Exhibit 1.1
Enterprise Products Operating L.P.
8.375% Fixed/Floating Rate Junior Subordinated Notes due 2066 (LoTS
SM
)
guaranteed by
Enterprise Products Partners L.P.
UNDERWRITING AGREEMENT
July 13, 2006
Wachovia Capital Markets, LLC
Lehman Brothers Inc.
As Representatives of the several underwriters named in Schedule I
c/o Wachovia Capital Markets, LLC
One Wachovia Center
301 South Tryon Street
Charlotte, North Carolina 28288
Ladies and Gentlemen:
Enterprise Products Operating L.P., a Delaware limited partnership (the
Operating
Partnership
), proposes to issue and sell to the underwriters named in Schedule I hereto
(collectively, the
Underwriters
), for whom Wachovia Capital Markets, LLC and Lehman
Brothers Inc. are acting as representatives (the
Representatives
), $300,000,000 principal
amount of the Operating Partnerships 8.375% Fixed/Floating Rate Junior Subordinated Notes due 2066
(the
LoTS
SM
), as set forth in Schedule I hereto, to be fully and
unconditionally guaranteed on a junior subordinated, unsecured basis by Enterprise Products
Partners L.P., a Delaware limited partnership (the
Partnership
) (the
Guarantee
,
and together with the LoTS
SM
, the
Securities
).
The Securities are to be issued under the indenture dated as of October 4, 2004 (the
Base
Indenture
) among the Operating Partnership, as issuer, the Partnership, as parent guarantor,
and Wells Fargo Bank, National Association, as trustee (the
Trustee
), as supplemented by
the Eighth Supplemental Indenture (the
Supplemental Indenture
), to be dated as of the
Delivery Date (as defined in Section 3) (the Base Indenture, as so supplemented, the
Indenture
). Enterprise Products GP, LLC, a Delaware limited liability company (the
General Partner
), is the general partner of the Partnership. Enterprise Products OLPGP,
Inc., a Delaware corporation (
OLPGP
), is the general partner of the Operating
Partnership. The General Partner, the Partnership, OLPGP and the Operating Partnership are
collectively referred to herein as the
Enterprise Parties
.
This is to confirm the agreement among the Enterprise Parties and the Underwriters concerning
the purchase of the LoTS
SM
from the Operating Partnership by the Underwriters.
1.
Representations, Warranties and Agreements of the Enterprise Parties
. Each of the
Enterprise Parties represents and warrants to, and agrees with, the Underwriters that:
(a) The Partnership and the Operating Partnership have filed with the Securities and Exchange
Commission (the
Commission
) a registration statement on Form S-3 (file numbers 333-123150
and 333-123150-01), including a prospectus, relating to the Securities and the Partnership and the
Operating Partnership have filed with, or transmitted for filing to, or shall promptly hereafter
file with or transmit for filing to, the Commission a prospectus supplement (the
Prospectus
Supplement
) specifically relating to the Securities pursuant to Rule 424 under the Securities
Act of 1933, as amended (the
Securities Act
). The registration statement as amended at
the date of this underwriting agreement (the
Agreement
), including information, if any,
deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A
under the Securities Act, is hereinafter referred to as the Registration Statement. The term
Base Prospectus
means the prospectus included in the Registration Statement. The term
Prospectus
means the Base Prospectus together with the Prospectus Supplement dated July
14, 2006. The term
Preliminary Prospectus
means any preliminary prospectus supplement
specifically relating to the Securities, together with the Base Prospectus.
(b) As used in this Agreement:
(i)
Applicable Time
means 9:14 a.m. (New York City time) on the day following
the date of this Agreement;
(ii)
Effective Date
means any date as of which any part of such registration
statement relating to the LoTS
SM
became, or is deemed to have become, effective
under the Securities Act in accordance with the Rules and Regulations;
(iii)
Issuer Free Writing Prospectus
means each free writing prospectus (as
defined in Rule 405 of the Rules and Regulations) prepared by or on behalf of the
Partnership and the Operating Partnership or used or referred to by the Partnership and the
Operating Partnership in connection with the offering of the Securities;
(iv)
Pricing Disclosure Package
means, as of the Applicable Time, the most
recent Preliminary Prospectus together with each Issuer Free Writing Prospectus filed with
the Commission by the Partnership and the Operating Partnership on or before the Applicable
Time and identified on
Schedule II
hereto, including the pricing term sheet
attached as
Exhibit A
to this Agreement;
(v)
Registration Statement
means, collectively, the various parts of such
registration statement, each as amended as of the Effective Date for such part, including
any Preliminary Prospectus or the Prospectus.
Any reference to the Registration Statement, the Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents incorporated by reference therein pursuant to Form S-3
under the Securities Act as of the date of such document, as the case may be. Any reference to the
most recent Preliminary Prospectus
shall be deemed to refer to the latest Preliminary
Prospectus included in the Registration Statement or filed pursuant to Rule 424(b) on or prior to
the date hereof. Any reference to any amendment or supplement to any
-2-
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any document filed
under the Securities Exchange Act of 1934, as amended (the
Exchange Act
), after the date
of such Preliminary Prospectus or the Prospectus, as the case may be, and incorporated by reference
in such Preliminary Prospectus or the Prospectus, as the case may be; and any reference to any
amendment to the Registration Statement shall be deemed to include the most recent annual report of
the Partnership on Form 10-K filed with the Commission pursuant to Section 13(a) or 15(d) of the
Exchange Act after the Effective Date that is incorporated by reference in the Registration
Statement. The Commission has not issued any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending the effectiveness of the Registration
Statement, and no proceeding or examination for such purpose has been instituted or, to the
Partnerships knowledge, threatened by the Commission. The Commission has not notified the
Partnership of any objection to the use of the form of the Registration Statement.
(c)
Well Known Seasoned Issuer
. The Partnership has been since December 1, 2005 and
continues to be a well known seasoned issuer (as defined in Rule 405 under the Securities Act),
including not having been an ineligible issuer (as defined in Rule 405 under the Securities Act)
at any such time or date.
(d)
Form of Documents
. The Registration Statement conformed and will conform in all
material respects on the Effective Date and on the Delivery Date, and any amendment to the
Registration Statement filed after the date hereof will conform in all material respects when
filed, to the requirements of the Securities Act and the rules and regulations of the Commission
thereunder (the
Rules and Regulations
). The Preliminary Prospectus conformed, and the
Prospectus will conform, in all material respects when filed with the Commission pursuant to Rule
424(b) to the requirements of the Securities Act and the Rules and Regulations. The documents
incorporated by reference in any Preliminary Prospectus or the Prospectus conformed, and any
further documents so incorporated will conform, when filed with the Commission, in all material
respects to the requirements of the Exchange Act or the Securities Act, as applicable, and the
rules and regulations of the Commission thereunder.
(e)
Registration Statement
. The Registration Statement did not, as of the Effective
Date, contain an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading; provided that no
representation or warranty is made as to information contained in or omitted from the Registration
Statement in reliance upon and in conformity with written information furnished to any of the
Enterprise Parties through the Representatives by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in Section 8(b).
(f)
Prospectus
. The Prospectus will not, as of its date and on the Delivery Date,
contain an untrue statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that no representation or warranty is made as to information contained in or
omitted from the Prospectus in reliance upon and in conformity with written information furnished
to any of the Enterprise Parties through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein, which information is specified in Section 8(b).
-3-
(g)
Documents Incorporated by Reference
. The documents incorporated by reference in
any Preliminary Prospectus or the Prospectus did not, and any further documents filed and
incorporated by reference therein will not, when filed with the Commission, contain an untrue
statement of a material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading.
(h)
Pricing Disclosure Package
. The Pricing Disclosure Package did not, as of the
Applicable Time, contain an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading; provided that no representation or warranty is made as to information
contained in or omitted from the Pricing Disclosure Package in reliance upon and in conformity with
written information furnished to any of the Enterprise Parties through the Representatives by or on
behalf of any Underwriters specifically for inclusion therein, which information is specified in
Section 8(b).
(i)
Issuer Free Writing Prospectus and Pricing Disclosure Package
. Each Issuer Free
Writing Prospectus, when considered together with the Pricing Disclosure Package as of the
Applicable Time, did not contain an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(j)
Each Issuer Free Writing Prospectus
. Each Issuer Free Writing Prospectus
conformed or will conform in all material respects to the requirements of the Securities Act and
the Rules and Regulations on the date of first use, and the Partnership and the Operating
Partnership have complied with any filing requirements applicable to such Issuer Free Writing
Prospectus pursuant to the Rules and Regulations. No Enterprise Party has made any offer relating
to the Securities that would constitute an Issuer Free Writing Prospectus without the prior written
consent of the Representatives, except as set forth on
Schedule IV
hereto. The Partnership
and the Operating Partnership have retained in accordance with the Rules and Regulations all Issuer
Free Writing Prospectuses that were not required to be filed pursuant to the Rules and Regulations
(it being understood that, as of the date hereof, the Partnership has not retained any Issuer Free
Writing Prospectus for the three-year period required thereby).
(k)
Formation and Qualification of the Partnership Entities
. Each of the General
Partner, the Partnership, OLPGP, the Operating Partnership and the subsidiaries of the Operating
Partnership listed on
Schedule III
hereto (each, a
Partnership Entity
and
collectively, the
Partnership Entities
, and the subsidiaries of the Operating Partnership
listed on
Schedule III
hereto, the
Subsidiaries
) has been duly formed or
incorporated, as the case may be, and is validly existing in good standing under the laws of its
respective jurisdiction of formation or incorporation, as the case may be, with all corporate,
limited liability company or partnership, as the case may be, power and authority necessary to own
or hold its properties and conduct the businesses in which it is engaged and, in the case of the
General Partner and OLPGP, to act as general partner of the Partnership and the Operating
Partnership, respectively, in each case in all material respects as described in the Registration
Statement and the Prospectus. Each Partnership Entity is duly registered or qualified to do
business and is in good standing as a foreign corporation, limited liability company or limited
partnership, as the case
-4-
may be, in each jurisdiction in which its ownership or lease of property or the conduct of its
businesses requires such qualification or registration, except where the failure to so qualify or
register would not, individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), results of operations, business or prospects of the Partnership
Entities taken as a whole (a
Material Adverse Effect
) or subject the limited partners of
the Partnership to any material liability or disability.
(l)
Ownership of General Partner
. Enterprise GP Holdings L.P., a Delaware limited
partnership (
EPE
), owns 100% of the issued and outstanding membership interests in the
General Partner; such membership interests have been duly authorized and validly issued in
accordance with the limited liability company agreement of the General Partner, as amended and/or
restated on or prior to the date hereof (the
GP LLC Agreement
); and EPE owns such
membership interests free and clear of all liens, encumbrances, security interests, equities,
charges or claims other than those in favor of lenders of EPE.
(m)
Ownership of General Partner Interest in the Partnership
. The General Partner is
the sole general partner of the Partnership with a 2.0% general partner interest in the Partnership
(including the right to receive Incentive Distributions (as defined in the Partnership Agreement)
(the
Incentive Distribution Rights
)); such general partner interest has been duly
authorized and validly issued in accordance with the agreement of limited partnership of the
Partnership, as amended and/or restated on or prior to the date hereof (the
Partnership
Agreement
); and the General Partner owns such general partner interest free and clear of all
liens, encumbrances, security interests, equities, charges or claims.
(n)
Ownership of OLPGP
. The Partnership owns 100% of the issued and outstanding
capital stock in OLPGP; such capital stock has been duly authorized and validly issued in
accordance with the bylaws of OLPGP, as amended or restated on or prior to the date hereof (the
OLPGP Bylaws
), and the certificate of incorporation of OLPGP, as amended and restated on
or prior to the date hereof (the
OLPGP Certificate of Incorporation
), and is fully paid
and non-assessable; and the Partnership owns such capital stock free and clear of all liens,
encumbrances, security interests, equities, charges or claims.
(o)
Ownership of Operating Partnership
. (i) OLPGP is the sole general partner of the
Operating Partnership with a 0.001% general partner interest in the Operating Partnership; such
general partner interest has been duly authorized and validly issued in accordance with the
agreement of limited partnership of the Operating Partnership, as amended and/or restated on or
prior to the date hereof (the
Operating Partnership Agreement
); and OLPGP owns such
general partner interest free and clear of all liens, encumbrances, security interests, equities,
charges or claims; and (ii) the Partnership is the sole limited partner of the Operating
Partnership with a 99.999% limited partner interest in the Operating Partnership; such limited
partner interest has been duly authorized and validly issued in accordance with the Operating
Partnership Agreement and is fully paid (to the extent required under the Operating Partnership
Agreement) and non-assessable (except as such non-assessability may be affected by Sections 17-607
and 17-804 of the Delaware Revised Uniform Limited Partnership Act (the
Delaware LP Act
)
and as otherwise described in the Prospectus); and the Partnership owns such limited partner
interest free and clear of all liens, encumbrances, security interests, equities, charges or
claims.
-5-
(p)
No Registration Rights
. Neither the filing of the Registration Statement nor the
offering or sale of the Securities as contemplated by this Agreement gives rise to any rights for
or relating to the registration of any securities of the Partnership, the Operating Partnership or
any Subsidiary, except such rights as have been waived.
(q)
Ownership of Subsidiaries
. All of the outstanding shares of capital stock,
partnership interests or membership interests, as the case may be, of each Subsidiary have been
duly and validly authorized and issued, and are fully paid and non-assessable (except as such
non-assessability may be affected by Sections 17-607 and 17-804 of the Delaware LP Act, in the case
of partnership interests, or Sections 18-607 and 18-804 of the Delaware Limited Liability Company
Act (the
Delaware LLC Act
), in the case of membership interests, and except as otherwise
disclosed in the Prospectus). Except as described in the Prospectus, the Partnership and/or the
Operating Partnership, as the case may be, directly or indirectly, owns the shares of capital
stock, partnership interests or membership interests in each Subsidiary as set forth on
Schedule III
hereto free and clear of all liens, encumbrances (other than contractual
restrictions on transfer contained in the applicable constituent documents), security interests,
equities, charges, claims or restrictions upon voting or any other claim of any third party. None
of the Enterprise Parties has any subsidiaries other than as set forth on
Schedule III
hereto that, individually or in the aggregate, would be deemed to be a
significant
subsidiary
as such term is defined in Rule 405 of the Securities Act.
(r)
Power and Authority.
(i) Each of the Enterprise Parties has all requisite power
and authority to execute and deliver this Agreement and to perform its obligations hereunder; (ii)
each of the Operating Partnership and the Partnership has all requisite power and authority to
execute and deliver the Supplemental Indenture and to perform its obligations thereunder; and (iii)
the Operating Partnership and the Partnership have all requisite power and authority to issue, sell
and deliver the LoTS
SM
and the Guarantee, respectively, in accordance with and upon the
terms and conditions set forth in this Agreement, the Partnership Agreement, the Operating
Partnership Agreement, the Indenture, the Registration Statement and the Prospectus. All action
required to be taken by the Enterprise Parties or any of their security holders, partners or
members for the (A) due and proper authorization, execution and delivery of this Agreement and the
Indenture, (B) the authorization, issuance, sale and delivery of the Securities and (C) the
consummation of the transactions contemplated hereby and thereby has been duly and validly taken.
(s)
Authorization, Execution and Delivery of Agreement
. This Agreement has been duly
authorized and validly executed and delivered by each of the Enterprise Parties party hereto.
(t)
Enforceability of Indenture
. The execution and delivery of, and the performance by
the Operating Partnership and the Partnership of their respective obligations under the Indenture
have been duly and validly authorized by each of the Operating Partnership and the Partnership,
and, at the Delivery Date, the Indenture will be duly qualified under the Trust Indenture Act, and
the Indenture, assuming due authorization, execution and delivery thereof by the Trustee, when
executed and delivered by the Operating Partnership and the Partnership, will constitute a valid
and legally binding agreement of the Partnership (to the extent set forth in the Supplemental
Indenture) and the Operating Partnership enforceable against the
-6-
Operating Partnership and the Partnership in accordance with its terms; provided that, the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws relating to or affecting creditors rights generally
and by general principles of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(u)
Valid Issuance of the LoTS
SM
. The LoTS
SM
have been duly
authorized for issuance and sale to the Underwriters, and, when executed by the Operating
Partnership and authenticated by the Trustee in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will
have been duly executed and delivered by the Operating Partnership, and will constitute the valid
and legally binding obligations of the Operating Partnership entitled to the benefits of the
Indenture and enforceable against the Operating Partnership in accordance with their terms;
provided that, the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws relating to or affecting creditors rights
generally and by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(v)
Valid Issuance of the Guarantee
. The Guarantee to be endorsed on the
LoTS
SM
by the Partnership has been duly authorized by the General Partner on behalf of
the Partnership and, on the Delivery Date, will have been duly executed and delivered by the
Partnership; when the LoTS
SM
have been issued, executed and authenticated in accordance
with the Indenture, including endorsement of the LoTS
SM
by the Partnership, and
delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, the
Guarantee will constitute the valid and legally binding obligation of the Partnership enforceable
against the Partnership in accordance with its terms; provided that, the enforceability thereof may
be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar
laws relating to or affecting creditors rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in equity or at law).
(w)
No Conflicts or Violations.
None of the (i) offering, issuance and sale by the
Operating Partnership and the Partnership of the Securities, (ii) execution, delivery and
performance of this Agreement and the Indenture by the Enterprise Parties that are parties thereto,
or (iii) consummation of the transactions contemplated hereby and thereby (A) conflicts or will
conflict with or constitutes or will constitute a violation of the certificate of limited
partnership or agreement of limited partnership, certificate of formation or limited liability
company agreement, certificate or articles of incorporation or bylaws or other organizational
documents of any of the Partnership Entities, (B) conflicts or will conflict with or constitutes or
will constitute a breach or violation of, or a default (or an event that, with notice or lapse of
time or both, would constitute such a default) under, any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which any of the Partnership Entities is a
party or by which any of them or any of their respective properties may be bound, (C) violates or
will violate any statute, law or regulation or any order, judgment, decree or injunction of any
court, arbitrator or governmental agency or body having jurisdiction over any of the Partnership
Entities or any of their properties or assets, or (D) results or will result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of any of the
-7-
Partnership Entities, which conflicts, breaches, violations, defaults or liens, in the case of
clauses (B) or (D), would, individually or in the aggregate, have a Material Adverse Effect.
(x)
No Consents.
No permit, consent, approval, authorization, order, registration,
filing or qualification (
Consent
) of or with any court, governmental agency or body
having jurisdiction over the Partnership Entities or any of their respective properties is required
in connection with (i) the offering, issuance and sale by the Operating Partnership and the
Partnership of the Securities in the manner contemplated in this Agreement and in the Registration
Statement and Prospectus, (ii) the execution, delivery and performance of this Agreement and the
Indenture by the Enterprise Parties that are parties thereto or (iii) the consummation by the
Enterprise Parties of the transactions contemplated by this Agreement and the Indenture, except for
(A) such Consents required under the Securities Act, the Exchange Act, the Trust Indenture Act and
state securities or Blue Sky laws in connection with the purchase and distribution of the
Securities by the Underwriters and (B) such Consents that have been, or prior to the Delivery Date
(as defined herein) will be, obtained.
(y)
No Default
. None of the Partnership Entities is (i) in violation of its
certificate of limited partnership or agreement of limited partnership, certificate of formation or
limited liability company agreement, certificate or articles of incorporation or bylaws or other
organizational documents, (ii) in violation of any law, statute, ordinance, administrative or
governmental rule or regulation applicable to it or of any order, judgment, decree or injunction of
any court or governmental agency or body having jurisdiction over it or has failed to obtain any
license, permit, certificate, franchise or other governmental authorization or permit necessary to
the ownership of its property or to the conduct of its business, or (iii) in breach, default (and
no event that, with notice or lapse of time or both, would constitute such a default has occurred
or is continuing) or violation in the performance of any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of indebtedness or in any agreement,
indenture, lease or other instrument to which it is a party or by which it or any of its properties
may be bound, which breach, default or violation, in the case of clause (ii) or (iii), would, if
continued, have a Material Adverse Effect, or could materially impair the ability of any of the
Partnership Entities to perform their obligations under this Agreement.
(z)
Independent Registered Public Accounting Firm
. Deloitte & Touche LLP, who has
audited the financial statements contained or incorporated by reference in the Registration
Statement and the most recent Preliminary Prospectus (or any amendment or supplement thereto)
(other than the financial statements included for the three months ended March 31, 2005 and March
31, 2006) is an independent registered public accounting firm with respect to the Partnership and
the General Partner within the meaning of the Securities Act and the applicable rules and
regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board
(United States) (the
PCAOB
).
(aa)
Financial Statements
. The historical financial statements (including the related
notes and financial statement schedule) contained or incorporated by reference in the Registration
Statement and the most recent Preliminary Prospectus (and any amendment or supplement thereto) (i)
comply in all material respects with the applicable requirements under the Securities Act and the
Exchange Act and the related Rules and Regulations (except that certain financial statement
schedules are omitted), (ii) present fairly in all material respects the
-8-
financial position, results of operations and cash flows of the entities purported to be shown
thereby on the basis stated therein at the respective dates or for the respective periods, and
(iii) have been prepared in accordance with accounting principles generally accepted in the United
States of America consistently applied throughout the periods involved, except to the extent
disclosed therein. The other financial information of the General Partner and the Partnership and
its subsidiaries, including non-GAAP financial measures, if any, contained or incorporated by
reference in the Registration Statement and the most recent Preliminary Prospectus (and any
amendment or supplement thereto) has been derived from the accounting records of the General
Partner and the Partnership and its subsidiaries, and fairly presents the information purported to
be shown thereby. Nothing has come to the attention of any of the Partnership Entities that has
caused them to believe that the statistical and market-related data included in the Registration
Statement and the most recent Preliminary Prospectus is not based on or derived from sources that
are reliable and accurate in all material respects.
(bb)
No Distribution of Other Offering Materials
. None of the Enterprise Entities has
distributed or, prior to the completion of the distribution of the LoTS
SM
, will
distribute, any offering material in connection with the offering and sale of the LoTS
SM
other than any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus to which
the Representatives have consented in accordance with Section 1(j), 4(k) or 5 and any Issuer Free
Writing Prospectus set forth on
Schedule IV
hereto and any other materials, if any,
permitted by the Securities Act, including Rule 134 of the Rules and Regulations.
(cc)
Conformity to Description of the Securities
. The Securities, when issued and
delivered against payment therefor as provided in this Agreement and in the Indenture, will conform
in all material respects to the descriptions thereof contained in the Registration Statement, the
Prospectus and the Pricing Disclosure Package.
(dd)
Certain Transactions
. Except as disclosed in the Registration Statement and the
most recent Preliminary Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration Statement and the most
recent Preliminary Prospectus (or any amendment or supplement thereto), (i) none of the Partnership
Entities has incurred any liability or obligation, indirect, direct or contingent, or entered into
any transactions, not in the ordinary course of business, that, individually or in the aggregate,
is material to the Partnership Entities, taken as a whole, and (ii) there has not been any material
change in the capitalization or material increase in the long-term debt of the Partnership
Entities, or any dividend or distribution of any kind declared, paid or made by the Partnership on
any class of its partnership interests.
(ee)
No Omitted Descriptions; Legal Descriptions
. There are no legal or governmental
proceedings pending or, to the knowledge of the Enterprise Parties, threatened or contemplated,
against any of the Partnership Entities, or to which any of the Partnership Entities is a party, or
to which any of their respective properties or assets is subject, that are required to be described
in the Registration Statement or the most recent Preliminary Prospectus but are not described as
required, and there are no agreements, contracts, indentures, leases or other instruments that are
required to be described in the Registration Statement or the most recent Preliminary Prospectus or
to be filed as an exhibit to the Registration Statement that are not described or filed as required
by the Securities Act or the Rules and Regulations or the Exchange
-9-
Act or the rules and regulations thereunder. The statements included in or incorporated by
reference into the Registration Statement and the most recent Preliminary Prospectus under the
headings Description of the LoTS
SM
and Certain United States Federal Income Tax
Considerations, insofar as such statements summarize legal matters, agreements, documents or
proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements,
documents or proceedings.
