EXHIBIT K
EXECUTED VERSION
AGREEMENT
DATED AS OF MARCH 4, 2005
BY AND AMONG
ENTERPRISE PRODUCTS PARTNERS L.P.,
SHELL US GAS & POWER LLC
AND
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ MLP INVESTMENT COMPANY
TABLE OF CONTENTS
PAGE
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ARTICLE I
REGISTRATION OF REGISTRABLE SECURITIES
Section 1.1 Registration of Registrable Securities..........................................................1
Section 1.2 Termination.....................................................................................4
ARTICLE II
INDEMNIFICATION
Section 2.1 Indemnification.................................................................................4
ARTICLE III
MISCELLANEOUS
Section 3.1 Publicity.......................................................................................7
Section 3.2 Notices.........................................................................................7
Section 3.3 Governing Law...................................................................................8
Section 3.4 Entire Agreement................................................................................8
Section 3.5 Amendments and Waivers..........................................................................8
Section 3.6 Severability....................................................................................9
Section 3.7 Counterparts....................................................................................9
Section 3.8 Interpretation of Agreement.....................................................................9
Section 3.9 Expenses........................................................................................9
Section 3.10 Attorneys' Fees.................................................................................9
Section 3.11 Binding Effect..................................................................................9
Section 3.12 Third Parties...................................................................................9
Section 3.13 Incorporation of Exhibit........................................................................9
Section 3.14 Remedies; Waiver of Punitive Damages............................................................9
Section 3.15 Further Assurances.............................................................................10
Section 3.16 Assignment.....................................................................................10
Section 3.17 Certain Definitions............................................................................10
AGREEMENT
This Agreement (this "Agreement") dated as of March 4, 2005 (the
"Effective Date"), is by and among Enterprise Products Partners L.P., a Delaware
limited partnership ("Enterprise Partners"), Shell US Gas & Power LLC, a
Delaware limited liability company ("Shell"), and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ MLP Investment
Company, a Maryland corporation ("▇▇▇▇▇ ▇▇▇▇▇▇▇▇"). Enterprise Partners, Shell
and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ are herein sometimes referred to individually as a "Party"
and collectively as the "Parties".
WITNESSETH:
WHEREAS, Enterprise Partners, Shell and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ desire to
provide for the registration of certain Common Units of Enterprise Products, and
to take such other actions as set forth herein;
WHEREAS, certain capitalized and noncapitalized words not otherwise
defined herein shall have the meanings as defined in Section 3.17 hereof.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the Parties hereto agree as follows:
ARTICLE I
REGISTRATION OF REGISTRABLE SECURITIES
Section 1.1 Registration of Registrable Securities.
(a) Subject to the terms and conditions of this Agreement, the Parties
hereby agree that Enterprise Partners shall permit each of Shell and
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to join as a selling unitholder (with respect to the
Registrable Securities owned by each of them on the Effective Date) in
a Registration Statement on Form S-3 (the "Registration Statement") to
be filed by Enterprise Partners with the United States Securities and
Exchange Commission ("Commission") on or before March 7, 2005. At the
request of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Enterprise Partners hereby agrees to file a
prospectus supplement, or post-effective amendment if necessary, to
include the additional Option Units it acquires from Shell.
(b) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ hereby agrees to execute and deliver the lockup letter
agreement attached hereto as Exhibit A.
(c) Enterprise Partners shall use its Best Efforts to cause the
Registration Statement to promptly become and remain effective until
the earlier of:
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i. with respect to the Registrable Securities owned by ▇▇▇▇▇
▇▇▇▇▇▇▇▇ on the Effective Date, on the date on which any
restrictive legend on all of such Registrable Securities
shall have been removed;
ii. with respect to the Registrable Securities owned by Shell on
the Effective Date, on the date on which such Registrable
Securities have been disposed of; and
iii. two years from the effective date of the Registration
Statement.
Notwithstanding the foregoing, Enterprise Partners, at its election, may cause
the Registration Statement to remain effective for a period of time beyond the
time required by the preceding sentence.
