EXHIBIT 4.3
EXECUTION COPY
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ENTERPRISE PRODUCTS OPERATING L.P.
AS ISSUER,
ENTERPRISE PRODUCTS PARTNERS L.P.
AS GUARANTOR,
and
WACHOVIA BANK,
NATIONAL ASSOCIATION,
AS TRUSTEE
---------------------
SECOND SUPPLEMENTAL INDENTURE
Dated as of February 14, 2003
to
Indenture dated as of March 15, 2000
---------------------
$500,000,000
Series A and Series B
6.875% Senior Notes due 2033
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TABLE OF CONTENTS
PAGE
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ARTICLE I
THE NOTES
SECTION 1.1 Form ........................................................ 1
SECTION 1.2 Title, Amount and Payment of Principal and Interest ......... 2
SECTION 1.3 Registrar and Paying Agent .................................. 3
SECTION 1.4 Transfer and Exchange ....................................... 3
SECTION 1.5 Legends ..................................................... 4
SECTION 1.6 Registration Rights Agreement ............................... 6
SECTION 1.7 Guarantee of the Notes ..................................... 6
SECTION 1.8 Defeasance and Discharge ................................... 7
ARTICLE II
REDEMPTION
SECTION 2.1 Optional Redemption ......................................... 7
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3.1 Table of Contents, Headings, etc............................. 7
SECTION 3.2 Counterpart Originals ....................................... 7
SECTION 3.3 Governing Law ............................................... 7
EXHIBIT A Form of Note ................................................ A-1
EXHIBIT B Form of Certificate to be Delivered Upon Exchange of
Registration of Transfer Notes .............................. B-1
EXHIBIT C Form of Certificate to be Delivered in Connection with
Transfers Pursuant to Regulation S .......................... C-1
i
SECOND SUPPLEMENTAL INDENTURE dated as of February 14, 2003, among
Enterprise Products Operating L.P., a Delaware limited partnership (the
"Issuer"), Enterprise Products Partners L.P., a Delaware limited partnership
(the "Guarantor"), and Wachovia Bank, National Association, a national banking
association and successor to First Union National Bank, as trustee (the
"Trustee"). Each capitalized term used but not defined in this Second
Supplemental Indenture shall have the meaning assigned to such term in the
Original Indenture (as defined below).
RECITALS:
WHEREAS, the Issuer and the Guarantor have executed and delivered to the
Trustee an Indenture, dated as of March 15, 2000 (the "Original Indenture" and
as supplemented by this Second Supplemental Indenture, the "Indenture"),
providing for the issuance by the Issuer from time to time of its unsecured
debentures, notes, bonds or other evidences of indebtedness to be issued in one
or more series unlimited as to principal amount (the "Debt Securities"), and the
guaranties by Guarantor of the Debt Securities (the "Guaranties");
WHEREAS, the Issuer has duly authorized and desires to cause to be issued
pursuant to the Original Indenture and this Second Supplemental Indenture two
series of Debt Securities designated the "6.875% Series A Senior Notes due 2033"
(the "Series A Notes") and the "6.875% Series B Senior Notes due 2033" (the
"Series B Notes" and, together with the Series A Notes, the "Notes"), all of
such Notes to be guaranteed by the Guarantor as provided in Article XIV of the
Original Indenture;
WHEREAS, the Issuer desires to cause the issuance of the Notes pursuant to
Sections 2.01 and 2.03 of the Original Indenture, which sections permit the
execution of indentures supplemental thereto to establish the form and terms of
Debt Securities of any series;
WHEREAS, pursuant to Section 9.01 of the Original Indenture, the Issuer
and the Guarantor have requested that the Trustee join in the execution of this
Second Supplemental Indenture to establish the form and terms of the Notes;
WHEREAS, all things necessary have been done to make the Notes, when
executed by the Issuer and authenticated and delivered hereunder and under the
Original Indenture and duly issued by the Issuer, and the Guaranties, when the
Notes are duly issued by the Issuer, the valid obligations of the Issuer and the
Guarantor, respectively, and to make this Second Supplemental Indenture a valid
agreement of the Issuer and the Guarantor enforceable in accordance with its
terms.
NOW, THEREFORE, the Issuer, the Guarantor and the Trustee hereby agree
that the following provisions shall supplement the Original Indenture:
ARTICLE I
THE NOTES
SECTION 1.1 Form.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A to this Second Supplemental Indenture,
which is hereby incorporated into this Second Supplemental Indenture. The terms
and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Second Supplemental Indenture and to the extent applicable,
the Issuer, the Guarantor and the Trustee, by their execution and delivery of
this Second Supplemental Indenture, expressly agree to such terms and provisions
and to be bound thereby.