(ff)
Title to Properties
. Each Partnership Entity has (i) good and indefeasible title
to all its interests in its properties that are material to the operations of the Partnership
Entities, taken as a whole, and (ii) good and marketable title in fee simple to, or valid rights to
lease or otherwise use, all items of other real and personal property which are material to the
business of the Partnership Entities, in each case free and clear of all liens, encumbrances,
claims and defects and imperfections of title except such as (A) do not materially affect the value
of such property and do not materially interfere with the use made and proposed to be made of such
property by the Partnership Entities, (B) could not reasonably be expected to have a Material
Adverse Effect or (C) are described, and subject to the limitations contained, in the most recent
Preliminary Prospectus.
(gg)
Rights-of-Way
. Each of the Partnership Entities has such Consents, easements,
rights-of-way or licenses from any person (
rights-of-way
) as are necessary to conduct its
business in the manner described in the most recent Preliminary Prospectus, subject to such
qualifications as may be set forth in the most recent Preliminary Prospectus and except for such
rights-of-way the failure of which to have obtained would not have, individually or in the
aggregate, a Material Adverse Effect; each of the Partnership Entities has fulfilled and performed
all its material obligations with respect to such rights-of-way and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or termination thereof or would
result in any impairment of the rights of the holder of any such rights-of-way, except for such
revocations, terminations and impairments that will not have a Material Adverse Effect, subject in
each case to such qualification as may be set forth in the most recent Preliminary Prospectus; and,
except as described in the most recent Preliminary Prospectus, none of such rights-of-way contains
any restriction that is materially burdensome to the Partnership Entities, taken as a whole.
(hh)
Permits
. Each of the Partnership Entities has such permits, Consents, licenses,
franchises, certificates and authorizations of governmental or regulatory authorities
(
permits
) as are necessary to own or lease its properties and to conduct its business in
the manner described in the most recent Preliminary Prospectus, subject to such qualifications as
may be set forth in the most recent Preliminary Prospectus and except for such permits that, if not
obtained, would not have, individually or in the aggregate, a Material Adverse Effect; each of the
Partnership Entities has fulfilled and performed all its material obligations with respect to such
permits in the manner described, and subject to the limitations contained in the most recent
Preliminary Prospectus, and no event has occurred that would prevent the permits from being renewed
or reissued or that allows, or after notice or lapse of time would allow, revocation or termination
thereof or results or would result in any impairment of the rights of the holder of any such
permit, except for such non-renewals, non-issues, revocations, terminations and impairments that
would not, individually or in the aggregate, have a Material Adverse Effect. None of the
Partnership Entities has received notification of any revocation or modification of
-10-
any such permit or has any reason to believe that any such permit will not be renewed in the
ordinary course.
(ii)
Books and Records; Accounting Controls
. The Partnership Entities (i) make and
keep books, records and accounts that, in reasonable detail, accurately and fairly reflect the
transactions and dispositions of assets, and (ii) maintain systems of internal accounting controls
sufficient to provide reasonable assurances that (A) transactions are executed in accordance with
managements general or specific authorization; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with accounting principles generally
accepted in the United States of America and to maintain accountability for assets; (C) access to
assets is permitted only in accordance with managements general or specific authorization; and (D)
the recorded accountability for assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(jj)
Related Party Transactions
. No relationship, direct or indirect, exists between
or among the Partnership Entities on the one hand, and the directors, officers, partners, customers
or suppliers of the General Partner and its affiliates (other than the Partnership Entities) on the
other hand, which is required to be described in the most recent Preliminary Prospectus and which
is not so described.
(kk)
Environmental Compliance
. There has been no storage, generation, transportation,
handling, treatment, disposal or discharge of any kind of toxic or other wastes or other hazardous
substances by any of the Partnership Entities (or, to the knowledge of the Enterprise Parties, any
other entity (including any predecessor) for whose acts or omissions any of the Partnership
Entities is or could reasonably be expected to be liable) at, upon or from any of the property now
or previously owned or leased by any of the Partnership Entities or upon any other property, in
violation of any statute or any ordinance, rule, regulation, order, judgment, decree or permit or
which would, under any statute or any ordinance, rule (including rule of common law), regulation,
order, judgment, decree or permit, give rise to any liability, except for any violation or
liability that could not reasonably be expected to have, individually or in the aggregate with all
such violations and liabilities, a Material Adverse Effect; and there has been no disposal,
discharge, emission or other release of any kind onto such property or into the environment
surrounding such property of any toxic or other wastes or other hazardous substances with respect
to which any of the Enterprise Parties has knowledge, except for any such disposal, discharge,
emission or other release of any kind which could not reasonably be expected to have, individually
or in the aggregate with all such discharges and other releases, a Material Adverse Effect.
(ll)
Insurance
. The Partnership Entities maintain insurance covering their
properties, operations, personnel and businesses against such losses and risks as are reasonably
adequate to protect them and their businesses in a manner consistent with other businesses
similarly situated. Except as disclosed in the most recent Preliminary Prospectus, none of the
Partnership Entities has received notice from any insurer or agent of such insurer that substantial
capital improvements or other expenditures will have to be made in order to continue such
insurance; all such insurance is outstanding and duly in force on the date hereof and will be
outstanding and duly in force on the Delivery Date.
-11-
(mm)
Litigation
. There are no legal or governmental proceedings pending to which any
Partnership Entity is a party or of which any property or assets of any Partnership Entity is the
subject that, individually or in the aggregate, if determined adversely to such Partnership Entity,
could reasonably be expected to have a Material Adverse Effect; and to the knowledge of the
Enterprise Parties, no such proceedings are threatened or contemplated by governmental authorities
or threatened by others.
(nn)
No Labor Disputes
. No labor dispute with the employees that are engaged in the
business of the Partnership or its subsidiaries exists or, to the knowledge of the Enterprise
Parties, is imminent or threatened that is reasonably likely to result in a Material Adverse
Effect.
(oo)
Intellectual Property
. Each Partnership Entity owns or possesses adequate rights
to use all material patents, patent applications, trademarks, service marks, trade names, trademark
registrations, service mark registrations, copyrights, licenses and know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential information, systems
or procedures) necessary for the conduct of their respective businesses; and the conduct of their
respective businesses will not conflict in any material respect with, and no Partnership Entity has
received any notice of any claim of conflict with, any such rights of others.
(pp)
Investment Company
. None of the Partnership Entities is now, or after sale of
the Securities to be sold by hereunder and application of the net proceeds from such sale will be,
an investment company within the meaning of the Investment Company Act.
(qq)
Absence of Certain Actions
. No action has been taken and no statute, rule,
regulation or order has been enacted, adopted or issued by any governmental agency or body which
prevents the issuance or sale of the Securities in any jurisdiction; no injunction, restraining
order or order of any nature by any federal or state court of competent jurisdiction has been
issued with respect to any Partnership Entity which would prevent or suspend the issuance or sale
of the Securities or the use of the most recent Preliminary Prospectus in any jurisdiction; no
action, suit or proceeding is pending against or, to the knowledge of the Enterprise Parties,
threatened against or affecting any Partnership Entity before any court or arbitrator or any
governmental agency, body or official, domestic or foreign, which could reasonably be expected to
interfere with or adversely affect the issuance of the Securities or in any manner draw into
question the validity or enforceability of this Agreement or any action taken or to be taken
pursuant hereto; and the Partnership has complied with any and all requests by any securities
authority in any jurisdiction for additional information to be included in the most recent
Preliminary Prospectus.
(rr)
No Prohibition of Dividends or Distribution
. No Subsidiary is currently
prohibited, directly or indirectly, from paying any dividends to the Operating Partnership, from
making any other distribution on such Subsidiarys capital stock or partnership or member
interests, from repaying to the Operating Partnership any loans or advances to such Subsidiary from
the Operating Partnership or from transferring any of such Subsidiarys property or assets to the
Operating Partnership or any other Subsidiary of the Operating Partnership, except as described in
or contemplated by the Registration Statement and the Prospectus (exclusive of any amendment or
supplement thereto).
-12-
(ss)
No Stabilizing Transactions
. None of the General Partner, the Partnership, the
Operating Partnership or any of their controlled affiliates has taken, directly or indirectly, any
action designed to or which has constituted or which would reasonably be expected to cause or
result in stabilization or manipulation of the price of any securities of the Operating Partnership
or the Partnership to facilitate the sale or resale of the Securities.
(tt)
Form S-3
. The conditions for the use of a shelf registration on Form S-3, by the
Partnership and Operating Partnership, as set forth in the General Instructions thereto, have been
satisfied.
(uu)
Disclosure Controls
. The General Partner and the Partnership have established
and maintain disclosure controls and procedures (as such term is defined in Rule 13a-15(f) and
15d-15(f) under the Exchange Act) which (i) are designed to ensure that material information
relating to the Partnership, including its consolidated subsidiaries, is made known to the General
Partners principal executive officer and its principal financial officer by others within those
entities, particularly during the periods in which the periodic reports required under the Exchange
Act are being prepared; (ii) have been evaluated for effectiveness as of the end of the period
covered by the Partnerships most recent annual report filed with the Commission; and (iii) are
effective in achieving reasonable assurances that the Partnerships desired control objectives as
described in Item 9A of the Partnerships Annual Report on Form 10-K for the period ended December
31, 2005 (the
2005 Annual Report
) have been met.
(vv)
No Deficiency in Internal Controls
. Based on the evaluation of its disclosure
controls and procedures conducted in connection with the preparation and filing of the 2005 Annual
Report, neither the Partnership nor the General Partner is aware of (i) any significant
deficiencies which are still deemed significant deficiencies on the date hereof or material
weaknesses in the design or operation of its internal controls over financial reporting that are
likely to adversely affect the Partnerships ability to record, process, summarize and report
financial data; or (ii) any fraud, whether or not material, that involves management or other
employees who have a role in the Partnerships internal controls over financial reporting.
(ww)
No Changes in Internal Controls
. Since the date of the most recent evaluation of
such disclosure controls and procedures, there have been no significant changes in the
Partnerships internal controls that materially affected or are reasonably likely to materially
adversely affect the Partnerships internal controls over financial reporting.
(xx)
Sarbanes-Oxley Act
. The principal executive officer and principal financial
officer of the General Partner have made all certifications required by the Sarbanes-Oxley Act of
2002 (the
Sarbanes-Oxley Act
) and any related rules and regulations promulgated by the
Commission, and the statements contained in any such certification are complete and correct. The
Partnership and the General Partner are otherwise in compliance in all material respects with all
applicable provisions of the Sarbanes-Oxley Act that are effective.
2.
Purchase of the Securities
. (a) On the basis of the representations and
warranties contained in, and subject to the terms and conditions of, this Agreement, the Operating
Partnership agrees to issue and sell the LoTS
SM
to the several Underwriters and each of
the Underwriters, severally and not jointly, agrees to purchase the principal amount of
-13-
LoTS
SM
from the Operating Partnership set forth opposite that Underwriters name in
Schedule I hereto at a price equal to 98.5% of the principal amount thereof plus accrued interest,
if any, from the Delivery Date. The Operating Partnership shall not be obligated to deliver any of
the LoTS
SM
except upon payment for all the LoTS
SM
to be purchased as provided
herein.
(b) The Operating Partnership understands that the Underwriters intend to make a public
offering of the LoTS
SM
on the terms and conditions set forth in the Pricing Disclosure
Package. The Operating Partnership acknowledges and agrees that the Underwriters may offer and
sell LoTS
SM
to or through any affiliate of an Underwriter and that any such affiliate
may offer and sell LoTS
SM
purchased by it to or through any Underwriter.
3.
Delivery of and Payment for the Securities
. Delivery of and payment for the
LoTS
SM
shall be made at the office of Bracewell & Giuliani LLP, Houston, Texas, at 9:00
A.M., Houston time, on the third full business day after the date of this Agreement or such other
date and time and place as shall be determined by agreement between the Underwriters and the
Operating Partnership (such date and time of delivery and payment for the LoTS
SM
being
herein called the
Delivery Date
). Delivery of the LoTS
SM
shall be made to the
Underwriters against payment by the Underwriters of the purchase price thereof to or upon the order
of the Operating Partnership by wire transfer payable in same-day funds to an account specified by
the Operating Partnership. Delivery of the LoTS
SM
shall be made in book-entry form
through the Full Fast Program of the facilities of The Depository Trust Company (
DTC
)
unless the Underwriters shall otherwise instruct. Time shall be of the essence, and delivery at
the time and place specified pursuant to this Agreement is a further condition of the obligation of
the Underwriters.
4.
Further Agreements of the Enterprise Parties
. Each of the Enterprise Parties,
jointly and severally, covenants and agrees with each Underwriter:
(a)
Preparation of Prospectus and Registration Statement
. (i) To prepare the
Prospectus in a form approved by the Underwriters and to file such Prospectus pursuant to Rule
424(b) under the Securities Act not later than Commissions close of business on the second
business day following the execution and delivery of this Agreement or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Securities Act; (ii) to make no further
amendment or any supplement to the Registration Statement or to the Prospectus except as permitted
herein; (iii) to advise the Underwriters, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and to furnish the
Underwriters with copies thereof; (iv) to advise the Underwriters promptly after it receives notice
thereof of the issuance by the Commission of any stop order or of any order preventing or
suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of
the qualification of the LoTS
SM
for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose or of any request by the
Commission for the amending or supplementing of the Registration Statement, the Prospectus or any
Issuer Free Writing Prospectus or for additional information; and (v) in the event of the issuance
of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer
Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to
obtain its withdrawal.
-14-
(b)
Conformed Copies of Registration Statements
. To furnish promptly to the
Underwriters and to counsel for the Underwriters, upon request, a conformed copy of the
Registration Statement as originally filed with the Commission, and each amendment thereto filed
with the Commission, including all consents and exhibits filed therewith.
(c)
Exchange Act Reports
. To file promptly all reports and any definitive proxy or
information statements required to be filed by the Partnership with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (
Exchange Act Reports
) subsequent
to the date of the Prospectus and for so long as the delivery of a prospectus is required in
connection with the offering or sale of the LoTS
SM
.
(d)
Copies of Documents to the Underwriters
. To deliver promptly to the Underwriters
such number of the following documents as the Underwriters shall reasonably request: (i) conformed
copies of the Registration Statement as originally filed with the Commission and each amendment
thereto (in each case excluding exhibits), (ii) each Preliminary Prospectus, the Prospectus and any
amended or supplemented Prospectus, (iii) each Issuer Free Writing Prospectus and (iv) any document
incorporated by reference in any Preliminary Prospectus or the Prospectus; and, if the delivery of
a prospectus is required at any time after the date hereof in connection with the offering or sale
of the LoTS
SM
or any other securities relating thereto and if at such time any events
shall have occurred as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made
when such Prospectus is delivered, not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Securities Act or the
Exchange Act or with a request from the Commission, to notify the Underwriters immediately thereof
and to promptly prepare and, subject to Section 4(e) hereof, file with the Commission an amended
Prospectus or supplement to the Prospectus which will correct such statement or omission or effect
such compliance.
(e)
Filing of Amendment or Supplement
. To file promptly with the Commission any
amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that
may, in the judgment of the Partnership, the Operating Partnership or the Underwriters, be required
by the Securities Act or the Exchange Act or requested by the Commission. Prior to filing with the
Commission any amendment to the Registration Statement or supplement to the Prospectus, any
document incorporated by reference in the Prospectus or any Prospectus pursuant to Rule 424 of the
Rules and Regulations, to furnish a copy thereof to the Underwriters and counsel for the
Underwriters and not to file any such document to which the Underwriters shall reasonably object
after having been given reasonable notice of the proposed filing thereof unless the Partnership is
required by law to make such filing.
(f)
Reports to Security Holders
. As soon as practicable after the Delivery Date, to
make generally available to the Partnerships security holders an earning statement of the
Partnership and its Subsidiaries (which need not be audited) complying with Section 11(a) of the
Securities Act and the Rules and Regulations (including, at the option of the Partnership, Rule
158).
-15-
(g)
Copies of Reports
. For a period of two years following the date hereof, to
furnish to the Underwriters copies of all materials furnished by the Partnership to its security
holders and all reports and financial statements furnished by the Partnership to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission thereunder, in each case
to the extent that such materials, reports and financial statements are not publicly filed with the
Commission.
(h)
Blue Sky Laws
. Promptly to take from time to time such actions as the
Underwriters may reasonably request to qualify the LoTS
SM
for offering and sale under
the securities or Blue Sky laws of such jurisdictions as the Underwriters may designate and to
continue such qualifications in effect for so long as required for the resale of the
LoTS
SM
; and to arrange for the determination of the eligibility for investment of the
LoTS
SM
under the laws of such jurisdictions as the Underwriters may reasonably request;
provided that no Partnership Entity shall be obligated to qualify as a foreign entity in any
jurisdiction in which it is not so qualified or to file a general consent to service of process in
any jurisdiction.
(i)
Application of Proceeds
. To apply the net proceeds from the sale of the
LoTS
SM
as set forth in the Prospectus.
(j)
Investment Company
. To take such steps as shall be necessary to ensure that no
Partnership Entity shall become an
investment company
as defined in the Investment
Company Act.
(k)
Issuer Free Writing Prospectuses
. Not to make any offer relating to the
LoTS
SM
that would constitute an Issuer Free Writing Prospectus without the prior written
consent of the Representatives.
(l)
Retention of Issuer Free Writing Prospectuses
. To retain in accordance with the
Rules and Regulations all Issuer Free Writing Prospectuses not required to be filed pursuant to the
Rules and Regulations; and if at any time after the date hereof and prior to the Delivery Date, any
events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended
or supplemented, would conflict with the information in the Registration Statement, the most recent
Preliminary Prospectus or the Prospectus or, when considered together with the most recent
Preliminary Prospectus, would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or, if for any other reason it shall be necessary to
amend or supplement any Issuer Free Writing Prospectus, to notify the Representatives and, upon its
reasonable request or as required by the Rules and Regulations, to file such document and to
prepare and furnish without charge to each Underwriter as many copies as the Representatives may
from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus
that will correct such conflict, statement or omission or effect such compliance.
(m)
Foreign Sales
. To take such reasonable steps as are reasonably requested by the
Representatives to comply with all applicable securities and other applicable laws, rules and
regulations in each foreign jurisdiction in which the Securities are offered.
-16-
5.
Further Agreements of the Underwriters
. Each Underwriter severally represents and
warrants to, and agrees with, the Company and each other Underwriter that such Underwriter, has not
made, and will not make, an offer relating to the LoTS
SM
that would constitute a
free writing prospectus
(as defined in Rule 405 but excluding any Issuer Free Writing
Prospectus identified on
Schedule IV
hereto) required to be filed with the Commission,
without the prior written consent of the Partnership and the Representatives prior to the use of
such free writing prospectus.
6.
Expenses
. The Operating Partnership agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the LoTS
SM
and any taxes payable in that
connection; (b) the costs incident to the preparation, printing and filing under the Securities Act
of the Registration Statement, any amendments and exhibits thereto, and except as provided in the
proviso to this Section 6, the Preliminary Prospectus and Prospectus; (c) the costs of printing and
distributing the Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits); (d) the costs of producing
and distributing this Agreement, any underwriting and selling group documents and any other related
documents in connection with the offering, purchase, sale and delivery of the LoTS
SM
;
(e) the filing fees incident to securing the review, if applicable, by the National Association of
Securities Dealers, Inc. of the terms of sale of the LoTS
SM
; (f) any applicable listing
or other similar fees; (g) the fees and expenses of preparing, printing and distributing a Blue Sky
Memorandum (including related fees and expenses of counsel to the Underwriters); (h) the cost of
printing certificates representing the LoTS
SM
; (i) the costs and charges of any transfer
agent or registrar; (j) the costs and expenses of the Partnership and the Operating Partnership
relating to investor presentations on any road show undertaken in connection with the marketing
of the offering of the LoTS
SM
, including, without limitation, expenses associated with
the production of road show slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval of the Operating Partnership or
the Partnership, travel and lodging expenses of the representatives and officers of the Partnership
and any such consultants; and (k) all other costs and expenses incident to the performance of the
obligations of the Enterprise Parties under this Agreement; provided that, except as provided in
this Section 6 and in Section 12 hereof, the Underwriters shall pay (i) their own costs and
expenses, including the costs and expenses of their counsel, any transfer taxes on the
LoTS
SM
which they may sell and the expenses of advertising any offering of the
LoTS
SM
made by the Underwriters and (ii) any overtime costs incurred at the financial
printer.
7.
Conditions of Underwriters Obligations
. The respective obligations of the
Underwriters hereunder are subject to the accuracy, when made and on the Delivery Date, of the
representations and warranties of the Enterprise Parties contained herein, to the accuracy of the
statements of the Enterprise Parties and the officers of the General Partner and OLPGP made in any
certificates delivered pursuant hereto, to the performance by each of the Enterprise Parties of its
obligations hereunder and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section
4(a); no stop order suspending the effectiveness of the Registration Statement or preventing or
suspending the use of the Prospectus or any Issuer Free Writing Prospectuses or any part thereof
shall have been issued and no proceeding for that purpose shall have been initiated or threatened
by the Commission; any request of the Commission for
-17-
inclusion of additional information in the Registration Statement or the Prospectus or
otherwise shall have been complied with to the reasonable satisfaction of the Underwriters; and the
Commission shall not have notified the Enterprise Parties of any objection to the use of the form
of the Registration Statement.
(b) The Underwriters shall not have discovered and disclosed to the Enterprise Parties on or
prior to the Delivery Date that the Registration Statement, the Prospectus or the Pricing
Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact
which, in the opinion of counsel for the Underwriters, is material or omits to state any fact
which, in the opinion of such counsel, is material and is required to be stated therein or in the
documents incorporated by reference therein or is necessary to make the statements therein not
misleading.
(c) All corporate, partnership and limited liability company proceedings and other legal
matters incident to the authorization, execution and delivery of this Agreement, the authorization,
execution and filing of the Registration Statement, the Prospectus and any Issuer Free Writing
Prospectus, and all other legal matters relating to this Agreement and the transactions
contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Enterprise Parties shall have furnished to such counsel all documents and
information that they or their counsel may reasonably request to enable them to pass upon such
matters.
(d) Bracewell & Giuliani LLP, special counsel to the Enterprise Parties, shall have furnished
to the Underwriters its written opinion addressed to the Underwriters and dated the Delivery Date,
in form and substance satisfactory to the Underwriters, substantially to the effect set forth in
Exhibit B
to this Agreement.
(e) Richard H. Bachmann, Esq., shall have furnished to the Underwriters his written opinion,
as Chief Legal Officer of the Enterprise Parties, addressed to the Underwriters and dated the
Delivery Date, in form and substance reasonably satisfactory to the Underwriters, substantially to
the effect set forth in
Exhibit C
to this Agreement.
(f) The Underwriters shall have received from Cadwalader, Wickersham & Taft LLP, counsel for
the Underwriters, such opinion or opinions, dated the Delivery Date, with respect to such matters
as the Underwriters may reasonably require, and the Enterprise Parties shall have furnished to such
counsel such documents and information as they may reasonably request for the purpose of enabling
them to pass upon such matters.
(g) At the time of execution of this Agreement, the Underwriters shall have received from
Deloitte & Touche LLP a letter or letters, in form and substance satisfactory to the Underwriters,
addressed to the Underwriters and dated the date hereof (i) confirming that they are an independent
registered public accounting firm within the meaning of the Securities Act and are in compliance
with the applicable rules and regulations thereunder adopted by the Commission and the PCAOB, and
(ii) stating, as of the date hereof (or, with respect to matters involving changes or developments
since the respective dates as of which specified financial information is given in the most recent
Preliminary Prospectus and the Prospectus, as of a date not more than five days prior to the date
hereof), the conclusions and findings of such firm with
-18-
respect to the financial information of the Partnership and other matters ordinarily covered
by accountants comfort letters to underwriters in connection with registered public offerings.
(h) With respect to the letter or letters of Deloitte & Touche LLP referred to in the
preceding paragraph and delivered to the Underwriters concurrently with the execution of this
Agreement (the
initial letters
), such accounting firm shall have furnished to the
Underwriters a letter (the
bring-down letter
) of Deloitte & Touche LLP, addressed to the
Underwriters and dated the Delivery Date, (i) confirming that they are an independent registered
public accounting firm within the meaning of the Securities Act and are in compliance with the
applicable rules and regulations thereunder adopted by the Commission and the PCAOB, (ii) stating,
as of the date of the bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date of the bring-down letter), the
conclusions and findings of such firm with respect to the financial information of the Partnership
and other matters covered by the initial letters and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letters.
