Execution Version
3,467,144 Shares
ENERGY PARTNERS, LTD.
Common Stock
UNDERWRITING AGREEMENT
November 10, 2004
CREDIT SUISSE FIRST BOSTON LLC
RAYMOND JAMES & ASSOCIATES, INC.
HOWARD WEIL INCORPORATED
PRITCHARD CAPITAL PARTNERS, LLC
c/o Credit Suisse First Boston LLC, as Representative of the Underwriters
Eleven Madison Avenue
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Energy Partners, Ltd., a Delaware corporation (the
"Company"), proposes to issue and sell 3,467,144 shares of its common stock, par
value $.01 per share (the "Offered Securities"). The Company hereby agrees with
the several underwriters named in Schedule A hereto ("Underwriters") as follows:
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement (No. 333-117419) relating to the Offered
Securities, including a form of prospectus, has been filed with the
Securities and Exchange Commission ("Commission") and has become effective.
Such registration statement, as amended as of the date of this Agreement,
is hereinafter referred to as the "Registration Statement." The prospectus
included in such Registration Statement, as supplemented to reflect the
terms of the Offered Securities, as first filed with the Commission
pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under the
Securities Act of 1933 ("Act"), including all material incorporated by
reference therein, is hereinafter referred to as the "Prospectus." No
document has been or will be prepared or distributed in reliance on Rule
434 under the Act.
(b) On the effective date of the Registration Statement, such
Registration Statement conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
("Rules and Regulations") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made) not
misleading, and on the date of this Agreement and at the time of filing the
Prospectus pursuant to Rule 424(b), the Registration Statement and the
Prospectus conform or will conform in all material respects
to the requirements of the Act and the Rules and Regulations, and neither
of such documents includes or will include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made) not
misleading, except that the foregoing does not apply to statements in or
omissions from any such documents based upon written information furnished
to the Company by any Underwriter, through Credit Suisse First Boston LLC,
as representative of the several Underwriters ("Representative"),
specifically for use therein.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and the Company is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of
its business requires such qualification, except where the failure so to
qualify or to be in good standing would not have a material adverse effect
on the condition (financial or otherwise), business, properties or results
of operations of the Company and its subsidiaries taken as a whole
("Material Adverse Effect").
(d) The Company has no subsidiaries which conduct any business other
than EPL of Louisiana, L.L.C., Delaware EPL of Texas, LLC, EPL Pipeline
L.L.C. and Nighthawk L.L.C. (such four subsidiaries being referred to
herein as the "subsidiaries" and individually as "subsidiary"). Each
subsidiary of the Company has been duly organized and is an existing
limited liability company in good standing under the laws of the
jurisdiction of its organization, with limited liability company power and
authority to own its properties and conduct its business as described in
the Prospectus; and each subsidiary of the Company is duly qualified to do
business as a foreign corporation or other entity in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect; all of the issued and outstanding capital stock or
other ownership interest of each subsidiary of the Company has been duly
authorized and validly issued and is fully paid and nonassessable; and the
capital stock or other ownership interest of each subsidiary owned by the
Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(e) The authorized, issued and outstanding capital stock of the
Company as of November 1, 2004 and as of the Closing Date (as defined
below) is as set forth in the Prospectus in the second paragraph under the
caption "Capitalization" (except for subsequent issuances, if any, pursuant
to reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or options
referred to in the Prospectus). The Offered Securities and all outstanding
shares of capital stock of the Company have been duly authorized. All
outstanding shares of capital stock of the Company have been validly issued
and are fully paid and nonassessable, and when the Offered Securities have
been delivered and paid for in accordance with this Agreement, such Offered
Securities will be validly issued, fully paid and nonassessable. The
Offered Securities and all outstanding shares of capital stock of the
Company conform in all material respects to the description thereof
contained or incorporated in the Prospectus; and the stockholders of the
Company have no preemptive rights with respect to the Offered Securities.
On the Closing Date (as defined below), the Company will repurchase
3,467,144 shares of common stock of the Company (the "Repurchase") from
Energy Income Fund, L.P. ("EIF") pursuant to that certain Stock Purchase
Agreement dated of even date herewith by and between the Company and EIF
(the "Purchase Agreement").
(f) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that would
give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment in connection with
this offering.
(g) There are no contracts, agreements or understandings between the
Company and any
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person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of the
Company owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to
any other registration statement filed by the Company under the Act other
than those that have been complied with or waived in connection with this
offering.
(h) No relationship, direct or indirect, exists between or among the
Company or any of its respective subsidiaries, on the one hand, and the
directors, managers, officers, stockholders, members, unitholders,
customers or suppliers of the Company or any of their respective
subsidiaries on the other hand, which is required to be described in the
Prospectus which is not so described or incorporated by reference therein.
