e424b5
CALCULATION
OF REGISTRATION FEE
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Amount of
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Title of Each Class of
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Amount to
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Offering Price
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Aggregate
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Registration
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Securities to Be Registered
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be Registered
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Per Unit
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Offering Price
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Fee
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Common units representing limited partner interests
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10,350,000
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$
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44.68
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$
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462,438,000
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$
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52,996
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(1)
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(1) |
The filing fee, calculated in accordance with Rule 457(r),
was transmitted to the Securities and Exchange Commission on
December 8, 2011 in connection with the securities offered
from Registration Statement File
No. 333-168049
by means of this prospectus supplement.
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Filed
Pursuant to Rule 424(b)(5)
Registration No. 333-168049
PROSPECTUS SUPPLEMENT
(To Prospectus dated
November 29, 2010)
9,000,000 Common
Units
Enterprise Products Partners
L.P.
$44.68 per common
unit
We are selling 9,000,000 common units representing limited
partner interests in Enterprise Products Partners L.P. Our
common units are listed on the New York Stock Exchange under the
symbol EPD. The last reported sales price of our
common units on the New York Stock Exchange on
December 7, 2011 was $45.94 per common unit.
Investing in our common units involves risk. See Risk
Factors beginning on
page S-8
of this prospectus supplement and on page 2 of the
accompanying prospectus.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus supplement or the
accompanying prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
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Per Common Unit
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Total
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Public Offering Price
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$
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44.68
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$
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402,120,000
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Underwriting Discount
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$
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1.34
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$
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12,060,000
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Proceeds to Enterprise Products Partners L.P. (before expenses)
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$
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43.34
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$
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390,060,000
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We have granted the underwriters a
30-day
option to purchase up to 1,350,000 additional common units to
cover over-allotments.
The underwriters expect to deliver the common units on or about
December 13, 2011.
Joint Book-Running
Managers
Senior Co-Managers
Co-Managers
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Ladenburg Thalmann & Co. Inc.
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The date of this prospectus supplement is December 8, 2011.
TABLE OF
CONTENTS
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Page
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Prospectus Supplement
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S-1
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S-8
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S-9
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S-10
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S-11
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S-13
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S-15
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S-16
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S-20
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S-20
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S-21
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S-21
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Prospectus
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About This Prospectus
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1
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Our Company
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1
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Risk Factors
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2
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Use of Proceeds
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3
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Ratio of Earnings to Fixed Charges
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3
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Description of Debt Securities
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4
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Description of Our Common Units
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18
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Cash Distribution Policy
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20
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Description of Our Partnership Agreement
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21
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Material Tax Consequences
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27
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Investment in Enterprise Products Partners L.P. by Employee
Benefit Plans
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42
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Plan of Distribution
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43
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Where You Can Find More Information
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43
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Forward-Looking Statements
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44
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Legal Matters
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45
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Experts
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45
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Important
Notice About Information in This
Prospectus Supplement and the Accompanying Prospectus
This document is in two parts. The first part is this prospectus
supplement, which describes the terms of this offering of our
common units. The second part is the accompanying prospectus,
which gives more general information, some of which may not
apply to this offering of common units. If the information
varies between this prospectus supplement and the accompanying
prospectus, you should rely on the information in this
prospectus supplement.
You should rely only on the information contained or
incorporated by reference in this prospectus supplement and the
accompanying prospectus or any free writing prospectus prepared
by or on behalf of us. We have not authorized anyone to provide
you with additional or different information. We are not making
an offer to sell these securities in any state where the offer
is not permitted. You should not assume that the information
contained in this prospectus supplement or the accompanying
prospectus is accurate as of any date other than the date on the
front of these documents or that any information we have
incorporated by reference is accurate as of any date other than
the date of the document incorporated by reference. Our
business, financial condition, results of operations and
prospects may have changed since these dates.
S-i
SUMMARY
This summary highlights information from this prospectus
supplement and the accompanying prospectus to help you
understand our business and the common units. It does not
contain all of the information that is important to you. You
should read carefully the entire prospectus supplement, the
accompanying prospectus, the documents incorporated by reference
and the other documents to which we refer for a more complete
understanding of this offering and our business. You should read
Risk Factors beginning on
page S-8
of this prospectus supplement and page 2 of the
accompanying prospectus for more information about important
risks that you should consider before making a decision to
purchase common units in this offering.
The information presented in this prospectus supplement
assumes that the underwriters do not exercise their option to
purchase additional common units, unless otherwise indicated.
Our, we, us, the
Partnership and Enterprise as used in
this prospectus supplement and the accompanying prospectus refer
to Enterprise Products Partners L.P., its wholly owned
subsidiaries and Enterprises investments in unconsolidated
affiliates. References to EPO are intended to mean
the consolidated business and operations of our primary
operating subsidiary, Enterprise Products Operating LLC
(successor to Enterprise Products Operating L.P.). The
historical consolidated statement of operations for the year
ended December 31, 2010 incorporated into this prospectus
supplement gives effect to the merger of Enterprise GP Holdings
L.P. (Holdings) with a subsidiary of Enterprise in
November 2010.
Enterprise
Products Partners L.P.
Overview
We are a leading North American provider of midstream energy
services to producers and consumers of natural gas, natural gas
liquids (NGLs), crude oil, refined products and
certain petrochemicals. Our midstream energy asset network links
producers of natural gas, NGLs and crude oil from some of the
largest supply basins in the United States, Canada and the Gulf
of Mexico with domestic consumers and international markets.
Our midstream energy operations include: natural gas
transportation, gathering, treating, processing and storage; NGL
transportation, fractionation, storage, and import and export
terminaling; crude oil and refined products transportation,
storage and terminaling; offshore production platforms;
petrochemical transportation and services; and a marine
transportation business that operates primarily on the United
States inland and Intracoastal Waterway systems and in the Gulf
of Mexico. NGL products (ethane, propane, normal butane,
isobutane and natural gasoline) are used as raw materials by the
petrochemical industry, as feedstocks by refiners in the
production of motor gasoline and as fuel by industrial and
residential users. Our portfolio of integrated assets includes
approximately: 50,000 miles of onshore and offshore natural
gas, NGL, crude oil, refined products and petrochemical
pipelines; 192 million barrels (MMBbls) of NGL,
refined products and crude oil storage capacity; 8 billion
cubic feet (Bcf) of natural gas storage capacity;
and 25 natural gas processing plants. In addition, our asset
portfolio includes 20 fractionation facilities, six offshore hub
platforms located in the Gulf of Mexico, a butane isomerization
complex, NGL import and export terminals, and an octane
enhancement facility.
For the year ended December 31, 2010 and the nine months
ended September 30, 2011, we had consolidated revenues of
$33.7 billion and $32.7 billion, operating income of
$2.1 billion and $1.9 billion, and net income from
continuing operations of $1.4 billion for each period,
respectively.
Our principal offices are located at 1100 Louisiana Street,
10th Floor, Houston, Texas 77002, and our telephone number
is
(713) 381-6500.
Our
Business Segments
We have six reportable business segments: (i) NGL
Pipelines & Services; (ii) Onshore Natural Gas
Pipelines & Services; (iii) Onshore Crude Oil
Pipelines & Services; (iv) Offshore
Pipelines & Services;
(v) Petrochemical & Refined Products Services;
and (vi) Other Investments. Our business segments are
S-1
generally organized and managed along our asset base according
to the type of services rendered (or technologies employed) and
products produced
and/or sold.
We provide midstream energy services directly and through our
subsidiaries and unconsolidated affiliates.
NGL Pipelines & Services. Our NGL
Pipelines & Services business segment includes our
(i) natural gas processing business and related NGL
marketing activities, (ii) NGL pipelines aggregating
approximately 16,900 miles, (iii) NGL and related
product storage and terminal facilities with 160 MMBbls of
working storage capacity and (iv) NGL fractionation
facilities. This segment also includes our import and export
terminal operations.
Onshore Natural Gas Pipelines &
Services. Our Onshore Natural Gas
Pipelines & Services business segment currently
includes approximately 20,000 miles of onshore natural gas
pipeline systems that provide for the gathering and
transportation of natural gas in Colorado, Louisiana,
Mississippi, New Mexico, Texas and Wyoming. We lease natural gas
storage facilities located in Texas and Louisiana. This segment
also includes our related natural gas marketing activities. On
December 1, 2011, we completed the sale of our Mississippi
natural gas storage assets to Boardwalk HP Storage Company, LLC
for $550 million in cash.
Onshore Crude Oil Pipelines &
Services. Our Onshore Crude Oil
Pipelines & Services business segment includes
approximately 4,700 miles of onshore crude oil pipelines
and 11 MMBbls of above-ground storage tank capacity. This
segment also includes our crude oil marketing and trucking
activities.
Offshore Pipelines & Services. Our
Offshore Pipelines & Services business segment serves
some of the most active drilling development regions, including
deepwater production fields in the northern Gulf of Mexico
offshore Texas, Louisiana, Mississippi and Alabama. This segment
includes approximately 1,400 miles of offshore natural gas
pipelines, approximately 1,000 miles of offshore crude oil
pipelines and six offshore hub platforms.
Petrochemical & Refined Products
Services. Our Petrochemical & Refined
Products Services business segment consists of
(i) propylene fractionation facilities, approximately
680 miles of petrochemical pipelines and related marketing
activities, (ii) a butane isomerization facility and
related
70-mile
pipeline system, (iii) octane enhancement and high purity
isobutylene production facilities, (iv) approximately
5,700 miles of refined products pipelines and related
marketing activities and (v) marine transportation and
other services.
Other Investments. Other Investments consists
of our noncontrolling ownership interests in Energy Transfer
Equity, L.P. (Energy Transfer Equity), a publicly
traded limited partnership. As of December 5, 2011, we
owned 29,303,514 common units of Energy Transfer Equity, which
we account for using the equity method of accounting.
Our
Strategies
We operate an integrated network of midstream energy assets. Our
business strategies are to:
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capitalize on expected increases in domestic natural gas, NGL
and crude oil production resulting from development activities
in the Marcellus and Utica Shales, Rocky Mountains and
U.S. Gulf Coast regions, including the Barnett Shale,
Haynesville Shale and Eagle Ford Shale producing regions;
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capitalize on expected demand growth for natural gas, NGLs,
crude oil and refined and petrochemical products;
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maintain a diversified portfolio of midstream energy assets and
expand this asset base through growth capital projects and
accretive acquisitions of complementary midstream energy assets;
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enhance the stability of our cash flows by investing in
pipelines and other fee-based businesses; and
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S-2
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share capital costs and risks through joint ventures or
alliances with strategic partners, including those that will
provide the raw materials for these growth capital projects or
purchase the projects end products.
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Competitive
Strengths
We believe we have the following competitive strengths:
Large-Scale, Integrated Network of Diversified Assets in
Strategic Locations. We operate an integrated
network of natural gas, NGL, crude oil and refined products
midstream infrastructure within the United States and in the
Gulf of Mexico.
Our operations include domestic crude oil, petrochemical and
refined products pipelines, offshore platform services and
marine transportation assets. Our integrated network of assets
are strategically located to serve the major domestic supply
basins and product storage hubs as well as international
customers. We believe that our presence in these markets
provides us access to natural gas, crude oil, NGL, petrochemical
and refined products volumes, anticipated demand growth and
business expansion opportunities.
Fee-Based Businesses and Diversified Asset
Mix. The majority of our cash flow is derived
from fee-based businesses that are not directly affected by
volatility in energy commodity prices. We have a diversified
asset portfolio that provides operating income from a broad
range of geographic areas and lines of business.
Relationships with Major Oil, Natural Gas and Petrochemical
Companies. We have long-term relationships with
many of our suppliers and customers, and we believe that we will
continue to benefit from these relationships. We jointly own
facilities with many of our customers who either provide raw
materials to, or consume the end products from, our facilities.
These joint venture partners include major oil, natural gas and
petrochemical companies, including BP, Chevron, ConocoPhillips,
Dow Chemical, Enbridge, ExxonMobil, Marathon and Shell.
Large Platform for Continued Expansion. We
have strong business positions across our midstream energy
platform of assets. For the year ended December 31, 2010
and the nine months ended September 30, 2011, we spent
approximately $5.6 billion on growth capital projects and
acquisitions, including: $1.5 billion for the Haynesville
Extension of our Acadian Gas System, $1.3 billion for Eagle
Ford Shale projects, and $1.2 billion to acquire the
Stateline and Fairplay natural gas gathering systems.
We currently have approximately $4.5 billion of growth
capital projects under development that are scheduled to be put
into service between 2012 and 2014, including those to serve the
expected growth in natural gas, NGL and crude oil production
from drilling in shale plays such as the Eagle Ford Shale in
South Texas.
Large, Investment Grade Partnership with Demonstrated Access
to Capital. We are the largest publicly traded
energy partnership in the United States with approximately
$33.7 billion in total assets. We have demonstrated our
access to debt and equity capital during volatile periods.
Lower Long-Term Cost of Equity Capital. Our
merger with Holdings, the prior 100% owner of our general
partner, resulted in the cancellation of our general
partners incentive distribution rights and the
simplification of our partnership structure. Our subsequent
merger with Duncan Energy Partners L.P. (Duncan Energy
Partners), which was immediately accretive in terms of
distributable cash flow per unit, further simplified our
commercial and organizational structure. We believe that our new
capital structure provides us with a lower long-term cost of
equity capital than many of our competitors and enables us to
compete more effectively in acquiring assets and expanding our
asset base.
Experienced Management Team. Historically, we
have operated most of our pipelines and our largest natural gas
processing and fractionation facilities. As a leading provider
of midstream energy services, we have established a reputation
in the industry as a reliable and cost-effective operator. The
officers of our general partner average approximately
30 years of industry experience.
S-3
Recent
Developments
Fire
at Falcon Natural Gas Compression Station
On December 6, 2011, equipment inside our Falcon natural
gas compressor station in southwestern Wyoming caught fire. The
Falcon station, which is part of our Jonah Gas Gathering System,
provides compression to transport natural gas production from
the Pinedale field to processing plants in the region. All
Enterprise employees and contractors have been accounted for. We
have halted the flow of natural gas, isolating the compressor
station, and are working with local emergency responders and law
enforcement authorities to ensure the safety and security of the
facility. The extent of the damage is not yet known, and the
cause of the incident is under investigation. Notwithstanding
the foregoing, we do not believe that the Falcon incident will
have a material impact on our financial condition, results of
operations or cash flows.
Enterprise
Closes Sale of Mississippi Natural Gas Storage
Facilities
On December 1, 2011, Enterprise completed the sale of all
of its ownership interests in Crystal Holding L.L.C.
(Crystal) to Boardwalk HP Storage Company, LLC for
$550 million in cash. Crystal owns two underground salt dome
natural gas storage facilities and related pipelines located
near Petal and Hattiesburg, Mississippi. The facilities have
approximately 29 Bcf of total storage capacity and are owned by
Petal Gas Storage, L.L.C. (Petal) and Hattiesburg
Gas Storage Company (Hattiesburg). The Petal and
Hattiesburg operations were a component of our Onshore Natural
Gas Pipelines & Services business segment. Proceeds from
this sale will be used for general partnership purposes,
including the funding of capital expenditures.
Enterprise
and Enbridge to Reverse the Seaway Crude Oil Pipeline from
Cushing to U.S. Gulf Coast
On November 16, 2011, Enterprise and Enbridge Inc.
(Enbridge) announced an agreement to reverse the
direction of crude oil flows on the Seaway pipeline to enable it
to transport oil southbound from the oversupplied hub at
Cushing, Oklahoma to Texas Gulf Coast refiners. Pending
regulatory approval, the modified line would have an initial
transportation capacity of up to 150 thousand barrels per
day (MBPD) of crude oil by the second quarter of
2012 and a potential capacity of up to 400 MBPD by early 2013.
Management expects that the reversed and expanded Seaway
pipeline could accommodate crude oil volumes originally planned
for transport on the Wrangler crude oil pipeline previously
proposed by Enterprise and Enbridge. Shippers who participated
in the Wrangler open season have indicated strong support for
the Seaway reversal and expansion. At this time, Enterprise
expects that the parties will terminate the Wrangler pipeline
proposal. Management further expects that the reversed Seaway
pipeline will be sized at a capacity to meet shipper needs.
S-4
Organizational
Structure
The following chart depicts our organizational structure as of
November 30, 2011 and ownership after giving effect to this
offering.
The table below shows the ownership of our common units and
Class B units as of November 30, 2011 and after giving
effect to this offering.
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Current Ownership
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Ownership after the Offering
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Percentage
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Percentage
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Units
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Interest
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Units
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Interest
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Public common units
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536,884,768
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61.3%
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545,884,768
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61.7%
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EPCO common units(1)
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334,410,450
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38.2%
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334,410,450
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37.8%
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EPCO Class B units(2)
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4,520,431
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0.5%
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4,520,431
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0.5%
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Total
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875,815,649
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100.0%
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884,815,649
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100.0%
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(1) |
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Includes our common units beneficially owned by the estate of
Dan L. Duncan, related family trusts and other EPCO affiliates.
Dan Duncan LLC, a privately held affiliate of EPCO that owns
100% of the membership interests in our general partner
(DDLLC), and EPCO are each controlled by separate
voting trusts. The voting trustees of each of these voting
trusts consist of three individuals, currently Randa Duncan
Williams, Richard H. Bachmann and Dr. Ralph S. Cunningham.
Accordingly, the common units beneficially owned by DDLLC and
EPCO are now controlled by each of the respective voting trusts.
Ms. Williams also has beneficial ownership in these common
units to the extent of her pecuniary interest |
S-5
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in DDLLC and EPCO. Ms. Williams, Mr. Bachmann and Dr. Cunningham
are also co-executors of the estate of Dan L. Duncan. |
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Also includes 26,130,000 common units owned by a privately held
affiliate of EPCO currently subject to a distribution waiver
agreement and 20,881 common units owned directly by
Enterprise GP. |
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(2) |
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The Class B units are owned by a privately held affiliate
of EPCO. The Class B units are entitled to vote together
with the common units as a single class on partnership matters
and have the same rights and privileges as our common units,
except that they are not entitled to regular quarterly cash
distributions for the first sixteen quarters following the
closing date of our merger with TEPPCO Partners, L.P., which
occurred on October 26, 2009. The Class B units
automatically convert into the same number of our common units
on the date immediately following the payment date for the
sixteenth quarterly distribution following the closing date of
the TEPPCO merger. |
S-6
The
Offering
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Common units offered |
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9,000,000 common units; or 10,350,000 common units if the
underwriters exercise their option to purchase up to an
additional 1,350,000 common units in full. |
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Common units and Class B units outstanding after
this offering |
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880,295,218 common units, or 881,645,218 common units if the
underwriters exercise their option to purchase up to an
additional 1,350,000 common units in full, and 4,520,431
Class B units. |
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Use of proceeds |
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We expect to use the net proceeds from this offering, including
any exercise of the underwriters over-allotment option, to
temporarily reduce borrowings under EPOs multi-year
revolving credit facility. Affiliates of certain of the
underwriters are lenders under EPOs multi-year revolving
credit facility and, accordingly, will receive a substantial
portion of the proceeds of this offering. Please read Use
of Proceeds and Underwriting. |
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Cash distributions |
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Under our partnership agreement, we must distribute all of our
cash on hand as of the end of each quarter, less reserves
established by our general partner. We refer to this cash as
available cash, and we define its meaning in our
partnership agreement. |
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On November 9, 2011, we paid a quarterly cash distribution
with respect to the third quarter of 2011 of $0.6125 per common
unit, or $2.45 per unit on an annualized basis, which represents
a 5.2% increase over the $0.5825 per unit quarterly distribution
with respect to the third quarter of 2010. |
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Please read Cash Distribution Policy in the
accompanying prospectus. |
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Estimated ratio of taxable income to distributions |
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We estimate that if you own the common units you purchase in
this offering through December 31, 2014, you will be
allocated, on a cumulative basis, an amount of federal taxable
income for the taxable years 2011 through 2014 that will be less
than 10% of the cash distributed to you with respect to that
period. Please read Material Tax Consequences in
this prospectus supplement for the basis of this estimate. |
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New York Stock Exchange symbol |
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EPD |
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Risk factors |
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Investing in our common units involves certain risks. You should
carefully consider the risk factors discussed under the heading
Risk Factors beginning on
page S-8
of this prospectus supplement and on page 2 of the
accompanying prospectus and other information contained or
incorporated by reference in this prospectus supplement before
deciding to invest in our common units. |
S-7
RISK
FACTORS
An investment in our common units involves certain risks. You
should carefully consider the risks described under Risk
Factors in the accompanying prospectus, in our Annual
Report on
Form 10-K
for the year ended December 31, 2010, which report is
incorporated by reference herein, as well as the other
information contained in or incorporated by reference into this
prospectus supplement and the accompanying prospectus. If any of
these risks were to materialize, our business, results of
operations, cash flows and financial condition could be
materially adversely affected. In that case, the trading price
of our common units could decline, and you could lose part or
all of your investment.
S-8
USE OF
PROCEEDS
We will receive net proceeds of approximately
$389.8 million from the sale of 9,000,000 common units
in this offering, after deducting underwriting discounts,
commissions and estimated offering expenses payable by us. If
the underwriters exercise their over-allotment option in full,
we will receive net proceeds of approximately
$448.3 million. We will use the net proceeds of this
offering, including any exercise of the underwriters
over-allotment option, to temporarily reduce borrowings under
EPOs multi-year revolving credit facility.
In general, EPOs indebtedness under the multi-year
revolving credit facility was incurred for working capital
purposes, capital expenditures and other acquisitions. Amounts
repaid under the multi-year revolving credit facility may be
reborrowed from time to time for acquisitions, capital
expenditures and other general partnership purposes. As of
December 7, 2011, EPO had $625 million of borrowings
outstanding under the multi-year revolving credit facility that
bears interest at a variable rate, which on a weighted-average
basis was approximately 1.6255% per annum. EPOs multi-year
revolving credit facility will mature in September 2016.
Affiliates of certain of the underwriters are lenders under
EPOs multi-year revolving credit facility and,
accordingly, will receive a substantial portion of the proceeds
of this offering. Please read Underwriting.
S-9
PRICE
RANGE OF COMMON UNITS AND DISTRIBUTIONS
On November 30, 2011, we had 871,295,218 common units
outstanding held by approximately 2,813 holders of record and
4,520,431 Class B units held by a privately held affiliate
of EPCO. Our common units are traded on the New York Stock
Exchange under the symbol EPD.
The following table sets forth, for the periods indicated, the
high and low sales price ranges for our common units, as
reported on the New York Stock Exchange Composite Transaction
Tape, and the amount, record date and payment date of the
quarterly cash distributions paid per common unit. The last
reported sales price of our common units on the New York Stock
Exchange on December 7, 2011 was $45.94 per common
unit.
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash Distribution History
|
|
|
Price Ranges
|
|
Per
|
|
Record
|
|
Payment
|
|
|
High
|
|
Low
|
|
Unit(1)
|
|
Date
|
|
Date
|
|
2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1st Quarter
|
|
$
|
24.20
|
|
|
$
|
17.71
|
|
|
$
|
0.5375
|
|
|
April 30, 2009
|
|
May 8, 2009
|
2nd Quarter
|
|
|
26.55
|
|
|
|
21.10
|
|
|
|
0.5450
|
|
|
July 31, 2009
|
|
August 7, 2009
|
3rd Quarter
|
|
|
29.45
|
|
|
|
24.50
|
|
|
|
0.5525
|
|
|
October 30, 2009
|
|
November 5, 2009
|
4th Quarter
|
|
|
32.24
|
|
|
|
27.25
|
|
|
|
0.5600
|
|
|
January 29, 2010
|
|
February 4, 2010
|
2010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1st Quarter
|
|
$
|
34.69
|
|
|
$
|
29.44
|
|
|
$
|
0.5675
|
|
|
April 30, 2010
|
|
May 6, 2010
|
2nd Quarter
|
|
|
36.73
|
|
|
|
29.05
|
|
|
|
0.5750
|
|
|
July 30, 2010
|
|
August 5, 2010
|
3rd Quarter
|
|
|
39.69
|
|
|
|
34.21
|
|
|
|
0.5825
|
|
|
October 29, 2010
|
|
November 8, 2010
|
4th Quarter
|
|
|
44.32
|
|
|
|
39.26
|
|
|
|
0.5900
|
|
|
January 31, 2011
|
|
February 7, 2011
|
2011
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1st Quarter
|
|
$
|
44.35
|
|
|
$
|
27.85
|
|
|
$
|
0.5975
|
|
|
April 29, 2011
|
|
May 6, 2011
|
2nd Quarter
|
|
|
43.95
|
|
|
|
38.67
|
|
|
|
0.6050
|
|
|
July 29, 2011
|
|
August 10, 2011
|
3rd Quarter
|
|
|
43.95
|
|
|
|
36.36
|
|
|
|
0.6125
|
|
|
October 31, 2011
|
|
November 9, 2011
|
4th Quarter (through December 6, 2011)
|
|
|
46.70
|
|
|
|
38.01
|
|
|
|
|
(2)
|
|
|
|
|
|
|
|
(1) |
|
The quarterly cash distributions shown in the table correspond
to cash flows for the quarters indicated. The actual cash
distributions (i.e. the payments made to our common unitholders)
occur within 45 days after the end of such quarter. |
|
|
|
In connection with the Holdings merger on November 22,
2010, Enterprises partnership agreement was amended and
restated to provide for the cancellation of its general
partners 2% economic interest and incentive distribution
rights in Enterprise. In addition, a privately held affiliate of
EPCO agreed to temporarily waive the regular quarterly cash
distributions it would otherwise receive from Enterprise with
respect to a certain number of Enterprises common units
(the Designated Units) over a five-year period after
the merger closing date. The number of Designated Units to which
the temporary distribution waiver applies is as follows for
distributions to be paid, if any, during the following periods:
30,610,000 during 2011; 26,130,000 during 2012; 23,700,000
during 2013; 22,560,000 during 2014; and 17,690,000 during 2015.