The Series A Notes and the Series B Notes shall be treated as a single
series of Debt Securities for purposes of determining whether Holders of the
requisite principal amount of Notes have given any notice, consent or waiver or
taken any other action permitted under the Indenture.
The Notes shall be issued only as Registered Securities. The Notes shall
be issued upon original issuance in whole in the form of one or more Global
Securities (the "Book-Entry Notes"). Each Book-Entry Note shall represent such
of the Outstanding Notes as shall be specified therein and shall provide that it
shall represent the aggregate amount of Outstanding Notes from time to time
endorsed thereon and that the aggregate amount of Outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions. Any endorsement of a Book-Entry Note to
reflect the amount, or any increase or decrease in the amount, of Outstanding
Notes represented thereby shall be made by the Trustee in accordance with
written instructions or such other written form of instructions as is customary
for the Depositary, from the Depositary or its nominee on behalf of any Person
having a beneficial interest in the Book-Entry Note.
The Issuer initially appoints The Depository Trust Company to act as
Depositary with respect to the Book-Entry Notes.
SECTION 1.2 Title, Amount and Payment of Principal and Interest.
The Series A Notes shall be entitled the "6.875% Series A Senior Notes due
2033," and the Series B Notes shall be entitled the "6.875% Series B Senior
Notes due 2033." The Trustee shall authenticate and deliver (i) Series A Notes
for original issue on the Issue Date (the "Original Series A Notes") in the
aggregate principal amount of $500,000,000, (ii) additional Series A Notes for
original issue from time to time after the Issue Date in such principal amounts
as may be specified in the Company Order described in this sentence and (iii)
Series B Notes for original issue from time to time thereafter for issue only in
exchange for a like principal amount of Series A Notes, in each case upon a
Company Order for the authentication and delivery thereof and satisfaction of
the other provisions of Section 2.05 of the Indenture. Such order shall specify
the amount of the Notes to be authenticated, the date on which the original
issue of Notes is to be authenticated, whether the Notes are Series A Notes or
Series B Notes, and the name or names of the initial Holder or Holders. The
aggregate principal amount of Notes that may be outstanding at any time may not
exceed $500,000,000 plus such additional principal amounts as may be issued and
authenticated pursuant to clause (ii) of this paragraph (except as provided in
Section 2.09 of the Indenture).
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The principal amount of each Note shall be payable on March 1, 2033. Each
Series A Note shall bear interest from the date of original issuance, or the
most recent date to which interest has been paid, at the fixed rate of 6.875%
per annum. Each Series B Note shall bear interest at the same rate from the most
recent date to which interest shall have been paid on the Series A Note for
which such Series B Note was exchanged or, if no interest shall have been paid
on such Series A Note, then from the date of original issuance of such Series A
Note. The dates on which interest on the Notes shall be payable shall be March 1
and September 1 of each year, commencing September 1, 2003 in the case of the
Original Series A Notes (the "Interest Payment Dates"). The regular record date
for interest payable on the Notes on any Interest Payment Date shall be the
February 15 or August 15 (the "Regular Record Date"), as the case may be, next
preceding such Interest Payment Date.
Payments of principal of, premium, if any, and interest due on the Notes
representing Book-Entry Notes on any Interest Payment Date or at maturity will
be made available to the Trustee by 11:00 a.m., New York City time, on such
date, unless such date falls on a day which is not a Business Day, in which case
such payments will be made available to the Trustee by 11:00 a.m., New York City
time, on the next Business Day. As soon as possible thereafter, the Trustee will
make such payments to the Depositary.
SECTION 1.3 Registrar and Paying Agent.
The Issuer initially appoints the Trustee as Registrar and paying agent
with respect to the Notes. The office where Notes may be presented for
registration of transfer or exchange and the Place of Payment for the Notes
shall initially be the corporate trust office of the Trustee in the Borough of
Manhattan, The City of New York.
SECTION 1.4 Transfer and Exchange.