(i) The Offered Securities shall be approved for listing on The New
York Stock Exchange, Inc. (the "New York Stock Exchange") before the
Closing, subject to notice of issuance.
(j) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required to be obtained or
made by the Company for the performance by the Company of its obligations
contemplated by this Agreement or the Purchase Agreement (the Purchase
Agreement together with this Agreement the "Transaction Documents") in
connection with the sale of the Offered Securities or the Repurchase,
except such as have been obtained and made under the Act and such as may be
required under state securities laws or the New York Stock Exchange.
(k) There are no contracts or documents which are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits thereto which have not been so described and filed as required.
(l) Neither the Company nor any of its subsidiaries is (1) in
violation of its charter or by-laws, or other organizational documents, or
in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound, or to which any of the property or
assets of the Company or any subsidiary is subject (collectively,
"Agreements and Instruments") except for such defaults that, individually
or in the aggregate, would not have a Material Adverse Effect or (2) in
violation in any material respect of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or assets may be
subject or has failed to obtain any material license, permit, certificate,
franchise or other governmental authorization or permit necessary to the
ownership of its property or assets or to the conduct of its business,
except for such violations or failures that, individually or in the
aggregate, would not result in a Material Adverse Effect; and the
execution, delivery and performance of the Transaction Documents and the
consummation of the transactions contemplated in the Transaction Documents
and in the Registration Statement (including the issuance and sale of the
Offered Securities and the use of the proceeds from the sale of the Offered
Securities as described in the Prospectus under the caption "Use of
Proceeds") and compliance by the Company with its obligations under the
Transaction Documents have been duly authorized by all necessary corporate
action and, except as disclosed in the Prospectus, do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not result in a Material Adverse Effect), nor will such action result
in any violation of the provisions of the charter or by-laws, or other
organizational documents, of the Company or any subsidiary or any
applicable law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any subsidiary or any of
their assets, properties or operations, except as would not have a Material
Adverse Effect. As used herein, a "Repayment Event" means any
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event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any subsidiary.
(m) This Agreement has been duly authorized, executed and delivered by
the Company.
(n) The Purchase Agreement has been duly authorized, executed and
delivered by the Company and, when duly executed and delivered in
accordance with its terms by each of the parties thereto, will constitute a
valid and legally binding agreement of the Company enforceable against the
Company in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally or by equitable principles relating to
enforceability.
(o) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties owned by
them and good title to all other properties and assets owned by them, in
each case free from liens, encumbrances and defects that would materially
affect the value thereof or materially interfere with the use made or to be
made thereof by them; and except as disclosed in the Prospectus, the
Company and its subsidiaries hold any leased real or personal property that
is material to the business of the Company and its subsidiaries, considered
as one enterprise, and under which the Company or any of its subsidiaries
holds properties described in the Prospectus under valid and enforceable
leases with no exceptions that would materially interfere with the use made
or to be made thereof by them.
(p) The Company and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business now operated by them except for
such certificates, authority or permits with respect to which the lack of
possession would not reasonably be expected to individually or in the
aggregate have a Material Adverse Effect. None of the Company or any of its
subsidiaries has received any written notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its subsidiaries,
would reasonably be expected to individually or in the aggregate have a
Material Adverse Effect.
(q) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
would reasonably be expected to have a Material Adverse Effect.
(r) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "intellectual property rights")
necessary to conduct the business now operated by them and have not
received any notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that would
reasonably be expected to individually or in the aggregate have a Material
Adverse Effect.
(s) Except as disclosed in the Prospectus, neither the Company nor any
of its subsidiaries is in violation of any statute, rule, regulation,
decision or order of any governmental agency or body or any court, domestic
or foreign, relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the environment
or human exposure to hazardous or toxic substances (collectively,
"environmental laws"), owns or operates any real property contaminated with
any substance that is subject to any environmental laws, is liable for any
off-site disposal or contamination pursuant to any environmental laws, or
is subject to any pending claim relating to any environmental laws, which
violation, contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and the Company is not aware of
any pending investigation which might lead to such a claim.
(t) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings
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against or affecting the Company, any of its subsidiaries or any of their
respective properties that would individually or in the aggregate have a
Material Adverse Effect, or would materially and adversely affect the
ability of the Company to perform its obligations under the Transaction
Documents, or which are otherwise material in the context of the
transactions contemplated in the Transaction Documents; and no such
actions, suits or proceedings are, to the Company's knowledge, threatened
or contemplated.
(u) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged; and neither the Company nor any of its subsidiaries has any
reason to believe that they will not be able to renew their existing
insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its business
at a cost that would not have a Material Adverse Effect.