Accordingly, per unit cash distributions for those periods are
not reflective of the amount of cash that would have been
distributed had such common units not been subject to the
distribution waiver. |
|
(2) |
|
The distributions with respect to the fourth quarter of 2011
will be declared and paid during the first quarter of 2012. |
S-10
CAPITALIZATION
The following table sets forth our cash and cash equivalents and
capitalization as of September 30, 2011:
|
|
|
|
|
on a consolidated historical basis; and
|
|
|
|
on an as adjusted basis to give effect to the sale of the common
units in this offering and the application of the net proceeds
as described in Use of Proceeds to temporarily
reduce borrowings under EPOs multi-year revolving credit
facility and for general partnership purposes.
|
The historical data in the table below is derived from and
should be read in conjunction with our consolidated historical
financial statements, including the accompanying notes,
incorporated by reference in this prospectus supplement. You
should read our financial statements and accompanying notes that
are incorporated by reference in this prospectus supplement for
additional information regarding our capital structure. The
historical data below does not reflect events after
September 30, 2011.
|
|
|
|
|
|
|
|
|
|
|
As of September 30, 2011
|
|
|
|
Historical
|
|
|
As Adjusted
|
|
|
|
(Unaudited)
|
|
|
|
(Dollars in millions)
|
|
|
Cash and cash equivalents
|
|
$
|
29.1
|
|
|
$
|
29.1
|
|
|
|
|
|
|
|
|
|
|
Long-term debt:
|
|
|
|
|
|
|
|
|
EPO senior debt obligations:
|
|
|
|
|
|
|
|
|
Senior Notes S, 7.625% fixed-rate, due February 2012
|
|
$
|
490.5
|
|
|
$
|
490.5
|
|
Senior Notes P, 4.60% fixed-rate, due August 2012
|
|
|
500.0
|
|
|
|
500.0
|
|
Senior Notes C, 6.375% fixed-rate, due February 2013
|
|
|
350.0
|
|
|
|
350.0
|
|
Senior Notes T, 6.125% fixed-rate, due February 2013
|
|
|
182.5
|
|
|
|
182.5
|
|
Senior Notes M, 5.65% fixed-rate, due April 2013
|
|
|
400.0
|
|
|
|
400.0
|
|
Senior Notes U, 5.90% fixed-rate, due April 2013
|
|
|
237.6
|
|
|
|
237.6
|
|
Senior Notes O, 9.75% fixed-rate, due January 2014
|
|
|
500.0
|
|
|
|
500.0
|
|
Senior Notes G, 5.60% fixed-rate, due October 2014
|
|
|
650.0
|
|
|
|
650.0
|
|
Senior Notes I, 5.00% fixed-rate, due March 2015
|
|
|
250.0
|
|
|
|
250.0
|
|
Senior Notes X, 3.70% fixed-rate, due June 2015
|
|
|
400.0
|
|
|
|
400.0
|
|
Senior Notes AA, 3.20% fixed-rate, due February 2016
|
|
|
750.0
|
|
|
|
750.0
|
|
$3.5 Billion Multi-Year Revolving Credit Facility,
variable-rate, due September
2016(1)
|
|
|
720.0
|
|
|
|
330.2
|
|
Senior Notes L, 6.30% fixed-rate, due September 2017
|
|
|
800.0
|
|
|
|
800.0
|
|
Senior Notes V, 6.65% fixed-rate, due April 2018
|
|
|
349.7
|
|
|
|
349.7
|
|
Senior Notes N, 6.50% fixed-rate, due January 2019
|
|
|
700.0
|
|
|
|
700.0
|
|
Senior Notes Q, 5.25% fixed-rate, due January 2020
|
|
|
500.0
|
|
|
|
500.0
|
|
Senior Notes Y, 5.20% fixed-rate, due September 2020
|
|
|
1,000.0
|
|
|
|
1,000.0
|
|
Senior Notes CC, 4.05% fixed-rate, due February 2022
|
|
|
650.0
|
|
|
|
650.0
|
|
Senior Notes D, 6.875% fixed-rate, due March 2033
|
|
|
500.0
|
|
|
|
500.0
|
|
Senior Notes H, 6.65% fixed-rate, due October 2034
|
|
|
350.0
|
|
|
|
350.0
|
|
Senior Notes J, 5.75% fixed-rate, due March 2035
|
|
|
250.0
|
|
|
|
250.0
|
|
Senior Notes W, 7.55% fixed-rate, due April 2038
|
|
|
399.6
|
|
|
|
399.6
|
|
Senior Notes R, 6.125% fixed-rate, due October 2039
|
|
|
600.0
|
|
|
|
600.0
|
|
Senior Notes Z, 6.45% fixed-rate, due September 2040
|
|
|
600.0
|
|
|
|
600.0
|
|
Senior Notes BB, 5.95% fixed-rate, due February 2041
|
|
|
750.0
|
|
|
|
750.0
|
|
Senior Notes DD, 5.70% fixed-rate, due February 2042
|
|
|
600.0
|
|
|
|
600.0
|
|
S-11
|
|
|
|
|
|
|
|
|
|
|
As of September 30, 2011
|
|
|
|
Historical
|
|
|
As Adjusted
|
|
|
|
(Unaudited)
|
|
|
|
(Dollars in millions)
|
|
|
TEPPCO senior debt obligations(2):
|
|
|
|
|
|
|
|
|
TEPPCO Senior Notes, 7.625% fixed-rate, due February 2012
|
|
|
9.5
|
|
|
|
9.5
|
|
TEPPCO Senior Notes, 6.125% fixed-rate, due February 2013
|
|
|
17.5
|
|
|
|
17.5
|
|
TEPPCO Senior Notes, 5.90% fixed-rate, due April 2013
|
|
|
12.4
|
|
|
|
12.4
|
|
TEPPCO Senior Notes, 6.65% fixed-rate, due April 2018
|
|
|
0.3
|
|
|
|
0.3
|
|
TEPPCO Senior Notes, 7.55% fixed-rate, due April 2038
|
|
|
0.4
|
|
|
|
0.4
|
|
|
|
|
|
|
|
|
|
|
Total principal amount of senior debt obligations
|
|
|
13,520.0
|
|
|
|
13,130.2
|
|
Enterprise Junior Subordinated Notes A,
fixed/variable-rate, due August 2066
|
|
|
550.0
|
|
|
|
550.0
|
|
Enterprise Junior Subordinated Notes C,
fixed/variable-rate, due June 2067
|
|
|
285.8
|
|
|
|
285.8
|
|
Enterprise Junior Subordinated Notes B,
fixed/variable-rate, due January 2068
|
|
|
682.7
|
|
|
|
682.7
|
|
TEPPCO Junior Subordinated Notes, fixed/variable-rate, due
June 2067
|
|
|
14.2
|
|
|
|
14.2
|
|
|
|
|
|
|
|
|
|
|
Total principal amount of senior and junior debt obligations
|
|
|
15,052.7
|
|
|
|
14,662.9
|
|
|
|
|
|
|
|
|
|
|
Total other, non-principal amounts
|
|
|
56.0
|
|
|
|
56.0
|
|
|
|
|
|
|
|
|
|
|
Total long-term debt obligations
|
|
|
15,108.7
|
|
|
|
14,718.9
|
|
|
|
|
|
|
|
|
|
|
Equity:
|
|
|
|
|
|
|
|
|
Partners equity
|
|
|
11,438.7
|
|
|
|
11,828.5
|
|
Noncontrolling interest
|
|
|
112.8
|
|
|
|
112.8
|
|
|
|
|
|
|
|
|
|
|
Total equity
|
|
|
11,551.5
|
|
|
|
11,941.3
|
|
|
|
|
|
|
|
|
|
|
Total capitalization
|
|
$
|
26,660.2
|
|
|
$
|
26,660.2
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
As of December 7, 2011, EPO had $625 million of
borrowings outstanding under its multi-year revolving credit
facility. |
|
(2) |
|
Enterprise Products Partners L.P. acts as guarantor of the
consolidated debt obligations of EPO with the exception of the
remaining debt obligations of TEPPCO. If EPO were to default on
any of its guaranteed debt, Enterprise Products Partners L.P.
would be responsible for full repayment of that obligation. |
S-12
MATERIAL
TAX CONSEQUENCES
The tax consequences to you of an investment in our common units
will depend in part on your own tax circumstances. For a
discussion of the principal federal income tax considerations
associated with our operations and the purchase, ownership and
disposition of our common units, please read Material Tax
Consequences beginning on page 27 of the accompanying
prospectus. You are urged to consult your own tax advisor about
the federal, state, foreign and local tax consequences
particular to your circumstances.
Ratio of
Taxable Income to Distributions
We estimate that if you purchase a common unit in this offering
and hold the common unit through the record date for the
distribution with respect to the quarter ending
December 31, 2014, you will be allocated, on a cumulative
basis, an amount of federal taxable income for that period that
will be less than 10% of the amount of cash distributed to you
with respect to that period. This estimate is based upon many
assumptions regarding our business and operations, including
assumptions with respect to capital expenditures, cash flows and
anticipated cash distributions. This estimate and our
assumptions are subject to, among other things, numerous
business, economic, regulatory, competitive and political
uncertainties beyond our control. Further, this estimate is
based on current tax law and tax reporting positions that we
have adopted and with which the Internal Revenue Service might
disagree. Accordingly, we cannot assure you that this estimate
will be correct. The actual ratio of allocable taxable income to
cash distributions could be higher or lower than our estimate,
and any differences could materially affect the value of the
common units. For example, the ratio of allocable taxable income
to cash distributions to a purchaser of common units in this
offering will be higher, and perhaps substantially higher, than
our estimate with respect to the period described above if:
|
|
|
|
|
gross income from operations exceeds the amount required to make
the current level of quarterly distributions on all common
units, yet we only distribute the current level of quarterly
distributions on all common units; or
|
|
|
|
we make a future offering of common units and use the proceeds
of the offering in a manner that does not produce substantial
additional deductions during the period described above, such as
to repay indebtedness outstanding at the time of this offering
or to acquire property that is not eligible for depreciation or
amortization for federal income tax purposes or that is
depreciable or amortizable at a rate significantly slower than
the rate applicable to our assets at the time of this offering.
|
Tax
Rates
Under current law, the highest marginal U.S. federal income
tax rate applicable to ordinary income of individuals is 35% and
the highest marginal U.S. federal income tax rate
applicable to long-term capital gains (generally, gains from the
sale or exchange of certain investment assets held for more than
one year) of individuals is 15%. However, absent new legislation
extending the current rates, beginning January 1, 2013, the
highest marginal U.S. federal income tax rate applicable to
ordinary income and long-term capital gains of individuals will
increase to 39.6% and 20%, respectively. Moreover, these rates
are subject to change by new legislation at any time.
Recently enacted legislation will impose a 3.8% Medicare tax on
net investment income earned by certain individuals, estates and
trusts for taxable years beginning after December 31, 2012.
For these purposes, net investment income generally includes a
unitholders allocable share of our income and gain
realized by a unitholder from a sale of common units. In the
case of an individual, the tax will be imposed on the lesser of
(1) the unitholders net investment income or
(2) the amount by which the unitholders modified
adjusted gross income exceeds $250,000 (if the unitholder is
married and filing jointly or a surviving spouse), $125,000 (if
the unitholder is married and filing separately) or $200,000 (in
any other case).
S-13
Nominee
Reporting
Persons who hold an interest in us as a nominee for another
person are required to furnish the following information to us:
(a) the name, address and taxpayer identification number of
the beneficial owner and the nominee;
(b) a statement regarding whether the beneficial owner is:
(1) a person that is not a United States person;
(2) a foreign government, an international organization or
any wholly owned agency or instrumentality of either of the
foregoing; or
(3) a tax-exempt entity;
(c) the amount and description of units held, acquired or
transferred for the beneficial owner; and
(d) specific information including the dates of
acquisitions and transfers, means of acquisitions and transfers,
and acquisition cost for purchases, as well as the amount of net
proceeds from sales.
Brokers and financial institutions are required to furnish
additional information, including whether they are United States
persons and specific information on common units they acquire,
hold or transfer for their own account. A penalty of $100 per
failure, up to a maximum of $1.5 million per calendar year,
is imposed by the Internal Revenue Code for failure to report
that information to us. The nominee is required to supply the
beneficial owner of the units with the information furnished to
us.
Tax-Exempt
Organizations and Other Investors
Ownership of common units by tax-exempt entities, regulated
investment companies and foreign investors raises issues unique
to such persons. Please read Material Tax
Consequences Tax-Exempt Organizations and Other
Investors in the accompanying prospectus.
S-14
INVESTMENT
IN US BY EMPLOYEE BENEFIT PLANS
An investment in our common units by an employee benefit plan is
subject to additional considerations because the investments of
these plans are subject to the fiduciary responsibility and
prohibited transaction provisions of ERISA, and restrictions
imposed by Section 4975 of the Internal Revenue Code. For
these purposes, the term employee benefit plan
includes, but is not limited to, qualified pension,
profit-sharing and stock bonus plans, Keogh plans, simplified
employee pension plans and tax deferred annuities or IRAs
established or maintained by an employer or employee
organization. Among other things, consideration should be given
to:
|
|
|
|
|
whether the investment is prudent under
Section 404(a)(l)(B) of ERISA;
|
|
|
|
whether in making the investment, that plan will satisfy the
diversification requirements of Section 404(a)(l)(C) of
ERISA; and
|
|
|
|
whether the investment will result in recognition of unrelated
business taxable income (please read Material Tax
Consequences Tax-Exempt Organizations and Other
Investors) by the plan and, if so, the potential after-tax
investment return.
|
In addition, the person with investment discretion with respect
to the assets of an employee benefit plan, often called a
fiduciary, should determine whether an investment in our common
units is authorized by the appropriate governing instrument and
is a proper investment for the plan.
Section 406 of ERISA and Section 4975 of the Internal
Revenue Code prohibit employee benefit plans, and IRAs that are
not considered part of an employee benefit plan, from engaging
in specified transactions involving plan assets with
parties that are parties in interest under ERISA or
disqualified persons under the Internal Revenue Code
with respect to the plan. Therefore, a fiduciary of an employee
benefit plan or an IRA accountholder that is considering an
investment in our common units should consider whether the
entitys purchase or ownership of such common units would
or could result in the occurrence of such a prohibited
transaction.
In addition to considering whether the purchase of common units
is or could result in a prohibited transaction, a fiduciary of
an employee benefit plan should consider whether the plan will,
by investing in our common units, be deemed to own an undivided
interest in our assets, with the result that our general partner
also would be a fiduciary of the plan and our operations would
be subject to the regulatory restrictions of ERISA, including
fiduciary standard and its prohibited transaction rules, as well
as the prohibited transaction rules of the Internal Revenue Code.
The Department of Labor regulations and the statutory provisions
of ERISA provide guidance with respect to whether the assets of
an entity in which employee benefit plans acquire equity
interests would be deemed plan assets under some
circumstances. Under these rules, an entitys assets would
not be considered to be plan assets if, among other
things:
|
|
|
|
|
the equity interests acquired by employee benefit plans are
publicly offered securities; i.e., the equity interests are
widely held by 100 or more investors independent of the issuer
and each other, freely transferable and registered under some
provisions of the federal securities laws;
|
|
|
|
the entity is an operating company; i.e., it is
primarily engaged in the production or sale of a product or
service other than the investment of capital either directly or
through a majority owned subsidiary or subsidiaries; or
|
|
|
|
there is no significant investment by benefit plan investors,
which is defined to mean that less than 25% of the value of each
class of equity interest, disregarding some interests held by
our general partner, its affiliates, and some other persons, are
held by employee benefit plans (as defined in Section 3(3)
of ERISA) subject to Part 4 of Title 1 of ERISA, any
plan to which Section 4975 of the Code applies, and any
entity whose underlying assets include plan assets by reason of
a plans investment in such entity.
|
Our assets should not be considered plan assets
under these regulations because it is expected that the
investment will satisfy the requirements in the first bullet
point above.
Plan fiduciaries contemplating a purchase of our common units
should consult with their own counsel regarding the consequences
under ERISA and the Internal Revenue Code in light of the
serious penalties imposed on persons who engage in prohibited
transactions or other violations.
S-15
UNDERWRITING
We are offering the common units described in this prospectus
through the underwriters named below. Barclays Capital Inc.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Citigroup Global Markets Inc., J.P. Morgan Securities LLC,
Morgan Stanley & Co. LLC and UBS Securities LLC are
acting as joint book-running managers and representatives of the
underwriters.
Subject to the terms and conditions stated in the underwriting
agreement dated the date of this prospectus supplement, which we
will file as an exhibit to a Current Report on
Form 8-K
following the pricing of this offering, each underwriter named
below has agreed to purchase from us the number of common units
set forth opposite the underwriters name.
|
|
|
|
|
|
|
Number of
|
|
|
Common Units
|
Name of Underwriter
|
|
Purchased
|
|
Barclays Capital Inc.
|
|
|
1,129,590
|
|
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
|
|
|
1,129,590
|
|
Citigroup Global Markets Inc.
|
|
|
1,129,590
|
|
J.P. Morgan Securities LLC
|
|
|
1,129,590
|
|
Morgan Stanley & Co. LLC
|
|
|
1,129,590
|
|
UBS Securities LLC
|
|
|
1,129,590
|
|
Credit Suisse Securities (USA) LLC
|
|
|
407,475
|
|
Deutsche Bank Securities Inc.
|
|
|
407,475
|
|
Raymond James & Associates, Inc.
|
|
|
407,475
|
|
RBC Capital Markets, LLC
|
|
|
407,475
|
|
Janney Montgomery Scott LLC
|
|
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148,140
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Ladenburg Thalmann & Co. Inc.
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148,140
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Morgan Keegan & Company, Inc.
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148,140
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Sanders Morris Harris Inc.
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148,140
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Total
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9,000,000
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The underwriting agreement provides that the underwriters
obligations to purchase the common units depend on the
satisfaction of the conditions contained in the underwriting
agreement, and that if any of the common units are purchased by
the underwriters, all of the common units must be purchased. The
conditions contained in the underwriting agreement include the
condition that all the representations and warranties made by us
and our affiliates to the underwriters are true, that there has
been no material adverse change in the condition of us or in the
financial markets and that we deliver to the underwriters
customary closing documents.
Over-Allotment
Option
We have granted to the underwriters an option to purchase up to
an aggregate of 1,350,000 additional common units at the
offering price to the public less the underwriting discount set
forth on the cover page of this prospectus supplement
exercisable to cover over-allotments. Such option may be
exercised in whole or in part at any time until 30 days
after the date of this prospectus supplement. If this option is
exercised, each underwriter will be committed, subject to
satisfaction of the conditions specified in the underwriting
agreement, to purchase a number of additional common units
proportionate to the underwriters initial commitment as
indicated in the preceding table, and we will be obligated,
pursuant to the option, to sell these common units to the
underwriters.
S-16
Commissions
and Expenses
The following table shows the underwriting fee to be paid to the
underwriters by us in connection with this offering. These
amounts are shown assuming both no exercise and full exercise of
the underwriters over-allotment option. This underwriting
fee is the difference between the offering price to the public
and the amount the underwriters pay to us to purchase the common
units. The per common unit amounts shown represent underwriting
fees to be paid to the underwriters with respect to common units
sold to the public.
The total amounts represent the total amount of fees to be paid
to the underwriters in connection with this offering.
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Paid by Us
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No Exercise
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Full Exercise
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Per common unit
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$
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1.34
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$
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1.34
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Total
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$
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12,060,000
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$
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13,869,000
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We have been advised by the underwriters that the underwriters
propose to offer the common units directly to the public at the
public offering price set forth on the cover page of this
prospectus supplement and to dealers (who may include the
underwriters) at this price to the public less a concession not
in excess of $0.804 per common unit. After the offering, the
underwriters may change the offering price and other selling
terms.
We estimate that total expenses of the offering, other than
underwriting discounts and commissions, will be approximately
$300,000.
Indemnification
We and certain of our affiliates have agreed to indemnify the
underwriters against certain liabilities, including liabilities
under the Securities Act of 1933, as amended, and to contribute
to payments that may be required to be made in respect of these
liabilities.
Lock-Up
Agreements
We, certain of our affiliates and the directors and executive
officers of our general partner have agreed that we and they
will not, directly or indirectly, sell, offer, pledge or
otherwise dispose of any common units or enter into any
derivative transaction with similar effect as a sale of common
units for a period of 45 days after the date of this
prospectus supplement without the prior written consent of
Barclays Capital Inc. as representative of the underwriters. The
restrictions described in this paragraph do not apply to:
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the issuance and sale of common units by us to the underwriters;
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the issuance and sale of common units, phantom units, restricted
units and options under our existing employee benefits plans,
including sales pursuant to cashless-broker
exercises of options to purchase common units in accordance with
such plans as consideration for the exercise price and
withholding taxes applicable to such exercises;
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the issuance and sale of common units pursuant to our
distribution reinvestment plan;
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the filing of a universal shelf registration
statement on
Form S-3,
which may also include common units of selling unitholders;
provided, that (1) we and our affiliates remain subject to
the 45-day
lock-up
period with respect to any common units registered under any
such registration statement, (2) such registration
statement contains only a generic and undetermined plan of
distribution with respect to the common units during the
45-day
lock-up
period, and (3) any selling unitholders registering common
units under such registration statement agree in writing to be
subject to the
45-day
lock-up
period.
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Barclays Capital Inc. may release the units subject to
lock-up
agreements in whole or in part at any time with or without
notice. When determining whether or not to release units from
lock-up
agreements, Barclays
S-17
Capital Inc. will consider, among other factors, our
unitholders reasons for requesting the release, the number
of common units for which the release is being requested and
market conditions at the time.
Price
Stabilization, Short Positions And Penalty Bids
In connection with this offering, the underwriters may engage in
stabilizing transactions, over-allotment transactions, syndicate
covering transactions and penalty bids in accordance with
Regulation M under the Securities Exchange Act of 1934, as
amended, or the Exchange Act.
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Stabilizing transactions permit bids to purchase the underlying
security so long as the stabilizing bids do not exceed a
specified maximum.
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Over-allotment transactions involve sales by the underwriters of
the common units in excess of the number of units the
underwriters are obligated to purchase, which creates a
syndicate short position. The short position may be either a
covered short position or a naked short position. In a covered
short position, the number of units over-allotted by the
underwriters is not greater than the number of units they may
purchase in the over-allotment option. In a naked short
position, the number of units involved is greater than the
number of units in the over-allotment option. The underwriters
may close out any short position by either exercising their
over-allotment option
and/or
purchasing common units in the open market.
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Syndicate covering transactions involve purchases of the common
units in the open market after the distribution has been
completed in order to cover syndicate short positions. In
determining the source of the common units to close out the
short position, the underwriters will consider, among other
things, the price of common units available for purchase in the
open market as compared to the price at which they may purchase
common units through the over-allotment option. If the
underwriters sell more common units than could be covered by the
over-allotment option, a naked short position, the position can
only be closed out by buying common units in the open market. A
naked short position is more likely to be created if the
underwriters are concerned that there could be downward pressure
on the price of the common units in the open market after
pricing that could adversely affect investors who purchase in
the offering.
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Penalty bids permit the underwriters to reclaim a selling
concession from a syndicate member when the common units
originally sold by the syndicate member are purchased in a
stabilizing or syndicate covering transaction to cover syndicate
short positions.
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These stabilizing transactions, over-allotment transactions,
syndicate covering transactions and penalty bids may have the
effect of raising or maintaining the market price of the common
units or preventing or slowing a decline in the market price of
the common units. As a result, the price of the common units may
be higher than the price that might otherwise exist in the open
market. These transactions may be effected on the New York Stock
Exchange or otherwise and, if commenced, may be discontinued at
any time.
Neither we nor any of the underwriters make any representation
or prediction as to the direction or magnitude of any effect
that the transactions described above may have on the price of
the common units. In addition, neither we nor any of the
underwriters make any representation that the underwriters will
engage in these stabilizing transactions or that any
transaction, if commenced, will not be discontinued without
notice.
Listing
Our common units are traded on the New York Stock Exchange under
the symbol EPD.
Relationships
with Underwriters
Some of the underwriters and their affiliates have performed
investment banking, commercial banking and advisory services for
us and our affiliates from time to time for which they have
received customary fees and expenses. The underwriters and their
affiliates may, from time to time in the future, engage in
transactions with and perform services for us and our affiliates
in the ordinary course of business. Additionally, affiliates
S-18
of certain of the underwriters are lenders under EPOs
multi-year revolving credit facility and, accordingly will
receive a substantial portion of the proceeds of this offering.
Because FINRA views the common units offered hereby as interests
in a direct participation program, this offering is being made
in compliance with Rule 2310 of the FINRA Rules.