(i) Transfer and Exchange of Notes in Definitive Form. In addition
to the requirements set forth in Section 2.07 of the Original Indenture, Notes
in definitive form that are Registrable Securities under the Registration Rights
Agreement referred to in Section 1.6 hereof (the "Transfer Restricted
Securities") presented or surrendered for registration of transfer or exchange
pursuant to Section 2.07 of the Original Indenture shall be accompanied by the
following additional information and documents, as applicable, upon which the
Registrar may conclusively rely:
(a) if such Transfer Restricted Securities are being delivered
to the Registrar by a Holder for registration in the name of such Holder,
without transfer, a certification from such Holder to that effect (in
substantially the form of Exhibit B hereto); or
(b) if such Transfer Restricted Securities are being
transferred (1) to a "qualified institutional buyer" (as defined in Rule
144A under the Securities Act) in accordance with Rule 144A under the
Securities Act or (2) pursuant to an exemption from registration in
accordance with Rule 144 under the Securities Act (and based upon an
opinion of counsel if the Issuer or the Trustee so requests) or (3)
pursuant to an
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effective registration statement under the Securities Act, a certification
to that effect from such Holder (in substantially the form of Exhibit B
hereto); or
(c) if such Transfer Restricted Securities are being
transferred pursuant to an exemption from registration in accordance with
Rule 904 of Regulation S under the Securities Act, certifications to that
effect from such Holder (in substantially the form of Exhibits B and C
hereto) and an opinion of counsel to that effect if the Issuer or the
Trustee so requests; or
(d) if such Transfer Restricted Securities are being
transferred in reliance on and in compliance with another exemption from
the registration requirements of the Securities Act, a certification to
that effect from such Holder (in substantially the form of Exhibit B
hereto) and an opinion of counsel to that effect if the Issuer or the
Trustee so requests.
(ii) Transfer and Exchange of Global Notes. The transfer and
exchange of Notes or beneficial interests therein shall be effected through the
Depositary, in accordance with Section 2.15 of the Original Indenture and
Article I of this Second Supplemental Indenture (including the restrictions on
transfer set forth therein and herein) and the rules and procedures of the
Depositary therefor, which shall include restrictions on transfer comparable to
those set forth therein and herein to the extent required by the Securities Act
of 1933, as amended.
SECTION 1.5 Legends.
(i) Except as permitted by the following paragraphs (ii) and (iii)
immediately below, each certificate evidencing the Book-Entry Notes and Notes in
definitive form (and all Notes issued in exchange therefor or substitution
thereof) shall bear a legend in substantially the following form:
THE ISSUANCE AND SALE OF THIS SECURITY (AND ANY GUARANTEE HEREOF) HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND NEITHER THIS SECURITY
(NOR ANY GUARANTEE HEREOF) NOR ANY INTEREST OR PARTICIPATION HEREIN (OR
THEREIN) MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES
LAWS.
THE HOLDER HEREOF, BY ITS ACCEPTANCE OF THIS SECURITY, AGREES FOR THE
BENEFIT OF THE ISSUER THAT THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED
OR OTHERWISE TRANSFERRED PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD
APPLICABLE THERETO UNDER RULE 144(K) UNDER THE SECURITIES ACT WHICH IS
APPLICABLE TO THIS SECURITY (THE "RESALE
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RESTRICTION TERMINATION DATE") OTHER THAN (1) TO THE ISSUER OR ITS
SUBSIDIARIES, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT
TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" WITHIN THE
MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER, IN EACH CASE TO WHOM NOTICE IS GIVEN THAT
THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE
OF TRANSFER, IF APPLICABLE), (3) TO A NON-"U.S. PERSON" IN AN "OFFSHORE
TRANSACTION" (AS SUCH TERMS ARE DEFINED IN REGULATION S UNDER THE
SECURITIES ACT) IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT
(AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF
TRANSFER, IF APPLICABLE), (4) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING THE
EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT, IF AVAILABLE, IN
EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF $1,000, OR (5) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, SUBJECT TO EACH
OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF
ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT
ALL TIMES WITHIN ITS OR THEIR CONTROL, AND SUBJECT TO THE RIGHT OF THE
ISSUER OR THE TRUSTEE FOR THE SECURITIES PRIOR TO ANY SUCH SALE, PLEDGE OR
OTHER TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS
LEGEND WILL BE REMOVED UPON REQUEST OF THE HOLDER ON OR AFTER THE RESALE
RESTRICTION TERMINATION DATE.
In addition, if any of the Notes are issued in reliance on Regulation S
promulgated under the Securities Act, then such Notes shall also bear a legend
substantially in the following form:
THIS NOTE IS A GLOBAL SECURITY ISSUED IN RELIANCE ON REGULATION S
PROMULGATED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"). PRIOR TO THE EXPIRATION OF THE DISTRIBUTION COMPLIANCE
PERIOD WHICH SHALL EXTEND FOR A PERIOD OF FORTY (40) DAYS AFTER THE DATE
ON WHICH THE NOTES EVIDENCED HEREBY ARE FIRST OFFERED TO PERSONS OTHER
THAN DISTRIBUTORS IN RELIANCE ON REGULATION S OR THE DATE OF CLOSING OF
THE OFFERING, WHICHEVER IS LATER, BENEFICIAL INTERESTS HEREIN MAY NOT BE
HELD BY ANY PERSON OTHER THAN (1) A NON-U.S. PERSON OR (2) A U.S. PERSON
WHO PURCHASED SUCH INTEREST IN A TRANSACTION
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EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT PURSUANT TO RULE 144A
PROMULGATED THEREUNDER. BENEFICIAL INTERESTS HEREIN ARE NOT EXCHANGEABLE
FOR PHYSICAL NOTES OTHER THAN IN ACCORDANCE WITH THE TERMS OF THE
INDENTURE. THE TERMS IN THIS LEGEND ARE USED AS USED IN REGULATION S UNDER
THE SECURITIES ACT.
