or arising
under Section 18-607 of the Delaware LLC Act;
(iii) Ownership of the General Partner
Interest in the Partnership. MLP GP is the sole general
partner of the Partnership with a 2.0% general partner interest in the
Partnership, which after giving effect to the capital contribution to the
Partnership by MLP GP on the date hereof, will be represented by 2,524,354
General Partner Units (as defined in the Partnership Agreement); such general
partner interest has been duly authorized and validly issued in accordance with
the Partnership Agreement; and MLP GP owns such general partner interest free
and clear of all Liens (A) other than restrictions on transfer under the
Partnership Agreement or applicable securities laws, (B) in respect of which a
financing statement under the Uniform Commercial Code of the State of Delaware
naming MLP GP as debtor is on file in the office of the Secretary of State of
the State of Delaware or (C) otherwise known to such counsel without
independent investigation, other than those created by or arising under
Sections 17-303, 17-607 and 17-804 of the Delaware LP Act;
(iv) Ownership of the El Paso Units and
the Incentive Distribution Rights. Holdings owns the El Paso
Units and MLP GP owns 100% of the Incentive Distribution Rights; all of such El
Paso Units and Incentive Distribution Rights 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 nonassessable (except as such nonassessability
may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP
Act); and Holdings owns the El Paso Units and the MLP GP owns the Incentive
Distribution Rights free and clear of all Liens (A) other than restrictions
on transfer under the Partnership Agreement, that certain Pledge Agreement dated
as of August 13, 2009, between Holdings and GIP Ranger Collateral Agent, LLC, as
collateral agent, the
Lock-Up Agreement referred to in Section 6(j) of this Agreement or applicable
securities laws, (B) in respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware naming Holdings or the MLP GP as debtor
is on file in the office of the Secretary of State of the State of Delaware or
(C) otherwise known to such counsel without independent investigation,
other than those created by or arising under Sections 17-607 and 17-804 of
the Delaware LP Act;
(v) Valid Issuance of the
Units. The Firm Units and the limited partner interests
represented thereby have been duly authorized by the Partnership and, when
issued and delivered to the Underwriters against payment therefor in accordance
with the terms of this Agreement, will be validly issued, fully paid (to the
extent required under the Partnership Agreement) and non-assessable (except as
such non-assessability may be affected by Sections 17-303, 17-607 and
17-804 of the Delaware LP Act);
(vi) Ownership of the
OLLC. The Partnership owns 100% of the issued and outstanding
member interests in the OLLC; such limited liability company interests has been
duly authorized and validly issued in accordance with the OLLC LLC Agreement and
are fully paid (to the extent required by the OLLC LLC Agreement) and
non-assessable (except as such nonassessability may be affected by Sections
18-607 and 18-804 of the Delaware LLC Act); and the Partnership owns such
limited liability company interests free and clear of all Liens (A) other than
restrictions on transfer under the OLLC LLC Agreement or applicable securities
laws, (B) in respect of which a financing statement under the Uniform Commercial
Code of the State of Delaware naming the Partnership as debtor is on file in the
office of the Secretary of State of the State of Delaware or (C) otherwise
known to such counsel without independent investigation, other than those
created by or arising under Sections 18-607 of the Delaware LLC
Act;
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(vii) No Preemptive Rights, Registration
Rights or Options. Except as described in the Time of Sale
Prospectus, there are no (i) preemptive rights or other rights to subscribe
for or to purchase, nor any restriction upon the voting or transfer of, any
partnership interests or limited liability company interests in any of the
Partnership, MLP GP, OLLC, WIC Holdings, EP WGSC, WIC, EPPP SNG, SNG, EPPP CIG
and CIG (collectively, the “Covered
Partnership Entities”), or (ii) outstanding options or warrants to
purchase any securities of any of the Covered Partnership Entities. None of the
filing of the Registration Statement, the offering or sale of the Units as
contemplated by this Agreement or the application of the proceeds therefrom as
described in the Time of Sale Prospectus gives rise to any rights for or
relating to the registration of any Common Units or other securities of any of
the Covered Partnership Entities, other than as have been waived, effectively
complied with or satisfied;
(viii) Authority and
Authorization. Each of the Partnership Parties has all
requisite partnership power and authority (i) to execute and deliver this
Agreement and (ii) to perform its obligations thereunder, including to issue,
sell and deliver the Firm Units, in accordance with and upon the terms and
conditions set forth in this Agreement, the Partnership Agreement, the Time of
Sale Prospectus and the Prospectus. All corporate, partnership and
limited liability company action, as the case may be, required to be taken by
the Covered Partnership Entities or any of their stockholders, members or
partners for the authorization, issuance, sale and delivery of the Units and the
consummation of the transaction contemplated by this Agreement to be completed
on or prior to the Closing Date has been validly taken;
(ix) Execution and Delivery of this
Agreement. This Agreement has been duly authorized and validly
executed and delivered by each of the Partnership Parties;
(x) MLP Partnership
Agreement. The MLP Partnership Agreement constitutes a valid
and binding agreement of the General Partner, and is enforceable against the
General Partner, in its capacity as general partner of the MLP, in accordance
with its terms;
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(xi) GP LLC
Agreement. The GP LLC Agreement constitutes a valid and
binding agreement of El Paso Pipeline Holding Company, L.L.C., as the sole
member, and is enforceable against El Paso Pipeline Holding Company, L.L.C., as
the sole member, in accordance with its terms;
(xii) SNG Partnership
Agreement. The SNG Partnership Agreement constitutes a valid
and binding agreement of EP SNG Holding Company, L.L.C. and EPPP SNG GP
Holdings, L.L.C., and is enforceable against the EP SNG Holding Company, L.L.C.
