AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 28, 2003
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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ENTERPRISE PRODUCTS OPERATING L.P.
ENTERPRISE PRODUCTS PARTNERS L.P.
(exact name of registrant as specified in its charter)
DELAWARE 1321 76-0568220
DELAWARE 1321 76-0568219
(State or Other (Primary Standard (I.R.S. Employer
Jurisdiction of Industrial Classification Identification No.)
Incorporation or Code Number)
Organization)
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2727 NORTH LOOP WEST RICHARD H. BACHMANN
HOUSTON, TEXAS 77008-1037 2727 NORTH LOOP WEST
(713) 880-6500 HOUSTON, TEXAS 77008-1037
(Address, Including Zip Code, (713) 880-6500
and Telephone Number, Including Area (Name, Address, Including Zip Code,
Code, and Telephone Number, Including
of Registrant's Principal Executive Area Code, of Agent for Service)
Offices)
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COPY TO:
MICHAEL P. FINCH
VINSON & ELKINS L.L.P.
2300 FIRST CITY TOWER
1001 FANNIN STREET
HOUSTON, TEXAS 77002-6760
713-758-2222
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
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If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED NOTE(1) PRICE(1) REGISTRATION FEE
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6.375% Series B Senior Notes due
2013.......................... $350,000,000 100% $350,000,000 $32,200
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Guarantee by Enterprise Products
Partners L.P.................. -- -- -- --(2)
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(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(f) under the Securities Act of 1933.
(2) The guarantee relates to the notes being registered, and no separate fee is
payable pursuant to Rule 457(n) under the Securities Act of 1933.
EACH REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATES AS
MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS SHALL FILE A
FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION
8(A), MAY DETERMINE.
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The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JANUARY 28, 2003
PROSPECTUS
ENTERPRISE PRODUCTS OPERATING L.P.
OFFER TO EXCHANGE UP TO
[ENTERPRISE $350,000,000 OF 6.375% SERIES A SENIOR NOTES DUE 2013
PRODUCTS THAT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
PARTNERS L.P. 1933
LOGO]
FOR
$350,000,000 OF 6.375% SERIES B SENIOR NOTES DUE 2013
THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
TERMS OF THE EXCHANGE OFFER
- - We are offering to exchange up to $350,000,000 of our outstanding 6.375%
Senior Notes due 2013 for another series of notes, which we will call exchange
notes, with substantially identical terms, except that transfer restrictions
and registration rights relating to the outstanding notes will not apply to
the exchange notes.
- - We will exchange all outstanding notes that you validly tender and do not
validly withdraw before the exchange offer expires for an equal principal
amount of exchange notes.
- - The exchange offer expires at 5:00 p.m., New York City time, on ,
2003, unless extended. We do not currently intend to extend the exchange
offer.
- - Tenders of outstanding notes may be withdrawn at any time prior to the
expiration of the exchange offer.
- - The exchange of outstanding notes for exchange notes will not be a taxable
event for U.S. federal income tax purposes.
TERMS OF THE 6.375% SERIES B SENIOR NOTES OFFERED IN THE EXCHANGE OFFER
MATURITY
- - The exchange notes will mature on February 1, 2013.
INTEREST
- - Interest on the exchange notes is payable on February 1 and August 1 of each
year, beginning August 1, 2003.
- - Interest will accrue from January 22, 2003.
REDEMPTION
- - We may redeem the exchange notes for cash, in whole, at any time, or in part,
from time to time, prior to maturity, at a redemption price that includes
accrued and unpaid interest and a make-whole premium.
RANKING
- - The exchange notes, like the outstanding notes, will be the unsecured and
unsubordinated obligations of Enterprise Products Operating L.P. and will be
fully and unconditionally guaranteed by our parent, Enterprise Products
Partners L.P. The exchange notes will rank equally in contractual right of
payment with all of our other unsubordinated senior indebtedness.
GUARANTEE
- - If we cannot make payment on the notes when they are due, our parent,
Enterprise Products Partners L.P., has guaranteed the notes and must make
payment instead.
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PLEASE READ "RISK FACTORS" BEGINNING ON PAGE 5 FOR A DISCUSSION OF FACTORS YOU
SHOULD CONSIDER BEFORE PARTICIPATING IN THE EXCHANGE OFFER.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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THE DATE OF THIS PROSPECTUS IS , 2003.
This prospectus is part of a registration statement we filed with the
Securities and Exchange Commission, or the Commission. In making your investment
decision, you should rely only on the information contained in this prospectus
and in the accompanying letter of transmittal included in this prospectus as
Annex A. We have not authorized anyone to provide you with any other
information. If you receive any unauthorized information, you must not rely on
it. We are not making an offer to sell these securities in any state where the
offer is not permitted. You should not assume that the information contained in
this prospectus, or the documents incorporated by reference into this
prospectus, is accurate as of any date other than the date on the front cover of
this prospectus or the date of such document, as the case may be.
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TABLE OF CONTENTS
SUMMARY..................................................... 1
RISK FACTORS................................................ 5
USE OF PROCEEDS............................................. 9
RATIO OF EARNINGS TO FIXED CHARGES.......................... 9
EXCHANGE OFFER.............................................. 11
DESCRIPTION OF EXCHANGE NOTES............................... 19
FEDERAL INCOME TAX CONSIDERATIONS........................... 31
PLAN OF DISTRIBUTION........................................ 32
LEGAL MATTERS............................................... 33
EXPERTS..................................................... 33
WHERE YOU CAN FIND MORE INFORMATION......................... 33
INFORMATION REGARDING FORWARD-LOOKING STATEMENTS............ 34
LETTER OF TRANSMITTAL....................................... ANNEX A
Our parent, Enterprise Products Partners L.P., is a publicly traded limited
partnership that conducts all of its business through us. Unless the context
requires otherwise, references in this prospectus to "we," "us" or "our" are
intended to refer to Enterprise Products Partners L.P., Enterprise Products
Operating L.P. and our subsidiaries. When we use "Enterprise Products Partners"
or "guarantor," we are referring to the guarantor of the outstanding notes and
the exchange notes, Enterprise Products Partners L.P.
i
SUMMARY
This summary highlights information included or incorporated by reference
in this prospectus. It may not contain all of the information that is important
to you. This prospectus includes information about the exchange offer and
includes or incorporates by reference information about our business and our
financial and operating data. Before deciding to participate in the exchange
offer, you should read this entire prospectus carefully, including the financial
data and related notes incorporated by reference in this prospectus and the
"Risk Factors" section beginning on page 5 of this prospectus.
THE COMPANY
We are a leading North American midstream energy company that provides a
wide range of services to producers and consumers of natural gas and natural gas
liquids, or NGLs. NGLs are used by the petrochemical and refining industries to
produce plastics, motor gasoline and other industrial fuels. Our asset platform
in the Gulf Coast region, combined with our recently acquired Mid-America and
Seminole pipeline systems, creates the only integrated natural gas and NGL
transportation, fractionation, processing, storage and import/export network in
North America. We provide integrated services to our customers and generate
fee-based cash flow from multiple sources along our natural gas and NGL "value
chain."
Our executive offices are located at 2727 North Loop West, Houston, Texas
77008, and our telephone number is (713) 880-6500.
EXCHANGE OFFER
On January 22, 2003, we completed a private offering of the outstanding
notes. As part of the private offering, we entered in a registration rights
agreement with the initial purchasers of the outstanding notes in which we
agreed, among other things, to deliver this prospectus to you and to use our
reasonable efforts to complete the exchange offer within 210 days plus 45
business days after the date we issued the outstanding notes. The following is a
summary of the exchange offer.
Exchange Offer................ We are offering to exchange exchange notes for
outstanding notes.
Expiration Date............... The exchange offer will expire at 5:00 p.m.,
New York City time, on , 2003, unless
we decide to extend it.
Condition to the Exchange
Offer......................... The registration rights agreement does not
require us to accept outstanding notes for
exchange if the exchange offer or the making of
any exchange by a holder of outstanding notes
would violate any applicable law or
interpretation of the staff of the Commission.
A minimum aggregate principal amount of
outstanding notes being tendered is not a
condition to the exchange offer.
Procedures for Tendering
Outstanding Notes............. To participate in the exchange offer, you must
follow the automatic tender offer program, or
ATOP, procedures established by The Depository
Trust Company, or DTC, for tendering notes held
in book-entry form. The ATOP procedures require
that the exchange agent receive, prior to the
expiration date of the exchange offer, a
computer generated message known as an "agent's
message" that is transmitted through ATOP and
that DTC confirm that:
- DTC has received instructions to exchange
your notes; and
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- you agree to be bound by the terms of the
letter of transmittal.
For more details, please read "Exchange
Offer -- Terms of the Exchange Offer" and
"Exchange Offer -- Procedures for Tendering."
Guaranteed Delivery
Procedures.................... None.
Withdrawal of Tenders......... You may withdraw your tender of outstanding
notes at any time prior to the expiration date.
To withdraw, you must submit a notice of
withdrawal to exchange agent using ATOP
procedures before 5:00 p.m., New York City
time, on the expiration date of the exchange
offer. Please read "Exchange
Offer -- Withdrawal of Tenders."
Acceptance of Outstanding
Notes and Delivery of Exchange
Notes......................... If you fulfill all conditions required for
proper acceptance of outstanding notes, we will
accept any and all outstanding notes that you
properly tender in the exchange offer on or
before 5:00 p.m., New York City time, on the
expiration date. We will return any outstanding
note that we do not accept for exchange to you
without expense as promptly as practicable
after the expiration date. We will deliver the
exchange notes as promptly as practicable after
the expiration date and acceptance of the
outstanding notes for exchange. Please read
"Exchange Offer -- Terms of the Exchange
Offer."
Fees and Expenses............. We will bear all expenses related to the
exchange offer. Please read "Exchange
Offer -- Fees and Expenses."
Use of Proceeds............... The issuance of the exchange notes will not
provide us with any new proceeds. We are making
this exchange offer solely to satisfy our
obligations under our registration rights
agreement.
Consequences of Failure to
Exchange Outstanding Notes.... If you do not exchange your outstanding notes
in this exchange offer, you will no longer be
able to require us to register the outstanding
notes under the Securities Act, except in the
limited circumstances provided under our
registration rights agreement. In addition, you
will not be able to resell, offer to resell or
otherwise transfer the outstanding notes unless
we have registered the outstanding notes under
the Securities Act, or unless you resell, offer
to resell or otherwise transfer them under an
exemption from the registration requirements
of, or in a transaction not subject to, the
Securities Act.
U.S. Federal Income Tax
Considerations................ The exchange of exchange notes for outstanding
notes in the exchange offer should not be a
taxable event for U.S. federal income tax
purposes. Please read "Federal Income Tax
Considerations."
Exchange Agent................ We have appointed Wachovia Bank, National
Association as exchange agent for the exchange
offer. You should direct questions and requests
for assistance and requests for additional
2
copies of this prospectus (including the letter
of transmittal) to the exchange agent addressed
as follows:
Wachovia Bank, National Association
Customer Information Center
Corporate Trust Operations -- NC1153
1525 West W.T. Harris Blvd., 3C3
Charlotte, North Carolina 28288.
Eligible institutions may make requests by
facsimile at (704) 590-7628.
TERMS OF THE EXCHANGE NOTES
The exchange notes will be identical to the outstanding notes, except that
the exchange notes are registered under the Securities Act and will not have
restrictions on transfer, registration rights or provisions for additional
interest and will contain different administrative terms. The exchange notes
will evidence the same debt as the outstanding notes, and the same indenture
will govern the exchange notes and the outstanding notes.
The following summary contains basic information about the exchange notes
and is not intended to be complete. It does not contain all the information that
is important to you. For a more complete understanding of the exchange notes,
please read "Description of Exchange Notes."
Issuer........................ Enterprise Products Operating L.P.
Securities Offered............ $350,000,000 principal amount of 6.375% Series
B Senior Notes due 2013.
Interest Payment Dates........ Interest on the exchange notes will be paid
semi-annually in arrears on February 1 and
August 1 of each year, commencing August 1,
2003.
Maturity...................... February 1, 2013.
Guarantee..................... The exchange notes will be fully and
unconditionally guaranteed by Enterprise
Products Partners, as guarantor, on an
unsecured and unsubordinated basis.
Optional Redemption........... We may redeem the exchange notes for cash, in
whole, at any time, or in part, from time to
time, prior to maturity, at a redemption price
that includes accrued and unpaid interest and a
make-whole premium. Please read "Description of
Exchange Notes -- Optional Redemption."
Ranking....................... The exchange notes will be our unsecured and
unsubordinated obligations and will rank
equally with all of our other existing and
future senior unsubordinated indebtedness.
Please read "Description of Exchange
Notes -- Ranking."
Certain Covenants............. We issued the outstanding notes, and will issue
the exchange notes, under an indenture with
Wachovia Bank, National Association, as
trustee. The indenture covenants include a
limitation on liens and a restriction on
sale-leasebacks. Each covenant is subject to a
number of important exceptions, limitations and
qualifications that are described under
"Description of Exchange Notes -- Certain
Covenants."
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Transfer Restrictions; Absence
of a Public Market for the
Notes......................... The exchange notes generally will be freely
transferable, but will also be new securities
for which there will not initially be a market.
There can be no assurance as to the development
or liquidity of any market for the exchange
notes.
Form of Exchange Notes........ The exchange notes will be represented by one
global note. The global exchange note will be
deposited with the trustee, as custodian for
DTC.
The global exchange note will be shown on, and
transfers of such global exchange note will be
effected only through, records maintained in
book-entry form by DTC and its direct and
indirect participants.
Same-Day Settlement........... The exchange notes will trade in DTC's Same Day
Funds Settlement System until maturity or
redemption. Therefore, secondary market trading
activity in the exchange notes will be settled
in immediately available funds.
Trading....................... We do not expect to list the exchange notes for
trading on any securities exchange.
Trustee, Registrar and
Exchange Agent................ Wachovia Bank, National Association.
Governing Law................. The exchange notes and the indenture will be
governed by, and construed in accordance with,
the laws of the State of New York.
RISK FACTORS
Please read "Risk Factors," beginning on page 5 of this prospectus, for a
discussion of certain factors that you should consider before participating in
the exchange offer.
4
RISK FACTORS
In addition to the other information set forth elsewhere or incorporated by
reference in this prospectus, you should consider carefully the risks described
below before deciding whether to participate in the exchange offer.
AFTER INCURRING ADDITIONAL INDEBTEDNESS TO FINANCE THE MID-AMERICA AND
SEMINOLE ACQUISITIONS, WE HAVE SUBSTANTIAL LEVERAGE THAT MAY RESTRICT OUR
FUTURE FINANCIAL AND OPERATING FLEXIBILITY.
Our leverage is significant in relation to our partners' capital. At
September 30, 2002, on a pro forma basis after giving effect to our equity
offerings in October 2002 and January 2003 and to the offering of the
outstanding notes in January 2003, our total outstanding debt, which represented
approximately 57.6% of our total capitalization, was approximately $2.1 billion.
This debt includes $421.3 million outstanding under the term loan we incurred in
July 2002 to finance the Mid-America and Seminole acquisitions, which will
mature on July 30, 2003. For a description of our other debt obligations, please
read "Management's Discussion and Analysis of Financial Condition and Results of
Operations -- Our liquidity and capital resources -- Our debt obligations" in
our Quarterly Report on Form 10-Q for the period ended September 30, 2002.
Debt service obligations, restrictive covenants and maturities resulting
from this leverage may adversely affect our ability to finance future
operations, pursue acquisitions and fund other capital needs, and may make our
results of operations more susceptible to adverse economic or operating
conditions. Our ability to repay, extend or refinance our existing debt
obligations and the notes and to obtain future credit will depend primarily on
our operating performance, which will be affected by general economic,
financial, competitive, legislative, regulatory, business and other factors,
many of which are beyond our control.
We currently expect to meet our anticipated future cash requirements,
including scheduled debt repayments, through operating cash flow, proceeds from
this offering and the proceeds of one or more future equity or debt offerings.
However, our ability to access the capital markets for future offerings may be
limited by adverse market conditions resulting from, among other things, general
economic conditions, contingencies and uncertainties that are difficult to
predict and beyond our control. If we are unable to access the capital markets
for future offerings, we might be forced to seek extensions for some of our
short-term maturities or to refinance some of our debt obligations through bank
credit, as opposed to long-term public debt securities or equity securities. The
price and terms upon which we might receive such extensions or additional bank
credit could be more onerous than those contained in our existing debt
agreements. Any such arrangements could, in turn, increase the risk that our
leverage may adversely affect our future financial and operating flexibility.
THE PROFITABILITY OF OUR OPERATIONS DEPENDS UPON THE SPREAD BETWEEN NGL
PRODUCT PRICES AND NATURAL GAS PRICES.
NGL product prices and natural gas prices are subject to fluctuations in
response to changes in supply, market uncertainty and a variety of additional
factors that are beyond our control. These factors include:
- the level of domestic production;
- the availability of imported oil and gas;
- actions taken by foreign oil and gas producing nations;
- the availability of transportation systems with adequate capacity;
- the availability of competitive fuels;
- fluctuating and seasonal demand for oil, gas and NGLs; and
- conservation and the extent of governmental regulation of production and
the overall economic environment.
5
A decrease in the difference between NGL product prices and natural gas
prices results in lower margins on volumes processed.
Our Processing segment is directly exposed to commodity price risks, as we
take title to NGLs and are obligated under certain of our gas processing
contracts to pay market value for the energy extracted from the natural gas
stream. We are exposed to various risks, primarily that of commodity price
fluctuations in response to changes in supply, market uncertainty and a variety
of additional factors that are beyond our control. These pricing risks cannot be
completely hedged or eliminated, and any attempt to hedge pricing risks may
expose us to financial losses.
THE PROFITABILITY OF OUR OPERATIONS DEPENDS UPON THE DEMAND AND PRICES FOR OUR
PRODUCTS AND SERVICES.
The products that we process are principally used as feedstocks in
petrochemical manufacturing and in the production of motor gasoline and as fuel
for residential and commercial heating. A reduction in demand for our products
by the petrochemical, refining or heating industries, whether because of general
economic conditions, reduced demand by consumers for the end products made with
NGL products, increased competition from petroleum-based products due to pricing
differences, adverse weather conditions, government regulations affecting prices
and production levels of natural gas or the content of motor gasoline or other
reasons, could adversely affect our results of operations.
Ethane. Ethane is primarily used in the petrochemical industry as
feedstock for ethylene, one of the basic building blocks for a wide range of
plastics and other chemical products. Although ethane is typically separated
from the natural gas stream at gas processing plants, if natural gas prices
increase significantly in relation to NGL product prices or if the demand for
ethylene falls, it may be more profitable for natural gas producers to leave the
ethane in the natural gas stream to be burned as fuel than to extract the ethane
from the mixed NGL stream for sale as an ethylene feedstock thereby reducing the
volume of NGLs for fractionation.
Propane. Propane is used both as a petrochemical feedstock in the
production of ethylene and propylene and as a heating, engine and industrial
fuel. The demand for propane as a heating fuel is significantly affected by
weather conditions. The volume of propane sold is at its highest during the six-
month peak heating season of October through March.
Isobutane. Isobutane is predominantly used in refineries to produce
alkylates to enhance octane levels and in the production of MTBE, which is used
in motor gasoline. Accordingly, any action that reduces demand for motor
gasoline in general or MTBE in particular may similarly reduce demand for
isobutane. Further, we purchase a portion of the normal butane feedstock that we
convert into isobutane for our merchant customers in the spot and import
markets. On those occasions where the pricing differential between isobutane and
normal butane is narrow, we may find it more economical to purchase isobutane on
the spot market for delivery to customers than to process the normal butane in
our inventory. We frequently retain the normal butane in our inventory until
pricing differentials improve or until product prices increase. However, if the
price of normal butane declines, our inventory may decline in value. During
periods in which isobutane spreads are narrow or inventory values are high
relative to current prices for normal butane or isobutane, our operating margin
from selling isobutane will be reduced.
MTBE. Our Octane Enhancement segment represents our minority investment in
BEF, which currently produces methyl tertiary butyl ether, or MTBE. The
production of MTBE is driven by oxygenated fuels programs enacted under the
federal Clean Air Amendments of 1990, other legislation and by demand for MTBE
as a source of octane and motor gasoline enhancement. On March 25, 1999, the
Governor of California ordered the phase-out of MTBE in California based on
allegations by several public advocacy and protest groups that MTBE contaminates
water supplies, causes health problems and has not been as beneficial in
reducing air pollution as originally contemplated. California's deadline for the
complete phase-out of MTBE is December 31, 2003. At least twelve other states
are following California's lead and either have banned or currently are
considering legislation to ban MTBE. Congress also is contemplating a federal
ban on MTBE. On April 25, 2002, the Senate approved an energy bill that in part
would ban the use of MTBE within four years of enactment and require the use of
ethanol as a substitute
6
for MTBE. Several oil companies have taken an early initiative to phase out the
production of MTBE in response to this legislative pressure and the possibility
of additional groundwater contamination lawsuits. If MTBE is banned or if its
use is significantly limited, the revenues we derive from our Octane Enhancement
segment may be materially reduced or eliminated.
Propylene. Propylene is sold to petrochemical companies for a variety of
uses, principally for the production of polypropylene. Propylene is subject to
rapid and material price fluctuations. Any downturn in the domestic or
international economy could cause reduced demand for, and result in an
oversupply of, propylene, which could cause a reduction in the volumes of
propylene that we produce and expose our investment in inventories of
propane/propylene mix to pricing risk due to requirements for short-term price
discounts in the spot or short-term propylene markets.
THE PROFITABILITY OF OUR OPERATIONS DEPENDS UPON THE AVAILABILITY OF A SUPPLY
OF NGL FEEDSTOCK.
Our profitability is materially impacted by the volume of NGLs processed at
our facilities. A material decrease in natural gas production or crude oil
refining, as a result of depressed commodity prices or otherwise, or a decrease
in imports of mixed butanes, could result in a decline in the volume of NGLs
delivered to our facilities for processing, thereby reducing revenue and
operating income.
OUR BUSINESS REQUIRES EXTENSIVE CREDIT RISK MANAGEMENT THAT MAY NOT BE
ADEQUATE TO PROTECT AGAINST CUSTOMER NONPAYMENT.
As a result of business failures, revelations of material
misrepresentations and related financial restatements by several large,
well-known companies in various industries over the last year, there have been
significant disruptions and extreme volatility in the financial markets and
credit markets. Because of the credit intensive nature of the energy industry
and troubling disclosures by some large, diversified energy companies, the
energy industry has been especially impacted by these developments, with the
rating agencies downgrading a number of large energy-related companies.
Accordingly, in this environment we are exposed to an increased level of credit
and performance risk with respect to our customers. We cannot assure you that we
have adequately assessed the creditworthiness of our existing or future
customers or that there will not be an unanticipated deterioration in their
creditworthiness, which could have an adverse impact on us.
ACQUISITIONS AND EXPANSIONS MAY AFFECT OUR BUSINESS BY SUBSTANTIALLY INCREASING
THE LEVEL OF OUR INDEBTEDNESS AND CONTINGENT LIABILITIES AND INCREASING OUR
RISKS OF BEING UNABLE TO EFFECTIVELY INTEGRATE THESE NEW OPERATIONS.
From time to time, we evaluate and acquire assets and businesses that we
believe complement our existing operations. The Mid-America and Seminole
acquisitions represent significant acquisitions for us, and, as a result, we may
encounter difficulties integrating these acquisitions with our existing
businesses and our other recent acquisitions without a loss of employees or
customers, a loss of revenues, an increase in operating or other costs or other
difficulties. In addition, we may not be able to realize the operating
efficiencies, competitive advantages, cost savings or other benefits expected
from these acquisitions. Any future acquisitions may require substantial capital
or the incurrence of substantial indebtedness. As a result, our capitalization
and results of operations may change significantly following an acquisition, and
you will not have the opportunity to evaluate the economic, financial and other
relevant information that we will consider in determining the application of
these funds and other resources.
TERRORIST ATTACKS AIMED AT OUR FACILITIES COULD ADVERSELY AFFECT OUR BUSINESS.
Since the September 11, 2001 terrorist attacks on the United States, the
United States government has issued warnings that energy assets, including our
nation's pipeline infrastructure, may be the future target of terrorist
organizations. Any terrorist attack on our facilities, those of our customers
and, in some cases, those of other pipelines, could have a material adverse
effect on our business. An escalation of political tensions in the Middle East
and elsewhere, including the onset of United States military action or
7
a declaration of war, could result in increased volatility in the world's energy
markets and result in a material adverse effect on our business.
WE HAVE A HOLDING COMPANY STRUCTURE IN WHICH OUR SUBSIDIARIES CONDUCT OUR
OPERATIONS AND OWN OUR OPERATING ASSETS.
We are a holding company, and our subsidiaries conduct substantially all of
our operations and own substantially all of our operating assets. We have no
significant assets other than the partnership interests and the equity in our
subsidiaries. As a result, our ability to make required payments on the exchange
notes depends on the performance of our subsidiaries and their ability to
distribute funds to us. The ability of our subsidiaries to make distributions to
us may be restricted by, among other things, credit facilities and applicable
state partnership laws and other laws and regulations. Pursuant to the credit
facilities, we may be required to establish cash reserves for the future payment
of principal and interest on the amounts outstanding under the credit
facilities. If we are unable to obtain the funds necessary to pay the principal
amount at maturity of the exchange notes, we may be required to adopt one or
more alternatives, such as a refinancing of the exchange notes. We cannot assure
you that we would be able to refinance the exchange notes.
WE DO NOT HAVE THE SAME FLEXIBILITY AS OTHER TYPES OF ORGANIZATIONS TO
ACCUMULATE CASH, WHICH MAY LIMIT CASH AVAILABLE TO SERVICE THE EXCHANGE NOTES
OR TO REPAY THEM AT MATURITY.
Unlike a corporation, our partnership agreement requires us to distribute,
on a quarterly basis, 100% of our available cash to our unitholders of record
and our general partner. Available cash is generally all of our cash receipts
adjusted for cash distributions and net changes to reserves. Our general partner
will determine the amount and timing of such distributions and has broad
discretion to establish and make additions to our reserves or the reserves of
our operating partnership in amounts the general partner determines in its
reasonable discretion to be necessary or appropriate:
- to provide for the proper conduct of our business and the businesses of
our operating partnership (including reserves for future capital
expenditures and for our anticipated future credit needs),
- to provide funds for distributions to our unitholders and the general
partner for any one or more of the next four calendar quarters, or
- to comply with applicable law or any of our loan or other agreements.
Although our payment obligations to our unitholders are subordinate to our
payment obligations to you, the value of our units will decrease in direct
correlation with decreases in the amount we distribute per unit. Accordingly, if
we experience a liquidity problem in the future, we may not be able to issue
equity to recapitalize, to service the exchange notes or repay them at maturity.
With respect to the four quarters ended September 30, 2002, we distributed
$203.0 million to our unitholders.
IF YOU DO NOT PROPERLY TENDER YOUR OUTSTANDING NOTES, YOU WILL CONTINUE TO
HOLD UNREGISTERED OUTSTANDING NOTES, AND YOUR ABILITY TO TRANSFER OUTSTANDING
NOTES WILL BE ADVERSELY AFFECTED.
We will only issue exchange notes in exchange for outstanding notes that
you timely and properly tender. Therefore, you should allow sufficient time to
ensure timely delivery if the outstanding notes, and you should follow carefully
the instructions on how to tender your outstanding notes. Neither we nor the
exchange agent is required to tell you of any defects or irregularities with
respect to your tender of outstanding notes.
If you do not exchange your outstanding notes for exchange notes pursuant
to the exchange offer, the outstanding notes you hold will continue to be
subject to the existing transfer restrictions. In general, you may not offer or
sell the outstanding notes except under an exemption from, or in a transaction
not subject to, the Securities Act and applicable state securities laws. We do
not plan to register outstanding notes under the Securities Act unless our
registration rights agreement with the initial purchasers of the outstanding
notes requires us to do so.
8
IF AN ACTIVE TRADING MARKET DOES NOT DEVELOP FOR THE EXCHANGE NOTES, YOU MAY
BE UNABLE TO SELL THE EXCHANGE NOTES OR TO SELL THE EXCHANGE NOTES AT A PRICE
THAT YOU DEEM SUFFICIENT.
The exchange notes will be new securities for which there currently is no
established trading market. If a large number of holders of outstanding notes do
not tender outstanding notes or tender outstanding notes improperly, the limited
amount of exchange notes that would be issued and outstanding after we
consummate the exchange offer could adversely affect the development of a market
for these exchange notes.
USE OF PROCEEDS
The exchange offer is intended to satisfy our obligations under the
registration rights agreement. We will not receive any cash proceeds from the
issuance of the exchange notes in the exchange offer. In consideration for
issuing the exchange notes as contemplated by this prospectus, we will receive
outstanding notes in a like principal amount. The form and terms of the exchange
notes are identical in all respects to the form and terms of the outstanding
notes, except the exchange notes do not include certain transfer restrictions,
registration rights or provisions for additional interest and will contain
different administrative terms. Outstanding notes surrendered in exchange for
the exchange notes will be retired and cancelled and will not be reissued.
Accordingly, the issuance of the exchange notes will not result in any change in
our outstanding indebtedness.
RATIO OF EARNINGS TO FIXED CHARGES
The ratios of earnings to fixed charges for each of the periods indicated
are as follows:
NINE MONTHS
YEARS ENDED DECEMBER 31, ENDED
-------------------------------- SEPTEMBER 30,
COMPANY 1997 1998 1999 2000 2001 2002
- ------- ---- ---- ---- ---- ---- -------------
Enterprise Products Partners L.P............... 2.11 1.16 5.80 6.27 5.30 1.81
Enterprise Products Operating L.P.............. 2.13 1.16 5.86 6.34 5.34 1.84
These computations include us and our subsidiaries, and 50% or less equity
companies. For these ratios, "earnings" is the amount resulting from adding and
subtracting the following items.
Add the following:
- pre-tax income from continuing operations before adjustment for minority
interests in consolidated subsidiaries or income or loss from equity
investees;
- fixed charges;
- amortization of capitalized interest;
- distributed income of equity investees; and
- our share of pre-tax losses of equity investees for which charges arising
from guarantees are included in fixed charges.
From the total of the added items, subtract the following:
- interest capitalized;
- preference security dividend requirements of consolidated subsidiaries;
and
- minority interest in pre-tax income of subsidiaries that have not
incurred fixed charges.
9
The term "fixed charges" means the sum of the following:
- interest expensed and capitalized;
- amortized premiums, discounts and capitalized expenses related to
indebtedness;
- an estimate of the interest within rental expenses (equal to one-third of
rental expense); and
- preference security dividend requirements of consolidated subsidiaries.
10
EXCHANGE OFFER
We sold the outstanding notes on January 22, 2003, pursuant to the purchase
agreement dated as of January 16, 2003, by and among Enterprise Products
Operating, Enterprise Products Partners, Enterprise Products GP, LLC and the
initial purchasers named therein. The outstanding notes were subsequently
offered by the initial purchasers to qualified institutional buyers pursuant to
Rule 144A under the Securities Act.
PURPOSE AND EFFECT OF THE EXCHANGE OFFER
In connection with the issuance of the outstanding notes, we and the
initial purchasers entered into a registration rights agreement dated as of
January 22, 2003. Pursuant to the registration rights agreement, we agreed to:
- file with the Commission, no later than 120 days after the closing date
of the offering of the outstanding notes, an exchange offer registration
statement under the Securities Act for the exchange notes; and
- use our reasonable efforts to cause the exchange offer registration
statement for the exchange notes to become effective no later than 210
days after the closing date.
When the exchange offer registration statement is effective, we will offer
the holders of the outstanding notes who are able to make certain
representations described below the opportunity to exchange their notes for the
exchange notes in the exchange offer. The exchange offer will be open for a
period of at least 20 business days, ending no later than 45 business days after
the exchange offer registration statement becomes effective. During the exchange
offer period, we will exchange the exchange notes for all outstanding notes
properly surrendered and not withdrawn before the expiration date. The exchange
notes will be registered and the transfer restrictions, registration rights and
provisions for additional interest relating to the outstanding notes will not
apply to the exchange notes.
Under existing interpretations by the staff of the Commission, the exchange
notes generally will be freely transferable after the exchange offer without
further registration under the Securities Act, except that broker-dealers
receiving exchange notes in the exchange offer will be subject to a prospectus
delivery requirement with respect to resales of those exchange notes. The
Commission has taken the position that participating broker-dealers may fulfill
their prospectus delivery requirements with respect to the exchange notes (other
than a resale of an unsold allotment from the original sale of the notes) by
delivery of the prospectus contained in the exchange offer registration
statement. Under the registration rights agreement, we are required to allow
participating broker-dealers and other persons, if any, subject to similar
prospectus delivery requirements, to use this prospectus in connection with the
resale of such exchange notes. We have agreed to keep the exchange offer
registration statement effective for up to 210 days following consummation of
the exchange offer to permit resales of exchange notes acquired by
broker-dealers in after-market transactions.
If you wish to participate in the exchange offer, you will be required to
make certain representations, including representations that:
- any exchange notes received by you will be acquired in the ordinary
course of your business;
- you have no arrangement or understanding with any person to participate
in the distribution, within the meaning of the Securities Act, of the
outstanding notes or of the exchange notes; and
- you are not an affiliate, as defined in Rule 405 under the Securities
Act, of us, or if you are an affiliate, you will comply with the
registration and prospectus delivery requirements of the Securities Act
to the extent applicable.
If you are not a broker-dealer, you will be required to represent that you
are not engaged in, and do not intend to engage in, the distribution of the
exchange notes. If you are a broker-dealer that will receive exchange notes for
your own account in exchange for outstanding notes that you acquired as a result
of
11
market-making activities or other trading activities, you will be required to
acknowledge that you will deliver this prospectus in connection with any resale
of the exchange notes.
We have agreed that if:
- we are not permitted to consummate the exchange offer because it is not
permitted by applicable law or Commission policy;
- because of any changes in law or in currently prevailing interpretations
of the staff of the Commission, any holder (other than an initial
purchaser holding outstanding notes acquired directly from us) advises us
within 20 business days after the consummation of the exchange offer that
it is not permitted to participate in the exchange offer;
- any holder that participates in the exchange offer does not receive
exchange notes that may be sold without restriction under state and
federal securities laws (other than due solely to the status of such
holder as an affiliate of us or the guarantor) and requests us to include
the notes in a shelf registration statement within 20 business days after
the consummation of the exchange offer; or
- any of the initial purchasers at the time of the exchange offer holds
notes having, or likely to be determined to have, the status of an unsold
allotment in the initial distribution and requests us to include those
notes in a shelf registration statement within 20 business days after the
consummation of the exchange offer,
then we will file with the Commission a shelf registration statement covering
resales of the outstanding notes within 90 days of the request by any affected
holder of the outstanding notes. Holders who wish to sell their outstanding
notes under the shelf registration statement must satisfy certain conditions
relating to the provision of information in connection with the shelf
registration statement.
We will use our reasonable efforts to cause the shelf registration
statement to become effective on or prior to 180 days after the receipt of the
shelf registration request and to remain effective for a period ending on the
earlier of:
- the second anniversary of the closing date; or, if Rule 144(k) under the
Securities Act is amended to provide a shorter restrictive period, such
shorter period; or
- until there are no longer outstanding any securities eligible for
registration under the registration rights agreement.
A holder of the outstanding notes that sells the outstanding notes pursuant
to the shelf registration statement:
- generally will be required to be named as a selling securityholder in the
related prospectus and to deliver a prospectus to the purchaser of the
outstanding notes;
- will be subject to certain of the civil liability provisions of the
Securities Act in connection with such sales; and
- will be bound by the provisions of the registration rights agreement
applicable to that holder, including indemnification obligations.
We will pay additional interest on the outstanding notes, over and above
the stated interest rate, at a rate of 0.25% per year during the period any of
the following conditions exist:
- we have not filed the exchange offer registration statement or a shelf
registration statement within 120 days following the closing date of the
offering of the outstanding notes;
- we have not filed a shelf registration statement within 90 days following
a request to do so;
- the exchange offer registration statement is not declared effective by
the Commission within 210 days following the closing date of the offering
of the outstanding notes;
12
- a shelf registration statement is not declared effective within 180 days
following the request to file it;
- we have not issued exchange notes for all outstanding notes validly
tendered in accordance with the terms of the exchange offer on or prior
to 45 business days after the date on which the exchange offer
registration statement was declared effective; or
- the shelf registration statement has been declared effective but ceases
to be effective.
The foregoing circumstances under which we may be required to pay
additional interest are not cumulative. In no event will the additional interest
on the outstanding notes exceed 0.25% per year. Further, any additional interest
will cease to accrue when all of the events described above have been cured or
upon the expiration of the second anniversary of the closing date, or, if Rule
144(k) under the Securities Act is amended to provide a shorter restrictive
period, the applicable shorter period. Any additional interest shall cease to
accrue at any time that there are no notes outstanding that are subject to any
registration rights under the registration rights agreement. The receipt of
additional interest will be the sole monetary remedy available to a holder if we
fail to meet these obligations.