(ii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a Book-Entry Note)
pursuant to Rule 144 under the Securities Act or an effective registration
statement under the Securities Act, which shall be certified to the Trustee and
Registrar upon which each may conclusively rely:
(a) in the case of any Transfer Restricted Security in
definitive form, the Registrar shall permit the Holder thereof to exchange
such Transfer Restricted Security for a Note in definitive form that does
not bear the legend(s) set forth in (i) above and rescind any restriction
on the transfer of such Transfer Restricted Security; and
(b) in the case of any Transfer Restricted Security
represented by a Book-Entry Note, such Transfer Restricted Security shall
not be required to bear the legend(s) set forth in (i) above if all other
interests in such Global Note have been or are concurrently being sold or
transferred pursuant to Rule 144 under the Securities Act or pursuant to
an effective registration statement under the Securities Act, but such
Transfer Restricted Security shall continue to be subject to the
provisions of Section 2.15 of the Original Indenture and Section 1.4(ii)
of this Second Supplemental Indenture.
(iii) Notwithstanding the foregoing, upon consummation of the
Exchange Offer (as defined in the Registration Rights Agreement), the Issuer
shall issue and, upon receipt of a Company Order in accordance with Section 2.05
of the Original Indenture, the Trustee shall authenticate Series B Notes in
exchange for Series A Notes accepted for exchange in the Exchange Offer, which
Series B Notes shall not bear the legend(s) set forth in (i) above, and the
Registrar shall rescind any restriction on the transfer of such Series B Notes,
in each case unless the Holder of such Series A Notes is either (A) a
broker-dealer tendering Series A Notes acquired directly from the Issuer, (B) a
Person participating in the Exchange Offer for purposes of distributing the
Series B Notes or (C) a Person who is an "affiliate" (as defined in Rule 144
under the Securities Act) of the Issuer. The Issuer shall identify to the
Trustee such Holders of the Notes in a written certification signed by an
Officer of the General Partner and, absent certification from the Issuer to such
effect, the Trustee shall assume that there are no such Holders.
SECTION 1.6 Registration Rights Agreement.
Holders of the Notes shall have the benefit of the Company's registration
obligations with respect to the Notes under the Registration Rights Agreement
dated February 14, 2003 by and among the Issuer, the Guarantor and the Initial
Purchasers named therein.
SECTION 1.7 Guarantee of the Notes.
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In accordance with Article XIV of the Original Indenture, the Notes will
be fully, unconditionally and absolutely guaranteed on an unsecured,
unsubordinated basis by the Guarantor.
SECTION 1.8 Defeasance and Discharge.
The Notes shall be subject to both legal defeasance and covenant
defeasance as contemplated by Article XI of the Original Indenture.
ARTICLE II
REDEMPTION
SECTION 2.1 Optional Redemption.
The Issuer shall have no obligation to redeem, purchase or repay the Notes
pursuant to any mandatory redemption, sinking fund or analogous provisions or at
the option of a Holder thereof. The Issuer, at its option, may redeem the Notes
in accordance with the provisions of paragraph 5 of the Notes and Article III of
the Original Indenture.
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3.1 Table of Contents, Headings, etc.
The table of contents and headings of the Articles and Sections of this
Second Supplemental Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof and shall in no way modify or
restrict any of the terms or provisions hereof.
SECTION 3.2 Counterpart Originals.
The parties may sign any number of copies of this Second Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
SECTION 3.3 Governing Law.
THIS SECOND SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed as of the day and year first above
written.
ENTERPRISE PRODUCTS OPERATING L.P.
as Issuer
By: Enterprise Products GP, LLC
its General Partner
By: /s/ Michael A. Creel
------------------------------------
Name: Michael A. Creel
Title: Executive Vice President
ENTERPRISE PRODUCTS PARTNERS L.P.,
as Guarantor
By: Enterprise Products GP, LLC
its General Partner
By: /s/ Michael A. Creel
------------------------------------
Name: Michael A. Creel
Title: Executive Vice President
WACHOVIA BANK,
NATIONAL ASSOCIATION,
as Trustee
By: /s/ Kevin M. Dobrava
------------------------------------
Name: Kevin M. Dobrava
Title: Vice President
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EXHIBIT A
FORM OF NOTE
[FACE OF SECURITY]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC") (55 WATER STREET, ROOM 234, NEW YORK, NEW YORK
10041) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]*
[TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE
REFERRED TO HEREIN.]*
Principal Amount
No. _____
$___________, [which amount may be
increased or decreased by the Schedule
of Increases and Decreases in Global Security attached hereto.]*
ENTERPRISE PRODUCTS OPERATING L.P.