(v) The financial statements included or incorporated by reference in
the Prospectus present fairly in all material respects the financial
position of the Company and its consolidated subsidiaries as of the dates
shown and their results of operations and cash flows for the periods shown,
and such financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied on a
consistent basis.
(w) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus there has been no material adverse change, nor any
development or event involving a prospective material adverse change, in
the condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole, and,
except as disclosed in or contemplated by the Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by the Company
on any class of its capital stock.
(x) The Company and its subsidiaries have established and maintain a
system of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions were, are and will be executed in
accordance with management's general or specific authorization; (ii)
transactions were, are and will be recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii)
access to assets was, is and will be permitted only in accordance with
management's general or specific authorizations; and (iv) the recorded
accountability for assets was, is and will be compared with existing assets
at reasonable intervals and appropriate action was, is and will be taken
with respect to any differences.
(y) The Company has filed in a timely manner with the Commission each
document required to be filed by it pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), each such document at the time it
was filed conformed in all material respects to the requirements of the
Exchange Act and none of such documents at the time filed contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
The Company files such reports with the Commission on the Electronic Data
Gathering, Analysis and Retrieval (EDGAR) system.
(z) The statistical data included or incorporated by reference in the
Prospectus are derived from sources which the Company reasonably and in
good faith believes to be accurate, reasonable and reliable and agrees with
the sources from which they were derived.
(aa) The information that was provided by the Company and its
subsidiaries, on the basis of which the reserve estimates and related
information included or incorporated by reference in each Registration
Statement and the Prospectus was prepared, is true and correct in all
material respects.
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3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at a purchase price of $16.549 per share, that number of
Offered Securities set forth opposite the name of such Underwriter in Schedule A
hereto.
Certificates in negotiable form for securities subject to the Repurchase to
be sold by EIF under the Purchase Agreement on the Closing Date (as defined
below) have been placed in custody with the Company, for delivery under the
Purchase Agreement.
The Company will deliver the Offered Securities to the Representative for
the accounts of the Underwriters, against payment of the purchase price in
Federal (same day) funds by official bank check or checks or wire transfer to an
account at a bank reasonably acceptable to the Representative drawn to the order
of the Company at the office of the Company at 9:00 A.M., New York time, on
November 16, 2004, or at such other time not later than seven full business days
thereafter as the Representative and the Company determine, such time being
herein referred to as the "Closing Date." For purposes of Rule 15c6-1 under the
Exchange Act, the Closing Date (if later than the otherwise applicable
settlement date) shall be the settlement date for payment of funds and delivery
of securities for all the Offered Securities sold pursuant to the offering. The
certificates for the Offered Securities to be delivered will be in definitive
form, in such denominations and registered in such names as the Representative
requests and will be made available for checking and packaging at the above
office of the Company at least 24 hours prior to the Closing Date.
4. Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Offered Securities for sale to the public as set forth in
the Prospectus.
5. Certain Agreements of the Company. The Company agrees with the several
Underwriters that:
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b) not later than the second business
day following the execution and delivery of this Agreement.
(b) The Company will advise the Representative promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will not effect such amendment or supplement without the
Representative's consent, which consent shall not be unreasonably withheld
or delayed; and the Company will also advise the Representative promptly of
any amendment or supplement of the Registration Statement or the Prospectus
and of the institution by the Commission of any stop order proceedings in
respect of the Registration Statement and will use its reasonable best
efforts to prevent the issuance of any such stop order and to obtain as
soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit 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 if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company will promptly
notify the Representative of such event and will promptly prepare and file
with the Commission, at its own expense, an amendment or supplement which
will correct such statement or omission or an amendment which will effect
such compliance. Neither the notification to the Representative nor the
Underwriters delivery of any such amendment or supplement shall constitute
a waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than 16 months, after the
date of this Agreement, the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the later of (i) the effective date of the
Registration Statement or
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(ii) the effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of this
Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company has furnished or will furnish to the Representative
four copies of the signed Registration Statement , including all exhibits,
each related preliminary prospectus, and, so long as a prospectus relating
to the Offered Securities is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, the Prospectus and all
amendments and supplements to such documents, in each case in such
quantities as the Representative reasonably requests. The Prospectus shall
be so furnished on or prior to 3:00 P.M., New York time, on the business
day following the execution and delivery of this Agreement. All other such
documents shall be so furnished as soon as available. The Company will pay
the expenses of printing and distributing to the Underwriters all such
documents.
(f) The Company will use its reasonable efforts, in cooperation with
the Underwriters, to arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as the
Representative designates and will continue such qualifications in effect
so long as required for the distribution; provided, however, that the
Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in securities
in any jurisdiction in which it is not otherwise so subject.