Electronic
Distribution
A prospectus in electronic format may be made available by one
or more of the underwriters or their affiliates. The
representatives may agree to allocate a number of common units
to underwriters for sale to their online brokerage account
holders. The representatives will allocate common units to
underwriters that may make Internet distributions on the same
basis as other allocations. In addition, common units may be
sold by the underwriters to securities dealers who resell common
units to online brokerage account holders.
Other than the prospectus in electronic format, the information
on any underwriters web site and any information contained
in any other web site maintained by an underwriter is not part
of the prospectus or the registration statement of which this
prospectus forms a part, has not been approved
and/or
endorsed by us or any underwriter in its capacity as an
underwriter and should not be relied upon by investors.
S-19
LEGAL
MATTERS
Andrews Kurth LLP, Houston, Texas, will pass upon the validity
of the common units being offered and certain federal income tax
matters related to the common units. Certain legal matters with
respect to the common units will be passed upon for the
underwriters by Vinson & Elkins L.L.P., Houston,
Texas. Vinson & Elkins L.L.P. performs legal services
for us from time to time on matters unrelated to this offering.
EXPERTS
The consolidated financial statements of Enterprise Products
Partners L.P. and subsidiaries incorporated in this prospectus
supplement by reference to Enterprise Products Partners
L.P.s Annual Report on
Form 10-K
for the year ended December 31, 2010, and the effectiveness
of Enterprise Products Partners L.P. and subsidiaries
internal control over financial reporting have been audited by
Deloitte & Touche LLP, an independent registered
public accounting firm, as stated in their reports, which are
incorporated herein by reference (which reports (i) express
an unqualified opinion on the financial statements, refer to the
report of the other auditors as it relates to an equity method
investment in Energy Transfer Equity, L.P. for the years ended
December 31, 2009 and 2008, and include an explanatory
paragraph concerning the effect of the merger with Enterprise GP
Holdings L.P. on November 22, 2010, and (ii) express
an unqualified opinion on the effectiveness of internal control
over financial reporting). Such consolidated financial
statements have been so incorporated in reliance upon the
reports of such firm given upon their authority as experts in
accounting and auditing.
S-20
INFORMATION
INCORPORATED BY REFERENCE
We file annual, quarterly and current reports, and other
information with the Securities and Exchange Commission (the
Commission) under the Exchange Act (Commission File
No. 1-4323).
You may read and copy any document we file at the
Commissions public reference room at
100 F Street, N.E., Washington, D.C. 20549.
Please call the Commission at
1-800-732-0330
for further information on the public reference room. Our
filings are also available to the public at the
Commissions web site at
http://www.sec.gov.
In addition, documents filed by us can be inspected at the
offices of the New York Stock Exchange, Inc. 20 Broad
Street, New York, New York 10002.
The Commission allows us to incorporate by reference into this
prospectus supplement and the accompanying prospectus the
information we file with it, which means that we can disclose
important information to you by referring you to those
documents. The information incorporated by reference is
considered to be part of this prospectus supplement and the
accompanying prospectus, and later information that we file with
the Commission will automatically update and supersede this
information. We incorporate by reference the documents listed
below and any future filings we make with the Commission under
section 13(a), 13(c), 14 or 15(d) of the Exchange Act until
our offering is completed (other than information furnished
under Items 2.02 or 7.01 of any
Form 8-K,
which is not deemed filed under the Exchange Act):
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Annual Report on
Form 10-K
for the year ended December 31, 2010, as amended by
Form 10-K/A
filed on June 30, 2011;
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Quarterly Reports on
Form 10-Q
for the quarters ended March 31, 2011, June 30, 2011
and September 30, 2011;
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Current Reports on
Form 8-K
filed with the Commission on January 6, 2011,
January 13, 2011, February 23, 2011, March 15,
2011, April 29, 2011, August 10, 2011, August 12,
2011, August 16, 2011, August 22, 2011,
August 24, 2011, September 8, 2011 and
September 23, 2011; and
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The description of our common units contained in our
registration statement on
Form 8-A/A
filed on November 23, 2010, and including any other
amendments or reports filed for the purpose of updating such
description.
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We will provide without charge to each person, including any
beneficial owner, to whom this prospectus supplement has been
delivered, a copy of any and all of our filings with the
Commission. You may request a copy of these filings by writing
or telephoning us at:
Enterprise Products Partners L.P.
1100 Louisiana Street, 10th Floor
Houston, Texas 77002
Attention: Investor Relations
Telephone:
(713) 381-6500
FORWARD-LOOKING
STATEMENTS
This prospectus supplement, the accompanying prospectus and some
of the documents we have incorporated herein and therein by
reference contain various forward-looking statements and
information that are based on our beliefs and those of our
general partner, as well as assumptions made by and information
currently available to us. These forward-looking statements are
identified as any statement that does not relate strictly to
historical or current facts. When used in this prospectus
supplement, the accompanying prospectus or the documents we have
incorporated herein or therein by reference, words such as
anticipate, project, expect,
plan, seek, goal,
estimate, forecast, intend,
could, should, will,
believe, may, potential and
similar expressions and statements regarding our plans and
objectives for future operations, are intended to identify
forward-looking statements. Although we and our general partner
believe that such expectations reflected in such forward-looking
statements are reasonable, neither we nor our general partner
can give assurances that such expectations will prove to be
correct.
S-21
Such statements are subject to a variety of risks, uncertainties
and assumptions. If one or more of these risks or uncertainties
materialize, or if underlying assumptions prove incorrect, our
actual results may vary materially from those anticipated,
estimated, projected or expected. Among the key risk factors
that may have a direct bearing on our results of operations and
financial condition are:
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fluctuations in oil, natural gas and NGL prices and production
due to weather and other natural and economic forces;
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a reduction in demand for our products by the petrochemical,
refining or heating industries;
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the effects of our debt level on our future financial and
operating flexibility;
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a decline in the volumes of NGLs delivered by our facilities;
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the failure of our credit risk management efforts to adequately
protect us against customer non-payment;
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terrorist and cyber attacks aimed at our facilities; and
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our failure to successfully integrate our operations with assets
or companies we acquire.
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You should not put undue reliance on any forward-looking
statements. When considering forward-looking statements, please
review the risk factors described under Risk Factors
in the accompanying prospectus and in our Annual Report on
Form 10-K
for the year ended December 31, 2010.
* * * *
S-22
PROSPECTUS
Enterprise Products Partners
L.P.
Enterprise Products Operating
LLC
COMMON UNITS
DEBT SECURITIES
We may offer an unlimited number and amount of the following
securities under this prospectus:
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common units representing limited partner interests in
Enterprise Products Partners L.P.; and
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debt securities of Enterprise Products Operating LLC (successor
to Enterprise Products Operating L.P.), which will be guaranteed
by its parent company, Enterprise Products Partners L.P.
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This prospectus provides you with a general description of the
securities we may offer. Each time we sell securities we will
provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus
supplement may also add, update or change information contained
in this prospectus. You should read carefully this prospectus
and any prospectus supplement before you invest. You should also
read the documents we have referred you to in the Where
You Can Find More Information section of this prospectus
for information about us, including our financial statements.
Our common units are listed on the New York Stock Exchange under
the trading symbol EPD.
Unless otherwise specified in a prospectus supplement, the
senior debt securities, when issued, will be unsecured and will
rank equally with our other unsecured and unsubordinated
indebtedness. The subordinated debt securities, when issued,
will be subordinated in right of payment to our senior debt.
Investing in our common units and debt securities involves
risks. Limited partnerships are inherently different from
corporations. You should review carefully Risk
Factors beginning on page 2 for a discussion of
important risks you should consider before investing on our
securities.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
This prospectus may not be used to consummate sales of
securities by the registrants unless accompanied by a prospectus
supplement.
The date of this prospectus is November 29, 2010.
TABLE OF
CONTENTS
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1
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You should rely only on the information contained or
incorporated by reference in this prospectus or any prospectus
supplement. We have not authorized any other person to provide
you with different information. If anyone provides you with
different or inconsistent information, you should not rely on
it. You should not assume that the information incorporated by
reference or provided in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the
front of each document.
Unless the context requires otherwise or unless otherwise noted,
our, we, us and
Enterprise as used in this prospectus refer to
Enterprise Products Partners L.P. and Enterprise Products
Operating LLC, their consolidated subsidiaries and their
investments in unconsolidated affiliates.
ii
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that we file
with the Securities and Exchange Commission (the
Commission) using a shelf registration
process. Under this shelf process, we may offer from time to
time an unlimited number and amount of our securities. Each time
we offer securities, we will provide you with a prospectus
supplement that will describe, among other things, the specific
amounts, types and prices of the securities being offered and
the terms of the offering. Any prospectus supplement may add,
update or change information contained or incorporated by
reference in this prospectus. Any statement that we make in or
incorporate by reference in this prospectus will be modified or
superseded by any inconsistent statement made by us in a
prospectus supplement. Therefore, you should read this
prospectus (including any documents incorporated by reference)
and any attached prospectus supplement before you invest in our
securities.
OUR
COMPANY
We are a leading North American provider of midstream energy
services to producers and consumers of natural gas, natural gas
liquids (or NGLs), crude oil, refined products and
petrochemicals. Our midstream energy asset network links
producers of natural gas, NGLs and crude oil from some of the
largest supply basins in the United States, Canada and the Gulf
of Mexico with domestic consumers and international markets. In
addition, we are an industry leader in the development of
pipeline and other midstream energy infrastructure in the
continental United States and Gulf of Mexico. We operate an
integrated midstream energy asset network within the United
States that includes: natural gas gathering, treating,
processing, transportation and storage; NGL fractionation (or
separation), transportation, storage, and import and export
terminaling; crude oil transportation, import terminaling and
storage; refined product transportation and storage; offshore
production platform services; and petrochemical transportation
and services. NGL products (ethane, propane, normal butane,
isobutane and natural gasoline) are used as raw materials by the
petrochemical industry, as feedstocks by refiners in the
production of motor gasoline and by industrial and residential
users as fuel.
Our
Business Segments
We have six reportable business segments: (i) NGL
Pipelines & Services; (ii) Onshore Natural Gas
Pipelines & Services; (iii) Onshore Crude Oil
Pipelines & Services; (iv) Offshore
Pipelines & Services;
(v) Petrochemical & Refined Products Services;
and (vi) Other Investments. Our business segments are
generally organized and managed along our asset base according
to the type of services rendered (or technologies employed) and
products produced
and/or sold.
NGL Pipelines & Services. Our NGL
Pipelines & Services business segment includes our
(i) natural gas processing business and related NGL
marketing activities, (ii) NGL pipelines aggregating
approximately 16,300 miles, (iii) NGL and related
product storage and terminal facilities with 163.4 million
barrels, or MMBbls, of working storage capacity and
(iv) NGL fractionation facilities. This segment also
includes our import and export terminal operations.
Onshore Natural Gas Pipelines &
Services. Our Onshore Natural Gas
Pipelines & Services business segment includes
approximately 19,600 miles of onshore natural gas pipeline
systems that provide for the gathering and transportation of
natural gas in Alabama, Colorado, Louisiana, Mississippi, New
Mexico, Texas and Wyoming. We own two salt dome natural gas
storage facilities located in Mississippi and lease natural gas
storage facilities located in Texas and Louisiana. This segment
also includes our related natural gas marketing activities.
Onshore Crude Oil Pipelines &
Services. Our Onshore Crude Oil
Pipelines & Services business segment includes
approximately 4,400 miles of onshore crude oil pipelines
and 10.5 MMBbls of above-ground storage tank capacity. This
segment also includes our crude oil marketing activities.
Offshore Pipelines & Services. Our
Offshore Pipelines & Services business segment serves
some of the most active drilling and development regions,
including deepwater production fields, in the northern Gulf of
Mexico offshore Texas, Louisiana, Mississippi and Alabama. This
segment includes approximately 1,400 miles
1
of offshore natural gas pipelines, approximately
1,000 miles of offshore crude oil pipelines and six
offshore hub platforms.
Petrochemical & Refined Products
Services. Our Petrochemical & Refined
Products Services business segment consists of
(i) propylene fractionation plants and related activities,
(ii) butane isomerization facilities, (iii) an octane
enhancement facility, (iv) refined products pipelines,
including our Products Pipeline System and related activities
and (v) marine transportation and other services.
Other Investments. Our Other Investments
business segment consists of our non-controlling ownership
interests in Energy Transfer Equity L.P. (Energy Transfer
Equity) and its general partner, LE GP, LLC
(LE GP), which we acquired in connection with
our acquisition of Enterprise GP Holdings L.P. on
November 22, 2010.
Enterprise Products Operating LLC provides the foregoing
services directly and through our subsidiaries and
unconsolidated affiliates. Our principal offices are located at
1100 Louisiana Street, 10th Floor, Houston, Texas 77002,
and our telephone number is
(713) 381-6500.
RISK
FACTORS
Limited partner interests are inherently different from the
capital stock of a corporation, although many of the business
risks to which we are subject are similar to those that would be
faced by a corporation engaged in a similar business. Before you
invest in our securities, you should carefully consider the risk
factors included as Exhibit 99.2 to our current report on
Form 8-K filed on November 23, 2010 and in our most
recent annual report on
Form 10-K
and our quarterly reports on
Form 10-Q
that are incorporated herein by reference and those that may be
included in the applicable prospectus supplement, together with
all of the other information included in this prospectus, any
prospectus supplement and the documents we incorporate by
reference in evaluating an investment in our securities.
If any of the risks discussed in the foregoing documents were
actually to occur, our business, financial condition, results of
operations, or cash flow could be materially adversely affected.
In that case, our ability to make distributions to our
unitholders or pay interest on, or the principal of, any debt
securities, may be reduced, the trading price of our securities
could decline and you could lose all or part of your investment.
2
USE OF
PROCEEDS
We will use the net proceeds from any sale of securities
described in this prospectus for future business acquisitions
and other general partnership or company purposes, such as
working capital, investments in subsidiaries, the retirement of
existing debt
and/or the
repurchase of common units or other securities. The prospectus
supplement will describe the actual use of the net proceeds from
the sale of securities. The exact amounts to be used and when
the net proceeds will be applied to partnership or company
purposes will depend on a number of factors, including our
funding requirements and the availability of alternative funding
sources.
RATIO OF
EARNINGS TO FIXED CHARGES
Enterprises ratio of earnings to fixed charges for each of
the periods indicated is as follows:
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Nine Months
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Ended
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Year Ended December 31,
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September 30,
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2005
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2006
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2007
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2008
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2009
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2010
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2.7x
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2.9x
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2.6x
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2.8x
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2.6x
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3.1x
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For purposes of these calculations, earnings is the
amount resulting from adding and subtracting the following items:
Add the following, as applicable:
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consolidated pre-tax income from continuing operations before
adjustment for income or loss from equity investees;
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fixed charges;
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amortization of capitalized interest;
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distributed income of equity investees; and
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our share of pre-tax losses of equity investees for which
charges arising from guarantees are included in fixed charges.
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From the subtotal of the added items, subtract the following, as
applicable:
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interest capitalized;
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preference security dividend requirements of consolidated
subsidiaries; and
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the noncontrolling interest in pre-tax income of subsidiaries
that have not incurred fixed charges.
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The term fixed charges means the sum of the
following: interest expensed and capitalized; amortized
premiums, discounts and capitalized expenses related to
indebtedness; an estimate of interest within rental expense; and
preference dividend requirements of consolidated subsidiaries.
3
DESCRIPTION
OF DEBT SECURITIES
In this Description of Debt Securities references to the
Issuer mean only Enterprise Products Operating LLC
(successor to Enterprise Products Operating L.P.) and not its
subsidiaries. References to the Guarantor mean only
Enterprise Products Partners L.P. and not its subsidiaries.
References to we and us mean the Issuer
and the Guarantor collectively.
The debt securities will be issued under an Indenture dated as
of October 4, 2004, as amended by the Tenth Supplemental
Indenture, dated as of June 30, 2007, and as further
amended by one or more additional supplemental indentures
(collectively, the Indenture), among the Issuer, the
Guarantor, and Wells Fargo Bank, National Association, as
trustee (the Trustee). The terms of the debt
securities will include those expressly set forth in the
Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939, as amended (the
Trust Indenture Act). Capitalized terms used in
this Description of Debt Securities have the meanings specified
in the Indenture.
This Description of Debt Securities is intended to be a useful
overview of the material provisions of the debt securities and
the Indenture. Since this Description of Debt Securities is only
a summary, you should refer to the Indenture for a complete
description of our obligations and your rights.
General
The Indenture does not limit the amount of debt securities that
may be issued thereunder. Debt securities may be issued under
the Indenture from time to time in separate series, each up to
the aggregate amount authorized for such series. The debt
securities will be general obligations of the Issuer and the
Guarantor and may be subordinated to Senior Indebtedness of the
Issuer and the Guarantor. See
Subordination.
A prospectus supplement and a supplemental indenture (or a
resolution of our Board of Directors and accompanying
officers certificate) relating to any series of debt
securities being offered will include specific terms relating to
the offering. These terms will include some or all of the
following:
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the form and title of the debt securities;
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the total principal amount of the debt securities;
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the portion of the principal amount which will be payable if the
maturity of the debt securities is accelerated;
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the currency or currency unit in which the debt securities will
be paid, if not U.S. dollars;
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any right we may have to defer payments of interest by extending
the dates payments are due whether interest on those deferred
amounts will be payable as well;
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the dates on which the principal of the debt securities will be
payable;
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the interest rate which the debt securities will bear and the
interest payment dates for the debt securities;
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any optional redemption provisions;
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any sinking fund or other provisions that would obligate us to
repurchase or otherwise redeem the debt securities;
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any changes to or additional Events of Default or covenants;
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whether the debt securities are to be issued as Registered
Securities or Bearer Securities or both; and any special
provisions for Bearer Securities;
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the subordination, if any, of the debt securities and any
changes to the subordination provisions of the
Indenture; and
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any other terms of the debt securities.
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4
The prospectus supplement will also describe any material United
States federal income tax consequences or other special
considerations applicable to the applicable series of debt
securities, including those applicable to:
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Bearer Securities;
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debt securities with respect to which payments of principal,
premium or interest are determined with reference to an index or
formula, including changes in prices of particular securities,
currencies or commodities;
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debt securities with respect to which principal, premium or
interest is payable in a foreign or composite currency;
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debt securities that are issued at a discount below their stated
principal amount, bearing no interest or interest at a rate that
at the time of issuance is below market rates; and
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variable rate debt securities that are exchangeable for fixed
rate debt securities.
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At our option, we may make interest payments, by check mailed to
the registered holders thereof or, if so stated in the
applicable prospectus supplement, at the option of a holder by
wire transfer to an account designated by the holder. Except as
otherwise provided in the applicable prospectus supplement, no
payment on a Bearer Security will be made by mail to an address
in the United States or by wire transfer to an account in the
United States.
Registered Securities may be transferred or exchanged, and they
may be presented for payment, at the office of the Trustee or
the Trustees agent in New York City indicated in the
applicable prospectus supplement, subject to the limitations
provided in the Indenture, without the payment of any service
charge, other than any applicable tax or governmental charge.
Bearer Securities will be transferable only by delivery.
Provisions with respect to the exchange of Bearer Securities
will be described in the applicable prospectus supplement.
Any funds we pay to a paying agent for the payment of amounts
due on any debt securities that remain unclaimed for two years
will be returned to us, and the holders of the debt securities
must thereafter look only to us for payment thereof.
Guarantee
The Guarantor will unconditionally guarantee to each holder and
the Trustee the full and prompt payment of principal of,
premium, if any, and interest on the debt securities, when and
as the same become due and payable, whether at maturity, upon
redemption or repurchase, by declaration of acceleration or
otherwise.
Certain
Covenants
Except as set forth below or as may be provided in a prospectus
supplement and supplemental indenture, neither the Issuer nor
the Guarantor is restricted by the Indenture from incurring any
type of indebtedness or other obligation, from paying dividends
or making distributions on its partnership interests or capital
stock or purchasing or redeeming its partnership interests or
capital stock. The Indenture does not require the maintenance of
any financial ratios or specified levels of net worth or
liquidity. In addition, the Indenture does not contain any
provisions that would require the Issuer to repurchase or redeem
or otherwise modify the terms of any of the debt securities upon
a change in control or other events involving the Issuer which
may adversely affect the creditworthiness of the debt securities.
Limitations on Liens. The Indenture provides
that the Guarantor will not, nor will it permit any Subsidiary
to, create, assume, incur or suffer to exist any mortgage, lien,
security interest, pledge, charge or other encumbrance
(liens) other than Permitted Liens (as defined
below) upon any Principal Property (as defined below) or upon
any shares of capital stock of any Subsidiary owning or leasing,
either directly or through ownership in another Subsidiary, any
Principal Property (a Restricted Subsidiary),
whether owned or leased on the date of the Indenture or
thereafter acquired, to secure any indebtedness for borrowed
money
5
(debt) of the Guarantor or the Issuer or any other
person (other than the debt securities), without in any such
case making effective provision whereby all of the debt
securities outstanding shall be secured equally and ratably
with, or prior to, such debt so long as such debt shall be so
secured.
In the Indenture, the term Consolidated Net Tangible
Assets means, at any date of determination, the total
amount of assets of the Guarantor and its consolidated
subsidiaries after deducting therefrom:
(1) all current liabilities (excluding (A) any current
liabilities that by their terms are extendable or renewable at
the option of the obligor thereon to a time more than
12 months after the time as of which the amount thereof is
being computed, and (B) current maturities of long-term
debt); and
(2) the value (net of any applicable reserves) of all
goodwill, trade names, trademarks, patents and other like
intangible assets, all as set forth, or on a pro forma basis
would be set forth, on the consolidated balance sheet of the
Guarantor and its consolidated subsidiaries for the
Guarantors most recently completed fiscal quarter,
prepared in accordance with generally accepted accounting
principles.
Permitted Liens means:
(1) liens upon rights-of-way for pipeline purposes;
(2) any statutory or governmental lien or lien arising by
operation of law, or any mechanics, repairmens,
materialmens, suppliers, carriers,
landlords, warehousemens or similar lien incurred in
the ordinary course of business which is not yet due or which is
being contested in good faith by appropriate proceedings and any
undetermined lien which is incidental to construction,
development, improvement or repair; or any right reserved to, or
vested in, any municipality or public authority by the terms of
any right, power, franchise, grant, license, permit or by any
provision of law, to purchase or recapture or to designate a
purchaser of, any property;
(3) liens for taxes and assessments which are (a) for
the then current year, (b) not at the time delinquent, or
(c) delinquent but the validity or amount of which is being
contested at the time by the Guarantor or any Subsidiary in good
faith by appropriate proceedings;
(4) liens of, or to secure performance of, leases, other
than capital leases; or any lien securing industrial
development, pollution control or similar revenue bonds;
(5) any lien upon property or assets acquired or sold by
the Guarantor or any Subsidiary resulting from the exercise of
any rights arising out of defaults on receivables;
(6) any lien in favor of the Guarantor or any Subsidiary;
or any lien upon any property or assets of the Guarantor or any
Subsidiary in existence on the date of the execution and
delivery of the Indenture;
(7) any lien in favor of the United States of America or
any state thereof, or any department, agency or instrumentality
or political subdivision of the United States of America or any
state thereof, to secure partial, progress, advance, or other
payments pursuant to any contract or statute, or any debt
incurred by the Guarantor or any Subsidiary for the purpose of
financing all or any part of the purchase price of, or the cost
of constructing, developing, repairing or improving, the
property or assets subject to such lien;
(8) any lien incurred in the ordinary course of business in
connection with workmens compensation, unemployment
insurance, temporary disability, social security, retiree health
or similar laws or regulations or to secure obligations imposed
by statute or governmental regulations;
(9) liens in favor of any person to secure obligations
under provisions of any letters of credit, bank guarantees,
bonds or surety obligations required or requested by any
governmental authority in connection with any contract or
statute; or any lien upon or deposits of any assets to secure
performance of bids, trade contracts, leases or statutory
obligations;
(10) any lien upon any property or assets created at the
time of acquisition of such property or assets by the Guarantor
or any Subsidiary or within one year after such time to secure
all or a portion of the purchase price for such property or
assets or debt incurred to finance such purchase price, whether
such debt was incurred prior to, at the time of or within one
year after the date of such acquisition; or
6
any lien upon any property or assets to secure all or part of
the cost of construction, development, repair or improvements
thereon or to secure debt incurred prior to, at the time of, or
within one year after completion of such construction,
development, repair or improvements or the commencement of full
operations thereof (whichever is later), to provide funds for
any such purpose;
(11) any lien upon any property or assets existing thereon
at the time of the acquisition thereof by the Guarantor or any
Subsidiary and any lien upon any property or assets of a person
existing thereon at the time such person becomes a Subsidiary by
acquisition, merger or otherwise; provided that, in each case,
such lien only encumbers the property or assets so acquired or
owned by such person at the time such person becomes a
Subsidiary;
(12) liens imposed by law or order as a result of any
proceeding before any court or regulatory body that is being
contested in good faith, and liens which secure a judgment or
other court-ordered award or settlement as to which the
Guarantor or the applicable Subsidiary has not exhausted its
appellate rights;
(13) any extension, renewal, refinancing, refunding or
replacement (or successive extensions, renewals, refinancing,
refunding or replacements) of liens, in whole or in part,
referred to in clauses (1) through (12) above;
provided, however, that any such extension, renewal,
refinancing, refunding or replacement lien shall be limited to
the property or assets covered by the lien extended, renewed,
refinanced, refunded or replaced and that the obligations
secured by any such extension, renewal, refinancing, refunding
or replacement lien shall be in an amount not greater than the
amount of the obligations secured by the lien extended, renewed,
refinanced, refunded or replaced and any expenses of the
Guarantor and its Subsidiaries (including any premium) incurred
in connection with such extension, renewal, refinancing,
refunding or replacement; or
(14) any lien resulting from the deposit of moneys or
evidence of indebtedness in trust for the purpose of defeasing
debt of the Guarantor or any Subsidiary.