6.875% SERIES __ SENIOR NOTES DUE 2033
CUSIP ___________
ENTERPRISE PRODUCTS OPERATING L.P., a Delaware limited partnership (the
"Company," which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to [Cede & Co.]* or its
registered assigns, the principal sum of __________________ ($ ) 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 March 1,
- --------
* To be included in a Book-Entry Note.
A-1
2033 in such coin and currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts, and
to pay interest at an annual rate of 6.875% payable on March 1 and September 1
of each year, to the person in whose name the Security is registered at the
close of business on the record date for such interest, which shall be the
preceding February 15 and August 15 (each, a "Regular Record Date"),
respectively, payable commencing on September 1, 2003, with interest accruing
from February 14, 2003, or the most recent date to which interest shall have
been paid.
Reference is made to the further provisions of this Security set forth on
the reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
The statements in the legends set forth above are an integral part of the
terms of this Security and by acceptance hereof the Holder of this Security
agrees to be subject to, and bound by, the terms and provisions set forth in
each such legend.
This Security is issued in respect of a series of Debt Securities of an
initial aggregate of $500,000,000 in principal amount designated as the 6.875%
Series __ Senior Notes due 2033 of the Company and is governed by the Indenture
dated as of March 15, 2000, duly executed and delivered by the Company, as
issuer, and Enterprise Products Partners L.P., as guarantor (the "Guarantor") to
Wachovia Bank, National Association, as successor to First Union National Bank,
as trustee (the "Trustee"), as supplemented by the Second Supplemental Indenture
dated as of February 14, 2003, duly executed by the Company, the Guarantor and
the Trustee (the "Second Supplemental Indenture", and together with the
Indenture, the "Indenture"). The terms of the Indenture are incorporated herein
by reference. This Security shall in all respects be entitled to the same
benefits as definitive Securities under the Indenture.
If and to the extent any provision of the Indenture limits, qualifies or
conflicts with any other provision of the Indenture that is required to be
included in the Indenture or is deemed applicable to the Indenture by virtue of
the provisions of the Trust Indenture Act of 1939, as amended (the "TIA"), such
required provision shall control.
The Company hereby irrevocably undertakes to the Holder hereof to exchange
this Security in accordance with the terms of the Indenture without charge.
This Security shall not be valid or become obligatory for any purpose
until the Trustee's Certificate of Authentication hereon shall have been
manually signed by the Trustee under the Indenture.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by its sole General Partner.
Dated: February 14, 2003
ENTERPRISE PRODUCTS OPERATING L.P.
By: Enterprise Products GP, LLC,
its General Partner
By: ____________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Debt Securities of the series designated herein
referred to in the within-mentioned Indenture.
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By: ____________________________________
Authorized Signatory
A-3
[REVERSE OF SECURITY]
ENTERPRISE PRODUCTS OPERATING L.P.
6.875% SERIES __ SENIOR NOTES DUE 2033
This Security is one of a duly authorized issue of unsecured debentures,
notes or other evidences of indebtedness of the Company (the "Debt Securities")
of the series hereinafter specified, all issued or to be issued under and
pursuant to the Indenture, to which Indenture reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company, the Guarantor and the Holders
of the Debt Securities. The Debt Securities may be issued in one or more series,
which different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may be
subject to different sinking, purchase or analogous funds (if any) and may
otherwise vary as provided in the Indenture. This Security is one of a series
designated as the 6.875% Series __ Senior Notes due 2033 of the Company, in
initial aggregate principal amount of $500,000,000 (the "Securities").
1. Interest.
The Company promises to pay interest on the principal amount of this
Security at the rate of 6.875% per annum.
The Company will pay interest semi-annually on March 1 and September 1 of
each year (each an "Interest Payment Date"), commencing September 1, 2003.
Interest on the Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid on the Securities, from
February 14, 2003. Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months. The Company shall pay interest (including
post-petition interest in any proceeding under any applicable bankruptcy laws)
on overdue installments of interest (without regard to any applicable grace
period) and on overdue principal and premium, if any, from time to time on
demand at the same rate per annum, in each case to the extent lawful.