(i) The Partnership and the Operating Partnership shall have furnished to the Underwriters a
certificate, dated the Delivery Date, of the chief executive officer and the chief financial
officer of the General Partner and OLPGP stating that: (i) such officers have carefully examined
the Registration Statement, the Prospectus and the Pricing Disclosure Package; (ii) in their
opinion, (1) the Registration Statement, including the documents incorporated therein by reference,
as of the most recent Effective Date, (2) the Prospectus, including any documents incorporated by
reference therein, as of the date of the Prospectus and as of the Delivery Date, and (3) the
Pricing Disclosure Package, as of the Applicable Time, did not and do not include any untrue
statement of a material fact and did not and do not omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading; (iii) as of the Delivery Date, the representations and warranties of the Enterprise
Parties in this Agreement are true and correct; (iv) the Enterprise Parties have complied with all
their agreements contained herein and satisfied all conditions on their part to be performed or
satisfied hereunder on or prior to the Delivery Date; (v) no stop order suspending the
effectiveness of the Registration Statement or suspending or preventing the use of the Prospectus
or any Issuer Free Writing Prospectus has been issued and no proceedings for that purpose have been
instituted or, to the best of such officers knowledge, are threatened; (vi) the Commission has not
notified the Partnership of any objection to the use of the form of the Registration Statement or
any post-effective amendment thereto; (vii) since the date of the most recent financial statements
included or incorporated by reference in the Prospectus, there has been no material adverse effect
on the condition (financial or otherwise), results of operations, business or prospects of the
Partnership Entities, taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Prospectus; and (viii) since the
Effective Date, no event has occurred that is required under the Rules and Regulations or the Act
to be set forth in a supplement or amendment to the Registration Statement, the Prospectus or any
Issuer Free Writing Prospectus that has not been so set forth.
(j) If any event shall have occurred on or prior to the Delivery Date that requires the
Partnership or the Operating Partnership under Section 4(e) to prepare an
-19-
amendment or supplement to the Prospectus, such amendment or supplement shall have been
prepared, the Underwriters shall have been given a reasonable opportunity to comment thereon as
provided in Section 4(e) hereof, and copies thereof shall have been delivered to the Underwriters
reasonably in advance of the Delivery Date.
(k) No action shall have been taken and no statute, rule, regulation or order shall have been
enacted, adopted or issued by any governmental agency or body which would, as of the Delivery Date,
prevent the issuance or sale of the LoTS
SM
; and no injunction, restraining order or
order of any other nature by any federal or state court of competent jurisdiction shall have been
issued as of the Delivery Date which would prevent the issuance or sale of the LoTS
SM
.
(l) Subsequent to the execution and delivery of this Agreement, if any debt securities of any
of the Partnership Entities are rated by any nationally recognized statistical rating
organization, as that term is defined by the Commission for purposes of Rule 436(g)(2) of the
Rules and Regulations, (i) no downgrading shall have occurred in the rating accorded such debt
securities (including the LoTS
SM
) and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative implications, its rating
of any securities of any of the Partnership Entities.
(m) On or after the Applicable Time, the LoTS
SM
shall have been accorded a rating
of not less than B+/positive by Standard & Poors Ratings Group and not less than Ba1/stable by
Moodys Investors Service, Inc.
(n) Subsequent to the execution and delivery of this Agreement, (i) neither the Partnership
nor any of its subsidiaries shall have sustained any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree and (ii) except as set forth in the
Prospectus, there shall not have been any change in the capital or long-term debt of the
Partnership or any of its subsidiaries or any change, or any development involving a prospective
change, in or affecting the condition (financial or otherwise), results of operations, unitholders
equity, properties, management, business or prospects of the Partnership and its subsidiaries taken
as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the
judgment of the Representatives, so material and adverse as to make it impracticable or inadvisable
to proceed with the public offering or the delivery of the LoTS
SM
being delivered on the
Delivery Date on the terms and in the manner contemplated in the Prospectus.
(o) Subsequent to the execution and delivery of this Agreement there shall not have occurred
any of the following: (i) trading in securities generally on the New York Stock Exchange or the
American Stock Exchange shall have been suspended or materially limited or the settlement of such
trading generally shall have been materially disrupted or minimum prices shall have been
established on the New York Stock Exchange, (ii) a banking moratorium shall have been declared by
federal or New York State authorities, (iii) a material disruption in commercial banking or
clearance services in the United States, (iv) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving the United States or
there shall have been a declaration of a national emergency or war by the United States or (v) a
calamity or crisis the effect of which on the financial markets is such as to make it,
-20-
in the sole judgment of the Representatives, impracticable or inadvisable to proceed with the
offering or delivery of the LoTS
SM
being delivered on the Delivery Date on the terms and
in the manner contemplated in the Prospectus.
(p) The Operating Partnership, the Partnership and the Trustee shall have executed and
delivered the LoTS
SM
and the Supplemental Indenture.
All such opinions, certificates, letters and documents mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to the Underwriters and to counsel for the Underwriters.
8.
Indemnification and Contribution
. (a) Each of the Enterprise Parties, jointly and
severally, agrees to indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of any Underwriter and each person who controls any Underwriter within the
meaning of either the Securities Act or the Exchange Act from and against any and all losses,
claims, damages or liabilities, joint or several, to which that Underwriter, director, officer,
employee or contesting person may become subject under the Securities Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of a material fact contained in: (A) the
Registration Statement, the Pricing Disclosure Package, the Prospectus, any Preliminary Prospectus
or in any amendment thereof or supplement thereto, or (B) any Issuer Free Writing Prospectus or in
any amendment or supplement thereto; or (ii) the omission or the alleged omission to state in any
Preliminary Prospectus, the Registration Statement, the Pricing Disclosure Package, the Prospectus,
any Issuer Free Writing Prospectus or in any amendment or supplement thereto any material fact
required to be stated therein or necessary to make the statements therein not misleading; and
agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Enterprise Parties will not be liable in
any such case to the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information furnished to the
Enterprise Parties by the Underwriters through the Representatives specifically for inclusion
therein, which information consists solely of the information specified in Section 8(b). This
indemnity agreement will be in addition to any liability which the Enterprise Parties may otherwise
have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless each
Enterprise Party, the directors of the General Partner and OLPGP, the respective officers of the
General Partner and OLPGP who signed the Registration Statement, and each person who controls the
Enterprise Parties within the meaning of either the Securities Act or the Exchange Act to the same
extent as the foregoing indemnity from the Partnership to the Underwriters, but only with reference
to written information relating to the Underwriters furnished to the Partnership by the
Underwriters specifically for inclusion in the documents referred to in the foregoing indemnity.
This indemnity agreement will be in addition to any liability which the Underwriters may otherwise
have. The Enterprise Parties acknowledge that
-21-
the statements set forth in the most recent Preliminary Prospectus and the Prospectus (i) in
the last paragraph of the cover page regarding delivery of the LoTS
SM
and (ii) under the
heading Underwriting, (A) the list of names of each of the Underwriters and (B) the statements in
the fourth, sixth, seventh and eighth paragraphs regarding discounts, short sales, stabilization
and penalty bids constitute the only information furnished in writing by or on behalf of the
Underwriters for inclusion in any Preliminary Prospectus, the Registration Statement, the Pricing
Disclosure Package, the Prospectus, any Issuer Free Writing Prospectuses or in any amendment or
supplement thereto.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of any claim
or the commencement of any action, such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantive rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to
appoint counsel of the indemnifying partys choice at the indemnifying partys expense to represent
the indemnified party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the reasonable fees, costs and expenses
of any separate counsel retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying partys election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the reasonable fees, costs and
expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of interest, (ii) the
actual or potential defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the indemnifying party shall
not have employed counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of such action or (iv)
the indemnifying party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability arising out of such
claim, action, suit or proceeding.
(d) In the event that the indemnity provided in this Section 8 is unavailable to or
insufficient to hold harmless an indemnified party for any reason, the Enterprise Parties and the
Underwriters agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with investigating or
-22-
defending same) (collectively, the
Losses
) to which the Enterprise Parties and the
Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits
received by the Enterprise Parties on the one hand and by the Underwriters on the other from the
offering of the LoTS
SM
; provided, however, that in no case shall (i) the Underwriters be
responsible for any amount in excess of the amount by which the total price at which the
LoTS
SM
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which the Underwriters have otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged omission. If the
allocation provided by the immediately preceding sentence is unavailable for any reason, the
Enterprise Parties and the Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the Enterprise Parties on
the one hand and of the Underwriters on the other in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable considerations. Benefits
received by the Enterprise Parties shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by it, and benefits received by the Underwriters
shall be deemed to be equal to the total underwriting discounts and commissions, in each case as
set forth on the cover page of the Prospectus. Relative fault shall be determined by reference to,
among other things, whether any untrue or any alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information provided by the
Enterprise Parties on the one hand or the Underwriters on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or prevent such untrue
statement or omission. The Enterprise Parties and each of the Underwriters agree that it would not
be just and equitable if contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), 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. For purposes
of this Section 8, each person who controls any Underwriter within the meaning of either the
Securities Act or the Exchange Act and each director, officer, employee and agent of any
Underwriter shall have the same rights to contribution as the Underwriters, and each person who
controls the Enterprise Parties within the meaning of either the Securities Act or the Exchange
Act, each officer of the General Partner and OLPGP who shall have signed the Registration Statement
and each director of the General Partner and OLPGP shall have the same rights to contribution as
the Enterprise Parties, subject in each case to the applicable terms and conditions of this
paragraph (d).
9.
No Fiduciary Duty
. The Enterprise Parties hereby acknowledge that each Underwriter
is acting solely as an underwriter in connection with the purchase and sale of the
LoTS
SM
. The Enterprise Parties further acknowledge that each Underwriter is acting
pursuant to a contractual relationship created solely by this Agreement entered into on an
arms-length basis and in no event do the parties intend that each Underwriter acts or be
responsible as a fiduciary to any of the Partnership Entities, their management, unitholders,
creditors or any other person in connection with any activity that each Underwriter may undertake
or have undertaken in furtherance of the purchase and sale of the LoTS
SM
, either before
or after the date hereof. Each Underwriter hereby expressly disclaims any fiduciary or similar
obligations to any of the Partnership Entities, either in connection with the transactions
contemplated by this Agreement or any matters leading up to such transactions, and the Partnership
hereby confirms its understanding and agreement to that effect. The Enterprise Parties and the
Underwriters agree
-23-
that they are each responsible for making their own independent judgments with respect to any
such transactions and that any opinions or views expressed by the Underwriters to any of the
Partnership Entities regarding such transactions, including but not limited to any opinions or
views with respect to the price or market for the LoTS
SM
, do not constitute advice or
recommendations to any of the Partnership Entities. The Enterprise Parties hereby waive and
release, to the fullest extent permitted by law, any claims that they may have against each
Underwriter with respect to any breach or alleged breach of any fiduciary or similar duty to any of
the Enterprise Parties in connection with the transactions contemplated by this Agreement or any
matters leading up to such transactions.
10.
Defaulting Underwriters
. If, on the Delivery Date, any Underwriter defaults in
the performance of its obligations under this Agreement, the remaining non-defaulting Underwriters
shall be obligated to purchase the LoTS
SM
that the defaulting Underwriter agreed but
failed to purchase on the Delivery Date in the respective proportions which the number of
LoTS
SM
set forth opposite the name of each remaining non-defaulting Underwriter in
Schedule I
hereto bears to the total number of LoTS
SM
set forth opposite the
names of all the remaining non-defaulting Underwriters in
Schedule I
hereto; provided,
however, that the remaining non-defaulting Underwriters shall not be obligated to purchase any of
the LoTS
SM
on the Delivery Date if the total number of LoTS
SM
that the
defaulting Underwriter or Underwriters agreed but failed to purchase on such date exceeds 9% of the
total number of LoTS
SM
to be purchased on the Delivery Date, and any remaining
non-defaulting Underwriters shall not be obligated to purchase more than 110% of the number of
LoTS
SM
that it agreed to purchase on the Delivery Date pursuant to the terms of Section
2. If the foregoing maximums are exceeded, the remaining non-defaulting Underwriters, or those
other underwriters satisfactory to the Representatives who so agree, shall have the right, but
shall not be obligated, to purchase, in such proportion as may be agreed upon among them, all the
LoTS
SM
to be purchased on the Delivery Date. If the remaining Underwriters or other
underwriters satisfactory to the Representatives do not elect to purchase the LoTS
SM
that the defaulting Underwriter or Underwriters agreed but failed to purchase on the Delivery Date,
this Agreement shall terminate without liability on the part of any non-defaulting Underwriters or
the Enterprise Parties, except that the Enterprise Parties will continue to be liable for the
payment of expenses to the extent set forth in Sections 6 and 12. As used in this Agreement, the
term
Underwriter
includes, for all purposes of this Agreement unless the context requires
otherwise, any party not listed in
Schedule I
hereto that, pursuant to this Section 10,
purchases LoTS
SM
that a defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have
to the Enterprise Parties for damages caused by its default. If other Underwriters are obligated
or agree to purchase the LoTS
SM
of a defaulting or withdrawing Underwriter, either the
Representatives or the Enterprise Parties may postpone the Delivery Date for up to seven full
business days in order to effect any changes that in the opinion of counsel for the Enterprise
Parties or counsel for the Underwriters may be necessary in the Registration Statement, the
Prospectus or in any other document or arrangement.
11.
Termination
. The obligations of the Underwriters hereunder may be terminated by
the Representatives by notice given to and received by the Operating Partnership prior to delivery
of and payment for the LoTS
SM
if, prior to that time, any of the events described
-24-
in Section 7(o) shall have occurred or if the Underwriters shall decline to purchase the
LoTS
SM
for any reason permitted under this Agreement.
12.
Reimbursement of Underwriters Expenses
. If the sale of the LoTS
SM
provided for herein is not consummated because any condition to the obligations of the Underwriters
set forth in Section 7 hereof is not satisfied (other than Section 7(o)) or because of any refusal,
inability or failure on the part of any Enterprise Party to perform any agreement herein or comply
with any provision hereof other than by reason of a default by the Underwriters, the Enterprise
Parties will reimburse the Underwriters, severally through the Representatives, on demand for all
reasonable out-of-pocket expenses (including reasonable fees and disbursements of counsel) that
shall have been incurred by the Underwriters in connection with the proposed purchase and sale of
the LoTS
SM
. Notwithstanding the foregoing, (i) if this Agreement is terminated pursuant
to Section 10 hereof by reason of the default of one or more of the Underwriters, the Enterprise
Parties shall not be obligated to reimburse any defaulting Underwriter on account of such
Underwriters expenses, and (ii) if this Agreement is terminated pursuant to Section 11 hereof, the
Enterprise Parties shall not be obligated to reimburse the Underwriters in respect of those
expenses.
13.
Research Analyst Independence
. Each of the Enterprise Parties acknowledges that
the Underwriters research analysts and research departments are required to be independent from
their respective investment banking divisions and are subject to certain regulations and internal
policies, and that such Underwriters research analysts may hold views and make statements or
investment recommendations and/or publish research reports with respect to each of the Enterprise
Parties and/or the offering that differ from the views of their respective investment banking
divisions. Each of the Enterprise Parties hereby waives and releases, to the fullest extent
permitted by law, any claims that the Enterprise Parties may have against the Underwriters with
respect to any conflict of interest that may arise from the fact that the views expressed by their
independent research analysts and research departments may be different from or inconsistent with
the views or advice communicated to the Partnership by such Underwriters investment banking
divisions. Each of the Enterprise Parties acknowledges that each of the Underwriters is a full
service securities firm and as such from time to time, subject to applicable securities laws, may
effect transactions for its own account or the account of its customers and hold long or short
positions in debt or equity securities of the companies that may be the subject of the transactions
contemplated by this Agreement.
14.
Notices
. All statements, requests, notices and agreements hereunder shall be in
writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail or facsimile transmission to
Wachovia Capital Markets, LLC, 301 South College Street, Charlotte, North Carolina 28288-0602
Attention: Debt Capital Markets (Fax: 704-383-9165); to Lehman Brothers Inc., 747 Seventh Ave, New
York, New York 10019 Attn: Debt Capital Markets, Power Group (Fax: 212-526-0943), with a copy to
the General Counsels office at the same address; and a copy to Cadwalader, Wickersham & Taft LLP,
One World Financial Center, New York, New York 10281, Attention: Louis J. Bevilacqua, Esq. (Fax:
212-504-6666);
-25-
(b) if to the Enterprise Parties, shall be delivered or sent by mail or facsimile transmission
to Enterprise Products Partners L.P., 1100 Louisiana Street, 18
th
Floor, Houston, Texas
77002, Attention: Chief Legal Officer (Fax: 713-803-2905), with a copy to Bracewell & Giuliani
LLP, 711 Louisiana Street, Suite 2300, Houston, Texas 77002-2770, Attention: Michael S. Telle, Esq.
(Fax: 713-221-2113);
provided, however, that any notice to any Underwriter pursuant to Section 8(c) shall be delivered
or sent by mail, telex or facsimile transmission to such Underwriters at its address set forth in
its acceptance telex to the Underwriters, which address will be supplied to any other party hereto
by the Underwriters upon request. Any such statements, requests, notices or agreements shall take
effect at the time of receipt thereof.
The Enterprise Parties shall be entitled to rely upon any request, notice, consent or
agreement given or made by the Representatives on behalf of the Underwriters.
15.
Persons Entitled to Benefit of Agreement
. This Agreement shall inure to the
benefit of and be binding upon the Underwriters, the Enterprise Parties and their respective
successors. This Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except as provided in Section 8 with respect to affiliates, officers, directors,
employees, representatives, agents and controlling persons of the Partnership, the Operating
Partnership and the Underwriters. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 15, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision contained herein.
16.
Survival
. The respective indemnities, representations, warranties and agreements
of the Enterprise Parties and the Underwriters contained in this Agreement or made by or on behalf
on them, respectively, pursuant to this Agreement or any certificate delivered pursuant hereto,
shall survive the delivery of and payment for the LoTS
SM
and shall remain in full force
and effect, regardless of any termination or cancellation of this Agreement or any investigation
made by or on behalf of any of them or any person controlling any of them. The Underwriters
acknowledge and agree that the obligations of the Enterprise Parties hereunder are non-recourse to
the General Partner.
17.
Definition of the Terms Business Day and Subsidiary
. For purposes of this
Agreement, (a)
business day
means any day on which the New York Stock Exchange, Inc. is
open for trading and (b)
affiliate
and
subsidiary
have their respective
meanings set forth in Rule 405 of the Rules and Regulations.
18.
Governing Law
. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK
19.
Jurisdiction; Venue
. The parties hereby consent to (i) nonexclusive jurisdiction
in the courts of the State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, (ii) nonexclusive personal service
with respect thereto, and (iii) personal jurisdiction, service and venue in any court in which any
claim arising out of or in any way relating to this Agreement is brought by
-26-
any third party against the Underwriters or any indemnified party. Each of the parties (on
its behalf and, to the extent permitted by applicable law, on behalf of its limited partners and
affiliates) waives all right to trial by jury in any action, proceeding or counterclaim (whether
based upon contract, tort or otherwise) in any way arising out of or relating to this Agreement.
The parties agree that a final judgment in any such action, proceeding or counterclaim brought in
any such court shall be conclusive and binding upon the parties and may be enforced in any other
courts to the jurisdiction of which the parties is or may be subject, by suit upon such judgment.
20.
Counterparts
. This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts shall each be deemed to be an
original but all such counterparts shall together constitute one and the same instrument.
21.
Amendments
. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
22.
Headings
. The headings herein are inserted for convenience of reference only and
are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
[Signature Pages to Follow]
-27-
If the foregoing correctly sets forth the agreement among the Enterprise Parties and the
Underwriters, please indicate your acceptance in the space provided for that purpose below.
|
|
|
|
|
|
|
|
|
|
Very truly yours,
|
|
|
|
|
|
|
|
|
|
ENTERPRISE PRODUCTS PARTNERS L.P.
|
|
|
|
|
|
|
|
|
|
By:
|
|
Enterprise Products GP, LLC, its general partner
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ W. Randall Fowler
|
|
|
|
|
|
|
|
|
|
Name: W. Randall Fowler
|
|
|
|
|
Title: Senior Vice President and Treasurer
|
|
|
|
|
|
|
|
|
|
|
ENTERPRISE PRODUCTS OPERATING L.P.
|
|
|
|
|
|
|
|
|
|
By:
|
|
Enterprise Products OLPGP, Inc., its general partner
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ W. Randall Fowler
|
|
|
|
|
|
|
|
|
|
Name: W. Randall Fowler
|
|
|
|
|
Title: Senior Vice President and Treasurer
|
|
|
|
|
|
|
ENTERPRISE PRODUCTS OLPGP, INC.
|
|
|
By:
|
/s/ W. Randall Fowler
|
|
|
|
Name:
|
W. Randall Fowler
|
|
|
|
Title:
|
Senior Vice President and Treasurer
|
|
|
|
|
|
|
|
|
ENTERPRISE PRODUCTS GP, LLC
|
|
|
By:
|
/s/ W. Randall Fowler
|
|
|
|
Name:
|
W. Randall Fowler
|
|
|
|
Title:
|
Senior Vice President and Treasurer
|
|
|
|
|
|
|
For themselves and as Representatives of the several Underwriters named in Schedule I hereto.
|
|
|
|
|
|
WACHOVIA CAPITAL MARKETS, LLC
|
|
|
|
|
|
|
|
By:
|
|
/s/ Steve Taylor
|
|
|
|
|
Name: Steve Taylor
|
|
|
|
|
Title: Managing Director
|
|
|
|
|
|
|
|
LEHMAN BROTHERS INC.
|
|
|
|
|
|
|
|
By:
|
|
/s/ Gregory Hall
|
|
|
|
|
Name: Gregory Hall
|
|
|
|
|
Title: Managing Director
|
|
|
Schedule I
|
|
|
|
|
|
|
Principal Amount of LoTS
SM
|
Underwriters
|
|
to be Purchased
|
Wachovia Capital Markets, LLC
|
|
$
|
180,000,000
|
|
Lehman Brothers Inc.
|
|
$
|
75,000,000
|
|
UBS Securities LLC
|
|
$
|
22,500,000
|
|
Banc of America Securities LLC
|
|
$
|
7,500,000
|
|
Daiwa Securities SMBC Europe Limited
|
|
$
|
7,500,000
|
|
Scotia Capital (USA) Inc.
|
|
$
|
7,500,000
|
|
|
|
|
|
|
TOTAL
|
|
$
|
300,000,000
|
|
I-1
Schedule II
Issuer Free Writing Prospectuses Included in Disclosure Package
None, other than the pricing term sheet attached as Exhibit A.
II-1
Schedule III
Subsidiaries of the Operating Partnership
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of
|
|
Ownership Interest
|
Subsidiary
|
|
Formation
|
|
Percentage
|
Enterprise Gas Processing, LLC
|
|
Delaware
|
|
|
100.00
|
%
|
Enterprise GTM Holdings L.P.
|
|
Delaware
|
|
|
100.00
|
%
|
Enterprise Hydrocarbons L.P.
|
|
Delaware
|
|
|
100.00
|
%
|
Enterprise Field Services, L.L.C.
|
|
Delaware
|
|
|
100.00
|
%
|
Enterprise Products Texas Operating L.P.
|
|
Delaware
|
|
|
100.00
|
%
|
Enterprise Texas Pipeline L.P.
|
|
Delaware
|
|
|
100.00
|
%
|
Mapletree, LLC
|
|
Delaware
|
|
|
100.00
|
%
|
Mid-America Pipeline Company, LLC
|
|
Delaware
|
|
|
100.00
|
%
|
III-1
Schedule IV
Issuer Free Writing Prospectuses
other than those to which the Underwriters provided their consent
None.
IV-1
EXHIBIT A
PRICING TERM SHEET
FINAL TERM SHEET
ENTERPRISE PRODUCTS OPERATING L.P.