(g) For a period of 30 days after the date of the initial public
offering of the Offered Securities, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly,
or file with the Commission a registration statement under the Act relating
to, any additional shares of its common stock or securities convertible
into or exchangeable or exercisable for any shares of its common stock, or
publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of the
Representative, except issuances of common stock pursuant to this
Agreement, the conversion or exchange of convertible or exchangeable
securities or the exercise of warrants or options, in each case outstanding
on the date hereof, grants of stock awards, restricted stock units,
performance shares, phantom units and employee stock options pursuant to
the terms of a plan in effect on the date hereof, issuances of common stock
pursuant to the exercise of such options, stock awards, restricted stock
units, performance shares or phantom units and the filing of any
registration statement on Form S-8 relating to securities that have been or
may be issued pursuant to any such plan.
(h) The Company agrees with the several Underwriters that the Company
will pay all expenses incident to the performance of the obligations of the
Company under this Agreement, for any filing fees and other expenses
(including reasonable fees and disbursements of counsel) in connection with
qualification of the Offered Securities for sale under the laws of such
jurisdictions as the Representative designates and the printing of
memoranda relating thereto, for any travel expenses of the Company's
officers and employees and any other expenses of the Company in connection
with attending or hosting meetings with prospective purchasers of the
Offered Securities, and for expenses incurred in distributing preliminary
prospectuses and the Prospectus (including any amendments and supplements
thereto) to the Underwriters. The Company will apply the net proceeds from
the sale of the Offered Securities in the manner described in the
Prospectus under the heading "Use of Proceeds."
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Offered Securities on the
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the
certificates of Company officers delivered pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) The Underwriters shall have received a letter, dated the date of
delivery thereof (which shall be on or prior to the date of this Agreement)
of KPMG LLP confirming that they are an independent
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registered public accounting firm within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating to the
effect that:
(i) in their opinion the financial statements examined by them
and included or incorporated by reference in the Registration
Statement comply as to form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii)on the basis of a reading of the latest available interim
financial statements of the Company, inquiries of officials of the
Company who have responsibility for financial and accounting matters
and other specified procedures, nothing came to their attention that
caused them to believe that:
(A) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than three business days prior to the date of this Agreement,
there was any change in the capital stock or any increase in
short-term indebtedness or long-term debt of the Company and its
consolidated subsidiaries or, at the date of the latest available
balance sheet read by such accountants, there was any decrease in
consolidated net current assets or net assets as compared with
amounts shown on the latest balance sheet included in the
Prospectus; or
(B) for the period from the closing date of the latest
income statement included or incorporated by reference in the
Prospectus to the closing date of the latest available income
statement read by such accountants there were any decreases, as
compared with the corresponding period of the previous year and
with the period of corresponding length ended the date of the
latest income statement included in the Prospectus, in
consolidated net sales or net operating income in the total or
per share amounts of consolidated income before extraordinary
items or net income;
except in all cases set forth in clause (A) above for changes,
increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(iii) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Registration Statements (in each case to the extent
that such dollar amounts, percentages and other financial information
are derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included in
the Registration Statement for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) of this
Agreement. Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Representative, shall be contemplated by
the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as one enterprise which, in the judgment of the
Representative, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the sale
of
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and payment for the Offered Securities; (ii) any downgrading in the rating
of any debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)
under the Act), or any public announcement that any such organization has
under surveillance or review its rating of any debt securities of the
Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange controls as
would, in the judgment the Representative, be likely to prejudice
materially the success of the proposed issue, sale or distribution of the
Offered Securities, whether in the primary market or in respect of dealings
in the secondary market; (iv) any material suspension or material
limitation of trading in securities generally on the New York Stock
Exchange or any setting of minimum prices for trading on such exchange; (v)
any suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market; (vi) any banking moratorium declared by
U.S. Federal or, New York authorities; (vii) any major disruption of
settlements of securities or clearance services in the United States; or
(viii) any attack on, outbreak or escalation of hostilities or act of
terrorism involving the United States, any declaration of war by Congress
or any other national or international calamity or emergency if, in the
judgment of the Representative, the effect of any such attack, outbreak,
escalation, act, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the public offering or the sale
of and payment for the Offered Securities.
(d) The Underwriters shall have received an opinion, dated the Closing
Date, of Cahill Gordon & Reindel LLP, outside counsel for the Company to
the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware.
(ii) The Offered Securities to be purchased by the Underwriters
from the Company have been duly authorized for issuance and sale to
the Underwriters pursuant to the Underwriting Agreement and, when
issued and delivered by the Company pursuant to the Underwriting
Agreement, against payment of the consideration set forth in the
Underwriting Agreement, will be validly issued and fully paid and
non-assessable; and the issuance of such shares of capital stock did
not violate any statutory preemptive rights, or, to our knowledge,
contractual preemptive rights or other similar rights of any
securityholder of the Company.