The description of the registration rights agreement contained in this
section is a summary only. For more information, you should review the
provisions of the registration rights agreement that we filed with the
Commission as an exhibit to the exchange offer registration statement of which
this prospectus is a part.
RESALE OF EXCHANGE NOTES
Based on no-action letters of the Commission staff issued to third parties,
we believe that exchange notes may be offered for resale, resold and otherwise
transferred by you without further compliance with the registration and
prospectus delivery provisions of the Securities Act if:
- you are not our "affiliate" within the meaning of Rule 405 under the
Securities Act;
- such exchange notes are acquired in the ordinary course of your business;
and
- you do not intend to participate in a distribution of the exchange notes.
The Commission, however, has not considered the exchange offer for the
exchange notes in the context of a no-action letter, and the Commission may not
make a similar determination as in the no-action letters issued to these third
parties.
If you tender in the exchange offer with the intention of participating in
any manner in a distribution of the exchange notes, you
- cannot rely on such interpretations by the Commission staff; and
- must comply with the registration and prospectus delivery requirements of
the Securities Act in connection with a secondary resale transaction.
Unless an exemption from registration is otherwise available, any security
holder intending to distribute exchange notes should be covered by an effective
registration statement under the Securities Act. The registration statement
should contain the selling security holder's information required by Item 507 of
Regulation S-K under the Securities Act.
This prospectus may be used for an offer to resell, resale or other
transfer of exchange notes only as specifically described in this prospectus. If
you are a broker-dealer, you may participate in the exchange offer only if you
acquired the outstanding notes as a result of market-making activities or other
trading activities. Each broker-dealer that receives exchange notes for its own
account in exchange for outstanding notes, where such outstanding notes were
acquired by such broker-dealer as a result of market-making activities or other
trading activities, must acknowledge by way of the letter of transmittal that it
will deliver this prospectus in connection with any resale of the exchange
notes. Please read "Plan of Distribution" for more details regarding the
transfer of exchange notes.
13
TERMS OF THE EXCHANGE OFFER
Subject to the terms and conditions described in this prospectus and in the
letter of transmittal, we will accept for exchange any outstanding notes
properly tendered and not withdrawn prior to 5:00 p.m., New York City time, on
the expiration date. We will issue exchange notes in principal amount equal to
the principal amount of outstanding notes surrendered in the exchange offer.
Outstanding notes may be tendered only for exchange notes and only in
denominations of $1,000 and integral multiples of $1,000.
The exchange offer is not conditioned upon any minimum aggregate principal
amount of outstanding notes being tendered in the exchange offer.
As of the date of this prospectus, $350,000,000 in aggregate principal
amount of the outstanding notes are outstanding. This prospectus is being sent
to DTC, the sole registered holder of the outstanding notes, and to all persons
that we can identify as beneficial owners of the outstanding notes. There will
be no fixed record date for determining registered holders of outstanding notes
entitled to participate in the exchange offer.
We intend to conduct the exchange offer in accordance with the provisions
of the registration rights agreement, the applicable requirements of the
Securities Act and the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission. Outstanding notes whose holders do not
tender for exchange in the exchange offer will remain outstanding and continue
to accrue interest. These outstanding notes will be entitled to the rights and
benefits such holders have under the indenture relating to the outstanding notes
and the registration rights agreement.
We will be deemed to have accepted for exchange properly tendered
outstanding notes when we have given oral or written notice of the acceptance to
the exchange agent and complied with the applicable provisions of the
registration rights agreement. The exchange agent will act as agent for the
tendering holders for the purposes of receiving the exchange notes from us.
If you tender outstanding notes in the exchange offer, you will not be
required to pay brokerage commissions or fees or, subject to the letter of
transmittal, transfer taxes with respect to the exchange of outstanding notes.
We will pay all charges and expenses, other than certain applicable taxes
described below, in connection with the exchange offer. Please read "-- Fees and
Expenses" for more details regarding fees and expenses incurred in connection
with the exchange offer.
We will return any outstanding notes that we do not accept for exchange for
any reason without expense to their tendering holder as promptly as practicable
after the expiration or termination of the exchange offer.
EXPIRATION DATE
The exchange offer will expire at 5:00 p.m., New York City time, on
, 2003, unless, in our sole discretion, we extend it.
EXTENSIONS, DELAYS IN ACCEPTANCE, TERMINATION OR AMENDMENT
We expressly reserve the right, at any time or various times, to extend the
period of time during which the exchange offer is open. We may delay acceptance
of any outstanding notes by giving oral or written notice of such extension to
their holders. During any such extensions, all outstanding notes previously
tendered will remain subject to the exchange offer, and we may accept them for
exchange.
To extend the exchange offer, we will notify the exchange agent orally or
in writing of any extension. We will notify the registered holders of
outstanding notes of the extension no later than 9:00 a.m., New York City time,
on the business day after the previously scheduled expiration date.
14
If any of the conditions described below under "-- Conditions to the
Exchange Offer" have not been satisfied, we reserve the right, in our sole
discretion
- to delay accepting for exchange any outstanding notes,
- to extend the exchange offer, or
- to terminate the exchange offer,
by giving oral or written notice of such delay, extension or termination to the
exchange agent. Subject to the terms of the registration rights agreement, we
also reserve the right to amend the terms of the exchange offer in any manner.
Any such delay in acceptance, extension, termination or amendment will be
followed as promptly as practicable by oral or written notice thereof to holders
of outstanding notes. If we amend the exchange offer in a manner that we
determine to constitute a material change, we will promptly disclose such
amendment by means of a prospectus supplement. The supplement will be
distributed to holders of the outstanding notes. Depending upon the significance
of the amendment and the manner of disclosure to holders, we will extend the
exchange offer if the exchange offer would otherwise expire during such period.
CONDITIONS TO THE EXCHANGE OFFER
We will not be required to accept for exchange, or exchange any exchange
notes for, any outstanding notes if the exchange offer, or the making of any
exchange by a holder of outstanding notes, would violate applicable law or any
applicable interpretation of the staff of the Commission. Similarly, we may
terminate the exchange offer as provided in this prospectus before accepting
outstanding notes for exchange in the event of such a potential violation.
We will not be obligated to accept for exchange the outstanding notes of
any holder that has not made to us the representations described under
"-- Purpose and Effect of the Exchange Offer," "-- Procedures for Tendering" and
"Plan of Distribution" and such other representations as may be reasonably
necessary under applicable Commission rules, regulations or interpretations to
allow us to use an appropriate form to register the exchange notes under the
Securities Act.
Additionally, we will not accept for exchange any outstanding notes
tendered, and will not issue exchange notes in exchange for any such outstanding
notes, if at such time any stop order has been threatened or is in effect with
respect to the exchange offer registration statement of which this prospectus
constitutes a part or the qualification of the indenture under the Trust
Indenture Act of 1939, or the TIA.
We expressly reserve the right to amend or terminate the exchange offer,
and to reject for exchange any outstanding notes not previously accepted for
exchange, upon the occurrence of any of the conditions to the exchange offer
specified above. We will give oral or written notice of any extension,
amendment, non-acceptance or termination to the holders of the outstanding notes
as promptly as practicable.
These conditions are for our sole benefit, and we may assert them or waive
them in whole or in part at any time or at various times in our sole discretion.
If we fail at any time to exercise any of these rights, this failure will not
mean that we have waived our rights. Each such right will be deemed an ongoing
right that we may assert at any time or at various times.
PROCEDURES FOR TENDERING
To participate in the exchange offer, you must properly tender your
outstanding notes to the exchange agent as described below. It is your
responsibility to properly tender your outstanding notes. We have the right to
waive any defects. However, we are not required to waive defects and are not
required to notify you of defects in your tender.
If you have any questions or need help in exchanging your outstanding
notes, please call the exchange agent whose address and phone number are
described in the section of this prospectus entitled "Where You Can Find More
Information."
15
All of the outstanding notes were issued in book-entry form, and all of the
outstanding notes are currently represented by a global certificate held by Cede
& Co. for the account of DTC. We have confirmed with DTC that the outstanding
notes may be tendered using ATOP. The exchange agent will establish an account
with DTC for purposes of the exchange offer promptly after the commencement of
the exchange offer, and DTC participants may electronically transmit their
acceptance of the exchange offer by causing DTC to transfer their outstanding
notes to the exchange agent using the ATOP procedures. In connection with the
transfer, DTC will send an "agent's message" to the exchange agent. The agent's
message will state that DTC has received instructions from the participant to
tender outstanding notes and that the participant agrees to be bound by the
terms of the letter of transmittal.
By using the ATOP procedures to exchange outstanding notes, you will not be
required to deliver a letter of transmittal to the exchange agent. However, you
will be bound by its terms just as if you had signed it.
There is no procedure for guaranteed late delivery of the outstanding
notes.
Determinations Under the Exchange Offer. We will determine in our sole
discretion all questions as to the validity, form, eligibility, time of receipt,
acceptance of tendered outstanding notes and withdrawal of tendered outstanding
notes. Our determination will be final and binding. We reserve the absolute
right to reject any outstanding notes not properly tendered or any outstanding
notes our acceptance of which would, in the opinion of our counsel, be unlawful.
We also reserve the right to waive any defect, irregularities or conditions of
tender as to particular outstanding notes. Our interpretation of the terms and
conditions of the exchange offer, including the instructions in the letter of
transmittal, will be final and binding on all parties. Unless waived, all
defects or irregularities in connection with tenders of outstanding notes must
be cured within such time as we shall determine. Although we intend to notify
holders of defects or irregularities with respect to tenders of outstanding
notes, neither we, the exchange agent nor any other person will incur any
liability for failure to give such notification. Tenders of outstanding notes
will not be deemed made until such defects or irregularities have been cured or
waived. Any outstanding notes received by the exchange agent that are not
properly tendered and as to which the defects or irregularities have not been
cured or waived will be returned to the tendering holder as soon as practicable
following the expiration date of the exchange offer.
When We Will Issue Exchange Notes. In all cases, we will issue exchange
notes for outstanding notes that we have accepted for exchange under the
exchange offer only after the exchange agent receives, prior to 5:00 p.m., New
York City time, on the expiration date,
- a book-entry confirmation of such outstanding notes into the exchange
agent's account at DTC; and
- a properly transmitted agent's message.
Return of Outstanding Notes Not Accepted or Exchanged. If we do not accept
any tendered outstanding notes for exchange or if outstanding notes are
submitted for a greater principal amount than the holder desires to exchange,
the unaccepted or non-exchanged outstanding notes will be returned without
expense to their tendering holder. Such non-exchanged outstanding notes will be
credited to an account maintained with DTC. These actions will occur as promptly
as practicable after the expiration or termination of the exchange offer.
Your Representations to Us. By agreeing to be bound by the letter of
transmittal, you will represent to us that, among other things:
- any exchange notes that you receive will be acquired in the ordinary
course of your business;
- you have no arrangement or understanding with any person or entity to
participate in the distribution of the exchange notes;
- you are not engaged in and do not intend to engage in the distribution of
the exchange notes;
- if you are a broker-dealer that will receive exchange notes for your own
account in exchange for outstanding notes, you acquired those outstanding
notes as a result of market-making activities or
16
other trading activities and you will deliver this prospectus, as
required by law, in connection with any resale of the exchange notes; and
- you are not our "affiliate," as defined in Rule 405 under the Securities
Act.
WITHDRAWAL OF TENDERS
Except as otherwise provided in this prospectus, you may withdraw your
tender at any time prior to 5:00 p.m., New York City time, on the expiration
date. For a withdrawal to be effective you must comply with the appropriate ATOP
procedures. Any notice of withdrawal must specify the name and number of the
account at DTC to be credited with withdrawn outstanding notes and otherwise
comply with the ATOP procedures.
We will determine all questions as to the validity, form, eligibility and
time of receipt of notice of withdrawal. Our determination shall be final and
binding on all parties. We will deem any outstanding notes so withdrawn not to
have been validly tendered for exchange for purposes of the exchange offer.
Any outstanding notes that have been tendered for exchange but that are not
exchanged for any reason will be credited to an account maintained with DTC for
the outstanding notes. This return or crediting will take place as soon as
practicable after withdrawal, rejection of tender, expiration or termination of
the exchange offer. You may retender properly withdrawn outstanding notes by
following the procedures described under "-- Procedures for Tendering" above at
any time on or prior to the expiration date.
FEES AND EXPENSES
We will bear the expenses of soliciting tenders. The principal solicitation
is being made by mail; however, we may make additional solicitation by
telegraph, telephone or in person by our officers and regular employees and
those of our affiliates.
We have not retained any dealer-manager in connection with the exchange
offer and will not make any payments to broker-dealers or others soliciting
acceptances of the exchange offer. We will, however, pay the exchange agent
reasonable and customary fees for its services and reimburse it for its related
reasonable out-of-pocket expenses.
We will pay the cash expenses to be incurred in connection with the
exchange offer. They include:
- Commission registration fees;
- fees and expenses of the exchange agent and trustee;
- accounting and legal fees and printing costs; and
- related fees and expenses.
TRANSFER TAXES
We will pay all transfer taxes, if any, applicable to the exchange of
outstanding notes under the exchange offer. The tendering holder, however, will
be required to pay any transfer taxes, whether imposed on the registered holder
or any other person, if a transfer tax is imposed for any reason other than the
exchange of outstanding notes under the exchange offer.
CONSEQUENCES OF FAILURE TO EXCHANGE
If you do not exchange notes for your outstanding notes under the exchange
offer, you will remain subject to the existing restrictions on transfer of the
outstanding notes. In general, you may not offer or sell the outstanding notes
unless they are registered under the Securities Act or unless the offer or sale
is exempt from registration under the Securities Act and applicable state
securities laws. Except as required
17
by the registration rights agreement, we do not intend to register resales of
the outstanding notes under the Securities Act.
ACCOUNTING TREATMENT
We will record the exchange notes in our accounting records at the same
carrying value as the outstanding notes. This carrying value is the aggregate
principal amount of the outstanding notes less any bond discount, as reflected
in our accounting records on the date of exchange. Accordingly, we will not
recognize any gain or loss for accounting purposes in connection with the
exchange offer.
OTHER
Participation in the exchange offer is voluntary, and you should consider
carefully whether to accept. You are urged to consult your financial and tax
advisors in making your own decision on what action to take.
We may in the future seek to acquire untendered outstanding notes in open
market or privately negotiated transactions, through subsequent exchange offers
or otherwise. We have no present plans to acquire any outstanding notes that are
not tendered in the exchange offer or to file a registration statement to permit
resales of any untendered outstanding notes.
18
DESCRIPTION OF EXCHANGE NOTES
The exchange notes will be issued and the outstanding notes were issued
under an Indenture dated as of March 15, 2000 among Enterprise Products
Operating L.P., as issuer (the "Issuer"), Enterprise Products Partners L.P., as
guarantor (the "Guarantor"), and Wachovia Bank, National Association (formerly
known as First Union National Bank), as trustee (the "Trustee"), as supplemented
by a supplemental indenture creating the exchange notes (the "Indenture").
This Description of Exchange Notes is intended to be a useful overview of
the material provisions of the exchange notes, the guarantee and the Indenture.
Since this Description of Exchange Notes is only a summary, you should refer to
the exchange notes, the guarantee and the Indenture, forms of which are
available from us, for a complete description of our obligations and your
rights.
References in this Description of Exchange Notes to the "Issuer," "we" or
"us" mean only Enterprise Products Operating L.P. and not its subsidiaries.
References to the "Guarantor" mean only Enterprise Products Partners L.P. and
not its subsidiaries. References to the "notes" in this section of the
prospectus include both the outstanding notes issued on January 22, 2003 and the
exchange notes.
The exchange notes, together with the outstanding notes, will constitute a
single series of debt securities under the Indenture for voting purposes. If the
exchange offer is consummated, holders of outstanding notes who do not exchange
their notes for exchange notes will vote together with the holders of the
exchange notes for all relevant purposes under the Indenture. In that regard,
the Indenture requires that certain actions by the holders under the Indenture
(including acceleration after an Event of Default) must be taken, and certain
rights must be exercised, by specified minimum percentages of the aggregate
principal amount of all outstanding debt securities issued under the Indenture
or of a specified series of debt securities issued under the Indenture. In
determining whether holders of the requisite percentage in principal amount have
given any notice, consent or waiver or taken any other action permitted under
the Indenture, any outstanding notes that remain outstanding after the exchange
offer will be aggregated with the exchange notes, and the holders of the
outstanding notes and the exchange notes shall vote together as a single series
for all such purposes. Accordingly, all references in this Description of
Exchange Notes to specified percentages in aggregate principal amount of the
outstanding notes shall be deemed to mean, at any time after the exchange offer
for the outstanding notes is consummated, such percentage in aggregate principal
amount of the outstanding notes and the exchange notes then outstanding. In
addition to the outstanding notes, there are currently outstanding under the
Indenture $350 million in aggregate principal amount of 8.25% Senior Notes due
2005 and $450 million in aggregate principal amount of 7.50% Senior Notes due
2011.
GENERAL
The Notes. The notes:
- are general unsecured, senior obligations of the Issuer;
- constitute a new series of debt securities issued under the Indenture and
will be initially limited to an aggregate principal amount of $350
million;
- mature on February 1, 2013;
- are issued in denominations of $1,000 and integral multiples of $1,000;
- are represented by one or more notes in global form registered initially
in the name of Cede & Co., as nominee of DTC, or such other name as may
be requested by an authorized representative of DTC, and deposited with
the Trustee as custodian for DTC. In certain circumstances the notes may
be represented in definitive form; and
- are fully and unconditionally guaranteed on an unsecured, unsubordinated
basis by the Guarantor. See "-- Guarantee."
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Interest. Interest on the notes will:
- accrue at the rate of 6.375% per annum;
- accrue from January 22, 2003 or the most recent interest payment date;
- be payable in cash semi-annually in arrears on February 1 and August 1 of
each year, commencing August 1, 2003;
- be payable to holders of record on the January 15 and July 15 immediately
preceding the related interest payment dates; and
- be computed on the basis of a 360-day year consisting of twelve 30-day
months.
Payment and Transfer. Beneficial interests in notes in global form will be
shown on, and transfers of interests in notes in global form will be made only
through, records maintained by DTC and its participants. Notes in definitive
form, if any, may be registered, exchanged or transferred at the office or
agency maintained by us for such purpose (which initially will be the corporate
trust office of the Trustee located at 50 Broad Street, Suite 550, New York, New
York 10004).
Payment of principal of, premium, if any, and interest on notes in global
form registered in the name of or held by DTC or its nominee will be made in
immediately available funds to DTC or its nominee, as the case may be, as the
registered holder of such global note. If any of the notes are no longer
represented by global notes, payment of interest on the notes in definitive form
may, at our option, be made at the principal corporate trust office of the
Trustee or by check mailed directly to registered holders at their registered
addresses or by wire transfer to an account designated by a registered holder.
No service charge will be made for any registration of transfer or exchange
of the notes, but we may require payment of a sum sufficient to cover any
transfer tax or other similar governmental charge payable in connection
therewith. We are not required to transfer or exchange any note selected for
redemption or for a period of 15 days before a selection of notes to be
redeemed.
The registered holder of a note will be treated as the owner of it for all
purposes, and all references in this Description of Exchange Notes to "holders"
mean holders of record, unless otherwise indicated.
Replacement of Notes. We will replace any mutilated, destroyed, stolen or
lost notes at the expense of the holder upon surrender of the mutilated notes to
the Trustee or evidence of destruction, loss or theft of a note satisfactory to
us and the Trustee. In the case of a destroyed, lost or stolen note, we may
require an indemnity satisfactory to the Trustee and to us before a replacement
note will be issued.
FURTHER ISSUANCES
We may from time to time, without notice or the consent of the holders of
the notes, create and issue further notes ranking equally and ratably with the
notes in all respects (or in all respects except for the payment of interest
accruing prior to the issue date of such further notes), so that such further
notes shall be consolidated and form a single series with the notes and shall
have the same terms as to status, redemption or otherwise as the notes.
OPTIONAL REDEMPTION
The notes will be redeemable, at our option, at any time in whole, or from
time to time in part, at a price equal to the greater of:
- 100% of the principal amount of the notes to be redeemed; or
- the sum of the present values of the remaining scheduled payments of
principal and interest (at the rate in effect on the date of calculation
of the redemption price) on the notes (exclusive of interest accrued to
the date of redemption) discounted to the date of redemption on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the applicable Treasury Yield plus 30 basis points;
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- plus, in either case, accrued interest to the date of redemption.
Notes called for redemption become due on the date fixed for redemption
(the "Redemption Date"). Notices of redemption will be mailed at least 30 but
not more than 60 days before the Redemption Date to each holder of the notes to
be redeemed at its registered address. The notice of redemption for the notes
will state, among other things, the amount of notes to be redeemed, the
Redemption Date, the redemption price (or the method of calculating it) and the
place(s) that payment will be made upon presentation and surrender of notes to
be redeemed. Unless we default in payment of the redemption price, interest will
cease to accrue on any notes that have been called for redemption at the
Redemption Date. If less than all the notes are redeemed at any time, the
Trustee will select the notes to be redeemed on a pro rata basis or by any other
method the Trustee deems fair and appropriate.
For purposes of determining the optional redemption price, the following
definitions are applicable:
"Treasury Yield" means, with respect to any Redemption Date applicable to
the notes, the rate per annum equal to the semi-annual equivalent yield to
maturity (computed as of the third business day immediately preceding such
Redemption Date) of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the applicable Comparable Treasury Price for such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Independent Investment Banker as having a maturity comparable to
the remaining term of the notes that would be utilized, at the time of selection
and in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining terms of the
notes.
"Independent Investment Banker" means Wachovia Securities, Inc. (and its
successors), or, if such firm is unwilling or unable to select the applicable
Comparable Treasury Issue, an independent investment banking institution of
national standing appointed by the Trustee and reasonably acceptable to the
Issuer.
"Comparable Treasury Price" means, with respect to any Redemption Date, (a)
the bid price for the Comparable Treasury Issue (expressed as a percentage of
its principal amount) at 4:00 p.m. on the third business day preceding such
Redemption Date, as set forth on "Telerate Page 500" (or such other page as may
replace Telerate Page 500), or (b) if such page (or any successor page) is not
displayed or does not contain such bid prices at such time, the average of the
Reference Treasury Dealer Quotations obtained by the Trustee for such Redemption
Date.
"Reference Treasury Dealer" means (a) Wachovia Securities, Inc. (and its
successors) and (b) one other primary U.S. government securities dealer in New
York City selected by the Independent Investment Banker (each, a "Primary
Treasury Dealer"); provided, however, that if either of the foregoing shall
cease to be a Primary Treasury Dealer, the Issuer will substitute therefor
another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date for the notes, an average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue for the notes (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by such Reference Treasury
Dealer at 5:00 p.m., New York City time, on the third business day preceding
such Redemption Date.
RANKING
The notes will be unsecured, unless we are required to secure them pursuant
to the limitations on liens covenant described below under "-- Certain
Covenants -- Limitation on Liens." The notes will also be the unsubordinated
obligations of the Issuer and will rank equally with all other existing and
future unsubordinated indebtedness of the Issuer. The guarantee will be an
unsecured and unsubordinated obligation of the Guarantor and will rank equally
with all other existing and future unsubordinated indebtedness of the Guarantor.
The notes and the guarantee will effectively rank junior to any future
indebtedness of the Issuer and the Guarantor that is both secured and
unsubordinated to the extent of the
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assets securing such indebtedness, and the notes will effectively rank junior to
all indebtedness and other liabilities of the Issuer's subsidiaries.
GUARANTEE
The Guarantor will fully and unconditionally guarantee to each holder and
the Trustee, on an unsecured and unsubordinated basis, the full and prompt
payment of principal of, premium, if any, and interest on the notes, when and as
the same become due and payable, whether at maturity, upon redemption, by
declaration of acceleration or otherwise.
NO SINKING FUND
We are not required to make mandatory redemption or sinking fund payments
with respect to the notes.
CERTAIN COVENANTS
Except as set forth below, neither the Issuer nor the Guarantor is
restricted by the Indenture from incurring any type of indebtedness or other
obligation, from paying dividends or making distributions on its partnership
interests or from purchasing or redeeming its partnership interests. The
Indenture does not require the maintenance of any financial ratios or specified
levels of net worth or liquidity. In addition, the Indenture does not contain
any provisions that would require the Issuer to repurchase or redeem or
otherwise modify the terms of any of the debt securities upon a change in
control or other events involving the Issuer which may adversely affect the
creditworthiness of the debt securities.
Limitations on Liens. The Guarantor will not, nor will it permit any
Subsidiary (as defined below) to, create, assume, incur or suffer to exist any
mortgage, lien, security interest, pledge, charge or other encumbrance ("liens")
other than Permitted Liens (as defined below) upon any Principal Property (as
defined below) or upon any shares of capital stock of any Subsidiary owning or
leasing any Principal Property, whether owned or leased on the date of the
Indenture or thereafter acquired, to secure any indebtedness for borrowed money
("debt") of the Guarantor or the Issuer or any other person (other than the
notes), without in any such case making effective provision whereby all of the
notes and other debt securities outstanding under the Indenture shall be secured
equally and ratably with, or prior to, such debt so long as such debt shall be
so secured.
In the Indenture, the term "Subsidiary" means:
(1) the Issuer; or
(2) any corporation, association or other business entity of which
more than 50% of the total voting power of the equity interests entitled
(without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof or any partnership of
which more than 50% of the partners' equity interests (considering all
partners' equity interests as a single class) is, in each case, at the time
owned or controlled, directly or indirectly, by the Guarantor, the Issuer
or one or more of the other Subsidiaries of the Guarantor or the Issuer or
combination thereof.
"Permitted Liens" means:
(1) liens upon rights-of-way for pipeline purposes;
(2) any statutory or governmental lien or lien arising by operation of
law, or any mechanics', repairmen's, materialmen's, suppliers', carriers',
landlords', warehousemen's or similar lien incurred in the ordinary course
of business which is not yet due or which is being contested in good faith
by appropriate proceedings and any undetermined lien which is incidental to
construction, development, improvement or repair; or any right reserved to,
or vested in, any municipality or public authority by the terms of any
right, power, franchise, grant, license, permit or by any provision of law,
to purchase or recapture or to designate a purchaser of, any property;
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(3) liens for taxes and assessments which are (a) for the then current
year, (b) not at the time delinquent, or (c) delinquent but the validity or
amount of which is being contested at the time by the Guarantor or any
Subsidiary in good faith by appropriate proceedings;
(4) liens of, or to secure performance of, leases, other than capital
leases; or any lien securing industrial development, pollution control or
similar revenue bonds;
(5) any lien upon property or assets acquired or sold by the Guarantor
or any Subsidiary resulting from the exercise of any rights arising out of
defaults on receivables;
(6) any lien in favor of the Guarantor or any Subsidiary; or any lien
upon any property or assets of the Guarantor or any Subsidiary in existence
on the date of the execution and delivery of the Indenture;
(7) any lien in favor of the United States of America or any state
thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any state thereof, to secure
partial, progress, advance, or other payments pursuant to any contract or
statute, or any debt incurred by the Guarantor or any Subsidiary for the
purpose of financing all or any part of the purchase price of, or the cost
of constructing, developing, repairing or improving, the property or assets
subject to such lien;
(8) any lien incurred in the ordinary course of business in connection
with workmen's compensation, unemployment insurance, temporary disability,
social security, retiree health or similar laws or regulations or to secure
obligations imposed by statute or governmental regulations;
(9) liens in favor of any person to secure obligations under
provisions of any letters of credit, bank guarantees, bonds or surety
obligations required or requested by any governmental authority in
connection with any contract or statute; or any lien upon or deposits of
any assets to secure performance of bids, trade contracts, leases or
statutory obligations;
(10) any lien upon any property or assets created at the time of
acquisition of such property or assets by the Guarantor or any Subsidiary
or within one year after such time to secure all or a portion of the
purchase price for such property or assets or debt incurred to finance such
purchase price, whether such debt was incurred prior to, at the time of or
within one year after the date of such acquisition; or any lien upon any
property or assets to secure all or part of the cost of construction,
development, repair or improvements thereon or to secure debt incurred
prior to, at the time of, or within one year after completion of such
construction, development, repair or improvements or the commencement of
full operations thereof (whichever is later), to provide funds for any such
purpose;
(11) any lien upon any property or assets existing thereon at the time
of the acquisition thereof by the Guarantor or any Subsidiary and any lien
upon any property or assets of a person existing thereon at the time such
person becomes a Subsidiary by acquisition, merger or otherwise; provided
that, in each case, such lien only encumbers the property or assets so
acquired or owned by such person at the time such person becomes a
Subsidiary;
(12) liens imposed by law or order as a result of any proceeding
before any court or regulatory body that is being contested in good faith,
and liens which secure a judgment or other court-ordered award or
settlement as to which the Guarantor or the applicable Subsidiary has not
exhausted its appellate rights;
(13) any extension, renewal, refinancing, refunding or replacement (or
successive extensions, renewals, refinancing, refunding or replacements) of
liens, in whole or in part, referred to in clauses (1) through (12) above;
provided, however, that any such extension, renewal, refinancing, refunding
or replacement lien shall be limited to the property or assets covered by
the lien extended, renewed, refinanced, refunded or replaced and that the
obligations secured by any such extension, renewal, refinancing, refunding
or replacement lien shall be in an amount not greater than the amount of
the obligations secured by the lien extended, renewed, refinanced, refunded
or replaced and any
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expenses of the Guarantor and its Subsidiaries (including any premium)
incurred in connection with such extension, renewal, refinancing, refunding
or replacement; or
(14) any lien resulting from the deposit of moneys or evidence of
indebtedness in trust for the purpose of defeasing debt of the Guarantor or
any Subsidiary.
"Principal Property" means, whether owned or leased on the date of the
Indenture or thereafter acquired:
(1) any pipeline assets of the Guarantor or any Subsidiary, including
any related facilities employed in the transportation, distribution,
storage or marketing of refined petroleum products, natural gas liquids,
and petrochemicals, that are located in the United States of America or any
territory or political subdivision thereof; and
(2) any processing or manufacturing plant or terminal owned or leased
by the Guarantor or any Subsidiary that is located in the United States or
any territory or political subdivision thereof,
except, in the case of either of the foregoing clauses (1) or (2):
(a) any such assets consisting of inventories, furniture, office
fixtures and equipment (including data processing equipment), vehicles
and equipment used on, or useful with, vehicles; and
(b) any such assets, plant or terminal which, in the opinion of the
board of directors of the General Partner, is not material in relation
to the activities of the Issuer or of the Guarantor and its Subsidiaries
taken as a whole.
Notwithstanding the preceding, under the Indenture, the Guarantor may, and
may permit any Subsidiary to, create, assume, incur, or suffer to exist any lien
upon any Principal Property to secure debt of the Guarantor, the Issuer or any
other person (other than debt securities issued under the Indenture) other than
a Permitted Lien without securing the debt securities, provided that the
aggregate principal amount of all debt then outstanding secured by such lien and
all similar liens, together with all Attributable Indebtedness from
Sale-Leaseback Transactions (excluding Sale-Leaseback Transactions permitted by
clauses (1) through (4), inclusive, of the first paragraph of the restriction on
sale-leasebacks covenant described below) does not exceed 10% of Consolidated
Net Tangible Assets.
"Consolidated Net Tangible Assets" means, at any date of determination, the
total amount of assets of the Guarantor and its Consolidated Subsidiaries after
deducting therefrom:
(1) all current liabilities (excluding (A) any current liabilities
that by their terms are extendable or renewable at the option of the
obligor thereon to a time more than 12 months after the time as of which
the amount thereof is being computed, and (B) current maturities of
long-term debt); and
(2) the value (net of any applicable reserves) of all goodwill, trade
names, trademarks, patents and other like intangible assets, all as set
forth, or on a pro forma basis would be set forth, on the consolidated
balance sheet of the Guarantor and its consolidated subsidiaries for the
Guarantor's most recently completed fiscal quarter, prepared in accordance
with generally accepted accounting principles.
Restriction on Sale-Leasebacks. The Guarantor will not, and will not
permit any Subsidiary to, engage in the sale or transfer by the Guarantor or any
Subsidiary of any Principal Property to a person (other than the Issuer or a
Subsidiary) and the taking back by the Guarantor or any Subsidiary, as the case
may be, of a lease of such Principal Property (a "Sale-Leaseback Transaction"),
unless:
(1) such Sale-Leaseback Transaction occurs within one year from the
date of completion of the acquisition of the Principal Property subject
thereto or the date of the completion of construction, development or
substantial repair or improvement, or commencement of full operations on
such Principal Property, whichever is later;
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(2) the Sale-Leaseback Transaction involves a lease for a period,
including renewals, of not more than three years;
(3) the Guarantor or such Subsidiary would be entitled to incur debt
secured by a lien on the Principal Property subject thereto in a principal
amount equal to or exceeding the Attributable Indebtedness from such
Sale-Leaseback Transaction without equally and ratably securing the notes;
or
(4) the Guarantor or such Subsidiary, within a one-year period after
such Sale-Leaseback Transaction, applies or causes to be applied an amount
not less than the Attributable Indebtedness from such Sale-Leaseback
Transaction to (a) the prepayment, repayment, redemption, reduction or
retirement of any debt of the Guarantor or any Subsidiary that is not
subordinated to the notes, or (b) the expenditure or expenditures for
Principal Property used or to be used in the ordinary course of business of
the Guarantor or its Subsidiaries. "Attributable Indebtedness," when used
with respect to any Sale-Leaseback Transaction, means, as at the time of
determination, the present value (discounted at the rate set forth or
implicit in the terms of the lease included in such transaction) of the
total obligations of the lessee for rental payments (other than amounts
required to be paid on account of property taxes, maintenance, repairs,
insurance, assessments, utilities, operating and labor costs and other
items that do not constitute payments for property rights) during the
remaining term of the lease included in such Sale-Leaseback Transaction
(including any period for which such lease has been extended). In the case
of any lease that is terminable by the lessee upon the payment of a penalty
or other termination payment, such amount shall be the lesser of the amount
determined assuming termination upon the first date such lease may be
terminated (in which case the amount shall also include the amount of the
penalty or termination payment, but no rent shall be considered as required
to be paid under such lease subsequent to the first date upon which it may
be so terminated) or the amount determined assuming no such termination.
Notwithstanding the preceding, under the Indenture the Guarantor may, and
may permit any Subsidiary to, effect any Sale-Leaseback Transaction that is not
excepted by clauses (1) through (4), inclusive, of the first paragraph under
"-- Restriction on Sale-Leasebacks," provided that the Attributable Indebtedness
from such Sale-Leaseback Transaction, together with the aggregate principal
amount of outstanding debt (other than debt securities issued under the
Indenture) secured by liens other than Permitted Liens upon Principal Property,
do not exceed 10% of Consolidated Net Tangible Assets.
Merger, Consolidation or Sale of Assets. The Indenture provides that each
of the Guarantor and the Issuer may, without the consent of the holders of any
of the notes, consolidate with or sell, lease, convey all or substantially all
of its assets to, or merge with or into, any partnership, limited liability
company or corporation if:
(1) the partnership, limited liability company or corporation formed
by or resulting from any such consolidation or merger or to which such
assets shall have been transferred (the "successor") is either the
Guarantor or the Issuer, as applicable, or assumes all the Guarantor's or
the Issuer's, as the case may be, obligations and liabilities under the
Indenture and the notes (in the case of the Issuer) and the Guarantee (in
the case of the Guarantor);
(2) the successor is organized under the laws of the United States,
any state or the District of Columbia;
(3) immediately after giving effect to the transaction no Default or
Event of Default shall have occurred and be continuing; and
(4) the Issuer and the Guarantor have delivered to the Trustee an
officers' certificate and an opinion of counsel, each stating that such
consolidation, merger or transfer complies with the Indenture.
The successor will be substituted for the Guarantor or the Issuer, as the
case may be, in the Indenture with the same effect as if it had been an original
party to the Indenture. Thereafter, the successor may exercise the rights and
powers of the Guarantor or the Issuer, as the case may be, under
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the Indenture, in its name or in its own name. If the Guarantor or the Issuer
sells or transfers all or substantially all of its assets, it will be released
from all liabilities and obligations under the Indenture and under the notes (in
the case of the Issuer) and the Guarantee (in the case of the Guarantor) except
that no such release will occur in the case of a lease of all or substantially
all of its assets.
EVENTS OF DEFAULT
Each of the following is an Event of Default under the Indenture with
respect to the notes:
(1) default in any payment of interest on the notes when due,
continued for 30 days;
(2) default in the payment of principal of or premium, if any, on the
notes when due at its stated maturity, upon optional redemption, upon
declaration, upon required repurchase or otherwise;
(3) failure by the Guarantor or the Issuer to comply for 60 days after
notice with its other agreements contained in the Indenture;
(4) certain events of bankruptcy, insolvency or reorganization of the
Issuer or the Guarantor (the "bankruptcy provisions"); or
(5) the Guarantee ceases to be in full force and effect or is declared
null and void in a judicial proceeding or the Guarantor denies or
disaffirms its obligations under the Indenture or the Guarantee.