8.375% Fixed/Floating Rate Junior Subordinated Notes due 2066 (LoTS
SM
)
Guaranteed to the extent described in the preliminary prospectus supplement dated July 11, 2006
by Enterprise Products Partners L.P.
|
|
|
Issuer:
|
|
Enterprise Products Operating L.P.
|
|
|
|
Principal Amount:
|
|
$300,000,000
|
|
|
|
Ratings:
|
|
Ba1/stable / B+/positive / BB+/stable (Moodys/S&P/Fitch)
|
|
|
|
Security Type:
|
|
Junior Subordinated Notes due 2066
|
|
|
|
Legal Format:
|
|
SEC Registered
|
|
|
|
Trade Date:
|
|
July 13, 2006
|
|
|
|
Settlement Date:
|
|
July 18, 2006
|
|
|
|
Maturity Date:
|
|
August 1, 2066
|
|
|
|
Price to Public:
|
|
100%
|
|
|
|
Public Offering Price:
|
|
$300,000,000
|
|
|
|
Commissions to
Underwriters:
|
|
1.5% per LoTS
SM
; $4,500,000 in the aggregate
|
|
|
|
Net Proceeds to
Issuer After
Deducting
Underwriting
Commissions and
Expenses:
|
|
$294,900,000
|
|
|
|
Interest during Fixed Rate Period:
|
|
From July 18, 2006 to August 1, 2016, at the annual rate of
8.375%, payable semi-annually in arrears on February 1 and August
1 of each year, commencing on February 1, 2007, subject to the
Issuers right to defer interest on one or more occasions for up
to ten consecutive years.
|
|
|
|
Interest during Floating Rate Period:
|
|
From August 1, 2016 through maturity at a floating rate based on
the 3-month LIBOR Rate plus 370.75 basis points, reset quarterly,
payable quarterly in arrears on February 1, May 1, August 1 and
November 1 of each year, subject to the
|
A-1
|
|
|
|
|
Issuers right to defer interest on one or more occasions for up to ten consecutive years.
|
|
|
|
Benchmark Treasury:
|
|
5.125% due May 15, 2016
|
|
|
|
Spread to Benchmark:
|
|
331 basis points (3.31%)
|
|
|
|
Treasury Strike:
|
|
5.067%
|
|
|
|
Optional Redemption:
|
|
On or after August 1, 2016, in whole or in part at 100% of the
principal amount plus accrued and unpaid interest.
Prior to August 1, 2016, in whole or in part upon payment of a
make-whole redemption price equal to (a) all accrued and unpaid
interest to but not including the redemption date, plus (b) the
greater of (1) 100% of the principal amount of the
LoTS
SM
being redeemed and (2) as determined by the
Independent Investment Banker, the sum of the present values of
remaining scheduled payments of principal and interest on the
LoTS
SM
(exclusive of interest accrued to the redemption
date) being redeemed from the redemption date to August 1, 2016,
discounted to the redemption date on a semi-annual basis (assuming
a 360-day year consisting of twelve 30-day months) at the Treasury
Yield plus 50 basis points.
|
|
|
|
Denomination:
|
|
$ 1,000
|
|
|
|
CUSIP/ISIN:
|
|
293791AV1 / US293791AV15
|
|
|
|
Book Running Managers:
|
|
Wachovia Capital Markets, LLC (Sole Structuring Advisor)
Lehman Brothers Inc.
|
|
|
|
Co-Managers:
|
|
UBS Securities LLC Banc
of America Securities LLC Daiwa
Securities SMBC Europe Limited Scotia
Capital (USA) Inc.
|
Terms used but not defined in this term sheet have the meanings assigned to them in the
preliminary prospectus supplement dated July 11, 2006.
The Issuer has filed a registration statement (including a prospectus) with the U.S. Securities and
Exchange Commission (SEC) for the offering to which this communication relates. Before you invest,
you should read the prospectus for this offering in that registration statement and other documents
the Issuer has filed with the SEC for more complete information about the Issuer and this offering.
You may get these documents for free by visiting EDGAR on the SEC website at
www.sec.gov
.
Alternatively, the Issuer, any underwriter or any dealer participating in this offering will
arrange to send you the prospectus if you request it by calling:
|
|
|
Wachovia Securities
|
|
1-800-326-5897
|
|
Lehman Brothers
|
|
1-888-603-5847
|
A-2
EXHIBIT B
FORM OF BRACEWELL & GIULIANI LLPS OPINION
1. Each of the General Partner, the Partnership, the Operating Partnership and OLPGP is
validly existing in good standing as a limited liability company, limited partnership or
corporation, as applicable, under the laws of the State of Delaware with all necessary limited
liability company, limited partnership or corporate, as the case may be, power and authority to own
or lease its properties and conduct its businesses and, in the case of the General Partner, to act
as the general partner of the Partnership and, in the case of OLPGP, to act as the general partner
of the Operating Partnership, in each case in all material respects as described in the
Registration Statement and the Prospectus. Each of the General Partner, the Partnership, the
Operating Partnership and OLPGP is duly registered or qualified as a foreign limited liability
company, limited partnership or corporation, as the case may be, for the transaction of business
and is in good standing under the laws of the State of Texas.
2. There are no preemptive rights under U.S. federal law or under the Delaware LP Act to
subscribe for or purchase the LoTS
SM
. There are no preemptive or other rights to
subscribe for or to purchase the LoTS
SM
included in the Operating Partnerships limited
partnership agreement. To such counsels knowledge, neither the filing of the Registration
Statement nor the offering or sale of the LoTS
SM
as contemplated by the Underwriting
Agreement gives rise to any rights for the registration of any securities of the Partnership or any
of its subsidiaries, other than as have been waived, effectively complied with or satisfied.
3. To such counsels knowledge and other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Partnership or any of its subsidiaries is a
party or of which any property of the Partnership or any of its subsidiaries is the subject that,
individually or in the aggregate, could reasonably be expected by such counsel to have a material
adverse effect on the financial condition or results of operations of the Partnership and its
subsidiaries, taken as a whole; and, to such counsels knowledge, no such proceedings are
threatened.
4. The Partnership and the Operating Partnership have all requisite partnership power and
authority to issue, sell and deliver the Securities in accordance with and upon the terms and
conditions set forth in the Agreement, the Partnership Agreement, the Operating Partnership
Agreement, the Indenture, the Registration Statement and Prospectus.
5. The LoTS
SM
have been duly authorized and executed by the Operating Partnership
and, when authenticated by the Trustee and issued and delivered in the manner provided in the
Indenture against payment of the consideration therefor, will constitute valid and legally binding
obligations of the Operating Partnership, enforceable against the Operating Partnership in
accordance with their terms, and will be entitled to the benefits provided by the Indenture.
6. The Indenture has been duly authorized, executed and delivered by each of the Partnership
and the Operating Partnership and has been duly qualified under the Trust
B-1
Indenture Act and, assuming the due authorization, execution and delivery thereof by the
Trustee, constitutes a valid and binding agreement of each of the Partnership and the Operating
Partnership, enforceable against each of the Partnership and the Operating Partnership in
accordance with its terms.
7. The Guarantee has been duly authorized, executed and delivered by the Partnership and when
the LoTS
SM
(including the notations of the Guarantee thereon) are executed and
authenticated in accordance with the Indenture against payment of the consideration therefor in
accordance with the terms of this Agreement, the Guarantee endorsed by the notations on the
LoTS
SM
will be entitled to the benefits of the Indenture and will constitute legal,
valid, binding and enforceable obligations of the Partnership.
8. The Underwriting Agreement has been duly authorized, executed and delivered by each of the
Enterprise Parties.
9. The authorization, execution and delivery of the LoTS
SM
, the Indenture, and the
Underwriting Agreement by the Enterprise Parties do not, and the issuance of the LoTS
SM
by the Operating Partnership in accordance with the Indenture and their sale to the Underwriters in
accordance with the Underwriting Agreement and the performance by the Enterprise Parties of their
respective obligations under the LoTS
SM
, the Indenture, the Guarantee and the
Underwriting Agreement will not, (i) violate the certificate of limited partnership or agreement of
limited partnership, certificate of formation or limited liability company agreement, certificate
or articles of incorporation or bylaws, as applicable, of the General Partner, the Partnership, the
Operating Partnership or OLPGP, each as amended to the date hereof; or (ii) violate any applicable
provisions of existing U.S. federal law, the laws of the State of Texas or the State of New York,
the Delaware LP Act, the Delaware LLC Act or the DGCL (except, in the case of this clause (ii),
where such violations would not, individually or in the aggregate, (a) have a material adverse
effect on the financial condition, business or results of operations of the Partnership Entities,
taken as a whole, or (b) materially impair the ability of the Enterprise Parties to perform their
respective obligations under the Underwriting Agreement).
10. No consent, approval, authorization or order of, or filing with, any U.S. federal or Texas
governmental authority or agency having jurisdiction over the Enterprise Parties or, to our
knowledge, any U.S. federal or Texas court is required to be obtained or made and has not been
obtained or made by the Enterprise Parties for (i) the issue and sale by the Operating Partnership
to the Underwriters of the LoTS
SM
and (ii) the execution, delivery and performance by
the Enterprise Parties of the Underwriting Agreement, except as may be required under state
securities or blue sky laws in connection with the purchase and distribution of the Securities by
the Underwriters, as to which such counsel need not express any opinion.
11. The Partnership and the Operating Partnership are not and, after giving effect to the
issue and sale of the LoTS
SM
to the Underwriters and the application of the proceeds
from the sale of the LoTS
SM
as described under the caption Use of Proceeds in the
Prospectus, will not be, an investment company within the meaning of the Investment Company Act.
12. The statements made in the Prospectus under the caption Description of Debt Securities
and Description of the LoTS
SM
insofar as they purport to constitute
B-2
summaries of the terms of the LoTS
SM
, the Indenture, and the Guarantee, constitute
accurate summaries of such terms in all material respects.
13. The statements made in the Prospectus under the caption Certain United States Federal
Income Tax Considerations, insofar as they purport to constitute summaries of matters of U.S.
federal tax law and regulations, constitute accurate summaries of the matters described therein in
all material respects.
14. The Registration Statement became effective under the Securities Act on March 23, 2005,
and the Prospectus was filed with the Commission pursuant to Rule 424(b)(5) under the Securities
Act on July 14, 2006. To such counsels knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued under the Securities Act and no proceeding for such
purpose has been instituted or threatened by the Commission.
15. The Registration Statement, as of the date it became effective under the Securities Act,
the Preliminary Prospectus, as of its date, and the Prospectus, as of its date, appeared on their
face to be appropriately responsive, in all material respects, to the requirements of the
Securities Act and the Rules and Regulations, except that in each case such counsel need express no
opinion with respect to the financial statements and the notes and schedules thereto or other
financial, accounting or statistical data contained or incorporated or deemed incorporated by
reference in or omitted from the Registration Statement, the Preliminary Prospectus or the
Prospectus.
Such counsel may state that the enforceability of the obligations of the Enterprise Parties
under the LoTS
SM
, the Indenture and the Guarantee are subject to the effect of any
applicable bankruptcy (including, without limitation, fraudulent conveyance and preference),
insolvency, reorganization, rehabilitation, moratorium or similar laws and decisions relating to or
affecting the enforcement of creditors rights generally and to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in equity or at law),
including, without limitation, concepts of materiality, reasonableness, good faith and fair
dealing, and the possible unavailability of specific performance or injunctive relief. Such
principles are of general application, and in applying such principles a court, among other things,
might decline to order the Enterprise Parties to perform covenants. Such counsel need not express
any opinion as to the validity, binding effect or enforceability of any provisions of the
LoTS
SM
, the Indenture or the Guarantee that requires or relates to the payment of
liquidated damages or additional interest at a rate or in an amount that a court would determine in
the circumstances under applicable law to be commercially unreasonable or a penalty or a
forfeiture. Further, such counsel need not express any opinion with respect to the enforceability
of provisions in the LoTS
SM
, the Indenture or the Guarantee with respect to waiver,
delay, extension or omission of notice of enforcement of rights or remedies or waivers of defenses
or waivers of benefits of stay, extension, moratorium, redemption, statutes of limitations or other
nonwaivable benefits provided by operation of law. In addition, the enforceability of any
exculpation, indemnification or contribution provisions contained in the Indenture or the Guarantee
may be limited by applicable law or public policy.
Because the primary purpose of such counsels engagement was not to establish or confirm
factual matters or financial or accounting matters and because of the wholly or partially
B-3
non-legal character of many of the statements contained in the Registration Statement, the
Prospectus and the Pricing Disclosure Package, such counsel need not pass upon and does not assume
any responsibility for the accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Prospectus or the Pricing Disclosure Package (except to the extent
expressly set forth in paragraphs 12 and 13 above), and such counsel need not independently verify
the accuracy, completeness or fairness of such statements (except as aforesaid). Without limiting
the foregoing, such counsel need not assume any responsibility for, and has not independently
verified and has not been asked to comment on the accuracy, completeness or fairness of the
financial statements, schedules and other financial or accounting data included in the Registration
Statement, the Prospectus or the Pricing Disclosure Package or the exhibits to the Registration
Statement or the documents incorporated by reference therein, and such counsel has not examined the
accounting, financial or other records from which such financial statements, schedules and other
financial or accounting data and information were derived. Such counsel may state that they are
not experts with respect to any portion of the Registration Statement, the Prospectus or the
Pricing Disclosure Package, including, without limitation, such financial statements and supporting
schedules and related data and other financial or accounting data included therein. Such counsel
may state that they did not participate in the preparation of the documents incorporated by
reference into the Registration Statement. However, such counsel shall state that they have
participated in conferences with officers and other representatives of the Partnership Entities,
the independent registered public accounting firm for the Partnership, the Underwriters
representatives and the Underwriters counsel at which the contents of the Registration Statement,
the Prospectus and the Pricing Disclosure Package and related matters were discussed. Based upon
such participation and review, and relying as to materiality in part upon the factual statements of
officers and other representatives of the Partnership Entities and upon the Underwriters
representatives, such counsel shall advise the Underwriters that no facts have come to such
counsels attention that have caused such counsel to believe that (i) the Registration Statement
(including the documents incorporated by reference therein, but excluding the financial statements,
schedules and related data and other financial or accounting data, as to which such counsel has not
been asked to comment), at the time such Registration Statement became effective, contained an
untrue statement of a material fact or omitted to state a material fact necessary to make the
statements therein not misleading, (ii) the Prospectus (including the documents incorporated by
reference therein, but excluding the financial statements, schedules and related data and other
financial or accounting data, as to which such counsel has not been asked to comment), as of the
date of the Prospectus and as of the time of delivery of such counsels letter, contained an untrue
statement of a material fact or omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading or (iii) the
Pricing Disclosure Package, considered together (including the documents incorporated by reference
therein, but excluding the financial statements, schedules and related data and other financial or
accounting data, as to which such counsel has not been asked to comment), as of the Applicable
Time, contained any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except that the public offering price
of and interest rate of the LoTS
SM
and disclosures directly relating thereto that are
included on the cover page of the Prospectus are not included in the most recent Preliminary
Prospectus.
B-4
In rendering such opinions, such counsel may (A) rely in respect of matters of fact
exclusively upon certificates of officers and employees for the Partnership Entities and upon
information obtained from public officials, (B) assume that all documents submitted to them as
originals are authentic, that all copies submitted to them conform to the originals thereof, and
that the signatures on all documents examined by them are genuine, (C) state that their opinion is
based on and limited to the Delaware LP Act, the Delaware LLC Act, the DGCL and the laws of the
State of Texas, the applicable laws of the United States of America and, with respect to the
opinion set forth in paragraph 13 above, United States federal income tax law, and, with respect to
the opinions set forth in paragraphs 4, 5, 6 and 9, the relevant contract law of the State of New
York, (D) state that they express no opinion with respect to the state securities or blue sky laws
of any jurisdiction or with respect to the anti-fraud provisions of the federal securities laws,
(E) with respect to the opinion expressed in paragraph 1 above as to the due qualification or
registration under the laws of the State of Texas as a foreign limited partnership, limited
liability company or corporation, as the case may be, of the General Partner, the Partnership, the
Operating Partnership and OLPGP, state that such opinions are based solely on certificates of
foreign qualification or registration for each such entity provided by the Secretary of State of
the State of Texas, and (F) state that such counsel expresses no opinion with respect to (i) any
permits to own or operate any real or personal property or (ii) state or local taxes or tax
statutes to which any of the limited partners of the Partnership or any of the Partnership Entities
may be subject.
B-5
EXHIBIT C
FORM OF GENERAL COUNSELS OPINION
1. Each of the Partnership Entities (other than the Enterprise Parties) has been duly formed
or incorporated, as the case may be, and is validly existing and in good standing under the laws of
its respective jurisdiction of formation with all necessary corporate, limited liability company or
limited partnership, as the case may be, power and authority to own or lease its properties and
conduct its business, in each case in all material respects as described in the Registration
Statement and the Prospectus. Each of the Partnership Entities is duly registered or qualified as
a foreign corporation, limited partnership or limited liability company, as the case may be, for
the transaction of business under the laws of each jurisdiction in which its ownership or lease of
property or the conduct of its businesses requires such qualification or registration, except where
the failure to so qualify or register would not, individually or in the aggregate, have a Material
Adverse Effect.
2. All of the outstanding shares of capital stock, partnership interests or membership
interests, as the case may be, of each of the Partnership Entities have been duly and validly
authorized and issued, are fully paid and non-assessable. Except as described in the Prospectus,
the Operating Partnership and/or the Partnership, as the case may be, directly or indirectly, owns
the shares of capital stock, partnership interests or membership interests, as applicable, in each
of the Partnership Entities as set forth on
Schedule III
, free and clear of any lien,
charge, encumbrance, security interest, restriction upon voting or any other claim.
3. Each of the Enterprise Parties has all requisite right, power and authority to execute and
deliver the Underwriting Agreement and to perform its respective obligations thereunder. The
Partnership has all requisite partnership power and authority to issue and deliver the Guarantee in
accordance with and upon the terms and conditions set forth in the Indenture, the Partnership
Agreement, the Registration Statement and the Prospectus. The Operating Partnership has all
requisite partnership power and authority to issue, sell and deliver the LoTS
SM
in
accordance with and upon the terms and conditions set forth in the Indenture, the Operating
Partnership Agreement, the Registration Statement and the Prospectus. All action required to be
taken by the Enterprise Parties or any of their security holders, partners or members for (i) the
due and proper authorization, execution and delivery of the Underwriting Agreement, (ii) the
authorization, issuance, sale and delivery of the Securities and (iii) the consummation of the
transactions contemplated hereby, has been duly and validly taken.
4. None of (i) the offering, issuance and sale by the Operating Partnership of the
LoTS
SM
, (ii) the issuance by the Partnership of the Guarantee, (iii) the execution,
delivery and performance of the Underwriting Agreement by the Enterprise Parties or the
consummation of the transactions contemplated thereby or (iv) the execution, delivery and
performance of the Indenture by the Partnership and the Operating Partnership or the consummation
of the transactions contemplated thereby (A) conflicts or will conflict with or constitutes or will
constitute a violation of the certificate of limited partnership or agreement of limited
partnership, certificate of formation or limited liability company agreement, certificate or
articles of incorporation or bylaws or other organizational documents of any of the Partnership
Entities
C-1
(other than the Enterprise Parties), (B) conflicts or will conflict with or constitutes or
will constitute a breach or violation of, or a default (or an event that, with notice or lapse of
time or both, would constitute such a default) under, any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument known to such counsel to which any of the
Partnership Entities is a party or by which any of them or any of their respective properties may
be bound, (C) will result, to the knowledge of such counsel, in any violation of any judgment,
order, decree, injunction, rule or regulation of any court, arbitrator or governmental agency or
body having jurisdiction over any of the Partnership Entities or any of their assets or properties,
or (D) results or will result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of any of the Partnership Entities, which conflicts, breaches, violations,
defaults or liens, in the case of clauses (B), (C) or (D), would, individually or in the aggregate,
have a material adverse effect on the financial condition, business or results of operations of the
Partnership Entities, taken as a whole, or could materially impair the ability of any of the
Enterprise Parties to perform its obligations under the Underwriting Agreement.
5. To the knowledge of such counsel, (a) there is no legal or governmental proceeding pending
or threatened to which any of the Partnership Entities is a party or to which any of their
respective properties is subject that is required to be disclosed in the Registration Statement or
the Prospectus and is not so disclosed and (b) there are no agreements, contracts or other
documents to which any of the Partnership Entities is a party that are required to be described in
the Registration Statement or the Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required.
In addition, such counsel shall state that he has participated in conferences with officers
and other representatives of the Partnership Entities, the independent registered public accounting
firm for the General Partner and the Partnership, your counsel and your representatives, at which
the contents of the Registration Statement, the Pricing Disclosure Package and the Prospectus and
related matters were discussed, and, although such counsel has not independently verified, is not
passing upon and does not assume any responsibility for the accuracy, completeness or fairness of,
the statements contained or incorporated by reference in, the Registration Statement, the Pricing
Disclosure Package and the Prospectus (except as and to the extent set forth in certain opinions
above), on the basis of the foregoing (relying to a limited extent with respect to factual matters
upon statements by officers and other representatives of the Partnership Entities and their
subsidiaries), no facts have come to such counsels attention that have led him to believe that (i)
the Registration Statement, as of the latest Effective Date, contained an untrue statement of a
material fact or omitted to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, (ii) the Pricing Disclosure Package, as of the
Applicable Time, contained an untrue statement of a material fact or omitted to state any material
fact necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading, except that the public offering price of and interest rate of the
LoTS
SM
and disclosures directly relating thereto that are included on the cover page of
the Prospectus are not included in the most recent Preliminary Prospectus, or (iii) the Prospectus,
as of its date and as of the Delivery Date, contained or contains an untrue statement of a material
fact or omitted or omits to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading; it being understood that
such counsel expresses no statement or belief in this letter with respect to (i) the financial
statements and related schedules, including the notes and
C-2
schedules thereto and the auditors report thereon, any other financial, accounting or
statistical data, included or incorporated or deemed incorporated by reference in, or excluded
from, the Registration Statement or the Prospectus or the Pricing Disclosure Package, and (ii)
representations and warranties and other statements of fact included in the exhibits to the
Registration Statement or to the Incorporated Documents.
In rendering such opinion, such counsel may (A) rely on certificates of officers and
representatives of the Partnership Entities and upon information obtained from public officials,
(B) assume that all documents submitted to him as originals are authentic, that all copies
submitted to him conform to the originals thereof, and that the signatures on all documents
examined by him are genuine, (C) state that his opinion is limited to federal laws, the Delaware LP
Act, the Delaware LLC Act, the DGCL and the laws of the State of Texas, and (D) state that such
counsel expresses no opinion with respect to: (i) any permits to own or operate any real or
personal property, (ii) the title of any of the Partnership Entities to any of their respective
real or personal property, other than with regard to the opinions set forth above regarding the
ownership of capital stock, partnership interests and membership interests, or with respect to the
accuracy or descriptions of real or personal property or (iii) state or local taxes or tax statutes
to which any of the limited partners of the Partnership or any of the Partnership Entities may be
subject.