2. Method of Payment.
The Company shall pay interest on the Securities (except Defaulted
Interest) to the persons who are the registered Holders at the close of business
on the Regular Record Date immediately preceding the Interest Payment Date. Any
such interest not so punctually paid or duly provided for ("Defaulted Interest")
may be paid to the persons who are registered Holders at the close of business
on a special record date for the payment of such Defaulted Interest, or in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which such Securities may then be listed if such manner of payment
shall be deemed practicable by the Trustee, as more fully provided in the
Indenture. The Company shall pay principal, premium, if any, and interest in
such coin or currency of the United States of America as at the time of payment
shall be legal tender for payment of public and private debts. Payments in
respect of a Global Security (including principal, premium, if any, and
interest) will be made by wire transfer of immediately available funds to the
accounts specified by the Depositary. Payments in respect of Securities in
definitive form (including principal, premium, if any, and
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interest) will be made at the office or agency of the Company maintained for
such purpose within the Borough of Manhattan, The City of New York, which
initially will be at the corporate trust office of the Trustee located at 1 Penn
Plaza, Suite 1414, New York, New York 10119, or, at the option of the Company,
payment of interest may be made by check mailed to the Holders on the relevant
record date at their addresses set forth in the Debt Security Register of
Holders. The Holder must surrender this Security to a paying agent to collect
payment of principal.
3. Paying Agent and Registrar.
Initially, Wachovia Bank, National Association will act as paying agent
and Registrar. The Company may change any paying agent or Registrar at any time
upon notice to the Trustee and the Holders. The Company or any of its
Subsidiaries may, subject to certain exceptions, act as paying agent or
Registrar.
4. Indenture.
This Security is one of a duly authorized issue of Debt Securities of the
Company issued and to be issued in one or more series under the Indenture.
Capitalized terms herein are used as defined in the Indenture unless
otherwise defined herein. The terms of the Securities include those stated in
the Indenture as originally executed those made part of the Indenture by
reference to the TIA, as in effect on the date of the Indenture, and those terms
stated in the Second Supplemental Indenture. The Securities are subject to all
such terms, and Holders of Securities are referred to the Indenture as
originally executed, the Second Supplemental Indenture and the TIA for a
statement of them. The Securities of this series are general unsecured
obligations of the Company limited to an initial aggregate principal amount of
$500,000,000; provided, however, that the authorized aggregate principal amount
of such series may be increased from time to time as provided in the Second
Supplemental Indenture.
5. Redemption.
The Securities are redeemable, at the option of the Company, at any time
in whole, or from time to time in part, at a redemption price (the "Make-Whole
Price") equal to the greater of: (i) 100% of the principal amount of the
Securities to be redeemed; or (ii) the sum of the present values of the
remaining scheduled payments of principal and interest (at the rate in effect on
the date of calculation of the redemption price) on the Securities (exclusive of
interest accrued to the Redemption Date) discounted to the Redemption Date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the applicable Treasury Yield plus 35 basis points; plus, in either case,
accrued interest to the Redemption Date.
Securities called for redemption become due on the Redemption Date.
Notices of redemption will be mailed at least 30 but not more than 60 days
before the Redemption Date to each Holder of the Securities to be redeemed at
its registered address. The notice of redemption for the Securities will state,
among other things, the amount of Securities to be redeemed, the Redemption
Date, the Make-Whole Price and the place(s) that payment will be made upon
presentation and surrender of Securities to be redeemed. Unless the Company
defaults in payment of the Make-Whole Price, interest will cease to accrue on
any Securities that have been
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called for redemption at the Redemption Date. If less than all the Securities
are redeemed at any time, the Trustee will select the Securities to be redeemed
on a pro rata basis or by any other method the Trustee deems fair and
appropriate.
For purposes of determining the Make-Whole Price, the following
definitions are applicable:
"Treasury Yield" means, with respect to any Redemption Date applicable to
the Securities, the rate per annum equal to the semi-annual equivalent yield to
maturity (computed as of the third Business Day immediately preceding such
Redemption Date) of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the applicable Comparable Treasury Price for the Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Independent Investment Banker as having a maturity comparable to
the remaining term of the Securities that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining
terms of the Securities; provided, however, that if no maturity is within three
months before or after the maturity date for the Securities, yields for the two
published maturities most closely corresponding to such United States Treasury
security will be determined and the treasury rate will be interpolated or
extrapolated from those yields on a straight line basis rounding to the nearest
month.
"Independent Investment Banker" means Wachovia Securities, Inc. (and its
successors), or, if such firm is unwilling or unable to select the applicable
Comparable Treasury Issue, an independent investment banking institution of
national standing appointed by the Trustee and reasonably acceptable to the
Company.
"Comparable Treasury Price" means, with respect to any Redemption Date,
(a) the bid price for the Comparable Treasury Issue (expressed as a percentage
of its principal amount) at 4:00 p.m. on the third Business Day preceding the
Redemption Date, as set forth on "Telerate Page 500" (or such other page as may
replace Telerate Page 500), or (b) if such page (or any successor page) is not
displayed or does not contain such bid prices at such time, the average of the
Reference Treasury Dealer Quotations obtained by the Trustee for the Redemption
Date.