and EPPP SNG GP Holdings, L.L.C., in their capacities as partners of SNG, in
accordance with its terms;
(xiii) CIG Partnership
Agreement. The CIG Partnership Agreement constitutes a valid
and binding agreement of El Paso Noric Investments III, L.L.C. and EPPP CIG GP
Holdings, L.L.C., and is enforceable against El Paso Noric Investments III,
L.L.C. and EPPP CIG GP Holdings, L.L.C., in their capacities as partners of CIG,
in accordance with its terms;
(xiv) Operating LLC
Agreement. The Operating LLC Agreement constitutes a valid and
binding agreement of El Paso Pipeline Partners, L.P., as the sole member, and is
enforceable against El Paso Pipeline Partners, L.P., as the sole member, in
accordance with its terms;
(xv) No Conflicts. None
of (i) the offering, issuance and sale by the Partnership of the Firm
Units, (ii) the execution, delivery and performance of this Agreement by
the Partnership Parties hereto, or (iii) the consummation of the
transactions contemplated by this Agreement, (A) conflicts with or will
conflict with or constitutes or will constitute a violation of the partnership
agreement, limited liability company agreement, certificate of formation or
conversion or other constituent document of any of the Covered Partnership
Entities (B) conflicts with 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 the Omnibus
Agreement, the Credit Agreement, the Securities Purchase Agreements, both dated
September 30, 2008, the Note Purchase Agreement, dated September 30, 2008 or any
agreement or instrument filed as an exhibit to the Registration Statement,
(C) results or will result in any violation of the Delaware LP Act, the
Delaware LLC Act, the DGCL, the laws of the State of Texas or federal law, (D)
violates or will violate any order, judgment, decree or injunction of any court
or governmental agency or other authority of or with any court, governmental
agency or body of the State of Texas of the United States of America or known to
such counsel having jurisdiction over any of the Covered Partnership Entities or
any of their properties or assets in a proceeding to which any of them or their
property is a party or (E) results or will result in the creation or imposition
of any Lien upon any property or assets of any of the Covered Partnership
Entities;
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(xvi) No Consents. No
permit, consent, approval, authorization, order, registration, filing or
qualification of or with any court, governmental agency or body of the State of
Texas or the United States of America, or under the Delaware LP Act, the
Delaware LLC Act, the DGCL, Texas law or federal law is required in connection
with the offering, issuance or sale by the Partnership of the Units, the
execution, delivery and performance of this Agreement by the Partnership Parties
or the consummation of the transactions contemplated by this
Agreement;
(xvii) Description of the Common
Units. The Common Units conform in all material respects to
the description set forth under “Summary—The Offering,” “Description of the
Common Units,” “Provisions of Our Partnership Agreement Relating to Cash
Distributions,” and “Material Provisions of Our Partnership Agreement” in the
Time of Sale Prospectus and Prospectus;
(xviii) Descriptions and
Summaries. The statements made in the Time of Sale Prospectus
and Prospectus under the captions “Conflicts of Interest and
Fiduciary Duties,” “Material Provisions of Our Partnership Agreement,”
“Provisions of Our Partnership Agreement Relating to Cash Distributions,”
“Description of the Common Units,” insofar as they purport to constitute
summaries of the terms of statutes, rules or regulations, legal and governmental
proceedings or contracts and other documents, constitute fair summaries of the
terms of such statutes, rules and regulations, legal and governmental
proceedings and contracts and other documents in all material
respects;
(xix) Tax
Disclosure. The statements under the caption “Material Tax
Considerations” in the Time of Sale Prospectus and Prospectus, insofar as they
refer to statements of law or legal conclusions, fairly summarize the matters
referred to therein in all material respects, subject to the qualifications and
assumptions stated therein;
(xx) Tax Opinion. The
opinion of Andrews Kurth LLP that is filed as Exhibit 8.1 to the
Registration Statement (filed with the Commission on January 27, 2009) is
confirmed and the Underwriters may rely upon such opinion as if it were
addressed to them;
(xxi) Investment
Company. None of the Covered Partnership Entities is,
nor after giving effect to the offering and sale of the Units and the
application of the proceeds thereof as described in the Time of Sale Prospectus
and the Prospectus will any of the Covered Partnership Entities be, an
“investment company,” as such term is defined in the Investment Company Act of
1940, as amended;
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Such counsel shall
state that they have participated in conferences with officers and other
representatives of the Covered Partnership Entities, the independent registered
public accounting firm for MLP GP and the Partnership, your counsel and your
representatives, at which the contents of the Registration Statement, the Time
of Sale Prospectus and the Prospectus and related matters were discussed, and,
although such counsel has not independently verified, is not passing upon, and
does not assume any responsibility for the accuracy, completeness or fairness
of, the statements contained or incorporated by reference in the Registration
Statement, the Time of Sale Prospectus and the Prospectus (except as and to the
extent set forth in opinions (xii), (xiii) and (xiv) above), on the basis of the