C-3
Exhibit 4.2
ENTERPRISE PRODUCTS OPERATING L.P.,
as Issuer
ENTERPRISE PRODUCTS PARTNERS L.P.,
as Parent Guarantor
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
EIGHTH SUPPLEMENTAL INDENTURE
Dated as of July 18, 2006
to
Indenture dated as of October 4, 2004
$300,000,000
8.375% FIXED/FLOATING RATE JUNIOR SUBORDINATED NOTES DUE 2066
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
Page
|
ARTICLE I
|
|
DEFINITIONS
|
|
|
|
|
|
Section 1.1
|
|
Definition of Terms
|
|
2
|
Section 1.2
|
|
Rules of Construction
|
|
8
|
|
|
|
|
|
ARTICLE II
|
|
GENERAL TERMS AND CONDITIONS OF THE LoTS
SM
|
|
|
|
|
|
Section 2.1
|
|
Designation and Principal Amount
|
|
8
|
Section 2.2
|
|
Maturity
|
|
8
|
Section 2.3
|
|
Form
|
|
8
|
Section 2.4
|
|
Registrar and Paying Agent
|
|
9
|
Section 2.5
|
|
Transfer and Exchange
|
|
9
|
Section 2.6
|
|
Interest Rates; Payment of Principal and Interest
|
|
9
|
|
|
|
|
|
ARTICLE III
|
|
REDEMPTION OF THE LoTS
SM
|
|
|
|
|
|
Section 3.1
|
|
Optional Redemption
|
|
10
|
Section 3.2
|
|
Certain Redemption Procedures
|
|
11
|
Section 3.3
|
|
No Sinking Fund
|
|
11
|
|
|
|
|
|
ARTICLE IV
|
|
DEFERRAL OF INTEREST
|
|
|
|
|
|
Section 4.1
|
|
Optional Deferral of Interest
|
|
11
|
Section 4.2
|
|
Notice of Deferrals
|
|
12
|
|
|
|
|
|
ARTICLE V
|
|
CERTAIN COVENANTS
|
|
|
|
|
|
Section 5.1
|
|
Covenants in Indenture
|
|
12
|
Section 5.2
|
|
Restricted Payments
|
|
12
|
-i-
|
|
|
|
|
|
|
|
|
Page
|
ARTICLE VI
|
|
SUBORDINATION
|
|
|
|
|
|
Section 6.1
|
|
Agreement to Subordinate
|
|
13
|
Section 6.2
|
|
Amendment and Restatement of Section 12.02 of the Base Indenture
|
|
13
|
Section 6.3
|
|
Amendment and Restatement of Section 12.03 of the Base Indenture
|
|
15
|
|
|
|
|
|
ARTICLE VII
|
|
GUARANTEE OF THE LoTS
SM
|
|
|
|
|
|
Section 7.1
|
|
Guarantee of the LoTS
SM
|
|
17
|
Section 7.2
|
|
Subordination of Guarantee
|
|
17
|
|
|
|
|
|
ARTICLE VIII
|
|
APPLICABILITY OF DEFEASANCE AND COVENANT DEFEASANCE
|
|
|
|
|
|
Section 8.1
|
|
Applicability of Defeasance and Covenant Defeasance
|
|
17
|
|
|
|
|
|
ARTICLE IX
|
|
EVENTS OF DEFAULT AND REMEDIES OF THE TRUSTEE AND HOLDERS OF LoTS
SM
|
|
|
|
|
|
Section 9.1
|
|
Amendment and Restatement of Section 6.01 of the Base Indenture
|
|
18
|
|
|
|
|
|
ARTICLE X
|
|
MISCELLANEOUS
|
|
|
|
|
|
Section 10.1
|
|
Ratification of Base Indenture
|
|
19
|
Section 10.2
|
|
No Recourse to General Partner
|
|
19
|
Section 10.3
|
|
Separateness
|
|
19
|
Section 10.4
|
|
Trustee Not Responsible for Recitals
|
|
20
|
Section 10.5
|
|
Governing Law
|
|
20
|
Section 10.6
|
|
Time is of the Essence
|
|
20
|
Section 10.7
|
|
Separability
|
|
20
|
Section 10.8
|
|
Treatment of LoTS
SM
|
|
20
|
Section 10.9
|
|
Counterparts
|
|
20
|
Section 10.10
|
|
Withholding
|
|
20
|
-ii-
THIS EIGHTH SUPPLEMENTAL INDENTURE, dated as of July 18, 2006 (this
Eighth Supplemental
Indenture
), is among (i) Enterprise Products Operating L.P., a Delaware limited partnership
(the
Company
), (ii) Enterprise Products Partners L.P., a Delaware limited partnership
(the
Parent Guarantor
), and (iii) Wells Fargo Bank, National Association, a national
banking association, as trustee (the
Trustee
).
W
I
T
N
E
S
S
E
T
H
:
WHEREAS, the Company and the Parent Guarantor have executed and delivered to the Trustee an
Indenture, dated as of October 4, 2004 (the
Base Indenture
), providing for the issuance
by the Company from time to time of its debentures, notes, bonds, or other evidences of
indebtedness, issued and to be issued in one or more series unlimited as to principal amount (the
Debt Securities
), and the guarantee by each Guarantor of the Debt Securities;
WHEREAS, on or before the date hereof the Company has issued other series of Debt Securities
pursuant to previous supplements to the Base Indenture;
WHEREAS, the Company has duly authorized and desires to cause to be issued pursuant to the
Base Indenture and this Eighth Supplemental Indenture a new series of Debt Securities designated
the 8.375% Fixed/Floating Rate Junior Subordinated Notes due 2066 (the
LoTS
SM
), all of such LoTS
SM
to be guaranteed by the Parent
Guarantor as provided in Article XIV of the Indenture (as hereinafter defined) and Article VII of
this Eighth Supplemental Indenture;
WHEREAS, the Company desires to cause the issuance of the LoTS
SM
pursuant to
Sections 2.01 and 2.03 of the Indenture, which sections permit the execution of indentures
supplemental thereto to establish the form and terms of Debt Securities of any series, and offer
such LoTS
SM
to the underwriters named in Schedule I to the Underwriting Agreement dated
July 13, 2006 among the Company, the Parent Guarantor, the General Partner, and the general partner
of the Parent Guarantor in an aggregate principal amount of $300,000,000 on the terms and
conditions set forth therein;
WHEREAS, pursuant to Section 9.01 of the Indenture, the Company and the Parent Guarantor have
requested that the Trustee join in the execution of this Eighth Supplemental Indenture to establish
the form and terms of the LoTS
SM
; and
WHEREAS, all things necessary have been done to make the LoTS
SM
, when executed by
the Company and authenticated and delivered hereunder and under the Indenture and duly issued by
the Company, and the guarantee thereof by the Parent Guarantor, when the Notation of Guarantee
affixed to the LoTS
SM
has been executed by the Parent Guarantor, the valid obligations
of the Company and the Parent Guarantor, respectively, and to make this Eighth Supplemental
Indenture a valid agreement of the Company and the Parent Guarantor enforceable in accordance with
its terms;
NOW, THEREFORE, the Company, the Parent Guarantor, and the Trustee hereby agree that the
following provisions shall amend and supplement the Base Indenture:
ARTICLE I
DEFINITIONS
Section 1.1
Definition of Terms
. Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in this Eighth Supplemental
Indenture;
provided
,
however
, that, where a term is defined both in this Eighth
Supplemental Indenture and in the Indenture, the meaning given to such term in this Eighth
Supplemental Indenture shall control for purposes of this Eighth Supplemental Indenture and, in
respect of the LoTS
SM
, but not any other series of Debt Securities, the Indenture;
(b) a term defined anywhere in this Eighth Supplemental Indenture has the same meaning
throughout this Eighth Supplemental Indenture and, in respect of the LoTS
SM
, but not any
other series of Debt Securities, the Indenture;
(c) any term used herein which is defined in the TIA, either directly or by reference therein,
has the meanings assigned to it therein; and
(d) the following terms have the following respective meanings:
3-month LIBOR Rate
means, for each Quarterly Interest Period during the Floating
Rate Period, the interest rate per annum shown on Telerate Page 3750 at or about 11:00 a.m., London
time, on the second London Banking Day (the
LIBOR Determination Date
) preceding the first
day of such Quarterly Interest Period (the
Reset Date
) for deposits in U.S. dollars with
a maturity of three months and commencing on the Reset Date. If such rate does not appear on that
page or such other page as shall replace that page for the purpose of displaying offered rates of
leading banks for London interbank deposits in U.S. dollars, the 3-month LIBOR Rate shall be
determined on the basis of the rates, at approximately 11:00 a.m., London time, on the LIBOR
Determination Date, at which U.S. dollar deposits with a maturity of three months in an amount
determined by the Calculation Agent as representative of a single transaction in the relevant
market and at the relevant time are offered by four major banks in the London interbank market
(
Reference Banks
) selected by the Calculation Agent to prime banks in the London
interbank market for the Quarterly Interest Period commencing on the Reset Date. The Calculation
Agent will request the principal London office of each of the Reference Banks to provide a
quotation of its rate. If at least two quotations are provided as requested, the 3-month LIBOR
Rate will be the arithmetic mean of the quotations. If fewer than two quotations are provided as
requested, the 3-month LIBOR Rate shall be the interest rate per annum equal to the average of the
rates per annum quoted by three major banks in New York City or Charlotte, North Carolina selected
by the Calculation Agent, at or about 11:00 a.m., New York City time, on the LIBOR Determination
Date, for loans in U.S. dollars to leading European banks in amounts that are representative of a
single transaction in the relevant market and at the relevant time with a maturity corresponding to
the Quarterly Interest Period commencing on the Reset Date. If fewer than three New York City or
Charlotte, North Carolina banks selected by the
-2-
Calculation Agent are quoting rates, the 3-month LIBOR Rate for the applicable Quarterly
Interest Period will be the same as for the immediately preceding Quarterly Interest Period. If
the Quarterly Interest Period does not correspond to a period for which rates are available, the
3-month LIBOR Rate will be determined through the use of straight-line interpolation by reference
to two rates, the first rate to be determined by reference to the period of time for which rates
are available next shorter than the length of such Quarterly Interest Period and the second to be
determined by reference to the period of time for which rates are available next longer than the
length of such Quarterly Interest Period.
Bankruptcy Event
means, with respect to any Person, that (a) such Person, pursuant
to or within the meaning of any Bankruptcy Law, (i) commences a voluntary case; (ii) consents to
the entry of an order for relief against it in an involuntary case; (iii) consents to the
appointment of a Custodian of it or for all or substantially all of its property; or (iv) makes a
general assignment for the benefit of its creditors; or (b) a court of competent jurisdiction
enters an order or decree under any Bankruptcy Law that (i) is for relief against such Person as
debtor in an involuntary case; (ii) appoints a Custodian of such Person or a Custodian for all or
substantially all of the property of such Person; or (iii) orders the liquidation of such Person,
and, in the case of clauses (b)(i) through (b)(iii), the order or decree remains unstayed and in
effect for 60 days.
Base Indenture
has the meaning set forth in the recitals of this Eighth Supplemental
Indenture.
Book-Entry LoTS
SM
has the meaning set forth in Section 2.3.
Business Day
means a day other than (a) a Saturday or Sunday, (b) a day on which
banks in Houston, Texas or New York, New York are authorized or required by law to close, or (c) a
day on which the corporate trust office of the Trustee is closed for business.
Calculation Agent
means Wells Fargo Bank, National Association (and its successors).
Company
means the Person named as the Company in the preamble of this Eighth
Supplemental Indenture until a successor Person shall have become such pursuant to the applicable
provisions of the Indenture, and thereafter Company shall mean such successor Person.
Comparable Treasury Issue
means the United States Treasury security selected by the
Independent Investment Banker as having a maturity comparable to the Remaining Life of the
LoTS
SM
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 Life of the LoTS
SM
;
provided
,
however
, that if no maturity
is within three months (before or after) of the end of the Remaining Life, yields for the two
published maturities most closely corresponding to such United States Treasury security will be
determined and the Treasury Yield will be interpolated or extrapolated from those yields on a
straight-line basis rounding to the nearest month.
-3-
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 or
about 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.
Current Interest
means, on or prior to an Interest Payment Date, interest accrued on
the principal amount of the LoTS
SM
at the Fixed Rate or the Floating Rate, as the case
may be, since the immediately preceding Interest Payment Date. For the avoidance of doubt, Current
Interest shall not include Deferred Interest.
Deferred Interest
means (a) interest the payment of which has been deferred pursuant
to Section 4.1 plus (b) all interest accrued thereon since the due date thereof in accordance with
Section 2.6(a) and 2.6(d).
Depositary
, means DTC or, if DTC shall have ceased performing such function, any
other Person selected by the Company, so long as such successor or such Person, as the case may be,
is registered as a clearing agency under the Exchange Act or other applicable statutes or
regulations.
DTC
means The Depository Trust Company, New York, New York, or any successor
thereto.
Eighth Supplemental Indenture
has the meaning set forth in the preamble hereto.
Fixed Rate
means 8.375% per annum.
Fixed Rate Period
means the period commencing on July 18, 2006 to, but not
including, August 1, 2016.
Floating Rate
means, with respect to a Quarterly Interest Period, the 3-month LIBOR
Rate for such Quarterly Interest Period plus 3.7075%.
Floating Rate Period
means the period commencing on August 1, 2016 through, but not
including, August 1, 2066.
Guarantee
has the meaning given in Section 7.1.
Indenture
means the Base Indenture, as amended and supplemented by this Eighth
Supplemental Indenture, including the form and terms of the LoTS
SM
as set forth herein,
as the same shall be amended from time to time.
Independent Investment Banker
means any of Wachovia Capital Markets, LLC (and its
successors) and Lehman Brothers Inc. (and its successors) or, if no such firm is willing and able
to select the applicable Comparable Treasury Issue or perform the other functions of the
-4-
Independent Investment Banker provided herein, an independent investment banking institution of
national standing appointed by the Trustee and reasonably acceptable to the Company.
Interest
means, collectively, Current Interest and Deferred Interest.
Interest Payment Date
means a Quarterly Interest Payment Date during the Floating
Rate Period and a Semi-Annual Interest Payment Date during the Fixed Rate Period.
Interest Period
means a Quarterly Interest Period or a Semi-Annual Interest Period,
as the case may be.
LIBOR Determination Date
has the meaning set forth in the definition of 3-month
LIBOR Rate.
London Banking Day
means any day on which commercial banks are open for general
business (including dealings in foreign exchange and foreign currency deposits) in London, England.
LoTS
SM
has the meaning set forth in the recitals of this Eighth
Supplemental Indenture.
Make-Whole Optional Redemption Price
means, with respect to a Redemption Date, an
amount equal to (a) all unpaid Interest to but not including such Redemption Date, plus (b) the
greater of (i) 100% of the principal amount of the LoTS
SM
being redeemed and (ii) as
determined by the Independent Investment Banker, the sum of the present values of remaining
scheduled payments of principal and interest on the LoTS
SM
(exclusive of interest
accrued to the Redemption Date) being redeemed during the Remaining Life, discounted to such
Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Treasury Yield plus .50%. The Make-Whole Optional Redemption Price, calculated as provided
herein, shall be calculated and certified to the Trustee and the Company by an Independent
Investment Banker.
Optional Deferral
has the meaning set forth in Section 4.1(a).
Optional Deferral Period
means the period of time commencing on an Interest Payment
Date with respect to which the Company has optionally deferred payment of Interest pursuant to
Section 4.1(a) and ending upon the earlier of (a) the Interest Payment Date on which all Deferred
Interest and Current Interest to such Interest Payment Date shall have been paid and (b) the first
Interest Payment Date on which the Company shall have deferred payment of some or all of the
Interest due on a number of consecutive Interest Payment Dates with respect to consecutive Interest
Periods which, taken together as a single period, would exceed ten (10) consecutive years.
Optional Redemption Price
means, with respect to a Redemption Date, 100% of the
principal amount of the LoTS
SM
being redeemed plus all unpaid Interest thereon to but
not including such Redemption Date.
-5-
Parent Guarantor
means the Person named as the Parent Guarantor in the preamble of
this Eighth Supplemental Indenture until a successor Person shall have become such pursuant to the
applicable provisions of the Indenture, and thereafter Parent Guarantor shall mean such successor
Person.
Primary Treasury Dealer
has the meaning set forth in the definition of Reference
Treasury Dealer.
Quarterly Interest Payment Date
means each February 1, May 1, August 1, and November
1 during the Floating Rate Period, commencing November 1, 2016;
provided
,
however
,
that if any such day is not Business Day, then the Quarterly Interest Payment Date shall be the
immediately succeeding Business Day (except if such next succeeding Business Day falls in the next
succeeding calendar year, then such payment shall be made on the immediately preceding Business
Day).
Quarterly Interest Period
means each period commencing on a Quarterly Interest
Payment Date and continuing to but not including the next succeeding Quarterly Interest Payment
Date (except that the first Quarterly Interest Period will commence on August 1, 2016).
Reference Banks
has the meaning set forth in the definition of 3-month LIBOR Rate.
Redemption Price
means, (a) in the case of redemption of the LoTS
SM
pursuant to Section 3.1(a), the Optional Redemption Price and (b) in the case of redemption of the
LoTS
SM
pursuant to Section 3.1(b), the Make-Whole Optional Redemption Price.
Reference Treasury Dealer
means (a) Wachovia Capital Markets, LLC (and its
successors) and (b) one other primary U.S. government securities dealer in New York, New York
selected by the Independent Investment Banker (each, a
Primary Treasury Dealer
);
provided
,
however
, that if either of the foregoing is not a Primary Treasury Dealer
at the time the Make-Whole Optional Redemption Price is being calculated hereunder, the Company
will substitute therefor another Primary Treasury Dealer.
Reference Treasury Dealer Quotation
means, with respect to each Reference Treasury
Dealer and any Redemption Date for the LoTS
SM
, an average, as determined by the Trustee,
of the bid and asked prices for the Comparable Treasury Issue for the LoTS
SM
(expressed
in each case as a percentage of its principal amount) quoted in writing to the Trustee by such
Reference Treasury Dealer at or about 5:00 p.m., New York, New York time, on the third Business Day
preceding such Redemption Date.
Remaining Life
means the period of time from the date on which the LoTS
SM
are redeemed to August 1, 2016.
Reset Date
has the meaning set forth in the definition of 3-month LIBOR Rate.
Semi-Annual Interest Period
means each period commencing on a Semi-Annual Interest
Payment Date and continuing to but not including the next succeeding Semi-Annual
-6-
Interest Payment Date (except that the first Semi-Annual Interest Period will begin on July 18,
2006.
Semi-Annual Interest Payment Date
means each February 1 and August 1 during the
Fixed Rate Period, commencing February 1, 2007;
provided
,
however
, that if any such
day is not Business Day, then the Semi-Annual Interest Payment Date shall be the immediately
succeeding Business Day.
Senior Indebtedness
means, with respect to any Person, the principal of, any
interest and premium, if any, on and any other payments in respect of any of the following, whether
currently outstanding or hereafter created or incurred: (a) (i) indebtedness of such Person for
borrowed money; (ii) indebtedness of such Person evidenced by securities, bonds, notes, and
debentures, including any of the same that are subordinated, issued under credit agreements,
indentures or other similar instruments (other than this Eighth Supplemental Indenture) and other
similar instruments, other than, in the case of the Company, the LoTS
SM
; (iii)
obligations of such Person arising from or with respect to guarantees and direct credit
substitutes, other than, in the case of the Parent Guarantor, the Parent Guarantors obligations
under the Guarantee; (iv) obligations of such Person arising from or with respect to hedges and
derivative products (including, but not limited to, interest rate, commodity, and foreign exchange
contracts); (v) capital lease obligations of such Person; (vi) all of the obligations of such
Person arising from or with respect to any letter of credit, bankers acceptance, security purchase
facility, cash management arrangements or similar credit transactions; (vii) operating leases of
such Person (but only to the extent the terms of such leases expressly provide that the same
constitute Senior Indebtedness); and (viii) guarantees by such Person of any indebtedness or
obligations of others of the types described in clauses (i) through (vii) other than, in the case
of the Parent Guarantor, the Guarantee and (b) any modifications, refundings, deferrals, renewals,
or extensions of any of the foregoing or any other evidence of indebtedness issued in exchange
therefor;
provided
,
however
, that Senior Indebtedness shall not include the
obligations of such Person in respect of: (w) trade accounts payable of such Person; (x) any
indebtedness incurred by such Person for the purchase of goods or materials or for services
obtained in the ordinary course of business to the extent that the same is incurred from, and owed
to, the vendor of such goods or materials or the provider of such services; (y) any indebtedness or
other obligation of such Person which by the terms of the instrument creating or evidencing it is
expressly made equal in rank and payment with or subordinated to the LoTS
SM
or the
Guarantee, as the case may be; and (z) indebtedness owed by such Person to its Subsidiaries.
Telerate Page 3750
means the display designated on page 3750 on MoneyLine Telerate
(or on any successor or substitute page of such service, or any successor to or substitute for such
service, providing rate quotations comparable to those provided on such page on the date hereof).
Treasury Yield
means, with respect to any Redemption Date applicable to the
LoTS
SM
, 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.
-7-
Trustee
means the Person named as the Trustee in the preamble of this Eighth
Supplemental Indenture until a successor Person shall have become such pursuant to the applicable
provisions of the Indenture, and thereafter Trustee shall mean such successor Person.
Section 1.2
Rules of Construction
. In addition to the Rules of Construction under Section 1.04 of
the Indenture, the following provisions also shall be applied wherever appropriate herein:
(a) any references herein to a particular Section, Article, or Exhibit means a Section or
Article of, or an Exhibit to, this Eighth Supplemental Indenture unless otherwise expressly stated
herein; and
(b) the Exhibits attached hereto are incorporated herein by reference and shall be considered
part of this Eighth Supplemental Indenture.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE LoTS
SM
Section 2.1
Designation and Principal Amount
. There is hereby authorized a series of Debt
Securities under the Indenture designated the 8.375% Fixed/Floating Rate Junior Subordinated Notes
due 2066, limited in aggregate principal amount to $300,000,000, the amount of which shall be as
set forth in any written order of the Company for the authentication and delivery of
LoTS
SM
pursuant to Sections 2.04 and 2.05 of the Indenture. The LoTS
SM
shall
be issued in denominations of $1,000 in principal amount and integral multiples thereof.
Section 2.2
Maturity
. The principal amount of the LoTS
SM
shall be payable on the
maturity date of the LoTS
SM
, which is August 1, 2066.
Section 2.3
Form
. The LoTS
SM
and the Trustees certificate of authentication thereon
shall be substantially in the form of Exhibit A.
The LoTS
SM
shall be issued only as Registered Securities. The LoTS
SM
shall be originally issued in the form of one or more Global Securities (the
Book-Entry
LoTS
SM
). Each of the Book-Entry LoTS
SM
shall represent such of the
Outstanding LoTS
SM
as shall be specified therein and shall provide that it shall
represent the aggregate amount of Outstanding LoTS
SM
from time to time endorsed thereon
and that the aggregate amount of Outstanding LoTS
SM
represented thereby may from time to
time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any
endorsement of Book-Entry LoTS
SM
to reflect the amount, or any increase or decrease in
the amount, of Outstanding LoTS
SM
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 such Book-Entry LoTS
SM
. The Company initially appoints DTC to act as
Depositary with respect to the Book-Entry LoTS
SM
.
-8-
Section 2.4
Registrar and Paying Agent
. The Company initially appoints the Trustee as Registrar
and paying agent with respect to the LoTS
SM
. The office or agency in the City and State
of New York where the LoTS
SM
may be presented for registration of transfer or exchange
and the Place of Payment for the LoTS
SM
shall initially be Wells Fargo Corporate Trust,
c/o DTC 1
st
Floor, TADS Department, 55 Water Street, New York, New York 10041.
Section 2.5
Transfer and Exchange
. The transfer and exchange of Book-Entry LoTS
SM
or
beneficial interests therein shall be effected through the Depositary, in accordance with Section
2.15 of the Indenture and the rules and procedures of the Depositary therefor.
Section 2.6
Interest Rates; Payment of Principal and Interest
.
(a)
Rates
.
(i)
Interest during the Fixed Rate Period
. During the Fixed Rate Period, (A)
the outstanding principal amount of the LoTS
SM
and (B) to the extent permitted by
applicable law, any Deferred Interest or overdue interest thereon will bear interest at a
per annum rate equal to the Fixed Rate until the commencement of the Floating Rate Period
or, if earlier, until the principal thereof and all Interest thereon is paid, compounded
semi-annually and payable (subject to the provisions of Article IV) semi-annually, in
arrears on each Semi-Annual Interest Payment Date.
(ii)
Interest during the Floating Rate Period
. During the Floating Rate
Period, (A) the outstanding principal amount of the LoTS
SM
and (B) to the extent
permitted by applicable law, any Deferred Interest or overdue interest thereon will bear
interest during each Quarterly Interest Period at a per annum rate equal to the applicable
Floating Rate for such period, until the principal thereof and all Interest thereon is paid,
compounded quarterly and payable (subject to the provisions of Article IV) quarterly in
arrears on each Quarterly Interest Payment Date. The Calculation Agent will calculate the
Floating Rate with respect to each Floating Rate Period and the amount of Interest payable
on each Quarterly Interest Payment Date as promptly as practicable according to the
appropriate method described herein. Promptly upon such determination, the Calculation
Agent will notify the Company and the Trustee of the Floating Rate for the Floating Rate
Period and the amount of Interest payable to each Holder on each Quarterly Interest Payment
Date. The Floating Rate determined by the Calculation Agent, absent manifest error, will be
binding and conclusive upon the beneficial owners and Holders of the LoTS
SM
, the
Company and the Trustee.
