AMENDMENT NO. 1
TO
FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF
ENTERPRISE GP HOLDINGS L.P.
This Amendment
No. 1 (this “ Amendment ”) to the First
Amended and Restated Agreement of Limited Partnership of Enterprise
GP Holdings L.P., a Delaware limited partnership (the “
Partnership ”), dated as of August 29, 2005 (the
“ Partnership Agreement ”), is entered into
effective as of May 7, 2007, by EPE Holdings, LLC, a Delaware
limited liability company (the “ General Partner
”), as the general partner of the Partnership, on behalf of
itself and the Limited Partners of the Partnership. Capitalized
terms used but not defined herein are used as defined in the
Partnership Agreement.
WHEREAS,
Section 5.6 of the Partnership Agreement provides that the
General Partner, without the approval of any Limited Partner except
as otherwise provided in the Partnership Agreement, may, for any
Partnership purpose, at any time or from time to time, issue
additional Partnership Securities for such consideration and on
such terms and conditions as determined by the General Partner in
its sole discretion; and
WHEREAS,
Section 13.1(d)(i) of the Partnership Agreement provides that
the General Partner, without the approval of any Partner, may amend
any provision of the Partnership Agreement (to reflect a change
that, in the discretion of the General Partner, does not adversely
affect the Unitholders in any material respect); and
WHEREAS,
Section 13.1(g) of the Partnership Agreement provides that the
General Partner, without the approval of any Partner (subject to
Section 5.9 of the Partnership Agreement), may amend any
provision of the Partnership Agreement to reflect an amendment
that, the General Partner determines to be necessary or appropriate
in connection with the authorization of the issuance of any class
or series of Partnership Securities pursuant to Section 5.6 of
the Partnership Agreement; and
WHEREAS, the
Partnership has entered into a Securities Purchase Agreement, dated
as of May 7, 2007 (the “ Purchase Agreement
”), between the Partnership, DFI GP Holdings L.P., a Delaware
limited partnership (“ DFIGP ”), and Duncan
Family Interests, Inc., a Delaware corporation (“ DFI
” and collectively with DFIGP, the “ Sellers
”), pursuant to which DFI will contribute to the Partnership
4,400,000 common units representing limited partner interests of
TEPPCO Partners, L.P. (“ TEPPCO ”), and DFIGP
will contribute to the Partnership 100% of the membership interests
in Texas Eastern Products Pipeline Company, LLC, a Delaware limited
liability company (the “ TEPPCO GP ”), in
exchange for (i) a new class of Partnership Securities to be
designated as “Class B Units” and (ii) a new
class of Partnership Securities to be designated as
“Class C Units,” with such terms as are set forth
in this Amendment; and
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WHEREAS, the
General Partner has determined that the creation of the
Class B Units and the Class C Units will be in the best
interests of the Partnership and fair to the Partnership’s
unaffiliated Unitholders; and
WHEREAS, the
issuance of the Class B Units and the Class C Units
complies with the requirements of the Partnership Agreement;
and
WHEREAS, the
General Partner has determined, pursuant to Section 13.1(j) of
the Partnership Agreement, that the amendments to the Partnership
Agreement set forth herein are necessary or appropriate in
connection with the authorization of the issuance of the
Class B Units and the Class C Units; and
NOW, THEREFORE,
the Partnership Agreement is hereby amended as follows:
(a)
Section 1.1 and Attachment 1 . Section 1.1
and the definitions listed on Attachment I are hereby amended to
add, or to amend and restate, the following definitions:
“
Class B Conversion Approval ” has the meaning
assigned to such term in Section 5.13(f).
“
Class B Conversion Approval Date ” has the
meaning assigned to such term in Section 5.13(f).
“
Class B Conversion Effective Date ” has the
meaning assigned to such term in Section 5.13(g).
“
Class C Conversion Approval ” has the meaning
assigned to such term in Section 5.14(f).