Principal Property means, whether owned or
leased on the date of the Indenture or thereafter acquired:
(1) any pipeline assets of the Guarantor or any Subsidiary,
including any related facilities employed in the transportation,
distribution, storage or marketing of refined petroleum
products, natural gas liquids, and petrochemicals, that are
located in the United States of America or any territory or
political subdivision thereof; and
(2) any processing or manufacturing plant or terminal owned
or leased by the Guarantor or any Subsidiary that is located in
the United States or any territory or political subdivision
thereof,
except, in the case of either of the foregoing clauses (1)
or (2):
(a) any such assets consisting of inventories, furniture,
office fixtures and equipment (including data processing
equipment), vehicles and equipment used on, or useful with,
vehicles; and
(b) any such assets, plant or terminal which, in the
opinion of the board of directors of the general partner of the
Issuer, is not material in relation to the activities of the
Issuer or of the Guarantor and its Subsidiaries taken as a whole.
Subsidiary means:
(1) the Issuer; or
(2) any corporation, association or other business entity
of which more than 50% of the total voting power of the equity
interests entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or
trustees thereof or any partnership of which more than 50% of
the partners equity interests (considering all
partners equity interests as a single class) is, in each
case, at the time owned or controlled, directly or indirectly,
by the Guarantor, the Issuer or one or more of the other
Subsidiaries of the Guarantor or the Issuer or combination
thereof.
Notwithstanding the preceding, under the Indenture, the
Guarantor may, and may permit any Subsidiary to, create, assume,
incur, or suffer to exist any lien (other than a Permitted Lien)
upon any Principal Property
7
or capital stock of a Restricted Subsidiary to secure debt of
the Guarantor, the Issuer or any other person (other than the
debt securities), without securing the debt securities, provided
that the aggregate principal amount of all debt then outstanding
secured by such lien and all similar liens, together with all
Attributable Indebtedness from Sale-Leaseback Transactions
(excluding Sale-Leaseback Transactions permitted by
clauses (1) through (4), inclusive, of the first paragraph
of the restriction on sale-leasebacks covenant described below)
does not exceed 10% of Consolidated Net Tangible Assets.
Restriction on Sale-Leasebacks. The Indenture
provides that the Guarantor will not, and will not permit any
Subsidiary to, engage in the sale or transfer by the Guarantor
or any Subsidiary of any Principal Property to a person (other
than the Issuer or a Subsidiary) and the taking back by the
Guarantor or any Subsidiary, as the case may be, of a lease of
such Principal Property (a Sale-Leaseback
Transaction), unless:
(1) such Sale-Leaseback Transaction occurs within one year
from the date of completion of the acquisition of the Principal
Property subject thereto or the date of the completion of
construction, development or substantial repair or improvement,
or commencement of full operations on such Principal Property,
whichever is later;
(2) the Sale-Leaseback Transaction involves a lease for a
period, including renewals, of not more than three years;
(3) the Guarantor or such Subsidiary would be entitled to
incur debt secured by a lien on the Principal Property subject
thereto in a principal amount equal to or exceeding the
Attributable Indebtedness from such Sale-Leaseback Transaction
without equally and ratably securing the debt securities; or
(4) the Guarantor or such Subsidiary, within a one-year
period after such Sale-Leaseback Transaction, applies or causes
to be applied an amount not less than the Attributable
Indebtedness from such Sale-Leaseback Transaction to
(a) the prepayment, repayment, redemption, reduction or
retirement of any debt of the Guarantor or any Subsidiary that
is not subordinated to the debt securities, or (b) the
expenditure or expenditures for Principal Property used or to be
used in the ordinary course of business of the Guarantor or its
Subsidiaries.
Attributable Indebtedness, when used with respect to
any Sale-Leaseback Transaction, means, as at the time of
determination, the present value (discounted at the rate set
forth or implicit in the terms of the lease included in such
transaction) of the total obligations of the lessee for rental
payments (other than amounts required to be paid on account of
property taxes, maintenance, repairs, insurance, assessments,
utilities, operating and labor costs and other items that do not
constitute payments for property rights) during the remaining
term of the lease included in such Sale-Leaseback Transaction
(including any period for which such lease has been extended).
In the case of any lease that is terminable by the lessee upon
the payment of a penalty or other termination payment, such
amount shall be the lesser of the amount determined assuming
termination upon the first date such lease may be terminated (in
which case the amount shall also include the amount of the
penalty or termination payment, but no rent shall be considered
as required to be paid under such lease subsequent to the first
date upon which it may be so terminated) or the amount
determined assuming no such termination.
Notwithstanding the preceding, under the Indenture the Guarantor
may, and may permit any Subsidiary to, effect any Sale-Leaseback
Transaction that is not excepted by clauses (1) through
(4), inclusive, of the first paragraph under
Restrictions on Sale-Leasebacks,
provided that the Attributable Indebtedness from such
Sale-Leaseback Transaction, together with the aggregate
principal amount of all other such Attributable Indebtedness
deemed to be outstanding in respect of all Sale-Leaseback
Transactions and all outstanding debt (other than the debt
securities) secured by liens (other than Permitted Liens) upon
Principal Properties or upon capital stock of any Restricted
Subsidiary, do not exceed 10% of Consolidated Net Tangible
Assets.
Merger, Consolidation or Sale of Assets. The
Indenture provides that each of the Guarantor and the Issuer
may, without the consent of the holders of any of the debt
securities, consolidate with or sell, lease,
8
convey all or substantially all of its assets to, or merge with
or into, any partnership, limited liability company or
corporation if:
(1) the entity surviving any such consolidation or merger
or to which such assets shall have been transferred (the
successor) is either the Guarantor or the Issuer, as
applicable, or the successor is a domestic partnership, limited
liability company or corporation and expressly assumes all the
Guarantors or the Issuers, as the case may be,
obligations and liabilities under the Indenture and the debt
securities (in the case of the Issuer) and the Guarantee (in the
case of the Guarantor);
(2) immediately after giving effect to the transaction no
Default or Event of Default has occurred and is
continuing; and
(3) the Issuer and the Guarantor have delivered to the
Trustee an officers certificate and an opinion of counsel,
each stating that such consolidation, merger or transfer
complies with the Indenture.
The successor will be substituted for the Guarantor or the
Issuer, as the case may be, in the Indenture with the same
effect as if it had been an original party to the Indenture.
Thereafter, the successor may exercise the rights and powers of
the Guarantor or the Issuer, as the case may be, under the
Indenture, in its name or in its own name. If the Guarantor or
the Issuer sells or transfers all or substantially all of its
assets, it will be released from all liabilities and obligations
under the Indenture and under the debt securities (in the case
of the Issuer) and the Guarantee (in the case of the Guarantor)
except that no such release will occur in the case of a lease of
all or substantially all of its assets.
Events of
Default
Each of the following will be an Event of Default under the
Indenture with respect to a series of debt securities:
(1) default in any payment of interest on any debt
securities of that series when due, continued for 30 days;
(2) default in the payment of principal of or premium, if
any, on any debt securities of that series when due at its
stated maturity, upon optional redemption, upon declaration or
otherwise;
(3) failure by the Guarantor or the Issuer to comply for
60 days after notice with its other agreements contained in
the Indenture;
(4) certain events of bankruptcy, insolvency or
reorganization of the Issuer or the Guarantor (the
bankruptcy provisions); or
(5) the Guarantee ceases to be in full force and effect or
is declared null and void in a judicial proceeding or the
Guarantor denies or disaffirms its obligations under the
Indenture or the Guarantee.
However, a default under clause (3) of this paragraph will
not constitute an Event of Default until the Trustee or the
holders of at least 25% in principal amount of the outstanding
debt securities of that series notify the Issuer and the
Guarantor of the default such default is not cured within the
time specified in clause (3) of this paragraph after
receipt of such notice.
An Event of Default for a particular series of debt securities
will not necessarily constitute an Event of Default for any
other series of debt securities that may be issued under the
Indenture. If an Event of Default (other than an Event of
Default described in clause (4) above) occurs and is
continuing, the Trustee by notice to the Issuer, or the holders
of at least 25% in principal amount of the outstanding debt
securities of that series by notice to the Issuer and the
Trustee, may, and the Trustee at the request of such holders
shall, declare the principal of, premium, if any, and accrued
and unpaid interest, if any, on all the debt securities of that
series to be due and payable. Upon such a declaration, such
principal, premium and accrued and unpaid interest will be due
and payable immediately. If an Event of Default described in
clause (4) above occurs and is continuing, the principal
of, premium, if any, and accrued and unpaid interest on all the
debt securities will become and be immediately due and payable
without any declaration or other act on the part of the Trustee
or any holders. However, the effect of such provision may be
limited by applicable law. The holders of a majority in
principal
9
amount of the outstanding debt securities of a series may
rescind any such acceleration with respect to the debt
securities of that series and its consequences if rescission
would not conflict with any judgment or decree of a court of
competent jurisdiction and all existing Events of Default with
respect to that series, other than the nonpayment of the
principal of, premium, if any, and interest on the debt
securities of that series that have become due solely by such
declaration of acceleration, have been cured or waived.
Subject to the provisions of the Indenture relating to the
duties of the Trustee, if an Event of Default with respect to a
series of debt securities occurs and is continuing, the Trustee
will be under no obligation to exercise any of the rights or
powers under the Indenture at the request or direction of any of
the holders of debt securities of that series, unless such
holders have offered to the Trustee reasonable indemnity or
security against any loss, liability or expense. Except to
enforce the right to receive payment of principal, premium, if
any, or interest when due, no holder of debt securities of any
series may pursue any remedy with respect to the Indenture or
the debt securities of that series unless:
(1) such holder has previously given the Trustee notice
that an Event of Default with respect to the debt securities of
that series is continuing;
(2) holders of at least 25% in principal amount of the
outstanding debt securities of that series have requested the
Trustee to pursue the remedy;
(3) such holders have offered the Trustee reasonable
security or indemnity against any loss, liability or expense;
(4) the Trustee has not complied with such request within
60 days after the receipt of the request and the offer of
security or indemnity; and
(5) the holders of a majority in principal amount of the
outstanding debt securities of that series have not given the
Trustee a direction that, in the opinion of the Trustee, is
inconsistent with such request within such
60-day
period.
Subject to certain restrictions, the holders of a majority in
principal amount of the outstanding debt securities of each
series have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the
Trustee or of exercising any trust or power conferred on the
Trustee with respect to that series of debt securities. The
Trustee, however, may refuse to follow any direction that
conflicts with law or the Indenture or that the Trustee
determines is unduly prejudicial to the rights of any other
holder of debt securities of that series or that would involve
the Trustee in personal liability.
The Indenture provides that if a Default (that is, an event that
is, or after notice or the passage of time would be, an Event of
Default) with respect to the debt securities of a particular
series occurs and is continuing and is known to the Trustee, the
Trustee must mail to each holder of debt securities of that
series notice of the Default within 90 days after it
occurs. Except in the case of a Default in the payment of
principal of, premium, if any, or interest on the debt
securities of that series, the Trustee may withhold notice, but
only if and so long as the Trustee in good faith determines that
withholding notice is in the interests of the holders of debt
securities of that series. In addition, the Issuer is required
to deliver to the Trustee, within 120 days after the end of
each fiscal year, an officers certificate as to compliance
with all covenants in the Indenture and indicating whether the
signers thereof know of any Default or Event of Default that
occurred during the previous year. The Issuer also is required
to deliver to the Trustee, within 30 days after the
occurrence thereof, an officers certificate specifying any
Default or Event of Default, its status and what action the
Issuer is taking or proposes to take in respect thereof.
Amendments
and Waivers
Amendments of the Indenture may be made by the Issuer, the
Guarantor and the Trustee with the consent of the holders of a
majority in principal amount of all debt securities of each
series affected thereby then outstanding under the Indenture
(including consents obtained in connection with a tender offer
or exchange
10
offer for the debt securities). However, without the consent of
each holder of outstanding debt securities affected thereby, no
amendment may, among other things:
(1) reduce the percentage in principal amount of debt
securities whose holders must consent to an amendment;
(2) reduce the stated rate of or extend the stated time for
payment of interest on any debt securities;
(3) reduce the principal of or extend the stated maturity
of any debt securities;
(4) reduce the premium payable upon the redemption of any
debt securities or change the time at which any debt securities
may be redeemed;
(5) make any debt securities payable in money other than
that stated in the debt securities;
(6) impair the right of any holder to receive payment of,
premium, if any, principal of and interest on such holders
debt securities on or after the due dates therefor or to
institute suit for the enforcement of any payment on or with
respect to such holders debt securities;
(7) make any change in the amendment provisions which
require each holders consent or in the waiver provisions;
(8) release any security that may have been granted in
respect of the debt securities; or
(9) release the Guarantor or modify the Guarantee in any
manner adverse to the holders.
The holders of a majority in aggregate principal amount of the
outstanding debt securities of each series affected thereby, may
waive compliance by the Issuer and the Guarantor with certain
restrictive covenants on behalf of all holders of debt
securities of such series, including those described under
Certain Covenants Limitations on
Liens and Certain Covenants
Restriction on Sale-Leasebacks. The holders of a majority
in principal amount of the outstanding debt securities of each
series affected thereby, on behalf of all such holders, may
waive any past Default or Event of Default with respect to that
series (including any such waiver obtained in connection with a
tender offer or exchange offer for the debt securities), except
a Default or Event of Default in the payment of principal,
premium or interest or in respect of a provision that under the
Indenture that cannot be amended without the consent of all
holders of the series of debt securities that is affected.
Without the consent of any holder, the Issuer, the Guarantor and
the Trustee may amend the Indenture to:
(1) cure any ambiguity, omission, defect or inconsistency;
(2) provide for the assumption by a successor of the
obligations of the Guarantor or the Issuer under the Indenture;
(3) provide for uncertificated debt securities in addition
to or in place of certificated debt securities (provided that
the uncertificated debt securities are issued in registered form
for purposes of Section 163(f) of the Code, or in a manner
such that the uncertificated debt securities are described in
Section 163(f)(2)(B) of the Code);
(4) add or release guarantees by any Subsidiary with
respect to the debt securities, in either case as provided in
the Indenture;
(5) secure the debt securities or a guarantee;
(6) add to the covenants of the Guarantor or the Issuer for
the benefit of the holders or surrender any right or power
conferred upon the Guarantor or the Issuer;
(7) make any change that does not adversely affect the
rights of any holder;
(8) comply with any requirement of the Commission in
connection with the qualification of the Indenture under the
Trust Indenture Act; and
(9) issue any other series of debt securities under the
Indenture.
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The consent of the holders is not necessary under the Indenture
to approve the particular form of any proposed amendment. It is
sufficient if such consent approves the substance of the
proposed amendment. After an amendment requiring consent of the
holders becomes effective, the Issuer is required to mail to the
holders of an affected series a notice briefly describing such
amendment. However, the failure to give such notice to all such
holders, or any defect therein, will not impair or affect the
validity of the amendment.
Defeasance
and Discharge
The Issuer at any time may terminate all its obligations under
the Indenture as they relate to a series of debt securities
(legal defeasance), except for certain obligations,
including those respecting the defeasance trust and obligations
to register the transfer or exchange of the debt securities of
that series, to replace mutilated, destroyed, lost or stolen
debt securities of that series and to maintain a registrar and
paying agent in respect of such debt securities.
The Issuer at any time may terminate its obligations under
covenants described under Certain
Covenants (other than Merger, Consolidation or Sale
of Assets) and the bankruptcy provisions with respect to
the Guarantor, and the Guarantee provision, described under
Events of Default above with respect to
a series of debt securities (covenant defeasance).
The Issuer may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance
option. If the Issuer exercises its legal defeasance option,
payment of the defeased series of debt securities may not be
accelerated because of an Event of Default with respect thereto.
If the Issuer exercises its covenant defeasance option, payment
of the affected series of debt securities may not be accelerated
because of an Event of Default specified in clause (3), (4),
(with respect only to the Guarantor) or (5) under
Events of Default above. If the Issuer
exercises either its legal defeasance option or its covenant
defeasance option, each guarantee will terminate with respect to
the debt securities of the defeased series and any security that
may have been granted with respect to such debt securities will
be released.
In order to exercise either defeasance option, the Issuer must
irrevocably deposit in trust (the defeasance trust)
with the Trustee money, U.S. Government Obligations (as
defined in the Indenture) or a combination thereof for the
payment of principal, premium, if any, and interest on the
relevant series of debt securities to redemption or maturity, as
the case may be, and must comply with certain other conditions,
including delivery to the Trustee of an opinion of counsel
(subject to customary exceptions and exclusions) to the effect
that holders of that series of debt securities will not
recognize income, gain or loss for federal income tax purposes
as a result of such deposit and defeasance and will be subject
to federal income tax on the same amounts and in the same manner
and at the same times as would have been the case if such
defeasance had not occurred. In the case of legal defeasance
only, such opinion of counsel must be based on a ruling of the
Internal Revenue Service (IRS) or other change in
applicable federal income tax law.
In the event of any legal defeasance, holders of the debt
securities of the relevant series would be entitled to look only
to the trust fund for payment of principal of and any premium
and interest on their debt securities until maturity.
Although the amount of money and U.S. Government
Obligations on deposit with the Trustee would be intended to be
sufficient to pay amounts due on the debt securities of a
defeased series at the time of their stated maturity, if the
Issuer exercises its covenant defeasance option for the debt
securities of any series and the debt securities are declared
due and payable because of the occurrence of an Event of
Default, such amount may not be sufficient to pay amounts due on
the debt securities of that series at the time of the
acceleration resulting from such Event of Default. The Issuer
would remain liable for such payments, however.
In addition, the Issuer may discharge all its obligations under
the Indenture with respect to debt securities of any series,
other than its obligation to register the transfer of and
exchange notes of that series, provided that it either:
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delivers all outstanding debt securities of that series to the
Trustee for cancellation; or
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all such debt securities not so delivered for cancellation have
either become due and payable or will become due and payable at
their stated maturity within one year or are called for
redemption within one year, and in the case of this bullet point
the Issuer has deposited with the Trustee in trust an amount of
cash sufficient to pay the entire indebtedness of such debt
securities, including interest to the stated maturity or
applicable redemption date.
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Subordination
Debt securities of a series may be subordinated to our Senior
Indebtedness, which we define generally to include all notes or
other evidences of indebtedness for money borrowed by the
Issuer, including guarantees, that are not expressly subordinate
or junior in right of payment to any other indebtedness of the
Issuer. Subordinated debt securities and the Guarantors
guarantee thereof will be subordinate in right of payment, to
the extent and in the manner set forth in the Indenture and the
prospectus supplement relating to such series, to the prior
payment of all indebtedness of the Issuer and Guarantor that is
designated as Senior Indebtedness with respect to
the series.
The holders of Senior Indebtedness of the Issuer will receive
payment in full of the Senior Indebtedness before holders of
subordinated debt securities will receive any payment of
principal, premium or interest with respect to the subordinated
debt securities:
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upon any payment of distribution of our assets of the Issuer to
its creditors;
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upon a total or partial liquidation or dissolution of the
Issuer; or
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in a bankruptcy, receivership or similar proceeding relating to
the Issuer or its property.
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Until the Senior Indebtedness is paid in full, any distribution
to which holders of subordinated debt securities would otherwise
be entitled will be made to the holders of Senior Indebtedness,
except that such holders may receive units representing limited
partner interests and any debt securities that are subordinated
to Senior Indebtedness to at least the same extent as the
subordinated debt securities.
If the Issuer does not pay any principal, premium or interest
with respect to Senior Indebtedness within any applicable grace
period (including at maturity), or any other default on Senior
Indebtedness occurs and the maturity of the Senior Indebtedness
is accelerated in accordance with its terms, the Issuer may not:
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make any payments of principal, premium, if any, or interest
with respect to subordinated debt securities;
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make any deposit for the purpose of defeasance of the
subordinated debt securities; or
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repurchase, redeem or otherwise retire any subordinated debt
securities, except that in the case of subordinated debt
securities that provide for a mandatory sinking fund, we may
deliver subordinated debt securities to the Trustee in
satisfaction of our sinking fund obligation,
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unless, in either case,
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the default has been cured or waived and the declaration of
acceleration has been rescinded;
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the Senior Indebtedness has been paid in full in cash; or
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the Issuer and the Trustee receive written notice approving the
payment from the representatives of each issue of
Designated Senior Indebtedness.
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Generally, Designated Senior Indebtedness will
include:
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indebtedness for borrowed money under a bank credit agreement,
called Bank Indebtedness; and
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any specified issue of Senior Indebtedness of at least
$100 million.
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During the continuance of any default, other than a default
described in the immediately preceding paragraph, that may cause
the maturity of any Senior Indebtedness to be accelerated
immediately without further notice, other than any notice
required to effect such acceleration, or the expiration of any
applicable
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grace periods, the Issuer may not pay the subordinated debt
securities for a period called the Payment Blockage
Period. A Payment Blockage Period will commence on the
receipt by us and the Trustee of written notice of the default,
called a Blockage Notice, from the representative of
any Designated Senior Indebtedness specifying an election to
effect a Payment Blockage Period.
The Payment Blockage Period may be terminated before its
expiration:
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by written notice from the person or persons who gave the
Blockage Notice;
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by repayment in full in cash of the Senior Indebtedness with
respect to which the Blockage Notice was given; or
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if the default giving rise to the Payment Blockage Period is no
longer continuing.
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Unless the holders of Senior Indebtedness shall have accelerated
the maturity of the Senior Indebtedness, we may resume payments
on the subordinated debt securities after the expiration of the
Payment Blockage Period.
Generally, not more than one Blockage Notice may be given in any
period of 360 consecutive days unless the first Blockage Notice
within the
360-day
period is given by holders of Designated Senior Indebtedness,
other than Bank Indebtedness, in which case the representative
of the Bank Indebtedness may give another Blockage Notice within
the period. The total number of days during which any one or
more Payment Blockage Periods are in effect, however, may not
exceed an aggregate of 179 days during any period of 360
consecutive days.
After all Senior Indebtedness is paid in full and until the
subordinated debt securities are paid in full, holders of the
subordinated debt securities shall be subrogated to the rights
of holders of Senior Indebtedness to receive distributions
applicable to Senior Indebtedness.
By reason of the subordination, in the event of insolvency, our
creditors who are holders of Senior Indebtedness, as well as
certain of our general creditors, may recover more, ratably,
than the holders of the subordinated debt securities.
Form and
Denomination
Unless otherwise indicated in a prospectus supplement, the debt
securities of a series will be issued as Registered Securities
in denominations of $1,000 and any integral multiple thereof.
Book-Entry
System
Unless otherwise indicated in a prospectus supplement, we will
issue the debt securities in the form of one or more global
securities in fully registered form initially in the name of
Cede & Co., as nominee of The Depository
Trust Company (DTC), or such other name as may
be requested by an authorized representative of DTC. Unless
otherwise indicated in a prospectus supplement, the global
securities will be deposited with the Trustee as custodian for
DTC and may not be transferred except as a whole by DTC to a
nominee of DTC or by a nominee of DTC to DTC or another nominee
of DTC or by DTC or any nominee to a successor of DTC or a
nominee of such successor.
DTC has advised us as follows:
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DTC is a limited-purpose trust company organized under the New
York Banking Law, a banking organization within the
meaning of the New York Banking Law, a member of the Federal
Reserve System, a clearing corporation within the
meaning of the New York Uniform Commercial Code, and a
clearing agency registered pursuant to the
provisions of Section 17A of the Securities Exchange Act of
1934, as amended, or the Exchange Act.
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DTC holds securities that its participants deposit with DTC and
facilitates the post-trade settlement among direct participants
of sales and other securities transactions in deposited
securities, such as transfers and pledges, through electronic
computerized book-entry transfers and pledges between direct
participants accounts, thereby eliminating the need for
physical movement of securities certificates.
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Direct participants include both U.S. and
non-U.S. securities
brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations.
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DTC is a wholly owned subsidiary of The Depository
Trust & Clearing Corporation (DTCC). DTCC
is the holding company for DTC, National Securities Clearing
Corporation and Fixed Income Clearing Corporation, all of which
are registered clearing agencies. DTCC is owned by the users of
its regulated subsidiaries.
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Access to the DTC system is also available to others such as
both U.S. and
non-U.S. securities
brokers and dealers, banks, trust companies, and clearing
corporations that clear through or maintain a custodial
relationship with a direct participant, either directly or
indirectly.
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The rules applicable to DTC and its direct and indirect
participants are on file with the Commission.
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Purchases of debt securities under the DTC system must be made
by or through direct participants, which will receive a credit
for the debt securities on DTCs records. The ownership
interest of each actual purchaser of debt securities is in turn
to be recorded on the direct and indirect participants
records. Beneficial owners of the debt securities will not
receive written confirmation from DTC of their purchase, but
beneficial owners are expected to receive written confirmations
providing details of the transaction, as well as periodic
statements of their holdings, from the direct or indirect
participant through which the beneficial owner entered into the
transaction. Transfers of ownership interests in the debt
securities are to be accomplished by entries made on the books
of direct and indirect participants acting on behalf of
beneficial owners. Beneficial owners will not receive
certificates representing their ownership interests in the debt
securities, except in the event that use of the book-entry
system for the debt securities is discontinued.