foregoing (relying to a limited extent with respect to factual matters upon
statements by officers and other representatives of the Covered Partnership
Entities and their subsidiaries),
(a)
such counsel confirms that, in their opinion, each of the Registration
Statement, as of the Effective Date (as defined below) and the applicable
Closing Date, the Time of Sale Prospectus, as of the Time of Sale and the
applicable Closing Date, the Prospectus, as of its date and the applicable
Closing Date, and each of the documents incorporated by reference therein (the
“Incorporated
Documents”) when filed with the Commission appeared on its face to be
appropriately responsive, in all material respects, to the requirements of the
Securities Act and the Rules and Regulations (except that such counsel need not
make a statement with respect to Regulation S-T), and
(b) such
counsel is not aware of any documents that are required to be filed as exhibits
to the Registration Statement or any of the Incorporated Documents and are not
so filed or of any documents that are required to be summarized in the Time of
Sale Prospectus, the Prospectus or any of the Incorporated Documents, and are
not so summarized, and
(c) such
counsel is not aware of any legal or governmental proceedings pending or
threatened to which any of the Covered Partnership Entities is a party or to
which any of their respective properties is subject that are required to be
described in the Time of Sale Prospectus, the Prospectus or any of the
Incorporated Documents, and are not so described, and
(d)
no facts have come to such counsel’s attention that have led them to believe
that (i) the Registration Statement, as of the latest Effective Date,
contained an untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, (ii) the Time of Sale Prospectus, as of the Time of
Sale, contained an untrue statement of a material fact or omitted to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or (iii) the
Prospectus, as of its date and the applicable Closing Date, contained or
contains an untrue statement of a material fact or omitted or omits to state any
material fact necessary to make the statements therein, in the
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light of the
circumstances under which they were made, not misleading; it being understood
that such counsel need express no opinion, statement or belief in this letter
with respect to (A) the historical financial statements and related
schedules, including the notes and schedules thereto and the auditor’s report
thereon, (B) any other financial or accounting data included or
incorporated or deemed incorporated by reference in, or excluded from, the
Registration Statement, the Time of Sale Prospectus or the Prospectus, and
(C) representations and warranties and other statements of fact included in
the exhibits to the Registration Statement or the Incorporated
Documents.
Such counsel shall advise you that the
Registration Statement became effective under the Securities Act on March 24,
2009 (the “Effective
Date”). In addition, such counsel shall advise you that they
have been orally advised by the Commission that no stop order suspending the
effectiveness of the Registration Statement has been issued and that to their
knowledge, based solely upon such oral communication with the Commission, no
proceedings for that purpose have been instituted or are pending or threatened
by the Commission.
In
rendering the foregoing opinions, such counsel may (A) rely in respect of
matters of fact upon certificates of officers and employees for the Covered
Partnership Entities and of the transfer agent of the Partnership and upon
information obtained from public officials, (B) assume that all documents
submitted to them as originals are authentic, that all copies submitted to them
conform to the originals thereof, and that the signatures on all documents
examined by them are genuine, (C) state that their opinion is limited to
the Delaware LP Act, the Delaware LLC Act, the DGCL and the laws of the State of
Texas, the applicable laws of the United States of America , the contract law of
the State of New York and, with respect to the opinion set forth in paragraphs
(xii) and (xiv) above, United States federal income tax law, (D) with
respect to the opinion expressed in paragraph (i) above with respect to the good
standing and foreign qualification of the Partnership, MLP GP and OLLC, state
that such opinions
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are based solely on
certificates of foreign qualification provided by the Secretary of State of the
applicable state, (E) with respect to the opinions expressed in clause
(A) and clause (B) of paragraphs (ii) and (iv) above, respectively,
such counsel relied solely on reports, dated as of recent dates, purporting to
describe all financing statements on file as of the dates specified therein in
the office of the Secretary of State of the State of Delaware naming MLP GP, the
Partnership and Holdings, or one or more of them, as debtors, and (F) state
that such counsel expresses no opinion with respect to (i) any permits to
own or operate any real or personal property, (ii) the title of any of the
Covered Partnership Entities to any of their respective real or personal
property, other than with regard to the opinions set forth above regarding the
ownership of capital stock, partnership interests and limited liability company
interests, or with respect to the accuracy or descriptions of real or personal
property or (iii) state or local tax statutes to which any of the limited
partners of the Partnership or any of the Covered Partnership Entities or MLP GP
may be subject.