“
Class C Conversion Approval Date ” has the
meaning assigned to such term in Section 5.14(f).
“
Class C Conversion Effective Date ” has the
meaning assigned to such term in Section 5.14(g).
“
Class B Unit ” means a Partnership Security
representing a fractional part of the Partnership Interests of all
Limited Partners and Assignees, and having the rights and
obligations specified with respect to the Class B Units in
this Agreement. The term “Class B Unit” does not
refer to a Unit until such Class B Unit has converted into a
Unit pursuant to the terms hereof.
“
Class C Unit ” means a Partnership Security
representing a fractional part of the Partnership Interests of all
Limited Partners and Assignees, and having the rights and
obligations specified with respect to the Class C Units in
this Agreement. The term “Class C Unit” does not
refer to a Unit until such Class C Unit has converted into a
Unit pursuant to the terms hereof.
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“
Limited Partner Interest ” means the ownership
interest of a Limited Partner in the Partnership, which may be
evidenced by Units, Class B Units, Class C Units or other
Partnership Securities or a combination thereof or interest
therein, and includes any and all benefits to which such Limited
Partner or Assignee is entitled as provided in this Agreement,
together with all obligations of such Limited Partner or Assignee
to comply with the terms and provisions of this
Agreement;
“
Outstanding ” means, with respect to Partnership
Securities, all Partnership Securities that are issued by the
Partnership and reflected as outstanding on the Partnership’s
books and records as of the date of determination; provided
, however , that with respect to Partnership Securities, if
at any time any Person or Group (other than the General Partner or
its Affiliates) beneficially owns 20% or more of any Outstanding
Partnership Securities of any class then Outstanding, all
Partnership Securities owned by such Person or Group shall not be
voted on any matter and shall not be considered to be Outstanding
when sending notices of a meeting of Limited Partners to vote on
any matter (unless otherwise required by law), calculating required
votes, determining the presence of a quorum or for other similar
purposes under this Agreement, except that Units so owned shall be
considered to be Outstanding for purposes of
Section 11.1(b)(iv) (such Units shall not, however, be treated
as a separate class of Partnership Securities for purposes of this
Agreement); provided, further , that the limitation in the
foregoing proviso shall not apply (i) to any Person or Group
who acquired 20% or more of any Outstanding Partnership Securities
of any class then Outstanding directly from the General Partner or
its Affiliates, (ii) to any Person or Group who acquired 20%
or more of any Outstanding Partnership Securities of any class then
Outstanding directly or indirectly from a Person or Group described
in clause (i) if the General Partner shall have notified such
Person or Group in writing, prior to such acquisition, that such
limitation shall not apply to such Person or Group or (iii) to
any Person or Group who acquired 20% or more of any Partnership
Securities issued by the Partnership with the prior approval of the
Board of Directors of the General Partner; and provided ,
further , that none of the Class B Units or
Class C Units shall be deemed to be Outstanding for purposes
of determining if any Class B Units or Class C Units are
entitled to distributions of Available Cash unless such
Class B Units or Class C Units shall have been reflected
on the books of the Partnership as outstanding during such Quarter
and on the Record Date for the determination of any distribution of
Available Cash. In addition, Non-Voting Units shall not be voted on
any matter (unless otherwise required by law) and shall not be
considered to be Outstanding when sending notices of a meeting of
Limited Partners to vote on any matter (unless otherwise required
by law), calculating required votes, determining the presence of a
quorum or for other similar purposes under this
Agreement.
“
Per Unit Capital Amount ” means, as of any date of
determination, the Capital Account, stated on a per Unit basis,
underlying any Unit held by a Person other than the General Partner
or any Affiliate of the General Partner who holds Units.
(b)
Section 1.1 and Attachment I . Section 1.1
and the definitions listed on Attachment I are hereby further
amended to amend and restate the final sentence of the definition
of “Unit” as follows:
“The term
“Unit” does not refer to a Class B Unit or a
Class C Unit prior to its conversion into a Unit pursuant to
the terms hereof.”