(b)
Payment of Interest to Record Holders of the Book-Entry LoTS
SM
. Payments
of principal of, premium, if any, and Interest due on the LoTS
SM
representing Book-Entry
LoTS
SM
on any Interest Payment Date, upon redemption or at maturity will be made
available to the Trustee by 11:00 a.m., New York City time, on the applicable maturity date,
Redemption Date, or Interest Payment 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 succeeding Business Day;
provided
,
however
, that, during the
Floating Rate Period, if such next succeeding Business Day falls in the next succeeding calendar
year, then such payments will be made available to the Trustee by 11:00 a.m., New York City
-9-
time, on the immediately preceding Business Day. As soon as possible thereafter, the Trustee will
make such payments to the Depositary. Other than in connection with the maturity or early
redemption of the LoTS
SM
or in connection with payment of Defaulted Interest, Interest
on the LoTS
SM
may be paid only on an Interest Payment Date. The regular record date for
Interest payable on the LoTS
SM
on any Interest Payment Date during the Fixed Rate Period
shall be the January 15 or July 15, as the case may be, immediately preceding such Interest Payment
Date and during the Floating Rate Period shall be the January 15, April 15, July 15 or October 15,
as the case may be, immediately preceding such Interest Payment Date.
(c) The amount of Interest payable on any Interest Payment Date during the Fixed Rate Period
will be computed on the basis of a 360-day year consisting of twelve 30-day months. The amount of
Interest payable on any Interest Payment Date during the Floating Rate Period will be computed on
the basis of a 360-day year and the actual number of days elapsed. During the Floating Rate
Period, the amount of Interest payable to any Holder of the LoTS
SM
on any Interest
Payment Date will be computed by multiplying (i) the applicable Floating Rate in effect for the
Quarterly Interest Period or portion thereof in respect of which the Interest payment is made by
(ii) a fraction, (A) the numerator of which will be the actual number of days in such Quarterly
Interest Period (or portion thereof) (determined by including the first day thereof and excluding
the last day thereof) and (B) the denominator of which will be 360, and (iii) multiplying the
product obtained thereby by the sum of (A) Outstanding principal amount of the LoTS
SM
held by such Holder and (B) the amount of any Deferred Interest then existing in respect of such
LoTS
SM
held by such Holder on the first day of the related Interest Period.
(d) To the extent permitted by applicable law, Interest not paid when due hereunder,
including, without limitation, all Deferred Interest and overdue Interest, shall in accordance with
Section 2.6(a), until paid, compound (i) semi-annually at the Fixed Rate on each Semi-Annual
Interest Payment Date during the Fixed Rate Period and (ii) quarterly at the applicable Floating
Rate on each Quarterly Interest Payment Date during the Floating Rate Period.
(e) If the Company shall make a partial payment of Interest on any Interest Payment Date, such
payment shall, with respect to the LoTS
SM
, be applied, first, to Deferred Interest until
all such Deferred Interest has been paid and, second, to any Current Interest.
(f) To the extent that the provisions of this Section 2.6 are inconsistent with the provisions
of Article II of the Indenture, the provisions of this Section 2.6 shall control.
ARTICLE III
REDEMPTION OF THE LoTS
SM
Section 3.1
Optional Redemption
. Subject to the provisions of Article III of the Indenture, the
Company shall have the option to redeem the LoTS
SM
for cash:
(a) in whole or in part, at any time and from time to time prior to August 1, 2016, at the
Make-Whole Optional Redemption Price; and
-10-
(b) in whole or in part, at any time and from time to time on or after August 1, 2016, at the
Optional Redemption Price.
Section 3.2
Certain Redemption Procedures
. LoTS
SM
called for optional redemption shall
become due on the Redemption Date. Notices of optional redemption will be mailed at least 30 days
but not more than 60 days before the Redemption Date to each Holder of the LoTS
SM
to be
redeemed at its registered address. The notice of optional redemption for the LoTS
SM
will state, among other things, the amount of LoTS
SM
to be redeemed, the Redemption
Date, the method of calculating such Redemption Price, and the place(s) that payment will be made
upon presentation and surrender of LoTS
SM
to be redeemed. Unless the Company defaults
in payment of the Redemption Price, interest will cease to accrue on the Redemption Date with
respect to any LoTS
SM
that have been called for optional redemption. If less than all
the LoTS
SM
are redeemed at any time, the Trustee will select the LoTS
SM
to be
redeemed on a pro rata basis or by any other method the Trustee deems fair and appropriate.
The LoTS
SM
may be redeemed in part only in principal amounts that are integral
multiples of $1,000.
Section 3.3
No Sinking Fund
. The LoTS
SM
will not be entitled to the benefit of any
sinking fund.
ARTICLE IV
DEFERRAL OF INTEREST
Section 4.1
Optional Deferral of Interest
.
(a) The Company shall have the right, at any time and from time to time during the term of the
LoTS
SM
, to elect to defer payment of all or any portion of any Current Interest and/or
Deferred Interest otherwise due on the LoTS
SM
on any Interest Payment Date
(
Optional Deferral
);
provided
,
however
, that the Company may not (i)
elect to defer payment of Interest if an Event of Default has occurred and is continuing as of the
date of the Companys notice of its election to the Trustee, (ii) elect to defer payment of any
Interest otherwise due on any Interest Payment Date if the Company has deferred payment of some or
all of the Interest due on a number of consecutive Interest Payment Dates with respect to a number
of consecutive Interest Periods which, taken together as a single period, would exceed ten (10)
consecutive years, or (iii) elect to defer payment of any Interest due on the maturity date of the
LoTS
SM
, or, with respect to any LoTS
SM
being redeemed, on the Redemption Date
for such LoTS
SM
. No Interest on the LoTS
SM
shall be due and payable on any
Interest Payment Date during an Optional Deferral Period; however, Interest shall accrue on the
LoTS
SM
during such period in accordance with Sections 2.6(a) and 2.6(d).
(b) Following the termination of an Optional Deferral Period pursuant to clause (a) of the
definition of Optional Deferral Period, the Company may again elect pursuant to Section 4.1(a) to
make an Optional Deferral of Interest.
-11-
(c) On the Interest Payment Date on which the Company desires to terminate an Optional
Deferral Period, the Company shall pay all Deferred Interest and Current Interest due on such
Interest Payment Date. Such Interest shall be payable to the Holders of the LoTS
SM
in
whose names the LoTS
SM
are registered in the Debt Security Register for the
LoTS
SM
on the record date with respect to such Interest Payment Date.
Section 4.2
Notice of Deferrals
.
(a) The Company shall give written notice to the Trustee of any
election of an Optional Deferral pursuant to
Section 4.1
not fewer than ten (10) nor more
than sixty (60) Business Days prior to the applicable Interest Payment Date for which Interest on
the LoTS
SM
will be deferred, other than an Optional Deferral in the circumstances
described in Section 4.2(b). The Trustee shall forward such written notice promptly to each Holder
of the LoTS
SM
.
(b) In the case of an election of an Optional Deferral pursuant to Section 4.1 when the
Company or the Parent Guarantor would be prohibited pursuant to Section 12.03 of the Indenture from
paying Interest on the LoTS
SM
, the Company shall give written notice to the Trustee of
such election of an Optional Deferral not later than the time monies in respect of the Interest
payment on the applicable Interest Payment Date must be made available to the Trustee pursuant to
Section 2.6(b) hereof. The Trustee shall forward such written notice promptly to each Holder of
the LoTS
SM
.
ARTICLE V
CERTAIN COVENANTS
Section 5.1
Covenants in Indenture
. Holders of the LoTS
SM
shall not have the benefit
of and shall not be entitled to enforce the covenants contained in Sections 4.12 and 4.13 of the
Indenture.
Section 5.2
Restricted Payments
.
(a) Unless each of the following conditions has been satisfied:
(1) all unpaid Deferred Interest on the LoTS
SM
has been paid in full
as of the most recent Interest Payment Date;
(2) no Event of Default has occurred and is continuing; and
(3) the Parent Guarantor is not in default of its obligations under the
Guarantee;
then, subject to Section 5.2(b), (i) the Company and the Parent Guarantor will not declare or make
any distributions with respect to, or redeem, purchase, or make a liquidation payment with respect
to, any of their respective equity securities and (ii) the Company and the Parent Guarantor will
not, and will cause their respective Subsidiaries not to (A) make any payment of interest,
principal, or premium, if any, on or repay, repurchase, or redeem any of the Companys debt
securities (including securities similar to LoTS
SM
) that contractually rank equally with
or
-12-
junior to the LoTS
SM
or (B) make any guarantee payments with respect to the
securities described in clause (ii)(A) of this subsection (a).
(b) Notwithstanding the provisions of Section 5.2(a), the Company, the Parent Guarantor and
any of their respective Subsidiaries may take any of the following actions at any time, including
during an Optional Deferral Period: (i) make any distribution, redemption, liquidation, interest,
principal, or guarantee payment in the form of their respective equity securities; (ii) make any
regularly scheduled distribution payments declared prior to the occurrence of the relevant event
described in paragraphs (1) through (3) of Section 5.2(a) or the commencement of such Optional
Deferral Period; (iii) make any repurchases, redemptions, or other acquisitions of their respective
equity securities in connection with any employee benefit plans or any other contractual obligation
entered into prior to the occurrence of the relevant event described in paragraphs (1) through (3)
of Section 5.2(a) or the commencement of such Optional Deferral Period; (iv) make payments under
(1) the LoTS
SM
and securities similar to the LoTS
SM
that are pari passu with
the LoTS
SM
and (2) the Guarantee and similar guarantees associated with
any instruments that are pari passu with the LoTS
SM
, in each case, so long as any
such payments are made on a pro rata basis with the LoTS
SM
and the Guarantee,
respectively; (v) make payments or distributions in connection with a reclassification of their
respective equity securities,
provided
,
however
, that such reclassification does
not result in the issuance of securities senior to the LoTS
SM
; and (vi) purchase
fractional interests of their respective equity securities in connection with any split,
reclassification, or similar transaction.
(c) For the avoidance of doubt, nothing contained herein shall prevent the Company or the
Parent Guarantor from issuing any other securities, whether senior to, pari passu with or
subordinated to the LoTS
SM
, including securities having covenants and provisions the
same as or similar to those applicable to the LoTS
SM
.
ARTICLE VI
SUBORDINATION
Section 6.1
Agreement to Subordinate
. The LoTS
SM
shall be subordinated to
all Senior Indebtedness (as defined in this Eighth Supplemental Indenture) of the Company on the
terms and subject to the conditions set forth in Article XII of the Indenture, and each Holder of
LoTS
SM
issued hereunder by such Holders acceptance thereof acknowledges and agrees that
all LoTS
SM
shall be issued subject to the provisions of this Article VI and such Article
XII and that each Holder of LoTS
SM
, whether upon original issuance or upon transfer or
assignment thereof, accepts and agrees to be bound by such provisions. The LoTS
SM
shall
be Subordinated Debt Securities as such term is used in the Indenture, and, for purposes of the
LoTS
SM
only, and not for purposes of any other Debt Securities, all references in the
Indenture to Senior Indebtedness of the Company shall mean Senior Indebtedness of the Company as
defined in this Eighth Supplemental Indenture.
Section 6.2
Amendment and Restatement of Section 12.02 of the Base Indenture
. For
purposes of the LoTS
SM
only, and not for purposes of any other Debt Securities, Section
12.02 of the Base Indenture is hereby amended and restated in its entirety to read as follows:
-13-
Section 12.02
Liquidation, Dissolution, Bankruptcy
. Upon any payment
or distribution of the assets of the Company to creditors upon a total or partial
liquidation or a total or partial dissolution of the Company or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the
Company or its property:
(a) holders of Senior Indebtedness of the Company shall be entitled to receive
payment in full in cash of such Senior Indebtedness (including interest (if any),
accruing on or after the commencement of a proceeding in bankruptcy, whether or not
allowed as a claim against the Company in such bankruptcy proceeding) before Holders
of Subordinated Debt Securities of the
Company shall be entitled to receive any payment of principal of, or premium,
if any, or Interest on, the Subordinated Debt Securities; and
(b) until the Senior Indebtedness of the Company is paid in full, any such
distribution to which Holders of Subordinated Debt Securities would be entitled but
for this Article XII shall be made to holders of Senior Indebtedness of the Company
as their interests may appear, except that such Holders may receive securities
representing partnership interests of the Company and any debt securities of the
Company that are subordinated to Senior Indebtedness of the Company to at least the
same extent as the Subordinated Debt Securities of the Company.
Upon any payment or distribution of the assets of any Guarantor to creditors upon a
total or partial liquidation or a total or partial dissolution of such Guarantor or
in a bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to such Guarantor or its property:
(a) holders of Senior Indebtedness of such Guarantor shall be entitled to
receive payment in full in cash of such Senior Indebtedness (including interest (if
any), accruing on or after the commencement of a proceeding in bankruptcy, whether
or not allowed as a claim against such Guarantor in such bankruptcy proceeding)
before Holders of Subordinated Debt Securities shall be entitled to receive, under
such Guarantors guarantee of such Subordinated Debt Securities, any payment of
principal of, or premium, if any, or interest on, the Subordinated Debt Securities;
and
(b) until the Senior Indebtedness of such Guarantor is paid in full, any such
distribution to which Holders of Subordinated Debt Securities would be entitled
under such Guarantors guarantee but for this Article XII shall be made to holders
of Senior Indebtedness of such Guarantor as their interests may appear, except that
such Holders may receive securities representing partnership interests of such
Guarantor and any debt securities of such Guarantor that are subordinated to Senior
Indebtedness of such Guarantor to at least the same extent as the guarantee of the
Subordinated Debt Securities of such Guarantor.
-14-
Section 6.3
Amendment and Restatement of Section 12.03 of the Base Indenture
. For
purposes of the LoTS
SM
only, and not for purposes of any other Debt Securities, Section
12.03 of the Base Indenture is hereby amended and restated in its entirety to read as follows:
Section 12.03
Default on Senior Indebtedness
. The Company may not pay
the principal of, or premium, if any, or interest on, the Subordinated Debt
Securities or make any deposit pursuant to Article XI and may not repurchase, redeem
or otherwise retire (except, in the case of Subordinated Debt Securities
that provide for a mandatory sinking fund pursuant to Section 3.05, by the
delivery of Subordinated Debt Securities by the Company to the Trustee pursuant to
the first paragraph of Section 3.06) any Subordinated Debt Securities (collectively,
pay the Subordinated Debt Securities) if (a) any principal, premium or interest in
respect of Senior Indebtedness of the Company is not paid when due, including any
applicable grace period (including at maturity) or (b) any other default on Senior
Indebtedness of the Company occurs and the maturity of such Senior Indebtedness is
accelerated in accordance with its terms unless, in either case, the default has
been cured or waived and any such acceleration has been rescinded or such Senior
Indebtedness has been paid in full in cash; provided, however, that the Company may
pay the Subordinated Debt Securities without regard to the foregoing if the Company
and the Trustee receive written notice approving such payment from the
Representative of each issue of Designated Senior Indebtedness of the Company.
During the continuance of any default (other than a default described in clause (a)
or (b) of the preceding sentence) with respect to any Designated Senior Indebtedness
of the Company pursuant to which the maturity thereof may be accelerated immediately
without further notice (except such notice as may be required to effect such
acceleration) or the expiration of any applicable grace periods, the Company may not
pay the Subordinated Debt Securities for a period (a Payment Blockage Period)
commencing upon the receipt by the Company and the Trustee of written notice of such
default from the Representative of any Designated Senior Indebtedness of the Company
specifying an election to effect a Payment Blockage Period (a Blockage Notice) and
ending 179 days thereafter (or earlier if such Payment Blockage Period is terminated
by written notice to the Trustee and the Company from the Person or Persons who gave
such Blockage Notice, by repayment in full in cash of such Designated Senior
Indebtedness or because the default giving rise to such Blockage Notice is no longer
continuing). Notwithstanding the provisions described in the immediately preceding
sentence (but subject to the provisions contained in the first sentence of this
Section 12.03), unless the holders of such Designated Senior Indebtedness or the
Representative of such holders shall have accelerated the maturity of such
Designated Senior Indebtedness, the Company may resume payments on the Subordinated
Debt Securities after such Payment Blockage Period. Not more than one Blockage
Notice may be given in any consecutive 360-day period, irrespective of the number of
defaults with respect to any number of issues of Designated Senior Indebtedness
during such period, unless otherwise specified pursuant to Section 2.03 for the
Subordinated Debt Securities of a series; provided, however, that in no event may
the total number of
-15-
days during which any Payment Blockage Period or Periods is in
effect exceed 179 days in the aggregate during any 360 consecutive day period. For
purposes of this Section 12.03, no default or event of default which existed or was
continuing on the date of the commencement of any Payment Blockage Period with
respect to the Designated Senior Indebtedness of the Company initiating such Payment
Blockage Period shall be, or be made, the basis of the commencement of a subsequent
Payment Blockage Period by the Representative of such Designated Senior
Indebtedness, whether or not within a period of 360
consecutive days, unless such default or event of default shall have been cured
or waived for a period of not less than 90 consecutive days.
No Guarantor may make a payment or distribution in respect of its guarantee of
any Subordinated Debt Securities (make a guarantee payment on Subordinated Debt
Securities) if (a) any principal, premium or interest in respect of Senior
Indebtedness of such Guarantor is not paid when due, including any applicable grace
period (including at maturity) or (b) any other default on Senior Indebtedness of
such Guarantor occurs and the maturity of such Senior Indebtedness is accelerated in
accordance with its terms unless, in either case, the default has been cured or
waived and any such acceleration has been rescinded or such Senior Indebtedness has
been paid in full in cash; provided, however, that such Guarantor may make a
guarantee payment on the Subordinated Debt Securities without regard to the
foregoing if such Guarantor and the Trustee receive written notice approving such
payment from the Representative of each issue of Designated Senior Indebtedness of
such Guarantor. During the continuance of any default (other than a default
described in clause (a) or (b) of the preceding sentence) with respect to any
Designated Senior Indebtedness of such Guarantor pursuant to which the maturity
thereof may be accelerated immediately without further notice (except such notice as
may be required to effect such acceleration) or the expiration of any applicable
grace periods, such Guarantor may not make a guarantee payment on Subordinated Debt
Securities for a period (a Payment Blockage Period) commencing upon the receipt by
such Guarantor and the Trustee of written notice of such default from the
Representative of any Designated Senior Indebtedness specifying an election to
effect a Payment Blockage Period (a Blockage Notice) and ending 179 days
thereafter (or earlier if such Payment Blockage Period is terminated by written
notice to the Trustee and such Guarantor from the Person or Persons who gave such
Blockage Notice, by repayment in full in cash of such Designated Senior Indebtedness
or because the default giving rise to such Blockage Notice is no longer continuing).
Notwithstanding the provisions described in the immediately preceding sentence (but
subject to the provisions contained in the first sentence of this paragraph of this
Section 12.03), unless the holders of such Designated Senior Indebtedness or the
Representative of such holders shall have accelerated the maturity of such
Designated Senior Indebtedness, such Guarantor may resume payments under its
guarantee of any Subordinated Debt Securities after such Payment Blockage Period.
Not more than one Blockage Notice may be given in any consecutive 360-day period,
irrespective of the number of defaults with respect to any number of issues of
Designated Senior Indebtedness during such
-16-
period, unless otherwise specified
pursuant to Section 2.03 for the Subordinated Debt Securities of a series; provided,
however, that in no event may the total number of days during which any Payment
Blockage Period or Periods is in effect exceed 179 days in the aggregate during any
360 consecutive day period. For purposes of this Section 12.03, no default or event
of default which existed or was continuing on the date of the commencement of any
Payment Blockage Period with respect to the Designated Senior Indebtedness of such
Guarantor initiating such Payment Blockage Period shall be, or be made, the basis of
the
commencement of a subsequent Payment Blockage Period by the Representative of such
Designated Senior Indebtedness, whether or not within a period of 360 consecutive
days, unless such default or event of default shall have been cured or waived for a
period of not less than 90 consecutive days.
ARTICLE VII
GUARANTEE OF THE LoTS
SM
Section 7.1
Guarantee of the LoTS
SM
. In accordance with Article XIV of the
Indenture, the LoTS
SM
, subject to Section 7.2, shall be fully, unconditionally and
absolutely guaranteed by the Parent Guarantor (the
Guarantee
) and are hereby designated
as entitled to the benefits of the Guarantee of the Parent Guarantor. Initially, there shall be no
Subsidiary Guarantors.
Section 7.2
Subordination of Guarantee
. The obligations of the Parent Guarantor under
the Guarantee shall be subordinated to all Senior Indebtedness (as defined in this Eighth
Supplemental Indenture) of the Parent Guarantor on the terms and subject to the conditions set
forth in Article XII of the Indenture, and each Holder of the LoTS
SM
issued hereunder by
such Holders acceptance thereof, acknowledges and agrees that the Guarantee shall be issued
subject to the provisions of this Section 7.2 and such Article XII and that each Holder of
LoTS
SM
, whether upon original issuance or upon transfer or assignment thereof, accepts
and agrees to be bound by such provisions. The Guarantee of the Parent Guarantor is a Guarantee of
Subordinated Debt Securities, and, for purposes of the LoTS
SM
only, and not for purposes
of any other Debt Securities, all references in the Indenture to Senior Indebtedness of the Parent
Guarantor shall mean Senior Indebtedness, as defined in this Eighth Supplemental Indenture, of the
Parent Guarantor.
ARTICLE VIII
APPLICABILITY OF DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1
Applicability of Defeasance and Covenant Defeasance
. The
LoTS
SM
will be subject to satisfaction, defeasance and discharge pursuant to Article XI
of the Indenture in accordance with the provisions of such Article.
-17-
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES OF THE TRUSTEE AND HOLDERS OF LoTS
SM
Section 9.1
Amendment and Restatement of Section 6.01 of the Base Indenture
.
For purposes of the LoTS
SM
only, and not for purposes of any other Debt Securities,
Section 6.01 of the Base Indenture is hereby amended and restated in its entirety to read as
follows:
Section 6.01
Events of Default
. If any one or more of the following
shall have occurred and be continuing with respect to the LoTS
SM
(each of
the following an
Event of Default
):
(a) failure to pay principal on the LoTS
SM
when due;
(b) failure to pay Interest on the LoTS
SM
when due and such default
continues for thirty (30) days (it being understood that the deferral of Interest as
permitted by
Article IV
is not a default in payment of Interest on the
LoTS
SM
);
(c) failure to pay Interest on the LoTS
SM
in full on the first
Interest Payment Date that is more than a period of ten (10) consecutive years after
the beginning of an Optional Deferral Period that has continued throughout such ten
(10) consecutive year period and is continuing;
(d) the occurrence of a Bankruptcy Event with respect to the Company or the
Parent Guarantor; or
(e) the Guarantee ceases to be in full force and effect or is declared null and
void in a judicial proceeding;
then, and in each and every case that an Event of Default described in clause (a),
(b), (c), and (e) with respect to the LoTS
SM
at the time Outstanding
occurs and is continuing, unless the principal of, premium, if any, and Interest on
all the LoTS
SM
shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
LoTS
SM
then Outstanding hereunder, by notice in writing to the Company
(and to the Trustee if given by Holders), may, and the Trustee at the request of
such Holders shall, declare the principal of, premium, if any, and Interest on all
the LoTS
SM
to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and payable, anything
in the LoTS
SM
, the Indenture or in this Eighth Supplemental Indenture
contained to the contrary notwithstanding. If an Event of Default described in
clause (d) occurs, then and in each and every such case, unless the principal of,
premium, if any, and Interest on all the LoTS
SM
shall have become due and
payable, the principal of, premium, if any, and Interest on all the
LoTS
SM
then Outstanding hereunder shall ipso facto become and be
immediately due and payable without any declaration or other act
-18-
on the part of the
Trustee or any Holders, anything in the LoTS
SM
, the Indenture or in this
Eighth Supplemental Indenture contained to the contrary notwithstanding.
The Holders of a majority in aggregate principal amount of the
LoTS
SM
then Outstanding by written notice to the Trustee may rescind an
acceleration and
annul its consequences if the rescission would not conflict with any judgment or
decree of a court of competent jurisdiction already rendered and if all existing
Events of Default with respect to the LoTS
SM
have been cured or waived
except nonpayment of principal, premium, if any, or Interest that has become due
solely because of acceleration. Upon any such rescission, the parties hereto shall
be restored respectively to their several positions and rights hereunder, and all
rights, remedies, and powers of the parties hereto shall continue as though no such
proceeding had been taken.