To facilitate subsequent transfers, all debt securities
deposited by direct participants with DTC are registered in the
name of DTCs partnership nominee, Cede & Co., or
such other name as may be requested by an authorized
representative of DTC. The deposit of debt securities with DTC
and their registration in the name of Cede & Co. or
such other DTC nominee do not effect any change in beneficial
ownership. DTC has no knowledge of the actual beneficial owners
of the debt securities; DTCs records reflect only the
identity of the direct participants to whose accounts such debt
securities are credited, which may or may not be the beneficial
owners. The direct and indirect participants will remain
responsible for keeping account of their holdings on behalf of
their customers.
Conveyance of notices and other communications by DTC to direct
participants, by, direct participants to indirect participants,
and by direct participants and indirect participants to
beneficial owners will be governed by arrangements among them,
subject to any statutory or regulatory requirements as may be in
effect from time to time.
Neither DTC nor Cede & Co. (nor any other DTC nominee)
will consent or vote with respect to the global securities.
Under its usual procedures, DTC mails an omnibus proxy to the
issuer as soon as possible after the record date. The omnibus
proxy assigns Cede & Co.s consenting or voting
rights to those direct participants to whose accounts the debt
securities are credited on the record date (identified in the
listing attached to the omnibus proxy).
All payments on the global securities will be made to
Cede & Co., as holder of record, or such other nominee
as may be requested by an authorized representative of DTC.
DTCs practice is to credit direct participants
accounts upon DTCs receipt of funds and corresponding
detail information from us or the Trustee on payment dates in
accordance with their respective holdings shown on DTCs
records. Payments by participants to beneficial owners will be
governed by standing instructions and customary practices, as is
the case with securities held for the accounts of customers in
bearer form or registered in street name, and will
be the responsibility of such participant and not of DTC, us or
the Trustee, subject to any statutory or regulatory requirements
as may be in effect from time to time. Payment of principal,
premium, if any, and interest to Cede & Co. (or such
other nominee as may be requested by an authorized
representative of DTC) shall be the responsibility of us or the
Trustee. Disbursement of such payments to direct participants
shall be the responsibility of DTC, and disbursement of such
payments to the beneficial owners shall be the responsibility of
direct and indirect participants.
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DTC may discontinue providing its service as securities
depositary with respect to the debt securities at any time by
giving reasonable notice to us or the Trustee. In addition, we
may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depositary).
Under such circumstances, in the event that a successor
securities depositary is not obtained, note certificates in
fully registered form are required to be printed and delivered
to beneficial owners of the global securities representing such
debt securities.
Neither we nor the Trustee will have any responsibility or
obligation to direct or indirect participants, or the persons
for whom they act as nominees, with respect to the accuracy of
the records of DTC, its nominee or any participant with respect
to any ownership interest in the debt securities, or payments
to, or the providing of notice to participants or beneficial
owners.
So long as the debt securities are in DTCs book-entry
system, secondary market trading activity in the debt securities
will settle in immediately available funds. All payments on the
debt securities issued as global securities will be made by us
in immediately available funds.
The information in this section concerning DTC and DTCs
book-entry system has been obtained from sources that we believe
to be reliable, but we take no responsibility for the accuracy
thereof.
Limitations
on Issuance of Bearer Securities
The debt securities of a series may be issued as Registered
Securities (which will be registered as to principal and
interest in the register maintained by the registrar for the
debt securities) or Bearer Securities (which will be
transferable only by delivery). If the debt securities are
issuable as Bearer Securities, certain special limitations and
conditions will apply.
In compliance with United States federal income tax laws and
regulations, we and any underwriter, agent or dealer
participating in an offering of Bearer Securities will agree
that, in connection with the original issuance of the Bearer
Securities and during the period ending 40 days after the
issue date, they will not offer, sell or deliver any such Bearer
Securities, directly or indirectly, to a United States Person
(as defined below) or to any person within the United States,
except to the extent permitted under United States Treasury
regulations.
Bearer Securities will bear a legend to the following effect:
Any United States person who holds this obligation will be
subject to limitations under the United States federal income
tax laws, including the limitations provided in
Sections 165(j) and 1287(a) of the Internal Revenue
Code. The sections referred to in the legend provide that,
with certain exceptions, a United States taxpayer who holds
Bearer Securities will not be allowed to deduct any loss with
respect to, and will not be eligible for capital gain treatment
with respect to any gain realized on the sale, exchange,
redemption or other disposition of, the Bearer Securities.
For this purpose, United States includes the United
States of America and its possessions, and United States
person means a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in
or under the laws of the United States, or an estate or trust
the income of which is subject to United States federal income
taxation regardless of its source.
Pending the availability of a definitive global security or
individual Bearer Securities, as the case may be, debt
securities that are issuable as Bearer Securities may initially
be represented by a single temporary global security, without
interest coupons, to be deposited with a common depositary for
the Euroclear System as operated by Euroclear Bank S.A./N.V.
(Euroclear) and Clearstream Banking S.A.
(Clearstream, formerly Cedelbank), for credit to the
accounts designated by or on behalf of the purchasers thereof.
Following the availability of a definitive global security in
bearer form, without coupons attached, or individual Bearer
Securities and subject to any further limitations described in
the applicable prospectus supplement, the temporary global
security will be exchangeable for interests in the definitive
global security or for the individual Bearer Securities,
respectively, only upon receipt of a Certificate of
Non-U.S. Beneficial
Ownership, which is a certificate to the effect that a
beneficial interest in a temporary global security is owned by a
person that is not a United States Person or is owned by or
through a financial institution in compliance with applicable
United States Treasury regulations. No Bearer Security will be
delivered in or to
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the United States. If so specified in the applicable prospectus
supplement, interest on a temporary global security will be paid
to each of Euroclear and Clearstream with respect to that
portion of the temporary global security held for its account,
but only upon receipt as of the relevant interest payment date
of a Certificate of
Non-U.S. Beneficial
Ownership.
No
Recourse Against General Partner
The Issuers general partner, the Guarantors general
partner and their respective directors, officers, employees and
members, as such, shall have no liability for any obligations of
the Issuer or the Guarantor under the debt 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 a note waives and releases all such
liability. The waiver and release are part of the consideration
for issuance of the debt securities. Such waiver may not be
effective to waive liabilities under the federal securities
laws, and it is the view of the Commission that such a waiver is
against public policy.
Concerning
the Trustee
The Indenture contains certain limitations on the right of the
Trustee, should it become our creditor, to obtain payment of
claims in certain cases, or to realize for its own account on
certain property received in respect of any such claim as
security or otherwise. The Trustee is permitted to engage in
certain other transactions. However, if it acquires any
conflicting interest within the meaning of the
Trust Indenture Act, it must eliminate the conflict or
resign as Trustee.
The holders of a majority in principal amount of all outstanding
debt securities (or if more than one series of debt securities
under the Indenture is affected thereby, all series so affected,
voting as a single class) will have the right to direct the
time, method and place of conducting any proceeding for
exercising any remedy or power available to the Trustee for the
debt securities or all such series so affected.
If an Event of Default occurs and is not cured under the
Indenture and is known to the Trustee, the Trustee shall
exercise such of the rights and powers vested in it by the
Indenture and use the same degree of care and skill in its
exercise as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs. Subject to such
provisions, the Trustee will not be under any obligation to
exercise any of its rights or powers under the Indenture at the
request of any of the holders of debt securities unless they
shall have offered to such Trustee reasonable security and
indemnity.
Wells Fargo Bank, National Association is the Trustee under the
Indenture and has been appointed by the Issuer as Registrar and
Paying Agent with regard to the debt securities. Wells Fargo
Bank, National Association is a lender under the Issuers
credit facilities.
Governing
Law
The Indenture, the debt securities and the guarantee are
governed by, and will be construed in accordance with, the laws
of the State of New York.
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DESCRIPTION
OF OUR COMMON UNITS
Generally, our common units represent limited partner interests
that entitle the holders to participate in our cash
distributions and to exercise the rights and privileges
available to limited partners under our partnership agreement.
We also have issued and outstanding Class B units, which
are entitled to the rights and privileges as noted below. The
Class B units are held by a privately held affiliate of
Enterprise Products Company, a Texas corporation formerly named
EPCO, Inc. (EPCO). The Class B units generally
have the same rights and privileges as our common units, except
that they are not entitled to regular quarterly cash
distributions for the first sixteen quarters following
October 26, 2009, which was the closing date of our merger
with TEPPCO Partners, L.P. (TEPPCO). The
Class B units will automatically convert into the same
number of common units on the date immediately following the
payment date for the sixteenth quarterly distribution following
the closing of the TEPPCO merger. For a description of the
relative rights and preferences of unitholders in and to cash
distributions, please read Cash Distribution Policy
elsewhere in this prospectus.
Our outstanding common units are listed on the NYSE under the
symbol EPD. Any additional common units we issue
will also be listed on the NYSE.
The transfer agent and registrar for our common units is BNY
Mellon Shareowner Services.
Meetings/Voting
Each holder of common units and Class B units is entitled
to one vote for each unit on all matters submitted to a vote of
the common unitholders. Holders of the Class B units are
entitled to vote as a separate class on any matter that
adversely affects the rights or preference of such class in
relation to other classes of partnership interests. The approval
of a majority of the Class B units is required to approve
any matter for which the Class B unitholders are entitled
to vote as a separate class.
Status as
Limited Partner or Assignee
Except as described below under Limited
Liability, the common units will be fully paid, and
unitholders will not be required to make additional capital
contributions to us.
Each purchaser of our common units must execute a transfer
application whereby the purchaser requests admission as a
substituted limited partner and makes representations and agrees
to provisions stated in the transfer application. If this action
is not taken, a purchaser will not be registered as a record
holder of common units on the books of our transfer agent or
issued a common unit certificate or other evidence of the
issuance of uncertificated units. Purchasers may hold common
units in nominee accounts.
An assignee, pending its admission as a substituted limited
partner, is entitled to an interest in us equivalent to that of
a limited partner with respect to the right to share in
allocations and distributions, including liquidating
distributions. Our general partner will vote and exercise other
powers attributable to common units owned by an assignee who has
not become a substituted limited partner at the written
direction of the assignee. Transferees who do not execute and
deliver transfer applications will be treated neither as
assignees nor as record holders of common units and will not
receive distributions, federal income tax allocations or reports
furnished to record holders of common units. The only right the
transferees will have is the right to admission as a substituted
limited partner in respect of the transferred common units upon
execution of a transfer application in respect of the common
units. A nominee or broker who has executed a transfer
application with respect to common units held in street name or
nominee accounts will receive distributions and reports
pertaining to its common units.
Limited
Liability
Assuming that a limited partner does not participate in the
control of our business within the meaning of the Delaware
Revised Uniform Limited Partnership Act (the Delaware
Act) and that he otherwise acts in conformity with the
provisions of our partnership agreement, his liability under the
Delaware Act will be
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limited, subject to some possible exceptions, generally to the
amount of capital he is obligated to contribute to us in respect
of his units plus his share of any undistributed profits and
assets.
Under the Delaware Act, a limited partnership may not make a
distribution to a partner to the extent that at the time of the
distribution, after giving effect to the distribution, all
liabilities of the partnership, other than liabilities to
partners on account of their partnership interests and
liabilities for which the recourse of creditors is limited to
specific property of the partnership, exceed the fair value of
the assets of the limited partnership.
For the purposes of determining the fair value of the assets of
a limited partnership, the Delaware Act provides that the fair
value of the property subject to liability of which recourse of
creditors is limited shall be included in the assets of the
limited partnership only to the extent that the fair value of
that property exceeds the nonrecourse liability. The Delaware
Act provides that a limited partner who receives a distribution
and knew at the time of the distribution that the distribution
was in violation of the Delaware Act is liable to the limited
partnership for the amount of the distribution for three years
from the date of the distribution.
Reports
and Records
As soon as practicable, but in no event later than 120 days
after the close of each fiscal year, our general partner will
mail or furnish to each unitholder of record (as of a record
date selected by our general partner) an annual report
containing our audited financial statements for the past fiscal
year. These financial statements will be prepared in accordance
with United States generally accepted accounting principles. In
addition, no later than 90 days after the close of each
quarter (except the fourth quarter), our general partner will
mail or furnish to each unitholder of record (as of a record
date selected by our general partner) a report containing our
unaudited financial statements and any other information
required by law.
Our general partner will use all reasonable efforts to furnish
each unitholder of record information reasonably required for
tax reporting purposes within 90 days after the close of
each fiscal year. Our general partners ability to furnish
this summary tax information will depend on the cooperation of
unitholders in supplying information to our general partner.
Each unitholder will receive information to assist him in
determining his U.S. federal and state and Canadian federal
and provincial tax liability and filing his U.S. federal
and state and Canadian federal and provincial income tax returns.
A limited partner can, for a purpose reasonably related to the
limited partners interest as a limited partner, upon
reasonable demand and at his own expense, have furnished to him:
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a current list of the name and last known address of each
partner;
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a copy of our tax returns;
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information as to the amount of cash and a description and
statement of the agreed value of any other property or services,
contributed or to be contributed by each partner and the date on
which each became a partner;
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copies of our partnership agreement, our certificate of limited
partnership, amendments to either of them and powers of attorney
which have been executed under our partnership agreement;
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information regarding the status of our business and financial
condition; and
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any other information regarding our affairs as is just and
reasonable.
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Our general partner may, and intends to, keep confidential from
the limited partners trade secrets and other information the
disclosure of which our general partner believes in good faith
is not in our best interest or which we are required by law or
by agreements with third parties to keep confidential.
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CASH
DISTRIBUTION POLICY
Distributions
of Available Cash
General. Within approximately 45 days
after the end of each quarter, we will distribute all of our
available cash to unitholders of record (excluding holders of
our Class B units as set forth in our partnership agreement and
subject to terms applicable under a distribution waiver
agreement with one of our common unitholders) on the applicable
record date.
Definition of Available Cash. Available cash
is defined in our partnership agreement and generally means,
with respect to any calendar quarter, all cash on hand at the
end of such quarter:
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less the amount of cash reserves that is necessary or
appropriate in the reasonable discretion of our general partner
to:
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provide for the proper conduct of our business (including
reserves for our future capital expenditures and for our future
credit needs) subsequent to such quarter;
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comply with applicable law or any loan agreement, security
agreement, mortgage, debt instrument or other agreement or
obligation to which we are a party or to which we are bound or
our assets are subject; or
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provide funds for distributions to unitholders in respect of any
one or more of the next four quarters;
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plus all cash on hand on the date of determination of available
cash for the quarter resulting from working capital borrowings
made after the end of the quarter or certain interim capital
transactions after the end of such quarter designated by our
general partner as operating surplus in accordance with the
partnership agreement. Working capital borrowings are generally
borrowings that are made under our credit facilities and in all
cases are used solely for working capital purposes or to pay
distributions to partners.
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Distributions
of Cash upon Liquidation
If we dissolve in accordance with the partnership agreement, we
will sell or otherwise dispose of our assets in a process called
a liquidation. We will first apply the proceeds of liquidation
to the payment of our creditors in the order of priority
provided in the partnership agreement and by law and,
thereafter, we will distribute any remaining proceeds to the
unitholders in accordance with their respective capital account
balances as so adjusted.
Manner of Adjustments for Gain. The manner of
the adjustment is set forth in the partnership agreement. Upon
our liquidation, we will allocate any net gain (or unrealized
gain attributable to assets distributed in kind to the partners)
as follows:
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first, to the unitholders having negative balances in
their capital accounts to the extent of and in proportion to
such negative balances; and
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second, to the unitholders, pro rata.
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Manner of Adjustments for Losses. Upon our
liquidation, any net loss will generally be allocated to the
unitholders as follows:
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first, to the unitholders in proportion to the positive
balances in their respective capital accounts, until the capital
accounts of the unitholders have been reduced to zero; and
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second, to the unitholders, pro rata.
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Adjustments to Capital Accounts. In addition,
interim adjustments to capital accounts will be made at the time
we issue additional partnership interests or make distributions
of property. Such adjustments will be based on the fair market
value of the partnership interests or the property distributed
and any gain or loss resulting therefrom will be allocated to
the unitholders in the same manner as gain or loss is allocated
upon liquidation.
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DESCRIPTION
OF OUR PARTNERSHIP AGREEMENT
The following is a summary of the material provisions of our
partnership agreement. Our amended and restated partnership
agreement has been filed with the Commission. The following
provisions of our partnership agreement are summarized elsewhere
in this prospectus:
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distributions of our available cash are described under
Cash Distribution Policy;
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rights of holders of common units are described under
Description of Our Common Units.
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In addition, allocations of taxable income and other matters are
described under Material Tax Consequences.
Purpose
Our purpose under our partnership agreement is to serve as a
member of Enterprise Products Operating
LLC (EPO), our primary operating subsidiary,
and to engage in any business activities that may be engaged in
by EPO or that are approved by our general partner. The limited
liability company agreement of EPO provides that it may engage
in any activity that was engaged in by our predecessors at the
time of our initial public offering or reasonably related
thereto and any other activity approved by our general partner.
Power of
Attorney
Each limited partner, and each person who acquires a unit from a
unitholder and executes and delivers a transfer application,
grants to our general partner and, if appointed, a liquidator, a
power of attorney to, among other things, execute and file
documents required for our qualification, continuance or
dissolution. The power of attorney also grants the authority for
the amendment of, and to make consents and waivers under, our
partnership agreement.
Voting
Rights
Unitholders will not have voting rights except with respect to
the following matters, for which our partnership agreement
requires the approval of the holders of a majority of the units,
unless otherwise indicated:
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the merger of our partnership or a sale, exchange or other
disposition of all or substantially all of our assets;
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the removal of our general partner (requires 60% of the
outstanding units, including units held by our general partner
and its affiliates);
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the election of a successor general partner;
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the dissolution of our partnership or the reconstitution of our
partnership upon dissolution;
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approval of certain actions of our general partner (including
the transfer by the general partner of its general partner
interest under certain circumstances); and
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certain amendments to the partnership agreement, including any
amendment that would cause us to be treated as an association
taxable as a corporation.
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Under the partnership agreement, our general partner generally
will be permitted to effect, without the approval of
unitholders, amendments to the partnership agreement that do not
adversely affect unitholders.
Class B Units. Holders of
Class B units are entitled to vote together with the our
common unitholders as a single class on all matters that our
common unitholders are entitled to vote on. Holders of the
Class B units are entitled to vote as a separate class on
any matter that adversely affects the rights or preference of
such class in relation to other classes of partnership
interests. The approval of the holders of a majority of the
Class B units is required to approve any matter for which
the Class B unitholders are entitled to vote as a separate
class.
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Issuance
of Additional Securities
Our partnership agreement authorizes us to issue an unlimited
number of additional limited partner interests and other equity
securities that are equal in rank with or junior to our common
units on terms and conditions established by our general partner
in its sole discretion without the approval of any limited
partners.
It is possible that we will fund acquisitions through the
issuance of additional common units or other equity securities.
Holders of any additional common units we issue will be entitled
to share equally with the then-existing holders of common units
in our cash distributions. In addition, the issuance of
additional partnership interests may dilute the value of the
interests of the then-existing holders of common units in our
net assets.
In accordance with Delaware law and the provisions of our
partnership agreement, we may also issue additional partnership
interests that, in the sole discretion of our general partner,
may have special voting rights to which common units are not
entitled.
Our general partner has the right, which it may from time to
time assign in whole or in part to any of its affiliates, to
purchase common units or other equity securities whenever, and
on the same terms that, we issue those securities to persons
other than our general partner and its affiliates, to the extent
necessary to maintain their percentage interests in us that
existed immediately prior to the issuance. The holders of common
units will not have preemptive rights to acquire additional
common units or other partnership interests in us.
Our partnership agreement authorizes a series of Enterprise
limited partner interests called our Class B units. The
Class B units will not be entitled to regular quarterly
cash distributions for the first sixteen quarters following the
closing of the TEPPCO merger (which occurred on October 26,
2009). The Class B units will convert automatically into
the same number of our common units on the date immediately
following the payment date of the sixteenth quarterly
distribution following October 26, 2009, and holders of
such converted units will thereafter be entitled to receive
distributions of available cash.
Amendments
to Our Partnership Agreement
Amendments to our partnership agreement may be proposed only by
our general partner. Any amendment that materially and adversely
affects the rights or preferences of any type or class of
limited partner interests in relation to other types or classes
of limited partner interests or our general partner interest
will require the approval of at least a majority of the type or
class of limited partner interests or general partner interests
so affected. However, in some circumstances, more particularly
described in our partnership agreement, our general partner may
make amendments to our partnership agreement without the
approval of our limited partners or assignees to reflect:
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a change in our names, the location of our principal place of
business, our registered agent or our registered office;
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the admission, substitution, withdrawal or removal of partners;
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a change to qualify or continue our qualification as a limited
partnership or a partnership in which our limited partners have
limited liability under the laws of any state or to ensure that
neither we, EPO, nor any of our subsidiaries will be treated as
an association taxable as a corporation or otherwise taxed as an
entity for federal income tax purposes;
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a change that does not adversely affect our limited partners in
any material respect;
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a change to (i) satisfy any requirements, conditions or
guidelines contained in any opinion, directive, order, ruling or
regulation of any federal or state agency or judicial authority
or contained in any federal or state statute or
(ii) facilitate the trading of our limited partner
interests or comply with any rule, regulation, guideline or
requirement of any national securities exchange on which our
limited partner interests are or will be listed for trading;
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a change in our fiscal year or taxable year and any changes that
are necessary or advisable as a result of a change in our fiscal
year or taxable year;
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an amendment that is necessary to prevent us, or our general
partner or its directors, officers, trustees or agents from
being subjected to the provisions of the Investment Company Act
of 1940, as amended, the Investment Advisers Act of 1940, as
amended, or plan asset regulations adopted under the
Employee Retirement Income Security Act of 1974, as amended;
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an amendment that is necessary or advisable in connection with
the authorization or issuance of any class or series of our
securities;
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any amendment expressly permitted in our partnership agreement
to be made by our general partner acting alone;
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an amendment effected, necessitated or contemplated by a merger
agreement approved in accordance with our partnership agreement;
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an amendment that is necessary or advisable to reflect, account
for and deal with appropriately our formation of, or investment
in, any corporation, partnership, joint venture, limited
liability company or other entity other than EPO, in connection
with our conduct of activities permitted by our partnership
agreement;
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a merger or conveyance to effect a change in our legal
form; or
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any other amendments substantially similar to the foregoing.
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Any amendment to our partnership agreement that would have the
effect of reducing the voting percentage required to take any
action must be approved by the written consent or the
affirmative vote of our limited partners constituting not less
than the voting requirement sought to be reduced.
No amendment to our partnership agreement may (i) enlarge
the obligations of any limited partner without its consent,
unless such shall have occurred as a result of an amendment
approved by not less than a majority of the outstanding
partnership interests of the class affected, (ii) enlarge
the obligations of, restrict in any way any action by or rights
of, or reduce in any way the amounts distributable, reimbursable
or otherwise payable to, our general partner or any of its
affiliates without its consent, which consent may be given or
withheld in its sole discretion, (iii) change the provision
of our partnership agreement that provides for our dissolution
(A) at the expiration of its term or (B) upon the
election to dissolve us by the general partner that is approved
by the holders of a majority of our outstanding common units and
by special approval (as such term is defined under
our partnership agreement), or (iv) change the term of us
or, except as set forth in the provision described in clause
(iii)(B) of this paragraph, give any person the right to
dissolve us.
Except for certain amendments in connection with the merger or
consolidation of us and except for those amendments that may be
effected by the general partner without the consent of limited
partners as described above, any amendment that would have a
material adverse effect on the rights or preferences of any
class of partnership interests in relation to other classes of
partnership interests must be approved by the holders of not
less than a majority of the outstanding partnership interests of
the class so affected.
Except for those amendments that may be effected by the general
partner without the consent of limited partners as described
above or certain provisions in connection with our merger or
consolidation, no amendment shall become effective without the
approval of the holders of at least 90% of the outstanding units
unless we obtain an opinion of counsel to the effect that such
amendment will not affect the limited liability of any limited
partner under applicable law.
Except for those amendments that may be effected by the general
partner without the consent of limited partners as described
above, the foregoing provisions described above relating to the
amendment of our partnership agreement may only be amended with
the approval of the holders of at least 90% of the outstanding
units.
Merger,
Sale or Other Disposition of Assets
Our partnership agreement generally prohibits the general
partner, without the prior approval of a majority of our
outstanding common units, from causing us to, among other
things, sell, exchange or
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otherwise dispose of all or substantially all of the assets us
or EPO in a single transaction or a series of related
transactions (including by way of merger, consolidation or other
combination). The general partner may, however, mortgage,
pledge, hypothecate or grant a security interest in all or
substantially all of the assets of us or EPO without the
approval of a Unit Majority (as defined in the our partnership
agreement). Our partnership agreement generally prohibits the
general partner from causing us to merge or consolidate with
another entity without the approval of a majority of the members
of our Audit and Conflicts Committee, at least one of which
majority meets certain independence requirements (such approval
constituting special approval under our partnership
agreement).
If certain conditions specified in our partnership agreement are
satisfied, our general partner may merge us or any of our
subsidiaries into, or convey some or all of our assets to, a
newly formed entity if the sole purpose of that merger or
conveyance is to change our legal form into another limited
liability entity.