(iii) EPL Pipeline L.L.C. has been duly organized and is validly
existing as a limited liability company in good standing under the
laws of the State of Delaware.
(iv) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(v) The Purchase Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
agreement of the Company enforceable against the Company in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting creditors' rights
generally or by equitable principles relating to enforceability.
(vi) The Registration Statement has been declared effective under
the Act; the required filing of the Prospectus pursuant to Rule 424(b)
has been made in the manner and within the time period required by
Rule 424(b); and, to our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under the
Act and, to our knowledge, no proceedings for that purpose have been
instituted or are pending or threatened by the Commission.
(vii) The Registration Statement, the Prospectus and each
amendment or supplement to the Registration Statement and the
Prospectus as of their respective effective or issue dates
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(other than the financial statements, including notes thereto, or any
other financial, reserve or statistical information included or
incorporated by reference therein or omitted therefrom, as to which we
need express no opinion) complied as to form in all material respects
with the requirements of the Act and the Rules and Regulations.
(viii) The form of certificate used to evidence the Common Stock
complies in all material respects with all applicable statutory
requirements, with any applicable requirements of the charter and
by-laws of the Company and the requirements of the New York Stock
Exchange.
(ix) The information in the Prospectus under "Description of
Capital Stock--Common Stock" and "Description of Capital
Stock--Preferred Stock," to the extent that it constitutes matters of
law, summaries of legal matters, the Company's charter and bylaws or
legal conclusions, has been reviewed by us and is correct in all
material respects.
(x) The shares of issued and outstanding capital stock of the
Company have been duly authorized and validly issued as set forth in
the Prospectus in the column entitled "Actual" under the caption
"Capitalization" and are fully paid and non-assessable; and the
issuance of such shares of capital stock did not violate any statutory
preemptive rights, or, to our knowledge, contractual preemptive rights
or other similar rights of any securityholder of the Company.
(xi) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign (other than
under the Act and the Rules and Regulations, which have been obtained,
or as may be required under the securities or blue sky laws of the
various states, as to which we express no opinion) is necessary or
required in connection with the due authorization, execution and
delivery of the Transaction Documents by the Company, for the
offering, issuance, sale or delivery of the Offered Securities by the
Company or the Repurchase.
(xii) The execution, delivery and performance of the Transaction
Documents and the consummation of the transactions contemplated in the
Transaction Documents and in the Registration Statement (including the
issuance and sale of the Offered Securities, and the use of the
proceeds from the sale of the Offered Securities as described in the
Prospectus under the caption "Use of Proceeds") and compliance by the
Company with its obligations under the Transaction Documents do not
and will not, whether with or without the giving of notice or lapse of
time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined in Section 2(l) of the Underwriting
Agreement) under or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or
any subsidiary pursuant to any agreement or instrument identified in
the Index to Exhibits to the Registration Statement or any exhibit to
any document incorporated by reference therein, to which the Company
or any subsidiary is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company or any
subsidiary is subject (except for such conflicts, breaches or defaults
or liens, charges or encumbrances that would not have a Material
Adverse Effect), nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any subsidiary,
or any applicable law, statute, rule, regulation, judgment, order,
writ or decree, known to us, of any government, government
instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any subsidiary or any of their respective
properties, assets or operations
(xiii) To our knowledge, there are no agreements required to be
described in the Registration Statement that are not so described.
We have participated in conferences with representatives of the
Underwriters, officers and other representatives of the Company, counsel
for the Company and the Underwriters and
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representatives of the independent public accountants of the Company at
which the contents of the Prospectus and the Registration Statement and
related matters were discussed. Given the limitations inherent in the role
of outside counsel and the character of determinations involved in the
preparation of the Prospectus and the Registration Statement, we are not
passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Prospectus and
the Registration Statement and have made no independent check or
verification thereof. On the basis of the foregoing, no facts have come to
our attention which lead us to believe that the Prospectus and the
Registration Statement, as of their respective dates or as of the date
hereof, contained or contain an untrue statement of a material fact or
omitted or omit to state a material fact necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances under
which they were made), not misleading (it being understood that we express
no comment with respect to the financial statements, including the notes
thereto, or any other financial, reserve or statistical data found in or
derived from the internal accounting or other records of the Company and
any of its subsidiaries set forth or referred to or incorporated by
reference in the Prospectus and the Registration Statement).
In rendering such opinion, such counsel may rely, to the extent they
deem proper, on certificates of responsible officers of the Company and
public officials. Such opinion shall not state that it is to be governed or
qualified by, or that it is otherwise subject to, any treatise, written
policy or other document relating to legal opinions, including, without
limitation, the Legal Opinion Accord of the ABA Section of Business Law
(1991).