ARTICLE X
MISCELLANEOUS
Section 10.1
Ratification of Base Indenture
. The Base Indenture, as amended and
supplemented by this Eighth Supplemental Indenture, is in all respects ratified and confirmed, and
this Eighth Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to
the extent herein and therein provided;
provided
,
however
, that the provisions of
this Eighth Supplemental Indenture apply solely with respect to the LoTS
SM
. The
Indenture shall, solely in respect of the LoTS
SM
, be deemed a junior subordinated
indenture.
Section 10.2
No Recourse to General Partner
. No recourse under or upon any
obligation, covenant, or agreement contained in this Eighth Supplemental Indenture or the Indenture
or for any claim based thereon or otherwise in respect thereof, shall be had (a) against the
General Partner or the general partner of the Parent Guarantor or any other partner of, or any
Person which owns an interest directly or indirectly in, the Company, the Parent Guarantor or such
general partners or (b) against any past, present, or future director, manager, officer, employee,
agent, member or partner, as such, of the Company, the Parent Guarantor or such general partners,
under any rule of law, statute, or constitutional provision or otherwise, all such liability being
expressly waived and released by the execution hereof by the Trustee and as part of the
consideration for the issuance of the LoTS
SM
.
Section 10.3
Separateness
. Each holder of LoTS
SM
by its acceptance thereof
acknowledges (a) the separateness as of the date hereof of the Company and the Parent Guarantor
from each other and from other Persons, (b) that each of the Company and the Parent Guarantor have
assets and liabilities that are separate from those of each other and from those of other Persons,
(c) that the LoTS
SM
and other obligations owing under the LoTS
SM
have not
been guaranteed by any Person, other than the Parent Guarantor and only to the extent explicitly
set forth herein, and (d) that, except as other Persons may expressly assume or guarantee any of
the LoTS
SM
or obligations thereunder, the Holders of the LoTS
SM
shall look
solely to the Company and its property and assets for the payment of any amounts payable pursuant
to the LoTS
SM
and for satisfaction of any obligations owing to the Holders of the
LoTS
SM
.
-19-
Section 10.4
Trustee Not Responsible for Recitals
. The recitals herein contained are
made by the Company and not by the Trustee, and the Trustee assumes no responsibility for the
correctness thereof. The Trustee makes no representation as to the validity or sufficiency of this
Eighth Supplemental Indenture.
Section 10.5
Governing Law
. This Eighth Supplemental Indenture and the
LoTS
SM
shall be deemed to be a contract made under the internal laws of the State of New
York, and for all purposes shall be construed in accordance with the laws of said State.
Section 10.6
Time is of the Essence
. Time is of the essence in performance of the
obligations under this Eighth Supplemental Indenture.
Section 10.7
Separability
. In case any one or more of the provisions contained in
this Eighth Supplemental Indenture or in the LoTS
SM
shall for any reason be held to be
invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provisions of this Eighth Supplemental Indenture or of the
LoTS
SM
, but this Eighth Supplemental Indenture and the LoTS
SM
shall be
construed as if such invalid or illegal or unenforceable provision had never been contained herein
or therein.
Section 10.8
Treatment of LoTS
SM
. By its acceptance of the
LoTS
SM
, each Holder and beneficial owner of the LoTS
SM
agrees to treat the
LoTS
SM
as indebtedness for all United States federal, state and local tax purposes.
Section 10.9
Counterparts
. This Eighth Supplemental Indenture may be executed in any
number of counterparts each of which shall be an original, but such counterparts shall together
constitute but one and the same instrument.
Section 10.10
Withholding
. Notwithstanding any other provision of the Indenture or
this Eighth Supplemental Indenture to the contrary, each Holder and beneficial owner of the
LoTS
SM
hereby authorizes the Company, if required by the Internal Revenue Code of 1986,
as amended, or by any other applicable legal requirement, to withhold any required amount from the
amounts payable by the Company hereunder to any Holder and/or beneficial owner of the
LoTS
SM
for payment to the appropriate taxing authority. Any amount so withheld from
such Person will be treated as a payment by the Company to such Person, except as otherwise
provided below. Each such Person agrees to file timely any agreement that is required by any
taxing authority in order
to avoid any withholding obligation that would otherwise be imposed on the Company. If the
amount required to be withheld with respect to such Person exceeds the amount payable to such
Person, such excess will be treated as a demand loan to such Person, payable within ten (10) days
after such time that the Company makes payment to the appropriate taxing authority and demand is
made on such Person to pay same.
-20-
IN WITNESS WHEREOF, the parties hereto have caused this Eighth Supplemental Indenture to be
duly executed and as of the day and year first above written.
|
|
|
|
|
|
|
|
|
ENTERPRISE PRODUCTS OPERATING L.P., as Issuer
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
Enterprise Products OLPGP, Inc.
|
|
|
|
|
Its:
|
|
General Partner
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ W. Randall Fowler
|
|
|
|
|
|
|
W. Randall Fowler
|
|
|
|
|
|
|
Senior Vice President and Treasurer
|
|
|
|
|
|
|
|
|
|
|
|
ENTERPRISE PRODUCTS PARTNERS L.P., as Parent Guarantor
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
Enterprise Products GP, LLC
|
|
|
|
|
Its:
|
|
General Partner
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ W. Randall Fowler
|
|
|
|
|
|
|
W. Randall Fowler
|
|
|
|
|
|
|
Senior Vice President and Treasurer
|
|
|
|
|
|
|
|
|
|
|
|
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Nancye Patterson
|
|
|
|
|
|
|
|
|
|
|
|
Name: Nancye Patterson
|
|
|
|
|
|
|
|
|
|
|
|
Title: Vice President
|
|
|
|
|
|
|
|
|
|
EXHIBIT A
FORM OF LoTS
SM
(FORM OF FACE OF LoTS
SM
)
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (
DTC
) (55 WATER STREET, 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 SUCCESSORS 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.
8.375% FIXED/FLOATING RATE JUNIOR SUBORDINATED NOTES DUE 2066
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 August 1, 2066
in such coin and currency of the United States of America as at the time of
|
|
|
*
|
|
To be included in a Book-Entry Note.
|
A-1
payment shall be legal tender for the payment of public and private debts, and to pay interest
as provided below.
From July 18, 2006 through but not including August 1, 2016 (or, if earlier, until the
principal thereof is paid) (the
Fixed Rate Period
), the outstanding principal amount
hereof and (to the extent that payment of such interest is enforceable under applicable law) any
Deferred Interest or overdue installment of Interest hereon will bear interest at the per annum
rate of 8.375% payable (subject to the provisions of the Indenture more fully described on the
reverse hereof that permit the Company to elect to defer payments of Interest) semi-annually in
arrears on February 1 and August 1, of each year commencing on February 1, 2007, compounded
semi-annually through the end of the Fixed Rate Period. From August 1, 2016 through but not
including the maturity date hereof (or, if earlier, until the principal thereof is paid) (the
Floating Rate Period
), the outstanding principal amount hereof and (to the extent that
payment of such interest is enforceable under applicable law) any Deferred Interest or overdue
installment of Interest hereon will bear interest during each Quarterly Interest Period at the
applicable Floating Rate for such Quarterly Interest Period calculated pursuant to the Indenture,
payable (subject to the provisions of the Indenture more fully described on the reverse hereof that
permit the Company to elect to defer payments of Interest) quarterly in arrears on each February 1,
May 1, August 1, and November 1, commencing November 1, 2016, compounded quarterly at such
prevailing Floating Rate through the end of the Floating Rate Period. Payments of Interest shall
be made to the person in whose name the LoTS
SM
are registered at the close of business
on the record date for such Interest Payment Date, which during the Fixed Rate Period shall be the
January 15 or July 15, as the case may be, immediately preceding each Interest Payment Date and
during the Floating Rate Period shall be the January 15, April 15, July 15, or October 15, as the
case may be, immediately preceding each Interest Payment Date (each, a
Regular Record
Date
).
Reference is made to the further provisions of the LoTS
SM
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 in the LoTS
SM
are an integral part of the
terms of the LoTS
SM
and by acceptance hereof the Holder of the LoTS
SM
agrees
to be subject to, and bound by, the terms and provisions set forth in each such legend.
The LoTS
SM
are a series of Debt Securities of an initial aggregate principal amount
of $300,000,000 designated as the 8.375% Fixed/Floating Rate Junior Subordinated Notes due 2066 of
the Company and are issued under and governed by the Indenture dated as of October 4, 2004 (the
Base Indenture
), duly executed and delivered by the Company, as issuer, and Enterprise
Products Partners L.P., as parent guarantor (the
Parent Guarantor
), to Wells Fargo Bank,
National Association, as trustee (the
Trustee
), as supplemented by the Eighth
Supplemental Indenture dated as of July 18, 2006, duly executed by the Company, the Parent
Guarantor and the Trustee (the
Eighth Supplemental Indenture
, and together with the Base
Indenture, the
Indenture
). The terms of the Indenture are incorporated herein by
reference. Any term defined in the Indenture has the same meaning when used herein.
A-2
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 the
LoTS
SM
in accordance with the terms of the Indenture without charge.
The LoTS
SM
shall not be valid or become obligatory for any purpose until the
Trustees Certificate of Authentication hereon shall have been manually signed by the Trustee under
the Indenture.
A-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed by its sole
General Partner.
Dated: July 18, 2006
|
|
|
|
|
|
|
|
|
ENTERPRISE PRODUCTS OPERATING L.P.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
Enterprise Products OLPGP, Inc.
|
|
|
|
|
Its:
|
|
General Partner
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
|
|
|
TRUSTEES CERTIFICATE OF AUTHENTICATION:
This is one of the Debt Securities of the series designated herein referred to in the
within-mentioned Indenture.
|
|
|
|
|
|
|
|
WELLS
FARGO BANK, NATIONAL ASSOCIATION, as Trustee
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
Authorized Signatory
|
|
|
A-4
[REVERSE OF SECURITY]
ENTERPRISE PRODUCTS OPERATING L.P.
8.375% FIXED/FLOATING RATE JUNIOR SUBORDINATED NOTES DUE 2066
The LoTS
SM
are one of a duly authorized issue of Debt Securities of the Company
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 Parent 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. The LoTS
SM
are of a series designated as the 8.375%
Fixed/Floating Rate Junior Subordinated Notes due 2066 of the Company, in initial aggregate
principal amount of $300,000,000 (the
LoTS
SM
).
1.
Interest.
During the Fixed Rate Period, the outstanding principal amount hereof and (to the extent that
payment of such interest is enforceable under applicable law) any Deferred Interest or overdue
installment of Interest hereon will bear interest at the per annum rate of 8.375% payable (subject
to the provisions of the Indenture relating to Interest deferrals more fully described below)
semi-annually in arrears on February 1 and August 1 of each year commencing on February 1, 2007,
compounded semi-annually through the end of the Fixed Rate Period. During the Floating Rate
Period, the outstanding principal amount hereof and (to the extent that payment of such interest is
enforceable under applicable law) any Deferred Interest or overdue installment of Interest hereon
will bear interest during each Quarterly Interest Period at the applicable Floating Rate for such
Quarterly Interest Period calculated pursuant to the Indenture, payable (subject to the provisions
of the Indenture relating to Interest deferrals more fully described below) quarterly in arrears on
each February 1, May 1, August 1 and November 1, commencing November 1, 2016, compounded quarterly
at such prevailing Floating Rate through the end of the Floating Rate Period.
During the Fixed Rate Period, the amount of Interest payable on any Interest Payment Date will
be computed on the basis of a 360-day year of twelve 30-day months. During the Floating Rate
Period, the amount of any Interest payable on any Interest Payment Date will be computed on the
basis of a 360-day year and the actual number of days elapsed. In the event that any date on which
Interest is payable on this LoTS
SM
is not a Business Day, then a payment of the Interest
payable on such date will be made on the next succeeding day which is a Business Day (and without
any interest or other payment in respect of any such delay), with the same force and effect as if
made on the date the payment was originally payable.
A-5
2.
Optional Deferral of Interest
.
Subject to the terms of the Indenture, the Company shall have the right, at any time and from
time to time during the term of the LoTS
SM
, to elect to defer payment of all or any
portion of any Current Interest and/or Deferred Interest otherwise due on the LoTS
SM
on
any Interest Payment Date. No Interest on the LoTS
SM
shall be due and payable on any
Interest Payment Date during an Optional Deferral Period; however, Interest shall accrue on the
LoTS
SM
during such period in accordance with the Eighth Supplemental Indenture.
3.
Method of Payment
.
The Company shall pay interest on the LoTS
SM
(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. 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
LoTS
SM
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 City of New
York, which initially will be Wells Fargo Corporate Trust, c/o DTC, 1st Floor, TADS Department, 55
Water Street, New York, New York 10041, 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 or at the option of the Holder, payment of interest on
LoTS
SM
in definitive form will be made by wire transfer of immediately available funds
to any account maintained in the United States, provided such Holder has requested such method of
payment and provided timely wire transfer instructions to the paying agent. The Holder must
surrender these LoTS
SM
to a paying agent to collect payment of principal.
4.
Paying Agent and Registrar
.
Initially, Wells Fargo 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 may act as paying agent.
5.
Indenture
.
The LoTS
SM
are 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.
The terms of the LoTS
SM
include those stated in the Indenture, those made part of
the Indenture by reference to the TIA, as in effect on the date of the Base Indenture, and those
terms stated in the Eighth Supplemental Indenture. The LoTS
SM
are subject to all such
terms, and Holders of Securities are referred to the Indenture, the Eighth Supplemental Indenture
and the TIA for a statement of them. The LoTS
SM
are junior subordinated obligations of
the Company and are not secured by any of the assets of the Company.
A-6
6.
Denominations; Transfer; Exchange
.
The LoTS
SM
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, LoTS
SM
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 LoTS
SM
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 LoTS
SM
. Without consent of any Holder
of LoTS
SM
, 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 LoTS
SM
. Any
such consent or waiver by the Holder of these LoTS
SM
(unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future Holders and owners
of these LoTS
SM
and any LoTS
SM
which may be issued in exchange or
substitution herefor, irrespective of whether or not any notation thereof is made upon these
LoTS
SM
or such other LoTS
SM
.
9.
Defaults and Remedies
.
Certain events of bankruptcy or insolvency are Events of Default that will result in the
principal amount of the LoTS
SM
, together with premium, if any, and Interest thereon,
becoming due and payable immediately upon the occurrence of such Events of Default. If any other
Event of Default with respect to the LoTS
SM
occurs and is continuing, then in every such
case the Trustee or the Holders of not less than 25% in aggregate principal amount of the
LoTS
SM
then Outstanding may declare the principal amount of all the LoTS
SM
,
together with premium, if any, and Interest thereon, 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, the Holders of a
majority in principal amount of the Outstanding LoTS
SM
, by written notice to the
Trustee, may rescind such declaration and annul its consequences if the rescission would not
conflict with any judgment or decree of a court already rendered and if all Events of Default with
respect to the LoTS
SM
, other than the nonpayment of the principal, premium, if any, 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 LoTS
SM
may not enforce the Indenture or the
LoTS
SM
except as provided in the Indenture. The Trustee may require indemnity or
security satisfactory to it before it enforces the Indenture or the
A-7
LoTS
SM
. Subject to certain limitations, Holders of a majority in aggregate principal
amount of the LoTS
SM
then Outstanding may direct the Trustee in its exercise of any
trust or power.
10.
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 Companys Affiliates, and may otherwise deal with the Company or its Affiliates as if it were
not the Trustee.
11.
Authentication
.
These LoTS
SM
shall not be valid until the Trustee signs the certificate of
authentication on the other side of these LoTS
SM
.
12.
Abbreviations and Defined Terms
.
Customary abbreviations may be used in the name of a Holder of LoTS
SM
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).
13.
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 LoTS
SM
as a
convenience to the Holders of the LoTS
SM
. No representation is made as to the accuracy
of such number as printed on the LoTS
SM
and reliance may be placed only on the other
identification numbers printed hereon.
14.
Absolute Obligation
.
No reference herein to the Indenture and no provision of the LoTS
SM
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 these LoTS
SM
in the manner, at
the respective times, at the rate and in the coin or currency herein prescribed.
15.
No Recourse
.
The General Partner and the general partner of the Parent Guarantor and their respective
directors, officers, employees, and members, as such, shall have no liability for any obligations
of any Guarantor or the Company under the LoTS
SM
, the Indenture, or any Guarantee or for
any claim based on, in respect of, or by reason of, such obligations or their creation. Each
Holder by accepting the LoTS
SM
waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the LoTS
SM
.
A-8
16.
Ranking
.
The LoTS
SM
rank junior and subordinate in rank and priority of payment to all of
the Companys Senior Indebtedness as more fully provided in Article XII of the Indenture and
Article VI of the Eighth Supplemental Indenture.
17.
Governing Law
.
The LoTS
SM
shall be construed in accordance with and governed by the laws of the
State of New York.
18.
Guarantee
.
Subject to Article XII of the Indenture and Articles VI and VII of the Eighth Supplemental
Indenture, the LoTS
SM
are fully and unconditionally guaranteed on an unsecured basis by
the Parent Guarantor. The Parent Guarantors obligations under the Guarantee rank junior and
subordinate in rank and priority of payment to all of the Parent Guarantors Senior Indebtedness.
19.
Reliance
.
The Holder, by accepting these LoTS
SM
, acknowledges and affirms that (i) it has
purchased the LoTS
SM
in reliance upon the separateness of Parent Guarantor and the
general partner of Parent Guarantor from each other and from any other Persons, including EPCO,
Inc., and (ii) Parent Guarantor and the general partner of Parent Guarantor have assets and
liabilities that are separate from those of other Persons, including EPCO, Inc.
A-9
NOTATION OF GUARANTEE
Subject to Article XII of the Indenture and Articles VI and VII of the Eighth Supplemental
Indenture, the Parent 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 LoTS
SM
and all other amounts due and payable
(subject to the right of the Company to defer Interest payments on the terms and conditions set
forth in Section 4.1 of the Eighth Supplemental Indenture) under the Indenture by the Company. The
Parent Guarantors obligations under such guarantee rank junior and subordinate in rank and
priority of payment to all of the Parent Guarantors Senior Indebtedness and constitute a guarantee
of Subordinated Debt Securities for all purposes under the Indenture.
The obligations of the Parent Guarantor to the Holders of Securities and to the Trustee
pursuant to its Guarantee and the Indenture are expressly set forth in Article XIV of the
Indenture, and are subject to the provisions of Article XII of the Indenture and Section 7.2 of the
Eighth Supplemental Indenture, and reference is hereby made to such documents 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)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
JT TEN
|
|
-
|
|
as joint tenants with
right of survivorship
and
not as tenants in common
|
|
under Uniform Gifts
to Minors Act
of
|
|
|
|
|
|
|
|
|
|
|
(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.
A-11
SCHEDULE OF INCREASES OR DECREASES
IN GLOBAL SECURITIES
*
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 99.1
Replacement Capital Covenant
, dated as of July 18, 2006 (this Replacement Capital
Covenant), by Enterprise Products Operating L.P., a Delaware limited partnership (together with
its successors and assigns, the Partnership), in favor of and for the benefit of each Covered
Debtholder (as defined below).
Recitals
A. On the date hereof, the Partnership is issuing $300,000,000 aggregate principal amount of
its 8.375% Fixed/Floating Rate Junior Subordinated Notes due 2066 (the LoTS
SM
).
B. This Replacement Capital Covenant is the Replacement Capital Covenant referred to in the
Prospectus Supplement, dated July 14, 2006, relating to the LoTS
SM
.
C. The Partnership, in entering into and disclosing the content of this Replacement Capital
Covenant in the manner provided below, is doing so with the intent that the covenants provided for
in this Replacement Capital Covenant be enforceable by each Covered Debtholder and that the
Partnership be estopped from breaching the covenants in this Replacement Capital Covenant, in each
case to the fullest extent permitted by applicable law.
D. The Partnership acknowledges that reliance by each Covered Debtholder upon the covenants in
this Replacement Capital Covenant is reasonable and foreseeable by the Partnership and that the
breach by the Partnership of such covenants could result in injury or damages to a Covered
Debtholder.
NOW, THEREFORE,
the Partnership hereby covenants and agrees as follows in favor of and for the
benefit of each Covered Debtholder.
SECTION 1.
Definitions
. Capitalized terms used in this Replacement Capital Covenant (including the
Recitals) have the meanings set forth in Schedule I hereto.
SECTION 2.
Limitations on Redemption and Repurchase of LoTS
SM
. The Partnership hereby
promises and covenants to and for the benefit of each Covered Debtholder that the Partnership shall
not redeem or repurchase all or any part of the LoTS
SM
on or before August 1, 2036
except to the extent that the total redemption or repurchase price paid therefor is equal to or
less than the sum of (i) the Applicable Percentage of the aggregate net cash proceeds received by
the Partnership, Enterprise Parent or their respective Subsidiaries from Non-Affiliates during the
180 days prior to the applicable redemption or repurchase date from the issuance and sale of Common
Units or Subordinated Units of the Partnership or Enterprise Parent plus (ii) 100% of the aggregate
net cash proceeds received by the Partnership, Enterprise Parent or their respective Subsidiaries
from Non-Affiliates during the 180 days prior to the applicable redemption or repurchase date from
the issuance and sale of
Replacement Capital Securities of the Partnership or Enterprise Parent (other than Common
Units or Subordinated Units).
SECTION 3.
Covered Debt
. (a) The Partnership represents and warrants that the Initial Covered Debt is
Eligible Debt.
(b) (i) During the period commencing on the earlier of (x) the date two years and 30 days
prior to the final maturity date for the then effective Covered Debt and (y) the date on which the
Partnership gives notice of redemption of the then effective Covered Debt, if such redemption is in
whole or in part and, after giving effect to such redemption, the outstanding principal of such
Covered Debt would be less than $100,000,000, or (ii) if earlier than the date specified in clauses
(x) and (y) of this Section 3(b)(i), on the date on which Enterprise Parent, the Partnership or a
Subsidiary of the Partnership repurchases the then effective Covered Debt in whole or in part and,
after giving effect to such repurchase, the outstanding principal amount of such Covered Debt would
be less than $100,000,000, and ending on the applicable Redesignation Date, the Partnership shall
identify the series of Eligible Debt that will become the Covered Debt on the related Redesignation
Date in accordance with the following procedures:
(A) the Partnership shall identify each series of its then outstanding long-term
indebtedness for money borrowed that is Eligible Debt;
(B) if only one series of the Partnerships then outstanding long-term indebtedness for
money borrowed is Eligible Debt, such series shall become the Covered Debt commencing on the
related Redesignation Date;
(C) if the Partnership has more than one outstanding series of long-term indebtedness
for money borrowed that is Eligible Debt, then the Partnership shall identify a specific
series that has a final maturity date that is at least three years after the date on which
the Partnership is applying the procedures in this Section 3(b) and such series shall become
the Covered Debt on the upcoming Redesignation Date;
(D) the series of outstanding long-term indebtedness for money borrowed that is
determined to be Covered Debt pursuant to clause (B) or (C) above shall be the Covered Debt
for purposes of this Replacement Capital Covenant for the period commencing on the related
Redesignation Date and continuing to but not including the Redesignation Date as of which a
new series of outstanding long-term indebtedness is next determined to be the Covered Debt
pursuant to the procedures set forth in this Section 3(b); and
(E) in connection with such identification of a new series of Covered Debt, the
Partnership shall give the notice provided for in Section 3(d) within the time frame
provided for in such section.
(c) Notwithstanding any other provisions of this Replacement Capital Covenant, if a series of
Eligible Senior Debt has become and is the Covered Debt in accordance with Section 3(b), on the
date on which the Partnership issues a new series of Eligible
Subordinated Debt, then immediately upon such issuance such series shall become the Covered
Debt and the applicable series of Eligible Senior Debt shall cease to be Covered Debt.