Reimbursements
of Our General Partner
Our general partner does not receive any compensation for its
services as our general partner. It is, however, entitled to be
reimbursed for all of its costs incurred in managing and
operating our business. Our partnership agreement provides that
our general partner will determine the expenses that are
allocable to us in any reasonable manner determined by our
general partner in its sole discretion.
Withdrawal
or Removal of Our General Partner
Our general partner may withdraw as general partner without
first obtaining approval of any unitholder by giving
90 days written notice, and that withdrawal will not
constitute a violation of our partnership agreement. In
addition, our general partner may withdraw without unitholder
approval upon 90 days notice to our limited partners
if at least 50% of our outstanding common units are held or
controlled by one person and its affiliates other than our
general partner and its affiliates.
Upon the voluntary withdrawal of our general partner, the
holders of a majority of our outstanding common units, excluding
the common units held by the withdrawing general partner and its
affiliates, may elect a successor to the withdrawing general
partner. If a successor is not elected, or is elected but an
opinion of counsel regarding limited liability and tax matters
cannot be obtained, we will be dissolved, wound up and
liquidated, unless within 90 days after that withdrawal,
the holders of a majority of our outstanding units, excluding
the common units held by the withdrawing general partner and its
affiliates, agree to continue our business and to appoint a
successor general partner.
Our general partner may not be removed unless that removal is
approved by the vote of the holders of not less than 60% of our
outstanding units, including units held by our general partner
and its affiliates, and we receive an opinion of counsel
regarding limited liability and tax matters. In addition, if our
general partner is removed as our general partner under
circumstances where cause does not exist and units held by our
general partner and its affiliates are not voted in favor of
such removal, our general partner will have the right to convert
its general partner interest into common units or to receive
cash in exchange for such interests. Cause is narrowly defined
to mean that a court of competent jurisdiction has entered a
final, non-appealable judgment finding the general partner
liable for actual fraud, gross negligence or willful or wanton
misconduct in its capacity as our general partner. Any removal
of this kind is also subject to the approval of a successor
general partner by the vote of the holders of a majority of our
outstanding common units, including those held by our general
partner and its affiliates.
Transfer
of the General Partner Interest
While our partnership agreement limits the ability of our
general partner to withdraw, it allows the general partner
interest to be transferred to an affiliate or to a third party
in conjunction with a merger or sale of all or substantially all
of the assets of our general partner. In addition, our
partnership agreement expressly permits the sale, in whole or in
part, of the ownership of our general partner. Our general
partner may also transfer, in whole or in part, the common units
it owns.
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At any time, the owners of our general partner may sell or
transfer all or part of their ownership interests in the general
partner without the approval of the unitholders.
Dissolution
and Liquidation
We will continue as a limited partnership until terminated under
our partnership agreement. We will dissolve upon:
(1) the expiration of the term of our partnership agreement
on December 31, 2088;
(2) the withdrawal, removal, bankruptcy or dissolution of
the general partner unless a successor is elected and an opinion
of counsel is received that such withdrawal (following the
selection of a successor general partner) would not result in
the loss of the limited liability of any limited partner or of
any member of EPO or cause us or EPO to be treated as an
association taxable as a corporation or otherwise to be taxed as
an entity for U.S. federal income tax purposes (to the
extent not previously treated as such) and such successor is
admitted to the partnership as required by our partnership
agreement;
(3) an election to dissolve us by the general partner that
receives special approval (as defined in our
partnership agreement) and is approved by a majority of the
holders of our common units;
(4) the entry of a decree of judicial dissolution of us
pursuant to the provisions of the Delaware Act; or
(5) the sale of all or substantially all of the assets and
properties of us, EPO and their subsidiaries.
Upon (a) our dissolution following the withdrawal or
removal of the general partner and the failure of the partners
to select a successor general partner, then within 90 days
thereafter, or (b) our dissolution upon the bankruptcy or
dissolution of the general partner, then, to the maximum extent
permitted by law, within 180 days thereafter, the holders
of a majority of the holders of our common units may elect to
reconstitute us and continue our business on the same terms and
conditions set forth in the our partnership agreement by forming
a new limited partnership on terms identical to those set forth
in our partnership agreement and having as the successor general
partner a person approved by the holders of a majority of the
holders of our common units. Unless such an election is made
within the applicable time period as set forth above, we shall
conduct only activities necessary to wind up our affairs.
Liquidation
and Distribution of Proceeds
Upon our dissolution, unless we are reconstituted and continued
as a new limited partnership, the person authorized to wind up
our affairs (the liquidator) will, acting with all the powers of
our general partner that the liquidator deems necessary or
desirable in its good faith judgment, liquidate our assets. The
proceeds of the liquidation will be applied as follows:
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first, towards the payment of all of our creditors and
the creation of a reserve for contingent liabilities; and
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then, to all partners in accordance with the positive
balance in the respective capital accounts.
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Under some circumstances and subject to some limitations, the
liquidator may defer liquidation or distribution of our assets
for a reasonable period of time. If the liquidator determines
that a sale would be impractical or would cause a loss to our
partners, our general partner may distribute assets in kind to
our partners.
Limited
Call Right
If at any time our general partner and its affiliates own 85% or
more of the issued and outstanding limited partner interests of
any class, our general partner will have the right to purchase
all, but not less than all, of the outstanding limited partner
interests of that class that are held by non-affiliated persons.
The record date for determining ownership of the limited partner
interests would be selected by our general partner on at least
10 but not more than 60 days notice. The purchase
price in the event of a purchase under these
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provisions would be the greater of (1) the current market
price (as defined in our partnership agreement) of the limited
partner interests of the class as of the date three days prior
to the date that notice is mailed to the limited partners as
provided in the partnership agreement and (2) the highest
cash price paid by our general partner or any of its affiliates
for any limited partner interest of the class purchased within
the 90 days preceding the date our general partner mails
notice of its election to purchase the units.
As of November 23, 2010 our general partner and its
affiliates (excluding directors and officers except Randa Duncan
Williams) owned the non-economic general partner interest in us
and 307,587,486 common units and 4,520,431 Class B units,
representing an aggregate 37.5% of our issued and outstanding
units representing limited partner interests. Our Class B
units are entitled to vote together with our common units as a
single class on partnership matters and generally have the same
rights and privileges as our common units, except that they are
not entitled to regular quarterly cash distributions for the
first sixteen quarters following October 26, 2009, which
was the closing date of the TEPPCO merger. The Class B
units will automatically convert into the same number of common
units on the date immediately following the payment date for the
sixteenth quarterly distribution following the closing date of
the TEPPCO merger.
Indemnification
Section 17-108
of the Delaware Act empowers a Delaware limited partnership to
indemnify and hold harmless any partner or other person from and
against all claims and demands whatsoever. Our partnership
agreement provides that we will indemnify (i) the general
partner, (ii) any departing general partner, (iii) any
person who is or was an affiliate of the general partner or any
departing general partner, (iv) any person who is or was a
member, partner, officer director, employee, agent or trustee of
the general partner or any departing general partner or any
affiliate of the general partner or any departing general
partner or (v) any person who is or was serving at the
request of the general partner or any departing general partner
or any affiliate of any such person, any affiliate of the
general partner or any fiduciary or trustee of another person
(each, a Partnership Indemnitee), to the fullest
extent permitted by law, from and against any and all losses,
claims, damages, liabilities (joint or several), expenses
(including, without limitation, legal fees and expenses),
judgments, fines, penalties, interest, settlements and other
amounts arising from any and all claims, demands, actions, suits
or proceedings, whether civil, criminal, administrative or
investigative, in which any Partnership Indemnitee may be
involved, or is threatened to be involved, as a party or
otherwise, by reason of its status as a Partnership Indemnitee;
provided that in each case the Partnership Indemnitee
acted in good faith and in a manner that such Partnership
Indemnitee reasonably believed to be in or not opposed to our
best interests and, with respect to any criminal proceeding, had
no reasonable cause to believe its conduct was unlawful. The
termination of any proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere, or its
equivalent, shall not create an assumption that the Partnership
Indemnitee acted in a manner contrary to that specified above.
Any indemnification under these provisions will be only out of
the our assets, and the general partner shall not be personally
liable for, or have any obligation to contribute or lend funds
or assets to us to enable it to effectuate, such
indemnification. We are authorized to purchase (or to reimburse
the general partner or its affiliates for the cost of) insurance
against liabilities asserted against and expenses incurred by
such persons in connection with our activities, regardless of
whether we would have the power to indemnify such person against
such liabilities under the provisions described above.
Registration
Rights
Under our partnership agreement, we have agreed to register for
resale under the Securities Act of 1933, as amended (the
Securities Act), and applicable state securities
laws any common units or other partnership securities proposed
to be sold by our general partner or any of its affiliates or
their assignees if an exemption from the registration
requirements is not otherwise available. We are obligated to pay
all expenses incidental to the registration, excluding
underwriting discounts and commissions.
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MATERIAL
TAX CONSEQUENCES
This section is a discussion of the material tax considerations
that may be relevant to prospective unitholders who are
individual citizens or residents of the United States and,
unless otherwise noted in the following discussion, represents
the opinion of Andrews Kurth LLP, special counsel to our general
partner and us, insofar as it relates to matters of United
States federal income tax law and legal conclusions with respect
to those matters. This section is based upon current provisions
of the Internal Revenue Code of 1986, as amended, or the
Internal Revenue Code, existing and proposed Treasury
Regulations and current administrative rulings and court
decisions, all of which are subject to change. Later changes in
these authorities may cause the tax consequences to vary
substantially from the consequences described below. Unless the
context otherwise requires, references in this section to
us or we are references to Enterprise
Products Partners L.P. and Enterprise Products Operating LLC.
The following discussion does not address all federal, state and
local tax matters affecting us or our unitholders. Moreover, the
discussion focuses on unitholders who are individual citizens or
residents of the United States and has only limited application
to corporations, estates, trusts, nonresident aliens or other
unitholders subject to specialized tax treatment, such as
tax-exempt institutions, foreign persons, individual retirement
accounts (IRAs), real estate investment trusts (REITs), employee
benefit plans or mutual funds. Accordingly, we urge each
prospective unitholder to consult, and depend on, his own tax
advisor in analyzing the federal, state, local and foreign tax
consequences particular to him of the ownership or disposition
of the common units. All statements as to matters of law and
legal conclusions, but not as to factual matters, contained in
this section, unless otherwise noted, are the opinion of Andrews
Kurth LLP and are based on the accuracy of the representations
made by us and our general partner.
No ruling has been or will be requested from the IRS regarding
our status as a partnership for federal income tax purposes.
Instead, we will rely on opinions and advice of Andrews Kurth
LLP. Unlike a ruling, an opinion of counsel represents only that
counsels best legal judgment and does not bind the IRS or
the courts. Accordingly, the opinions and statements made in
this discussion may not be sustained by a court if contested by
the IRS. Any contest of this sort with the IRS may materially
and adversely impact the market for the common units and the
prices at which the common units trade. In addition, the costs
of any contest with the IRS, principally legal, accounting and
related fees, will result in a reduction in cash available for
distribution to our unitholders and our general partner and thus
will be borne indirectly by our unitholders and our general
partner. Furthermore, the tax treatment of us, or of an
investment in us, may be significantly modified by future
legislative or administrative changes or court decisions. Any
modifications may or may not be retroactively applied.
For the reasons described below, Andrews Kurth LLP has not
rendered an opinion with respect to the following specific
federal income tax issues: the treatment of a unitholder whose
common units are loaned to a short seller to cover a short sale
of common units (please read Tax Consequences
of Unit Ownership Treatment of Short Sales);
whether our monthly convention for allocating taxable income and
losses is permitted by existing Treasury Regulations (please
read Disposition of Common Units
Allocations Between Transferors and Transferees); and
whether our method for depreciating Section 743 adjustments
is sustainable in certain cases (please read
Tax Consequences of Unit
Ownership Section 754 Election and
Uniformity of Units.).
Partnership
Status
A partnership is not a taxable entity and incurs no federal
income tax liability. Instead, each partner of a partnership is
required to take into account his share of items of income,
gain, loss and deduction of the partnership in computing his
federal income tax liability, regardless of whether cash
distributions are made to him by the partnership. Distributions
by a partnership to a partner are generally not taxable to the
partner unless the amount of cash distributed to him is in
excess of the partners adjusted basis in his partnership
interest.
Section 7704 of the Internal Revenue Code provides that
publicly traded partnerships will, as a general rule, be taxed
as corporations. However, an exception, referred to as the
Qualifying Income Exception, exists
27
with respect to publicly traded partnerships of which 90% or
more of the gross income for every taxable year consists of
qualifying income. Qualifying income includes income
and gains derived from the exploration, development, mining or
production, processing, refining, transportation, storage and
marketing of any mineral or natural resource, including our
allocable share of such income from Duncan Energy Partners and
Energy Transfer Equity (the MLP Entities). Other
types of qualifying income include interest (other than from a
financial business), dividends, gains from the sale of real
property and gains from the sale or other disposition of capital
assets held for the production of income that otherwise
constitutes qualifying income. We estimate that less than 5% of
our current gross income is not qualifying income; however, this
estimate could change from time to time. Based on and subject to
this estimate, the factual representations made by us and our
general partner and a review of the applicable legal
authorities, Andrews Kurth LLP is of the opinion that at least
90% of our current gross income constitutes qualifying income.
The portion of our income that is qualifying income may change
from time to time.
No ruling has been or will be sought from the IRS and the IRS
has made no determination as to our status or the status of
Enterprise Products Operating LLC as partnerships for federal
income tax purposes. Instead, we will rely on the opinion of
Andrews Kurth LLP on such matters. It is the opinion of Andrews
Kurth LLP that, based upon the Internal Revenue Code, its
regulations, published revenue rulings and court decisions and
the representations described below, we and Enterprise Products
Operating LLC will be classified as partnerships for federal
income tax purposes.
In rendering its opinion, Andrews Kurth LLP has relied on
factual representations made by us and our general partner. The
representations made by us and our general partner upon which
Andrews Kurth LLP has relied include:
(a) Neither we, Enterprise Products Operating LLC nor the
MLP Entities has elected or will elect to be treated as a
corporation; and
(b) For each taxable year, more than 90% of our gross
income has been and will be income that Andrews Kurth LLP has
opined or will opine is qualifying income within the
meaning of Section 7704(d) of the Internal Revenue Code.
If we fail to meet the Qualifying Income Exception, other than a
failure that is determined by the IRS to be inadvertent and that
is cured within a reasonable time after discovery (in which case
the IRS may also require us to make adjustments with respect to
our unitholders or pay other amounts), we will be treated as if
we had transferred all of our assets, subject to liabilities, to
a newly formed corporation, on the first day of the year in
which we fail to meet the Qualifying Income Exception, in return
for stock in that corporation, and then distributed that stock
to the unitholders in liquidation of their interests in us. This
deemed contribution and liquidation should be tax-free to
unitholders and us except to the extent that our liabilities
exceed the tax basis of our assets at that time. Thereafter, we
would be treated as a corporation for federal income tax
purposes.
If we were taxable as a corporation in any taxable year, either
as a result of a failure to meet the Qualifying Income Exception
or otherwise, our items of income, gain, loss and deduction
would be reflected only on our tax return rather than being
passed through to the unitholders, and our net income would be
taxed to us at corporate rates. Moreover, if any MLP Entity were
taxable as a corporation in any taxable year, our share of such
entitys items of income, gain, loss and deduction would
not be passed through to us and such entity would pay tax on its
income at corporate rates. If an MLP Entity or we were taxable
as a corporation, losses recognized by the MLP Entity would not
flow through to us or our losses would not flow through to our
unitholders, as the case may be. In addition, any distribution
made by us to a unitholder (or by the MLP Entity to us) would be
treated as either taxable dividend income, to the extent of our
current or accumulated earnings and profits, or, in the absence
of earnings and profits, a nontaxable return of capital, to the
extent of the unitholders tax basis in his common units
(or our tax basis in the MLP Entities), or taxable capital gain,
after the unitholders tax basis in his common units (or
our tax basis in the MLP Entities) is reduced to zero.
Accordingly, taxation of either us or any MLP Entity as a
corporation would result in a material reduction in a
unitholders cash flow and after-tax return and thus would
likely result in a substantial reduction of the value of the
units.
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The discussion below is based on Andrews Kurth LLPs
opinion that we will be classified as a partnership for federal
income tax purposes.
Limited
Partner Status
Unitholders who have become limited partners of Enterprise
Products Partners L.P. will be treated as partners of Enterprise
Products Partners L.P. for federal income tax purposes. Also,
assignees who have executed and delivered transfer applications,
and are awaiting admission as limited partners, and unitholders
whose common units are held in street name or by a nominee and
who have the right to direct the nominee in the exercise of all
substantive rights attendant to the ownership of their common
units, will be treated as partners of Enterprise Products
Partners L.P. for federal income tax purposes. As there is no
direct authority addressing assignees of common units who are
entitled to execute and deliver transfer applications and
thereby become entitled to direct the exercise of attendant
rights, but who fail to execute and deliver transfer
applications, Andrews Kurth LLPs opinion does not extend
to these persons. Furthermore, a purchaser or other transferee
of common units who does not execute and deliver a transfer
application may not receive some federal income tax information
or reports furnished to record holders of common units unless
the common units are held in a nominee or street name account
and the nominee or broker has executed and delivered a transfer
application for those common units.
A beneficial owner of common units whose units have been
transferred to a short seller to complete a short sale would
appear to lose his status as a partner with respect to those
units for federal income tax purposes. Please read
Tax Consequences of Unit
Ownership Treatment of Short Sales.
Items of our income, gain, loss and deduction would not appear
to be reportable by a unitholder who is not a partner for
federal income tax purposes, and any cash distributions received
by a unitholder who is not a partner for federal income tax
purposes would therefore appear to be fully taxable as ordinary
income. These unitholders are urged to consult their own tax
advisors with respect to their tax consequences of holding units
in Enterprise Products Partners L.P. The references to
unitholders in the discussion that follows are to
persons who are treated as partners in Enterprise Products
Partners L.P. for federal income tax purposes.
Tax
Consequences of Unit Ownership
Flow-through of Taxable Income. We do not pay
any federal income tax. Instead, each unitholder is required to
report on his income tax return his share of our income, gains,
losses and deductions without regard to whether corresponding
cash distributions are received by him. Consequently, we may
allocate income to a unitholder even if he has not received a
cash distribution. Each unitholder will be required to include
in income his allocable share of our income, gains, losses and
deductions for our taxable year or years ending with or within
his taxable year. Our taxable year ends on December 31.
Treatment of Distributions. Distributions by
us to a unitholder generally will not be taxable to the
unitholder for federal income tax purposes, except to the extent
the amount of any such cash distribution exceeds his tax basis
in his common units immediately before the distribution. Our
cash distributions in excess of a unitholders tax basis in
his common units generally will be considered to be gain from
the sale or exchange of the common units, taxable in accordance
with the rules described under Disposition of
Common Units below. Any reduction in a unitholders
share of our liabilities for which no partner, bears the
economic risk of loss, known as nonrecourse
liabilities, will be treated as a distribution of cash to
that unitholder. To the extent our distributions cause a
unitholders at risk amount to be less than
zero at the end of any taxable year, the unitholder must
recapture any losses deducted in previous years. Please read
Limitations on Deductibility of Losses.
A decrease in a unitholders percentage interest in us
because of our issuance of additional common units will decrease
his share of our nonrecourse liabilities, and thus will result
in a corresponding deemed distribution of cash which may
constitute a non-pro rata distribution. A non-pro rata
distribution of money or property may result in ordinary income
to a unitholder, regardless of his tax basis in his common
units, if the distribution reduces the unitholders share
of our unrealized receivables, including
depreciation recapture,
and/or
substantially appreciated inventory items, both as
defined in Section 751 of the Internal Revenue Code, and
collectively, Section 751
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Assets. To that extent, he will be treated as having been
distributed his proportionate share of the Section 751
Assets and having then exchanged those assets with us in return
for the non-pro rata portion of the actual distribution made to
him. This latter deemed exchange will generally result in the
unitholders realization of ordinary income, which will
equal the excess of the non-pro rata portion of that
distribution over the unitholders tax basis for the share
of Section 751 Assets deemed relinquished in the exchange.
Basis of Common Units. A unitholders
initial tax basis for his common units will be the amount he
paid for the common units plus his share of our nonrecourse
liabilities. That basis generally will be increased by his share
of our income and gains and by any increases in his share of our
nonrecourse liabilities. That basis generally will be decreased,
but not below zero, by distributions from us, by the
unitholders share of our losses and deductions, by any
decreases in his share of our nonrecourse liabilities and by his
share of our expenditures that are not deductible in computing
taxable income and are not required to be capitalized. A
unitholder will have a share of our nonrecourse liabilities
generally based on the Book-Tax Disparity (as described in
Allocation of Income, Gain, Loss and
Deduction) attributable to the unitholder, to the extent
of such amount, and thereafter, the unitholders share of
our profits. Please read Disposition of Common
Units Recognition of Gain or Loss.
Limitations on Deductibility of Losses. The
deduction by a unitholder of his share of our losses will be
limited to the tax basis in his units and, in the case of an
individual unitholder or a corporate unitholder, if more than
50% of the value of the corporate unitholders stock is
owned directly or indirectly by or for five or fewer individuals
or some tax-exempt organizations, to the amount for which the
unitholder is considered to be at risk with respect
to our activities, if that amount is less than his tax basis. A
unitholder subject to these limitations must recapture losses
deducted in previous years to the extent that distributions
cause his at risk amount to be less than zero at the end of any
taxable year. Losses disallowed to a unitholder or recaptured as
a result of these limitations will carry forward and will be
allowable as a deduction in a later year to the extent that his
tax basis or at risk amount, whichever is the limiting factor,
is subsequently increased provided that such losses are
otherwise allowable. Upon the taxable disposition of a unit, any
gain recognized by a unitholder can be offset by losses that
were previously suspended by the at risk limitation but may not
be offset by losses suspended by the basis limitation. Any
excess loss above that gain previously suspended by the at risk
or basis limitations is no longer utilizable.
In general, a unitholder will be at risk to the extent of the
tax basis of his units, excluding any portion of that basis
attributable to his share of our nonrecourse liabilities,
reduced by (i) any portion of that basis representing
amounts other than those protected against loss because of a
guarantee, stop-loss agreement or other similar arrangement and
(ii) any amount of money he borrows to acquire or hold his
units, if the lender of those borrowed funds owns an interest in
us, is related to another unitholder who has an interest in us,
or can look only to the units for repayment. A unitholders
at risk amount will increase or decrease as the tax basis of the
unitholders units increases or decreases, other than tax
basis increases or decreases attributable to increases or
decreases in his share of our nonrecourse liabilities.
In addition to the basis and at-risk limitations on the
deductibility of losses, the passive loss limitations generally
provide that individuals, estates, trusts and some closely-held
corporations and personal service corporations are permitted to
deduct losses from passive activities, which are generally trade
or business activities in which the taxpayer does not materially
participate, only to the extent of the taxpayers income
from those passive activities. The passive loss limitations are
applied separately with respect to each publicly traded
partnership. However, the application of the passive loss
limitations to tiered publicly traded partnerships is uncertain.
We will take the position that any passive losses we generate
that are reasonably allocable to our investment in Duncan Energy
Partners or Energy Transfer Equity, as applicable, will only be
available to offset our passive income generated in the future
that is reasonably allocable to our investment in Duncan Energy
Partners or Energy Transfer Equity, as applicable, and will not
be available to offset income from other passive activities or
investments, including other investments in private businesses
or investments we may make in other publicly traded
partnerships. Moreover, because the passive loss limitations are
applied separately with respect to each publicly traded
partnership, any passive losses we generate will only be
available to offset our passive income generated in the future
and will not be available to offset income from other passive
activities or investments, including our investments or
investments in other publicly traded
30
partnerships, or a unitholders salary or active business
income. Further, a unitholders share of our net income may
be offset by any suspended passive losses from his investment in
us, but may not be offset by his current or carryover losses
from other passive activities, including those attributable to
other publicly traded partnerships. Passive losses that are not
deductible because they exceed a unitholders share of
income we generate may be deducted in full when the unitholder
disposes of his entire investment in us in a fully taxable
transaction with an unrelated party. The passive activity loss
limitations are applied after other applicable limitations on
deductions, including the at risk rules and the basis limitation.
The IRS could take the position that for purposes of applying
the passive loss limitation rules to tiered publicly traded
partnerships, such as the MLP Entities and us, the related
entities are treated as one publicly traded partnership. In that
case, any passive losses we generate would be available to
offset income from a unitholders investment in the MLP
Entities, as applicable. However, passive losses that are not
deductible because they exceed a unitholders share of
income we generate would not be deductible in full until a
unitholder disposes of his entire investment in both us and each
MLP Entity in a fully taxable transaction with an unrelated
party.
A unitholders share of our net income may be offset by any
of our suspended passive losses, but it may not be offset by any
other current or carryover losses from other passive activities,
including those attributable to other publicly traded
partnerships.
Limitations on Interest Deductions. The
deductibility of a non-corporate taxpayers
investment interest expense is generally limited to
the amount of that taxpayers net investment
income. Investment interest expense includes:
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interest on indebtedness properly allocable to property held for
investment;
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our interest expense attributed to portfolio income; and
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the portion of interest expense incurred to purchase or carry an
interest in a passive activity to the extent attributable to
portfolio income.