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EXHIBIT C
FORM
OF LOCK-UP LETTER
January __,
2010
Citigroup Global
Markets Inc.
Merrill Lynch,
Pierce, Fenner & Smith Incorporated
Barclays Capital
Inc.
UBS Securities
LLC
Wells Fargo
Securities, LLC
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c/o Citigroup
Global Markets Inc.
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388 Greenwich
Street
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New York, New
York 10013
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Ladies and
Gentlemen:
The undersigned
understands that Citigroup Global Markets Inc. (“Citigroup”)
proposes to enter into an Underwriting Agreement (the “Underwriting
Agreement”) with El Paso Pipeline Partners, L.P., a Delaware limited
partnership (the “Partnership”),
providing for the public offering (the “Public
Offering”) by the several Underwriters, including Citigroup (the “Underwriters”),
of 8,750,000 common units representing limited partner interests in the
Partnership (the “Common
Units”).
To
induce the Underwriters that may participate in the Public Offering to continue
their efforts in connection with the Public Offering, the undersigned hereby
agrees that, without the prior written consent of Citigroup on behalf of the
Underwriters, it will not, during the period commencing on the date hereof and
ending 60
days after the date of the final prospectus relating to the Public Offering (the
“Prospectus”),
(1) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, lend, or otherwise transfer or dispose of, directly or
indirectly, any Common Units or any securities convertible into or exercisable
or exchangeable for Common Units or (2) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of the Common Units, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery
of Common Units or
such other securities, in cash or otherwise. The foregoing sentence
shall not apply to (a) transactions relating to Common Units or other securities
acquired in open market transactions after the completion of the Public
Offering, provided that
no filing under Section 16(a) of the Securities Exchange Act of 1934 (the “Exchange Act”),
shall be required or shall be voluntarily made in connection with subsequent
sales of Common Units or other securities acquired in such open market
transactions, (b) transfers of Common Units or any security convertible into
Common Units as a bona fide gift, or (c) distributions of Common Units or any
security convertible into Common Units to limited partners or stockholders of
the undersigned; provided that in the case of
any transfer or distribution pursuant to clause (b) or (c), (i) each donee or
distributee shall sign and deliver a lock-up letter substantially in the form of
this letter and (ii) no filing under Section 16(a) of the Exchange Act,
reporting a reduction in beneficial ownership of Common Units, shall be required
or shall be voluntarily made during the restricted period referred to in the
foregoing sentence, or (d) the establishment of a trading plan pursuant to Rule
10b5-1 under the Exchange Act for the transfer of Common Units, provided that such plan does
not provide for the transfer of Common Units during the restricted
period. In addition, the undersigned agrees that, without the prior
written consent of Citigroup on behalf of the Underwriters, it will not, during
the period commencing on the date hereof and ending 60
days after the date of the Prospectus, make any demand for or exercise any right
with respect to, the registration of any Common Units or any security
convertible into or exercisable or exchangeable for Common Units. The
undersigned also agrees and consents to the entry of stop transfer instructions
with the Partnership’s transfer agent and registrar against the transfer of the
undersigned’s shares of Common Units except in compliance with the foregoing
restrictions.
The undersigned
understands that the Partnership and the Underwriters are relying upon this
agreement in proceeding toward consummation of the Public
Offering. The undersigned further understands that this agreement is
irrevocable and shall be binding upon the undersigned’s heirs, legal
representatives, successors and assigns.
Whether or not the
Public Offering actually occurs depends on a number of factors, including market
conditions. Any Public Offering will only be made pursuant to an
Underwriting Agreement, the terms of which are subject to negotiation between
the Partnership and the Underwriters.
It
is understood that, if the Partnership notifies Citigroup that it does not
intend to proceed with the Offering, if the Underwriting Agreement does not
become effective, or if the Underwriting Agreement (other than the provisions
thereof which survive termination) shall terminate or be terminated prior to
payment for and delivery of the Common Units, the undersigned will be released
from its obligations under this lock-up letter agreement.
Facsimile
transmission of any signed original agreement shall be the same as delivery of
an original signed agreement.
[Signature
page follows]
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Very truly
yours,
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(Name)
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(Address)
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