(d)
Notice
. In order to give effect to the intent of the Partnership described in Recitals C
and D, the Partnership covenants that (a) simultaneously with the execution of this
-2-
Replacement
Capital Covenant, or as soon as practicable after the date hereof, it shall give notice to the
Holders of the Initial Covered Debt, in the manner provided in the indenture, fiscal agency
agreement or other instrument relating to the Initial Covered Debt, of this Replacement Capital
Covenant and the rights granted to the Covered Debtholders hereunder; (b) so long as Enterprise
Parent or the Partnership is a reporting company under the Securities Exchange Act, Enterprise
Parent or the Partnership, as the case may be, will include in each annual report filed after the
date hereof with the Commission on Form 10-K under the Securities Exchange Act a description of the
covenant set forth in Section 2 and identify the series of long-term indebtedness for borrowed
money that is Covered Debt as of the date such Form 10-K is filed with the Commission; (c) if a
series of the Partnerships long-term indebtedness for money borrowed (1) becomes Covered Debt or
(2) ceases to be Covered Debt, give notice of such occurrence within 30 days to the holders of such
long-term indebtedness for money borrowed in the manner provided for in the indenture, fiscal
agency agreement or other instrument under which such long-term indebtedness for money borrowed was
issued and report such change in the Partnerships next quarterly report on Form 10-Q or annual
report on Form 10-K, as applicable; (d) if, and only if, neither Enterprise Parent nor the
Partnership is a reporting company under the Securities Exchange Act, post on its website the
information otherwise required to be included in Securities Exchange Act filings pursuant to
clauses (b) and (c) above; and (e) promptly upon request by any Holder of Covered Debt, provide
such Holder with an executed copy of this Replacement Capital Covenant.
SECTION 4.
Termination and Amendment
. (a) The obligations of the Partnership pursuant to this
Replacement Capital Covenant shall remain in full force and effect until the earliest date (the
Termination Date) to occur of (i) August 1, 2036, (ii) the date, if any, on which the Holders of
at least a majority of the outstanding principal amount of the then effective series of Covered
Debt consent or agree in writing to the termination of the obligations of the Partnership hereunder
and (iii) the date on which the Partnership ceases to have any series of outstanding Eligible
Senior Debt or Eligible Subordinated Debt (in each case without giving effect to the rating
requirement in clause (ii) of the definition of each such term). From and after the Termination
Date, the obligations of the Partnership pursuant to this Replacement Capital Covenant shall be of
no further force and effect with respect to the Holders, the Covered Debtholders or otherwise.
(b) This Replacement Capital Covenant may be amended or supplemented from time to time by a
written instrument signed by the Partnership with the consent of the Holders of at least a majority
of the outstanding principal amount of the then effective series of Covered Debt,
provided
that this Replacement Capital Covenant may be amended or supplemented from time to time by a
written instrument signed by the Partnership (and without the consent of the Holders) if the Board
of Directors of the General Partner has determined that such amendment or supplement is not adverse
to the Holders of the then effective series of Covered Debt.
(c) For purposes of Sections 4(a) and 4(b), the Holders whose consent or agreement is required
to terminate, amend or supplement this Replacement Capital Covenant or the obligations of the
Partnership hereunder shall be the Holders of the then effective Covered Debt as of a record date
established by the Partnership that is not more than 60 days prior to the
-3-
date on which the
Partnership proposes that such termination, amendment or supplement becomes effective.
SECTION 5.
Miscellaneous
. (a)
This Replacement Capital Covenant shall be governed by and construed in
accordance with the laws of the State of New York without regard to choice of law principles.
(b) This Replacement Capital Covenant shall be binding upon the Partnership and its successors
and assigns and shall inure to the benefit of the Covered Debtholders as they exist from
time-to-time (it being understood and agreed by the Partnership that any Person who is a Covered
Debtholder, if such Person initiates a claim or proceeding to enforce its rights under this
Replacement Capital Covenant after the Partnership has violated its covenants in Section 2 and
before the series of long-term indebtedness for money borrowed held by such Person is no longer
Covered Debt, such Persons rights under this Replacement Capital Covenant shall not terminate by
reason of such series of long-term indebtedness for money borrowed no longer being Covered Debt
until the termination of such claim or proceeding). Except as specifically provided herein, this
Replacement Capital Covenant shall have no other beneficiaries and no other Persons are entitled to
rely on this Replacement Capital Covenant.
(c) All demands, notices, requests and other communications to the Partnership under this
Replacement Capital Covenant shall be deemed to have been duly given and made if in writing and (i)
if served by personal delivery upon the Partnership, on the day so delivered (or, if such day is
not a Business Day, the next succeeding Business Day), (ii) if delivered by registered post or
certified mail, return receipt requested, or sent to the Partnership by a national or international
courier service, on the date of receipt by the Partnership (or, if such date of receipt is not a
Business Day, the next succeeding Business Day), or (iii) if sent by telecopier, on the day
telecopied, or if not a Business Day, the next succeeding Business Day,
provided
that the
telecopy is promptly confirmed by telephone confirmation thereof, and in each case to the
Partnership at the address set forth below, or at such other address as the Partnership may
thereafter post on its website as the address for notices under this Replacement Capital Covenant:
1100 Louisiana Street, 18
th
Floor
Houston, Texas 77002
Telecopy: (713) 803-2905
Attn: Chief Legal Officer
-4-
IN WITNESS WHEREOF
, the Partnership has caused this Replacement Capital Covenant to be
executed by its duly authorized officer as of the day and year first above written.
|
|
|
|
|
|
|
|
|
ENTERPRISE PRODUCTS OPERATING L.P.
|
|
|
|
|
|
|
|
|
|
|
|
By: Enterprise Products OLPGP, Inc.
|
|
|
|
|
Its: General Partner
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ W. Randall Fowler
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: W. Randall Fowler
|
|
|
|
|
Title: Senior Vice President and Treasurer
|
-5-
Schedule I
Definitions
Alternative Payment Mechanism
means, with respect to the subordinated debt securities
referred to in the definition of Debt Exchangeable for Equity, that such securities or related
transaction agreements include a provision to the effect that, if the right to defer Distributions
at its option pursuant to an Optional Deferral Provision has been exhausted, the Partnership or
Enterprise Parent may or shall (or may or shall use its commercially reasonable efforts to), as
applicable, unless a Market Disruption Event has occurred and is continuing, (i) issue and sell its
Common Units, Subordinated Units and/or Non Cumulative Preferred Units during the 180 days prior to
each applicable Distribution Date, in an amount such that the net proceeds of such sale shall equal
or exceed the amount of such Distributions and (ii) the Partnership shall apply the net proceeds of
such sale to pay such Distributions in full.
Applicable Percentage
means, in respect of any issuance and sale of Common Units or
Subordinated Units during the 180 days prior to the date of redemption or repurchase of any
LoTS
SM
, (i) if such LoTS
SM
are redeemed or repurchased after the date hereof
and before August 1, 2016, 200% and (ii) if such LoTS
SM
are redeemed or repurchased on
or after August 1, 2016 and on or prior to August 1, 2036, 400%.
Board of Directors
means the board of directors of the General Partner or a duly constituted
committee thereof. If the Partnership shall change its form of entity to other than a limited
partnership, references to board of directors of the General Partner shall mean the board of
directors (or other comparable governing body) of the Partnership (as so changed).
Business Day
means each day other than (i) a Saturday or Sunday or (ii) a day on which
banking institutions in Houston, Texas or New York, New York are authorized or obligated by law,
regulation or executive order to close.
Commission
means the United States Securities and Exchange Commission.
Common Units
means (i) common limited partnership interests of Enterprise Parent, including
those interests defined as Common Units in the Parent Partnership Agreement (including interests
sold pursuant to distribution reinvestment plans, unit purchase plans and employee benefit plans)
and (ii) interests of the Partnership possessing substantially similar characteristics.
Covered Debtholder
means each Person (whether a Holder or a beneficial owner holding through
a participant in a clearing agency) that buys, holds or sells long-term indebtedness for money
borrowed of the Partnership during the period that such long-term indebtedness for money borrowed
is Covered Debt, for so long as such long-term indebtedness for money borrowed remains Covered Debt
(except as otherwise provided in Section 5(b)),
provided
that a Person who has sold or
otherwise disposed of all of its right, title and interest in Covered Debt shall cease to be a
Covered Debtholder at the time of such sale or other disposition if, during the time that such
Person owned such Covered Debt, the Partnership did not breach or repudiate its obligations
hereunder. If the Partnership breached or repudiated its obligations hereunder while such Person
was an owner of Covered Debt, such Person shall cease to be a
Covered Debtholder on the later of (i) one year after such sale or other disposition or (ii)
the termination of any legal proceeding brought by such Person before the date in clause (i) to
enforce the obligations of the Partnership hereunder.
Covered Debt
means (i) at the date of this Replacement Capital Covenant and continuing to
but not including the first Redesignation Date, the Initial Covered Debt and (ii) thereafter,
commencing with each Redesignation Date and continuing to but not including the next succeeding
Redesignation Date, the Eligible Debt identified pursuant to Section 3(b) as the Covered Debt for
such period.
Debt Exchangeable For Equity
means a security (or combination of securities) that (i) gives
the holder a beneficial interest in (a) subordinated debt of the issuer thereof interest on which
may be deferred for one year or more beyond the settlement of the forward contract and, commencing
with the date two years after the beginning of an interest deferral period, will be paid pursuant
to an Alternative Payment Mechanism and (b) a fractional interest in a contract to purchase Common
Units, Subordinated Units or Non Cumulative Preferred Units containing the features set forth in
(a)(iii) of the definition of Replacement Capital Securities, (ii) includes a remarketing feature
pursuant to which such subordinated debt of such issuer is remarketed to new investors within five
years from the date of issuance of the security, (iii) provides for the proceeds raised in the
remarketing to be used to purchase Common Units, Subordinated Units or such Non Cumulative
Preferred Units of the issuer, and (iv) after the issuance of such Common Units, Subordinated Units
or such Non Cumulative Preferred Units, provides the holder of the security with a beneficial
interest in such Common Units, Subordinated Units or such Non Cumulative Preferred Units.
Distribution Date
means, as to any securities or combination of securities, the dates on
which periodic Distributions on such securities are scheduled to be made.
Distribution Period
means, as to any securities or combination of securities, each period
from and including a Distribution Date for such securities to but not including the next succeeding
Distribution Date for such securities.
Distributions
means, as to a security or combination of securities, dividends, interest
payments or other distributions to the holders thereof.
Eligible Debt
means, at any time, Eligible Subordinated Debt or, if no Eligible Subordinated
Debt is then outstanding, Eligible Senior Debt.
Eligible Senior Debt
means, at any time in respect of any issuer, each series of outstanding
long-term indebtedness for money borrowed of such issuer that (i) upon a bankruptcy, liquidation,
dissolution or winding up of the issuer, ranks most senior among the issuers then outstanding
classes of long-term indebtedness for money borrowed, (ii) is then assigned a rating by at least
one NRSRO (
provided
that this clause shall apply on a Redesignation Date only if on such
date the issuer has outstanding long-term indebtedness for money borrowed that satisfies the
requirements of clauses (i), (iii) and (iv) that is then assigned a rating by at least one NRSRO),
(iii) has an aggregate outstanding principal amount of not less than $100,000,000, and (iv) was
issued through or with the assistance of a commercial or
investment banking firm or firms acting as underwriters, initial purchasers or placement or
distribution agents. For purposes of this definition as applied to securities with a CUSIP number,
each issuance of long-term indebtedness for money borrowed that has (or, if such indebtedness is
held by a trust or other intermediate entity established directly or indirectly by the issuer, the
securities of such intermediate entity have) a separate CUSIP number shall be deemed to be a series
of the issuers long-term indebtedness for money borrowed that is separate from each other series
of such indebtedness.
Eligible Subordinated Debt
means, at any time in respect of any issuer, each series of the
issuers then outstanding long-term indebtedness for money borrowed that (i) upon a bankruptcy,
liquidation, dissolution or winding up of the issuer, ranks subordinate to the issuers then
outstanding series of long-term indebtedness for money borrowed that ranks most senior, but ranks
senior to the LoTS and other indebtedness for borrowed money ranking pari passu with the LoTS, (ii)
is then assigned a rating by at least one NRSRO (
provided
that this clause (ii) shall apply
on a Redesignation Date only if on such date the issuer has outstanding long-term indebtedness for
money borrowed that satisfies the requirements in clauses (i), (iii) and (iv) that is then assigned
a rating by at least one NRSRO), (iii) has an aggregate outstanding principal amount of not less
than $100,000,000, and (iv) was issued through or with the assistance of a commercial or investment
banking firm or firms acting as underwriters, initial purchasers or placement or distribution
agents. For purposes of this as applied to securities with a CUSIP number, each issuance of
long-term indebtedness for money borrowed that has (or, if such indebtedness is held by a trust or
other intermediate entity established directly or indirectly by the issuer, the securities of such
intermediate entity have) a separate CUSIP number shall be deemed to be a series of the issuers
long-term indebtedness for money borrowed that is separate from each other series of such
indebtedness.
Enterprise Parent
means Enterprise Products Partners L.P., a Delaware limited partnership,
and its successors and assigns.
Explicit Replacement Covenant
means, as to any security or combination of securities, that
the issuer thereof has made a covenant substantially similar to the Replacement Capital Covenant to
the effect that such issuer will redeem or repurchase such securities only if and to the extent
that the total redemption or repurchase price is equal to or less than the applicable percentage
provided herein of net proceeds received from the issuance and sale of Replacement Capital
Securities, substantially as defined herein but as applied to such securities instead of to the
LoTS
SM
, raised within 180 days prior to the applicable redemption or repurchase date,
and that the governing board or body of such issuer has determined that such covenant is binding on
such issuer for the benefit of one or more series of such issuers long-term indebtedness for money
borrowed to the same extent as this Replacement Capital Covenant is binding on the Partnership for
the benefit of the Covered Debtholders of the Initial Covered Debt.
Eighth Supplemental Indenture
means the Eighth Supplemental Indenture, dated as of July 18,
2006, to the Indenture, dated as of October 4, 2004 between the Partnership, as issuer, Enterprise
Parent as Parent Guarantor and Wells Fargo Bank, National Association, as trustee.
General Partner
means Enterprise Products OLPGP, Inc., a Delaware corporation, and its
successors and assigns.
Holder
means, as to the Covered Debt then in effect, each holder of such Covered Debt as
reflected on the securities register maintained by or on behalf of the Partnership with respect to
such Covered Debt.
Initial Covered Debt
means the Partnerships 6.875% Series B Senior Notes due March 1, 2033
(CUSIP No. 293791AF6).
Intent-Based Replacement Disclosure
means, as to any security or combination of securities,
that the issuer thereof has publicly stated its intention, either in the prospectus or other
offering document under which such securities were initially offered for sale or in filings with
the Commission under the Securities Exchange Act prior to or contemporaneously with the issuance of
such securities, that such issuer will redeem or repurchase such securities only if and to the
extent that the total redemption or repurchase price is equal to or less than the applicable
percentage provided herein of net proceeds received from the issuance and sale of Replacement
Capital Securities, substantially as defined herein but as applied to such securities instead of to
the LoTS
SM
, raised within 180 days prior to the applicable redemption or repurchase
date.
LoTS
SM
has the meaning specified in Recital A.
Market Disruption Event
means the occurrence or existence of any of the following events or
sets of circumstances with respect to an issuer:
(A) a requirement that such issuer would need to obtain the consent or approval
of its unitholders or a regulatory body (including, without limitation, any
securities exchange) or governmental authority to issue equity securities and it
fails to obtain that consent or approval notwithstanding its commercially reasonable
efforts to obtain that consent or approval;
(B) trading in securities generally on the New York Stock Exchange, the
American Stock Exchange, the Nasdaq National Market or any other national
securities, futures or options exchange or in the over-the-counter market, or
trading in any of Enterprise Parents securities (or any options or futures
contracts related to such securities) on any exchange or in the over-the-counter
market, shall have been suspended or the settlement of such trading generally shall
have been materially disrupted or minimum prices shall have been established on any
such exchange or such market by the SEC, by such exchange or by any other regulatory
body or governmental authority having jurisdiction;
(C) a banking moratorium shall have been declared by federal or state
authorities of the United States such that market trading has been disrupted or
ceased;
(D) a material disruption shall have occurred in commercial banking or
securities settlement or clearance services in the United States such that market
trading has been disrupted or ceased;
(E) the United States shall have become engaged in hostilities, there shall
have been an escalation in hostilities involving the United States, there shall
have been a declaration of a national emergency or war by the United States or
there shall have occurred any other national or international calamity or crisis
such that market trading has been disrupted or ceased;
(F) there shall have occurred such a material adverse change in general
domestic or international economic, political or financial conditions, including
without limitation as a result of terrorist activities, or the effect of
international conditions on the financial markets in the United States that, in the
Partnerships, or Enterprise Parents reasonable judgment, as the case may be, it is
impracticable or inadvisable to proceed with the offer and sale of the applicable
securities;
(G) an event occurs and is continuing as a result of which the offering
document for the offer and sale of the applicable securities would, in the judgment
of such issuer, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading and either (a) the disclosure of that event at such time, in
such issuers judgment, would have a material adverse effect on its business or (b)
the disclosure relates to a previously undisclosed proposed or pending material
business transaction, and such issuer has a bona fide business reason for keeping
the same confidential or the disclosure of such transaction would impede the
consummation of such transaction, provided that no single suspension period
contemplated by this clause shall constitute a Market Disruption Event with respect
to more than one interest payment date; or
(H) the applicable issuer believes that the offering document for such offer
and sale of its securities would not be in compliance with a rule or regulation of
the SEC (for the reasons other than those referred to in the immediately preceding
bullet point above) and such issuer is unable to comply with such rule or regulation
or such compliance is impracticable, provided that no single suspension contemplated
by this clause shall constitute a Market Disruption Event with respect to more than
one interest payment date.
Non-Affiliate
shall mean any Person other than Enterprise Parent, the Partnership and their
respective Subsidiaries.
Non-Cumulative
means as to any security, that the terms of such security provide for
Distributions that may be skipped by the issuer thereof for any number of Distribution Periods
without any remedy arising under the terms of such securities or related transaction agreements in
favor of the holders of such securities as a result of such issuers failure to pay such
Distributions, other than Permitted Remedies.
NRSRO
means a nationally recognized statistical rating organization within the meaning of
Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act or any successor rule.
Optional Deferral Provision
means, as to any security or combination of securities, a
provision in the terms thereof or of the related transaction agreements, substantially similar to
Section 4.1 of the Eighth Supplemental Indenture, to the effect that the issuer thereof may, in its
sole discretion, defer in whole or in part payment of Distributions on such securities for one
or more consecutive Distribution Periods of up to ten years without any remedy other than Permitted
Remedies as a result of such issuers failure to pay Distributions.
Parent Partnership Agreement
means that certain Fifth Amended and Restated Agreement of
Limited Partnership of Enterprise Parent effective as of August 8, 2005 as the same may be amended
from time to time.
Partnership
has the meaning specified in the introduction to this Replacement Capital
Covenant.
Permitted Remedies
means, as to any security or combination of securities, any one or more
of (i) provisions permitting the holders of such securities to elect one or more directors of the
governing board or body of the issuer thereof (including any such rights required by the listing
requirements of any stock or securities exchange on which such securities may be listed or traded),
(ii) provisions prohibiting the issuer thereof from paying Distributions on or repurchasing Common
Units or other securities that rank junior as to Distributions to such securities for so long as
Distributions on such securities, including deferred distributions, have not been paid in full or
to such lesser extent as may be specified in the terms of such securities, and (iii) provisions of
law or the issuers partnership agreement affording remedies to the holders of such securities
substantially similar to the remedies afforded to a holder of the Common Units in respect of
skipped Distributions.
Person
means any individual, partnership, joint venture, trust, limited liability company or
unincorporated organization or government or any agency or political subdivision thereof.
Preferred Units
means (i) limited partnership interests of Enterprise Parent that rank
senior to the Common Units of Enterprise Parent and (ii) limited partnership interests of the
Partnership possessing substantially similar characteristics.
Redesignation Date
means, as to the then effective Covered Debt, the earliest of (i) the
date that is two years prior to the final maturity date of such Covered Debt, (ii) if the
Partnership elects to redeem, or Enterprise Parent, the Partnership or a Subsidiary of the
Partnership elects to repurchase, such Covered Debt either in whole or in part with the consequence
that after giving effect to such redemption or repurchase the outstanding principal amount of such
Covered Debt is less than $100,000,000, the applicable redemption or repurchase date and (iii) if
the then outstanding Covered Debt is not Eligible Subordinated Debt, the date on which the
Partnership issues long-term indebtedness for money borrowed that is Eligible Subordinated Debt.
Replacement Capital Covenant
has the meaning specified in the introduction to this
instrument.
Replacement Capital Securities
shall mean securities that meet one or more of the following
criteria in the determination of the Board of Directors of the General Partner, which determination
shall be final and binding on the Partnership, Enterprise Parent and all Covered Debtholders:
(a) with respect to LoTS
SM
that are redeemed or repurchased after the date hereof
and prior to August 1, 2016:
|
(i)
|
|
Common Units and Subordinated Units;
|
|
|
(ii)
|
|
Debt Exchangeable for Equity;
|
|
|
(iii)
|
|
Non-Cumulative Preferred Units having either:
|
(A) (1) no maturity or a maturity of at least 60 years and (2)
Intent-Based Replacement Disclosure; or
(B) (1) maturity of at least 40 years and (2) an Explicit Replacement
Covenant;
|
(iv)
|
|
Preferred Units having cumulative Distributions and either:
|
(A) (1) no prepayment obligation on the part of the issuer thereof, whether at
the election of the holders or otherwise, and (2) a requirement that they convert
into Common Units or Subordinated Units of the Partnership or Enterprise Parent, as
applicable, within three years from the date of issuance; or
(B) (1) no maturity or a maturity of at least 60 years and (2) an Explicit
Replacement Covenant; or
|
(v)
|
|
other securities that:
|
(A) upon issuance, rank upon on a liquidation, dissolution or winding-up of the
Partnership or Enterprise Parent, as applicable, either (1) pari passu with or
junior to the LoTS
SM
or the guarantee thereof by Enterprise Parent, as
the case may be, or (2) pari passu with the claims of the issuers trade creditors
and junior to all of the issuers long-term indebtedness for money borrowed (other
than the issuers long-term indebtedness for money borrowed from time to time
outstanding that by its terms ranks pari passu with such securities on a
liquidation, dissolution or winding-up of the issuer); and
(B) include an Optional Deferral Provision; and
(C) have a maturity of at least 60 years and an Explicit Replacement Covenant.
(b) with respect to LoTS
SM
that are redeemed on or after August 1, 2016 and on or
prior to August 1, 2036,
(i) securities described in paragraph (a) of this definition;
(ii) Units, having a maturity, if any, of at least 60 years, and cumulative
Distributions and Intent-Based Replacement Disclosure; or
(iii) other securities that
(A) upon issuance, rank upon on a liquidation, dissolution or winding-up of the
Partnership or Enterprise Parent, as applicable either (1) pari passu with or junior
to the LoTS
SM
or (2) pari passu with the claims of the issuers trade
creditors and junior to all of the issuers long-term indebtedness for money
borrowed (other than the issuers long-term indebtedness for money borrowed from
time to time outstanding that by its terms ranks pari passu with such securities on
a liquidation, dissolution or winding-up of the issuer); and
(B) include a distribution deferral provision, in the terms thereof or in the
related transaction agreements, substantially similar to Section 4.1 of the Eighth
Supplemental Indenture; and
(C) have a maturity greater than 30 years.
Securities Exchange Act
means the Securities Exchange Act of 1934, as amended.
Subordinated Units
means (i) limited partnership interests of Enterprise Parent that rank
pari passu with or junior to the Common Units of Enterprise Parent provided that such interests are
perpetual, with no prepayment obligation on the part of the issuer thereof, whether at the election
of holders or otherwise and are Non-Cumulative and (ii) limited partnership interests of the
Partnership possessing substantially similar characteristics.
Subsidiary
means, at any time and as to any Person, any other Person the shares of stock or
other ownership interests of which having ordinary voting power to elect a majority of the board of
directors or other managers of such other Person are at the time owned, or the management or
policies of which are otherwise at the time controlled, directly or indirectly through one or more
intermediaries (including other Subsidiaries) or both, by such first Person.
Units
means limited partnership interests, whether common, preferred or subordinated, of the
Partnership or Enterprise Parent, as applicable.