(d) Enterprise Partners may, upon written notice to the Shell and ▇▇▇▇▇
▇▇▇▇▇▇▇▇, delay the filing or effectiveness of the Registration Statement as it
reasonably deems necessary to comply with federal or state securities laws;
(e) Enterprise Partners shall furnish, at least two Business Days before filing
a Registration Statement that registers such Registrable Securities, a
prospectus relating thereto or any amendments or supplements relating to such
Registration Statement or prospectus, to Shell and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, including
copies of all such documents proposed to be filed (it being understood that such
two-Business-Day period need not apply to successive drafts of the same document
proposed to be filed so long as such successive drafts are supplied to Shell and
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ in advance of the proposed filing by a period of time that is
customary and reasonable under the circumstances);
(f) Enterprise Partners shall prepare and file with the Commission such
amendments and supplements to the Registration Statement and the Prospectus used
in connection therewith as may be necessary to keep the Registration Statement
effective at all times for the period required by Section 1.1(c);
(g) Enterprise Partners shall provide a transfer agent and registrar for the
Registrable Securities;
(h) notify in writing Shell and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ promptly of the receipt by
Enterprise Partners of any notification with respect to (i) any stop order
issued or threatened to be issued by the Commission suspending the effectiveness
of such Registration Statement or prospectus or any amendment or supplement
thereto or the initiation or threatening of any proceeding for that purpose, and
(ii) the suspension of the qualification of such Registrable Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding for such
purposes;
(i) furnish without charge to Shell and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ such number of copies of
such Registration Statement and prospectus in conformity with the requirements
of the Securities Act, and such other documents (including exhibits thereto and
documents incorporated by reference therein) as such Party may reasonably
request in order to facilitate the public sale or other disposition of such
Registrable Securities;
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(j) notify in writing Shell and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ on a timely basis at any time
when a prospectus relating to such Registrable Securities is required to be
delivered under the Securities Act during the registration period of the
happening of any event as a result of which the prospectus included in such
Registration Statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing and to prepare and furnish to Shell and ▇▇▇▇▇
▇▇▇▇▇▇▇▇ a reasonable number of copies of a supplement to or an amendment of
such prospectus as may be necessary so that, as thereafter delivered to the
offerees and purchasers of such units, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing;
(k) Each of Shell and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, upon receipt of any notice from Enterprise
Partners of any event of the kind described in Section 1.1(j) hereof, shall
forthwith discontinue disposition of the Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until Shell's or
▇▇▇▇▇ ▇▇▇▇▇▇▇▇'▇ receipt of the copies of the supplemented or amended prospectus
contemplated by Section 1.1(j) hereof, and, if so directed by Enterprise
Partners, such Parties shall deliver to Enterprise Partners all copies, other
than permanent file copies then in such holder's possession, of the prospectus
covering such Registrable Securities at the time of receipt of such notice.
(l) Shell and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall furnish to Enterprise Partners such written
information regarding themselves and their proposed distribution as Enterprise
Partners may reasonably request in writing and as shall be reasonably required
in connection with any registration, qualification or compliance referred to in
this Agreement;
(m) All expenses incident to the registration of Registrable Securities hereof,
including, without limitation, all salaries and expenses of Enterprise Partners'
officers and employees performing legal or accounting duties, the expense of any
annual audit or quarterly review, the expense of any liability insurance, all
registration and filing fees, the expense and fees for listing securities on one
or more securities exchanges, the fees and expenses of complying with securities
and blue sky laws, printing expenses, messenger and delivery expenses, fees and
expenses of Enterprise Partners' counsel and accountants, shall be borne by
Enterprise Partners;
(n) To the extent requested by the underwriters for an offering by Enterprise
Partners, (i) neither Shell nor ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall offer for sale, sell, make
any short sale of, grant any option for the purchase of, or otherwise dispose
of, directly or indirectly, any Registrable Securities without the prior written
consent of Enterprise Partners, for a period designated by the managing
underwriter in writing to Shell and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, which period shall begin not
more than seven days prior to the effectiveness of the Registration Statement
pursuant to which such public offering shall be made (or within seven days prior
to the execution of the applicable underwriting agreement in the case of an
offering pursuant to Rule 415) and shall not last more than 60 days, in the case
of Shell, and not more than 30 days, in the case of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, after the
closing of such public offering or such shorter holdback period to which
Enterprise Partners is subject and (ii) Shell and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ will enter into
agreements with the underwriters to the foregoing effect; provided, however,
that the obligations of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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under this Section 1.1(n) shall cease upon the earliest to occur of: (A) such
time as ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall own Registrable Securities having a market value
(calculated based on the average NYSE closing price of Enterprise Partners
common units for the twenty trading days immediately preceding execution of the
applicable underwriting agreement) of less than $50 million, (B) December 29,
2006 or (C) such time as ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall deliver a notice pursuant to
Section 1.2 hereof.