However, a default under clause (3) of this paragraph will not constitute an
Event of Default until the Trustee or the holders of 25% in principal amount of
the outstanding notes notify the Issuer and the Guarantor of the default and
such default is not cured within the time specified in clause (3) of this
paragraph after receipt of such notice.
If an Event of Default (other than an Event of Default described in clause
(4) above) occurs and is continuing, the Trustee by notice to the Issuer, or the
holders of at least 25% in principal amount of the outstanding notes by notice
to the Issuer and the Trustee, may, and the Trustee at the request of such
holders shall, declare the principal of, premium, if any, and accrued and unpaid
interest, if any, on all the notes to be due and payable. Upon such a
declaration, such principal, premium and accrued and unpaid interest will be due
and payable immediately. If an Event of Default described in clause (4) above
occurs and is continuing, the principal of, premium, if any, and accrued and
unpaid interest on all the notes will become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any holders.
The holders of a majority in principal amount of the outstanding notes may waive
all past defaults (except with respect to nonpayment of principal, premium or
interest) and rescind any such acceleration with respect to the notes and its
consequences if rescission would not conflict with any judgment or decree of a
court of competent jurisdiction and all existing Events of Default, other than
the nonpayment of the principal of, premium, if any, and interest on the notes
that have become due solely by such declaration of acceleration, have been cured
or waived.
Subject to the provisions of the Indenture relating to the duties of the
Trustee, if an Event of Default occurs and is continuing, the Trustee will be
under no obligation to exercise any of the rights or powers under the Indenture
at the request or direction of any of the holders unless such holders have
offered to the Trustee reasonable indemnity or security against any loss,
liability or expense. Except to enforce the right to receive payment of
principal, premium, if any, or interest when due, no holder may pursue any
remedy with respect to the Indenture or the notes unless:
(1) such holder has previously given the Trustee notice that an Event
of Default is continuing;
(2) holders of at least 25% in principal amount of the outstanding
notes have requested the Trustee to pursue the remedy;
(3) such holders have offered the Trustee reasonable security or
indemnity against any loss, liability or expense;
26
(4) the Trustee has not complied with such request within 60 days
after the receipt of the request and the offer of security or indemnity;
and
(5) the holders of a majority in principal amount of the outstanding
notes have not given the Trustee a direction that, in the opinion of the
Trustee, is inconsistent with such request within such 60-day period.
Subject to certain restrictions, the holders of a majority in principal
amount of the outstanding notes are given the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or of exercising any trust or power conferred on the Trustee with respect to the
notes. The Trustee, however, may refuse to follow any direction that conflicts
with law or the Indenture or that the Trustee determines is unduly prejudicial
to the rights of any other holder or that would involve the Trustee in personal
liability. Prior to taking any action under the Indenture, the Trustee will be
entitled to such reasonable indemnification as it may require against all losses
and expenses caused by taking or not taking such action.
The Indenture provides that if a Default (that is, an event that is, or
after notice or the passage of time would be, an Event of Default) occurs and is
continuing and is known to the Trustee, the Trustee must mail to each holder
notice of the Default within 90 days after it occurs. Except in the case of a
Default in the payment of principal of, premium, if any, or interest on the
notes, the Trustee may withhold notice if and so long as a committee of trust
officers of the Trustee in good faith determines that withholding notice is in
the interests of the holders. In addition, the Issuer is required to deliver to
the Trustee, within 120 days after the end of each fiscal year, a certificate
indicating whether the signers thereof know of any Default that occurred during
the previous year. The Issuer also is required to deliver to the Trustee, within
30 days after the occurrence thereof, an officers' certificate specifying any
events which would constitute certain Defaults, their status and what action the
Issuer is taking or proposes to take in respect thereof.
AMENDMENTS AND WAIVERS
Modifications and amendments of the Indenture may be made by the Issuer,
the Guarantor and the Trustee with the consent of the holders of a majority in
principal amount of all debt securities of each series affected thereby then
outstanding under the Indenture (including consents obtained in connection with
a tender offer or exchange offer for the notes). However, without the consent of
each holder of outstanding notes, no amendment may, among other things:
(1) reduce the amount of notes whose holders must consent to an
amendment;
(2) reduce the stated rate of or extend the stated time for payment of
interest on any note;
(3) reduce the principal of or extend the stated maturity of any note;
(4) reduce the premium payable upon the redemption of any note or
change the time at which any note may be redeemed as described above under
"-- Optional Redemption" or any similar provision;
(5) make any notes payable in money other than that stated in the
notes;
(6) impair the right of any holder to receive payment of, premium, if
any, principal of and interest on such holder's note on or after the due
dates therefor or to institute suit for the enforcement of any payment on
or with respect to such holder's note;
(7) make any change in the amendment provisions which require each
holder's consent or in the waiver provisions;
(8) release any security that may have been granted in respect of the
notes; or
(9) release the Guarantor or modify the guarantee in any manner
adverse to the holders.
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The holders of a majority in aggregate principal amount of the outstanding
notes, on behalf of all such holders, may waive compliance by the Issuer and the
Guarantor with certain restrictive provisions of the Indenture. Subject to
certain rights of the Trustee as provided in the Indenture, the holders of a
majority in aggregate principal amount of the notes, on behalf of all such
holders, may waive any past default under the Indenture (including any such
waiver obtained in connection with a tender offer or exchange offer for the
notes), except a default in the payment of principal, premium or interest or a
default in respect of a provision that under the Indenture cannot be modified or
amended without the consent of all holders of the notes.
Without the consent of any holder, the Issuer, the Guarantor and the
Trustee may amend the Indenture to:
(1) cure any ambiguity, omission, defect or inconsistency;
(2) provide for the assumption by a successor corporation,
partnership, trust or limited liability company of the obligations of the
Guarantor or the Issuer under the Indenture;
(3) provide for uncertificated notes in addition to or in place of
certificated debt securities (provided that the uncertificated notes are
issued in registered form for purposes of Section 163(f) of the Internal
Revenue Code of 1986, or in a manner such that the uncertificated notes are
described in Section 163(f)(2)(B) of the Code);
(4) add additional guarantees with respect to the notes;
(5) secure the notes;
(6) add to the covenants of the Guarantor or the Issuer for the
benefit of the holders or surrender any right or power conferred upon the
Guarantor or the Issuer;
(7) make any change that does not adversely affect the rights of any
holder; or
(8) comply with any requirement of the Commission in connection with
the qualification of the Indenture under the TIA.
The consent of the holders is not necessary under the Indenture to approve
the particular form of any proposed amendment. It is sufficient if such consent
approves the substance of the proposed amendment. After an amendment under the
Indenture becomes effective, the Issuer is required to mail to the holders a
notice briefly describing such amendment. However, the failure to give such
notice to all the holders, or any defect therein, will not impair or affect the
validity of the amendment.
DEFEASANCE
The Issuer at any time may terminate all its obligations in respect of the
notes and the Indenture ("legal defeasance"), except for certain obligations,
including those respecting the defeasance trust and obligations to register the
transfer or exchange of the notes, to replace mutilated, destroyed, lost or
stolen notes and to maintain a registrar and paying agent in respect of the
notes. If the Issuer exercises its legal defeasance option, the guarantee will
terminate with respect to the notes.
The Issuer at any time may terminate its obligations under covenants
described under "-- Certain Covenants" (other than "Merger, Consolidation or
Sale of Assets"), the bankruptcy provisions with respect to the Guarantor and
the guarantee provision described under "-- Events of Default" above with
respect to the notes ("covenant defeasance").
The Issuer may exercise its legal defeasance option notwithstanding its
prior exercise of its covenant defeasance option. If the Issuer exercises its
legal defeasance option, payment of the notes may not be accelerated because of
an Event of Default with respect thereto. If the Issuer exercises its covenant
defeasance option, payment of the notes may not be accelerated because of an
Event of Default specified in clause (3), (4) (with respect only to the
Guarantor) or (5) under "-- Events of Default" above.
28
In order to exercise either defeasance option, the Issuer must irrevocably
deposit in trust (the "defeasance trust") with the Trustee money or U.S.
Government Obligations (as defined in the Indenture) for the payment of
principal, premium, if any, and interest on the notes to redemption or maturity,
as the case may be, and must comply with certain other conditions, including
delivery to the Trustee of an opinion of counsel (subject to customary
exceptions and exclusions) to the effect that holders of the notes will not
recognize income, gain or loss for Federal income tax purposes as a result of
such deposit and defeasance and will be subject to Federal income tax on the
same amount and in the same manner and at the same times as would have been the
case if such deposit and defeasance had not occurred. In the case of legal
defeasance only, such opinion of counsel must be based on a ruling of the
Internal Revenue Service or other change in applicable Federal income tax law.
BOOK-ENTRY SYSTEM
We will issue the exchange notes in the form of one or more global notes in
fully registered form initially in the name of Cede & Co., as nominee of DTC, or
such other name as may be requested by an authorized representative of DTC. The
global notes will be deposited with the Trustee as custodian for DTC and may not
be transferred except as a whole by DTC to a nominee of DTC or by a nominee of
DTC to DTC or another nominee of DTC or by DTC or any nominee to a successor of
DTC or a nominee of such successor.
DTC has advised us as follows:
- DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code,
and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
- DTC holds securities that its participants deposit with DTC and
facilitates the settlement among direct participants of securities
transactions, such as transfers and pledges, in deposited securities,
through electronic computerized book-entry changes in direct
participants' accounts, thereby eliminating the need for physical
movement of securities certificates.
- Direct participants include securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations.
- DTC is owned by a number of its direct participants and by the New York
Stock Exchange, Inc., the American Stock Exchange LLC and the National
Association of Securities Dealers, Inc.
- Access to the DTC system is also available to others such as securities
brokers and dealers, banks and trust companies that clear through or
maintain a custodial relationship with a direct participant, either
directly or indirectly.
- The rules applicable to DTC and its direct and indirect participants are
on file with the Commission.
Purchases of notes under the DTC system must be made by or through direct
participants, which will receive a credit for the notes on DTC's records. The
ownership interest of each actual purchaser of notes is in turn to be recorded
on the direct and indirect participants' records. Beneficial owners of the notes
will not receive written confirmation from DTC of their purchase, but beneficial
owners are expected to receive written confirmations providing details of the
transaction, as well as periodic statements of their holdings, from the direct
or indirect participants through which the beneficial owner entered into the
transaction. Transfers of ownership interests in the notes are to be
accomplished by entries made on the books of direct and indirect participants
acting on behalf of beneficial owners. Beneficial owners will not receive
certificates representing their ownership interests in the notes, except in the
event that use of the book-entry system for the notes is discontinued.
To facilitate subsequent transfers, all notes deposited by direct
participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co., or such other name as may be requested by an
29
authorized representative of DTC. The deposit of notes with DTC and their
registration in the name of Cede & Co. or such other nominee do not effect any
change in beneficial ownership. DTC has no knowledge of the actual beneficial
owners of the notes; DTC's records reflect only the identity of the direct
participants to whose accounts such notes are credited, which may or may not be
the beneficial owners. The direct and indirect participants will remain
responsible for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to direct
participants, by direct participants to indirect participants, and by direct
participants and indirect participants to beneficial owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Neither DTC nor Cede & Co. (nor any other DTC nominee) will consent or vote
with respect to the global notes. Under its usual procedures, DTC mails an
omnibus proxy to the issuer as soon as possible after the record date. The
omnibus proxy assigns Cede & Co.'s consenting or voting rights to those direct
participants to whose accounts the notes are credited on the record date
(identified in the listing attached to the omnibus proxy).
All payments on the global notes will be made to Cede & Co., as holder of
record, or such other nominee as may be requested by an authorized
representative of DTC. DTC's practice is to credit direct participants' accounts
upon DTC's receipt of funds and corresponding detail information from us or the
Trustee on payment dates in accordance with their respective holdings shown on
DTC's records. Payments by participants to beneficial owners will be governed by
standing instructions and customary practices, as is the case with securities
held for the accounts of customers in bearer form or registered in "street
name," and will be the responsibility of such participant and not of DTC, us or
the Trustee, subject to any statutory or regulatory requirements as may be in
effect from time to time. Payment of principal, premium, if any, and interest to
Cede & Co. (or such other nominee as may be requested by an authorized
representative of DTC) shall be the responsibility of us or the Trustee.
Disbursement of such payments to direct participants shall be the responsibility
of DTC, and disbursement of such payments to the beneficial owners shall be the
responsibility of direct and indirect participants.
DTC may discontinue providing its service as securities depositary with
respect to the notes at any time by giving reasonable notice to us or the
Trustee. In addition, we may decide to discontinue use of the system of
book-entry transfers through DTC (or a successor securities depositary). Under
such circumstances, in the event that a successor securities depositary is not
obtained, note certificates in fully registered form are required to be printed
and delivered to beneficial owners of the global notes representing such notes.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that we believe to be reliable (including DTC),
but we take no responsibility for its accuracy.
Neither we nor the Trustee will have any responsibility or obligation to
direct or indirect participants, or the persons for whom they act as nominees,
with respect to the accuracy of the records of DTC, its nominee or any
participant with respect to any ownership interest in the notes, or payments to,
or the providing of notice to participants or beneficial owners.
So long as the notes are in DTC's book-entry system, secondary market
trading activity in the notes will settle in immediately available funds. All
payments on the notes issued as global notes will be made by us in immediately
available funds.
NO RECOURSE AGAINST GENERAL PARTNER
Our general partner and its directors, officers, employees and members, as
such, shall have no liability for any obligations of the Guarantor or the Issuer
under the notes, the Indenture or the guarantee or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each holder by
accepting a note waives and releases all such liability. The waiver and release
are part of the consideration
30
for issuance of the notes. Such waiver may not be effective to waive liabilities
under the federal securities laws, and it is the view of the Commission that
such a waiver is against public policy.
CONCERNING THE TRUSTEE
The Indenture contains certain limitations on the right of the Trustee,
should it become our creditor, to obtain payment of claims in certain cases, or
to realize for its own account on certain property received in respect of any
such claim as security or otherwise. The Trustee is permitted to engage in
certain other transactions. However, if it acquires any conflicting interest
within the meaning of the TIA, it must eliminate the conflict or resign as
Trustee.
The holders of a majority in principal amount of all outstanding notes (or
if more than one series of debt securities under the Indenture is affected
thereby, all series so affected, voting as a single class) will have the right
to direct the time, method and place of conducting any proceeding for exercising
any remedy or power available to the Trustee for the notes or all such series so
affected.
If an Event of Default occurs and is not cured under the Indenture and is
known to the Trustee, the Trustee shall exercise such of the rights and powers
vested in it by the Indenture and use the same degree of care and skill in its
exercise as a prudent person would exercise or use under the circumstances in
the conduct of his own affairs. Subject to such provisions, the Trustee will not
be under any obligation to exercise any of its rights or powers under the
Indenture at the request of any of the holders of notes unless they shall have
offered to such Trustee reasonable security and indemnity.
Wachovia Bank, National Association is the Trustee under the Indenture and
has been appointed by the Issuer as Registrar and Paying Agent with regard to
the notes. Wachovia Bank, National Association is the Administrative Agent and a
lender under the Issuer's credit facilities and the 364-day term loan. Wachovia
Bank, National Association is also an affiliate of Wachovia Securities, Inc., an
initial purchaser of the outstanding notes. Wachovia Securities, Inc. is also
the sole arranger and sole book manager under the Issuer's credit facilities and
is the lead manager and joint bookrunner under the 364-day term loan.
GOVERNING LAW
The Indenture, the notes and the guarantee are governed by, and will be
construed in accordance with, the laws of the State of New York.
FEDERAL INCOME TAX CONSIDERATIONS
The following discussion is a summary of certain federal income tax
considerations relevant to the exchange of outstanding notes for exchange notes,
but does not purport to be a complete analysis of all potential tax effects. The
discussion is based upon the Internal Revenue Code of 1986, as amended, Treasury
Regulations, Internal Revenue Service rulings and pronouncements and judicial
decisions now in effect, all of which may be subject to change at any time by
legislative, judicial or administrative action. These changes may be applied
retroactively in a manner that could adversely affect a holder of exchange
notes. The description does not consider the effect of any applicable foreign,
state, local or other tax laws or estate or gift tax considerations.
We believe that the exchange of outstanding notes for exchange notes should
not be an exchange or otherwise a taxable event to a holder for United States
federal income tax purposes. Accordingly, a holder should have the same adjusted
issue price, adjusted basis and holding period in the exchange notes as it had
in the outstanding notes immediately before the exchange.
31
PLAN OF DISTRIBUTION
Based on interpretations by the staff of the Commission in no-action
letters issued to third parties, we believe that you may transfer exchange notes
issued under the exchange offer in exchange for the outstanding notes if:
- you acquire the exchange notes in the ordinary course of your business;
and
- you are not engaged in, and do not intend to engage in, and have no
arrangement or understanding with any person to participate in, a
distribution of such exchange notes.
You may not participate in the exchange offer if you are:
- our "affiliate" within the meaning of Rule 405 under the Securities Act;
or
- a broker-dealer that acquired outstanding notes directly from us.
Each broker-dealer that receives exchange notes for its own account
pursuant to the exchange offer must acknowledge that it will deliver this
prospectus in connection with any resale of such exchange notes. To date, the
staff of the Commission has taken the position that broker-dealers may fulfill
their prospectus delivery requirements with respect to transactions involving an
exchange of securities such as this exchange offer, other than a resale of an
unsold allotment from the original sale of the outstanding notes, with the
prospectus contained in the exchange offer registration statement. This
prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of exchange notes received in
exchange for outstanding notes where such outstanding notes were acquired as a
result of market-making activities or other trading activities. We have agreed
that, for a period of up to 180 days after the effective date of the exchange
offer registration statement, we will make this prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such
resale. In addition, until such date, all dealers effecting transactions in
exchange notes may be required to deliver this prospectus.
If you wish to exchange exchange notes for your outstanding notes in the
exchange offer, you will be required to make representations to us as described
in "Exchange Offer -- Purpose and Effect of the Exchange Offer" and "Exchange
Offer -- Procedures for Tendering -- Your Representations to Us" in this
prospectus. As indicated in the letter of transmittal, you will be deemed to
have made these representations by tendering your outstanding notes in the
exchange offer. In addition, if you are a broker-dealer who receives exchange
notes for your own account in exchange for outstanding notes that were acquired
by you as a result of market-making activities or other trading activities, you
will be required to acknowledge, in the same manner, that you will deliver this
prospectus in connection with any resale by you of such exchange notes.
We will not receive any proceeds from any sale of exchange notes by
broker-dealers. Exchange notes received by broker-dealers for their own account
pursuant to the exchange offer may be sold from time to time in one or more
transactions in the over-the-counter market:
- in negotiated transactions;
- through the writing of options on the exchange notes or a combination of
such methods of resale;
- at market prices prevailing at the time of resale; and
- at prices related to such prevailing market prices or negotiated prices.
Any such resale may be made directly to purchasers or to or through brokers
or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer or the purchasers of any such exchange
notes. Any broker-dealer that resells exchange notes that were received by it
for its own account pursuant to the exchange offer and any broker or dealer that
participates in a distribution of such exchange notes may be deemed to be an
"underwriter" within the meaning of the Securities Act. The letter of
transmittal states that by acknowledging that it will deliver and by delivering
32
this prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of 180 days after the effective date of this exchange offer
registration statement, we will promptly send additional copies of this
prospectus and any amendment or supplement to this prospectus to any
broker-dealer that requests such documents in the letter of transmittal. We have
agreed to pay all expenses incident to the exchange offer (including the
expenses of one counsel for the holders of the outstanding notes) other than
commissions or concessions of any broker-dealers and will indemnify the holders
of the outstanding notes (including any broker-dealers) against certain
liabilities, including liabilities under the Securities Act.
LEGAL MATTERS
Vinson & Elkins L.L.P. has issued an opinion about the legality of the
exchange notes.
EXPERTS
The (i) consolidated financial statements and the related consolidated
financial statement schedules of Enterprise Products Partners L.P. and
Enterprise Products Operating L.P. and subsidiaries as of December 31, 2001 and
2000 and for each of the three years in the period ended December 31, 2001
incorporated by reference in this prospectus, and (ii) the balance sheet of
Enterprise Products GP, LLC as of December 31, 2001, incorporated by reference
in this prospectus, have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their reports, which are incorporated by reference herein
(each such report expresses an unqualified opinion and the reports for
Enterprise Products Partners L.P. and Enterprise Products Operating L.P. each
include an explanatory paragraph referring to a change in method of accounting
for derivative instruments in 2001 as discussed in Note 13 to Enterprise
Products Partners L.P.'s and in Note 11 of Enterprise Products Operating L.P.'s
consolidated financial statements, respectively) and have been so incorporated
in reliance upon the reports of such firm given upon their authority as experts
in accounting and auditing.
The financial statements of Mid-America Pipeline System and Seminole
Pipeline Company as of December 31, 2000 and 2001 and for each of the three
years in the period ended December 31, 2001 appearing in Enterprise Products
Partners L.P. and Enterprise Products Operating L.P.'s Current Report on Form
8-K/A (Amendment No. 1) filed September 26, 2002, have been audited by Ernst &
Young LLP, independent auditors, as set forth in their reports thereon included
therein and incorporated herein by reference. Such financial statements are
incorporated herein by reference in reliance upon such reports given on the
authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
Enterprise Products Partners L.P. and Enterprise Products Operating L.P.
file annual, quarterly and current reports and other information with the
Commission. Enterprise Products Partners L.P. and Enterprise Products Operating
L.P. filed separate Annual Reports on Form 10-K for the fiscal year ended
December 31, 2001. All subsequent reports of Enterprise Products Operating L.P.
filed with the Commission are combined with those filed by Enterprise Products
Partners L.P. You may read and copy any document we file at the Commission's
public reference rooms in Washington, D.C., New York, New York and Chicago,
Illinois. Please call the Commission at (800) SEC-0330 for further information
on the public reference rooms. Our filings are also available to the public at
the Commission's web site at http://www.sec.gov. In addition, documents filed by
us can be inspected at the offices of the New York Stock Exchange, Inc., 20
Broad Street, New York, New York 10002.
33
We incorporate by reference in this prospectus the following documents we
filed with the Commission pursuant to the Securities Exchange Act:
- Enterprise Products Partners L.P.'s and Enterprise Products Operating
L.P.'s Annual Reports on Form 10-K for the fiscal year ended December 31,
2001 (excluding Item 8 information for Enterprise Products Partners
L.P.);
- our Quarterly Reports on Form 10-Q for the fiscal quarters ended March
31, 2002, June 30, 2002 and September 30, 2002;
- our Current Report on Form 8-K filed with the Commission on August 12,
2002, as amended by our Current Report on Form 8-K/A (Amendment No. 1)
filed with the Commission on September 26, 2002; and
- our Current Reports on Form 8-K filed with the Commission on February 8,
2002, February 28, 2002, April 2, 2002 (excluding Item 9 information),
August 12, 2002 (excluding Item 9 information), September 27, 2002,
October 2, 2002, October 3, 2002, December 11, 2002, December 17, 2002
(excluding Item 9 information), December 31, 2002 and January 10, 2003.
We also incorporate by reference any future filings made by us with the
Commission pursuant to Sections 12(a), 13(c), 14 or 15(s) of the Exchange Act
(other than Current Reports furnished under Item 9 of Form 8-K) until the
termination of the offering made by this prospectus. Any statement contained in
a document incorporated by reference herein shall be deemed to be modified or
superseded for all purposes to the extent that a statement contained in this
prospectus, or in any other subsequently filed document which is also
incorporated or deemed to be incorporated by reference, modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this prospectus.
This prospectus, which is a part of the exchange offer registration
statement, does not contain all of the information found in the exchange offer
registration statement. You should refer to the exchange offer registration
statement, including its exhibits and schedules, for further information. You
may obtain a copy of any or all of this information, the exchange offer
registration statement and the Commission filings without charge, by request
directed to us at the following address and telephone number: Enterprise
Products Operating L.P., 2727 North Loop West, Suite 700, Houston, Texas
77008-1038; telephone number: (713) 880-6812.
INFORMATION REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains various forward-looking statements and information
that are based on our belief and those of our general partner, as well as
assumptions made by and information currently available to us. When used in this
prospectus, words such as "anticipate," "project," "expect," "plan," "goal,"
"forecast," "intend," "could," "believe," "may," and similar expressions and
statements regarding our plans and objectives for future operations, are
intended to identify forward-looking statements. Although we and our general
partner believe that such expectations reflected in such forward-looking
statements are reasonable, neither we nor our general partner can give
assurances that such expectations will prove to be correct. Such statements are
subject to a variety of risks, uncertainties and assumptions. If one or more of
these risks or uncertainties materialize, or if underlying assumptions prove
incorrect, our actual results may vary materially from those we anticipate,
estimate, project or expect. Among the key risk factors that may have a direct
bearing on our results of operations and financial condition are:
- competitive practices in the industries in which we compete;
- fluctuations in oil, natural gas and NGL prices and production due to
weather and other natural and economic forces;
- operational and systems risks;
- environmental liabilities that are not covered by indemnity or insurance;
34
- the impact of current and future laws and governmental regulations
(including environmental regulations) affecting the midstream energy
industry in general and our NGL and natural gas operations in particular;
- the loss of a significant customer;
- the use of financial instruments to hedge commodity and other risks that
prove to be economically ineffective; and
- failure to complete one or more new projects on time or within budget.
You should not put undue reliance on any forward-looking statements.
When considering forward-looking statements, please review carefully the
risk factors described under "Risk Factors" in this prospectus.
35
ANNEX A
LETTER OF TRANSMITTAL
TO TENDER
OUTSTANDING 6.375% SERIES A SENIOR NOTES DUE 2013
OF
ENTERPRISE PRODUCTS OPERATING L.P.
PURSUANT TO THE EXCHANGE OFFER AND PROSPECTUS DATED , 2003
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON , 2003 (THE "EXPIRATION DATE"), UNLESS THE EXCHANGE OFFER IS
EXTENDED BY THE COMPANY.
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
WACHOVIA BANK, NATIONAL ASSOCIATION
Customer Information Center
Corporate Trust Operations -- NC1153
1525 West W.T. Harris Blvd., 3C3
Charlotte, North Carolina 28288.
Facsimile: (704) 590-7628.
IF YOU WISH TO EXCHANGE CURRENTLY OUTSTANDING 6.375% SERIES A SENIOR NOTES
DUE 2013 (THE "OUTSTANDING NOTES") FOR AN EQUAL AGGREGATE PRINCIPAL AMOUNT OF
6.375% SERIES B SENIOR NOTES DUE 2013 PURSUANT TO THE EXCHANGE OFFER, YOU MUST
VALIDLY TENDER (AND NOT WITHDRAW) OUTSTANDING NOTES TO THE EXCHANGE AGENT PRIOR
TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE BY CAUSING AN AGENT'S
MESSAGE TO BE RECEIVED BY THE EXCHANGE AGENT PRIOR TO SUCH TIME.
---------------------
The undersigned hereby acknowledges receipt and review of the prospectus,
dated , 2003 (the "Prospectus"), of Enterprise Products Operating
L.P., a Delaware limited partnership (the "Operating Partnership"), and this
Letter of Transmittal (the "Letter of Transmittal"), which together describe the
Operating Partnership's offer (the "Exchange Offer") to exchange its 6.375%
Series B Senior Notes due 2013 (the "Exchange Notes") that have been registered
under the Securities Act of 1933, as amended (the "Securities Act"), for a like
principal amount of its issued and outstanding 6.375% Series A Senior Notes due
2013 (the "Outstanding Notes"). Capitalized terms used but not defined herein
have the respective meaning given to them in the Prospectus.
The Operating Partnership reserves the right, at any time or from time to
time, to extend the Exchange Offer at its discretion, in which event the term
"Expiration Date" shall mean the latest date to which the Exchange Offer is
extended. The Operating Partnership shall notify the Exchange Agent and each
registered holder of the Outstanding Notes of any extension by oral or written
notice prior to 9:00 a.m., New York City time, on the next business day after
the previously scheduled Expiration Date.
This Letter of Transmittal is to be used by holders of the Outstanding
Notes. Tender of Outstanding Notes is to be made according to the Automated
Tender Offer Program ("ATOP") of the Depository Trust Company ("DTC") pursuant
to the procedures set forth in the prospectus under the caption "The Exchange
Offer -- Procedures for Tendering." DTC participants that are accepting the
Exchange Offer must transmit their acceptance to DTC, which will verify the
acceptance and execute a book-entry delivery to the Exchange Agent's DTC
account. DTC will then send a computer generated message known as an "agent's
message" to the exchange agent for its acceptance. For you to validly tender
your Outstanding Notes in the Exchange Offer, the Exchange Agent must receive,
prior to the Expiration Date, an agent's message under the ATOP procedures that
confirms that:
- DTC has received your instructions to tender your Outstanding Notes; and
- You agree to be bound by the terms of this Letter of Transmittal.
BY USING THE ATOP PROCEDURES TO TENDER OUTSTANDING NOTES, YOU WILL NOT BE
REQUIRED TO DELIVER THIS LETTER OF TRANSMITTAL TO THE EXCHANGE AGENT. HOWEVER,
YOU WILL BE BOUND BY ITS TERMS, AND YOU WILL BE DEEMED TO HAVE MADE THE
ACKNOWLEDGMENTS AND THE REPRESENTATIONS AND WARRANTIES IT CONTAINS, JUST AS IF
YOU HAD SIGNED IT.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
Ladies and Gentlemen:
1. By tendering Outstanding Notes in the Exchange Offer, you acknowledge
receipt of the Prospectus and this Letter of Transmittal.
2. By tendering Outstanding Notes in the Exchange Offer, you represent and
warrant that you have full authority to tender the Outstanding Notes described
above and will, upon request, execute and deliver any additional documents
deemed by the Operating Partnership to be necessary or desirable to complete the
tender of Outstanding Notes.
3. You understand that the tender of the Outstanding Notes pursuant to all
of the procedures set forth in the Prospectus will constitute an agreement
between you and the Operating Partnership as to the terms and conditions set
forth in the Prospectus.
4. By tendering Outstanding Notes in the Exchange Offer, you acknowledge
that the Exchange Offer is being made in reliance upon interpretations contained
in no-action letters issued to third parties by the staff of the Securities and
Exchange Commission (the "Commission"), including Exxon Capital Holdings Corp.,
Commission No-Action Letter (available April 13, 1989), Morgan Stanley & Co.,
Inc., Commission No-Action Letter (available June 5, 1991) and Shearman &
Sterling, Commission No-Action Letter (available July 2, 1993), that the
Exchange Notes issued in exchange for the Outstanding Notes pursuant to the
Exchange Offer may be offered for resale, resold and otherwise transferred by
holders thereof (other than a broker-dealer who purchased Outstanding Notes
exchanged for such Exchange Notes directly from the Operating Partnership to
resell pursuant to Rule 144A or any other available exemption under the
Securities Act of 1933, as amended (the "Securities Act") and any such holder
that is an "affiliate" of the Operating Partnership or Enterprise Products
Partners L.P. (the "Partnership") within the meaning of Rule 405 under the
Securities Act), without compliance with the registration and prospectus
delivery provisions of the Securities Act, provided that such Exchange Notes are
acquired in the ordinary course of such holders' business and such holders are
not participating in, and have no arrangement with any person to participate in,
the distribution of such Exchange Notes.
5. By tendering Outstanding Notes in the Exchange Offer, you represent and
warrant that:
a. the Exchange Notes acquired pursuant to the Exchange Offer are
being obtained in the ordinary course of your business, whether or not you
are the holder;
b. neither you nor any such other person is engaging in or intends to
engage in a distribution of such Exchange Notes;
c. neither you nor any such other person has an arrangement or
understanding with any person to participate in the distribution of such
Exchange Notes; and
d. neither the holder nor any such other person is an "affiliate," as
such term is defined under Rule 405 promulgated under the Securities Act,
of the Operating Partnership or the Partnership.
6. You may, if you are unable to make all of the representations and
warranties contained in paragraph 5 above and as otherwise permitted in the
Registration Rights Agreement (as defined below), elect to have your Outstanding
Notes registered in the shelf registration statement described in the
Registration Rights Agreement, dated as of January 22, 2003 (the "Registration
Rights Agreement"), by and among the Operating Partnership, the Partnership and
the Initial Purchaser (as defined therein). Such election may be made only by
notifying the Operating Partnership in writing at 2727 North Loop West, Houston,
Texas 77008-1037, Attention: Chief Financial Officer. By making such election,
you agree, as a holder of Outstanding Notes participating in a shelf
registration, to indemnify and hold harmless the Operating Partnership, each of
the directors of Enterprise Products GP, LLC, the general partner of the
Operating Partnership (the "General Partner"), each of the officers of the
General Partner who signs such shelf registration statement on behalf of the
Operating Partnership, each person who controls the Operating Partnership within
the meaning of either the Securities Act or the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and each other holder of Outstanding
Notes, from and against any and all losses, claims, damages or liabilities
caused by any untrue statement or alleged untrue statement of a material fact
contained in any shelf registration statement or prospectus, or in any
supplement thereto or amendment thereof, or caused by the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; but only with respect to information
relating to you furnished in writing by or on behalf of you expressly for use in
a shelf registration statement, a prospectus or any amendments or supplements
thereto. Any such indemnification shall be governed by the terms and subject to
the conditions set forth in the Registration Rights Agreement, including,
without limitation, the provisions regarding notice, retention of counsel,
contribution and payment of expenses set forth therein. The above summary of the
indemnification provision of the Registration Rights Agreement is not intended
to be exhaustive and is qualified in its entirety by the Registration Rights
Agreement.
7. If you are a broker-dealer that will receive Exchange Notes for your own
account in exchange for Outstanding Notes that were acquired as a result of
market-making activities or other trading activities, you acknowledge, by
tendering Outstanding Notes in the Exchange Offer, that you will deliver a
prospectus in connection with any resale of such Exchange Notes; however, by so
acknowledging and by delivering a prospectus, you will not be deemed to admit
that you are an "underwriter" within the meaning of the Securities Act. If you
are a broker-dealer and Outstanding Notes held for your own account were not
acquired as a result of market-making or other trading activities, such
Outstanding Notes cannot be exchanged pursuant to the Exchange Offer.
8. Any of your obligations hereunder shall be binding upon your successors,
assigns, executors, administrators, trustees in bankruptcy and legal and
personal representatives.
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. BOOK-ENTRY CONFIRMATIONS.
Any confirmation of a book-entry transfer to the Exchange Agent's account
at DTC of Outstanding Notes tendered by book-entry transfer (a "Book-Entry
Confirmation"), as well as an agent's message, and any other documents required
by this Letter of Transmittal, must be received by the Exchange Agent at its
address set forth herein prior to 5:00 P.M., New York City time, on the
Expiration Date.
2. PARTIAL TENDERS.
Tenders of Outstanding Notes will be accepted only in denominations of
$1,000 and integral multiples of $1,000. THE ENTIRE PRINCIPAL AMOUNT OF
OUTSTANDING NOTES DELIVERED TO THE EXCHANGE AGENT WILL BE DEEMED TO HAVE BEEN
TENDERED UNLESS OTHERWISE COMMUNICATED TO THE EXCHANGE AGENT. IF THE ENTIRE
PRINCIPAL AMOUNT OF ALL OUTSTANDING NOTES IS NOT TENDERED, THEN OUTSTANDING
NOTES FOR THE PRINCIPAL AMOUNT OF OUTSTANDING NOTES NOT TENDERED AND EXCHANGE
NOTES ISSUED IN EXCHANGE FOR ANY OUTSTANDING NOTES ACCEPTED WILL BE DELIVERED TO
THE HOLDER VIA THE FACILITIES OF DTC PROMPTLY AFTER THE OUTSTANDING NOTES ARE
ACCEPTED FOR EXCHANGE.
3. VALIDITY OF TENDERS.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance, and withdrawal of tendered Outstanding Notes will be
determined by the Operating Partnership, in its sole discretion, which
determination will be final and binding. The Operating Partnership reserves the
absolute right to reject any or all tenders not in proper form or the acceptance
for exchange of which may, in the opinion of counsel for the Operating
Partnership, be unlawful. The Operating Partnership also reserves the absolute
right to waive any of the conditions of the Exchange Offer or any defect or
irregularity in the tender of any Outstanding Notes. The Operating Partnership's
interpretation of the terms and conditions of the Exchange Offer (including the
instructions on this Letter of Transmittal) will be final and binding on all
parties. Unless waived, any defects or irregularities in connection with tenders
of Outstanding Notes must be cured within such time as the Operating Partnership
shall determine. Although the Operating Partnership intends to notify holders of
defects or irregularities with respect to tenders of Outstanding Notes, neither
the Operating Partnership, the Exchange Agent, nor any other person shall be
under any duty to give notification of any defects or irregularities in tenders
or incur any liability for failure to give such notification. Tenders of
Outstanding Notes will not be deemed to have been made until such defects or
irregularities have been cured or waived. Any Outstanding Notes received by the
Exchange Agent that are not properly tendered and as to which the defects or
irregularities have not been cured or waived will be returned by the Exchange
Agent to the tendering holders via the facilities of DTC, as soon as practicable
following the Expiration Date.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 17-108 of the Delaware Revised Uniform Limited Partnership Act
empowers a Delaware limited partnership to indemnify and hold harmless any
partner or other person from and against all claims and demands whatsoever.