"Reference Treasury Dealer" means (a) Wachovia Securities, Inc. (and its
successors) and (b) one other primary U.S. government securities dealer in New
York City selected by the Independent Investment Banker (each, a "Primary
Treasury Dealer"); provided, however, that if either of the foregoing shall
cease to be a Primary Treasury Dealer, the Issuer will substitute therefor
another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date for the Securities, an
average, as determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue for the Securities (expressed in each case as a
percentage of its principal amount) quoted in writing to the Trustee by such
Reference
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Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day
preceding such Redemption Date.
Except as set forth above, the Securities will not be redeemable prior to
their Stated Maturity and will not be entitled to the benefit of any sinking
fund.
The Securities may be redeemed in part in multiplies of $1,000 only. Any
such redemption will also comply with Article III of the Indenture.
6. Denominations; Transfer; Exchange.
The Securities are to be issued in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000 in excess thereof. A
Holder may register the transfer of, or exchange, Securities in accordance with
the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture.
7. Person Deemed Owners.
The registered Holder of a Security may be treated as the owner of it for
all purposes.
8. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture may be amended or
supplemented, and any existing Event of Default or compliance with any provision
may be waived, with the consent of the Holders of a majority in principal amount
of the Outstanding Debt Securities of each series affected. Without consent of
any Holder of a Security, the parties thereto may amend or supplement the
Indenture to, among other things, cure any ambiguity or omission, to correct any
defect or inconsistency, or to make any other change that does not adversely
affect the rights of any Holder of a Security. Any such consent or waiver by the
Holder of this Security (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of this Security and any Securities which may be issued in exchange or
substitution herefor, irrespective of whether or not any notation thereof is
made upon this Security or such other Securities.
9. Defaults and Remedies.
If an Event of Default with respect to the Securities occurs and is
continuing, then in every such case the Trustee or the Holders of not less than
25% in principal amount of the Securities then Outstanding may declare the
principal amount of all the Securities to be due and payable immediately in the
manner and with the effect provided in the Indenture. Notwithstanding the
preceding sentence, however, if at any time after such a declaration of
acceleration has been made and before judgment or decree for payment of the
money due has been obtained by the Trustee as provided in the Indenture, the
Holders of a majority in principal amount of the Outstanding Securities, by
written notice to the Trustee, may rescind and annul such declaration and its
consequences if all Events of Default under the Indenture with respect to the
Securities, other than the nonpayment of the principal or interest which has
become due solely by such declaration acceleration, shall have been cured or
shall have been waived. No
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such rescission shall affect any subsequent default or shall impair any right
consequent thereon. Holders of Securities may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the Securities.
Subject to certain limitations, Holders of a majority in aggregate principal
amount of the Securities then outstanding may direct the Trustee in its exercise
of any trust or power.
10. Registration Rights.
The Holder of this Security is entitled to the benefits of the
Registration Rights Agreement (the "Registration Rights Agreement") dated as of
February 14, 2003, by and among the Company, the Guarantor and the Initial
Purchasers named therein. In certain events, the Company shall be required to
pay to each affected Holder additional interest on the Securities, on the terms
and subject to the conditions of the Registration Rights Agreement.
11. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other capacity,
may make loans to, accept deposits from, and perform services for the Company or
its Affiliates or any subsidiary of the Company's Affiliates, and may otherwise
deal with the Company or its Affiliates as if it were not the Trustee.
12. Authentication.
This Security shall not be valid until the Trustee signs the certificate
of authentication on the other side of this Security.
13. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Security
or an assignee, such as: TEN COM (tenant in common), TEN ENT (tenants by the
entireties), JT TEN (joint tenants with right of survivorship and not as tenants
in common), CUST (Custodian), and U/G/M/A (Uniform Gifts to Minors Act).
14. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform Note
Identification Procedures, the Company has caused CUSIP numbers to be printed on
the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such number as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
15. Absolute Obligation.
No reference herein to the Indenture and no provision of this Security or
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Security in the manner, at the respective times, at the rate
and in the coin or currency herein prescribed.
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16. No Recourse.
The General Partner and its directors, officers, employees and members, as
such, shall have no liability for any obligations of the Guarantor or the Issuer
under the Securities, the Indenture or the Guarantee or for any claim based on,
in respect of, or by reason of, such obligations or their creation. Each Holder
by accepting the Securities waives and releases all such liability. The waiver
and release are part of the consideration for issuance of the Securities.
17. Governing Law.
This Security shall be construed in accordance with and governed by the
laws of the State of New York.
18. Guarantee.
The Securities are fully and unconditionally guaranteed on an unsecured,
unsubordinated basis by the Guarantor as set forth in Article XIV of the
Indenture, as noted in the Notation of Guarantee to this Security.