(o) All obligations of Shell and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to Enterprise Partners under
this Agreement shall be several and not joint; and
(p) The rights, duties and obligations of Shell and Enterprise Partners under
the
Registration Rights Agreement dated as of September 17, 1999 shall remain
unaffected by this Agreement; provided, however, that as long as the
Registration Statement remains effective, the obligations of Enterprise Partners
to Shell under Section 2 and Section 3 of the
Registration Rights Agreement
shall be suspended and inoperable, including but not limited to, the obligations
to notify Shell of the filing of any registration statement and to effect the
registration of any Registrable Securities.
Section 1.2 Termination. As between Enterprise Partners and Shell, or as between
Enterprise Partners and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, the rights, duties and obligations set
forth in Section 1.1(a) - (n) shall terminate (i) on the date on which such
Registrable Securities of Shell or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ have been disposed of; or (ii)
five business days following an irrevocable written notice by Shell or ▇▇▇▇▇
▇▇▇▇▇▇▇▇ to Enterprise Partners to file a prospectus supplement, or
post-effective amendment if necessary, to eliminate such Party as a selling
unitholder and to remove such Party's Registrable Securities from the
Registration Statement.
ARTICLE II
INDEMNIFICATION
Section 2.1 Indemnification
(a) Enterprise Partners shall indemnify and hold harmless, to the fullest extent
permitted by law, Shell or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, each other Person, if any, who
controls Shell or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ within the meaning of the Securities Act or the
Exchange Act, and each of their respective directors, partners, officers and
agents, against any and all losses, claims, damages or liabilities, joint or
several (or actions or threatened actions in respect thereof), to which any of
the foregoing Persons may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or threatened
actions in respect thereof) arise out of or are based upon (i) an untrue
statement or allegedly untrue statement of a material fact contained in the
registration statement under which such Registrable Securities were registered
under the Securities Act, any preliminary prospectus or final prospectus
contained therein or otherwise filed with the Commission, any amendment or
supplement thereto or any document incident to registration or qualification of
any Registrable Securities or (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading or, with respect to any prospectus, necessary
to make the statements
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therein in light of the circumstances under which they were made not misleading.
Enterprise Partners shall reimburse each of Shell or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and each
such controlling Person for any expenses (including reasonable attorneys' fees,
disbursements and expenses as incurred) reasonably incurred by any of them in
connection with investigating or defending against any such loss, claim, damage,
liability, action or threatened action. Notwithstanding the foregoing provisions
of this Section 2.1, Enterprise Partners shall not be liable to any such
indemnified Person in any such case to the extent that any such loss, claim,
damage, liability, action or threatened action (including any reasonable legal
or other fees, disbursements and expenses incurred) arises out of or is based
upon an untrue statement or allegedly untrue statement or omission or alleged
omission made in said registration statement, preliminary prospectus, final
prospectus, amendment, supplement or document incident to registration or
qualification of any Registrable Securities in reliance upon and in conformity
with written information furnished to Enterprise Partners by or on behalf of
Shell or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, respectively, specifically for use in the preparation
thereof. The foregoing indemnity agreement is subject to the condition that,
insofar as it relates to any untrue statement, allegedly untrue statement,
omission or alleged omission made in any preliminary prospectus but eliminated
or remedied in the final prospectus (filed pursuant to Rule 424 of the
Securities Act), such indemnity agreement shall not inure to the benefit of any
underwriter who participates in the offering or sale of Registrable Securities
or any other Person, if any, who controls such underwriter (within the meaning
of the Securities Act or the Exchange Act) from whom a Person asserting any
loss, claim, damage, liability or expense purchased the Registrable Securities
which are the subject thereof, if a copy of such final prospectus had been made
available to such underwriter and such controlling Person and such final
prospectus was not delivered to such Person asserting any loss, claim, damage,
liability or expense with or prior to the written confirmation of the sale of
such Registrable Securities to such Person.