Enterprise Products Partners' partnership agreement provides that Enterprise
Products Partners will indemnify (i) Enterprise Products GP, (ii) any departing
general partner, (iii) any person who is or was an affiliate of Enterprise
Products GP or any departing general partner, (iv) any person who is or was a
member, partner, officer director, employee, agent or trustee of Enterprise
Products GP or any departing general partner or any affiliate of Enterprise
Products GP or any departing general partner or (v) any person who is or was
serving at the request of Enterprise Products GP or any departing general
partner or any affiliate of any such person, any affiliate of Enterprise
Products GP or any fiduciary or trustee of another person (each, a "Partnership
Indemnitee"), to the fullest extent permitted by law, from and against any and
all losses, claims, damages, liabilities (joint or several), expenses
(including, without limitation, legal fees and expenses), judgments, fines,
penalties, interest, settlements and other amounts arising from any and all
claims, demands, actions, suits or proceedings, whether civil, criminal,
administrative or investigative, in which any Partnership Indemnitee may be
involved, or is threatened to be involved, as a party or otherwise, by reason of
its status as a Partnership Indemnitee; provided that in each case the
Partnership Indemnitee acted in good faith and in a manner that such Partnership
Indemnitee reasonably believed to be in or not opposed to the best interests of
Enterprise Products Partners and, with respect to any criminal proceeding, had
no reasonable cause to believe its conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere, or its equivalent, shall not create an assumption that
the Partnership Indemnitee acted in a manner contrary to that specified above.
Any indemnification under these provisions will be only out of the assets of
Enterprise Products Partners, and Enterprise Products GP shall not be personally
liable for, or have any obligation to contribute or lend funds or assets to
Enterprise Products Partners to enable it to effectuate, such indemnification.
Enterprise Products Partners is authorized to purchase (or to reimburse
Enterprise Products GP or its affiliates for the cost of) insurance against
liabilities asserted against and expenses incurred by such persons in connection
with Enterprise Products Partners' activities, regardless of whether Enterprise
Products Partners would have the power to indemnify such person against such
liabilities under the provisions described above.
Enterprise Products Operating's partnership agreement provides that
Enterprise Products Operating will indemnify (i) Enterprise Products GP, (ii)
any departing general partner, (iii) any person who is or was an affiliate of
Enterprise Products GP or any departing general partner, (iv) any person who is
or was a member, partner, officer director, employee, agent or trustee of
Enterprise Products GP or any departing general partner or any affiliate of
Enterprise Products GP or any departing general partner or (v) any person who is
or was serving at the request of Enterprise Products GP or any departing general
partner or any affiliate of any such person, any affiliate of Enterprise
Products GP or any fiduciary or trustee of another person (each, an "Operating
Partnership Indemnitee"), to the fullest extent permitted by law, from and
against any and all losses, claims, damages, liabilities (joint or several),
expenses (including, without limitation, legal fees and expenses), judgments,
fines, penalties, interest, settlements and other amounts arising from any and
all claims, demands, actions, suits or proceedings, whether civil, criminal,
administrative or investigative, in which any Operating Partnership Indemnitee
may be involved, or is threatened to be involved, as a party or otherwise, by
reason of its status as an Operating Partnership Indemnitee; provided that in
each case the Operating Partnership Indemnitee acted in good faith and in a
manner that such Operating Partnership Indemnitee reasonably believed to be in
or not opposed to the best interests of Enterprise Products Operating and, with
respect to any criminal proceeding, had no reasonable cause to believe its
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere, or
its equivalent, shall not create an assumption that the Operating Partnership
Indemnitee acted in a manner contrary to that
II-1
specified above. Any indemnification under these provisions will be only out of
the assets of Enterprise Products Operating, and Enterprise Products GP shall
not be personally liable for, or have any obligation to contribute or lend funds
or assets to Enterprise Products Operating to enable it to effectuate, such
indemnification. Enterprise Products Operating is authorized to purchase (or to
reimburse Enterprise Products GP or its affiliates for the cost of) insurance
against liabilities asserted against and expenses incurred by such persons in
connection with Enterprise Products Operating's activities, regardless of
whether Enterprise Products Operating would have the power to indemnify such
person against such liabilities under the provisions described above.
Section 18-108 of the Delaware Limited Liability Company Act provides that,
subject to such standards and restrictions, if any, as are set forth in its
limited liability company agreement, a Delaware limited liability company may,
and shall have the power to, indemnify and hold harmless any member or manager
or other person from and against any and all claims and demands whatsoever. The
limited liability company agreement of Enterprise Products GP provides for the
indemnification of (i) present or former members of the Board of Directors
Enterprise Products GP or any committee thereof, (ii) present or former
officers, employees, partners, agents or trustees of the Enterprise Products GP
or (iii) persons serving at the request of the Enterprise Products GP in another
entity in a similar capacity as that referred to in the immediately preceding
clauses (i) or (ii) (each, a "General Partner Indemnitee") to the fullest extent
permitted by law, from and against any and all losses, claims, damages,
liabilities, joint or several, expenses (including reasonable legal fees and
expenses), judgments, fines, penalties, interest, settlements and other amounts
arising from any and all claims, demands, actions, suits or proceedings, whether
civil, criminal, administrative or investigative, in which any such person may
be involved, or is threatened to be involved, as a party or otherwise, by reason
of such person's status as a General Partner Indemnitee; provided, that in each
case the General Partner Indemnitee acted in good faith and in a manner which
such General Partner Indemnitee believed to be in, or not opposed to, the best
interests of the Enterprise Products GP and, with respect to any criminal
proceeding, had no reasonable cause to believe such General Partner Indemnitee's
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere, or
its equivalent, shall not create a presumption that the General Partner
Indemnitee acted in a manner contrary to that specified above. Any
indemnification pursuant to these provisions shall be made only out of the
assets of Enterprise Products GP. Enterprise Products GP is authorized to
purchase and maintain insurance, on behalf of the members of its Board of
Directors, its officers and such other persons as the Board of Directors may
determine, against any liability that may be asserted against or expense that
may be incurred by such person in connection with the activities of Enterprise
Products GP, regardless of whether Enterprise Products GP would have the power
to indemnify such person against such liability under the provisions of its
limited liability company agreement.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to directors, officers or persons
controlling Enterprise Products Partners, Enterprise Products Operating or
Enterprise Products GP as set forth above, Enterprise Products Partners,
Enterprise Products Operating and Enterprise Products GP have been informed that
in the opinion of the Commission such indemnification is against public policy
as expressed in the Securities Act and is therefore unenforceable.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits:
Reference is made to the Index to Exhibits following the signature pages
hereto, which Index to Exhibits is hereby incorporated into this item.
(b) Financial Statement Schedules:
Incorporated herein by reference to Item 8 of Enterprise Products Partners
L.P.'s Annual Report on Form 10-K for the year ended December 31, 2001 and to
Item 8 of Enterprise Products Operating L.P.'s Annual Report on Form 10-K for
the year ended December 31, 2001.
II-2
ITEM 22. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrants, we have been advised that in the opinion of the Commission such
indemnification is against public policy and is, therefore, unenforceable. If a
claim for indemnification against such liabilities (other than the payment by
the Registrants of expenses incurred or paid by a director, officer or
controlling person of the Registrants in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, such Registrants will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
Each Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(a) To include any prospectus required by section 10(a)(3) of the
Securities Act;
(b) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) under the Securities Act if,
in the aggregate, the changes in volume and price represent no more than
20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement; and
(c) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
section 13(a) or section 15(d) of the Securities Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Securities Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(5) To respond to requests for information that is incorporated by
reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of Form
S-4, within one business day of receipt of such request, and to send the
incorporated documents by first class mail or other equally prompt means.
(6) To supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved therein,
that was not the subject of and included in this Registration Statement
when it became effective.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrants
certify that they have reasonable grounds to believe that they meet all of the
requirements for filing on Form S-4 and have duly caused this Registration
Statement to be signed on their behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on January 28, 2003.
ENTERPRISE PRODUCTS PARTNERS L.P.
By: ENTERPRISE PRODUCTS GP, LLC
As General Partner
By: /s/ O. S. ANDRAS
------------------------------------
O. S. Andras
President and Chief Executive
Officer
ENTERPRISE PRODUCTS OPERATING L.P.
By: ENTERPRISE PRODUCTS GP, LLC
As General Partner
By: /s/ O. S. ANDRAS
------------------------------------
O. S. Andras
President and Chief Executive
Officer
II-4
SIGNATURES
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below and constitutes and appoints Richard H. Bachmann and Michael A.
Creel and each of them his true and lawful attorneys-in-fact and agents, with
full power of substitution, for him and in his name, place and stead, in any and
all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement and any additional registration
statement pursuant to Rule 462(b), and to file the same with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their or his or her substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement on Form S-4 has been signed below by the following
persons in the capacities indicated on the 28th day of January, 2003.
SIGNATURE TITLE
--------- -----
(OF ENTERPRISE PRODUCTS GP, LLC)
/s/ DAN L. DUNCAN Chairman of the Board and Director
- --------------------------------------------------
Dan L. Duncan
/s/ O. S. ANDRAS President, Chief Executive Officer and Director
- -------------------------------------------------- (Principal Executive Officer)
O. S. Andras
/s/ RICHARD H. BACHMANN Executive Vice President, Chief Legal Officer
- -------------------------------------------------- and Director
Richard H. Bachmann
/s/ MICHAEL A. CREEL Executive Vice President and Chief Financial
- -------------------------------------------------- Officer (Principal Financial Officer)
Michael A. Creel
/s/ MICHAEL J. KNESEK Vice President, Controller and Principal
- -------------------------------------------------- Accounting Officer
Michael J. Knesek
/s/ RANDA D. WILLIAMS Director
- --------------------------------------------------
Randa D. Williams
Director
- --------------------------------------------------
Jorn A. Berget
/s/ DR. RALPH S. CUNNINGHAM Director
- --------------------------------------------------
Dr. Ralph S. Cunningham
Director
- --------------------------------------------------
Jerelyn R. Eagan
Director
- --------------------------------------------------
Augustus Y. Noojin, III
/s/ LEE W. MARSHALL, SR. Director
- --------------------------------------------------
Lee W. Marshall, Sr.
/s/ RICHARD S. SNELL Director
- --------------------------------------------------
Richard S. Snell
II-5
INDEX TO EXHIBITS
EXHIBIT
NO. DESCRIPTION
- ------- -----------
2.1 -- Purchase and Sale Agreement between Coral Energy, LLC and
Enterprise Products Operating L.P. dated September 22, 2000
(incorporated by reference to Exhibit 10.1 to Form 8-K filed
September 26, 2000).
2.2 -- Purchase and Sale Agreement dated January 16, 2002 by and
between Diamond-Koch, L.P. and Diamond-Koch III, L.P. and
Enterprise Products Texas Operating L.P. (incorporated by
reference to Exhibit 10.1 to Form 8-K filed February 8,
2002).
2.3 -- Purchase and Sale Agreement dated January 31, 2002 by and
between D-K Diamond-Koch, L.L.C., Diamond-Koch, L.P. and
Diamond-Koch III, L.P. as Sellers and Enterprise Products
Operating L.P. as Buyer (incorporated by reference to
Exhibit 10.2 to Form 8-K filed February 8, 2002).
2.4 -- Purchase Agreement by and between E-Birchtree, LLC and
Enterprise Products Operating L.P. dated July 31, 2002
(incorporated by reference to Exhibit 2.2 to Form 8-K filed
August 12, 2002).
2.5 -- Purchase Agreement by and between E-Birchtree, LLC and
E-Cypress, LLC dated July 31, 2002 (incorporated by
reference to Exhibit 2.1 to Form 8-K filed August 12, 2002).
3.1 -- First Amended and Restated Limited Liability Company
Agreement of Enterprise Products GP dated as of September
17, 1999 (incorporated by reference to Exhibit 99.8 to Form
8-K/A-1 filed October 27, 1999).
3.2 -- Third Amended and Restated Agreement of Limited Partnership
of Enterprise Products Partners L.P. dated as of May 15,
2002 (incorporated by reference to Exhibit 3.3 to Form 10-Q
filed August 13, 2002).
3.3 -- Amendment No. 1 to Third Amended and Restated Agreement of
Limited Partnership of Enterprise Products Partners L.P.
dated August 7, 2002 (incorporated by reference to Exhibit
3.4 to Form 10-Q filed August 13, 2002).
3.4 -- Amendment No. 2 to Third Amended and Restated Agreement of
Limited Partnership of Enterprise Products Partners L.P.
dated December 17, 2002 (incorporated by reference to
Exhibit 3.5 to Form 8-K filed December 17, 2002).
3.5 -- Amended and Restated Agreement of Limited Partnership of
Enterprise Products Operating L.P. dated as of July 31, 1998
(incorporated by reference to Exhibit 3.2 to Registration
Statement on Form S-1/A filed July 21, 1998).
4.1 -- Indenture dated as of March 15, 2000, among Enterprise
Products Operating L.P., as Issuer, Enterprise Products
Partners L.P., as Guarantor, and First Union National Bank,
as Trustee (incorporated by reference to Exhibit 4.1 to Form
8-K filed March 10, 2000).
4.2* -- First Supplemental Indenture dated as of January 22, 2003,
among Enterprise Products Operating L.P., Enterprise
Products Partners L.P. and Wachovia Bank, National
Association.
4.3* -- Global Note representing $350 million principal amount of
6.375% Series A Senior Notes due 2013 with attached
Guarantee.
4.4* -- Form of Global Note representing $350 million principal
amount of 6.375% Series B Senior Notes due 2013 with
attached Guarantee (included in Exhibit 4.2).
4.5* -- Registration Rights Agreement dated as of January 22, 2003,
by and among Enterprise Products Operating L.P., Enterprise
Products Partners L.P. and the Initial Purchasers named
herein.
4.6 -- Global Note representing $350 million principal amount of
8.25% Senior Notes due 2005 (incorporated by reference to
Exhibit 4.2 to Form 8-K filed March 10, 2000).
4.7 -- Global Note representing $400 million principal amount of
7.50% Senior Notes due 2011. Global Note representing $50
million principal amount of 7.50% Senior Notes due 2011
(incorporated by reference to Exhibit 4.1 to Form 8-K filed
January 25, 2001).
4.8 -- $250 Million Multi-Year Revolving Credit Facility dated
November 17, 2000, among Enterprise Products Operating L.P.,
First Union National Bank, as Administrative Agent, Bank
One, NA, as Documentation Agent, the Chase Manhattan Bank,
as Syndication Agent, and the several banks from time to
time parties thereto, with First Union Securities, Inc. and
Chase Securities Inc. as Joint Lead Arrangers and Joint Book
Managers (incorporated by reference to Exhibit 4.2 to Form
8-K filed January 24, 2001).
EXHIBIT
NO. DESCRIPTION
- ------- -----------
4.9 -- $150 Million 364-Day Revolving Credit Facility dated
November 17, 2000, among Enterprise Products Operating L.P.,
First Union National Bank, as Administrative Agent, Bank
One, NA, as Documentation Agent, the Chase Manhattan Bank,
as Syndication Agent, and the several banks from time to
time parties thereto, with First Union Securities, Inc. and
Chase Securities Inc. as Joint Lead Arrangers and Joint Book
Managers (incorporated by reference to Exhibit 4.3 to Form
8-K filed January 24, 2001).
4.10 -- Guaranty Agreement dated November 17, 2000, by Enterprise
Products Partners L.P. in favor of First Union National
Bank, as Administrative Agent, with respect to the $250
Million Multi-Year Revolving Credit Facility (incorporated
by reference to Exhibit 4.4 to Form 8-K filed January 24,
2001).
4.11 -- Guaranty Agreement dated November 17, 2000, by Enterprise
Products Partners L.P. in favor of First Union National
Bank, as Administrative Agent, with respect to the $150
Million 364-Day Revolving Credit Facility (incorporated by
reference to Exhibit 4.5 to Form 8-K filed January 24,
2001).
4.12 -- First Amendment to Multi-Year Revolving Credit Facility
dated April 19, 2001 (incorporated by reference to Exhibit
4.12 to Form 10-Q filed May 14, 2001).
4.13 -- Second Amendment to Multi-Year Revolving Credit Facility
dated April 14, 2002 (incorporated by reference to Exhibit
4.14 to Form 10-Q filed May 14, 2002).
4.14 -- Third Amendment to Multi-Year Revolving Credit Facility
dated July 31, 2002 (incorporated by reference to Exhibit
4.1 to Form 8-K filed August 12, 2002).
4.15 -- Fourth Amendment to Multi-Year Revolving Credit Facility
dated effective as of November 15, 2002 (incorporated by
reference to Exhibit 4.21 to Form 10-Q filed November 13,
2002).
4.16 -- First Amendment to 364-Day Revolving Credit Facility dated
November 6, 2001 to be effective as of November 16, 2001
(incorporated by reference to Exhibit 4.13 to Form 10-K
filed March 21, 2002).
4.17 -- Second Amendment to 364-Day Revolving Credit Facility dated
April 24, 2002 (incorporated by reference to Exhibit 4.15 to
Form 10-K filed May 14, 2002).
4.18 -- Third Amendment to 364-Day Revolving Credit Facility dated
July 31, 2002 (incorporated by reference to Exhibit 4.2 to
Form 8-K filed August 12, 2002).
4.19 -- Contribution Agreement dated September 17, 1999
(incorporated by reference to Exhibit "B" to Schedule 13D
filed September 27, 1999 by Tejas Energy, LLC).
4.20 -- Registration Rights Agreement dated September 17, 1999
(incorporated by reference to Exhibit "E" to Schedule 13D
filed September 27, 1999 by Tejas Energy, LLC).
4.21 -- Unitholder Rights Agreement dated September 17, 1999
(incorporated by reference to Exhibit "C" to Schedule 13D
filed September 27, 1999 by Tejas Energy, LLC).
5.1* -- Opinion of Vinson & Elkins L.L.P. as to the legality of the
securities being registered.
8.1* -- Opinion of Vinson & Elkins L.L.P. relating to tax matters
(included in Exhibit 5.1).
10.1 -- $1.2 Billion 364-Day Term Credit Facility dated as of July
31, 2002, among Enterprise Products Operating Partnership
L.P., Wachovia Bank, National Association, as Administrative
Agent, Lehman Commercial Paper Inc., as Co-Syndication
Agent, Royal Bank of Canada, as Co-Syndication Agent and
Arranger, with Wachovia Securities, Inc. and Lehman Brothers
Inc., as Lead Arrangers and Joint Bookrunners and RBC
Capital Markets, as Arranger (incorporated by reference to
Exhibit 4.3 to Form 8-K filed August 12, 2002).
10.2 -- Guaranty Agreement dated as of July 31, 2002 by Enterprise
Products Partners L.P. in favor of Wachovia Bank, National
Association, as Administrative Agent, with respect to the
$1.2 Billion 364-Day Term Credit Facility (incorporated by
reference to Exhibit 4.4 to Form 8-K filed August 12, 2002).
10.3* -- EPCO Agreement among Enterprise Products Partners L.P.,
Enterprise Products Operating L.P., Enterprise Products GP,
LLC and Enterprise Products Company dated July 31, 1998.
10.4 -- Transportation Contract between Enterprise Products
Operating L.P. and Enterprise Transportation Company dated
June 1, 1998 (incorporated by reference to Exhibit 10.3 to
Registration Statement Form S-1/A filed July 8, 1998).
10.5 -- Partnership Agreement among Sun BEF, Inc., Liquid Energy
Fuels Corporation and Enterprise Products Company dated May
1, 1992 (incorporated by reference to Exhibit 10.5 to
Registration Statement on Form S-1 filed May 13, 1998).
EXHIBIT
NO. DESCRIPTION
- ------- -----------
10.6 -- Propylene Facility and Pipeline Agreement between Enterprise
Petrochemical Company and Hercules Incorporated dated
December 13, 1978 (incorporated by reference to Exhibit 10.9
to Registration Statement on Form S-1 filed May 13, 1998).
10.7 -- Restated Operating Agreement for the Mont Belvieu
Fractionation Facilities Chambers County, Texas among
Enterprise Products Company, Texaco Producing Inc., El Paso
Hydrocarbons Company and Champlin Petroleum Company dated
July 17, 1985 (incorporated by reference to Exhibit 10.10 to
Registration Statement on Form S-1/A filed July 8, 1998).
10.8 -- Amendment to Propylene Facility and Pipeline Agreement and
Propylene Sales Agreement between HIMONT U.S.A., Inc. and
Enterprise Products Company dated January 1, 1993
(incorporated by reference to Exhibit 10.12 to Registration
Statement on Form S-1/A filed July 8, 1998).
10.9 -- Amendment to Propylene Facility and Pipeline Agreement and
Propylene Sales Agreement between HIMONT U.S.A., Inc. and
Enterprise Products Company dated January 1, 1995.
(incorporated by reference to Exhibit 10.13 to Registration
Statement on Form S-1/A filed July 8, 1998).
10.10 -- Fourth Amendment to Conveyance of Gas Processing Rights
among Tejas Natural Gas Liquids, LLC and Shell Oil Company,
Shell Exploration & Production Company, Shell Offshore Inc.,
Shell Deepwater Development Inc., Shell Land & Energy
Company and Shell Frontier Oil & Gas Inc. dated August 1,
1999 (incorporated by reference to Exhibit 10.14 to Form
10-Q filed November 15, 1999).
10.11 -- Fifth Amendment to Conveyance of Gas Processing Rights dated
as of April 1, 2001 among Enterprise Gas Processing, LLC,
Shell Oil Company, Shell Exploration & Production Company,
Shell Offshore Inc., Shell Consolidated Energy Resources,
Inc., Shell Land & Energy Company and Shell Frontier Oil &
Gas, Inc. (incorporated by reference to Exhibit 10.13 to
Form 10-Q filed August 13, 2001).
10.12 -- Enterprise Products Company 1998 Long-Term Incentive Plan
(incorporated by reference to Exhibit 10.1 to Registration
Statement on Form S-8 filed May 12, 2000).
10.13 -- Form of Option Agreement under the 1998 Long-Term Incentive
Plan (incorporated by reference to Exhibit 10.3 to
Registration Statement on Form S-8 filed May 12, 2000).
12.1 -- Computation of ratio of earnings to fixed charges for the
nine months ended September 30, 2002 and each of the five
years ended December 31, 2001, 2000, 1999, 1998 and 1997 for
Enterprise Products Partners L.P. (incorporated by reference
to Exhibit 12.1 to Form 10-Q filed November 13, 2002).
12.2 -- Computation of ratio of earnings to fixed charges for the
nine months ended September 30, 2002 and each of the five
years ended December 31, 2001, 2000, 1999, 1998 and 1997 for
Enterprise Products Operating L.P. (incorporated by
reference to Exhibit 12.2 to Form 10-Q filed November 13,
2002).
21.1* -- List of Subsidiaries of the Registrants.
23.1* -- Consent of Deloitte & Touche LLP.
23.2* -- Consent of Ernst & Young LLP.
23.3* -- Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1).
24.1 -- Power of Attorney for Enterprise Products Operating L.P.
(included on signature page).
24.2 -- Power of Attorney for Enterprise Products Partners L.P.
(included on signature page).
25.1* -- Form T-1 Statement of Eligibility of Trustee.
- ---------------
* Filed herewith.
EXHIBIT 4.2
================================================================================
ENTERPRISE PRODUCTS OPERATING L.P.
AS ISSUER,
ENTERPRISE PRODUCTS PARTNERS L.P.
AS GUARANTOR,
and
WACHOVIA BANK,
NATIONAL ASSOCIATION,
AS TRUSTEE
----------
FIRST SUPPLEMENTAL INDENTURE
Dated as of January 22, 2003
to
Indenture dated as of March 15, 2000
----------
$350,000,000
Series A and Series B
6.375% Senior Notes due 2013
================================================================================
TABLE OF CONTENTS
PAGE
----
ARTICLE I
THE NOTES
SECTION 1.1 Form...................................................................................2
SECTION 1.2 Title, Amount and Payment of Principal and Interest....................................2
SECTION 1.3 Registrar and Paying Agent.............................................................3
SECTION 1.4 Transfer and Exchange..................................................................3
SECTION 1.5 Legends................................................................................4
SECTION 1.6 Registration Rights Agreement..........................................................6
SECTION 1.7 Guarantee of the Notes.................................................................6
SECTION 1.8 Defeasance and Discharge...............................................................7
ARTICLE II
REDEMPTION
SECTION 2.1 Optional Redemption....................................................................7
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3.1 Table of Contents, Headings, etc.......................................................7
SECTION 3.2 Counterpart Originals..................................................................7
SECTION 3.3 Governing Law..........................................................................7
EXHIBIT A Form of Note.........................................................................A-1
EXHIBIT B Form of Certificate to be Delivered Upon Exchange of Registration
of Transfer Notes....................................................................B-1
EXHIBIT C Form of Certificate to be Delivered in Connection with
Transfers Pursuant to Regulation S...................................................C-1
i
FIRST SUPPLEMENTAL INDENTURE dated as of January 22, 2003, among
Enterprise Products Operating L.P., a Delaware limited partnership (the
"Issuer"), Enterprise Products Partners L.P., a Delaware limited partnership
(the "Guarantor"), and Wachovia Bank, National Association, a national banking
association and successor to First Union National Bank, as trustee (the
"Trustee"). Each capitalized term used but not defined in this First
Supplemental Indenture shall have the meaning assigned to such term in the
Original Indenture (as defined below).
RECITALS:
WHEREAS, the Issuer and the Guarantor have executed and delivered to
the Trustee an Indenture, dated as of March 15, 2000 (the "Original Indenture"
and as supplemented by this First Supplemental Indenture, the "Indenture"),
providing for the issuance by the Issuer from time to time of its unsecured
debentures, notes, bonds or other evidences of indebtedness to be issued in one
or more series unlimited as to principal amount (the "Debt Securities"), and the
guaranties by Guarantor of the Debt Securities (the "Guaranties");
WHEREAS, the Issuer has duly authorized and desires to cause to be
issued pursuant to the Original Indenture and this First Supplemental Indenture
two series of Debt Securities designated the "6.375% Series A Senior Notes due
2013" (the "Series A Notes") and the "6.375% Series B Senior Notes due 2013"
(the "Series B Notes" and, together with the Series A Notes, the "Notes"), all
of such Notes to be guaranteed by the Guarantor as provided in Article XIV of
the Original Indenture;
WHEREAS, the Issuer desires to cause the issuance of the Notes pursuant
to Sections 2.01 and 2.03 of the Original Indenture, which sections permit the
execution of indentures supplemental thereto to establish the form and terms of
Debt Securities of any series;
WHEREAS, pursuant to Section 9.01 of the Original Indenture, the Issuer
and the Guarantor have requested that the Trustee join in the execution of this
First Supplemental Indenture to establish the form and terms of the Notes;
WHEREAS, all things necessary have been done to make the Notes, when
executed by the Issuer and authenticated and delivered hereunder and under the
Original Indenture and duly issued by the Issuer, and the Guaranties, when the
Notes are duly issued by the Issuer, the valid obligations of the Issuer and the
Guarantor, respectively, and to make this First Supplemental Indenture a valid
agreement of the Issuer and the Guarantor enforceable in accordance with its
terms.
NOW, THEREFORE, the Issuer, the Guarantor and the Trustee hereby agree
that the following provisions shall supplement the Original Indenture:
ARTICLE I
THE NOTES
SECTION 1.1 Form.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A to this First Supplemental Indenture,
which is hereby incorporated into this First Supplemental Indenture. The terms
and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this First Supplemental Indenture and to the extent applicable,
the Issuer, the Guarantor and the Trustee, by their execution and delivery of
this First Supplemental Indenture, expressly agree to such terms and provisions
and to be bound thereby.
The Series A Notes and the Series B Notes shall be treated as a single
series of Debt Securities for purposes of determining whether Holders of the
requisite principal amount of Notes have given any notice, consent or waiver or
taken any other action permitted under the Indenture.
The Notes shall be issued only as Registered Securities. The Notes
shall be issued upon original issuance in whole in the form of one or more
Global Securities (the "Book-Entry Notes"). Each Book-Entry Note shall represent
such of the Outstanding Notes as shall be specified therein and shall provide
that it shall represent the aggregate amount of Outstanding Notes from time to
time endorsed thereon and that the aggregate amount of Outstanding Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a
Book-Entry Note to reflect the amount, or any increase or decrease in the
amount, of Outstanding Notes represented thereby shall be made by the Trustee in
accordance with written instructions or such other written form of instructions
as is customary for the Depositary, from the Depositary or its nominee on behalf
of any Person having a beneficial interest in the Book-Entry Note.
The Issuer initially appoints The Depository Trust Company to act as
Depositary with respect to the Book-Entry Notes.
SECTION 1.2 Title, Amount and Payment of Principal and Interest.
The Series A Notes shall be entitled the "6.375% Series A Senior Notes
due 2013," and the Series B Notes shall be entitled the "6.375% Series B Senior
Notes due 2013." The Trustee shall authenticate and deliver (i) Series A Notes
for original issue on the Issue Date (the "Original Series A Notes") in the
aggregate principal amount of $350,000,000, (ii) additional Series A Notes for
original issue from time to time after the Issue Date in such principal amounts
as may be specified in the Company Order described in this sentence and (iii)
Series B Notes for original issue from time to time thereafter for issue only in
exchange for a like principal amount of Series A Notes, in each case upon a
Company Order for the authentication and delivery thereof and satisfaction of
the other provisions of Section 2.05 of the Indenture. Such order shall specify
the amount of the Notes to be authenticated, the date on which the original
issue of Notes is to be authenticated, whether the Notes are Series A Notes or
Series B Notes, and the name or names of the initial Holder or Holders. The
aggregate principal amount of Notes that may be outstanding at any time may not
exceed $350,000,000 plus such additional principal amounts as may be issued and
authenticated pursuant to clause (ii) of this paragraph (except as provided in
Section 2.09 of the Indenture).
The principal amount of each Note shall be payable on February 1, 2013.
Each Series A Note shall bear interest from the date of original issuance, or
the most recent date to which
2
interest has been paid, at the fixed rate of 6.375% per annum. Each Series B
Note shall bear interest at the same rate from the most recent date to which
interest shall have been paid on the Series A Note for which such Series B Note
was exchanged or, if no interest shall have been paid on such Series A Note,
then from the date of original issuance of such Series A Note. The dates on
which interest on the Notes shall be payable shall be February 1 and August 1 of
each year, commencing August 1, 2003 in the case of the Original Series A Notes
(the "Interest Payment Dates"). The regular record date for interest payable on
the Notes on any Interest Payment Date shall be the January 15 or July 15 (the
"Regular Record Date"), as the case may be, next preceding such Interest Payment
Date.
Payments of principal of, premium, if any, and interest due on the
Notes representing Book-Entry Notes on any Interest Payment Date or at maturity
will be made available to the Trustee by 11:00 a.m., New York City time, on such
date, unless such date falls on a day which is not a Business Day, in which case
such payments will be made available to the Trustee by 11:00 a.m., New York City
time, on the next Business Day. As soon as possible thereafter, the Trustee will
make such payments to the Depositary.
SECTION 1.3 Registrar and Paying Agent.
The Issuer initially appoints the Trustee as Registrar and paying agent
with respect to the Notes. The office where Notes may be presented for
registration of transfer or exchange and the Place of Payment for the Notes
shall initially be the corporate trust office of the Trustee in the Borough of
Manhattan, The City of New York.
SECTION 1.4 Transfer and Exchange.
(i) Transfer and Exchange of Notes in Definitive Form. In addition
to the requirements set forth in Section 2.07 of the Original Indenture, Notes
in definitive form that are Registrable Securities under the Registration Rights
Agreement referred to in Section 1.6 hereof (the "Transfer Restricted
Securities") presented or surrendered for registration of transfer or exchange
pursuant to Section 2.07 of the Original Indenture shall be accompanied by the
following additional information and documents, as applicable, upon which the
Registrar may conclusively rely:
(a) if such Transfer Restricted Securities are being delivered
to the Registrar by a Holder for registration in the name of such
Holder, without transfer, a certification from such Holder to that
effect (in substantially the form of Exhibit B hereto); or
(b) if such Transfer Restricted Securities are being
transferred (1) to a "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act) in accordance with Rule 144A under
the Securities Act or (2) pursuant to an exemption from registration in
accordance with Rule 144 under the Securities Act (and based upon an
opinion of counsel if the Issuer or the Trustee so requests) or (3)
pursuant to an effective registration statement under the Securities
Act, a certification to that effect from such Holder (in substantially
the form of Exhibit B hereto); or
3
(c) if such Transfer Restricted Securities are being
transferred pursuant to an exemption from registration in accordance
with Rule 904 of Regulation S under the Securities Act, certifications
to that effect from such Holder (in substantially the form of Exhibits
B and C hereto) and an opinion of counsel to that effect if the Issuer
or the Trustee so requests; or
(d) if such Transfer Restricted Securities are being
transferred in reliance on and in compliance with another exemption
from the registration requirements of the Securities Act, a
certification to that effect from such Holder (in substantially the
form of Exhibit B hereto) and an opinion of counsel to that effect if
the Issuer or the Trustee so requests.
(ii) Transfer and Exchange of Global Notes. The transfer and
exchange of Notes or beneficial interests therein shall be effected through the
Depositary, in accordance with Section 2.15 of the Original Indenture and
Article I of this First Supplemental Indenture (including the restrictions on
transfer set forth therein and herein) and the rules and procedures of the
Depositary therefor, which shall include restrictions on transfer comparable to
those set forth therein and herein to the extent required by the Securities Act
of 1933, as amended.
SECTION 1.5 Legends.
(i) Except as permitted by the following paragraphs (ii) and (iii)
immediately below, each certificate evidencing the Book-Entry Notes and Notes in
definitive form (and all Notes issued in exchange therefor or substitution
thereof) shall bear a legend in substantially the following form:
THE ISSUANCE AND SALE OF THIS SECURITY (AND ANY GUARANTEE HEREOF) HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND NEITHER THIS
SECURITY (NOR ANY GUARANTEE HEREOF) NOR ANY INTEREST OR PARTICIPATION
HEREIN (OR THEREIN) MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR ANY
APPLICABLE STATE SECURITIES LAWS.
THE HOLDER HEREOF, BY ITS ACCEPTANCE OF THIS SECURITY, AGREES FOR THE
BENEFIT OF THE ISSUER THAT THIS SECURITY MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED PRIOR TO THE EXPIRATION OF THE HOLDING
PERIOD APPLICABLE THERETO UNDER RULE 144(K) UNDER THE SECURITIES ACT
WHICH IS APPLICABLE TO THIS SECURITY (THE "RESALE RESTRICTION
TERMINATION DATE") OTHER THAN (1) TO THE ISSUER OR ITS SUBSIDIARIES,
(2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT
4
("RULE 144A"), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" WITHIN THE MEANING OF RULE 144A
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER, IN EACH CASE TO WHOM NOTICE IS GIVEN THAT THE
RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A
(AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE
OF TRANSFER, IF APPLICABLE), (3) TO A NON-"U.S. PERSON" IN AN "OFFSHORE
TRANSACTION" (AS SUCH TERMS ARE DEFINED IN REGULATION S UNDER THE
SECURITIES ACT) IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES
ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER, IF APPLICABLE), (4) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, INCLUDING THE EXEMPTION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT, IF AVAILABLE, IN EACH CASE IN A MINIMUM PRINCIPAL
AMOUNT OF $1,000, OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, SUBJECT TO EACH OF THE FOREGOING
CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR
THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES
WITHIN ITS OR THEIR CONTROL, AND SUBJECT TO THE RIGHT OF THE ISSUER OR
THE TRUSTEE FOR THE SECURITIES PRIOR TO ANY SUCH SALE, PLEDGE OR OTHER
TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
THIS LEGEND WILL BE REMOVED UPON REQUEST OF THE HOLDER ON OR AFTER THE
RESALE RESTRICTION TERMINATION DATE.
In addition, if any of the Notes are issued in reliance on Regulation S
promulgated under the Securities Act, then such Notes shall also bear a legend
substantially in the following form:
THIS NOTE IS A GLOBAL SECURITY ISSUED IN RELIANCE ON REGULATION S
PROMULGATED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"). PRIOR TO THE EXPIRATION OF THE DISTRIBUTION
COMPLIANCE PERIOD WHICH SHALL EXTEND FOR A PERIOD OF FORTY (40) DAYS
AFTER THE DATE ON WHICH THE NOTES EVIDENCED HEREBY ARE FIRST OFFERED TO
PERSONS OTHER THAN DISTRIBUTORS IN RELIANCE ON REGULATION S OR THE DATE
OF CLOSING OF THE OFFERING, WHICHEVER IS LATER, BENEFICIAL INTERESTS
HEREIN MAY NOT BE HELD BY ANY PERSON OTHER THAN (1) A NON-U.S. PERSON
OR (2) A U.S. PERSON WHO PURCHASED SUCH INTEREST IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT PURSUANT TO RULE 144A
PROMULGATED THEREUNDER. BENEFICIAL INTERESTS HEREIN ARE NOT
EXCHANGEABLE FOR
5
PHYSICAL NOTES OTHER THAN IN ACCORDANCE WITH THE TERMS OF THE
INDENTURE. THE TERMS IN THIS LEGEND ARE USED AS USED IN REGULATION S
UNDER THE SECURITIES ACT.