(e) The Underwriters shall have received an opinion, dated the Closing
Date, of John H. Peper, the Company's Executive Vice President, General
Counsel and Corporate Secretary, to the effect that:
(i) The Company has corporate power and authority to own, lease
and operate its properties and to conduct its business as now being
conducted and to enter into and perform its obligations under the
Transaction Documents.
(ii) The Company is duly qualified and is in good standing in
Delaware, Massachusetts, Texas and Louisiana which, to my knowledge,
are the only jurisdictions in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be
in good standing would not result in a Material Adverse Effect.
(iii) Each of the subsidiaries (as defined in the Underwriting
Agreement), other than EPL Pipeline L.L.C., as to which I am rendering
no opinion, has been duly organized and is validly existing as a
limited liability company in good standing under the laws of the
jurisdiction of its organization.
(iv) Each of the subsidiaries has the power and authority to own,
lease and operate its properties and to conduct its business as now
conducted.
(v) Each of the subsidiaries is duly qualified in the
jurisdiction set forth on Exhibit A which, to my knowledge, are the
only jurisdictions in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect.
(vi) The issued and outstanding shares or membership interests of
each of the subsidiaries have been duly authorized and validly issued,
are fully paid and non-assessable and are owned by the Company, free
and clear of any recorded security interest or, to my knowledge, any
other security interest, mortgage, pledge, lien, encumbrance or claim.
None of the outstanding shares or membership interests of the
subsidiaries were issued in violation
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of any statutory preemptive right or, to my knowledge, contractual
preemptive rights of any security holder of the subsidiaries.
(vii) To my knowledge, there is not pending or overtly threatened
in writing, any action, suit, proceeding, inquiry or investigation,
against the Company or any of the subsidiaries, or against the
property of the Company or any of the subsidiaries, before or brought
by any court or governmental agency or body, domestic or foreign,
which would reasonably be expected to result in a Material Adverse
Effect, or which would reasonably be expected to materially and
adversely affect the consummation of the transactions contemplated in
the Transaction Documents or the performance by the Company of its
obligations thereunder.
(viii) There are no contracts, agreements or understandings known
to such counsel between the Company and any person granting such
person the right to require the Company to include such securities in
the securities registered pursuant to the Registration Statement other
than those that have been complied with or waived in connection with
this offering.
(ix) To my knowledge, neither the Company nor any subsidiary is
in violation of its charter or by-laws and no default by the Company
or any subsidiary exists in the due performance or observance of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument identified in the Index to Exhibits to the
Registration Statement or any exhibit to any document incorporated by
reference therein, except any such violation or default which would
not reasonably be expected to result in a Material Adverse Effect.
(x) The information in the Annual Report on Form 10-K for the
year ended December 31, 2003 under "Legal Proceedings," to the extent
that it constitutes matters of law, summaries of legal matters or
legal proceedings, or legal conclusions, has been reviewed by me and
is, to my knowledge, correct in all material respects.
I have participated in conferences with representatives of the
Underwriters, officers and other representatives of the Company, counsel
for the Company and the Underwriters and representatives of the independent
public accountants of the Company at which the contents of the Prospectus
and the Registration Statement and related matters were discussed. Given
the limitations inherent in the role of general counsel and the character
of determinations involved in the preparation of the Prospectus and the
Registration Statement, I am not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Prospectus and the Registration Statement and have made no
independent check or verification thereof. On the basis of the foregoing,
no facts have come to my attention which lead me to believe that (i) the
Prospectus and the Registration Statement, as of their respective dates or
as of the date hereof, contained or contain an untrue statement of a
material fact or omitted or omit to state a material fact necessary to make
the statements therein, (in the case of the Prospectus, in light of the
circumstances under which they were made), not misleading (it being
understood that I express no comment with respect to the financial
statements, including the notes thereto, or any other financial, reserve or
statistical data found in or derived from the internal accounting or other
records of the Company and its subsidiaries set forth or referred to in the
Prospectus and the Registration Statement) or (ii) there are any material
contracts or agreements required to be filed as exhibits to the
Registration Statement that are not filed as required.
In rendering such opinion, such counsel may rely, to the extent he
deems proper, on certificates of responsible officers of the Company and
public officials. Such opinion shall not state that it is to be governed or
qualified by, or that it is otherwise subject to, any treatise, written
policy or other document relating to legal opinions, including, without
limitation, the Legal Opinion Accord of the ABA Section of Business Law
(1991).