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The computation of a unitholders investment interest
expense will take into account interest on any margin account
borrowing or other loan incurred to purchase or carry a unit.
Net investment income includes gross income from property held
for investment and amounts treated as portfolio income under the
passive loss rules, less deductible expenses, other than
interest, directly connected with the production of investment
income, but generally does not include gains attributable to the
disposition of property held for investment. The IRS has
indicated that net passive income earned by a publicly traded
partnership will be treated as investment income to its
unitholders for purposes of the investment interest deduction
limitation. In addition, the unitholders share of our
portfolio income will be treated as investment income.
Entity-Level Collections. If we are
required or elect under applicable law to pay any federal,
state, local or foreign income tax on behalf of any unitholder
or any former unitholder, we are authorized to pay those taxes
from our funds. That payment, if made, will be treated as a
distribution of cash to the unitholder on whose behalf the
payment was made. If the payment is made on behalf of a person
whose identity cannot be determined, we are authorized to treat
the payment as a distribution to all current unitholders. We are
authorized to amend our partnership agreement in the manner
necessary to maintain uniformity of intrinsic tax
characteristics of units and to adjust later distributions, so
that after giving effect to these distributions, the priority
and characterization of distributions otherwise applicable under
our partnership agreement is maintained as nearly as is
practicable. Payments by us as described above could give rise
to an overpayment of tax on behalf of an individual unitholder
in which event the unitholder would be required to file a claim
in order to obtain a credit or refund.
Allocation of Income, Gain, Loss and
Deduction. In general, if we have a net profit,
our items of income, gain, loss and deduction will be allocated
among the unitholders in accordance with their percentage
interests in us. If we have a net loss for the entire year, that
loss will be allocated to the unitholders in accordance with
their percentage interests in us.
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Specified items of our income, gain, loss and deduction will be
allocated under Section 704(c) of the Internal Revenue Code
to account for (i) any difference between the tax basis and
fair market value of our assets at the time we issue units in an
offering, or (ii) any difference between the tax basis and
fair market value of any property contributed to us at the time
of such contribution, together referred to in this discussion as
Contributed Property. These allocations are required
to eliminate the difference between a partners
book capital account, credited with the fair market
value of Contributed Property, and the tax capital
account, credited with the tax basis of Contributed Property,
referred to in the discussion as the Book-Tax
Disparity. The effect of these allocations to a unitholder
purchasing common units in such an offering will be essentially
the same as if the tax basis of our assets were equal to their
fair market value at the time of such an offering. In the event
we issue additional common units or engage in certain other
transactions in the future, reverse Section 704(c)
allocations, similar to the Section 704(c)
allocations described above, will be made to all partners to
account for the difference, at the time of the future
transaction, between the book basis for purposes of
maintaining capital accounts and the fair market value of all
property held by us at the time of the future transaction. In
addition, items of recapture income will be allocated to the
extent possible to the unitholder who was allocated the
deduction giving rise to the treatment of that gain as recapture
income in order to minimize the recognition of ordinary income
by other unitholders. Finally, although we do not expect that
our operations will result in the creation of negative capital
accounts, if negative capital accounts nevertheless result,
items of our income and gain will be allocated in an amount and
manner sufficient to eliminate the negative balance as quickly
as possible.
An allocation of items of our income, gain, loss or deduction,
other than an allocation required by Section 704(c) to
eliminate the Book-Tax Disparity will generally be given effect
for federal income tax purposes in determining a partners
share of an item of income, gain, loss or deduction only if the
allocation has substantial economic effect. In any other case, a
partners share of an item will be determined on the basis
of his interest in us, which will be determined by taking into
account all the facts and circumstances, including:
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his relative contributions to us;
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the interests of all the partners in profits and losses;
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the interest of all the partners in cash flow and other
nonliquidating distributions; and
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the rights of all the partners to distributions of capital upon
liquidation.
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Andrews Kurth LLP is of the opinion that, with the exception of
the issues described in Tax Consequences of
Unit Ownership Section 754 Election
Uniformity of Units and
Disposition of Common
Units Allocations Between Transferors and
Transferees, allocations under our partnership agreement
will be given effect for federal income tax purposes in
determining a partners share of an item of income, gain,
loss or deduction.
Treatment of Short Sales. A unitholder whose
units are loaned to a short seller to cover a short
sale of units may be considered as having disposed of those
units. If so, he would no longer be treated for tax purposes as
a partner with respect to those units during the period of the
loan and may recognize gain or loss from the disposition. As a
result, during this period:
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any of our income, gain, loss or deduction with respect to those
units would not be reportable by the unitholder;
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any cash distributions received by the unitholder as to those
units would be fully taxable; and
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all of these distributions would appear to be ordinary income.
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Andrews Kurth LLP has not rendered an opinion regarding the tax
treatment of a unitholder where common units are loaned to a
short seller to cover a short sale of common units. Therefore,
unitholders desiring to assure their status as partners and
avoid the risk of gain recognition from a loan to a short seller
are urged to modify any applicable brokerage account agreements
to prohibit their brokers from borrowing and loaning their
units. The IRS has previously announced that it is studying
issues relating to the tax
32
treatment of short sales of partnership interests. Please also
read Disposition of Common Units
Recognition of Gain or Loss.
Alternative Minimum Tax. Each unitholder will
be required to take into account his distributive share of any
items of our income, gain, loss or deduction for purposes of the
alternative minimum tax. The current minimum tax rate for
noncorporate taxpayers is 26% on the first $175,000 of
alternative minimum taxable income in excess of the exemption
amount and 28% on any additional alternative minimum taxable
income. Prospective unitholders are urged to consult with their
tax advisors as to the impact of an investment in units on their
liability for the alternative minimum tax.
Tax Rates. Under current law, the highest
marginal United States federal income tax rate applicable to
ordinary income of individuals is 35% and the maximum United
States federal income tax rate for net capital gains of an
individual is 15% if the asset disposed of was a capital asset
held for more than 12 months at the time of disposition.
However, absent new legislation extending the current rates,
beginning January 1, 2011, the highest marginal
U.S. federal income tax rate applicable to ordinary income
and long-term capital gains of individuals will increase to
39.6% and 20%, respectively. Moreover, these rates are subject
to change by new legislation at any time.
Recently enacted legislation will impose a 3.8% Medicare tax on
certain investment income earned by individuals, estates and
trusts for taxable years beginning after December 31, 2012.
For these purposes, net investment income generally includes a
unitholders allocable share of our income and gain
realized by a unitholder from a sale of common units. In the
case of an individual, the tax will be imposed on the lesser of
(1) the unitholders net investment income or
(2) the amount by which the unitholders modified
adjusted gross income exceeds $250,000 (if the unitholder is
married and filing jointly or a surviving spouse), $125,000 (if
the unitholder is married and filing separately) or $200,000 (in
any other case).
Section 754 Election. We have made the
election permitted by Section 754 of the Internal Revenue
Code. That election is irrevocable without the consent of the
IRS. The election generally permits us to adjust a common unit
purchasers tax basis in our assets (inside
basis) under Section 743(b) of the Internal Revenue
Code to reflect his purchase price. This election applies to a
person who purchases units from a selling unitholder but does
not apply to a person who purchases common units directly from
us. The Section 743(b) adjustment belongs to the purchaser
and not to other unitholders. For purposes of this discussion, a
unitholders inside basis in our assets will be considered
to have two components: (1) his share of our tax basis in
our assets (common basis) and (2) his
Section 743(b) adjustment to that basis.
Treasury Regulations under Section 743 of the Internal
Revenue Code require, if the remedial allocation method is
adopted (which we have adopted), a portion of the
Section 743(b) adjustment that is attributable to recovery
property subject to depreciation under Section 168 of the
Internal Revenue Code to be depreciated over the remaining cost
recovery period for the propertys unamortized Book-Tax
Disparity. Under Treasury
Regulation Section 1.167(c)-1(a)(6),
a Section 743(b) adjustment attributable to property
subject to depreciation under Section 167 of the Internal
Revenue Code, rather than cost recovery deductions under
Section 168, is generally required to be depreciated using
either the straight-line method or the 150% declining balance
method. Under our partnership agreement, our general partner is
authorized to take a position to preserve the uniformity of
units even if that position is not consistent with these and any
other Treasury Regulations. Please read
Uniformity of Units.
Although Andrews Kurth LLP is unable to opine as to the validity
of this approach because there is no controlling authority on
this issue, we intend to depreciate the portion of a
Section 743(b) adjustment attributable to unrealized
appreciation in the value of Contributed Property, to the extent
of any unamortized Book-Tax Disparity, using a rate of
depreciation or amortization derived from the depreciation or
amortization method and useful life applied to the unamortized
Book-Tax Disparity of the property, or treat that portion as
non-amortizable
to the extent attributable to property which is not amortizable.
This method is consistent with methods employed by other
publicly traded partnerships but is arguably inconsistent with
Treasury
Regulation Section 1.167(c)-1(a)(6),
which is not expected to directly apply to a material portion of
our assets. To the extent this Section 743(b) adjustment is
attributable to appreciation in value in excess of the
unamortized Book-Tax Disparity, we will apply the rules
described in the Treasury Regulations and legislative
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history. If we determine that this position cannot reasonably be
taken, we may take a depreciation or amortization position under
which all purchasers acquiring units in the same month would
receive depreciation or amortization, whether attributable to
common basis or a Section 743(b) adjustment, based upon the
same applicable rate as if they had purchased a direct interest
in our assets. This kind of aggregate approach may result in
lower annual depreciation or amortization deductions than would
otherwise be allowable to some unitholders. Please read
Uniformity of Units. A unitholders
tax basis for his common units is reduced by his share of our
deductions (whether or not such deductions were claimed on an
individuals income tax return) so that any position we
take that understates deductions will overstate the common
unitholders basis in his common units, which may cause the
unitholder to understate gain or overstate loss on any sale of
such units. Please read Disposition of Common
Units Recognition of Gain or Loss. The IRS may
challenge our position with respect to depreciating or
amortizing the Section 743(b) adjustment we take to
preserve the uniformity of the units. If such a challenge were
sustained, the gain from the sale of units might be increased
without the benefit of additional deductions.
A Section 754 election is advantageous if the
transferees tax basis in his units is higher than the
units share of the aggregate tax basis of our assets
immediately prior to the transfer. In that case, as a result of
the election, the transferee would have, among other items, a
greater amount of depreciation deductions and his share of any
gain or loss on a sale of our assets would be less. Conversely,
a Section 754 election is disadvantageous if the
transferees tax basis in his units is lower than those
units share of the aggregate tax basis of our assets
immediately prior to the transfer. Thus, the fair market value
of the units may be affected either favorably or unfavorably by
the election. A basis adjustment is required regardless of
whether a Section 754 election is made in the case of a
transfer of an interest in us if we have a substantial built-in
loss immediately after the transfer, or if we distribute
property and have a substantial basis reduction. Generally a
basis reduction or a built-in loss is substantial if it exceeds
$250,000.
The calculations involved in the Section 754 election are
complex and will be made on the basis of assumptions as to the
value of our assets and other matters. For example, the
allocation of the Section 743(b) adjustment among our
assets must be made in accordance with the Internal Revenue
Code. The IRS could seek to reallocate some or all of any
Section 743(b) adjustment we allocated to our tangible
assets or the tangible assets owned by the MLP Entities to
goodwill instead. Goodwill, as an intangible asset, is generally
either
non-amortizable
or amortizable over a longer period of time or under a less
accelerated method than our tangible assets. We cannot assure
you that the determinations we make will not be successfully
challenged by the IRS and that the deductions resulting from
them will not be reduced or disallowed altogether. Should the
IRS require a different basis adjustment to be made, and should,
in our opinion, the expense of compliance exceed the benefit of
the election, we may seek permission from the IRS to revoke our
Section 754 election. If permission is granted, a
subsequent purchaser of units may be allocated more income than
he would have been allocated had the election not been revoked.
Tax
Treatment of Operations
Accounting Method and Taxable Year. We use the
year ending December 31 as our taxable year and the accrual
method of accounting for federal income tax purposes. Each
unitholder will be required to include in income his share of
our income, gain, loss and deduction for our taxable year or
years ending within or with his taxable year. In addition, a
unitholder who has a taxable year different than our taxable
year and who disposes of all of his units following the close of
our taxable year but before the close of his taxable year must
include his share of our income, gain, loss and deduction in
income for his taxable year, with the result that he will be
required to include in income for his taxable year his share of
more than one year of our income, gain, loss and deduction.
Please read Disposition of Common
Units Allocations Between Transferors and
Transferees.
Tax Basis, Depreciation and Amortization. We
use the tax basis of our and the MLP Entities assets for
purposes of computing depreciation and cost recovery deductions
and, ultimately, gain or loss on the disposition of these
assets. The federal income tax burden associated with the
difference between the fair market value of our assets and their
tax basis immediately prior to the time we issue units in an
offering will
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be borne by partners holding interests in us immediately prior
to an offering. Please read Tax Consequences
of Unit Ownership Allocation of Income, Gain, Loss
and Deduction.
To the extent allowable, we may elect to use the depreciation
and cost recovery methods that will result in the largest
deductions being taken in the early years after assets subject
to these allowances are placed in service. Property we
subsequently acquire or construct may be depreciated using
accelerated methods permitted by the Internal Revenue Code.
If we or the MLP Entities dispose of depreciable property by
sale, foreclosure, or otherwise, all or a portion of any gain,
determined by reference to the amount of depreciation previously
deducted and the nature of the property, may be subject to the
recapture rules and taxed as ordinary income rather than capital
gain. Similarly, a common unitholder who has taken cost recovery
or depreciation deductions with respect to property we or the
MLP Entities own will likely be required to recapture some, or
all, of those deductions as ordinary income upon a sale of his
interest in us. Please read Tax Consequences
of Unit Ownership Allocation of Income, Gain, Loss
and Deduction and Disposition of Common
Units Recognition of Gain or Loss.
The costs incurred in selling our units (called
syndication expenses) must be capitalized and cannot
be deducted currently, ratably or upon our termination. There
are uncertainties regarding the classification of costs as
organization expenses, which we may amortize, and as syndication
expenses, which we may not be able to amortize. The underwriting
discounts and commissions we incur will be treated as
syndication expenses.
Valuation and Tax Basis of Our Properties. The
federal income tax consequences of the ownership and disposition
of units will depend in part on our estimates of the relative
fair market values, and the tax bases, of our assets and the MLP
Entities assets. Although we may from time to time consult
with professional appraisers regarding valuation matters, we
will make many of the relative fair market value estimates
ourselves. These estimates and determinations of basis are
subject to challenge and will not be binding on the IRS or the
courts. If the estimates of fair market value or basis are later
found to be incorrect, the character and amount of items of
income, gain, loss or deductions previously reported by
unitholders might change, and unitholders might be required to
adjust their tax liability for prior years and incur interest
and penalties with respect to those adjustments.
Disposition
of Common Units
Recognition of Gain or Loss. Gain or loss will
be recognized on a sale of units equal to the difference between
the unitholders amount realized and the unitholders
tax basis for the units sold. A unitholders amount
realized will be measured by the sum of the cash or the fair
market value of other property received by him plus his share of
our nonrecourse liabilities attributable to the common units
sold. Because the amount realized includes a unitholders
share of our nonrecourse liabilities, the gain recognized on the
sale of units could result in a tax liability in excess of any
cash received from the sale.
Prior distributions from us in excess of cumulative net taxable
income for a common unit that decreased a unitholders tax
basis in that common unit will, in effect, become taxable income
if the common unit is sold at a price greater than the
unitholders tax basis in that common unit, even if the
price received is less than his original cost.
Except as noted below, gain or loss recognized by a unitholder,
other than a dealer in units, on the sale or
exchange of a unit will generally be taxable as capital gain or
loss. Capital gain recognized by an individual on the sale of
units held more than 12 months will generally be taxed at a
maximum U.S. federal income tax rate of 15% through
December 31, 2010 and 20% thereafter (absent legislation
extending or adjusting the current rate). However, a portion,
which will likely be substantial, of this gain or loss will be
separately computed and taxed as ordinary income or loss under
Section 751 of the Internal Revenue Code to the extent
attributable to assets giving rise to depreciation recapture or
other unrealized receivables or to inventory
items we or the MLP Entities own. The term
unrealized receivables includes potential recapture
items, including depreciation recapture. Ordinary income
attributable to unrealized receivables, inventory items and
depreciation recapture may exceed net taxable gain realized on
the sale of a unit and may be recognized
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even if there is a net taxable loss realized on the sale of a
unit. Thus, a unitholder may recognize both ordinary income and
a capital loss upon a sale of units. Net capital losses may
offset capital gains and no more than $3,000 of ordinary income
each year in the case of individuals and may only be used to
offset capital gains in the case of corporations.
The IRS has ruled that a partner who acquires interests in a
partnership in separate transactions must combine those
interests and maintain a single adjusted tax basis for all those
interests. Upon a sale or other disposition of less than all of
those interests, a portion of that tax basis must be allocated
to the interests sold using an equitable
apportionment method, which generally means that the tax
basis allocated to the interest sold equals an amount that bears
the same relation to the partners tax basis in his entire
interest in the partnership as the value of the interest sold
bears to the value of the partners entire interest in the
partnership. Treasury Regulations under Section 1223 of the
Internal Revenue Code allow a selling unitholder who can
identify common units transferred with an ascertainable holding
period to elect to use the actual holding period of the common
units transferred. Thus, according to the ruling discussed
above, a common unitholder will be unable to select high or low
basis common units to sell as would be the case with corporate
stock, but, according to the Treasury Regulations, may designate
specific common units sold for purposes of determining the
holding period of units transferred. A unitholder electing to
use the actual holding period of common units transferred must
consistently use that identification method for all subsequent
sales or exchanges of common units. A unitholder considering the
purchase of additional units or a sale of common units purchased
in separate transactions is urged to consult his tax advisor as
to the possible consequences of this ruling and application of
the Treasury Regulations.
Specific provisions of the Internal Revenue Code affect the
taxation of some financial products and securities, including
partnership interests, by treating a taxpayer as having sold an
appreciated partnership interest, one in which gain
would be recognized if it were sold, assigned or terminated at
its fair market value, if the taxpayer or related persons
enter(s) into:
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a short sale;
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an offsetting notional principal contract; or
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a futures or forward contract with respect to the partnership
interest or substantially identical property.
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Moreover, if a taxpayer has previously entered into a short
sale, an offsetting notional principal contract or a futures or
forward contract with respect to the partnership interest, the
taxpayer will be treated as having sold that position if the
taxpayer or a related person then acquires the partnership
interest or substantially identical property. The Secretary of
the Treasury is also authorized to issue regulations that treat
a taxpayer that enters into transactions or positions that have
substantially the same effect as the preceding transactions as
having constructively sold the financial position.
Allocations Between Transferors and
Transferees. In general, our taxable income or
loss will be determined annually, will be prorated on a monthly
basis and will be subsequently apportioned among the unitholders
in proportion to the number of units owned by each of them as of
the opening of the applicable exchange on the first business day
of the month, which we refer to in this prospectus as the
Allocation Date. However, gain or loss realized on a
sale or other disposition of our assets other than in the
ordinary course of business will be allocated among the
unitholders on the Allocation Date in the month in which that
gain or loss is recognized. As a result, a unitholder
transferring units may be allocated income, gain, loss and
deduction realized after the date of transfer.
Although simplifying conventions are contemplated by the
Internal Revenue Code and most publicly traded partnerships use
similar simplifying conventions, the use of this method may not
be permitted under existing Treasury Regulations. Recently, the
Department of the Treasury and the IRS issued proposed Treasury
Regulations that provide a safe harbor pursuant to which a
publicly traded partnership may use a similar monthly
simplifying convention to allocate tax items among transferor
and transferee unitholders, although such tax items must be
prorated on a daily basis. Existing publicly traded partnerships
are entitled to rely on these proposed Treasury Regulations;
however, they are not binding on the IRS and are subject to
change until final Treasury Regulations are issued. Accordingly,
Andrews Kurth LLP is unable to opine on the validity of this
method of allocating income and deductions between transferor
and transferee unitholders. If this method
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is not allowed under the Treasury Regulations, or only applies
to transfers of less than all of the unitholders interest,
our taxable income or losses might be reallocated among the
unitholders. We are authorized to revise our method of
allocation between transferor and transferee unitholders, as
well as unitholders whose interests vary during a taxable year,
to conform to a method permitted under future Treasury
Regulations.
A unitholder who owns units at any time during a quarter and who
disposes of them prior to the record date set for a cash
distribution for that quarter will be allocated items of our
income, gain, loss and deductions attributable to that quarter
but will not be entitled to receive that cash distribution.
Notification Requirements. A unitholder who
sells any of his units, other than through a broker, generally
is required to notify us in writing of that sale within
30 days after the sale (or, if earlier, January 15 of the
year following the sale). A purchaser of units who purchases
units from another unitholder is also generally required to
notify us in writing of that purchase within 30 days after
the purchase. Upon receiving such notification, we are required
to notify the IRS of that transaction and to furnish specified
information to the transferor and transferee. Failure to notify
us of a transfer of units may, in some cases, lead to the
imposition of penalties. However, these reporting requirements
do not apply to a sale by an individual who is a citizen of the
U.S. and who effects the sale or exchange through a broker
who will satisfy such requirements.
Constructive Termination. We will be
considered to have been terminated for tax purposes if there are
sales or exchanges which, in the aggregate, constitute 50% or
more of the total interests in our capital and profits within a
12-month
period. A constructive termination results in the closing of our
taxable year for all unitholders. In the case of a unitholder
reporting on a taxable year different from our taxable year, the
closing of our taxable year may result in more than
12 months of our taxable income or loss being includable in
his taxable income for the year of termination. A constructive
termination occurring on a date other than December 31 will
result in us filing two tax returns (and unitholders could
receive two Schedules K-1) for one fiscal year and the cost of
the preparation of these returns will be borne by all common
unitholders. We would be required to make new tax elections
after a termination, including a new election under
Section 754 of the Internal Revenue Code, and a termination
would result in a deferral of our deductions for depreciation. A
termination could also result in penalties if we were unable to
determine that the termination had occurred. Moreover, a
termination might either accelerate the application of, or
subject us to, any tax legislation enacted before the
termination. The IRS has recently announced a relief procedure
whereby if a publicly traded partnership that has technically
terminated requests and is granted relief from the IRS, among
other things, the partnership will only have to provide one
Schedule K-1
to unitholders for the fiscal year notwithstanding that two
partnership tax years result from the termination.
Uniformity
of Units
Because we cannot match transferors and transferees of units, we
must maintain uniformity of the economic and tax characteristics
of the units to a purchaser of these units. In the absence of
uniformity, we may be unable to completely comply with a number
of federal income tax requirements, both statutory and
regulatory. A lack of uniformity can result from a literal
application of Treasury Regulation
Section 1.167(c)-1(a)(6).
Any non-uniformity could have a negative impact on the value of
the units. Please read Tax Consequences of
Unit Ownership Section 754 Election.
We intend to depreciate the portion of a Section 743(b)
adjustment attributable to unrealized appreciation in the value
of Contributed Property, to the extent of any unamortized
Book-Tax Disparity, using a rate of depreciation or amortization
derived from the depreciation or amortization method and useful
life applied to the unamortized Book-Tax Disparity of that
property, or treat that portion as nonamortizable, to the extent
attributable to property which is not amortizable, consistent
with the Treasury Regulations under Section 743 of the
Internal Revenue Code, even though that position may be
inconsistent with Treasury Regulation
Section 1.167(c)-1(a)(6).
Please read Tax Consequences of Unit
Ownership Section 754 Election. To the
extent that the Section 743(b) adjustment is attributable
to appreciation in value in excess of the unamortized Book-Tax
Disparity, we will apply the rules described in the Treasury
Regulations and legislative history. If we determine that this
position cannot reasonably be taken, we may adopt a depreciation
and
37
amortization position under which all purchasers acquiring units
in the same month would receive depreciation and amortization
deductions, whether attributable to a common basis or
Section 743(b) adjustment, based upon the same applicable
methods and lives as if they had purchased a direct interest in
our property. If this position is adopted, it may result in
lower annual depreciation and amortization deductions than would
otherwise be allowable to some unitholders and risk the loss of
depreciation and amortization deductions not taken in the year
that these deductions are otherwise allowable. This position
will not be adopted if we determine that the loss of
depreciation and amortization deductions will have a material
adverse effect on the unitholders. If we choose not to utilize
this aggregate method, we may use any other reasonable
depreciation and amortization method to preserve the uniformity
of the intrinsic tax characteristics of any units that would not
have a material adverse effect on the unitholders. Our counsel,
Andrews Kurth LLP, is unable to opine on the validity of any of
these positions. The IRS may challenge any method of
depreciating the Section 743(b) adjustment described in
this paragraph. If this challenge were sustained, the uniformity
of units might be affected, and the gain from the sale of units
might be increased without the benefit of additional deductions.
We do not believe these allocations will affect any material
items of income, gain, loss or deduction. Please read
Disposition of Common
Units Recognition of Gain or Loss.
Tax-Exempt
Organizations and Other Investors
Ownership of units by employee benefit plans, other tax-exempt
organizations, regulated investment companies, non-resident
aliens, foreign corporations, and other foreign persons raises
issues unique to those investors and, as described below, may
have substantially adverse tax consequences to them.
Employee benefit plans and most other organizations exempt from
federal income tax, including individual retirement accounts and
other retirement plans, are subject to federal income tax on
unrelated business taxable income. Virtually all of our income
allocated to a unitholder that is a tax-exempt organization will
be unrelated business taxable income and will be taxable to them.