(ii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a Book-Entry Note)
pursuant to Rule 144 under the Securities Act or an effective registration
statement under the Securities Act, which shall be certified to the Trustee and
Registrar upon which each may conclusively rely:
(a) in the case of any Transfer Restricted Security in
definitive form, the Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Security for a Note in definitive
form that does not bear the legend(s) set forth in (i) above and
rescind any restriction on the transfer of such Transfer Restricted
Security; and
(b) in the case of any Transfer Restricted Security
represented by a Book-Entry Note, such Transfer Restricted Security
shall not be required to bear the legend(s) set forth in (i) above if
all other interests in such Global Note have been or are concurrently
being sold or transferred pursuant to Rule 144 under the Securities Act
or pursuant to an effective registration statement under the Securities
Act, but such Transfer Restricted Security shall continue to be subject
to the provisions of Section 2.15 of the Original Indenture and Section
1.4(ii) of this First Supplemental Indenture.
(iii) Notwithstanding the foregoing, upon consummation of the
Exchange Offer (as defined in the Registration Rights Agreement), the Issuer
shall issue and, upon receipt of a Company Order in accordance with Section 2.05
of the Original Indenture, the Trustee shall authenticate Series B Notes in
exchange for Series A Notes accepted for exchange in the Exchange Offer, which
Series B Notes shall not bear the legend(s) set forth in (i) above, and the
Registrar shall rescind any restriction on the transfer of such Series B Notes,
in each case unless the Holder of such Series A Notes is either (A) a
broker-dealer tendering Series A Notes acquired directly from the Issuer, (B) a
Person participating in the Exchange Offer for purposes of distributing the
Series B Notes or (C) a Person who is an "affiliate" (as defined in Rule 144
under the Securities Act) of the Issuer. The Issuer shall identify to the
Trustee such Holders of the Notes in a written certification signed by an
Officer of the General Partner and, absent certification from the Issuer to such
effect, the Trustee shall assume that there are no such Holders.
SECTION 1.6 Registration Rights Agreement.
Holders of the Notes shall have the benefit of the Company's
registration obligations with respect to the Notes under the Registration Rights
Agreement dated January 22, 2003 by and among the Issuer, the Guarantor and the
Initial Purchasers named therein.
SECTION 1.7 Guarantee of the Notes.
In accordance with Article XIV of the Original Indenture, the Notes
will be fully, unconditionally and absolutely guaranteed on an unsecured,
unsubordinated basis by the Guarantor.
6
SECTION 1.8 Defeasance and Discharge.
The Notes shall be subject to both legal defeasance and covenant
defeasance as contemplated by Article XI of the Original Indenture.
ARTICLE II
REDEMPTION
SECTION 2.1 Optional Redemption.
The Issuer shall have no obligation to redeem, purchase or repay the
Notes pursuant to any mandatory redemption, sinking fund or analogous provisions
or at the option of a Holder thereof. The Issuer, at its option, may redeem the
Notes in accordance with the provisions of paragraph 5 of the Notes and Article
III of the Original Indenture.
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3.1 Table of Contents, Headings, etc.
The table of contents and headings of the Articles and Sections of this
First Supplemental Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof and shall in no way modify or
restrict any of the terms or provisions hereof.
SECTION 3.2 Counterpart Originals.
The parties may sign any number of copies of this First Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
SECTION 3.3 Governing Law.
THIS FIRST SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
7
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the day and year first above
written.
ENTERPRISE PRODUCTS OPERATING L.P.
as Issuer
By: Enterprise Products GP, LLC
its General Partner
By: /s/ Richard H. Bachmann
Name: Richard H. Bachmann
Title: Executive Vice President
ENTERPRISE PRODUCTS PARTNERS L.P.,
as Guarantor
By: Enterprise Products GP, LLC
its General Partner
By: /s/ Richard H. Bachmann
Name: Richard H. Bachmann
Title: Executive Vice President
WACHOVIA BANK,
NATIONAL ASSOCIATION,
as Trustee
By: /s/ R. Douglas Milner
Name: R. Douglas Milner
Title: Vice President
8
EXHIBIT A
FORM OF NOTE
[FACE OF SECURITY]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC") (55 WATER STREET, ROOM 234, NEW YORK, NEW YORK
10041) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]*
[TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE
REFERRED TO HEREIN.]*
Principal Amount
No. _____
$___________, [which amount may be
increased or decreased by the Schedule
of Increases and Decreases in Global Security attached hereto. ]*
ENTERPRISE PRODUCTS OPERATING L.P.
6.375% SERIES __ SENIOR NOTES DUE 2013
CUSIP ___________
ENTERPRISE PRODUCTS OPERATING L.P., a Delaware limited partnership (the
"Company," which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to [Cede & Co.]* or its
registered assigns, the principal sum of __________________ ($ ) U.S. dollars,
[or such greater or lesser principal sum as is shown on the attached Schedule of
Increases and Decreases in Global Security]*, on February 1, 2013
- ----------
* To be included in a Book-Entry Note.
A-1
in such coin and currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts, and
to pay interest at an annual rate of 6.375% payable on February 1 and August 1
of each year, to the person in whose name the Security is registered at the
close of business on the record date for such interest, which shall be the
preceding January 15 and July 15 (each, a "Regular Record Date"), respectively,
payable commencing on August 1, 2003, with interest accruing from January 22,
2003, or the most recent date to which interest shall have been paid.
Reference is made to the further provisions of this Security set forth
on the reverse hereof. Such further provisions shall for all purposes have the
same effect as though fully set forth at this place.
The statements in the legends set forth above are an integral part of
the terms of this Security and by acceptance hereof the Holder of this Security
agrees to be subject to, and bound by, the terms and provisions set forth in
each such legend.
This Security is issued in respect of a series of Debt Securities of an
initial aggregate of $350,000,000 in principal amount designated as the 6.375%
Series __ Senior Notes due 2013 of the Company and is governed by the Indenture
dated as of March 15, 2000, duly executed and delivered by the Company, as
issuer, and Enterprise Products Partners L.P., as guarantor (the "Guarantor") to
Wachovia Bank, National Association, as successor to First Union National Bank,
as trustee (the "Trustee"), as supplemented by the First Supplemental Indenture
dated as of January 22, 2003, duly executed by the Company, the Guarantor and
the Trustee (the "First Supplemental Indenture", and together with the
Indenture, the "Indenture"). The terms of the Indenture are incorporated herein
by reference. This Security shall in all respects be entitled to the same
benefits as definitive Securities under the Indenture.
If and to the extent any provision of the Indenture limits, qualifies
or conflicts with any other provision of the Indenture that is required to be
included in the Indenture or is deemed applicable to the Indenture by virtue of
the provisions of the Trust Indenture Act of 1939, as amended (the "TIA"), such
required provision shall control.
The Company hereby irrevocably undertakes to the Holder hereof to
exchange this Security in accordance with the terms of the Indenture without
charge.
This Security shall not be valid or become obligatory for any purpose
until the Trustee's Certificate of Authentication hereon shall have been
manually signed by the Trustee under the Indenture.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by its sole General Partner.
Dated: January 22, 2003
ENTERPRISE PRODUCTS OPERATING L.P.
By: Enterprise Products GP, LLC,
its General Partner
By:
---------------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Debt Securities of the series designated herein
referred to in the within-mentioned Indenture.
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------------------
Authorized Signatory
A-3
[REVERSE OF SECURITY]
ENTERPRISE PRODUCTS OPERATING L.P.
6.375% SERIES __ SENIOR NOTES DUE 2013
This Security is one of a duly authorized issue of unsecured
debentures, notes or other evidences of indebtedness of the Company (the "Debt
Securities") of the series hereinafter specified, all issued or to be issued
under and pursuant to the Indenture, to which Indenture reference is hereby made
for a description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company, the Guarantor and the Holders
of the Debt Securities. The Debt Securities may be issued in one or more series,
which different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may be
subject to different sinking, purchase or analogous funds (if any) and may
otherwise vary as provided in the Indenture. This Security is one of a series
designated as the 6.375% Series __ Senior Notes due 2013 of the Company, in
initial aggregate principal amount of $350,000,000 (the "Securities").
1. Interest.
The Company promises to pay interest on the principal amount of this
Security at the rate of 6.375% per annum.
The Company will pay interest semi-annually on February 1 and August 1
of each year (each an "Interest Payment Date"), commencing August 1, 2003.
Interest on the Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid on the Securities, from
January 22, 2003. Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months. The Company shall pay interest (including
post-petition interest in any proceeding under any applicable bankruptcy laws)
on overdue installments of interest (without regard to any applicable grace
period) and on overdue principal and premium, if any, from time to time on
demand at the same rate per annum, in each case to the extent lawful.
2. Method of Payment.
The Company shall pay interest on the Securities (except Defaulted
Interest) to the persons who are the registered Holders at the close of business
on the Regular Record Date immediately preceding the Interest Payment Date. Any
such interest not so punctually paid or duly provided for ("Defaulted Interest")
may be paid to the persons who are registered Holders at the close of business
on a special record date for the payment of such Defaulted Interest, or in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which such Securities may then be listed if such manner of payment
shall be deemed practicable by the Trustee, as more fully provided in the
Indenture. The Company shall pay principal, premium, if any, and interest in
such coin or currency of the United States of America as at the time of payment
shall be legal tender for payment of public and private debts. Payments in
respect of a Global Security (including principal, premium, if any, and
interest) will be made by wire transfer of immediately available funds to the
accounts specified by the Depositary. Payments in respect of Securities in
definitive form (including principal, premium, if any, and
A-4
interest) will be made at the office or agency of the Company maintained for
such purpose within the Borough of Manhattan, The City of New York, which
initially will be at the corporate trust office of the Trustee located at 1 Penn
Plaza, Suite 1414, New York, New York 10119, or, at the option of the Company,
payment of interest may be made by check mailed to the Holders on the relevant
record date at their addresses set forth in the Debt Security Register of
Holders. The Holder must surrender this Security to a paying agent to collect
payment of principal.
3. Paying Agent and Registrar.
Initially, Wachovia Bank, National Association will act as paying agent
and Registrar. The Company may change any paying agent or Registrar at any time
upon notice to the Trustee and the Holders. The Company or any of its
Subsidiaries may, subject to certain exceptions, act as paying agent or
Registrar.
4. Indenture.
This Security is one of a duly authorized issue of Debt Securities of
the Company issued and to be issued in one or more series under the Indenture.
Capitalized terms herein are used as defined in the Indenture unless
otherwise defined herein. The terms of the Securities include those stated in
the Indenture as originally executed those made part of the Indenture by
reference to the TIA, as in effect on the date of the Indenture, and those terms
stated in the First Supplemental Indenture. The Securities are subject to all
such terms, and Holders of Securities are referred to the Indenture as
originally executed, the First Supplemental Indenture and the TIA for a
statement of them. The Securities of this series are general unsecured
obligations of the Company limited to an initial aggregate principal amount of
$350,000,000; provided, however, that the authorized aggregate principal amount
of such series may be increased from time to time as provided in the First
Supplemental Indenture.
5. Redemption.
The Securities are redeemable, at the option of the Company, at any
time in whole, or from time to time in part, at a redemption price (the
"Make-Whole Price") equal to the greater of: (i) 100% of the principal amount of
the Securities to be redeemed; or (ii) the sum of the present values of the
remaining scheduled payments of principal and interest (at the rate in effect on
the date of calculation of the redemption price) on the Securities (exclusive of
interest accrued to the Redemption Date) discounted to the Redemption Date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the applicable Treasury Yield plus 30 basis points; plus, in either case,
accrued interest to the Redemption Date.
Securities called for redemption become due on the Redemption Date.
Notices of redemption will be mailed at least 30 but not more than 60 days
before the Redemption Date to each Holder of the Securities to be redeemed at
its registered address. The notice of redemption for the Securities will state,
among other things, the amount of Securities to be redeemed, the Redemption
Date, the Make-Whole Price and the place(s) that payment will be made upon
presentation and surrender of Securities to be redeemed. Unless the Company
defaults in payment of the Make-Whole Price, interest will cease to accrue on
any Securities that have been called for redemption at the Redemption Date. If
less than all the Securities are redeemed at any
A-5
time, the Trustee will select the Securities to be redeemed on a pro rata basis
or by any other method the Trustee deems fair and appropriate.
For purposes of determining the Make-Whole Price, the following
definitions are applicable:
"Treasury Yield" means, with respect to any Redemption Date applicable
to the Securities, the rate per annum equal to the semi-annual equivalent yield
to maturity (computed as of the third Business Day immediately preceding such
Redemption Date) of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the applicable Comparable Treasury Price for the Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Independent Investment Banker as having a maturity comparable to
the remaining term of the Securities that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining
terms of the Securities.
"Independent Investment Banker" means Wachovia Securities, Inc. (and
its successors), or, if such firm is unwilling or unable to select the
applicable Comparable Treasury Issue, an independent investment banking
institution of national standing appointed by the Trustee and reasonably
acceptable to the Company.
"Comparable Treasury Price" means, with respect to any Redemption Date,
(a) the bid price for the Comparable Treasury Issue (expressed as a percentage
of its principal amount) at 4:00 p.m. on the third Business Day preceding the
Redemption Date, as set forth on "Telerate Page 500" (or such other page as may
replace Telerate Page 500), or (b) if such page (or any successor page) is not
displayed or does not contain such bid prices at such time, the average of the
Reference Treasury Dealer Quotations obtained by the Trustee for the Redemption
Date.
"Reference Treasury Dealer" means (a) Wachovia Securities, Inc. (and
its successors) and (b) one other primary U.S. government securities dealer in
New York City selected by the Independent Investment Banker (each, a "Primary
Treasury Dealer"); provided, however, that if either of the foregoing shall
cease to be a Primary Treasury Dealer, the Issuer will substitute therefor
another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date for the Securities, an
average, as determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue for the Securities (expressed in each case as a
percentage of its principal amount) quoted in writing to the Trustee by such
Reference Treasury Dealer at 5:00 p.m., New York City time, on the third
Business Day preceding such Redemption Date.
Except as set forth above, the Securities will not be redeemable prior
to their Stated Maturity and will not be entitled to the benefit of any sinking
fund.
A-6
The Securities may be redeemed in part in multiplies of $1,000 only.
Any such redemption will also comply with Article III of the Indenture.
6. Denominations; Transfer; Exchange.
The Securities are to be issued in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000 in excess thereof. A
Holder may register the transfer of, or exchange, Securities in accordance with
the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture.
7. Person Deemed Owners.
The registered Holder of a Security may be treated as the owner of it
for all purposes.
8. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture may be amended or
supplemented, and any existing Event of Default or compliance with any provision
may be waived, with the consent of the Holders of a majority in principal amount
of the Outstanding Debt Securities of each series affected. Without consent of
any Holder of a Security, the parties thereto may amend or supplement the
Indenture to, among other things, cure any ambiguity or omission, to correct any
defect or inconsistency, or to make any other change that does not adversely
affect the rights of any Holder of a Security. Any such consent or waiver by the
Holder of this Security (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of this Security and any Securities which may be issued in exchange or
substitution herefor, irrespective of whether or not any notation thereof is
made upon this Security or such other Securities.
9. Defaults and Remedies.
If an Event of Default with respect to the Securities occurs and is
continuing, then in every such case the Trustee or the Holders of not less than
25% in principal amount of the Securities then Outstanding may declare the
principal amount of all the Securities to be due and payable immediately in the
manner and with the effect provided in the Indenture. Notwithstanding the
preceding sentence, however, if at any time after such a declaration of
acceleration has been made and before judgment or decree for payment of the
money due has been obtained by the Trustee as provided in the Indenture, the
Holders of a majority in principal amount of the Outstanding Securities, by
written notice to the Trustee, may rescind and annul such declaration and its
consequences if all Events of Default under the Indenture with respect to the
Securities, other than the nonpayment of the principal or interest which has
become due solely by such declaration acceleration, shall have been cured or
shall have been waived. No such rescission shall affect any subsequent default
or shall impair any right consequent thereon. Holders of Securities may not
enforce the Indenture or the Securities except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Securities. Subject to certain limitations, Holders of a
majority in aggregate principal amount of the Securities then outstanding may
direct the Trustee in its exercise of any trust or power.
A-7
10. Registration Rights
The Holder of this Security is entitled to the benefits of the
Registration Rights Agreement (the "Registration Rights Agreement") dated as of
January 22, 2003, by and among the Company, the Guarantor and the Initial
Purchasers named therein. In certain events, the Company shall be required to
pay to each affected Holder additional interest on the Securities, on the terms
and subject to the conditions of the Registration Rights Agreement.
11. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Company or its Affiliates or any subsidiary of the Company's Affiliates, and may
otherwise deal with the Company or its Affiliates as if it were not the Trustee.
12. Authentication.
This Security shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Security.
13. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (tenant in common), TEN ENT (tenants
by the entireties), JT TEN (joint tenants with right of survivorship and not as
tenants in common), CUST (Custodian), and U/G/M/A (Uniform Gifts to Minors Act).
14. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Note Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such number as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
15. Absolute Obligation.
No reference herein to the Indenture and no provision of this Security
or the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Security in the manner, at the respective times, at the rate
and in the coin or currency herein prescribed.
16. No Recourse.
The General Partner and its directors, officers, employees and members,
as such, shall have no liability for any obligations of the Guarantor or the
Issuer under the Securities, the Indenture or the Guarantee or for any claim
based on, in respect of, or by reason of, such
A-8
obligations or their creation. Each Holder by accepting the Securities waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Securities.
17. Governing Law.
This Security shall be construed in accordance with and governed by the
laws of the State of New York.
18. Guarantee.
The Securities are fully and unconditionally guaranteed on an
unsecured, unsubordinated basis by the Guarantor as set forth in Article XIV of
the Indenture, as noted in the Notation of Guarantee to this Security.
A-9
NOTATION OF GUARANTEE
The Guarantor (which term includes any successor person under the
Indenture), has fully, unconditionally and absolutely guaranteed, to the extent
set forth in the Indenture and subject to the provisions in the Indenture, the
due and punctual payment of the principal of, and premium, if any, and interest
on the Securities and all other amounts due and payable under the Indenture and
the Securities by the Company.
The obligations of the Guarantor to the Holders of Securities and to
the Trustee pursuant to the Guarantee and the Indenture are expressly set forth
in Article XIV of the Indenture and reference is hereby made to the Indenture
for the precise terms of the Guarantee.
ENTERPRISE PRODUCTS PARTNERS, L.P.
By: Enterprise Products GP, LLC,
its General Partner
By:
--------------------------------
Name:
Title:
A-10
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT -
-------------------
(Cust.)
TEN ENT - as tenants by entireties Custodian for:
-------------------------
(Minor)
under Uniform Gifts to
JT TEN - as joint tenants with Minors Act of
right of survivorship and -------------------------
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
----------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------
- --------------------------------------------------------------------------------
Please print or type name and address including postal zip code of assignee
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
- --------------------------------------------------------------------------------
to transfer said Security on the books of the Company, with full power of
substitution in the premises.
Dated
------------------------------- --------------------------------
Registered Holder
A-11
SCHEDULE OF INCREASES OR DECREASES
IN GLOBAL SECURITY*
The following increases or decreases in this Global Security have been
made:
AMOUNT OF AMOUNT OF PRINCIPAL AMOUNT
DECREASE IN INCREASE IN OF THIS GLOBAL SIGNATURE OF
PRINCIPAL PRINCIPAL AMOUNT SECURITY FOLLOWING AUTHORIZED OFFICER
AMOUNT OF THIS OF THIS SUCH DECREASE OF TRUSTEE OR
DATE OF EXCHANGE GLOBAL SECURITY GLOBAL SECURITY (OR INCREASE) DEPOSITARY
---------------- --------------- ---------------- ------------------ ------------------
- ----------
* To be included in a Book-Entry Note.
A-12
EXHIBIT B
FORM OF CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF NOTES
Re: 6.375% Senior Notes due 2013 of Enterprise Products Operating L.P.
This Certificate relates to $_____ principal amount of Notes held in**
______ book-entry or **______ definitive form by _____________________ (the
"Transferor").
The Transferor has requested the Trustee by written order to exchange
or register the transfer of a Note or Notes.
In connection with such request and in respect of each such Note, the
Transferor does hereby certify that the Transferor is familiar with the
Indenture relating to the above-captioned Notes and that the transfer of this
Note does not require registration under the Securities Act (as defined below)
because:**
[ ] Such Note is being acquired for the Transferor's own account
without transfer.
[ ] Such Note is being transferred (i) to a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act of 1933,
as amended (the "Securities Act")), in accordance with Rule 144A under the
Securities Act or (ii) pursuant to an exemption from registration in accordance
with Rule 904 of Regulation S under the Securities Act (and in the case of
clause (ii), based upon an opinion of counsel if the Company or the Trustee so
requests, together with a certification in substantially the form of Exhibit C
to the Indenture).
[ ] Such Note is being transferred (i) pursuant to an exemption
from registration in accordance with Rule 144 under the Securities Act (and
based upon an opinion of counsel if the Company or the Trustee so requests) or
(ii) pursuant to an effective registration statement under the Securities Act.
[ ] Such Note is being transferred in reliance on and in
compliance with another exemption from the registration requirements of the
Securities Act (and based upon an opinion of counsel if the Company or the
Trustee so requests).
[INSERT NAME OF TRANSFEROR]
By:
---------------------------------------
Name:
Title:
Address:
Date:
-------------------
** Fill in blank or check appropriate box, as applicable.
B-1
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS PURSUANT TO REGULATION S
_____________, ____
Wachovia Bank, National Association, as Registrar
[Address]
Attention: Corporate Trust Department
Ladies and Gentlemen:
In connection with our proposed sale of certain 6.375% Senior Notes due
2013 (the "Notes") of Enterprise Products Operating L.P. (the "Company"), we
represent that:
(i) the offer of the Notes was not made to a person in the United
States;
(ii) at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the
United States;
(iii) no directed selling efforts have been made by us in the United
States in contravention of the requirements of Rule 903(a) or
Rule 904(a) of Regulation S under the U.S. Securities Act of
1933, as applicable; and
(iv) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933.
You and the Company are entitled to rely upon this letter and you are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S under the U.S. Securities Act of 1933.
Very truly yours,
--------------------------------------
[Name]
By:
----------------------------------
Name:
Title:
Address:
C-1
EXHIBIT 4.3
RULE 144A BOOK - ENTRY SECURITY
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC") (55 WATER STREET, ROOM 234, NEW YORK, NEW YORK
10041) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE
REFERRED TO HEREIN.
Principal Amount
No. 1
$350,000,000, which amount may be
increased or decreased by the Schedule
of Increases and Decreases in Global Security attached hereto.
ENTERPRISE PRODUCTS OPERATING L.P.
6.375% SERIES A SENIOR NOTES DUE 2013
CUSIP 293791 AC 3
ENTERPRISE PRODUCTS OPERATING L.P., a Delaware limited partnership (the
"Company," which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co. or its
registered assigns, the principal sum of Three Hundred Fifty Million
($350,000,000) U.S. dollars, or such greater or lesser principal sum as is shown
on the attached Schedule of Increases and Decreases in Global Security, on
February 1, 2013 in such coin and currency of the United States of America as at
the time of payment shall be legal tender for the payment of public and private
debts, and to pay interest at an annual rate of 6.375% payable on February 1 and
August 1 of each year, to the person in whose name the Security is registered at
the close of business on the record date for such interest, which shall be the
preceding January 15 and July 15 (each, a "Regular Record Date"), respectively,
payable commencing on August 1, 2003, with interest accruing from January 22,
2003, or the most recent date to which interest shall have been paid.
Reference is made to the further provisions of this Security set forth
on the reverse hereof. Such further provisions shall for all purposes have the
same effect as though fully set forth at this place.
The statements in the legends set forth above are an integral part of
the terms of this Security and by acceptance hereof the Holder of this Security
agrees to be subject to, and bound by, the terms and provisions set forth in
each such legend.
This Security is issued in respect of a series of Debt Securities of an
initial aggregate of $350,000,000 in principal amount designated as the 6.375%
Series A Senior Notes due 2013 of the Company and is governed by the Indenture
dated as of March 15, 2000, duly executed and delivered by the Company, as
issuer, and Enterprise Products Partners L.P., as guarantor (the "Guarantor"),
to Wachovia Bank, National Association, as successor to First Union National
Bank, as trustee (the "Trustee"), as supplemented by the First Supplemental
Indenture dated as of January 22, 2003, duly executed by the Company, the
Guarantor and the Trustee (the "First Supplemental Indenture", and together with
the Indenture, the "Indenture"). The terms of the Indenture are incorporated
herein by reference. This Security shall in all respects be entitled to the same
benefits as definitive Securities under the Indenture.
If and to the extent any provision of the Indenture limits, qualifies
or conflicts with any other provision of the Indenture that is required to be
included in the Indenture or is deemed applicable to the Indenture by virtue of
the provisions of the Trust Indenture Act of 1939, as amended (the "TIA"), such
required provision shall control.
The Company hereby irrevocably undertakes to the Holder hereof to
exchange this Security in accordance with the terms of the Indenture without
charge.
THE ISSUANCE AND SALE OF THIS SECURITY (AND ANY GUARANTEE HEREOF) HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAWS AND NEITHER THIS SECURITY (NOR ANY GUARANTEE
HEREOF) NOR ANY INTEREST OR PARTICIPATION HEREIN (OR THEREIN) MAY BE OFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR ANY
APPLICABLE STATE SECURITIES LAWS.
THE HOLDER HEREOF, BY ITS ACCEPTANCE OF THIS SECURITY, AGREES FOR THE BENEFIT OF
THE ISSUER THAT THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE THERETO
UNDER RULE 144(K) UNDER THE SECURITIES ACT WHICH IS APPLICABLE TO THIS SECURITY
(THE "RESALE RESTRICTION TERMINATION DATE") OTHER THAN (1) TO THE ISSUER OR ITS
SUBSIDIARIES, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" WITHIN THE MEANING OF
RULE 144A PURCHASING FOR
2
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER, IN EACH
CASE TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR
ON THE CERTIFICATE OF TRANSFER, IF APPLICABLE), (3) TO A NON-"U.S. PERSON" IN AN
"OFFSHORE TRANSACTION" (AS SUCH TERMS ARE DEFINED IN REGULATION S UNDER THE
SECURITIES ACT) IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS
INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER,
IF APPLICABLE), (4) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING THE EXEMPTION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT, IF AVAILABLE, IN EACH CASE IN A
MINIMUM PRINCIPAL AMOUNT OF $1,000, OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, SUBJECT TO EACH OF THE FOREGOING CASES TO
ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF
SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL,
AND SUBJECT TO THE RIGHT OF THE ISSUER OR THE TRUSTEE FOR THE SECURITIES PRIOR
TO ANY SUCH SALE, PLEDGE OR OTHER TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM. THIS LEGEND WILL BE REMOVED UPON REQUEST OF THE HOLDER ON OR AFTER THE
RESALE RESTRICTION TERMINATION DATE.
This Security shall not be valid or become obligatory for any purpose
until the Trustee's Certificate of Authentication hereon shall have been
manually signed by the Trustee under the Indenture.
3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by its sole General Partner.
Dated: January 22, 2003
ENTERPRISE PRODUCTS OPERATING L.P.
By: Enterprise Products GP, LLC,
its General Partner
By: /s/ Richard H. Bachmann
Name: Richard H. Bachmann
Title: Executive Vice President
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Debt Securities of the series designated herein
referred to in the within-mentioned Indenture.
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By: /s/ R. Douglas Milner
Authorized Signatory
4
REVERSE OF RULE 144A BOOK-ENTRY SECURITY
ENTERPRISE PRODUCTS OPERATING L.P.
6.375% SERIES A SENIOR NOTES DUE 2013
This Security is one of a duly authorized issue of unsecured
debentures, notes or other evidences of indebtedness of the Company (the "Debt
Securities") of the series hereinafter specified, all issued or to be issued
under and pursuant to the Indenture, to which Indenture reference is hereby made
for a description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company, the Guarantor and the Holders
of the Debt Securities. The Debt Securities may be issued in one or more series,
which different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may be
subject to different sinking, purchase or analogous funds (if any) and may
otherwise vary as provided in the Indenture. This Security is one of a series
designated as the 6.375% Series A Senior Notes due 2013 of the Company, in
initial aggregate principal amount of $350,000,000 (the "Securities").
1. Interest.
The Company promises to pay interest on the principal amount of this
Security at the rate of 6.375% per annum.
The Company will pay interest semi-annually on February 1 and August 1
of each year (each an "Interest Payment Date"), commencing August 1, 2003.
Interest on the Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid on the Securities, from
January 22, 2003. Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months. The Company shall pay interest (including
post-petition interest in any proceeding under any applicable bankruptcy laws)
on overdue installments of interest (without regard to any applicable grace
period) and on overdue principal and premium, if any, from time to time on
demand at the same rate per annum, in each case to the extent lawful.
2. Method of Payment.
The Company shall pay interest on the Securities (except Defaulted
Interest) to the persons who are the registered Holders at the close of business
on the Regular Record Date immediately preceding the Interest Payment Date. Any
such interest not so punctually paid or duly provided for ("Defaulted Interest")
may be paid to the persons who are registered Holders at the close of business
on a special record date for the payment of such Defaulted Interest, or in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which such Securities may then be listed if such manner of payment
shall be deemed practicable by the Trustee, as more fully provided in the
Indenture. The Company shall pay principal, premium, if any, and interest in
such coin or currency of the United States of America as at the time of payment
shall be legal tender for payment of public and private debts. Payments in
respect of a Global Security (including principal, premium, if any, and
interest) will be made by wire transfer of immediately available funds to the
accounts specified by the Depositary.
5
Payments in respect of Securities in definitive form (including principal,
premium, if any, and interest) will be made at the office or agency of the
Company maintained for such purpose within the Borough of Manhattan, The City of
New York, which initially will be at the corporate trust office of the Trustee
located at 1 Penn Plaza, Suite 1414, New York, New York 10119, or, at the option
of the Company, payment of interest may be made by check mailed to the Holders
on the relevant record date at their addresses set forth in the Debt Security
Register of Holders. The Holder must surrender this Security to a paying agent
to collect payment of principal.
3. Paying Agent and Registrar.
Initially, Wachovia Bank, National Association will act as paying agent
and Registrar. The Company may change any paying agent or Registrar at any time
upon notice to the Trustee and the Holders. The Company or any of its
Subsidiaries may, subject to certain exceptions, act as paying agent or
Registrar.
4. Indenture.
This Security is one of a duly authorized issue of Debt Securities of
the Company issued and to be issued in one or more series under the Indenture.
Capitalized terms herein are used as defined in the Indenture unless
otherwise defined herein. The terms of the Securities include those stated in
the Indenture as originally executed, those made part of the Indenture by
reference to the TIA, as in effect on the date of the Indenture, and those terms
stated in the First Supplemental Indenture. The Securities are subject to all
such terms, and Holders of Securities are referred to the Indenture as
originally executed, the First Supplemental Indenture and the TIA for a
statement of such terms. The Securities of this series are general unsecured
obligations of the Company limited to an initial aggregate principal amount of
$350,000,000; provided, however, that the authorized aggregate principal amount
of such series may be increased from time to time as provided in the First
Supplemental Indenture.
5. Redemption.
The Securities are redeemable, at the option of the Company, at any
time in whole, or from time to time in part, at a redemption price (the
"Make-Whole Price") equal to the greater of: (i) 100% of the principal amount of
the Securities to be redeemed; or (ii) the sum of the present values of the
remaining scheduled payments of principal and interest (at the rate in effect on
the date of calculation of the redemption price) on the Securities (exclusive of
interest accrued to the Redemption Date) discounted to the Redemption Date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the applicable Treasury Yield plus 30 basis points; plus, in either case,
accrued interest to the Redemption Date.
Securities called for redemption become due on the Redemption Date.
Notices of redemption will be mailed at least 30 but not more than 60 days
before the Redemption Date to each Holder of the Securities to be redeemed at
its registered address. The notice of redemption for the Securities will state,
among other things, the amount of Securities to be redeemed, the Redemption
Date, the Make-Whole Price and the place(s) that payment will be made upon
presentation and surrender of Securities to be redeemed. Unless the Company
defaults in
6
payment of the Make-Whole Price, interest will cease to accrue on any Securities
that have been called for redemption at the Redemption Date. If less than all
the Securities are redeemed at any time, the Trustee will select the Securities
to be redeemed on a pro rata basis or by any other method the Trustee deems fair
and appropriate.
For purposes of determining the Make-Whole Price, the following
definitions are applicable:
"Treasury Yield" means, with respect to any Redemption Date applicable
to the Securities, the rate per annum equal to the semi-annual equivalent yield
to maturity (computed as of the third Business Day immediately preceding such
Redemption Date) of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the applicable Comparable Treasury Price for the Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Independent Investment Banker as having a maturity comparable to
the remaining term of the Securities that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining
terms of the Securities.
"Independent Investment Banker" means Wachovia Securities, Inc. (and
its successors), or, if such firm is unwilling or unable to select the
applicable Comparable Treasury Issue, an independent investment banking
institution of national standing appointed by the Trustee and reasonably
acceptable to the Company.
"Comparable Treasury Price" means, with respect to any Redemption Date,
(a) the bid price for the Comparable Treasury Issue (expressed as a percentage
of its principal amount) at 4:00 p.m. on the third Business Day preceding the
Redemption Date, as set forth on "Telerate Page 500" (or such other page as may
replace Telerate Page 500), or (b) if such page (or any successor page) is not
displayed or does not contain such bid prices at such time, the average of the
Reference Treasury Dealer Quotations obtained by the Trustee for the Redemption
Date.
"Reference Treasury Dealer" means (a) Wachovia Securities, Inc. (and
its successors) and (b) one other primary U.S. government securities dealer in
New York City selected by the Independent Investment Banker (each, a "Primary
Treasury Dealer"); provided, however, that if either of the foregoing shall
cease to be a Primary Treasury Dealer, the Issuer will substitute therefor
another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date for the Securities, an
average, as determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue for the Securities (expressed in each case as a
percentage of its principal amount) quoted in writing to the Trustee by such
Reference Treasury Dealer at 5:00 p.m., New York City time, on the third
Business Day preceding such Redemption Date.
Except as set forth above, the Securities will not be redeemable prior
to their Stated Maturity and will not be entitled to the benefit of any sinking
fund.
7
The Securities may be redeemed in part in multiplies of $1,000 only.
Any such redemption will also comply with Article III of the Indenture.
6. Denominations; Transfer; Exchange.
The Securities are to be issued in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000 in excess thereof. A
Holder may register the transfer of, or exchange, Securities in accordance with
the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture.
7. Persons Deemed Owners.
The registered Holder of a Security may be treated as the owner of it
for all purposes.
8. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture may be amended or
supplemented, and any existing Event of Default or compliance with any provision
may be waived, with the consent of the Holders of a majority in principal amount
of the Outstanding Debt Securities of each series affected. Without consent of
any Holder of a Security, the parties thereto may amend or supplement the
Indenture to, among other things, cure any ambiguity or omission, to correct any
defect or inconsistency, or to make any other change that does not adversely
affect the rights of any Holder of a Security. Any such consent or waiver by the
Holder of this Security (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of this Security and any Securities which may be issued in exchange or
substitution herefor, irrespective of whether or not any notation thereof is
made upon this Security or such other Securities.
9. Defaults and Remedies.
If an Event of Default with respect to the Securities occurs and is
continuing, then in every such case the Trustee or the Holders of not less than
25% in principal amount of the Securities then Outstanding may declare the
principal amount of all the Securities to be due and payable immediately in the
manner and with the effect provided in the Indenture. Notwithstanding the
preceding sentence, however, if at any time after such a declaration of
acceleration has been made and before judgment or decree for payment of the
money due has been obtained by the Trustee as provided in the Indenture, the
Holders of a majority in principal amount of the Outstanding Securities, by
written notice to the Trustee, may rescind and annul such declaration and its
consequences if all Events of Default under the Indenture with respect to the
Securities, other than the nonpayment of the principal or interest which has
become due solely by such declaration acceleration, shall have been cured or
shall have been waived. No such rescission shall affect any subsequent default
or shall impair any right consequent thereon. Holders of Securities may not
enforce the Indenture or the Securities except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Securities. Subject to certain limitations, Holders of a
majority in aggregate principal amount of the Securities then outstanding may
direct the Trustee in its exercise of any trust or power.
8
10. Registration Rights
The Holder of this Security is entitled to the benefits of the
Registration Rights Agreement (the "Registration Rights Agreement") dated as of
January 22, 2003, by and among the Company, the Guarantor and the Initial
Purchasers named therein. In certain events, the Company shall be required to
pay to each affected Holder additional interest on the Securities, on the terms
and subject to the conditions of the Registration Rights Agreement.
11. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Company or its Affiliates or any subsidiary of the Company's Affiliates, and may
otherwise deal with the Company or its Affiliates as if it were not the Trustee.
12. Authentication.
This Security shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Security.
13. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (tenant in common), TEN ENT (tenants
by the entireties), JT TEN (joint tenants with right of survivorship and not as
tenants in common), CUST (Custodian), and U/G/M/A (Uniform Gifts to Minors Act).
14. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Note Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such number as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
15. Absolute Obligation.
No reference herein to the Indenture and no provision of this Security
or the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Security in the manner, at the respective times, at the rate
and in the coin or currency herein prescribed.
16. No Recourse.
The General Partner and its directors, officers, employees and members,
as such, shall have no liability for any obligations of the Guarantor or the
Issuer under the Securities, the Indenture or the Guarantee or for any claim
based on, in respect of, or by reason of, such
9
obligations or their creation. Each Holder by accepting the Securities waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Securities.
17. Governing Law.
This Security shall be construed in accordance with and governed by the
laws of the State of New York.
18. Guarantee.
The Securities are fully and unconditionally guaranteed on an
unsecured, unsubordinated basis by the Guarantor as set forth in Article XIV of
the Indenture, as noted in the Notation of Guarantee to this Security.
10
NOTATION OF GUARANTEE
The Guarantor (which term includes any successor person under the
Indenture), has fully, unconditionally and absolutely guaranteed, to the extent
set forth in the Indenture and subject to the provisions in the Indenture, the
due and punctual payment of the principal of, and premium, if any, and interest
on the Securities and all other amounts due and payable under the Indenture and
the Securities by the Company.
The obligations of the Guarantor to the Holders of Securities and to
the Trustee pursuant to the Guarantee and the Indenture are expressly set forth
in Article XIV of the Indenture and reference is hereby made to the Indenture
for the precise terms of the Guarantee.
ENTERPRISE PRODUCTS PARTNERS L.P.
By: Enterprise Products GP, LLC,
its General Partner
By: /s/ Richard H. Bachmann
Name: Richard H. Bachmann
Title: Executive Vice President
11
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT -
---------------
(Cust.)
TEN ENT - as tenants by entireties Custodian for:
--------------------
(Minor)
under Uniform Gifts to
JT TEN - as joint tenants with Minors Act of
right of survivorship and ---------------------
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
----------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------
- --------------------------------------------------------------------------------
Please print or type name and address including postal zip code of assignee
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
- --------------------------------------------------------------------------------
to transfer said Security on the books of the Company, with full power of
substitution in the premises.
Dated
-------------------------- ------------------------------
Registered Holder
12
SCHEDULE OF INCREASES OR DECREASES
IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been
made:
AMOUNT OF AMOUNT OF PRINCIPAL AMOUNT
DECREASE IN INCREASE IN OF THIS GLOBAL SIGNATURE OF
PRINCIPAL PRINCIPAL AMOUNT SECURITY FOLLOWING AUTHORIZED OFFICER
AMOUNT OF THIS OF THIS SUCH DECREASE OF TRUSTEE OR
DATE OF EXCHANGE GLOBAL SECURITY GLOBAL SECURITY (OR INCREASE) DEPOSITARY
---------------- --------------- ---------------- ------------------ ------------------
13
EXHIBIT 4.5
================================================================================
REGISTRATION RIGHTS AGREEMENT
Dated as of January 22, 2003
By and Among
ENTERPRISE PRODUCTS OPERATING L.P.,
ENTERPRISE PRODUCTS PARTNERS L.P.
and
WACHOVIA SECURITIES, INC.
RBC DOMINION SECURITIES CORPORATION
SCOTIA CAPITAL (USA) INC.
SUNTRUST CAPITAL MARKETS, INC.
HVB CAPITAL MARKETS, INC.
TOKYO-MITSUBISHI INTERNATIONAL PLC
================================================================================
$350,000,000
6.375% SENIOR NOTES DUE 2013
TABLE OF CONTENTS
Section Page
1. Definitions....................................................................1
2. Exchange Offer.................................................................4
3. Shelf Registration Statement...................................................7
4. Additional Interest............................................................8
5. Registration Procedures.......................................................10
6. Registration Expenses.........................................................16
7. Indemnification...............................................................17
8. Rule 144 and 144A.............................................................20
9. Miscellaneous.................................................................21
i
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated as of
January 22, 2003 by and among Enterprise Products Operating L.P., a Delaware
limited partnership (the "Operating Partnership"), Enterprise Products Partners
L.P., a Delaware limited partnership (the "Partnership"), and Wachovia
Securities, Inc., RBC Dominion Securities Corporation, Scotia Capital (USA)
Inc., SunTrust Capital Markets, Inc., HVB Capital Markets, Inc. and
Tokyo-Mitsubishi International plc (collectively, the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement (the "Purchase Agreement"), dated as of January 16, 2003, by and among
the Operating Partnership, the Partnership, Enterprise Products GP, LLC and the
Initial Purchasers that provides for the sale by the Operating Partnership to
the Initial Purchasers of $350,000,000 aggregate principal amount of the
Operating Partnership's 6.375% Series A Senior Notes due 2013 (the "Notes"). The
Notes will be fully and unconditionally guaranteed on an unsubordinated,
unsecured basis (the "Guarantee") by the Partnership. The Notes and the
Guarantee together are referred to as the "Securities." To induce the Initial
Purchasers to enter into the Purchase Agreement, the Operating Partnership and
the Partnership have agreed to provide the registration rights set forth in this
Agreement for the benefit of the Initial Purchasers and their direct and
indirect transferees and assigns. The execution and delivery of this Agreement
is a condition to the Initial Purchasers' obligations to purchase the Securities
under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the following
meanings:
Additional Interest shall have the meaning set forth in Section 4(a).
Agreement shall have the meaning set forth in the first introductory
paragraph.
Applicable Period shall have the meaning set forth in Section 2(b).
Closing Date shall have the meaning given to such term in the Purchase
Agreement.
Commission means the U.S. Securities and Exchange Commission.
DTC means The Depository Trust Company.
Effectiveness Period shall have the meaning set forth in Section 3(a).
Exchange Act means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
Exchange Notes shall have the meaning set forth in Section 2(a).
Exchange Offer shall have the meaning set forth in Section 2(a).
Exchange Registration Statement shall have the meaning set forth in
Section 2(a).
Guarantee shall have the meaning set forth in the second introductory
paragraph.
Holder means any holder of a Registrable Security.
Indemnified Person shall have the meaning set forth in Section 7(c).
Indemnifying Person shall have the meaning set forth in Section 7(c).
Indenture means the Indenture, dated as of March 15, 2000, by and among
the Operating Partnership, as issuer, the Partnership, as guarantor, and
Wachovia Bank, National Association, as successor to First Union National Bank,
as trustee, as amended or supplemented by that certain First Supplemental
Indenture dated as of the Closing Date and as further amended or supplemented
from time to time in accordance with the terms thereof.
Initial Purchasers shall have the meaning set forth in the second
introductory paragraph.
Inspectors shall have the meaning set forth in Section 5(n).
NASD means the National Association of Securities Dealers, Inc.
Notes shall have the meaning set forth in the second introductory
paragraph.
Operating Partnership shall have the meaning set forth in the first
introductory paragraph.
Participant shall have the meaning set forth in Section 7(a).
Participating Broker-Dealer shall have the meaning set forth in Section
2(b).
Partnership shall have the meaning set forth in the first introductory
paragraph.
Person means an individual, trustee, corporation, partnership, limited
liability company, joint stock company, trust, unincorporated association,
union, business association, firm or other legal entity.
Private Exchange shall have the meaning set forth in Section 2(b).
Private Exchange Notes shall have the meaning set forth in Section
2(b).
Prospectus means the prospectus included in any Registration Statement,
including any preliminary prospectus and any prospectus as amended or
supplemented by any prospectus supplement, and all other amendments and
supplements to such prospectus with respect to the terms of the offering of any
portion of the Registrable Securities, including post-effective amendments, in
each case including all documents incorporated by reference therein.
Purchase Agreement shall have the meaning set forth in the second
introductory paragraph.
2
Records shall have the meaning set forth in Section 5(n).
Registrable Securities means each Note (and the related Guarantee),
each Exchange Note (and the related Guarantee) as to which Section 2(c)(ii)(D)
hereof is applicable and each Private Exchange Note (and the related Guarantee),
until the earliest to occur of (a) a Registration Statement (other than, with
respect to any Exchange Note as to which Section 2(c)(ii)(D) hereof is
applicable, the Exchange Registration Statement) covering such Note, Exchange
Note or Private Exchange Note (and, in each case, the related Guarantee), as the
case may be, has been declared effective by the Commission and such Note,
Exchange Note or Private Exchange Note (and, in each case, the related
Guarantee), as the case may be, has been disposed of in accordance with such
effective Registration Statement, (b) such Note, Exchange Note or Private
Exchange Note, as the case may be, is sold in compliance with Rule 144, or is
saleable pursuant to Rule 144(k), (c) such Note has been exchanged for an
Exchange Note pursuant to an Exchange Offer and is entitled to be resold without
complying with the prospectus delivery requirements of the Securities Act and
(d) such Note, Exchange Note or Private Exchange Note (and, in each case, the
related Guarantee), as the case may be, ceases to be outstanding for purposes of
the Indenture.
Registration Statement means any registration statement of the
Operating Partnership and the Partnership filed with the Commission pursuant to
this Agreement, including, but not limited to, any Exchange Registration
Statement and any Shelf Registration Statement, including the Prospectus and any
amendment or supplement to such registration statement, including all
post-effective amendments and exhibits thereto and documents incorporated by
reference therein.
Rule 144 means Rule 144 promulgated under the Securities Act, as such
rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the Commission.
Rule 144A means Rule 144A promulgated under the Securities Act, as such
rule may be amended from time to time, or any similar rule (other than Rule 144)
or regulation hereafter adopted by the Commission.
Rule 415 means Rule 415 promulgated under the Securities Act, as such
rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
Securities shall have the meaning set forth in the second introductory
paragraph.
Securities Act means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
Shelf Notice shall have the meaning set forth in Section 2(c)(ii).
Shelf Registration Statement shall have the meaning set forth in
Section 3(a).
TIA means the Trust Indenture Act of 1939, as amended.
Trustee means the trustee under the Indenture.
3
2. Exchange Offer
(a) Exchange Offer Registration Statement. The Operating Partnership
and the Partnership shall file with the Commission, to the extent not prohibited
by any applicable law or applicable interpretation of the staff of the
Commission, a Registration Statement on the appropriate form (the "Exchange
Registration Statement") no later than the 120th day after the Closing Date for
an offer to exchange (the "Exchange Offer") any and all of the Registrable
Securities (other than the Private Exchange Notes, if any) for a like aggregate
principal amount of debt securities of the Operating Partnership (guaranteed by
the Partnership) that are identical in all material respects to the Notes and
the related Guarantees (the "Exchange Notes"). The Exchange Notes shall be
entitled to the benefits of the Indenture or a trust indenture that is identical
in all material respects to the Indenture (other than such changes as are
necessary to comply with any requirements of the Commission to effect or
maintain the qualification thereof under the TIA), except that the Exchange
Notes (other than Private Exchange Notes, if any) shall have been registered
pursuant to an effective Registration Statement under the Securities Act and
shall contain no restrictive legend thereon. The Exchange Offer shall comply
with all applicable tender offer rules and regulations under the Exchange Act.
The Operating Partnership and the Partnership agree to use their respective
reasonable efforts to (i) cause the Exchange Registration Statement to be
declared effective under the Securities Act on or before the 210th day after the
Closing Date; (ii) keep the Exchange Offer open for at least 20 business days
(or longer if required by applicable law) after the date that notice of the
Exchange Offer is first mailed to Holders; provided, that the Exchange Offer
must be consummated no later than 45 business days following the date the
Exchange Registration Statement is first declared effective by the Commission;
and (iii) consummate the Exchange Offer on or prior to the date that is 210 days
plus 45 business days following the Closing Date. If after such Exchange
Registration Statement is declared effective by the Commission, the Exchange
Offer or the issuance of the Exchange Notes thereunder is delayed or suspended
by any stop order, injunction or other order or requirement of the Commission or
any other governmental agency or court, such Exchange Registration Statement
shall be deemed not to have become effective for purposes of this Agreement
during the period of such delay or suspension until the Exchange Offer may
legally resume.
Each Holder who participates in the Exchange Offer will be required to
make representations in writing to the Operating Partnership and the
Partnership, including representations that any Exchange Notes received by it
will be acquired in the ordinary course of its business, that at the time of the
consummation of the Exchange Offer such Holder will have no arrangement or
understanding with any Person to participate in the distribution of the Exchange
Notes in violation of the provisions of the Securities Act and that such Holder
is not an affiliate of the Operating Partnership or the Partnership within the
meaning of the Securities Act and is not acting on behalf of any Persons who
could not truthfully make the foregoing representations. Upon consummation of
the Exchange Offer in accordance with this Section 2, the provisions of this
Agreement shall continue to apply, mutatis mutandis, solely with respect to
Registrable Securities that are Private Exchange Notes and Exchange Notes held
by Participating Broker-Dealers, and the Operating Partnership and the
Partnership shall have no further obligation to register Registrable Securities
(other than Private Exchange Notes and other than in respect of any Exchange
Notes as to which clause 2(c)(ii)(D) hereof applies) pursuant to Section 3
hereof. No securities other than the Exchange Notes shall be included in the
Exchange Registration Statement.
4
(b) Plan of Distribution. The Operating Partnership and the Partnership
shall include within the Prospectus contained in the Exchange Registration
Statement a section entitled "Plan of Distribution" that shall contain a summary
statement of the positions taken or policies made by the staff of the Commission
with respect to the potential "underwriter" status of any broker-dealer that is
the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
Exchange Notes received by such broker-dealer in the Exchange Offer (a
"Participating Broker-Dealer"), whether such positions or policies have been
publicly disseminated by the staff of the Commission or such positions or
policies represent the prevailing views of the staff of the Commission. Such
"Plan of Distribution" section shall also expressly permit the use of the
Prospectus by all Persons subject to the prospectus delivery requirements of the
Securities Act, including all Participating Broker-Dealers, and include a
statement describing the means by which Participating Broker-Dealers may resell
the Exchange Notes.
The Operating Partnership and the Partnership shall use their
respective reasonable efforts to keep the Exchange Registration Statement
effective and to amend and supplement the Prospectus contained therein in order
to permit such Prospectus to be lawfully delivered by all Persons subject to the
prospectus delivery requirements of the Securities Act for such period of time
as is necessary to comply with applicable law in connection with any resale of
the Exchange Notes; provided, however, that such period shall not exceed 210
days after the consummation of the Exchange Offer (or such longer period if
extended pursuant to the last paragraph of Section 5 hereof) (the "Applicable
Period").
If, prior to consummation of the Exchange Offer, any of the Initial
Purchasers holds any Notes acquired by it and having, or that are reasonably
likely to be determined to have, the status of an unsold allotment in the
initial distribution, the Operating Partnership and the Partnership, upon the
request of any such Initial Purchaser simultaneously with the delivery of the
Exchange Notes in the Exchange Offer, shall issue and deliver to such Initial
Purchaser in exchange (the "Private Exchange") for such Notes held by the
Initial Purchaser a like principal amount of debt securities of the Operating
Partnership guaranteed by the Partnership that are identical in all material
respects to the Exchange Notes (the "Private Exchange Notes") (and that are
issued pursuant to the same indenture as the Exchange Notes), except for the
placement of a restrictive legend on such Private Exchange Notes. If
permissable, the Private Exchange Notes shall bear the same CUSIP number as the
Exchange Notes.
Interest on the Exchange Notes and the Private Exchange Notes will
accrue from the later of (i) (A) the last interest payment date on which
interest was paid on the Notes surrendered in exchange therefor or (B) if the
Notes are surrendered for exchange on a date in a period which includes the
record date for an interest payment date to occur on or after the date of such
exchange and as to which interest will be paid, the date of such interest
payment date or (ii) if no interest has been paid on the Notes, from the Closing
Date.
5
In connection with the Exchange Offer, the Operating Partnership and
the Partnership shall:
(1) mail to each Holder a copy of the Prospectus forming part
of the Exchange Registration Statement, together with an appropriate letter of
transmittal and related documents;
(2) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York time, on the last business day on which
the Exchange Offer shall remain open; and
(3) otherwise comply in all material respects with all
applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer or the
Private Exchange, as the case may be, the Operating Partnership and the
Partnership shall:
(1) accept for exchange all Notes properly tendered and not
validly withdrawn pursuant to the Exchange Offer or the Private Exchange; and
(2) cause the Trustee to authenticate and deliver promptly to
each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may
be, equal in principal amount to the Notes of such Holder accepted for exchange.
The Exchange Notes and the Private Exchange Notes may be issued under
the Indenture or an indenture identical in all material respects to the
Indenture, which in either event shall provide that the Exchange Notes shall not
be subject to any transfer restrictions and the Private Exchange Notes shall be
subject to the transfer restrictions set forth or referred to in the restrictive
legend placed on such Private Exchange Notes. The Indenture or such indenture
shall provide that the Exchange Notes, the Private Exchange Notes and the Notes
shall vote and consent together on all matters as one class and that neither the
Exchange Notes, the Private Exchange Notes nor the Notes will have the right to
vote or consent as a separate class on any matter.
(c) Delivery of Shelf Notice. (i) If, following the date hereof there
is announced a change in Commission policy that in the reasonable opinion of
counsel to the Operating Partnership and the Partnership raises a substantial
question as to whether the Exchange Offer is permitted by applicable federal
law, the Operating Partnership and the Partnership hereby agree to seek a
no-action letter or other favorable decision from the Commission allowing the
Operating Partnership and the Partnership to consummate an Exchange Offer for
the Notes. The Operating Partnership and the Partnership agree to pursue the
issuance of such a decision to the level of the senior staff of the Commission.
In connection with the foregoing, the Operating Partnership and the Partnership
hereby agree to take all such other actions as may be requested by the
Commission or its staff or otherwise required in connection with the issuance of
such decision, including without limitation (A) participating in telephonic
conferences with the Commission, (B) delivering to the Commission or its staff
an analysis prepared by counsel to the Operating Partnership and the Partnership
setting forth the legal bases, if any, upon which such counsel has concluded
that the Exchange Offer should be permitted and (C) diligently pursuing a
resolution (which need not be favorable) by the Commission or its staff.
6
(ii) If, (A) notwithstanding the efforts contemplated above, the
Operating Partnership and the Partnership are not permitted to effect an
Exchange Offer, (B) a Holder of Private Exchange Notes so requests within 20
business days after the consummation of the Private Exchange, (C) because of any
changes in law or in currently prevailing interpretations of the staff of the
Commission, a Holder (other than an Initial Purchaser holding Notes acquired
directly from the Operating Partnership and the Partnership) is not permitted to
participate in the Exchange Offer and requests the Operating Partnership and the
Partnership in writing within 20 business days after the consummation of the
Exchange Offer to have such Holder's Notes included in a Registration Statement,
or (D) in the case of any Holder that participates in the Exchange Offer, such
Holder does not receive Exchange Notes on the date of the exchange that may be
sold without restriction under state and federal securities laws (other than due
solely to the status of such Holder as an affiliate of the Operating Partnership
or the Partnership within the meaning of the Securities Act) and such Holder
requests the Operating Partnership in writing within 20 business days after the
consummation of the Exchange Offer to have such Holder's Notes included in a
Registration Statement, then the Operating Partnership and the Partnership shall
promptly deliver written notice thereof (the "Shelf Notice") to the Trustee and
the affected Holder(s), and shall file a Shelf Registration Statement pursuant
to Section 3 hereof.
3. Shelf Registration Statement
If a Shelf Notice is delivered as contemplated by Section 2(c)(ii)
hereof, then:
(a) Shelf Registration Statement. The Operating Partnership and the
Partnership shall file with the Commission a Registration Statement for an
offering to be made on a continuous basis pursuant to Rule 415 covering (i) all
of the Registrable Securities not exchanged in the Exchange Offer, (ii) all of
the Private Exchange Notes and (iii) all of the Exchange Notes as to which
Section 2(c)(ii)(D) is applicable (the "Shelf Registration Statement"). The
Operating Partnership and the Partnership shall use their respective reasonable
efforts to file with the Commission the Shelf Registration Statement as soon as
practicable and in any event on or prior to the 90th day after the delivery of
the Shelf Notice. The Shelf Registration Statement shall be on Form S-3 or
another appropriate form permitting registration of such Registrable Securities
for resale by Holders in the manner or manners designated by them (but not
including any underwritten offerings). The Operating Partnership and the
Partnership shall not permit any securities other than the Registrable
Securities to be included in the Shelf Registration Statement.
The Operating Partnership and the Partnership shall use their
respective reasonable efforts to cause the Shelf Registration Statement to be
declared effective under the Securities Act on or prior to the date that is 180
days after delivery of the Shelf Notice and to keep the Shelf Registration
Statement continuously effective under the Securities Act until the date that is
two years from the Closing Date (or such shorter restrictive period as may be
required pursuant to Rule 144(k)) or such shorter period ending when all
Registrable Securities covered by the Shelf Registration Statement have been
sold in the manner set forth and as contemplated in the Shelf Registration
Statement or cease to be outstanding (the "Effectiveness Period"); provided,
however, that the Effectiveness Period in respect of the Shelf Registration
Statement shall be extended to the extent required to permit dealers to comply
with the applicable prospectus delivery requirements of Rule 174 under the
Securities Act and as otherwise provided herein.
7
(b) Withdrawal of Stop Orders. If the Shelf Registration Statement
ceases to be effective at any time during the Effectiveness Period due to the
receipt of a stop order from the Commission, the Operating Partnership and the
Partnership shall use their respective reasonable efforts to obtain the prompt
withdrawal of such stop order.
(c) Supplements and Amendments. The Operating Partnership and the
Partnership shall promptly supplement and amend the Shelf Registration Statement
if required by the Securities Act or if reasonably requested by the Holders of a
majority in aggregate principal amount of the Registrable Securities covered by
such Shelf Registration Statement.
4. Additional Interest
(a) The Operating Partnership, the Partnership and the Initial
Purchasers agree that the Holders of Registrable Securities will suffer damages
if the Operating Partnership and the Partnership fail to fulfill their
respective obligations under Section 2 or Section 3 hereof and that it would not
be feasible to ascertain the extent of such damages with precision. Accordingly,
the Operating Partnership and the Partnership agree to pay, as liquidated
damages, additional interest on the Notes ("Additional Interest") under the
circumstances and to the extent set forth below (without duplication):
(i) if (A) neither the Exchange Registration Statement nor the
Shelf Registration Statement has been filed with the Commission on or
prior to the date that is 120 days after the Closing Date or (B)
notwithstanding that the Operating Partnership and the Partnership have
consummated or will consummate the Exchange Offer, the Operating
Partnership and the Partnership are required to file a Shelf
Registration Statement and such Shelf Registration Statement is not
filed on or prior to the 90th day after the delivery of the Shelf
Notice applicable thereto, then, commencing on the 121st date after the
Closing Date (in the case of foregoing clause (A)) or on the 91st day
after the delivery of the Shelf Notice (in the case of foregoing clause
(B)), Additional Interest shall accrue on the Notes over and above the
stated interest at a rate of 0.25% per annum;
(ii) if (A) the Exchange Registration Statement is not
declared effective on or prior to the date that is 210 days after the
Closing Date, or (B) notwithstanding that the Operating Partnership and
the Partnership have consummated or will consummate the Exchange Offer,
the Operating Partnership and the Partnership are required to file a
Shelf Registration Statement and such Shelf Registration Statement is
not declared effective by the Commission on or prior to the date that
is 180 days after the delivery of the Shelf Notice in respect of such
Shelf Registration Statement, then commencing on the 211th day after
the Closing Date (in the case of foregoing clause (A)) or on the 181st
day after delivery of the Shelf Notice (in the case of foregoing clause
(B)), Additional Interest shall accrue on the Notes included or that
should have been included in such Registration Statement over and above
the stated interest at a rate of 0.25% per annum; and
(iii) if either (A) the Operating Partnership and the
Partnership have not exchanged Exchange Notes for all Notes validly
tendered in accordance with the terms of the Exchange Offer on or prior
to the 45th business day after the date on which the Exchange
Registration Statement is first declared effective or (B) if
applicable, a Shelf
8
Registration Statement has been declared effective and such Shelf
Registration Statement ceases to be effective at any time prior to the
second anniversary of the Closing Date (or such corresponding shorter
restrictive period, if Rule 144(k) is amended to provide a shorter
restrictive period) while any Registrable Securities are outstanding,
then Additional Interest shall accrue over and above the stated
interest on the Notes at a rate of 0.25% per annum commencing on (x)
the 46th business day after such effective date of the Exchange
Registration Statement (in the case of foregoing clause (A) above) or
(y) the day such Shelf Registration Statement ceases to be effective
(in the case of foregoing clause (B) above);
provided, however, that (1) the Additional Interest rate on the Notes may not
accrue under more than one of the foregoing clauses (i) through (iii) of this
Section 4(a) at any one time, (2) at no time shall the aggregate amount of
Additional Interest accruing exceed at any one time in the aggregate 0.25% per
annum, (3) no Additional Interest shall accrue if the Operating Partnership and
the Partnership have timely filed an Exchange Offer Registration Statement but
are unable to complete the Exchange Offer pursuant to Section 2(c) and have
timely delivered a Shelf Notice, unless the Operating Partnership and the
Partnership shall thereafter fail to satisfy one or more of the time
requirements specified above in clauses (i) through (iii) of this Section 4(a)
for filing and effectiveness of the Shelf Registration Statement, in which event
Additional Interest as specified above shall accrue, and (4) all Additional
Interest payable on the Notes shall cease to accrue upon the earliest to occur
of (x) the expiration of the second anniversary of the Closing Date or (y) the
expiration of such shorter restrictive period applicable to the Registrable
Securities that may be required pursuant to Rule 144(k); and
provided, further, that (1) upon the filing of the Exchange Registration
Statement or a Shelf Registration Statement (in the case of clause (i) of this
Section 4(a)), (2) upon the effectiveness of the Exchange Registration Statement
or the Shelf Registration Statement (in the case of clause (ii) of this Section
4(a)), (3) upon the exchange of Exchange Notes for all Notes tendered (in the
case of clause (iii)(A) of this Section 4(a)), (4) upon the effectiveness of the
applicable Shelf Registration Statement that had ceased to remain effective (in
the case of (iii)(B) of this Section 4(a)) and (5) upon such time as there are
no Registrable Securities outstanding, Additional Interest on the Notes shall
cease to accrue.
(b) Notification and Payment of Additional Interest. The Operating
Partnership and the Partnership shall notify the Trustee within three business
days after each date on which an event occurs for which Additional Interest is
required to be paid pursuant to Section 4(a). Any amounts of Additional Interest
due pursuant to this Section 4 will be payable in cash semi-annually on each
February 1 and August 1 (to the holders of record on the January 15 and July 15
immediately preceding such dates), commencing with the first such date occurring
after any such Additional Interest commences to accrue. The amount of Additional
Interest will be determined by multiplying the applicable Additional Interest
rate by the principal amount of the Registrable Securities, multiplied by a
fraction, the numerator of which is the number of days such Additional Interest
rate was applicable during such period (determined on the basis of a 360-day
year consisting of twelve 30-day months and the denominator of which is 360.
9
5. Registration Procedures
In connection with the filing of any Registration Statement pursuant to
Section 2 or 3 hereof, the Operating Partnership and the Partnership shall
effect such registrations to permit the sale of the securities covered thereby
in accordance with the intended method or methods of disposition thereof, and
pursuant thereto and in connection with any Registration Statement filed by the
Operating Partnership and the Partnership hereunder, the Operating Partnership
and the Partnership shall:
(a) Prepare and file with the Commission on or prior to the 120th day
after the Closing Date (in the case of the Exchange Registration Statement) or
the 90th day after delivery of the Shelf Notice (in the case of the Shelf
Registration Statement), any Registration Statement required by Section 2 or 3
hereof, and use their reasonable efforts to cause each such Registration
Statement to become effective and remain effective as provided herein; provided,
however, that if such filing is pursuant to Section 3 hereof, before filing any
Registration Statement or Prospectus or any amendments or supplements thereto,
the Operating Partnership and the Partnership shall furnish to and afford the
Holders of the Registrable Securities covered by such Registration Statement and
their counsel a reasonable opportunity to review copies of all such documents
(including copies of any documents to be incorporated by reference therein and
all exhibits thereto) proposed to be filed, in each case at least three business
days prior to such filing. The Operating Partnership and the Partnership shall
not file any Registration Statement or Prospectus or any amendments or
supplements thereto if the Holders of a majority in aggregate principal amount
of the Registrable Securities covered by such Registration Statement or their
counsel shall reasonably object on or prior to the third business day following
receipt of a copy of any Registration Statement or Prospectus or any amendment
or supplement thereto proposed to be filed.
(b) Prepare and file with the Commission such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the Effectiveness
Period or the Applicable Period, as the case may be; cause the related
Prospectus to be supplemented by any prospectus supplement required by
applicable law, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) promulgated under the Securities Act; and
comply with the provisions of the Securities Act and the Exchange Act applicable
to it with respect to the disposition of all securities covered by such
Registration Statement as so amended or in such Prospectus as so supplemented
and with respect to the subsequent resale of any securities being sold by a
Participating Broker-Dealer covered by any such Prospectus; the Operating
Partnership and the Partnership shall be deemed not to have used their
respective reasonable efforts to keep a Registration Statement effective during
the Applicable Period if either of the Operating Partnership or the Partnership
voluntarily takes any action that would result in selling Holders of the
Registrable Securities covered thereby or Participating Broker-Dealers seeking
to sell Exchange Notes not being able to sell such Registrable Securities or
such Exchange Notes during that period, unless such action is required by
applicable law or unless the Operating Partnership and the Partnership comply
with this Agreement, including without limitation, the provisions of Section
5(k) hereof and the last paragraph of this Section 5.
10
(c) If (i) a Shelf Registration Statement is filed pursuant to Section
3 hereof or (ii) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, notify the selling Holders of Registrable
Securities, or each such Participating Broker-Dealer, as the case may be, and
their counsel, promptly (but in any event within two business days) and confirm
such notice in writing:
(A) when a Prospectus or post-effective amendment has been
filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective
under the Securities Act (including in such notice a written
statement that any Holder may, upon request, obtain, at the
sole expense of the Operating Partnership or the Partnership,
one conformed copy of such Registration Statement or
post-effective amendment including financial statements and
schedules, documents incorporated or deemed to be incorporated
by reference and all exhibits);
(B) of the issuance by the Commission of any stop order
suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of any Prospectus
or the initiation of any proceedings for that purpose;
(C) if, at any time when a Prospectus is required by the
Securities Act to be delivered in connection with sales of the
Registrable Securities or resales of Exchange Notes by
Participating Broker-Dealers, the representations and
warranties of the Operating Partnership or the Partnership
contained in any agreement cease to be true and correct;
(D) of the receipt by the Operating Partnership or the
Partnership of any notification with respect to the suspension
of the qualification or exemption from qualification of a
Registration Statement or any of the Registrable Securities or
the Exchange Notes to be sold by any Participating
Broker-Dealer for offer or sale in any jurisdiction, or the
initiation or written threat of any proceeding for such
purpose;
(E) of the happening of any event, the existence of any
condition or any information becoming known that makes any
statement made in such Registration Statement or related
Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material
respect or that requires the making of any changes in or
amendments or supplements to such Registration Statement or
Prospectus so that, in the case of the Registration Statement,
it will not contain any untrue statement of a material fact or
omit to state any material fact necessary to make the
statements therein not misleading, and that in the case of the
Prospectus, it will not contain 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 light of the circumstances under which they were made,
not misleading;
11
(F) of the Operating Partnership's and Partnership's
determination that a post-effective amendment to a
Registration Statement would be appropriate; and
(G) if at any time when a Prospectus is required by the
Securities Act to be delivered in connection with sales of the
Registrable Securities or resales of Exchange Notes by
Participating Broker-Dealers, the Operating Partnership and
the Partnership determine, in their reasonable judgment, after
consultation with counsel, that the continued use of the
Prospectus would require the disclosure of confidential
information or interfere with any financing, acquisition,
reorganization or other material transaction involving the
Operating Partnership or the Partnership.
(d) Use their respective reasonable efforts to prevent the issuance of
any order suspending the effectiveness of a Registration Statement or of any
order preventing or suspending the use of a Prospectus or suspending the
qualification (or exemption from qualification) of any of the Registrable
Securities or the Exchange Notes for sale in any jurisdiction in the United
States and, if any such order is issued, to use their reasonable efforts to
obtain the withdrawal of any such order.
(e) If a Shelf Registration Statement is filed pursuant to Section 3
and if requested by the Holders of a majority in aggregate principal amount of
the Registrable Securities being sold in connection with an offering, (i)
promptly incorporate in a Prospectus or post-effective amendment such
information as such Holders or counsel for any of them determine is reasonably
necessary to be included therein, (ii) make all required filings of such
prospectus supplement or such post-effective amendment as soon as practicable
after the Operating Partnership and the Partnership have received notification
of the matters to be incorporated in such Prospectus or post-effective amendment
and (iii) supplement or make amendments to such Registration Statement;
provided, however, that the Operating Partnership and the Partnership shall not
be required to take any action pursuant to this Section 5(e) that would, in the
opinion of counsel for the Operating Partnership and the Partnership, violate
applicable law.
(f) If (i) a Shelf Registration Statement is filed pursuant to Section
3 hereof or (ii) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, furnish to each selling Holder of
Registrable Securities and to each such Participating Broker-Dealer who so
requests and to their respective counsel at the sole expense of the Operating
Partnership and the Partnership, one conformed copy of such Registration
Statement and each post-effective amendment thereto, including financial
statements and schedules and, if requested, all documents incorporated or deemed
to be incorporated therein by reference and all exhibits.
(g) If (i) a Shelf Registration Statement is filed pursuant to Section
3 hereof or (ii) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, deliver to each selling Holder of
Registrable Securities, or each such Participating Broker-Dealer, as the case
may be, and their respective counsel, at the sole expense of the Operating
Partnership and the Partnership, as many
12
copies of such Prospectus and each amendment or supplement thereto and any
documents incorporated by reference therein as such Persons may reasonably
request; and, subject to the last paragraph of this Section 5, the Operating
Partnership and the Partnership hereby consent to the use of such Prospectus and
each amendment or supplement thereto by each of the selling Holders of
Registrable Securities or each such Participating Broker-Dealer, as the case may
be, and the agents, if any, and dealers, if any, in connection with the offering
and sale of the Registrable Securities covered by, or the sale by Participating
Broker-Dealers of the Exchange Notes pursuant to, such Prospectus and any
amendment or supplement thereto.
(h) Prior to any delivery of a Prospectus contained in the Exchange
Registration Statement by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, to use their reasonable efforts to
register or qualify and to cooperate with the selling Holders of Registrable
Securities or each such Participating Broker-Dealer, as the case may be, and
their respective counsel in connection with the registration or qualification
(or exemption from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any selling Holder or Participating
Broker-Dealer reasonably requests in writing; provided, however, that where
Exchange Notes held by Participating Broker-Dealers or Registrable Securities
are offered other than through an underwritten offering, the Operating
Partnership and the Partnership agree to cause their counsel to perform Blue Sky
investigations and file registrations and qualifications required to be filed
pursuant to this Section 5(h); use their reasonable efforts to keep each such
registration or qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be kept effective and do any
and all other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Exchange Notes held by Participating
Broker-Dealers or the Registrable Securities covered by the applicable
Registration Statement; provided, however, that neither the Operating
Partnership nor the Partnership shall be required to file any general consent to
service of process or to qualify as a foreign corporation or as a securities
dealer in any jurisdiction or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject.
(i) If a Shelf Registration Statement is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates shall not bear any
restrictive legends and shall be in a form eligible for deposit with DTC; and,
if such Registrable Securities are to be in certificated form, to enable such
Registrable Securities to be in such denominations and registered in such names
as the Holders may reasonably request.
(j) Use their respective reasonable efforts to cause the Registrable
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the Holders thereof or the Participating Broker-Dealers, if any, to
consummate the disposition of such Registrable Securities, except as may be
required solely as a consequence of the nature of such selling Holder's
business, in which case the Operating Partnership and the Partnership will
cooperate in all reasonable respects with the filing of such Registration
Statement and the granting of such approvals.
(k) If (1) a Shelf Registration Statement is filed pursuant to Section
3 hereof or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 hereof is
13
required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period,
upon the occurrence of any event contemplated by Section 5(c)(v), 5(c)(vi) or
5(c)(vii) hereof, as promptly as practicable (in the case of 5(c)(vii) after
cessation of the transaction referred to therein), prepare and (subject to
Section 5(a) hereof) file with the Commission, at the Operating Partnership's
and Partnership's sole expense, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Securities being sold thereunder or to the purchasers of the
Exchange Notes to whom such Prospectus will be delivered by a Participating
Broker-Dealer, any such Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(l) Use respective reasonable efforts to cause the Registrable
Securities covered by a Registration Statement or the Exchange Notes, as the
case may be, to be rated with the appropriate rating agencies.