(b) Each of Shell and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall severally and not jointly indemnify
and hold harmless, in the same manner and to the same extent as set forth in the
preceding paragraph (a) of this Section 2.1, Enterprise Partners, each director
of Enterprise Partners, each officer of Enterprise Partners who shall sign such
registration statement and each Person who controls any of the foregoing Persons
(within the meaning of the Securities Act), against any losses, claims, damages
or liabilities, joint or several (or actions or threatened actions in respect
thereof), to which any of the foregoing Persons may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or threatened actions in respect thereof) arise out of
or are based upon any statement or omission from such registration statement,
any preliminary prospectus or final prospectus contained therein or otherwise
filed with the Commission, any amendment or supplement thereto or any document
incident to registration or qualification of any Registrable Securities, if such
statement or omission was made in reliance upon and in conformity with written
information furnished to Enterprise Partners by Shell or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ with
respect to Shell or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, respectively, specifically for use in
connection with the preparation of such registration statement, preliminary
prospectus, final prospectus, amendment, supplement or document; provided,
however, that the maximum amount of liability in respect of such indemnification
shall be limited, in the case of each seller of Registrable Securities, to an
amount equal to the net proceeds actually received by such seller from the sale
of Registrable Securities effected pursuant to such registration.
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(c) Promptly after receipt by an indemnified party of notice of the commencement
of any action involving a claim referred to in the preceding paragraphs of this
Section 2.1, such indemnified party will, if a claim in respect thereof is to be
made against an indemnifying party, give written notice to the latter of the
commencement of such action. In case any such action is brought against an
indemnified party, the indemnifying party will be entitled to participate in and
to assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, (i) the indemnified party shall reasonably cooperate with the
indemnifying party and its counsel in the defense of such claim, and (ii) the
indemnifying party shall not be responsible for any legal or other fees,
disbursements and expenses subsequently incurred by the indemnified party in
connection with the defense thereof; provided, however, that if any indemnified
party shall have reasonably concluded that there may be one or more legal or
equitable defenses available to such indemnified party which are additional to
or conflict with those available to the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such action on behalf of
such indemnified party and such indemnifying party shall reimburse such
indemnified party and any Person controlling such indemnified party for that
portion of the fees, disbursements and expenses of not more than one counsel
retained by the indemnified party in connection with the matters covered by the
indemnity agreement provided in this Section 2.1 provided that no indemnifying
party shall, in connection with any such suit, be liable under this subsection
for the fees and expenses of more than one separate firm for all indemnified
parties. No indemnifying party shall be liable for any compromise or settlement
of any such action effected without its consent, such consent not to be
unreasonably withheld. No indemnifying party, in the defense of any such claim
or suit, shall, except with the consent of each indemnified party which shall
not be unreasonably withheld, consent to any compromise or settlement which does
not include as an unconditional term thereof the giving by the claimant to such
indemnified party of a release from all liability in respect of such claim or
suit.
(d) If the indemnification provided for in this Section 2.1 is unavailable to an
indemnified party hereunder with respect to any loss, claim, damage, liability,
action or threatened action referred to herein, then the indemnifying party, in
lieu of indemnifying such indemnified party hereunder, shall contribute to the
amounts paid or payable by such indemnified party as a result of such loss,
claim, damage, liability, action or threatened action in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other in connection with the statements
or omissions which resulted in such loss, claim, damage, liability, action or
threatened action as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified party shall be
determined by reference to, among other things, whether any statement or
omission, including any untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission; provided, however, that the maximum amount
of liability in respect of such contribution shall be limited, in the case of
each of Shell or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, to an amount equal to the net proceeds actually
received by such seller from the sale of Registrable Securities effected
pursuant to such registration. The amount paid or payable by a party under this
Section 2.1(d) as a result of the loss, claim, damage,
6
liability, action or threatened action referred to above shall be deemed to
include any legal or other fees, disbursements and expenses reasonably incurred
by such party in connection with any investigation or proceeding. The parties
hereto agree that it would not be just and equitable if contributions pursuant
to this Section 2.1(d) were to be determined by pro rata allocation or by any
method of allocation which does not take account of the equitable considerations
referred to in the first and second sentences of this Section 2.1(d). No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
(e) The provisions of this Section 2.1 shall be in addition to any other
liability which any indemnifying party may have to any indemnified party and
shall survive the termination of this Agreement.