(f) The Underwriters shall have received an opinion, dated the Closing
Date, of
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Jackson Walker L.L.P., special counsel to the Company regarding FERC and
environmental matters, to the effect that the information in the Annual
Report on Form 10-K for the year ended December 31, 2003 under the headings
"REGULATION OF TRANSPORTATION AND SALE OF NATURAL GAS," "REGULATION OF
TRANSPORTATION OF OIL," "REGULATION OF PRODUCTION" and "ENVIRONMENTAL
REGULATIONS" therein, to the extent that it constitutes matters of law,
summaries of legal matters or legal conclusions (other than disclosures
regarding the Company's compliance with, or the impact on the Company of,
any law, ordinance, governmental rule, regulation or court order, as to
which they express no opinion), has been reviewed by them and is, to their
knowledge, correct in all material respects subject to the qualifications
and assumptions stated therein.
(g) The Underwriters shall have received from Baker Botts L.L.P.,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the incorporation of the Company, the Registration
Statement, the Prospectus and other related matters as the Underwriters may
require, and the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to
pass upon such matters.
(h) The Underwriters shall have received a certificate, dated the
Closing Date, of the Company signed by the President or any Vice President
and a principal financial or accounting officer of the Company in which
such officers, to the best of their knowledge after reasonable
investigation, shall state that: the representations and warranties of the
Company in this Agreement are true and correct in all material respects
(determined without regard to any qualifications, provisions or exceptions
for "material," "materiality," "in all material respects" (or correlative
meanings)); the Company has complied in all material respects with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date; no stop order
suspending the effectiveness of any Registration Statement has been issued
and no proceedings for that purpose have been instituted or are
contemplated by the Commission; and, subsequent to the date of the most
recent financial statements incorporated by reference in the Prospectus,
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole except as set forth in the
Prospectus or as described in such certificate.
(i) The Underwriters shall have received a letter, dated the Closing
Date, of KPMG LLP meeting the requirements of subsection (a) of this
Section, except that the specified date referred to in such subsection will
be a date not more than three days prior to the Closing Date for the
purposes of this subsection.
(j) The Underwriters shall have received (i) a copy of the certificate
of incorporation, including all amendments thereto of the Company,
certified as of a recent date by the Secretary of State of the State of
Delaware, (ii) a certificate of good standing for the Company, dated as of
a recent date, from such Secretary of State, and (iii) a certificate, dated
as of a recent date, of the Secretary of State of each state in which the
Company is qualified to do business as a foreign corporation under the laws
of such state.
(k) The Underwriters shall have received (i) a copy of the certificate
or articles of incorporation (or similar organizational document) including
all amendments thereto, of each of the Company's subsidiaries, certified as
of a recent date by the Secretary of State of the state in which such
subsidiary is incorporated or organized, (ii) a certificate of good
standing for each of the Company's subsidiaries, certified as of a recent
date by the Secretary of State of the state in which such subsidiary is
incorporated or organized, and (iii) a certificate, dated as of a recent
date, of the Secretary of State of each state in which each such subsidiary
is qualified to do business as a foreign corporation or other entity under
the laws of each such state.
(l) On or prior to the date of this Agreement, the Underwriters shall
have received lockup letters
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in the form previously agreed to from each of EIF and Robert D. Gershen.
(m) On the Closing Date, the Offered Securities shall have been
approved for listing on the New York Stock Exchange, subject only to
official notice of issuance.
(n) The Purchase Agreement by and between the Company and Energy
Income Fund, L.P. shall have been duly authorized, executed and delivered
by each party thereto and be in full force and effect on the date hereof
and on the Closing Date.
(o) The Underwriters shall have received from each of Netherland,
Sewell & Associates, Inc. and Ryder Scott Company, L.P., each independent
petroleum engineers, letters dated, respectively, the date of this
Agreement and the Closing Date, in form and substance satisfactory to the
Underwriters, each stating, as of the date of such letter (or, with respect
to matters involving changes or developments since the respective dates as
of which information regarding the oil and natural gas reserves and future
net cash flows is given in the Prospectus, as of the date not more than
three days prior to the date of such letter), the conclusions and findings
of such firm with respect to the oil and natural gas reserves of the
Company estimated by such firm, as applicable, and such other matters as
the Underwriters reasonably may request.
The Company will furnish the Underwriters with such conformed copies of such
opinions, certificates, letters and documents as the Representative reasonably
request. The Representative may in its sole discretion waive compliance with any
conditions to the obligations of the Underwriters hereunder.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors, officers and affiliates
and each person, if any who controls such Underwriter within the meaning of
Section 15 of the Act, against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representative specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (b) below; provided further that
with respect to any untrue statement or alleged untrue statement in or omission
or alleged omission from any preliminary Prospectus, the indemnity agreement
contained in this subsection (a) shall not inure to the benefit of the
Underwriter from whom the person asserting any such losses, claims damages or
liabilities purchased the Offered Securities concerned, to the extent that a
prospectus relating to such Offered Securities was required to be delivered by
such Underwriter under the Act in connection with such purchase and any such
loss, claim, damage or liability of such Underwriter results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy of
the final Prospectus (exclusive of material incorporated by reference) if the
Company had previously furnished copies thereof to such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any
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Registration Statement, the Prospectus, or any amendment or supplement thereto,
or any related preliminary prospectus, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of such Underwriter through the Representative specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the following information in the Prospectus furnished on behalf of each
Underwriter: the concession and reallowance figures appearing in the third
paragraph under the caption "Underwriting" and the information contained in
paragraphs 11 and 12 under the caption "Underwriting."