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(c)
Section 4.7(c) . Section 4.7(c) of the
Partnership Agreement is hereby amended and restated to read in its
entirety:
“(c) The
transfer of a Class B Unit or a Class C Unit that has
converted into a Unit shall be subject to the restrictions imposed
by Section 6.4(b). The transfer of a Class C Unit shall
be subject to the restrictions imposed by
Section 6.5.”
(d)
Article V; Section 5.5 Article V is
hereby amend and restate Section 5.5(c) as follows:
“(c)(i) A
transferee of a Partnership Interest shall succeed to a pro rata
portion of the Capital Account of the transferor relating to the
Partnership Interest so transferred.
(ii) Subject to
Section 6.4, immediately prior to the transfer of a
Class B Unit or of a Class B Unit that has converted into
a Unit pursuant to Section 5.13(f) by a holder thereof (other
than a transfer to an Affiliate unless the General Partner elects
to have this subparagraph 5.5(c)(ii) apply), the Capital Account
maintained for such Person with respect to its Class B Units
or converted Class B Units will (A) first , be
allocated to the Class B Units or converted Class B Units
to be transferred in an amount equal to the product of (x) the
number of such Class B Units or converted Class B Units
to be transferred and (y) the Per Unit Capital Amount for a Unit,
and (B) second , any remaining balance in such Capital
Account will be retained by the transferor, regardless of whether
it has retained any Class B Units or converted Class B
Units. Following any such allocation, the transferor’s
Capital Account, if any, maintained with respect to the retained
Class B Units or retained converted Class B Units, if
any, will have a balance equal to the amount allocated under clause
(B) hereinabove, and the transferee’s Capital Account
established with respect to the transferred Class B Units or
converted Class B Units will have a balance equal to the
amount allocated under clause (A) hereinabove.
(iii) Subject to
Section 6.4, immediately prior to the transfer of a
Class C Unit or of a Class C Unit that has converted into
a Unit pursuant to Section 5.14(f) by a holder thereof (other
than a transfer to an Affiliate unless the General Partner elects
to have this subparagraph 5.5(c)(iii) apply), the Capital Account
maintained for such Person with respect to its Class C Units
or converted Class C Units will (A) first , be
allocated to the Class C Units or converted Class C Units
to be transferred in an amount equal to the product of (x) the
number of such Class C Units or converted Class C Units
to be transferred and (y) the Per Unit Capital Amount for a Unit,
and (B) second , any remaining balance in such Capital
Account will be retained by the transferor, regardless of whether
it has retained any Class C Units or converted Class C
Units. Following any such allocation, the transferor’s
Capital Account, if any, maintained with respect to the retained
Class C Units or retained converted Class C Units, if
any, will have a balance equal to the amount allocated under clause
(B) hereinabove, and the transferee’s Capital Account
established with respect to the transferred Class C Units or
converted Class C Units will have a balance equal to the
amount allocated under clause
(A) hereinabove.”
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(e)
Article V; Section 5.13 . Article V is
hereby amended to add a new Section 5.13 creating a new series
of Partnership Units as follows:
“Section 5.13
Establishment of Class B Units .
(a) General
. The General Partner hereby designates and creates a class of
Units to be designated as “Class B Units” and
consisting of a total of 14,173,304 Class B Units, and fixes
the designations, preferences and relative, participating, optional
or other special rights, powers and duties of holders of the
Class B Units as set forth in this
Section 5.13.
(b) Rights of
Class B Units . During the period commencing upon issuance
of the Class B Units and ending on the Class B Conversion
Effective Date (or that later time specified in this
Section 5.13(b)):
(i)
Allocations . Except as otherwise provided in this
Agreement, all items of Partnership income, gain, loss, deduction
and credit shall be allocated to the Class B Units to the same
extent as such items would be so allocated if such Class B
Units were Units that were then Outstanding.