ARTICLE III
MISCELLANEOUS
Section 3.1 Publicity. The Parties hereto will consult with each other with
regard to the terms and substance of any and all press releases, announcements
or other public statements with respect to the transactions contemplated hereby.
The Parties agree further that neither of them will release any such press
release, announcement or other public statement without the prior approval of
the other Party, unless such release is required by law and the Parties cannot
reach agreement upon a mutually acceptable form of release, in which event the
Party releasing the information, announcement or public statement shall not be
deemed to be in breach of this Agreement. The Parties agree further that such
approval will not be unreasonably withheld, and they pledge to make a good faith
effort to reach agreement expeditiously on the terms of any such press release,
announcement or other public statement.
Section 3.2 Notices. Any notice or communication required or permitted hereunder
shall be sufficiently given if in writing and (i) delivered in person or by
overnight delivery or courier service, (ii) sent by facsimile or (iii) deposited
in the United States mail, by certified mail postage prepaid and return receipt
requested (provided that any notice given pursuant to clause (ii) is also
confirmed by the means described in clause (i) or (iii)), as follows:
To Enterprise Partners:
Enterprise Products Partners L.P.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇
Attention: Chief Legal Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To Shell:
Shell US Gas & Power LLC
Two Shell Plaza
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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Attention: ▇▇▇ ▇▇▇▇▇▇▇, Vice President, Portfolio Management
Fax: ▇▇▇-▇▇▇-▇▇▇▇
With copies to:
Shell Oil Company
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Counsel
Fax: ▇▇▇-▇▇▇-▇▇▇▇
To ▇▇▇▇▇ ▇▇▇▇▇▇▇▇:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ MLP Investment Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ MLP Investment Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Such notice or other communication shall be deemed given when so
delivered personally, or sent by facsimile transmission, or, if sent by
overnight delivery or courier service, the business day after being sent from
within the United States, or if mailed, four days after the date of deposit in
the United States mails.
Section 3.3 Governing Law. This Agreement and the legal relations between the
Parties shall be governed by and construed in accordance with the internal laws
of the State of
Texas without taking into account provisions regarding choice of
law, except to the extent certain matters may be governed by the laws of the
State of Delaware, as the jurisdictions of incorporation or organization of
Shell and Enterprise Partners.
Section 3.4 Entire Agreement. The exhibit referred to in this Agreement is an
integral part hereof. It is understood and agreed that this Agreement, together
with such exhibit, contains the entire agreement between the Parties regarding
the matters which are the subject of this Agreement and supersedes any and all
prior agreements, arrangements or understandings, if any, between the Parties
regarding the matters which are the subject of this Agreement. Further, as
between these Parties, no oral understandings, statements, promises or
inducements contrary to the terms of this Agreement exist.
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Section 3.5 Amendments and Waivers. This Agreement may not be amended except
upon the written consent of each Party hereto. By an instrument in writing, a
Party may waive compliance by the Party owing an obligation to it, provided,
however, that such waiver shall not operate as a waiver of, or estoppel with
respect to, any other or subsequent failure. No failure to exercise and no delay
in exercising any right, remedy or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy or power
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy or power provided herein or by law or in equity. The waiver
by any Party of the time for performance of any act or condition hereunder does
not constitute a waiver of the act or condition itself.
Section 3.6 Severability. If any provision of this Agreement, or the application
thereof to any Person, place or circumstance, shall be held by a final judgment
of a court of competent jurisdiction to be invalid, unenforceable or void, the
remainder of this Agreement and such provisions as applied to other Persons,
places and circumstances shall remain in full force and effect after the
expiration of the time within which the judgment is appealable only if, after
excluding the portion deemed to be unenforceable, the remaining terms shall
provide for the consummation of the transactions contemplated hereby in
substantially the same manner as originally set forth at the later of the date
this Agreement was executed or last amended.
Section 3.7 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall constitute one and the same instrument.
Section 3.8 Interpretation of Agreement. The article, section and other headings
used in this Agreement are for reference purposes only and shall not constitute
a part hereof or affect the meaning or interpretation of this Agreement.
References herein to the transactions contemplated by this Agreement or other
similar words shall include, without limitation, all of the transactions
contemplated hereunder.