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NOTATION OF GUARANTEE
The Guarantor (which term includes any successor person under the
Indenture), has fully, unconditionally and absolutely guaranteed, to the extent
set forth in the Indenture and subject to the provisions in the Indenture, the
due and punctual payment of the principal of, and premium, if any, and interest
on the Securities and all other amounts due and payable under the Indenture and
the Securities by the Company.
The obligations of the Guarantor to the Holders of Securities and to the
Trustee pursuant to the Guarantee and the Indenture are expressly set forth in
Article XIV of the Indenture and reference is hereby made to the Indenture for
the precise terms of the Guarantee.
ENTERPRISE PRODUCTS PARTNERS, L.P.
By: Enterprise Products GP, LLC,
its General Partner
By: ____________________________________
Name:
Title:
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ________________
(Cust.)
TEN ENT - as tenants by entireties Custodian for: _____________________
(Minor)
under Uniform Gifts to
JT TEN - as joint tenants with right of Minors Act of ______________________
survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
----------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________
________________________________________________________________________________
Please print or type name and address including postal zip code of assignee
________________________________________________________________________________
________________________________________________________________________________
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
________________________________________________________________________________
to transfer said Security on the books of the Company, with full power of
substitution in the premises.
Dated _______________________ ________________________________________
Registered Holder
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SCHEDULE OF INCREASES OR DECREASES
IN GLOBAL SECURITY*
The following increases or decreases in this Global Security have been made:
AMOUNT OF AMOUNT OF PRINCIPAL AMOUNT
DECREASE IN INCREASE IN OF THIS GLOBAL SIGNATURE OF
PRINCIPAL PRINCIPAL AMOUNT SECURITY FOLLOWING AUTHORIZED OFFICER
AMOUNT OF THIS OF THIS SUCH DECREASE OF TRUSTEE OR
DATE OF EXCHANGE GLOBAL SECURITY GLOBAL SECURITY (OR INCREASE) DEPOSITARY
- ---------------- --------------- ---------------- ------------------ ------------------
- --------
* To be included in a Book-Entry Note.
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EXHIBIT B
FORM OF CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF NOTES
Re: 6.875% Senior Notes due 2033 of Enterprise Products Operating L.P.
This Certificate relates to $_____ principal amount of Notes held in**
______ book-entry or **______ definitive form by _____________________ (the
"Transferor").
The Transferor has requested the Trustee by written order to exchange or
register the transfer of a Note or Notes.
In connection with such request and in respect of each such Note, the
Transferor does hereby certify that the Transferor is familiar with the
Indenture relating to the above-captioned Notes and that the transfer of this
Note does not require registration under the Securities Act (as defined below)
because:**
| | Such Note is being acquired for the Transferor's own account without
transfer.
| | Such Note is being transferred (i) to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act of 1933, as amended
(the "Securities Act")), in accordance with Rule 144A under the Securities Act
or (ii) pursuant to an exemption from registration in accordance with Rule 904
of Regulation S under the Securities Act (and in the case of clause (ii), based
upon an opinion of counsel if the Company or the Trustee so requests, together
with a certification in substantially the form of Exhibit C to the Indenture).
| | Such Note is being transferred (i) pursuant to an exemption from
registration in accordance with Rule 144 under the Securities Act (and based
upon an opinion of counsel if the Company or the Trustee so requests) or (ii)
pursuant to an effective registration statement under the Securities Act.
| | Such Note is being transferred in reliance on and in compliance with
another exemption from the registration requirements of the Securities Act (and
based upon an opinion of counsel if the Company or the Trustee so requests).
[INSERT NAME OF TRANSFEROR]
By: ____________________________________
Name:
Title:
Address:
Date: ____________________________
** Fill in blank or check appropriate box, as applicable.
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EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS PURSUANT TO REGULATION S
_____________, ____
Wachovia Bank, National Association, as Registrar
[Address]
Attention: Corporate Trust Department
Ladies and Gentlemen:
In connection with our proposed sale of certain 6.875% Senior Notes due
2033 (the "Notes") of Enterprise Products Operating L.P. (the "Company"), we
represent that:
(i) the offer of the Notes was not made to a person in the United
States;
(ii) at the time the buy order was originated, the transferee was outside
the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United
States;
(iii) no directed selling efforts have been made by us in the United
States in contravention of the requirements of Rule 903(a) or Rule
904(a) of Regulation S under the U.S. Securities Act of 1933, as
applicable; and
(iv) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933.
You and the Company are entitled to rely upon this letter and you are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S under the U.S. Securities Act of 1933.
Very truly yours,
________________________________________
[Name]
By: ____________________________________
Name:
Title:
Address:
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