(ii)
Distributions . Except as otherwise provided in this
Agreement, the Class B Units shall have the right to share in
partnership distributions of Available Cash pursuant to
Section 6.3 on a pro rata basis with the Units, so that the
amount of any Partnership distribution to each Unit will equal the
amount of such distribution to each Class B Unit.
(c) Voting
Rights . The Class B Units are non-voting, except that,
other than with respect to Class C Conversion Approval, the
Class B Units shall be entitled to vote as a separate class on
any matter that adversely affects the rights or preferences of the
Class B Units in relation to other classes of Partnership
Interests (including as a result of a merger or consolidation) or
as required by law. The approval of a majority of the Class B
Units shall be required to approve any matter for which the holders
of the Class B Units are entitled to vote as a separate class.
Each Class B Unit will be entitled to the number of votes
equal to the number of Units into which a Class B Unit is
convertible at the time of the record date for the vote or written
consent on the matter.
(d)
Certificates . The Class B Units will be evidenced by
certificates in substantially the form of Exhibit A to
this Amendment, subject to the satisfaction of any applicable legal
and regulatory requirements, may be assigned or transferred in a
manner identical to the assignment and transfer of other Units. The
certificates will initially include a restrictive legend to the
effect that the Class B Units have not been registered under
the Securities Act or any state securities laws.
(e) Registrar
and Transfer Agent . The General Partner will act as registrar
and transfer agent of the Class B Units.
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(f)
Conversion . Except as provided in this
Section 5.13(f), the Class B Units are not convertible
into Units. The Partnership shall, pursuant to the Securities
Purchase Agreement, take such actions as may be necessary or
appropriate to submit to a vote or consent of the Unitholders
(other than holders of Class B Units and Class C Units in
their capacity as holders of such securities) the approval of a
change in the terms of the Class B Units to provide that each
Class B Unit shall automatically convert into one Unit
(subject to appropriate adjustment in the event of any split-up,
combination or similar event affecting the Units that occurs prior
to the conversion of the Class B Units) effective immediately
upon receipt of such approval from such Unitholders (the “
Class B Conversion Approval ”) without any
further action by the holders thereof. The vote or consent required
for the Class B Conversion Approval will be the requisite vote
required under the rules or staff interpretations of the National
Securities Exchange on which the Units are listed or admitted for
trading. The date that Class B Conversion Approval is obtained
is herein referred to as the “ Class B Conversion
Approval Date .” Upon receipt of the Class B
Conversion Approval, the terms of the Class B Units will be
changed, automatically and without further action, on the
Class B Conversion Effective Date (as defined in
Section 5.13(g) below), so that each Class B Unit is
converted into one Unit and, immediately thereafter, none of the
Class B Units shall be Outstanding; provided, however ,
that such converted Class B Units will remain subject to the
provisions of Sections 6.1(d)(x) and 6.4.
(g)
Surrender of Certificates . Upon receipt of the Class B
Conversion Approval in accordance with Section 5.13(f) or a
change in rules of the National Securities Exchange as described in
Section 5.13(h), the General Partner shall give the holders of
the Class B Units prompt notice of such Class B
Conversion Approval or change in rules. Subject to receipt of the
Class B Conversion Approval or such change in rules, and
subject to the requirements of Section 6.4, each holder of
Class B Units shall promptly surrender the Class B Unit
Certificates therefor, duly endorsed, at the office of the General
Partner or of any transfer agent for the Class B Units. In the
case of any such conversion, the Partnership shall, as soon as
practicable thereafter, issue and deliver at such office to such
holder of Class B Units one or more Unit Certificates,
registered in the name of such holder, for the number of Units to
which such holder shall be entitled. Such conversion shall be
deemed to have been made as of the date of the Class B
Conversion Approval (the “ Class B Conversion
Effective Date ”) whether or not the Class B Unit
certificate has been surrendered as of such date, and the Person
entitled to receive the Units issuable upon such conversion shall
b
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