(m) Prior to the effective date of the first Registration Statement
relating to the Registrable Securities, (i) provide the Trustee with
certificates for, or the form of global note with respect to, the Registrable
Securities or Exchange Notes, as the case may be, in a form eligible for deposit
with DTC and (ii) provide a CUSIP number for the Registrable Securities or
Exchange Notes, as the case may be.
(n) If (i) a Shelf Registration Statement is filed pursuant to Section
3 hereof or (ii) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, upon reasonable advance notice make
available for inspection by any selling Holder of such Registrable Securities
being sold, or each such Participating Broker-Dealer, as the case may be, and
any attorney, accountant or other agent retained by any such selling Holder or
each such Participating Broker-Dealer, as the case may be (collectively, the
"Inspectors"), at the offices where normally kept, during reasonable business
hours without interfering in the orderly business of the Operating Partnership
or the Partnership, all financial and other relevant records, pertinent
corporate documents and instruments of the Operating Partnership and the
Partnership and their subsidiaries (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the respective officers, directors and employees of
the Operating Partnership and the Partnership and their subsidiaries to supply
all information reasonably requested by any such Inspector in connection with
such Registration Statement. Records that the Operating Partnership and the
Partnership determine, in good faith, to be confidential and any Records that
they notify the Inspectors are confidential shall not be disclosed by the
Inspectors unless (A) the disclosure of such Records is necessary to avoid or
correct a material misstatement or omission in such Registration Statement, (B)
the release of such Records is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction, (C) after giving reasonable prior notice
to the Operating Partnership and the Partnership, disclosure of such information
is, in the opinion of counsel for any Inspector, necessary or advisable in
connection with any action, claim, suit or proceeding, directly or indirectly,
involving or
14
potentially involving such Inspector and arising out of, based upon, relating to
or involving this Agreement or any transactions contemplated hereby or arising
hereunder or (D) the information in such Records has been made generally
available to the public. Each selling Holder of such Registrable Securities and
each such Participating Broker-Dealer will be required to agree that information
obtained by it as a result of such inspections shall be deemed confidential and
shall not be used by it as the basis for any market transactions in the
securities of the Operating Partnership or the Partnership unless and until such
information is generally available to the public. Each selling Holder of such
Registrable Securities and each such Participating Broker-Dealer will be
required to further agree that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give notice to the
Operating Partnership and the Partnership and allow the Operating Partnership
and the Partnership to undertake appropriate action to prevent disclosure of the
Records deemed confidential at the sole expense of Operating Partnership and the
Partnership.
(o) Provide an indenture trustee for the Registrable Securities or the
Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a) hereof, as the case may be, to be
qualified under the TIA not later than the effective date of the Exchange Offer
or the first Registration Statement relating to the Registrable Securities; and
in connection therewith, cooperate with the Trustee and the Holders of the
Registrable Securities, to effect such changes to such indenture as may be
required for such indenture to be so qualified in accordance with the terms of
the TIA; and execute, and use its reasonable efforts to cause such Trustee to
execute, all documents as may be required to effect such changes and all other
forms and documents required to be filed with the Commission to enable such
indenture to be so qualified in a timely manner.
(p) Comply with all applicable rules and regulations of the Commission
and make generally available to its securityholders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no later
than 45 days after the end of any 12-month period (or 90 days after the end of
any 12-month period if such period is a fiscal year) (i) commencing at the end
of any fiscal quarter in which Registrable Securities are sold to underwriters
in a firm commitment or best efforts underwritten offering and (ii) if not sold
to underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Operating Partnership and the Partnership after the
effective date of a Registration Statement, which statements shall cover said
12-month periods.
(q) If an Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable Securities by Holders to the Operating
Partnership or the Partnership (or to such other Person as directed by the
Operating Partnership) in exchange for the Exchange Notes or the Private
Exchange Notes, as the case may be, the Operating Partnership or the
Partnership, as the case may be, shall mark, or cause to be marked, on such
Registrable Securities that such Registrable Securities are being cancelled in
exchange for the Exchange Notes or the Private Exchange Notes, as the case may
be; in no event shall such Registrable Securities be marked as paid or otherwise
satisfied.
(r) Cooperate with each seller of Registrable Securities covered by any
Registration Statement and each Participating Broker-Dealer, if any,
participating in the disposition of such
15
Registrable Securities and their respective counsel in connection with any
filings required to be made with the NASD.
(s) Use their respective reasonable efforts to take all other steps
necessary or advisable to effect the registration of the Registrable Securities
covered by a Registration Statement contemplated hereby.
The Operating Partnership and the Partnership may require each seller
of Registrable Securities as to which any registration is being effected to
furnish to the Operating Partnership and the Partnership such information
regarding such seller and the distribution of such Registrable Securities as the
Operating Partnership and the Partnership may, from time to time, reasonably
request. The Operating Partnership and the Partnership may exclude from such
registration the Registrable Securities of any seller who unreasonably fails to
furnish such information within a reasonable time after receiving such request
and in such event shall have no further obligation under this Agreement
(including, without limitation, obligations under Section 4 hereof) with respect
to such seller or any subsequent holder of such Registrable Securities. Each
seller as to which any Shelf Registration Statement is being effected agrees to
furnish promptly to the Operating Partnership and the Partnership all
information required to be disclosed in order to make the information previously
furnished to the Operating Partnership and the Partnership by such seller not
materially misleading.
Each Holder of Registrable Securities and each Participating
Broker-Dealer agrees by acquisition of such Registrable Securities or Exchange
Notes to be sold by such Participating Broker-Dealer, as the case may be, that,
upon actual receipt of any notice from the Operating Partnership or the
Partnership of the happening of any event of the kind described in Sections
5(c)(ii), 5(c)(iv), 5(c)(v), 5(c)(vi) or 5(c)(vii) hereof, such Holder will
forthwith discontinue disposition of such Registrable Securities covered by such
Registration Statement or Prospectus or Exchange Notes to be sold by such Holder
or Participating Broker-Dealer, as the case may be, until such Holder's or
Participating Broker-Dealer's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(k) hereof, or until it is advised
in writing by the Operating Partnership and the Partnership that the use of the
applicable Prospectus may be resumed, and has received copies of any amendments
or supplements thereto. If the Operating Partnership or the Partnership shall
give any such notice, each of the Effectiveness Period and the Applicable Period
shall be extended by the number of days during such periods from and including
the date of the giving of such notice to and including the date when each seller
of Registrable Securities covered by such Registration Statement or Exchange
Notes to be sold by such Participating Broker-Dealer, as the case may be, shall
have received (i) the copies of the supplemented or amended Prospectus
contemplated by Section 5(k) hereof or (ii) written notice that use of the
applicable Prospectus may be resumed, provided that the Effectiveness Period and
the Applicable Period shall not be extended beyond two years after the Closing
Date.
6. Registration Expenses
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Operating Partnership and the Partnership shall be
borne by the Operating Partnership and the Partnership whether or not the
Exchange Registration Statement or a Shelf Registration Statement is filed or
becomes effective, including, without limitation, (i) all
16
registration and filing fees (including, without limitation, fees and expenses
of compliance with state securities or Blue Sky laws (including, without
limitation, reasonable fees and disbursements of counsel in connection with Blue
Sky qualifications of the Registrable Securities or Exchange Notes and
determination of the eligibility of the Registrable Securities or Exchange Notes
for investment under the laws of such jurisdictions (x) where the holders of
Registrable Securities are located, in the case of the Exchange Notes, or (y) as
provided in Section 5(h) hereof, in the case of Registrable Securities or
Exchange Notes to be sold by a Participating Broker-Dealer during the Applicable
Period)), (ii) printing and duplicating expenses, including, without limitation,
expenses of preparing certificates for Registrable Securities or Exchange Notes
in a form eligible for deposit with DTC and of printing or duplicating
Prospectuses if the printing of Prospectuses is requested by the Holders of a
majority in aggregate principal amount of the Registrable Securities included in
any Registration Statement or sold by any Participating Broker-Dealer, as the
case may be, (iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Operating Partnership and the Partnership and
fees and disbursements of special counsel for the sellers of Registrable
Securities (subject to the provisions of Section 6(b) hereof), (v) rating agency
fees, if any, and any fees associated with making the Registrable Securities or
Exchange Notes eligible for trading through DTC, (vi) Securities Act liability
insurance, if the Operating Partnership and the Partnership desire such
insurance, (vii) fees and expenses of all other Persons retained by the
Operating Partnership and the Partnership, (viii) internal expenses of the
Operating Partnership and the Partnership (including, without limitation, all
salaries and expenses of officers and employees of the Operating Partnership and
the Partnership performing legal or accounting duties), (ix) the expense of any
annual audit, (x) the fees and expenses incurred in connection with the listing
of the securities to be registered on any securities exchange, if applicable,
and (xi) the expenses relating to printing, word processing and distributing of
all Registration Statements, underwriting agreements, securities sales
agreements, indentures and any other documents necessary to comply with this
Agreement.
(b) The Operating Partnership and the Partnership shall (i) reimburse
the Holders of the Registrable Securities being registered in a Shelf
Registration Statement for the reasonable fees and disbursements of not more
than one counsel chosen by the Holders of a majority in aggregate principal
amount of the Registrable Securities to be included in such Registration
Statement, and (ii) reimburse reasonable out-of-pocket expenses (other than
legal expenses) of Holders of Registrable Securities incurred in connection with
the registration and sale of the Registrable Securities pursuant to a Shelf
Registration Statement.
7. Indemnification
(a) Each of the Operating Partnership and the Partnership agrees to
indemnify and hold harmless each Holder of Registrable Securities offered
pursuant to a Shelf Registration Statement and each Participating Broker-Dealer
selling Exchange Notes during the Applicable Period, the officers and directors
of each such Person or its affiliates, and each other Person, if any, who
controls any such Person or its affiliates within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act (each, a
"Participant"), from and against any and all losses, claims, damages and
liabilities (including, without limitation, the reasonable legal fees and other
expenses actually incurred in connection with any suit, action or proceeding or
any claim asserted) caused by, arising out of or based upon any untrue statement
or alleged
17
untrue statement of a material fact contained in any Registration Statement
pursuant to which the offering of such Registrable Securities or Exchange Notes,
as the case may be, is registered (or any amendment thereto) or related
Prospectus (or any amendments or supplements thereto), or caused by, arising out
of or based upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided, however, that none of the Operating Partnership or the Partnership
will be required to indemnify a Participant if (i) such losses, claims, damages
or liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
relating to any Participant furnished to the Operating Partnership and the
Partnership in writing by or on behalf of such Participant expressly for use
therein or (ii) if such Participant sold to the Person asserting the claim the
Registrable Notes or Exchange Notes that are the subject of such claim after
receipt of a notice from the Operating Partnership and the Partnership pursuant
to Sections 5(c)(iv), 5(c)(v), 5(c)(vi) or 5(c)(vii) hereof and prior to receipt
of copies of a supplemented or amended Prospectus contemplated by Section 5(k)
hereof, or written notice from the Operating Partnership and the Partnership
that the use of the applicable Prospectus may be resumed.
(b) Each Participant shall be required to agree, severally and not
jointly, to indemnify and hold harmless the Operating Partnership and the
Partnership, the Operating Partnership's directors and officers, the
Partnership's directors and officers and each Person who controls the Operating
Partnership and the Partnership within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act and each other Participant to
the same extent as the foregoing indemnity from the Operating Partnership and
the Partnership to each Participant, but only (i) with reference to information
relating to such Participant furnished to the Operating Partnership in writing
by or on behalf of such Participant expressly for use in any Registration
Statement or Prospectus or any amendment or supplement thereto or (ii) with
respect to any untrue statement or representation made by such Participant in
writing to the Operating Partnership. The liability of any Participant under
this paragraph shall in no event exceed the proceeds received by such
Participant from sales of Registrable Securities or Exchange Notes giving rise
to such obligations.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such Person (the "Indemnified Person") shall promptly
notify the Person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may reasonably designate in such proceeding and shall pay
the reasonable fees and expenses actually incurred by such counsel related to
such proceeding; provided, however, that the failure to so notify the
Indemnifying Person shall not relieve it of any obligation or liability that it
may have hereunder or otherwise (unless and only to the extent that such failure
directly results in the loss or compromise of any material rights or defenses by
the Indemnifying Person and the Indemnifying Person was not otherwise aware of
such action or claim). In any such proceeding, any Indemnified Person 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 Person unless (i) the Indemnifying
18
Person and the Indemnified Person shall have mutually agreed in writing to the
contrary, (ii) the Indemnifying Person shall have failed within a reasonable
period of time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person 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, unless there exists a conflict among Indemnified Persons, the
Indemnifying Person shall not, in connection with any one such proceeding or
separate but substantially similar related proceedings in the same jurisdiction
arising out of the same general allegations, be liable for the fees and expenses
of more than one separate firm (in addition to any local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be reimbursed
promptly as they are incurred. Any such separate firm for the Participants and
such control Persons of Participants shall be designated in writing by
Participants who sold a majority in interest of Registrable Securities and
Exchange Notes sold by all such Participants and any such separate firm for the
Operating Partnership and the Partnership, their respective directors, officers
and such control Persons of the Operating Partnership and the Partnership shall
be designated in writing by the Operating Partnership and the Partnership. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its prior written consent, but if settled with such consent or
if there be a final non-appealable judgment for the plaintiff for which the
Indemnified Person is entitled to indemnification pursuant to this Agreement,
the Indemnifying Person agrees to indemnify and hold harmless each Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. No Indemnifying Person shall, without the prior written consent of the
Indemnified Person (which consent shall not be unreasonably withheld or
delayed), effect any settlement or compromise of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party, and indemnity could have been sought hereunder by such Indemnified
Person, unless such settlement (A) includes an unconditional written release of
such Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of
such proceeding and (B) does not include any statement as to an admission of
fault, culpability or failure to act by or on behalf of any Indemnified Person.
(d) If the indemnification provided for in the first and second
paragraphs of this Section 7 is for any reason unavailable to, or insufficient
to hold harmless, an Indemnified Person in respect of any losses, claims,
damages or liabilities referred to therein, then each Indemnifying Person under
such paragraphs, in lieu of indemnifying such Indemnified Person thereunder and
in order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such losses,
claims, damages or liabilities in such proportion as is appropriate to reflect
the relative fault of the Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other in connection with the statements or
omissions or alleged statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof). The relative
fault of the parties 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 Operating Partnership and the Partnership on the one hand or
such Participant or such other Indemnified Person, as the case may be, on the
other, the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission, and any other
equitable considerations appropriate in the circumstances.
19
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if the Participants 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 the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any reasonable
legal or other expenses actually incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Registrable Securities
or Exchange Notes, as the case may be, exceeds the amount of any damages that
such Participant has otherwise been required to pay or has paid 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.
(f) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the Indemnifying Person to the Indemnified Person as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Operating Partnership and the Partnership
set forth in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Holder or any
Person who controls a Holder, the Operating Partnership and the Partnership,
their respective directors, officers, employees, agents or controlling persons,
and (ii) any termination of this Agreement.
(g) The indemnity and contribution agreements contained in this Section
7 will be in addition to any liability that the Indemnifying Persons may
otherwise have to the Indemnified Persons referred to above.
8. Rule 144 and 144A
Each of the Operating Partnership and the Partnership covenants that it
will file the reports required to be filed by it under the Securities Act and
the Exchange Act and the rules and regulations adopted by the Commission
thereunder in a timely manner in accordance with the requirements of the
Securities Act and the Exchange Act and, if at any time the Operating
Partnership and the Partnership are not required to file such reports, they
will, upon the request of any Holder of Registrable Securities, make available
to any Holder or beneficial owner of Registrable Securities in connection with
any sale thereof and any prospective purchaser of such Registrable Securities
from such Holder or beneficial owner the information required by Rule 144A(d)(4)
under the Securities Act in order to permit resales of such Registrable
Securities pursuant to Rule 144A.
20
9. Miscellaneous
(a) No Inconsistent Agreements. The Operating Partnership and the
Partnership have not entered into, as of the date hereof, and shall not, after
the date of this Agreement, enter into any agreement with respect to any of the
Operating Partnership's or the Partnership's securities that is inconsistent
with the rights granted to the Holders of Registrable Securities in this
Agreement or otherwise conflicts with the provisions hereof. Except as provided
in that certain Registration Rights Agreement dated September 17, 1999 by and
among Tejas Energy, LLC, a Delaware limited liability company, and the
Partnership, the Operating Partnership and the Partnership have not entered and
will not enter into any agreement with respect to any of the Operating
Partnership's or the Partnership's securities that will grant to any Person
piggy-back registration rights with respect to a Registration Statement.
(b) Adjustments Affecting Registrable Securities. The Operating
Partnership and the Partnership shall not, directly or indirectly, take any
action with respect to the Registrable Securities as a class that would
adversely affect the ability of the Holders of Registrable Securities to include
such Registrable Securities in a registration undertaken pursuant to this
Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of the Holders of not less than a majority in aggregate principal amount
of the then outstanding Registrable Securities. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders of Registrable Securities
whose securities are being sold pursuant to a Registration Statement and that
does not directly or indirectly affect, impair, limit or compromise the rights
of other Holders of Registrable Securities may be given by Holders of at least a
majority in aggregate principal amount of the Registrable Securities being sold
by such Holders pursuant to such Registration Statement; provided, however, that
the provisions of this sentence may not be amended, modified or supplemented
except in accordance with the provisions of the immediately preceding sentence.
(d) Notices. All notices and other communications (including without
limitation any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or facsimile:
(1) if to a Holder of the Registrable Securities or any
Participating Broker-Dealer, at the most current address, if
any, of such Holder or Participating Broker-Dealer, as the
case may be, set forth on the records of the registrar under
the Indenture, with a copy in like manner to the Initial
Purchasers as follows:
Wachovia Securities, Inc.
Legal Division
One Wachovia Center, DC8
301 South College Street
Charlotte, NC 28288-0630
Facsimile No.: (704) 383-0353
Attention: Laurie Watts, C&IB Practice Group -
Fixed Income Origination
21
with a copy to:
Baker Botts L.L.P.
One Shell Plaza
910 Louisiana Street
Houston, Texas 77002-4995
Facsimile No.: (713) 229-1522
Attention: Joshua Davidson
(2) if to the Initial Purchasers, at the addresses specified in
Section 9(d)(1)
(3) if to the Operating Partnership and the Partnership, at the
address as follows:
Enterprise Products Partners L.P.
2727 North Loop West, Suite 700
Houston, Texas 77008-1038
Facsimile No.: (713) 880-6570
Attention: Chief Legal Officer
with a copy to:
Vinson & Elkins L.L.P.
1001 Fannin St.
Houston, Texas 77002-6760
Facsimile No.: (713) 615-5282
Attention: Mickey Finch
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days after
being deposited in the mail, postage prepaid, if mailed; one business day after
being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto;
provided, however, that this Agreement shall not inure to the benefit of or be
binding upon a successor or assign of a Holder unless and to the extent such
successor or assign holds Registrable Securities.
22
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
EXCLUSIVE JURISDICTION OF THE COMPETENT COURTS OF THE STATE OF NEW YORK SITTING
IN NEW YORK COUNTY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT.
(i) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
(j) Notes Held by the Operating Partnership and the Partnership or
their Affiliates. Whenever the consent or approval of Holders of a specified
percentage of Registrable Securities is required hereunder, Registrable
Securities held by the Operating Partnership and the Partnership or their
affiliates (as such term is defined in Rule 405 under the Securities Act) shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
(k) Third Party Beneficiaries; Limitations on Remedies. Holders of
Registrable Securities and Participating Broker-Dealers are intended third party
beneficiaries of this Agreement and this Agreement may be enforced by such
Persons. The receipt of Additional Interest pursuant to Section 4(a) shall be
the sole monetary remedy available to Holders for the failure of the Operating
Partnership or the Partnership to meet the registration obligations set forth
herein for Registrable Securities.
(l) Entire Agreement. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Initial Purchasers on
the one hand and the Operating Partnership and the Partnership on the other, or
between or among any agents, representatives, parents, subsidiaries, affiliates,
predecessors in interest or successors in interest with respect to the subject
matter hereof and thereof are merged herein and replaced hereby.
23
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
For the Operating Partnership:
ENTERPRISE PRODUCTS OPERATING L.P.
By: Enterprise Products GP, LLC, its
general partner
By: /s/ Michael A. Creel
Name: Michael A. Creel
Title: Executive Vice President
For the Partnership:
ENTERPRISE PRODUCTS PARTNERS L.P.
By: Enterprise Products GP, LLC, its
general partner
By: /s/ Michael A. Creel
Name: Michael A. Creel
Title: Executive Vice President
24
For the Initial Purchasers:
WACHOVIA SECURITIES, INC.
By: /s/ Keith Mauney
Name: Keith Mauney
Title: Managing Director
RBC DOMINION SECURITIES CORPORATION
By: /s/ Simon Ling
Name: Simon Ling
Title: Managing Director
SCOTIA CAPITAL (USA) INC.
By: /s/ Frank Pinon
Name: Frank Pinon
Title: Managing Director
25
SUNTRUST CAPITAL MARKETS, INC.
By: /s/ Jim Stathis
Name: Jim Stathis
Title: Managing Director
HVB CAPITAL MARKETS, INC.
By: /s/ Thomas Savino
Name: Thomas Savino
Title: Chief Financial Officer
TOKYO-MITSUBISHI INTERNATIONAL PLC
By: /s/ Toshio Fujimoto
Name: Toshio Fujimoto
Title: Managing Director
26
EXHIBIT 5.1
(Vinson & Elkins Logo) VINSON & ELKINS L.L.P.
2300 FIRST CITY TOWER
1001 FANNIN STREET
HOUSTON, TEXAS 77002-6760
TELEPHONE (713) 758-2222
FAX (713) 758-2346
www.velaw.com
January 28, 2003
Enterprise Products Operating L.P.
Enterprise Products Partners L.P.
2727 North Loop West
Houston, Texas 77008
Ladies and Gentlemen:
We have acted as counsel for Enterprise Products Operating L.P., a
Delaware limited partnership (the "Operating Partnership") and Enterprise
Products Partners L.P., a Delaware limited partnership (the "Partnership") with
respect to with the preparation of the Registration Statement on Form S-4 (the
"Registration Statement") filed with the Securities and Exchange Commission
(the "Commission") in connection with the registration by the Operating
Partnership under the Securities Act of 1933, as amended (the "Securities Act")
of (i) the offer and exchange by the Operating Partnership (the "Exchange
Offer") of $350,000,000 aggregate principal amount of its 6.375% Senior Notes
due 2013 (the "Outstanding Notes"), for a new series of notes bearing
substantially identical terms and in like principal amount (the "Exchange
Notes") and (ii) the guarantee (the "Guarantee") of the Partnership as
guarantor (the "Guarantor") of the Outstanding Notes and the Exchange Notes.
The Outstanding Notes and the Exchange Notes are collectively referred to
herein as the "Notes." The Outstanding Notes were issued, and the Exchange
Notes will be issued, under an Indenture dated as of March 15, 2000 among the
Operating Partnership, the Partnership and Wachovia Bank, National Association,
as Trustee, as supplemented by a First Supplemental Indenture, dated January
22, 2003 (as amended, the "Indenture"). The Exchange Offer will be conducted on
such terms and conditions as are set forth in the prospectus contained in the
Registration Statement to which this opinion is an exhibit.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of (i) the Registration Statement, (ii) the
Indenture and (iii) such other certificates, statutes and other instruments and
documents as we considered appropriate for purposes of the opinions hereafter
expressed. In connection with this opinion, we have assumed that the
Registration Statement, and any amendments thereto (including post-effective
amendments), will have become effective and the Exchange Notes will be issued
and sold in compliance with applicable federal and state securities laws and in
the manner described in the Registration Statement.
Based on the foregoing, we are of the opinion that:
(a) When the Exchange Notes have been duly executed,
authenticated, issued and delivered in accordance with the provisions
of the Indenture, (i) such Exchange Notes will be legally issued and
will constitute valid and binding obligations of the Operating
Partnership enforceable against the Operating Partnership in
accordance with their terms, and (ii) the Guarantee of the Guarantor
remains the valid and binding obligations of such Guarantor,
enforceable against the Guarantor in accordance with its terms, except
in each case as such enforcement is subject to any applicable
bankruptcy, insolvency, reorganization or other law relating to or
affecting creditors' rights generally and general principles of
equity.
(b) We hereby confirm that the discussion and the legal
conclusions set forth in the Registration Statement under the heading
"Federal Income Tax Considerations" are accurate and complete in all
material respects and constitute our opinion, which is subject to the
assumptions and qualifications set forth therein, as to the material
tax consequences of the exchange of the Outstanding Notes for Exchange
Notes.
AUSTIN - BEIJING - DALLAS - HOUSTON - LONDON - MOSCOW - NEW YORK -
SINGAPORE - WASHINGTON, D.C.
We express no opinions concerning (a) the validity or enforceability of
any provisions contained in the Indenture that purport to waive or not give
effect to rights to notices, defenses, subrogation or other rights or benefits
that cannot be effectively waived under applicable law; or (b) the
enforceability of indemnification provisions to the extent they purport to
relate to liabilities resulting from or based upon negligence or any violation
of federal or state securities or blue sky laws.
The opinions expressed herein are limited exclusively to the federal laws
of the United States of America, the contract laws of the State of New York, the
laws of the State of Texas and the laws of the State of Delaware, and we are
expressing no opinion as to the effect of the laws of any other jurisdiction,
domestic or foreign.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our firm name in the prospectus
forming a part of the Registration Statement under the caption "Legal Matters"
and "Federal Income Tax Consequences." By giving such consent, we do not admit
that we are within the category of persons whose consent is required under
Section 7 of the Securities Act or the rules and regulations of the Commission
issued thereunder.
Very truly yours,
/s/ VINSON & ELKINS L.L.P.
---------------------------
Vinson & Elkins L.L.P.
EXHIBIT 10.3
EPCO AGREEMENT
BY AND AMONG
ENTERPRISE PRODUCTS COMPANY
ENTERPRISE PRODUCTS GP, LLC
ENTERPRISE PRODUCTS PARTNERS L.P.
AND
ENTERPRISE PRODUCTS OPERATING L.P.
TABLE OF CONTENTS
ARTICLE 1: DEFINITIONS
1.1 DEFINITIONS..............................................................................................1
1.2 CONSTRUCTION.............................................................................................1
ARTICLE 2: SERVICES
2.1 SERVICES; TERM...........................................................................................2
2.2 COMPENSATION.............................................................................................2
2.3 DISPUTE REGARDING SERVICES OR CALCULATION OF COSTS.......................................................2
2.4 INVOICES.................................................................................................3
2.5 DISPUTES; DEFAULT........................................................................................3
2.6 INPUT....................................................................................................3
2.7 LIMITATION...............................................................................................3
2.8 REPRESENTATIONS REGARDING USE OF SERVICES................................................................3
2.9 WARRANTY; LIMITATION OF LIABILITY........................................................................3
2.10 FORCE MAJEURE............................................................................................4
2.11 AFFILIATES...............................................................................................4
ARTICLE 3: USE OF NAME AND MARK
3.1 GRANT OF LICENSE.........................................................................................4
3.2 USE......................................................................................................4
3.3 VARIATIONS...............................................................................................4
3.4 NONTRANSFERABLE..........................................................................................4
3.5 INDEMNITY................................................................................................5
3.6 TERMINATION..............................................................................................5
ARTICLE 4: INDEMNIFICATION
4.1 INDEMNIFICATION..........................................................................................5
4.2 INDEMNIFICATION PROCEDURES...............................................................................5
ARTICLE 5: OTHER AGREEMENTS
5.1 PROHIBITED ACTIVITIES....................................................................................6
5.2 INSURANCE MATTERS........................................................................................6
5.3 COMMON CARRIER TRANSPORTATION CONTRACT...................................................................6
5.4 SUBLEASE OF EQUIPMENT....................................................................................6
5.5 AGREEMENT REGARDING CERTAIN ASSETS RETAINED BY EPCO......................................................7
5.6 AGREEMENT REGARDING MONT BELVIEU PARTNERSHIP.............................................................7
5.7 AGREEMENT REGARDING BELVIEU ENVIRONMENTAL FUELS..........................................................7
i
ARTICLE 6: MISCELLANEOUS
6.1 CHOICE OF LAW; SUBMISSION TO JURISDICTION................................................................8
6.2 NOTICES..................................................................................................8
6.3 ENTIRE AGREEMENT; SUPERSEDURE............................................................................8
6.4 EFFECT OF WAIVER OF CONSENT..............................................................................8
6.5 AMENDMENT OR MODIFICATION................................................................................8
6.6 ASSIGNMENT...............................................................................................9
6.7 COUNTERPARTS.............................................................................................9
6.8 SEVERABILITY.............................................................................................9
6.9 FURTHER ASSURANCES.......................................................................................9
6.10 WITHHOLDING OR GRANTING OF CONSENT.......................................................................9
6.11 U.S. CURRENCY............................................................................................9
6.12 LAWS AND REGULATIONS.....................................................................................9
6.13 NEGATION OF RIGHTS OF THIRD PARTIES......................................................................9
List of Attachments and Exhibits
Attachment I Defined Terms
Exhibit A Insurance Program
Exhibit B Common Carrier Transportation Contract
Exhibit C Sublease Agreement
Exhibit D Excluded Litigation
ii
EPCO AGREEMENT
THIS EPCO AGREEMENT is entered into on, and effective as of, the
Closing Date by and among Enterprise Products Company, a Texas corporation
("EPCO"), Enterprise Product Partners L.P., a Delaware limited partnership (the
"MLP"), Enterprise Products Operating L.P., a Delaware limited partnership (the
"OLP"), and Enterprise Products GP, LLC, a Delaware limited liability company
(the "General Partner").
RECITALS
EPCO and the General Partner desire by their execution of this
Agreement to evidence their understanding, as more fully set forth in Article 2
of this Agreement, with respect to the terms and conditions upon which EPCO and
its Affiliates will provide certain services to the General Partner on and after
the Closing Date.
EPCO, the MLP and the OLP desire by their execution of this Agreement
to evidence their understanding, as more fully set forth in Article 3 of this
Agreement, with respect to the use of EPCO's Name and Mark by the MLP and the
OLP.
EPCO, the MLP and the OLP desire by their execution of this Agreement
to evidence their understanding, as more fully set forth in Article 4 of this
Agreement, with respect to certain indemnification obligations of EPCO in favor
of the MLP and the OLP.
EPCO, the MLP, the OLP and the General Partner desire by their
execution of this Agreement to evidence their understanding, as more fully set
forth in Article 5 of this Agreement, with respect to a variety of additional
matters.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and the covenants,
conditions, and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE 1: DEFINITIONS
1.1 DEFINITIONS. The definitions listed on Attachment I shall be for
all purposes, unless otherwise clearly indicated to the contrary, applied to the
terms used in this Agreement. Any other capitalized term that is used but not
defined herein shall have the meaning given such term in the MLP Agreement.
1.2 CONSTRUCTION. Unless the context requires otherwise: (a) any
pronoun used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns, pronouns and verbs
shall include the plural and vice versa; (b) references to Articles and Sections
refer to Articles and Sections of this Agreement; and (c) "include" or
"includes" means includes, without limitation, and "including" means including,
without limitation.
ARTICLE 2: SERVICES
2.1 SERVICES; TERM. During the period beginning on the Closing Date and
ending on the tenth anniversary thereof, subject to the terms of this Article 2
and in exchange for the reimbursement described in Section 2.2, EPCO hereby
agrees to provide the General Partner with the following services (collectively,
the "Services"):
(a) such management and operating services (other than SGA Services) as
may be necessary to manage and operate the business, properties and assets of
the Partnership Entities in substantially the same manner that such business,
properties and assets have been managed and operated by EPCO and its Affiliates
prior to the Closing Date; it being understood and agreed by the Parties that in
connection with the provision of such management and operating services EPCO
shall employ or otherwise retain the services of such personnel as may be
necessary to cause the business, properties and assets of the Partnership
Entities to be so managed and operated; and
(b) such selling, general and administrative services (the "SGA
Services") as may be reasonably necessary to cause the business of the
Partnership Entities to be conducted in substantially the same manner in which
EPCO's business was conducted prior to the date hereof.
All Services provided by EPCO or its Affiliates hereunder shall be substantially
identical in nature and quality to the services of such type provided by EPCO
and its Affiliates with respect to the business, properties and assets of the
Partnership Entities during the one year period prior to the Closing Date. In
addition, EPCO shall use reasonable care in providing the Services.
2.2 COMPENSATION. As compensation for the provision by EPCO to the
General Partner of the Services, EPCO shall be entitled to receive, and the
General Partner agrees to pay to EPCO, the following amounts:
(a) with respect to any SGA Services provided by EPCO or its
Affiliates to the General Partner hereunder during a given period of
time, an amount equal to the appropriate portion of the then applicable
Administrative Services Fee; and
(b) with respect to all Services other than SGA Services provided by
EPCO or its Affiliates to the General Partner hereunder during a given period of
time, an amount equal to the sum of all costs and expenses (other than SGA
Costs) incurred by EPCO and its Affiliates in connection with the provision of
such Services.
The aggregate amount payable by the General Partner to EPCO pursuant to this
Section 2.2 with respect to a given period of time shall be referred to herein
as the "Reimbursement Amount". In addition, the General Partner shall pay all
sales, use, excise, value added or similar taxes, if any, that may be applicable
from time to time in respect of the Services provided to it by EPCO.
2.3 DISPUTE REGARDING SERVICES OR CALCULATION OF COSTS. Should there be
a dispute over the nature or quality of the Services or the calculation of the
Reimbursement Amount relating to the Services, EPCO and the General Partner
agree that the prior practice of EPCO with respect to the Services previously
provided with respect to the business, properties and assets of the Partnership
Entities or the calculation of the Reimbursement Amount relating to
2
such Services, as determined from the books and records of EPCO and its
Affiliates, shall be conclusive as to the nature and quality of the Services and
the reasonableness of the calculation of the Reimbursement Amount relating to
such Services, as the case may be.
2.4 INVOICES. EPCO shall invoice the General Partner on or before the
20th day of each month for the estimated Reimbursement Amount for the next
succeeding month, plus or minus any adjustment necessary to correct prior
estimated billings to actual billings. All invoices shall be due and payable on
the last day of the month of the invoice. Upon request of the General Partner
EPCO shall furnish in reasonable detail a description of the Services performed
during any month.
2.5 DISPUTES; DEFAULT. Notwithstanding any provision of this Article 2
to the contrary, should the General Partner fail to pay EPCO when due any
amounts owing to EPCO in respect of the Services, EPCO may, except as set forth
in the third succeeding sentence, upon 30 days' notice to the General Partner,
terminate this Article 2 as to those Services that relate to the unpaid portion
of the invoice. Should there be a dispute as to the propriety of invoiced
amounts, the General Partner shall pay all undisputed amounts on each invoice,
but shall be entitled to withhold payment of any amount in dispute and shall
promptly notify EPCO of such disputed amount. EPCO shall provide the General
Partner with records relating to the disputed amount so as to enable the parties
to resolve the dispute. So long as the parties are attempting in good faith to
resolve the dispute, EPCO shall not be entitled to terminate the Services that
relate to the disputed amount.
2.6 INPUT. Any records, information or other input from the General
Partner that is necessary for EPCO to perform any Services shall be submitted to
EPCO by the General Partner in a manner consistent with the practices utilized
by EPCO and its Affiliates during the one year period prior to the Closing Date,
which manner shall not be altered except by mutual agreement of the parties. If
the General Partner's failure to supply such input renders EPCO's performance of
any Services unreasonably difficult, EPCO, upon reasonable notice to the General
Partner, may refuse to perform such Services.
2.7 LIMITATION. The General Partner acknowledges that the Services
shall be provided only with respect to the business of the Partnership Entities
as operated on the Closing Date or as otherwise mutually agreed by EPCO and the
General Partner. EPCO shall not be required to perform any Services for the
benefit of any Person other than the Partnership Entities.
2.8 REPRESENTATIONS REGARDING USE OF SERVICES. The General Partner
represents and agrees that it will use the Services only in accordance with all
applicable federal, state and local laws and regulations, and in accordance with
the reasonable conditions, rules, regulations, and specifications that may be
set forth in any manuals, materials, documents, or instructions furnished from
time to time by the General Partner to EPCO or by EPCO to the General Partner.
EPCO reserves the right to take all actions, including, without limitation,
termination of any particular Services, that EPCO reasonably believes to be
necessary to assure compliance with applicable laws and regulations.
2.9 WARRANTY; LIMITATION OF LIABILITY. The Services shall be of the
same or similar quality as those provided by EPCO with respect to the business,
properties and assets of the
3
Partnership Entities during the one year period prior to the Closing Date.