A regulated investment company or mutual fund is
required to derive 90% or more of its gross income from certain
permitted sources. The American Jobs Creation Act of 2004
generally treats net income from the ownership of publicly
traded partnerships as derived from such a permitted source. We
anticipate that all of our net income will be treated as derived
from such a permitted source.
Non-resident aliens and foreign corporations, trusts or estates
that own units will be considered to be engaged in business in
the United States because of the ownership of units. As a
consequence they will be required to file federal tax returns to
report their share of our income, gain, loss or deduction and
pay federal income tax at regular rates on their share of our
net income or gain. Moreover, under rules applicable to publicly
traded partnerships, we will withhold tax at the highest
applicable effective tax rate from cash distributions made
quarterly to foreign unitholders. Each foreign unitholder must
obtain a taxpayer identification number from the IRS and submit
that number to our transfer agent on a
Form W-8
BEN or applicable substitute form in order to obtain credit for
these withholding taxes. A change in applicable law may require
us to change these procedures.
In addition, because a foreign corporation that owns units will
be treated as engaged in a United States trade or business, that
corporation may be subject to the United States branch profits
tax at a rate of 30%, in addition to regular federal income tax,
on its share of our income and gain, as adjusted for changes in
the foreign corporations U.S. net equity,
that is effectively connected with the conduct of a United
States trade or business. That tax may be reduced or eliminated
by an income tax treaty between the United States and the
country in which the foreign corporate unitholder is a
qualified resident. In addition, this type of
unitholder is subject to special information reporting
requirements under Section 6038C of the Internal Revenue
Code.
Under a ruling published by the IRS, a foreign unitholder who
sells or otherwise disposes of a unit will be subject to federal
income tax on gain realized on the sale or disposition of that
unit to the extent that this gain is effectively connected with
a United States trade or business of the foreign unitholder.
Because a foreign unitholder is considered to be engaged in a
trade or business in the United States by virtue of the
ownership of units, under this ruling, a foreign unitholder who
sells or otherwise disposes of a unit generally will be subject
to federal income tax on gain realized on the sale or other
disposition of units. Apart from the
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ruling, a foreign unitholder will not be taxed or subject to
withholding upon the sale or disposition of a unit if he has
owned less than 5% in value of the units during the five-year
period ending on the date of the disposition and if the units
are regularly traded on an established securities market at the
time of the sale or disposition.
Administrative
Matters
Information Returns and Audit Procedures. We intend to furnish
to each unitholder, within 90 days after the close of each
taxable year, specific tax information, including a
Schedule K-1,
which describes each unitholders share of our income,
gain, loss and deduction for our preceding taxable year. In
preparing this information, which will not be reviewed by
counsel, we will take various accounting and reporting
positions, some of which have been mentioned earlier, to
determine each unitholders share of income, gain, loss and
deduction. We cannot assure you that those positions will in all
cases yield a result that conforms to the requirements of the
Internal Revenue Code, Treasury Regulations or administrative
interpretations of the IRS.
Neither we nor Andrews Kurth LLP can assure prospective
unitholders that the IRS will not successfully contend in court
that those positions are impermissible. Any challenge by the IRS
could negatively affect the value of the units.
The IRS may audit our federal income tax information returns.
Adjustments resulting from an IRS audit may require each
unitholder to adjust a prior years tax liability, and
possibly may result in an audit of his own return. Any audit of
a unitholders return could result in adjustments not
related to our returns as well as those related to our returns.
Partnerships generally are treated as separate entities for
purposes of federal income tax audits, judicial review of
administrative adjustments by the IRS and tax settlement
proceedings. The tax treatment of partnership items of income,
gain, loss and deduction are determined in a partnership
proceeding rather than in separate proceedings with the
partners. The Internal Revenue Code requires that one partner be
designated as the Tax Matters Partner for these
purposes. The partnership agreement names our general partner as
our Tax Matters Partner.
The Tax Matters Partner has made and will make some elections on
our behalf and on behalf of unitholders. In addition, the Tax
Matters Partner can extend the statute of limitations for
assessment of tax deficiencies against unitholders for items in
our returns. The Tax Matters Partner may bind a unitholder with
less than a 1% profits interest in us to a settlement with the
IRS unless that unitholder elects, by filing a statement with
the IRS, not to give that authority to the Tax Matters Partner.
The Tax Matters Partner may seek judicial review, by which all
the unitholders are bound, of a final partnership administrative
adjustment and, if the Tax Matters Partner fails to seek
judicial review, judicial review may be sought by any unitholder
having at least a 1% interest in profits or by any group of
unitholders having in the aggregate at least a 5% interest in
profits. However, only one action for judicial review will go
forward, and each unitholder with an interest in the outcome may
participate in that action.
A unitholder must file a statement with the IRS identifying the
treatment of any item on his federal income tax return that is
not consistent with the treatment of the item on our return.
Intentional or negligent disregard of this consistency
requirement may subject a unitholder to substantial penalties.
Nominee Reporting. Persons who hold an
interest in us as a nominee for another person are required to
furnish the following information to us:
(a) the name, address and taxpayer identification number of
the beneficial owner and the nominee;
(b) a statement regarding whether the beneficial owner is
(1) a person that is not a United States person,
(2) a foreign government, an international organization or
any wholly owned agency or instrumentality of either of the
foregoing, or
(3) a tax-exempt entity;
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(c) the amount and description of units held, acquired or
transferred for the beneficial owner; and
(d) specific information including the dates of
acquisitions and transfers, means of acquisitions and transfers,
and acquisition cost for purchases, as well as the amount of net
proceeds from sales.
Brokers and financial institutions are required to furnish
additional information, including whether they are United States
persons and specific information on units they acquire, hold or
transfer for their own account. A penalty of $50 per failure, up
to a maximum of $100,000 per calendar year, is imposed by the
Internal Revenue Code for failure to report that information to
us. The nominee is required to supply the beneficial owner of
the units with the information furnished to us.
Accuracy-related Penalties. An additional tax
equal to 20% of the amount of any portion of an underpayment of
tax that is attributable to one or more specified causes,
including negligence or disregard of rules or regulations,
substantial understatements of income tax and substantial
valuation misstatements, is imposed by the Internal Revenue
Code. No penalty will be imposed, however, for any portion of an
underpayment if it is shown that there was a reasonable cause
for the underpayment of that portion and that the taxpayer acted
in good faith regarding the underpayment of that portion.
For individuals, a substantial understatement of income tax in
any taxable year exists if the amount of the understatement
exceeds the greater of 10% of the tax required to be shown on
the return for the taxable year or $5,000. The amount of any
understatement subject to penalty generally is reduced if any
portion is attributable to a position adopted on the return:
(1) for which there is, or was, substantial
authority, or
(2) as to which there is a reasonable basis if the
pertinent facts of that position are adequately disclosed on the
return.
If any item of income, gain, loss or deduction included in the
distributive shares of unitholders might result in that kind of
an understatement of income for which no
substantial authority exists, we must disclose the
pertinent facts on our return. In addition, we will make a
reasonable effort to furnish sufficient information for
unitholders to make adequate disclosure on their returns and to
take other actions as may be appropriate to permit unitholders
to avoid liability for this penalty. More stringent rules apply
to tax shelters, which we do not believe includes us.
A substantial valuation misstatement exists if (a) the
value of any property, or the adjusted basis of any property,
claimed on a tax return is 150% or more of the amount determined
to be the correct amount of the valuation or adjusted basis,
(b) the price for any property or services (or for the use
of property) claimed on any such return with respect to any
transaction between persons described in Internal Revenue Code
Section 482 is 200% or more (or 50% or less) of the amount
determined under Section 482 to be the correct amount of
such price, or (c) the net Internal Revenue Code
Section 482 transfer price adjustment for the taxable year
exceeds the lesser of $5 million or 10% of the
taxpayers gross receipts.
No penalty is imposed unless the portion of the underpayment
attributable to a substantial valuation misstatement exceeds
$5,000 ($10,000 for most corporations). If the valuation claimed
on a return is 200% or more than the correct valuation, the
penalty imposed increases to 40%. We do not anticipate making
any valuation misstatements.
Reportable Transactions. If we were to engage
in a reportable transaction, we (and possibly you
and others) would be required to make a detailed disclosure of
the transaction to the IRS. A transaction may be a reportable
transaction based upon any of several factors, including the
fact that it is a type of tax avoidance transaction publicly
identified by the IRS as a listed transaction or a
transaction of interest or that it produces certain
kinds of losses in excess of $2 million in any single year,
or $4 million in any combination of six successive taxable
years. Our participation in a reportable transaction could
increase the likelihood that our federal income tax information
return (and possibly your tax return) would be audited by the
IRS. Please read Information Returns and Audit
Procedures above.
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Moreover, if we were to participate in a reportable transaction
with a significant purpose to avoid or evade tax, or in any
listed transaction, you may be subject to the following
provisions of the American Jobs Creation Act of 2004:
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accuracy-related penalties with a broader scope, significantly
narrower exceptions, and potentially greater amounts than
described above at Accuracy-Related
Penalties,
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for those persons otherwise entitled to deduct interest on
federal tax deficiencies, nondeductibility of interest on any
resulting tax liability, and
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in the case of a listed transaction, an extended statute of
limitations.
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We do not expect to engage in any reportable
transactions.
Registration as a Tax Shelter. We registered
as a tax shelter under the law in effect at the time
of our initial public offering and were assigned a tax shelter
registration number. Issuance of a tax shelter registration
number to us does not indicate that investment in us or the
claimed tax benefits have been reviewed, examined or approved by
the IRS. The American Jobs Creation Act of 2004 repealed the tax
shelter registration rules and replaced them with the reporting
regime described above at Reportable
Transactions. The term tax shelter has a
different meaning for this purpose than under the penalty rules
described above at Accuracy-Related
Penalties.
State,
Local, Foreign and Other Tax Considerations
In addition to federal income taxes, you likely will be subject
to other taxes, such as state, local and foreign income taxes,
unincorporated business taxes, and estate, inheritance or
intangible taxes that may be imposed by the various
jurisdictions in which we do business or own property or in
which you are a resident. Although an analysis of those various
taxes is not presented here, each prospective unitholder should
consider their potential impact on his investment in us. We
currently own property or do business in a substantial number of
states, virtually all of which impose a personal income tax and
many impose an income tax on corporations and other entities. We
may also own property or do business in other states in the
future. Although you may not be required to file a return and
pay taxes in some states because your income from that state
falls below the filing and payment requirement, you will be
required to file income tax returns and to pay income taxes in
some or all of the jurisdictions in which we do business or own
property and may be subject to penalties for failure to comply
with those requirements. In some jurisdictions, tax losses may
not produce a tax benefit in the year incurred and also may not
be available to offset income in subsequent taxable years. Some
of the jurisdictions may require us, or we may elect, to
withhold a percentage of income from amounts to be distributed
to a unitholder who is not a resident of the jurisdiction.
Withholding, the amount of which may be greater or less than a
particular unitholders income tax liability to the
jurisdiction, generally does not relieve a nonresident
unitholder from the obligation to file an income tax return.
Amounts withheld will be treated as if distributed to
unitholders for purposes of determining the amounts distributed
by us. Please read Tax Consequences of Unit
Ownership Entity-Level Collections.
Based on current law and our estimate of our future operations,
any amounts required to be withheld are not contemplated to be
material.
It is the responsibility of each unitholder to investigate
the legal and tax consequences, under the laws of pertinent
jurisdictions, of his investment in us. Accordingly, each
prospective unitholder is urged to consult, and depend on, his
own tax counsel or other advisor with regard to those matters.
Further, it is the responsibility of each unitholder to file all
state, local, and foreign as well as United States federal tax
returns, that may be required of him. Andrews Kurth LLP has not
rendered an opinion on the state, local or foreign tax
consequences of an investment in us.
Tax
Consequences of Ownership of Debt Securities
A description of the material federal income tax consequences of
the acquisition, ownership and disposition of debt securities
will be set forth in the prospectus supplement relating to the
offering of debt securities.
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INVESTMENT
IN ENTERPRISE PRODUCTS PARTNERS L.P. BY EMPLOYEE BENEFIT
PLANS
An investment in us by an employee benefit plan is subject to
additional considerations to the extent that the investments by
these plans are subject to the fiduciary responsibility and
prohibited transaction provisions of the Employee Retirement
Income Security Act (ERISA), and restrictions
imposed by Section 4975 of the Internal Revenue Code. For
these purposes, the term employee benefit plan
includes, but is not limited to, certain qualified pension,
profit-sharing and stock bonus plans, Keogh plans, simplified
employee pension plans and individual retirement annuities or
accounts (IRAs) established or maintained by an employer or
employee organization. Incident to making an investment in us,
among other things, consideration should be given by an employee
benefit plan to:
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whether the investment is prudent under
Section 404(a)(1)(B) of ERISA;
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whether in making the investment, that plan will satisfy the
diversification requirements of Section 404(a)(l)(C) of
ERISA; and
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whether the investment will result in recognition of unrelated
business taxable income by the plan and, if so, the potential
after-tax investment return.
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In addition, the person with investment discretion with respect
to the assets of an employee benefit plan or other arrangement
that is covered by the prohibited transactions restrictions of
the Internal Revenue Code, often called a fiduciary, should
determine whether an investment in us is authorized by the
appropriate governing instrument and is a proper investment for
the plan or arrangement.
Section 406 of ERISA and Section 4975 of the Internal
Revenue Code prohibit certain employee benefit plans, and
Section 4975 of the Internal Revenue Code prohibits IRAs
and certain other arrangements that are not considered part of
an employee benefit plan, from engaging in specified
transactions involving plan assets with parties that
are parties in interest under ERISA or
disqualified persons under the Internal Revenue Code
with respect to the plan or other arrangement that is covered by
ERISA or the Internal Revenue Code.
In addition to considering whether the purchase of common units
is a prohibited transaction, a fiduciary of an employee benefit
plan or other arrangement should consider whether the plan or
arrangement will, by investing in us, be deemed to own an
undivided interest in our assets, with the result that our
general partner also would be considered to be a fiduciary of
the plan and our operations would be subject to the regulatory
restrictions of ERISA, including its prohibited transaction
rules and/or
the prohibited transaction rules of the Internal Revenue Code.
The U.S. Department of Labor regulations provide guidance
with respect to whether the assets of an entity in which
employee benefit plans or other arrangements described above
acquire equity interests would be deemed plan assets
under some circumstances. Under these regulations, an
entitys assets would not be considered to be plan
assets if, among other things:
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the equity interests acquired by employee benefit plans or other
arrangements described above are publicly offered securities;
i.e., the equity interests are widely held by 100 or more
investors independent of the issuer and each other, freely
transferable and registered under some provisions of the federal
securities laws;
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the entity is an operating company,
i.e., it is primarily engaged in the production or sale of a
product or service other than the investment of capital either
directly or through a majority owned subsidiary or
subsidiaries; or
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less than 25% of the value of each class of equity interest,
disregarding any such interests held by our general partner, its
affiliates, and some other persons, is held by the employee
benefit plans referred to above, IRAs and other employee benefit
plans or arrangements subject to ERISA or Section 4975 of
the Code.
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Our assets should not be considered plan assets under these
regulations because it is expected that the investment in our
common units will satisfy the requirements in the first bullet
point above.
Plan fiduciaries contemplating a purchase of common units should
consult with their own counsel regarding the consequences of
such purchase under ERISA and the Internal Revenue Code in light
of possible personal liability for any breach of fiduciary
duties and the imposition of serious penalties on persons who
engage in prohibited transactions under ERISA or the Internal
Revenue Code.
42
PLAN OF
DISTRIBUTION
We may sell the common units or debt securities directly,
through agents, or to or through underwriters or dealers. Please
read the prospectus supplement to find the terms of the common
unit or debt securities offering including:
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the names of any underwriters, dealers or agents;
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the offering price;
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underwriting discounts;
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sales agents commissions;
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other forms of underwriter or agent compensation;
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discounts, concessions or commissions that underwriters may pass
on to other dealers; and
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any exchange on which the common units or debt securities are
listed.
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We may change the offering price, underwriter discounts or
concessions, or the price to dealers when necessary. Discounts
or commissions received by underwriters or agents and any
profits on the resale of common units or debt securities by them
may constitute underwriting discounts and commissions under the
Securities Act.
Unless we state otherwise in the prospectus supplement,
underwriters will need to meet certain requirements before
purchasing common units or debt securities. Agents will act on a
best efforts basis during their appointment. We will
also state the net proceeds from the sale in the prospectus
supplement.
Any brokers or dealers that participate in the distribution of
the common units or debt securities may be
underwriters within the meaning of the Securities
Act for such sales. Profits, commissions, discounts or
concessions received by such broker or dealer may be
underwriting discounts and commissions under the Securities Act.
When necessary, we may fix common unit or debt securities
distribution using changeable, fixed prices, market prices at
the time of sale, prices related to market prices, or negotiated
prices.
We may, through agreements, indemnify underwriters, dealers or
agents who participate in the distribution of the common units
or debt securities against certain liabilities including
liabilities under the Securities Act. We may also provide funds
for payments such underwriters, dealers or agents may be
required to make. Underwriters, dealers and agents, and their
affiliates may transact with us and our affiliates in the
ordinary course of their business.
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, and other
information with the Commission under the Exchange Act
(Commission File
No. 1-14323).
You may read and copy any material we file at the
Commissions public reference room at
100 F Street, N.E., Washington, D.C. 20549.
Please call the Commission at
1-800-SEC-0330
for further information on the public reference room. Our
filings are also available to the public at the
Commissions web site at
http://www.sec.gov.
In addition, documents filed by us can be inspected at the
offices of the New York Stock Exchange, Inc. 20 Broad
Street, New York, New York 10002. We maintain an Internet
Website at www.epplp.com. On the Investor Relations page of that
site, we provide access to our Commission filings free of charge
as soon as reasonably practicable after filing with the
Commission. The information on our Internet Website is not
incorporated in this prospectus by reference and you should not
consider it a part of this prospectus.
The Commission allows us to incorporate by reference into this
prospectus the information we file with it, which means that we
can disclose important information to you by referring you to
those documents. The information incorporated by reference is
considered to be part of this prospectus, and later information
that we file with the Commission will automatically update and
supersede this information. We incorporate by
43
reference the documents listed below and any future filings it
makes with the Commission under section 13(a), 13(c), 14 or
15(d) of the Exchange Act until this offering is completed
(other than information furnished under Items 2.02 or 7.01
of any
Form 8-K,
which is not deemed filed under the Exchange Act):
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Annual Report on
Form 10-K
for the year ended December 31, 2009;
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Quarterly Reports on
Form 10-Q
for the quarters ended March 31, 2010, June 30, 2010
and September 30, 2010;
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Current Reports on
Form 8-K
filed with the Commission on January 4, 2010,
January 8, 2010, February 26, 2010, March 8,
2010, March 29, 2010, April 1, 2010, April 15,
2010, May 17, 2010, May 20, 2010, May 21, 2010,
June 3, 2010, August 23, 2010, September 7, 2010,
September 28, 2010, October 1, 2010, October 14,
2010, November 9, 2010 and November 23, 2010 (as
amended by Amendment No. 1 filed with the Commission on
November 23, 2010); and
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The description of our common units contained in our
registration statement on
Form 8-A/A
filed on November 23, 2010, and including any other
amendments or reports filed for the purpose of updating such
description.
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We will provide without charge to each person, including any
beneficial owner, to whom this prospectus has been delivered, a
copy of any and all of our filings with the Commission. You may
request a copy of these filings by writing or telephoning us at:
Enterprise Products Partners L.P.
1100 Louisiana, 10th Floor
Houston, Texas 77002
Attention: Investor Relations
Telephone:
(713) 381-6500
FORWARD-LOOKING
STATEMENTS
This prospectus and some of the documents we have incorporated
herein by reference contain various forward-looking statements
and information that are based on our beliefs and those of our
general partner, as well as assumptions made by and information
currently available to us. These forward-looking statements are
identified as any statement that does not relate strictly to
historical or current facts. When used in this prospectus or the
documents we have incorporated herein by reference, words such
as anticipate, project,
expect, plan, seek,
goal, estimate, forecast,
intend, could, believe,
may, potential, should,
will, and similar expressions and statements
regarding our plans and objectives for future operations, are
intended to identify forward-looking statements. Although we and
our general partner believe that such expectations reflected in
such forward-looking statements are reasonable, neither we nor
our general partner can give assurances that such expectations
will prove to be correct. Such statements are subject to a
variety of risks, uncertainties and assumptions. If one or more
of these risks or uncertainties materialize, or if underlying
assumptions prove incorrect, our actual results may vary
materially from those anticipated, estimated, projected or
expected. Among the key risk factors that may have a direct
bearing on our results of operations and financial condition are:
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fluctuations in oil, natural gas and NGL prices and production
due to weather and other natural and economic forces;
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a reduction in demand for our products by the petrochemical,
refining or heating industries;
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the effects of our debt level on our future financial and
operating flexibility;
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a decline in the volumes of NGLs delivered by our facilities;
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the failure of our credit risk management efforts to adequately
protect us against customer non-payment;
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terrorist attacks aimed at our facilities; and
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our failure to successfully integrate our operations with assets
or companies we acquire.
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You should not put undue reliance on any forward-looking
statements. When considering forward-looking statements, please
review the risk factors described under Risk Factors
in this prospectus, any prospectus supplement and any documents
incorporated by reference into this prospectus or any prospectus
supplement (including our Form
8-K filed on
November 23, 2010, and our most recent Annual Report on
Form 10-K
and our Quarterly Reports on
Form 10-Q
filed after our most recent Annual Report on
Form 10-K).
LEGAL
MATTERS
Andrews Kurth LLP, our counsel, will issue an opinion for us
about the legality of the common units and debt securities and
the material federal income tax consequences regarding the
common units. Any underwriter will be advised about other issues
relating to any offering by their own legal counsel.
EXPERTS
The consolidated financial statements of Enterprise Products
Partners L.P. and subsidiaries incorporated in this prospectus
by reference from Enterprise Products Partners L.P.s
Annual Report on
Form 10-K
for the year ended December 31, 2009 and the effectiveness
of Enterprise Products Partners L.P. and subsidiaries
internal control over financial reporting have been audited by
Deloitte & Touche LLP, an independent registered
public accounting firm, as stated in their reports, which are
incorporated herein by reference (which reports (i) express
an unqualified opinion on the financial statements and include
an explanatory paragraph concerning the retroactive effects of
the common control acquisition of TEPPCO Partners, L.P. and
Texas Eastern Products Pipeline Company, LLC by Enterprise
Products Partners L.P. on October 26, 2009 and the related
change in the composition of reportable segments as a result of
these acquisitions and (ii) express an unqualified opinion
on the effectiveness of internal control over financial
reporting). Such consolidated financial statements have been so
incorporated in reliance upon the report of such firm given upon
their authority as experts in accounting and auditing.
The consolidated balance sheet of Enterprise Products GP, LLC
and subsidiaries as of December 31, 2009, incorporated in
this prospectus by reference from Enterprise Products Partners
L.P.s Current Report on
Form 8-K
filed on March 8, 2010, has been audited by
Deloitte & Touche LLP, an independent registered
public accounting firm, as stated in their report, which is
incorporated herein by reference. Such consolidated balance
sheet has been so incorporated in reliance upon the report of
such firm given upon their authority as experts in accounting
and auditing.
The consolidated financial statements of Enterprise GP Holdings
L.P. and subsidiaries, except Energy Transfer Equity, L.P., an
investment of Enterprise GP Holdings L.P. which is accounted for
by the use of the equity method, incorporated in this prospectus
by reference from Enterprise Products Partners L.P.s
Current Report on
Form 8-K
filed on November 23, 2010, have been audited by
Deloitte & Touche LLP, an independent registered
public accounting firm, as stated in their report, which is
incorporated herein by reference (which report expresses an
unqualified opinion on the financial statements, refers to the
report of the other auditors as it relates to an equity method
investment in Energy Transfer Equity, L.P., and includes an
explanatory paragraph concerning the retroactive effects of the
common control acquisition of TEPPCO Partners, L.P. and Texas
Eastern Products Pipeline Company, LLC by Enterprise Products
Partners L.P. on October 26, 2009 and the related change in
the composition of reportable segments as a result of these
acquisitions). The consolidated financial statements of Energy
Transfer Equity, L.P. have been audited by Grant Thornton LLP,
an independent registered public accounting firm, as stated in
their report, which report is incorporated herein by reference
from Enterprise Products Partners L.P.s Current Report on
Form 8-K
filed on November 23, 2010. Such consolidated financial
statements are incorporated herein by reference, and have been
so incorporated in reliance upon the report of
Deloitte & Touche LLP, and as it relates to the
Companys investment in Energy Transfer Equity, L.P., the
report of Grant Thornton LLP, in each case, given upon their
authority as experts in accounting and auditing.
45
9,000,000 Common
Units
Enterprise Products Partners
L.P.
Prospectus Supplement
December 8, 2011
Joint Book-Running
Managers
Barclays Capital
BofA Merrill Lynch
Citigroup
J.P. Morgan
Morgan Stanley
UBS Investment Bank
Senior Co-Managers
Credit Suisse
Deutsche Bank Securities
Raymond James
RBC Capital Markets
Co-Managers
Janney Montgomery Scott
Ladenburg Thalmann & Co.
Inc.
Morgan Keegan
Sanders Morris Harris