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the failure to notify the indemnifying party shall not relieve it
from any liability that it may have under subsection (a) or (b) above, except to
the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided further that the
failure to notify the indemnifying party shall not relieve it from any liability
that it may have to an indemnified party otherwise than under subsection (a) or
(b) above. In case any such action is brought against any indemnified party and
it notifies an indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action 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 (i) settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action 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 an indemnified party.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (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 (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault 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 Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
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Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which 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 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in addition
to any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
(as hereinafter defined) within the meaning of the Act; and the obligations of
the Underwriters under this Section shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company, to each officer of the
Company who has signed the Registration Statement and to each person, if any,
who controls the Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities hereunder on the Closing Date
and the aggregate number of shares of Offered Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total number of shares of Offered Securities that the Underwriters are
obligated to purchase on such Closing Date, the Representative may make
arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by such Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Offered Securities that such defaulting Underwriters
agreed but failed to purchase on such Closing Date. If any Underwriter or
Underwriters so default and the aggregate number of shares of Offered Securities
with respect to which such default or defaults occur exceeds 10% of the total
number of shares of Offered Securities that the Underwriters are obligated to
purchase on such Closing Date and arrangements satisfactory to the
Representative and the Company for the purchase of such Offered Securities by
other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Company, except as provided in Section 9. As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives,
officers or directors and will survive delivery of and payment for the Offered
Securities. If this Agreement is terminated pursuant to Section 8 or if for any
reason the purchase of the Offered Securities by the Underwriters is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5 and the respective obligations of the
Company and the Underwriters pursuant to Section 7 shall remain in effect, and
if any Offered Securities have been purchased hereunder the representations and
warranties in Section 2 and all obligations under Section 5 shall also remain in
effect. If the purchase of the Offered Securities by the Underwriters is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 8 or the occurrence of any event specified in
clause (iii), (iv), (vi), (vii) or (viii) of Section 6(c), the Company will
reimburse the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or faxed and confirmed to the
Representative c/o Credit Suisse First Boston LLC, Eleven Madison Avenue, New
York, N.Y. 10010-3629, Facsimile No. (212) 325-4296, Attention: IBD - Legal
Department. If sent to the Company, will be mailed, delivered or faxed and
confirmed to it at Energy Partners, Ltd., 201 St. Charles Avenue, Suite 3400,
New Orleans, Louisiana 70170, Facsimile No. (504) 569-1874, Attention: John H.
Peper; with a copy to Cahill Gordon & Reindel LLP, 80 Pine Street, New York, New
York
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10005, Facsimile No.: (212) 269-5420, Attention: John Schuster, Esq.; provided,
however, that any notice to an Underwriter pursuant to Section 7 will be mailed,
delivered or faxed and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective personal representatives and
successors and the officers and directors and controlling persons referred to in
Section 7, and no other person will have any right or obligation hereunder.
12. Representation. The Representative will act for the Underwriters in
connection with the transactions contemplated by this Agreement, and any action
under this Agreement taken by the Representative will be binding upon all the
Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
The Company hereby submits to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit
or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
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If the foregoing is in accordance with the Representative understanding of
our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement among the Company and the
Underwriters in accordance with its terms.
Very truly yours,
ENERGY PARTNERS, LTD.
By: /s/ John H. Peper
-----------------------------------------
John H. Peper
Executive Vice President, General Counsel
and Corporate Secretary
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The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON LLC
RAYMOND JAMES & ASSOCIATES, INC.
HOWARD WEIL, a division of Legg Mason Wood Walker, Inc.
PRITCHARD CAPITAL PARTNERS, LLC
Acting on behalf of themselves and as the representatives of the several
Underwriters.
By CREDIT SUISSE FIRST BOSTON LLC
By: /s/ Robert Wheeler
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SCHEDULE A
Number of
Offered Securities
Underwriter to be Purchased
----------- ---------------
Credit Suisse First Boston LLC....................... 1,386,858
Raymond James & Associates, Inc...................... 1,386,858
Howard Weil Incorporated............................. 346,714
Pritchard Capital Partners, LLC...................... 346,714
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Total..................... 3,467,144
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