EXCEPT AS SET FORTH IN THE IMMEDIATELY PRECEDING SENTENCE, EPCO MAKES NO (AND
HEREBY DISCLAIMS AND NEGATES ANY AND ALL) WARRANTIES OR REPRESENTATIONS
WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES. IN NO EVENT SHALL
EPCO OR ANY OF ITS AFFILIATES BE LIABLE TO THE GENERAL PARTNER OR ANY OTHER
PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES RESULTING FROM ANY
ERROR IN THE PERFORMANCE OF SERVICES, REGARDLESS OF WHETHER EPCO, ITS
AFFILIATES, OR OTHERS WHO MAY BE WHOLLY, CONCURRENTLY, PARTIALLY, OR SOLELY
NEGLIGENT OR OTHERWISE AT FAULT.
2.10 FORCE MAJEURE. EPCO shall have no obligation to perform the
Services if its failure to do so is caused by or results from any act of God,
governmental action, natural disaster, strike, failure of essential equipment,
or any other cause or circumstance, whether similar or dissimilar to the
foregoing causes or circumstances, beyond the reasonable control of EPCO.
2.11 AFFILIATES. At its election, EPCO may cause one or more of its
Affiliates or third party contractors reasonably acceptable to the General
Partner to provide the Services; however, EPCO shall remain responsible for the
provision of the Services in accordance with this Agreement.
ARTICLE 3: USE OF NAME AND MARK
3.1 GRANT OF LICENSE. EPCO hereby grants to each of the Partnership
Entities (individually, a "Licensee"), and each Licensee hereby accepts, a
nontransferable, nonexclusive royalty-free right and license to use the Name and
Mark in connection with the business conducted by each such Licensee.
3.2 USE. All use of and reference to the Name and Mark by each Licensee
shall be generally approved by EPCO prior to such use or reference, and all such
use and reference shall conform with such instructions and quality standards as
EPCO from time to time may issue. In no event shall use of or reference to the
Name and Mark be inconsistent in form or content with the sole ownership of the
Name and Mark by EPCO. All use of the Name and Mark by each Licensee, its
agents, servants, employees and vendees, shall inure solely to the benefit of
EPCO. EPCO shall have the right to make inspection of Licensee's services
rendered in connection with the Name and Mark to protect the goodwill of EPCO
associated with the Name and Mark.
3.3 VARIATIONS. No Licensee shall adopt and commence using any
variations of the Name and Mark, or any other names and marks confusingly
similar thereto, without the prior approval of EPCO.
3.4 NONTRANSFERABLE. The license granted to each Licensee to use the
Name and Mark is not assignable or transferable, and it shall not inure to the
benefit of any other Person, including, without limitation, a trustee in
bankruptcy or any other successor to any Licensee, whether by operation of law
or otherwise.
3.5 INDEMNITY. Each Licensee agrees to be solely responsible for and to
defend and indemnify EPCO from and against any and all claims, demands and
causes of action, and all
4
costs, liabilities, expenses (including, without limitation, reasonable
attorney's fees), damages or judgments sustained in connection therewith,
arising out of, resulting from or related to the use of the Name and Mark by
such Licensee, its agents, servants, employees and representatives, even if such
claim, demand or cause of action is based on the sole, partial or concurrent
negligence of EPCO, except that EPCO shall defend and indemnify each Licensee
from and against all claims, demands or causes of action for trademark
infringement arising from the use of the Name and Mark by such Licensee. If
requested by EPCO, such Licensee shall retain counsel reasonably satisfactory to
EPCO to represent EPCO, and such Licensee shall pay the fees and expenses of
such counsel relating to such claim, demand, or cause of action. EPCO shall be
consulted with respect to all matters concerning such claim, demand, or cause of
action, and settlement of such claim, demand, or cause of action shall not be
made without the prior written approval of EPCO.
3.6 TERMINATION. The license granted by this Article 3 shall terminate
automatically upon the expiration of the Applicable Period. As promptly as
practicable (but in no event more than 180 days) following the termination of
this license, each Licensee shall cease all use of the Name and Mark and any and
all other names and marks confusingly similar thereto. Termination of the
license shall not terminate each Licensee's continuing obligation of
indemnification under Section 3.5.
ARTICLE 4: INDEMNIFICATION
4.1 INDEMNIFICATION. From and after the date hereof and subject to the
remaining provisions of this Article 4, EPCO shall indemnify, defend and hold
harmless the Partnership Entities from and against any loss, cost, claim,
liability, prepayment or similar penalty, damage, expense, attorneys fees,
judgment, award or settlement of any kind or nature whatsoever (other than
out-of-pocket costs and expenses incurred by the Partnership Entities in
connection with the discharge of their obligations pursuant to Section 4.2(b))
(collectively, "Losses") incurred by the Partnership Entities in connection with
the Excluded Liabilities; provided, however, in no event shall such
indemnification obligation, or the term "Losses," cover or include
consequential, indirect, or incidental damages or lost profits suffered by the
Partnership Entities in connection with the Excluded Liabilities, except to the
extent such consequential, indirect or incidental damages or lost profits are
actually paid to a third party.
4.2 Indemnification Procedures.
(a) EPCO shall have the right to control all aspects of the defense of
any claims (and any counterclaims) related to the Excluded Liabilities,
including, without limitation, the selection of counsel, determination of
whether to appeal any decision of any court and the settling of any such matter
or any issues relating thereto; provided, however, that no such settlement shall
be entered into without the consent of the Partnership Entities unless (i) it
includes a full release of the Partnership Entities from such matter or issues,
as the case may be or (ii) following such settlement there is no realistic
scenario under which the Partnership Entities could be held liable for such
matter or issues.
(b) The Partnership Entities agree, at their own cost and expense, to
cooperate fully with EPCO with respect to all aspects of the defense of any
claims related to the Excluded
5
Liabilities, including, without limitation, the prompt furnishing to EPCO of any
correspondence or other notice relating thereto that the General Partner or the
Partnership Entities may receive, permitting the names of the General Partner
and the Partnership Entities to be utilized in connection with such defense and
the making available to EPCO of any files, records or other information of the
General Partner or the Partnership Entities that EPCO considers relevant to such
defense; provided, however, that in connection therewith EPCO agrees to use
reasonable efforts to minimize the impact thereof on the operations of such
Partnership Entities. In no event shall the obligation of the Partnership
Entities to cooperate with EPCO as set forth in the immediately preceding
sentence be construed as imposing upon the Partnership Entities an obligation to
hire and pay for counsel in connection with the defense of any claims related to
the Excluded Litigation.
ARTICLE 5: OTHER AGREEMENTS
5.1 PROHIBITED ACTIVITIES. During the Applicable Period, EPCO agrees
that it will not, and will cause its Affiliates not to, engage in any Restricted
Activity, unless (a) notice of the opportunity to engage in such Restricted
Activity has first been given by EPCO to the General Partner, which notice shall
describe in reasonable detail the specific Restricted Activity that EPCO or its
applicable Affiliate desires to engage in, (b) the General Partner has notified
EPCO of its decision to permit EPCO or one of its Affiliates to undertake such
Restricted Activity to the exclusion of the Partnership Entities and (c) the
Audit and Conflicts Committee has approved such decision. The General Partner
agrees to give prompt consideration to any such notice. EPCO agrees and
acknowledges that the Partnership Entities do not have an adequate remedy at law
for the breach by EPCO or its Affiliates of the foregoing agreement, and that
any breach by EPCO or its Affiliates of the foregoing agreement would result in
irreparable injury to the Partnership Entities. EPCO further agrees and
acknowledges that the Partnership Entities may, in addition to the other
remedies which may be available to the Partnership Entities, file a suit in
equity to enjoin EPCO and its Affiliates from such breach.
5.2 INSURANCE MATTERS. EPCO hereby agrees to cause the Partnership
Entities to be named as additional insureds in EPCO's current insurance program,
which is described on Exhibit A attached hereto. Each of the Partnership
Entities shall be allocated, and pay for, such insurance coverage in an amount
equal to EPCO's cost of insuring the assets and operations of such Partnership
Entity, and generally in accordance with the allocations and methodology
described in Exhibit A.
5.3 COMMON CARRIER TRANSPORTATION CONTRACT. Effective June 1, 1998,
EPCO and the OLP entered into a Common Carrier Transportation Contract
substantially in the form of Exhibit B attached hereto, pursuant to which EPCO
agreed to provide trucking and other transportation services to the OLP.
5.4 SUBLEASE OF EQUIPMENT. Dated June 1, 1998, EPCO and the OLP entered
into a Sublease Agreement substantially in the form of Exhibit C attached
hereto, pursuant to which EPCO agreed to sublease certain of its equipment to
the OLP.
5.5 AGREEMENT REGARDING CERTAIN ASSETS RETAINED BY EPCO. With respect
to any assets or properties of EPCO and/or any of its Affiliates that would have
been a part of the assets
6
and properties transferred by EPCO or such Affiliate to the Partnership Entities
on or prior to the Closing Date (by operation of law or otherwise) but for the
existence of prohibitions against or conditions to such transfer that, if not
satisfied, would result in the breach by EPCO or one of its Affiliates of a
third party agreement or would terminate or give a third party the right to
terminate any rights of EPCO or such Affiliate in and to such asset or property
(any such asset or property being herein referred to as a "Restricted Asset" and
any such prohibition or condition being herein referred to as a "Restriction"),
EPCO agrees to (a) use commercially reasonable efforts to cause such Restriction
to be satisfied or waived, (b) transfer such Restricted Asset to the appropriate
Partnership Entity when and if such Restriction is satisfied or waived, provided
that such Restriction is satisfied or waived within 21 years of the death of the
last to die of the descendants of Joseph P. Kennedy, father of the late
President John F. Kennedy, who are living on the Closing Date, and (c) pending
the satisfaction or waiver of such Restriction and to the extent permitted by
applicable law and the terms of any applicable contracts or agreements, and
subject to any written agreements between EPCO and the Partnership Entities
regarding specific Restricted Assets, hold the Restricted Assets for the benefit
of and use by the Partnership Entities in order to permit the Partnership
Entities to realize, receive, and enjoy rights and benefits, and bear burdens
and obligations of the Restricted Assets, in each case that are substantially
similar to those that the Partnership Entities would have been able to realize,
receive and enjoy, or bear, as applicable, had such Restriction been satisfied
or waived.
5.6 AGREEMENT REGARDING MONT BELVIEU PARTNERSHIP. The parties
acknowledge and agree that pursuant to the Plan of Merger, EPCO retained a one
percent economic interest, and all rights of EPCO as a "partner," in Mont
Belvieu Associates, a Texas general partnership ("Mont Belvieu"). With respect
to such interest and rights in Mont Belvieu retained by EPCO, EPCO agrees that
until such time as EPCO's rights as a "partner" in Mont Belvieu are transferred
to Enterprise Texas and Enterprise Texas is admitted to Mont Belvieu as a
partner, EPCO agrees to refrain from exercising or waiving any of its rights as
a "partner"" in Mont Belvieu without the prior approval of Enterprise Texas, and
will exercise or waive its rights, and vote its partnership interest, as
directed by Enterprise Texas. EPCO agrees that it will not sell or otherwise
transfer (including by way of a pledge) any of its partner interest in Mont
Belvieu without the approval of the Audit and Conflicts Committee. EPCO agrees
that, upon the occurrence of a Change of Control and subject to the receipt of
any applicable third-party consents or approvals, (a) EPCO will transfer to
Enterprise Texas the 49% partner interest for which the related economic
interest has already been transferred to Enterprise Texas without the payment of
further consideration by Enterprise Texas and (b) Enterprise Texas will have the
option to purchase from EPCO its remaining 1% partner interest in Mont Belvieu
for the fair market value thereof, as determined by agreement between EPCO and
the Audit and Conflicts Committee.
5.7 AGREEMENT REGARDING BELVIEU ENVIRONMENTAL FUELS. The parties
acknowledge and agree that pursuant to the Plan of Merger, EPCO retained its
rights as a general partner of Belvieu Environmental Fuels, Inc., a Texas
General Partnership ("BEF"). With respect to such rights in BEF retained by
EPCO, EPCO agrees that until such time as EPCO's rights as a "partner" in BEF
are transferred to the OLP, and the OLP is admitted to BEF as a partner, EPCO
agrees to refrain from exercising or waiving any of its rights as a "partner" in
BEF without the prior approval of the OLP and will exercise or waive its rights,
and vote its partnership interests, as directed by the OLP. EPCO agrees that it
will not sell or otherwise transfer (including by way
7
of a pledge) any of its partner interests in BEF without the approval of the
Audit and Conflicts Committee. EPCO further agrees that, upon the occurrence of
a Change of Control and subject to the receipt of any applicable third-party
consents or approvals, it will transfer its rights as a partner in BEF to the
OLP without the payment of further consideration by the OLP.
ARTICLE 6: MISCELLANEOUS
6.1 CHOICE OF LAW; SUBMISSION TO JURISDICTION. This Agreement shall be
subject to and governed by the laws of the State of Texas, excluding any
conflicts-of-law rule or principle that might refer the construction or
interpretation of this Agreement to the laws of another state. Each party hereby
submits to the jurisdiction of the state and federal courts in the State of
Texas and to venue in Houston, Harris County, Texas.
6.2 NOTICES. All notices or requests or consents provided for or
permitted to be given pursuant to this Agreement must be in writing and must be
given by depositing same in the United States mail, addressed to the Person to
be notified, postpaid, and registered or certified with return receipt requested
or by delivering such notice in person or by telecopier or telegram to such
party. Notice given by personal delivery or mail shall be effective upon actual
receipt. Notice given by telegram or telecopier shall be effective upon actual
receipt if received during the recipient's normal business hours, or at the
beginning of the recipient's next business day after receipt if not received
during the recipient's normal business hours. All notices to be sent to a party
pursuant to this Agreement shall be sent to or made at the address set forth
below such party's signature to this Agreement, or at such other address as such
party may stipulate to the other parties in the manner provided in this Section
6.2.
6.3 ENTIRE AGREEMENT; SUPERSEDURE. This Agreement constitutes the
entire agreement of the parties relating to the matters contained herein,
superseding all prior contracts or agreements, whether oral or written, relating
to the matters contained herein.
6.4 EFFECT OF WAIVER OF CONSENT. No waiver or consent, express or
implied, by any party to or of any breach or default by any Person in the
performance by such Person of its obligations hereunder shall be deemed or
construed to be a consent or waiver to or of any other breach or default in the
performance by such Person of the same or any other obligations of such Person
hereunder. Failure on the part of a party to complain of any act of any Person
or to declare any Person in default, irrespective of how long such failure
continues, shall not constitute a waiver by such party of its rights hereunder
until the applicable statute of limitations period has run.
6.5 AMENDMENT OR MODIFICATION. This Agreement may be amended or
modified from time to time only by the agreement of all the parties hereto;
provided, however, that the MLP and OLP may not, without the prior approval of
the Audit and Conflicts Committee, agree to any amendment or modification of
this Agreement that, in the reasonable discretion of the General Partner, will
adversely affect the Holders of Common Units.
6.6 ASSIGNMENT. No party shall have the right to assign its rights or
obligations under this Agreement without the consent of the other parties
hereto.
8
6.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts with the same effect as if all signatory parties had signed the
same document. All counterparts shall be construed together and shall constitute
one and the same instrument.
6.8 SEVERABILITY. If any provision of this Agreement or the application
thereof to any Person or circumstance shall be held invalid or unenforceable to
any extent, the remainder of this Agreement and the application of such
provision to other Persons or circumstances shall not be affected thereby and
shall be enforced to the greatest extent permitted by law.
6.9 FURTHER ASSURANCES. In connection with this Agreement and all
transactions contemplated by this Agreement, each signatory party hereto agrees
to execute and deliver such additional documents and instruments and to perform
such additional acts as may be necessary or appropriate to effectuate, carry out
and perform all of the terms, provisions and conditions of this Agreement and
all such transactions.
6.10 WITHHOLDING OR GRANTING OF CONSENT. Each party may, with respect
to any consent or approval that it is entitled to grant pursuant to this
Agreement, grant or withhold such consent or approval in its sole and
uncontrolled discretion, with or without cause, and subject to such conditions
as it shall deem appropriate.
6.11 U.S. CURRENCY. All sums and amounts payable or to be payable
pursuant to the provisions of this Agreement shall be payable in coin or
currency of the United States of America that, at the time of payment, is legal
tender for the payment of public and private debts in the United States of
America.
6.12 LAWS AND REGULATIONS. Notwithstanding any provision of this
Agreement to the contrary, no party hereto shall be required to take any act, or
fail to take any act, under this Agreement if the effect thereof would be to
cause such party to be in violation of any applicable law, statute, rule or
regulation.
6.13 NEGATION OF RIGHTS OF THIRD PARTIES. The provisions of this
Agreement are enforceable solely by the parties to this Agreement, and no
Limited Partner, Assignee or other Person shall have the right, separate and
apart from the MLP or the OLP, to enforce any provision of this Agreement or to
compel any party to this Agreement to comply with the terms of this Agreement.
9
IN WITNESS WHEREOF, the parties have executed this Agreement on, and
effective as of, the Closing Date.
ENTERPRISE PRODUCTS COMPANY
By: /s/ Gary L. Miller
Gary L. Miller
Executive Vice President
Address for Notice:
P.O. Box 4324
Houston, Texas 77210-4324
ENTERPRISE PRODUCTS PARTNERS L.P.
By: ENTERPRISE PRODUCTS GP, LLC
its sole general partner
By: /s/ Gary L. Miller
Gary L. Miller
Executive Vice President
Address for Notice:
P.O. Box 4324
Houston, Texas 77210-4324
ENTERPRISE OPERATING PARTNERS L.P.
By: ENTERPRISE PRODUCTS GP, LLC,
its sole general partner
By: /s/ Gary L. Miller
Gary L. Miller
Executive Vice President
Address for Notice:
P.O. Box 4324
Houston, Texas 77210-4324
ENTERPRISE PRODUCTS GP, LLC
By: /s/ Gary L. Miller
Gary L. Miller
Executive Vice President
Address for Notice:
P.O. Box 4324
Houston, Texas 77210-4324
10
ATTACHMENT I
DEFINED TERMS
"Administrative Services Fee" shall mean, with respect to the period of
time beginning on the Closing Date and ending on the first anniversary thereof
(the "Initial Period"), an amount equal to $12,000,000; provided, however, that
the Administrative Service Fee for each of the nine successive one year-periods
following the Initial Period (each a "Subsequent Period") may be increased by
the General Partner upon the request of EPCO subject to the following
restrictions:
(i) any such increase must be approved by the Audit and Conflicts
Committee; and
(ii) except to the extent necessary to fully and adequately
reimburse EPCO for any incremental SGA Costs incurred by EPCO
or its Affiliates as a result of the hiring of additional
management personnel in connection with the expansion of the
operations of the Partnership Entities (through the
construction of new facilities or the completion of
acquisitions), in no event may the Administrative Services Fee
for any Subsequent Period exceed an amount equal to 110% of
the Administrative Services Fee that was paid or payable by
the General Partner to EPCO with respect to the prior one year
period.
"Affiliate" shall have the meaning attributed to such term in the MLP
Agreement; provided, however, that for the purposes of this Agreement neither
the General Partner, the MLP, the OLP nor any Person controlled by the MLP or
the OLP (as the term "control" is used in the definition of "Affiliate" in the
MLP Agreement) shall be deemed to be an Affiliate of EPCO.
"Agreement" shall mean this EPCO Agreement, as it may be amended,
modified, or supplemented from time to time.
"Applicable Period" shall mean the period commencing on the Closing
Date and terminating on the date on which the general partner of the MLP and the
OLP ceases to be Enterprise Products GP, LLC or another Person that is an
Affiliate of EPCO.
"BEF" shall have the meaning attributed to such term in Section 5.7.
"Business" shall mean the business and operations of EPCO and its
subsidiaries immediately prior to the effectiveness of the merger contemplated
by the Plan of Merger (excluding the Retained Assets and Liabilities (as defined
in the Plan of Merger)).
"Change of Control" shall mean the occurrence of any transaction, the
result of which is that (a) Dan Duncan, directly or indirectly, owns less than a
majority of the voting stock of EPCO, (b) EPCO or a wholly owned subsidiary of
EPCO and Dan Duncan, directly or indirectly, collectively own less than a
majority of the voting stock of the General Partner or (c) EPCO ceases to be an
Affiliate of the General Partner.
"Enterprise Texas" shall mean Enterprise Texas Operating L.P., a Texas
limited partnership.
"Excluded Liabilities" shall mean the following liabilities and
obligations:
(a) all liabilities and obligations attributable to the
lawsuits and claims listed on Exhibit D attached hereto and made a part
hereof;
(b) all indebtedness of EPCO and its Affiliates for borrowed
money other than the Designated Indebtedness (as such term is defined
in the Plan of Merger);
(c) any Retained Assets and Liabilities (as such term is
defined in the Plan of Merger);
(d) all liabilities and obligations to brokers or finders
arising prior to the Closing Date, except to the extent any such
liabilities and obligations were entered into in the normal and
ordinary course of the day-to-day operation of the business or
constitute a part of the "Underwriting Commissions and Offering
Expenses" to be paid by the MLP as described in the Registration
Statement under the Section entitled "Use of Proceeds";
(e) any income tax liability of EPCO that may result from the
consummation of the transactions contemplated by this Agreement; and
(f) any liability or obligation of EPCO under any employment
agreements with any of its employees or officers.
"General Partner" shall mean the Enterprise GP and its successors as
general partner of the MLP and the OLP, unless the context otherwise requires.
"Licensee" shall have the meaning attributed to such term in Section
3.1.
"Losses" shall have the meaning attributed to such term in Section 4.1.
"MLP Agreement" shall mean that certain Amended and Restated Agreement
of Limited Partnership of Enterprise Products Partners L.P., dated as of the
Closing Date, as same may be amended from time to time.
"Name" and "Mark" shall mean the name "Enterprise", as described in
Registration Number 1,236,995 registered on May 10, 1983 and issued by the
United States Patent and Trademark Office, and the mark "Enterprise", as
described in Application Registration Number 1,292,612 registered on September
4, 1984 and issued by the United States Patent and Trademark Office.
"Partnership Entities" shall mean the General Partner, the MLP, the OLP
and any Affiliate controlled by the General Partner, the MLP or the OLP.
"Plan of Merger" shall mean that certain Plan of Merger dated June 1,
1998 by and among EPCO, HSC Pipeline Partnership, L.P., Chunchula Pipeline
Company, LLC, Propylene Pipeline Partnership, L.P., Cajun Pipeline Company, LLC,
and Enterprise Texas, as amended by that certain First Amendment to Plan of
Merger among such parties dated effective as of June 1, 1998.
2
"Restricted Activities" mans the conduct within North America of the
types of businesses and activities engaged in by EPC and its Affiliates as of
May 31, 1998; provided, however, that such term shall not include any business
or activities associated with the assets, properties or businesses of EPCO and
its Affiliates as of the day immediately following the Closing Date.
"Reimbursement Amount" shall have the meaning attributed to such term
in Section 2.2.
"SGA Services" shall have the meaning attributed to such term in
Section 2.1.
"SGA Costs" shall mean the selling, general and administrative costs
incurred by EPCO and its Affiliates in connection with provision of SGA Services
to the Partnership Entities.
3
EXHIBIT 21.1
Enterprise Products Partners L.P.
Enterprise Products Operating L.P.
List of Subsidiaries
Acadian Acquisition, LLC, a Delaware limited liability company
Acadian Consulting, LLC, a Delaware limited liability company
Acadian Gas LLC, a Delaware limited liability company
Cajun Pipeline Company, LLC, a Texas limited liability company
Chunchula Pipeline Company, LLC, a Texas limited liability company
Cypress Gas Marketing, LLC, a Delaware limited liability company
Cypress Gas Pipeline, LLC, a Delaware limited liability company
Deep Gulf Development, LLC a Delaware limited liability company
E-Cypress, LLC, a Delaware limited liability company
Enterprise Fractionation LLC, a Delaware limited liability company
Enterprise Gas Processing LLC, a Delaware limited liability company
Enterprise Lou-Tex NGL Pipeline L.P., a Texas limited partnership
Enterprise Lou-Tex Propylene Pipeline L.P., a Texas limited partnership
Enterprise NGL Pipelines, LLC, a Delaware limited liability company
Enterprise NGL Private Lines & Storage LLC, a Delaware limited liability company
Enterprise Norco LLC, a Delaware limited liability company
Enterprise Offshore Development, LLC, a Delaware limited liability company
Enterprise Products Texas Operating L.P., a Texas limited partnership
Enterprise Terminals & Storage, LLC, a Delaware limited liability company
E-Oaktree, LLC, a Delaware limited liability company
EPOLP 1999 Grantor Trust, a trust formed under Texas law
Evangeline Gulf Coast Gas, LLC, a Delaware limited liability company
Grande Isle Pipeline LLC, a Delaware limited liability company
HSC Pipeline Partnership, L.P., a Texas limited partnership
Mapletree, LLC, a Delaware limited liability company
MCN Acadian Gas Pipeline, LLC, a Delaware limited liability company
MCN Pelican Interstate Gas, LLC, a Delaware limited liability company
MCN Pelican Transmission LLC, a Delaware limited liability company
Mid-America Pipeline Co., LLC, a Delaware limited liability company
Moray Pipeline Company, LLC, a Delaware limited liability company
Propylene Pipeline Partnership, L.P., a Texas limited partnership
Sabine Propylene Pipeline L.P., a Texas limited partnership
Sailfish Pipeline Company, L.L.C., a Delaware limited liability company
Seminole Pipeline Company, a Delaware corporation
Sorrento Pipeline Company, LLC, a Texas limited liability company
TXO-Acadian Gas Pipeline, LLC, a Delaware limited liability company
Venice Pipeline LLC, a Delaware limited liability company
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement of
Enterprise Products Operating L.P. and Enterprise Products Partners L.P. on Form
S-4 of (i) our report dated March 8, 2002 (which report expresses an unqualified
opinion and includes an explanatory paragraph referring to the change in
accounting for derivative instruments in 2001), with respect to the consolidated
financial statements of Enterprise Products Operating L.P., appearing in the
Annual Report on Form 10-K of Enterprise Products Operating L.P. for the year
ended December 31, 2001, (ii) our report dated March 8, 2002 (May 15, 2002 as to
Note 16 for the effects of a two-for-one split of Limited Partner Units) (which
report expresses an unqualified opinion and includes an explanatory paragraph
referring to the change in accounting for derivative instruments in 2001), with
respect to the consolidated financial statements of Enterprise Products Partners
L.P., appearing in the Current Report on Form 8-K dated September 27, 2002,
related to Enterprise Products Partners L.P., (iii) our report dated October 1,
2002 with respect to the balance sheet of Enterprise Products GP, LLC, appearing
in the Current Report on Form 8-K dated October 2, 2002, related to Enterprise
Products Partners L.P. and Enterprise Products Operating L.P. and (iv) to the
reference to us under the heading "Experts" in the Prospectus, which is part of
this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Deloitte & Touche LLP
Houston, Texas
January 24, 2003
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-4) and related Prospectus of Enterprise Products
Partners L.P. and Enterprise Products Operating L.P. (collectively "Enterprise")
for the registration of $350,000,000 of senior notes and related exchange offer
for up to $350,000,000 of senior notes and to the incorporation by reference
therein of our report dated September 6, 2002, with respect to the combined
financial statements of Mid-America Pipeline System and of our report dated
March 6, 2002 (except for the matter described in Note 14, as to which the date
is September 6, 2002) with respect to the financial statements of Seminole
Pipeline Company included in Enterprise's Current Report on Form 8-K/A
(Amendment No. 1) filed with the Securities and Exchange Commission on September
26, 2002.
/s/ Ernst & Young LLP
Tulsa, Oklahoma
January 22, 2003
EXHIBIT 25.1
Registration No. 333-___
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2)
Wachovia Bank, National Association
(Exact name of trustee as specified in its charter)
United States of America
(Jurisdiction of incorporation or organization if not a U.S. national bank)
22-1147033
(I.R.S. Employer Identification Number)
One Wachovia Center
301 South College Street
Charlotte, North Carolina
(Address of principal executive offices)
28288
(Zip code)
R. Douglas Milner
Wachovia Bank, National Association
5847 San Felipe, Suite 1050
Houston, Texas 77057
(713)278-4321
(Name, address and telephone number of agent for service)
Enterprise Products Operating L.P.
Enterprise Products Partners L.P.
(Exact name of obligor as specified in its charter)
Delaware
Delaware
(State or other jurisdiction of incorporation or organization)
76-0568220
76-0568219
(I.R.S. Employer Identification No.)
2727 North Loop West
Houston, Texas
(Address of principal executive offices)
77008
(Zip code)
6.375% Senior Notes due 2013
(Title of the indenture securities)
1
Item 1. GENERAL INFORMATION. Furnish the following information as to the
trustee:
a. Name and address of each examining or supervising authority to which
it is subject.
NAME ADDRESS
Board of Governors of the Federal Washington, D.C.
Reserve System
Comptroller of the Currency Washington, D.C.
Federal Deposit Insurance Washington, D.C.
Corporation
b. Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate trust powers.
Item 2. AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the
trustee, describe each such affiliation.
The obligor is not an affiliate of the trustee. (See Note 1 on page 6.)
Item 3. VOTING SECURITIES OF THE TRUSTEE. Furnish the following information as
to each class of voting securities of the trustee:
As of 12/31/02 (Insert date within 31 days).
COL. A COL. B
TITLE OF CLASS AMOUNT OUTSTANDING
Common 1,360,300,000
Item 4. TRUSTEESHIPS UNDER OTHER INDENTURES. If the trustee is a trustee under
another indenture under which any other securities, or certificates of interest
or participation in any other securities, of the obligor are outstanding,
furnish the following information:
a. Title of the securities outstanding under each such other indenture.
Not Applicable.
b. A brief statement of the facts relied upon as a basis for the claim
that no conflicting interest within the meaning of Section 310(b)(1) of the Act
arises as a result of the trusteeship under any such other indenture, including
a statement as to how the indenture securities will rank as compared with the
securities issued under such other indenture.
Not Applicable.
2
Item 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR
UNDERWRITERS. If the trustee or any of the directors or executive officers of
the trustee is a director, officer, partner, employee, appointee, or
representative of the obligor of any underwriter for the obligor, identify each
such person having any such connection and state the nature of each such
connection.
Not Applicable - see answer to Item 13.
Item 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS.
Furnish the following information as to the voting securities of the trustee
owned beneficially by the obligor and each director, partner, and executive
officer of the obligor.
As of _______ (Insert date within 31 days).
COL. D
COL. C PERCENTAGE OF VOTING SECURITIES
COL. A COL. B AMOUNT OWNED REPRESENTED BY AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
Not Applicable - see answer to Item 13.
Item 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS. Furnish the following information as to the voting securities of the
trustee owned beneficially by each underwriter for the obligor and each
director, partner, and executive officer of each such underwriter:
As of _______ (Insert date within 31 days).
COL. D
COL. C PERCENTAGE OF VOTING SECURITIES
COL. A COL. B AMOUNT OWNED REPRESENTED BY AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
Not Applicable - see answer to Item 13.
Item 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE. Furnish the
following information as to securities of the obligor owned beneficially or held
as collateral security for obligations in default by the trustee:
As of ____________ (Insert date within 31 days).
COL. C
AMOUNT OWNED COL.
COL. B BENEFICIALLY OR PERCENT OF CLASS
WHETHER THE SECURITIES HELD AS COLLATERAL REPRESENTED BY
COL. A ARE VOTING OR SECURITY FOR AMOUNT GIVEN
TITLE OF CLASS NONVOTING SECURITIES OBLIGATIONS IN DEFAULT IN COL. C
3
Not Applicable - see answer to Item 13.
Item 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE. If the trustee
owns beneficially or hold as collateral security for obligations in default any
securities of an underwriter for the obligor, furnish the following information
as to each class of securities of such underwriter any of which are so owned or
held by the trustee:
As of ____________ (Insert date within 31 days).
COL. C COL. D
AMOUNT OWNED BENEFICIALLY PERCENT OF CLASS
COL. A COL. B OR HELD AS COLLATERAL REPRESENTED BY
TITLE OF ISSUER AMOUNT SECURITY FOR OBLIGATIONS AMOUNT GIVEN
AND TITLE OF CLASS OUTSTANDING IN DEFAULT BY TRUSTEE IN COL. C
Not Applicable - see answer to Item 13.
Item 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR. If the trustee owns beneficially
or holds as collateral security for obligations in default voting securities of
a person who, to the knowledge of the trustee (1) owns 10 percent or more of the
voting securities of the obligor or (2) is an affiliate, other than a
subsidiary, of the obligor, furnish the following information as to the voting
securities of such person:
As of ____________ (Insert date within 31 days).
COL. C COL. D
AMOUNT OWNED BENEFICIALLY PERCENT OF CLASS
COL. A COL. B OR HELD AS COLLATERAL REPRESENTED BY
TITLE OF ISSUER AMOUNT SECURITY FOR OBLIGATIONS AMOUNT GIVEN
AND TITLE OF CLASS OUTSTANDING IN DEFAULT BY TRUSTEE IN COL. C
Not Applicable - see answer to Item 13.
Item 11. Ownership or holdings by the trustee of any securities of a person
owning 50 percent or more of the voting securities of the obligor. If the
trustee owns beneficially or holds as collateral security for obligations in
default any securities of a person who, to the knowledge of the trustee, owns 50
percent or more of the voting securities of the obligor, furnish the following
information as to each class of securities of such person any of which are so
owned or held by the trustee:
As of ____________ (Insert date within 31 days).
4
COL. C COL. D
AMOUNT OWNED BENEFICIALLY PERCENT OF CLASS
COL. A COL. B OR HELD AS COLLATERAL REPRESENTED BY
TITLE OF ISSUER AMOUNT SECURITY FOR OBLIGATIONS AMOUNT GIVEN
AND TITLE OF CLASS OUTSTANDING IN DEFAULT BY TRUSTEE IN COL. C
Not Applicable - See answer to Item 13.
Item 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE. Except as noted in the
instructions, if the obligor is indebted to the trustee, furnish the following
information:
As of ____________ (Insert date within 31 days).
COL. A COL. B COL. C
NATURE OF INDEBTEDNESS AMOUNT OUTSTANDING DATE DUE
Not Applicable - See answer to Item 13.
Item 13. Defaults by the Obligor.
a. State whether there is or has been a default with respect to the securities
under this indenture. Explain the nature of any such default.
None.
b. If the trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, or is trustee for more than one
outstanding series of securities under the indenture, state whether there has
been a default under any such indenture or series, identify the indenture or
series affected, and explain the nature of any such default.
None.
Item 14. AFFILIATIONS WITH THE UNDERWRITERS. If any underwriter is an affiliate
of the trustee, describe each such affiliation.
Not Applicable.
Item 15. FOREIGN TRUSTEE. Identify the order or rule pursuant to which the
foreign trustee is authorized to act as sole trustee under indentures qualified
or to be qualified under the Act.
Not Applicable.
Item 16. LIST OF EXHIBITS. List below all exhibits filed as a part of this
statement of eligibility.
1. Articles of Association of Wachovia Bank, National Association as
now in effect.*
2. Certificate of Authority of the trustee to commence business.*
5
3. Copy of the authorization of the trustee to exercise corporate trust
powers.*
4. Existing bylaws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority.**
8. Not Applicable.
9. Not Applicable.
- ------------------------
* Previously filed with the Securities and Exchange Commission as an
Exhibit to Form T-1 in connection with Registration Statement Number 033-54465
incorporated herein by reference.
** This report is available over the Internet at the website of the
Federal Deposit Insurance Corporation and this report as therein contained is
incorporated herein by reference. This website is located at
HTTP://WWW3.FDIC.GOV/IDASP/MAIN.ASP. ONCE AT THAT ADDRESS, TYPE IN "WACHOVIA
CORPORATION" AT THE FIELD ENTITLED "INSTITUTION NAME" THEN CLICK ON THE "FIND"
FIELD ABOVE WHERE THE NAME OF THE BANK HAS BEEN TYPED IN THEN CLICK ON THE
CERTIFICATE NUMBER FOR WACHOVIA CORPORATION (1073551) THEN CLICK ON THE
"GENERATE REPORT" FIELD.
NOTES:
Note 1: The trustee is a subsidiary of Wachovia Corporation, a bank
holding company; all of the voting securities of the trustee are held by
Wachovia Corporation.
6
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
trustee, Wachovia Bank, National Association, a national banking association
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the city of Houston , and State
of Texas , on the 23rd day of January , 2003.
WACHOVIA BANK, NATIONAL ASSOCIATION
(Trustee)
By: /s/ R. Douglas Milner
-----------------------------------------
R. Douglas Milner, Vice President
(Name and Title)
7
EXHIBIT 6
Wachovia Bank, National Association, pursuant to the requirements of
Section 321(b) of the Trust Indenture Act of 1939, as amended (the "Act") in
connection with the proposed issuance by Enterprise Products Operating L.P. of
its 6.375% Senior Notes due 2013, consents that reports of examination by
federal, state, territorial, or district authorities may be furnished by such
authorities to the Securities and Exchange Commission upon request therefor, as
contemplated by Section 321(b) of the Act.
Dated: January 23, 2003
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ R. Douglas Milner
-----------------------------------------
R. Douglas Milner, Vice President
8