Section 3.9 Expenses. Except as otherwise provided in this Agreement, whether or
not the transactions contemplated hereby are consummated, all costs and expenses
incurred in connection with the transactions contemplated hereby will be paid by
the Party incurring such costs and expenses.
Section 3.10 Attorneys' Fees. If any legal action is brought for the enforcement
of this Agreement or because of an alleged dispute, breach or default in
connection with this Agreement, the prevailing Party shall be entitled to
recover reasonable attorneys' fees and other costs incurred in such action or
proceeding, in addition to any other relief to which it may be entitled.
Section 3.11 Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of the Parties hereto and their respective successors and
assigns.
Section 3.12 Third Parties. Each Party intends that this Agreement shall not
benefit or create any right or cause of action or remedy of any nature
whatsoever in any Person other than the Parties to this Agreement.
Section 3.13 Incorporation of Exhibit. The Exhibit identified in this Agreement
is incorporated herein by reference and made a part hereof.
9
Section 3.14 Remedies; Waiver of Punitive Damages. In the event of any breach of
any covenants, agreements or terms of this Agreement by any Party, the other
Party(s) shall be entitled to invoke any right or remedy allowed at law or in
equity, or by statute or otherwise, to enforce the obligations of the breaching
Party; all rights and remedies shall be cumulative and may be exercised
concurrently and whenever and as often as occasion therefor arises; and the
exercise of any remedy shall not preclude the simultaneous or later exercise of
any other remedy. Each Party waives any right to recover punitive, special,
exemplary and consequential damages arising in connection with this Agreement.
Section 3.15 Further Assurances. At any time or from time to time after the
Effective Date, Enterprise Partners shall, at the reasonable request of Shell or
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, execute and deliver any further instruments or documents and
take all such further action as Shell may reasonably request to effect this
Agreement. At any time or from time to time after the Effective Date, Shell and
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall, at the reasonable request of Enterprise Partners, execute
and deliver any further instruments or documents and take all such further
action as Enterprise Partners may reasonably request to consummate and make
effective this Agreement.
Section 3.16 Assignment. No Party may, without the written consent of the other
Parties, assign this Agreement or any rights or proceeds hereunder to any Person
other than an Affiliate, and Shell shall assign this Agreement only to
Affiliates that are within the same business group as the Affiliate of Shell
that holds the Shell Units. No assignment shall release any Party from any
liability under this Agreement. If this Agreement is assigned to an Affiliate,
then each of the original Parties hereto that is the direct or indirect assignor
thereof and the assignee covenant and agree that the assignee shall at all times
remain an Affiliate of such original party hereto or this Agreement shall be
assigned to another entity that is an Affiliate of such original party hereto.
Section 3.17 Certain Definitions.
"Affiliate" means in relation to a Party, (i) its Ultimate Parent
Company (or in the case of Shell, the Ultimate Parent Companies or either of
them or their successors) or (ii) any company (other than the Party itself)
which is for the time being directly or indirectly controlled by the Ultimate
Parent Company (or in the case of Shell, the Ultimate Parent Companies, or
either of them), or (iii) in the case of a Party which does not have an Ultimate
Parent Company, any company which is for the time being directly or indirectly
controlled by that Party. For the purposes of this Agreement: (i) a company is
directly controlled by another company (or in the case of Shell, companies) if
the latter company beneficially owns more than fifty per cent of the voting
rights attached to the issued share capital of the first mentioned company; and
(ii) a company is indirectly controlled by another company (or in the case of
Shell, companies) if a series of companies can be specified, beginning with that
latter company or companies and ending with the first mentioned company, so
related that each company of the series is directly controlled by one or more of
the companies earlier in the series. "Ultimate Parent Company or Companies"
means in relation to Shell, N.V. Koninklijke Nederlandsche Petroleum
Maatschappij and The "Shell" Transport and Trading Company, p.l.c. or either of
them or their successors, and in relation to Enterprise, Enterprise Products
Company.
"Agreement" shall mean this Agreement.
10
"Best Efforts" shall mean reasonable best efforts in accordance with
reasonable commercial practice.
"Common Units" means the common units of Enterprise Partnership, each
representing a limited partnership interest in the Partnership.
"Governmental Authority" shall mean any federal, state or local
governmental agency or authority.
"Person" shall include any individual, partnership, joint venture,
corporation, trust or unincorporated organization, any other business entity and
any Governmental Authority, in each case whether acting in an individual,
fiduciary or other capacity.
"Registrable Securities" shall mean, with respect to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, up
to 4,427,878 Common Units of Enterprise Partners plus such additional Common
Units that may be acquired from Shell pursuant to the Common Unit Purchase
Agreement dated as of December 28, 2004 between Shell and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
("Option Units"); and with respect to Shell, up to 36,572,122 Common Units of
Enterprise Partners.
[Remainder of Page Intentionally Left Blank]
11
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the day and year first above written.
ENTERPRISE PRODUCTS PARTNERS L.P.
By: Enterprise Products GP, LLC,
Its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Executive Vice President
SHELL US GAS & POWER LLC
By: /s/ L. B. D. ▇▇▇▇▇▇▇
-------------------------------
Name: L. B. D. ▇▇▇▇▇▇▇
-------------------------------
Title: Vice President
-------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ MLP INVESTMENT COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Title: CEO & President
-------------------------------
EXHIBIT A
[LETTERHEAD OF ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ MLP INVESTMENT COMPANY]
_March 4, 2005
UBS Securities LLC
Citigroup Global Markets Inc.
c/o UBS Securities LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
The undersigned understands that you, as representatives (the "Representatives")
of the several underwriters (the "Underwriters"), have entered into an
Underwriting Agreement (the "Underwriting Agreement") with Enterprise Products
Partners L.P. (the "Partnership"), Enterprise Products GP, LLC, Enterprise
Products OLPGP, Inc., and Enterprise Products Operating L.P. providing for the
purchase by you and such other Underwriters of common units, each representing a
limited partner interest (the "Units") in the Partnership, and reoffering by the
Underwriters of the Units to the public (the "Offering"). As used herein,
"Common Units" means 4,427,878 common units of the Partnership, each
representing a limited partnership interest in the Partnership plus such
additional common units that the undersigned may acquire from an affiliate of
Shell Oil Company pursuant to the Common Unit Purchase Agreement dated as of
December 28, 2004; and "Prospectus" means the final prospectus supplement of the
Partnership related to the Offering, dated February 10, 2005, together with the
accompanying base prospectus.
In consideration of the execution of the Underwriting Agreement by the
Underwriters, the execution of the Agreement to be dated on or about March 11,
2005 by and among the Partnership, Shell US Gas & Power LLC ("Shell") and ▇▇▇▇▇
▇▇▇▇▇▇▇▇, and for other good and valuable consideration, the undersigned hereby
irrevocably agrees that, without the prior written consent of the
Representatives on behalf of the Underwriters, the undersigned will not,
directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of
(or enter into any transaction or device that is designed to, or could be
expected to, result in the disposition by any person at any time in the future
of) any Common Units (including, without limitation, Common Units that may be
issued upon exercise of any option or warrant) or securities convertible into or
exchangeable for Common Units owned by the undersigned on the date of execution
of this Lock-up Letter Agreement or on the date of the completion of the
Offering, or (2) enter into any swap or other derivatives transaction that
transfers to another, in whole or in part, any of the economic benefits or risks
of ownership of such Common Units, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Units or other
securities, in cash or otherwise, in each case for a period of 60 days from the
date of the Prospectus (February 10, 2005). The foregoing restrictions do not
apply to transfers of Common Units to a custodian acting on behalf of the
undersigned or private transfers of Common Units to Shell or its affiliate.
In furtherance of the foregoing, the Partnership and its Transfer Agent are
hereby authorized to decline to make any transfer of securities if such transfer
would constitute a violation or breach of this Lock-Up Letter Agreement.
The undersigned understands that the Partnership and the Underwriters have
proceeded with the Offering in reliance on this Lock-Up Letter Agreement.
The undersigned understands that the making of the Offering depended on a number
of factors, including market conditions, and that the
Offering was made pursuant to the Underwriting Agreement, the terms of which
were subject to negotiation between the Partnership and the Underwriters.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to enter into this Lock-Up Letter Agreement and that, upon
request, the undersigned will execute any additional documents necessary in
connection with the enforcement hereof. Any obligations of the undersigned shall
be binding upon the successors and assigns of the undersigned.
Yours very truly,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ MLP INVESTMENT COMPANY
By:
----------------------------------
Name:
Title:
