UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d)
of
the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): November 12, 2008
ENTERPRISE
PRODUCTS PARTNERS L.P.
(Exact
name of registrant as specified in its charter)
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Delaware
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1-14323
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76-0568219
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(State
or Other Jurisdiction of
Incorporation
or Organization)
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(Commission
File Number)
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(I.R.S.
Employer
Identification
No.)
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1100
Louisiana, 10th
Floor, Houston, Texas
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77002
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Registrant’s
Telephone Number, including Area Code:
(713) 381-6500
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
¨ Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item 2.03.
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance
Sheet Arrangement of a Registrant.
Term
Loan Agreement
On
November 12, 2008, Enterprise Products Operating LLC (the “Borrower”), a
Texas limited liability company and the operating subsidiary of Enterprise
Products Partners L.P. (the “Partnership”), executed a Japanese Yen Term Loan
Agreement (the “Term Loan Agreement”) in the amount of approximately ¥20.7
billion (approximately $218 million U.S. Dollar equivalent on the closing
date). The Term Loan Agreement is with Mizuho Corporate Bank, Ltd.,
as administrative agent, a lender and as sole lead arranger. The Term
Loan Agreement is attached hereto as Exhibit 10.1. The description of the
Term Loan Agreement is qualified by reference to the text of Exhibit
10.1.
The
Borrower’s obligations under the Term Loan Agreement are not secured by any
collateral; however, they are guaranteed by the Partnership pursuant to a
Guaranty Agreement, a copy of which is attached hereto as Exhibit 10.2. The
full amount of the term loan will be borrowed by the Borrower on the closing
date and will mature on March 30, 2009.
Under the
Term Loan Agreement, interest accrues on the loan at the Tokyo Interbank Offered
Rate (“TIBOR”) plus 2.0%. The Borrower simultaneously entered into
foreign exchange currency swaps that effectively convert the TIBOR loan into a
U.S. Dollar loan with a fixed interest rate (including the cost of the swaps)
through maturity of approximately 4.93%.
The Term
Loan Agreement contains customary representation, warranties, covenants and
events of default, the occurrence of which would permit the lenders to
accelerate the maturity date of the loan.
Revolving
Loan Agreement
On
November 17, 2008, the Borrower executed a 364-Day Revolving Credit
Agreement (the “Revolving Loan Agreement”) in the amount of U.S. $375
million. The Revolving Loan Agreement is with The Royal Bank of
Scotland plc, as administrative agent, and Barclays Bank plc, The Bank of Nova
Scotia,, DnB NOR Bank ASA and Wachovia Bank, National Association, as
co-arrangers. The Revolving Loan Agreement is attached hereto as
Exhibit 10.3. The description of the Revolving Loan Agreement is
qualified by reference to the text of Exhibit 10.3.
The
Borrower’s obligations under the Revolving Loan Agreement are not secured by any
collateral; however, they are guaranteed by the Partnership pursuant to a
Guaranty Agreement, a copy of which is attached hereto as Exhibit 10.4.
Amounts borrowed under the Revolving Loan Agreement mature on November 16,
2009.
The
Revolving Loan Agreement offers the following loans, each having different
interest requirements: (i) LIBOR loans bear interest at a rate per annum
equal to LIBOR plus the applicable LIBOR margin (as set forth in
the Revolving Loan Agreement) and (ii) Base Rate
loans bear interest each day at a rate per annum equal to the higher of
(a) the rate of interest announced by the administrative
agent as its prime rate, (b) 0.5% per annum above the Federal
Funds Rate in effect on such date , and (c) 1.0% per annum above LIBOR
in effect on such date plus, in each case, the applicable Base Rate margin (as
set forth in the Revolving Loan Agreement).
-2-
The
commitments may be increased by an amount not to exceed $1 billion by adding one
or more new lenders to the facility or increasing the commitments of existing
lenders, although none of the existing lenders has agreed to or is obligated to
increase its existing commitment. With certain exceptions and after certain time
periods, if the Partnership issues debt with a maturity of more than three
years, the lenders’ commitments under the Revolving Loan Agreement will be
reduced to the extent of any debt proceeds, and any outstanding loans in excess
of such reduced commitments must be repaid.
The
Revolving Loan Agreement contains customary representation, warranties,
covenants and events of default, the occurrence of which would permit the
lenders to accelerate the maturity date of amounts borrowed under the Revolving
Loan Agreement.
Item
5.02 Departure of Directors or Certain Officers; Election of
Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
(e) On
November 13, 2008, EPCO Inc. (“EPCO”) formed EPCO Unit L.P. (“EPCO Unit LP”) to
serve as an incentive arrangement for certain employees of EPCO through a
“profits interest” in the Partnership (its units are referred to as the “EPD
Units”). On the same date, DFI Delaware Holdings L.P. (“DFIDH”)
contributed to EPCO Unit LP 779,102 EPD Units (with a value of approximately
$17,000,000, based on the closing price of the EPD Units on the New York Stock
Exchange on November 12, 2008) (the “Initial Contribution”) and was admitted as
the Class A limited partner. Certain EPCO employees, including some
of our named executive officers, were issued Class B limited partner
interests and admitted as Class B limited partners of EPCO Unit LP without any
capital contribution. These awards are designed to provide additional
long-term incentive compensation for our named executive
officers. The profits interest awards (or Class B limited
partner interests) in EPCO Unit LP entitle the holder to participate in the
appreciation in value of the EPD Units. The Class B limited
partner interests in EPCO Unit LP held by our named executive officers are as
follows: Michael A. Creel, 20%, Ralph S. Cunningham, 20%, W. Randall
Fowler, 20%, Richard H. Bachmann, 20% and A.J. Teague, 20%. A copy of
the Agreement of Limited Partnership of EPCO Unit L.P. (the “EPCO Unit
Partnership Agreement”) is attached as Exhibit 10.5 to this Current Report on
Form 8-K and is incorporated by reference herein.
Unless otherwise agreed to by EPCO,
DFIDH and a majority in interest of the Class B limited partners of EPCO
Unit LP, EPCO Unit LP will terminate at the earlier of November 13, 2013 (five
years from the date of the agreement or a change in control of the
Partnership. EPCO Unit LP has the following material terms regarding
its quarterly cash distribution to partners:
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§
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Distributions
of Cash Flow –
Each quarter, 100% of the cash distributions received by EPCO Unit
LP from the EPD Units will be distributed to the Class A limited
partner until DFIDH has received an amount equal to the Class A
preferred return (as defined below), and any remaining distributions
received by EPCO Unit LP will be distributed to the Class B limited
partners. The Class A preferred return equals the Class A
capital base (as defined below) multiplied by a rate of 4.87% per
annum. The Class A limited partner’s capital base equals
the amount of any contributions of cash or cash equivalents made by the
Class A limited partner to EPCO Unit LP, plus any unpaid Class A
preferred return from prior periods, less any distributions of cash or
units made by EPCO Unit LP.
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§
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Liquidating
Distributions –
Upon liquidation of EPCO Unit LP, EPD Units having a fair market
value equal to the Class A limited partner capital base will be
distributed to DFIDH, plus any accrued Class A preferred return for
the quarter in which liquidation occurs. Any remaining EPD
Units (after satisfaction of any debt or other obligations of EPCO Unit
LP) will be distributed to
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-3-
| the Class B limited partners. | |||
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§
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Sale
Proceeds – If
EPCO Unit LP sells any EPD Units that it beneficially owns, the sale
proceeds will be distributed to the Class A limited partner and the
Class B limited partners in the same manner as liquidating
distributions described above.
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The Class B limited partner
interests in EPCO Unit LP that are owned by EPCO employees are subject to
forfeiture if the participating employee’s employment with EPCO and its
affiliates is terminated prior to November 13, 2013, with customary exceptions
for death, disability and certain retirements. The risk of forfeiture
associated with the Class B limited partner interests in EPCO Unit LP will
also lapse upon certain change of control events.
We expect that a portion of the fair
value of these equity-based awards will be allocated to us under the EPCO
administrative services agreement as a non-cash expense. We are not currently
responsible for paying or reimbursing EPCO or its affiliates for any other
expenses associated with EPCO Unit, including the value of any contributions of
cash for the purchase of the EPD Units. However, we expect that EPCO
will seek an amendment to the administrative services agreement under which we
would be obligated to make payments equal to the distributions, if any, by EPCO
Unit to the Class B partners. Authorization of such an amendment
would be subject to, among other things, review by the Audit, Conflicts and
Governance Committee of our General Partner.
Item 7.01.
Regulation FD Disclosure.
On
November 17, 2008, the Partnership issued a press release regarding the above
facilities. A copy of the press release is furnished herewith as
Exhibit 99.1.
-4-
Item 9.01.
Financial Statements and Exhibits.
(d)
Exhibits.
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Exhibit
No.
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Description
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10.1
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Term
Loan Credit Agreement dated as of November 12, 2008 among Enterprise
Products Operating LLC, the financial institutions party thereto as
lenders, Mizuho Corporate Bank, Ltd., as administrative agent, a lender
and as sole lead arranger.
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10.2
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Guaranty
Agreement dated as of November 12, 2008 executed by Enterprise
Products Partners L.P. in favor of Mizuho Corporate Bank, Ltd., as
administrative agent.
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10.3
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364-Day
Revolving Credit Agreement dated as of November 17, 2008 among Enterprise
Products Operating LLC, the financial institutions party thereto as
lenders, The Royal Bank of Scotland plc, as administrative agent, and
Barclays Bank plc, The Bank of Nova Scotia, DnB NOR Bank ASA and Wachovia
Bank, National Association, as co-arrangers.
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10.4
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Guaranty
Agreement dated as of November 17, 2008 executed by Enterprise
Products Partners L.P. in favor of The Royal Bank of Scotland plc, as
administrative agent.
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10.5
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Agreement
of Limited Partnership of EPCO Unit L.P. dated November 13,
2008.
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99.1
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Press
release dated November 17, 2008.
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-5-
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this Report to be signed on its behalf by the undersigned hereunto
duly authorized.
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ENTERPRISE
PRODUCTS PARTNERS L.P.
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By:
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ENTERPRISE
PRODUCTS GP, LLC,
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its
General Partner
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Date:
November 18, 2008
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By:
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/s/
W. Randall Fowler
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Name:
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W.
Randall Fowler
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Title:
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Executive
Vice President and Chief Financial
Officer
of Enterprise Products GP, LLC
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-6-
EXHIBIT
INDEX
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Exhibit
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Number
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Exhibit
Description
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10.1
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Term
Loan Credit Agreement dated as of November 12, 2008 among Enterprise
Products Operating LLC, the financial institutions party thereto as
lenders, Mizuho Corporate Bank, Ltd., as administrative agent, a lender
and as sole lead arranger.
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10.2
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Guaranty
Agreement dated as of November 12, 2008 executed by Enterprise
Products Partners L.P. in favor of Mizuho Corporate Bank, Ltd., as
administrative agent.
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10.3
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364-Day
Revolving Credit Agreement dated as of November 17, 2008 among Enterprise
Products Operating LLC, the financial institutions party thereto as
lenders, The Royal Bank of Scotland plc, as administrative agent, and
Barclays Bank plc, The Bank of Nova Scotia, DnB NOR Bank ASA and Wachovia
Bank, National Association, as co-arrangers.
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10.4
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Guaranty
Agreement dated as of November 17, 2008 executed by Enterprise
Products Partners L.P. in favor of The Royal Bank of Scotland plc, as
administrative agent.
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10.5
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Agreement
of Limited Partnership of EPCO Unit L.P. dated November 13,
2008.
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99.1
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Press
release dated November 17, 2008.
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-7-
EXHIBIT
10.1
TERM
LOAN CREDIT AGREEMENT
dated
as of
November
12, 2008
among
ENTERPRISE
PRODUCTS OPERATING LLC
The
Lenders Party Hereto
MIZUHO
CORPORATE BANK, LTD.
as
Administrative Agent
¥20,726,000,716.00
Senior Credit Facility
MIZUHO
CORPORATE BANK, LTD.,
as
Sole Lead Arranger
TABLE
OF CONTENTS
| ARTICLE I Definitions |
1
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| Section 1.01 | Defined Terms |
1
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| Section 1.02 | Terms Generally |
16
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| Section 1.03 | Accounting Terms; GAAP |
17
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| ARTICLE II The Credits |
17
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| Section 2.01 | Commitments |
17
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| Section 2.02 | Loans and Interest |
17
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| Section 2.03 | Requests for initial Loan |
17
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| Section 2.04 | Funding of Loans |
18
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| Section 2.05 | Repayment of Loans; Evidence of Debt |
18
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| Section 2.06 | Prepayment of Loans |
19
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| Section 2.07 | Fees |
19
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| Section 2.08 | Interest |
19
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| Section 2.09 | Alternate Rate of Interest |
20
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| Section 2.10 | Illegality; Increased Costs |
20
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| Section 2.11 | Break Funding Payments |
21
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| Section 2.12 | Taxes |
22
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| Section 2.13 | Payments Generally; Pro Rata Treatment; Sharing of Set-offs |
23
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| Section 2.14 | Mitigation Obligations; Replacement of Lenders |
24
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| Section 2.15 | Separateness |
25
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| ARTICLE III Representations and Warranties |
26
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| Section 3.01 | Organization; Powers |
26
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| Section 3.02 | Authorization; Enforceability |
26
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| Section 3.03 | Governmental Approvals; No Conflicts |
26
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| Section 3.04 | Financial Condition |
26
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| Section 3.05 | Litigation and Environmental Matters |
27
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| Section 3.06 | Compliance with Laws |
27
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| Section 3.07 | Investment Company Status |
27
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| Section 3.08 | Taxes |
27
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| Section 3.09 | ERISA |
28
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| Section 3.10 | Disclosure |
28
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| Section 3.11 | Subsidiaries |
28
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| Section 3.12 | Margin Securities |
28
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| ARTICLE IV Conditions |
28
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| Section 4.01 | Effective Date |
28
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| Section 4.02 | Each Credit Event |
30
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| ARTICLE V Affirmative Covenants |
30
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i
| Section 5.01 | Financial Statements and Other Information |
30
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| Section 5.02 | Notices of Material Events |
31
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| Section 5.03 | Existence; Conduct of Business |
31
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| Section 5.04 | Maintenance of Properties; Insurance |
31
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| Section 5.05 | Books and Records; Inspection Rights |
31
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| Section 5.06 | Compliance with Laws |
32
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| Section 5.07 | Use of Proceeds |
32
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| Section 5.08 | Environmental Matters |
32
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| Section 5.09 | ERISA Information |
32
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| Section 5.10 | Taxes |
32
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| ARTICLE VI Negative Covenants |
33
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| Section 6.01 | Indebtedness |
33
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| Section 6.02 | Liens |
34
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| Section 6.03 | Fundamental Changes |
34
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| Section 6.04 | Investment Restriction |
34
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| Section 6.05 | Restricted Payments |
35
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| Section 6.06 | Restrictive Agreements |
35
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| Section 6.07 | Financial Condition Covenant |
36
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| ARTICLE VII Events of Default |
37
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| ARTICLE VIII The Administrative Agent |
40
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| ARTICLE IX Miscellaneous |
42
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| Section 9.01 | Notices |
42
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| Section 9.02 | Waivers; Amendments |
43
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| Section 9.03 | Expenses; Indemnity; Damage Waiver |
44
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| Section 9.04 | Successors and Assigns |
45
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| Section 9.05 | Survival |
47
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| Section 9.06 | Counterparts; Integration; Effectiveness |
48
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| Section 9.07 | Severability |
48
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| Section 9.08 | Right of Setoff |
48
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| Section 9.09 | Governing Law; Jurisdiction; Consent to Service of Process |
48
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| Section 9.10 | WAIVER OF JURY TRIAL |
49
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| Section 9.11 | Headings |
49
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| Section 9.12 | Confidentiality |
49
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| Section 9.13 | Interest Rate Limitation |
50
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| Section 9.14 | Liability of Manager |
50
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| Section 9.15 | USA Patriot Act Notice |
50
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| Section 9.16 | Judgment Currency |
50
|
ii
SCHEDULES:
| Schedule 2.01 | Commitments |
| Schedule 3.05 | Disclosed Matters |
| Schedule 3.11 | Subsidiaries |
| Schedule 6.01 | Existing Indebtedness |
| Schedule 6.06 | Existing Restrictions |
EXHIBITS:
| Exhibit A | Form of Assignment and Acceptance |
| Exhibit B | Form of Borrowing Request |
| Exhibit C | Form of Opinion of Richard Bachmann, in-house counsel for Borrower and EPD |
| Exhibit D | Form of Opinion of Bracewell & Giuliani LLP, Borrower’s and EPD’s Counsel |
| Exhibit E | Form of Promissory Note |
| Exhibit F | Compliance Certificate |
iii
TERM LOAN
CREDIT AGREEMENT dated as of November 12, 2008, among ENTERPRISE PRODUCTS
OPERATING LLC, a Texas limited liability company; the LENDERS party hereto; and
MIZUHO CORPORATE BANK, LTD., as Administrative Agent.
W I T N E
S S E T H
In
consideration of the mutual covenants and agreements contained herein and in
consideration of the Loans which may hereafter be made by Lenders to Borrower
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE
I
Definitions
Section
1.01
Defined
Terms. As used
in this Agreement, the following terms have the meanings specified
below:
“Administrative Agent”
means Mizuho Corporate Bank, Ltd., in its capacity as administrative agent for
the Lenders hereunder.
“Administrative
Questionnaire” means an Administrative Questionnaire in a form supplied
by the Administrative Agent.
“Adjusted TIBO Rate”
means, for any Interest Rate Determination Date with respect to an Interest
Period for a TIBO Rate Loan, the rate per annum obtained by dividing (and
rounding upward to the next whole multiple of 1/16 of 1%) (i) TIBO Rate by (ii)
an amount equal to (a) one minus (b) the
Applicable Reserve Requirement.
“Affiliate” means,
with respect to a specified Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified.
“Agreement” means this
Term Loan Credit Agreement dated November 12, 2008, among Enterprise Products
Operating LLC, a Texas limited liability company; the Lenders party hereto; and
Mizuho Corporate Bank, Ltd., as Administrative Agent; as amended, extended or
otherwise modified from time to time.
“Applicable
Percentage” means, with respect to all payments, computations and other
matters relating to the Commitment or Loans of any Lender, the percentage
obtained by dividing (a) the Exposure of that Lender by (b) the aggregate
Exposure of all Lenders.
“Applicable Rate”
means 2.0%.
“Applicable Reserve
Requirement” means, at any time, for any TIBO Rate Loan, the maximum
rate, expressed as a decimal, at which reserves (including, without limitation,
any basic marginal, special, supplemental, emergency or other reserves) are
required to be
maintained
with respect thereto against “Eurocurrency liabilities” (as such term is defined
in Regulation D) under regulations issued from time to time by the Board of
Governors of the Federal Reserve System or other applicable banking
regulator. Without limiting the effect of the foregoing, the
Applicable Reserve Requirement shall reflect any other reserves required to be
maintained by such member banks with respect to (i) any category of liabilities which includes deposits by reference to
which the applicable Adjusted TIBO Rate or any other interest rate of a Loan is
to be determined, or (ii) any category of extensions of credit or other assets
which include TIBO Rate Loans. A TIBO Rate Loan shall be deemed to
constitute Eurocurrency liabilities and as such shall be deemed subject to
reserve requirements without benefits of credit for proration, exceptions or
offsets that may be available from time to time to the applicable
Lender. The rate of interest on TIBO Rate Loans shall be adjusted
automatically on and as of the effective date of any change in the Applicable
Reserve Requirement.
“Assignment and
Acceptance” means an assignment and acceptance entered into by a Lender
and an assignee (with the consent of any party whose consent is required by
Section 9.04),
and accepted by the Administrative Agent, substantially in the form of Exhibit A
or any other form approved by the Administrative Agent.
“Attributable
Indebtedness” 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.
“Board” means the
Board of Governors of the Federal Reserve System of the United States of
America.
“Borrower” means
Enterprise Products Operating LLC, a Texas limited liability
company.
“Borrowing Request”
means a request by the Borrower for the initial Loan in accordance with Section
2.03, and being in the form of attached Exhibit
B.
“Business Day” means
any day that is not a Saturday, Sunday, Japan banking holiday, or other day on
which commercial banks in Tokyo, Japan or New York City are authorized or
required by law to remain closed; provided that, when used in connection with a
TIBO Rate Loan, the term “Business Day” shall also exclude any day on which
banks are not open for dealings in Yen deposits in the Tokyo interbank
market.
2
“Capital Lease
Obligations” of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the
right to use) real or personal property, or a combination thereof, which
obligations are required to be classified and accounted for as capital leases on
a balance sheet of such Person under GAAP, and the amount of such obligations
shall be the capitalized amount thereof determined in accordance with
GAAP.
“CERCLA” means the
Comprehensive Environmental, Response, Compensation, and Liability Act of 1980,
as amended.
“Change in Control”
means the occurrence of any of the following events:
(i)
Continuing Directors cease for any reason to constitute collectively a majority
of the members of the board of directors of Manager or GP LLC then in
office;
(ii) any
Person or related Persons constituting a group (as such term is used in Rule
13d-5 under the Securities Exchange Act of 1934, as amended) obtains direct or
indirect beneficial ownership interest in the Manager or GP LLC greater than the
direct or indirect beneficial ownership interests of EPCO and its Affiliates in
the Manager or GP LLC; or
(iii)
Manager and EPD shall cease to own, directly or indirectly, all of the Equity
Interests (including all securities which are convertible into Equity Interests)
of Borrower.
As used
herein, “Continuing
Director” means any member of the board of directors of Manager or GP
LLC, respectively, who (x) is a member of such board of directors as of the date
hereof or is specified in EPD’s filings with the SEC filings prior to the date
hereof as a Person who is to become a member of such board as of the Effective
Date, or (y) was nominated for election or elected to such board of directors
with the approval of a majority of the Continuing Directors who were members of
such board at the time of such nomination or election.
“Change in Law” means
(a) the adoption of any law, rule or regulation after the date of this
Agreement, (b) any change in any law, rule or regulation or in the
interpretation or application thereof by any Governmental Authority after the
date of this Agreement or (c) compliance by any Lender (or, for purposes of
Section
2.10(b), by any lending office of such Lender or by such Lender’s holding
company, if any) with any request, guideline or directive (whether or not having
the force of law) of any Governmental Authority made or issued after the date of
this Agreement.
“Code” means the
Internal Revenue Code of 1986, as amended from time to time.
“Commercial Operation
Date” means the date on which a Material Project is substantially
complete and commercially operable.
“Commitment” means,
with respect to each Lender, the commitment of such Lender to make or otherwise
fund any Loan and “Commitments” means
such commitments of all Lenders in the aggregate. The initial amount
of each Lender’s Commitment is set forth on
3
Schedule 2.01,
or in the Assignment and Acceptance pursuant to which such Lender shall have
assumed its Commitment, as applicable. The initial aggregate amount of the
Lenders’ Commitments is ¥20,726,000,716.00.
“Common Units” means
the common units of limited partner interests in EPD.
“Company Agreement”
means the Company Agreement of the Borrower dated as of June 30, 2007
between Manager and EPD, as members, substantially in the form provided to the
Lenders, as such Company Agreement may be amended, modified and supplemented
from time to time.
“Consolidated EBITDA”
means for any period, the sum of (a) the consolidated net income of the Borrower
and its consolidated Subsidiaries (excluding Project Finance Subsidiaries) for
such period plus, to the extent deducted in determining consolidated net income
for such period, the aggregate amount of (i) Consolidated Interest Expense, (ii)
income or gross receipts tax (or franchise tax or margin tax in the nature of an
income or gross receipts tax) expense and (iii) depreciation and amortization
expense, minus (b) equity in earnings from unconsolidated subsidiaries of the
Borrower to the extent included therein, plus (c) the amount of cash dividends
or distributions payable with respect to such period by a Project Finance
Subsidiary, DEP or an unconsolidated subsidiary which are actually received by
the Borrower or a Subsidiary (other than a Project Finance Subsidiary) during
such period or on or prior to the date the financial statements with respect to
such period referred to in Section
5.01 are required to be delivered by the Borrower, plus (d) the amount of
all payments during such period on leases of the type referred to in clause (d)
of the definition herein of Indebtedness and the amount of all payments during
such period under other off-balance sheet loans and financings of the type
referred to in such clause (d), minus (e) the amount of any cash dividends,
repayments of loans or advances, releases or discharges of guarantees or other
obligations or other transfers of property or returns of capital previously
received by the Borrower or a Subsidiary (other than a Project Finance
Subsidiary) from a Project Finance Subsidiary that during such period were
either (x) recovered pursuant to recourse provisions with respect to a Project
Financing at such Project Finance Subsidiary or (y) reinvested by the Borrower
or a Subsidiary in such Project Finance Subsidiary.
“Consolidated
Indebtedness” means the Indebtedness of the Borrower and its consolidated
Subsidiaries (excluding Project Finance Subsidiaries) including, without
duplication, guaranties of funded debt, determined on a consolidated basis as of
such date.
“Consolidated Interest
Expense” means for any period, the interest expense of the Borrower and
its consolidated Subsidiaries (excluding Project Finance Subsidiaries),
determined on a consolidated basis for such period.
“Consolidated Net Tangible
Assets” means, at any date of determination, the total amount of assets
of EPD and its consolidated subsidiaries after deducting therefrom:
(a) 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
4
the time
as of which the amount thereof is being computed, and (B) current maturities of
long-term debt); and
(b) 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 EPD and its
consolidated subsidiaries for EPD’s most recently completed fiscal quarter,
prepared in accordance with GAAP.
“Consolidated Net
Worth” means as to any Person, at any date of determination, the sum of
(i) preferred stock (if any), (ii) an amount equal to (a) the face amount of
outstanding Hybrid Securities not in excess of 15% of Consolidated Total
Capitalization times (b) sixty-two and one-half percent (62.5%), (iii) par value
of common stock, (iv) capital in excess of par value of common stock, (v)
limited liability company capital or equity, and (vi) retained earnings, less
treasury stock (if any), of such Person, all as determined on a consolidated
basis.
“Consolidated Total
Capitalization” means the sum of (i) Consolidated Indebtedness and (ii)
Borrower’s Consolidated Net Worth.
“Control” means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability
to exercise voting power, by contract or otherwise. “Controlling” and
“Controlled”
have meanings correlative thereto.
“Debt Coverage Ratio”
means the ratio of Consolidated Indebtedness to Consolidated
EBITDA.
“Default” means any
event or condition which constitutes an Event of Default or which upon notice,
lapse of time or both would, unless cured or waived, become an Event of
Default.
“DEP” means Duncan
Energy Partners L.P., a Delaware limited partnership.
“Disclosed Matters”
means the actions, suits and proceedings and the environmental matters disclosed
in Schedule
3.05.
“dollars” or “$” refers to lawful
money of the United States of America.
“Effective Date” means
the date on or prior to November 18, 2008 specified in the notice referred to in
the last sentence of Section
4.01.
“Environmental Laws”
means all laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by any Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural resources, the management,
release or threatened release of any Hazardous Material or to health and safety
matters.
“Environmental
Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or
indemnities), of the Borrower or any Subsidiary directly or indirectly resulting
from or based upon (a) violation of
5
any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
“EPCO” means EPCO,
Inc., a Texas corporation.
“EPD” means Enterprise
Products Partners L.P., a Delaware limited partnership, or any other Person that
is the “Guarantor” as defined in the March 15, 2000 Indenture or any replacement
indenture.
“EPD Guaranty
Agreement” means an agreement executed by EPD in form and substance
satisfactory to the Administrative Agent guaranteeing, unconditionally, payment
of any principal of or interest on the Loans or any other amount payable under
this Agreement, when and as the same shall become due and payable.
“Equity Interest”
means shares of the capital stock, partnership interests, membership interests
in a limited liability company, beneficial interests in a trust or other equity
interests in any Person, or any warrants, options or other rights to acquire
such interests.
“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended from time to
time.
“ERISA Affiliate”
means any trade or business (whether or not incorporated) that, together with
the Borrower is treated as a single employer under Section 414(b) or (c) of the
Code or, solely for purposes of Section 302 of ERISA and Section 412 of the
Code, is treated as a single employer under Section 414 of the
Code.
“ERISA Event” means
(a) any “reportable event”, as defined in Section 4043 of ERISA or the
regulations issued thereunder with respect to a Plan (other than an event for
which the 30-day notice period is waived); (b) the failure by a Plan to satisfy
the minimum funding standard under Section 412 of the Code or Section 302 of
ERISA, whether or not waived; (c) the filing pursuant to Section 412(d) of the
Code (Section 412(c) of the Code for Plan years beginning after December 31,
2007) or Section 303(d) of ERISA (Section 302(c) of ERISA for Plan years
beginning after December 31, 2007) of an application for a waiver of the minimum
funding standard with respect to any Plan; (d) the incurrence by the Borrower or
any of its ERISA Affiliates of any liability under Title IV of ERISA with
respect to the termination of any Plan; (e) the receipt by the Borrower or any
ERISA Affiliate from the PBGC or a plan administrator of any notice relating to
an intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal
from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Borrower or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
“Event of Default” has
the meaning assigned to such term in Article
VII.
6
“Excluded Taxes”
means, with respect to the Administrative Agent, any Lender, or any other
recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) income or franchise taxes imposed on (or measured by)
its net income by the United States of America, by any state thereof or the
District of Columbia or by the jurisdiction under the laws of which such
recipient is organized or in which its principal office is located or, in the
case of any Lender, in which its applicable lending office is located, (b) any
branch profits taxes imposed by the United States of America, any state thereof
or the District of Columbia or any similar tax imposed by any other jurisdiction
in which the Administrative Agent, such Lender or such other recipient is
located and (c) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Borrower under Section 2.14(b)),
any withholding tax that is imposed on amounts payable to such Foreign Lender at
the time such Foreign Lender becomes a party to this Agreement (or designates a
new lending office) or is attributable to such Foreign Lender’s failure to
comply with Section
2.12(e).
“Exposure” means, with
respect to any Lender as of any date of determination, (i) prior to the
termination of the Commitments, that Lender’s Commitment; and (ii) after the
termination of the Commitments, the sum of the aggregate outstanding principal
amount of the Loans of that Lender.
“Federal Funds Effective
Rate” means, for any day, the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York, or, if such rate is not so published for
any day that is a Business Day, the average of the quotations for such day for
such transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
“Financial Officer”
means the chief financial officer, principal accounting officer, treasurer or
controller of the Borrower.
“Foreign Lender” means
any Lender that is organized under the laws of a jurisdiction other than the
United States of America, any state thereof or the District of
Columbia.
“GAAP” means generally
accepted accounting principles in the United States of America.
“GP LLC” means
Enterprise Products GP LLC, a Delaware limited liability company, the general
partner of EPD.
“Governmental
Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
“Guarantee” of or by
any Person (the “guarantor”) means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness of any other Person (the “primary obligor”) in
any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay
7
(or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation or to purchase (or to advance or supply funds for the purchase
of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof, (c) to maintain working
capital, equity capital or any other financial statement condition or liquidity
of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the
term Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business.
“Hazardous Materials”
means all explosive or radioactive substances or wastes and all hazardous or
toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated
biphenyls, radon gas, infectious or medical wastes and all other substances or
wastes of any nature, in each case regulated pursuant to any Environmental
Law.
“Hedging Agreement”
means a financial instrument or security which is used as a cash flow or fair
value hedge to manage the risk associated with a change in interest rates,
foreign currency exchange rates or commodity prices.
“Hybrid Securities”
means any trust preferred securities, or deferrable interest subordinated debt
with a maturity of at least 20 years, which provides for the optional or
mandatory deferral of interest or distributions, issued by the Borrower, or any
business trusts, limited liability companies, limited partnerships or similar
entities (i) substantially all of the common equity, general partner or similar
interests of which are owned (either directly or indirectly through one or more
wholly owned Subsidiaries) at all times by the Borrower or any of its
Subsidiaries, (ii) that have been formed for the purpose of issuing hybrid
securities or deferrable interest subordinated debt, and (iii) substantially all
the assets of which consist of (A) subordinated debt of the Borrower or a
Subsidiary of the Borrower, and (B) payments made from time to time on the
subordinated debt.
“Indebtedness” of any
Person means, without duplication, (a) all obligations of such Person for the
repayment of money borrowed which are or should be shown on a balance sheet as
debt in accordance with GAAP, (b) obligations of such Person as lessee under
leases which, in accordance with GAAP, are capital leases, (c) guaranties of
such Person of payment or collection of any obligations described in clauses (a)
and (b) of other Persons; and (d) all obligations of such Person under any
synthetic lease, tax retention operating lease, off-balance sheet loan or
similar off-balance sheet financing if the obligation under such synthetic
lease, tax retention operating lease, off-balance sheet loan or similar
off-balance sheet financing, as the case may be, is considered indebtedness for
borrowed money for tax purposes but is classified as an operating lease in
accordance with GAAP; provided, that (i)
clauses (a) and (b) include, in the case of obligations of the Borrower or any
Subsidiary, only such obligations as are or should be shown as debt or capital
lease liabilities on a consolidated balance sheet of the Borrower in accordance
with GAAP, (ii) clause (c) includes, in the case of guaranties granted by the
Borrower or any Subsidiary, only such guaranties of obligations of another
Person that are or should be shown as debt or capital lease liabilities on a
consolidated balance sheet of such Person in accordance with GAAP, and (iii) the
liability of any Person as a general partner of a partnership for Indebtedness
8
of such
partnership, if such partnership is not a Subsidiary of such Person, shall not
constitute Indebtedness.
“Indemnified Taxes”
means Taxes other than Excluded Taxes.
“Index Debt” means
senior, unsecured, non-credit enhanced (except for any guaranty by EPD)
Indebtedness of the Borrower.
“Information
Memorandum” means the Confidential Information Memorandum dated October
31, 2007 relating to the Borrower.
“Interest Payment
Date” means the last day of each Interest Period applicable to any
Loan.
“Interest Period”
means an interest period from the Effective Date to the Maturity Date; provided, (a) if an
Interest Period would otherwise expire on a day that is not a Business Day, such
Interest Period shall expire on the next succeeding Business Day unless no
further Business Day occurs in such month, in which case such Interest Period
shall expire on the immediately preceding Business Day; (b) any Interest Period
that begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall, subject to clause (c) of this
definition, end on the last Business Day of a calendar month; and (c) no
Interest Period with respect to any portion of the Loans shall extend beyond the
Maturity Date.
“Interest Rate Determination
Date” means, with respect to any Interest Period, the date that is two
Business Days prior to the first day of such Interest Period.
“Lenders” means the
Persons listed on Schedule
2.01 and any other Person that shall have become a party hereto pursuant
to an Assignment and Acceptance, other than any such Person that ceases to be a
party hereto pursuant to an Assignment and Acceptance.
“Lien” means, with
respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
hypothecation, encumbrance, charge or security interest in, on or of such asset,
(b) the interest of a vendor or a lessor under any conditional sale agreement,
capital lease or title retention agreement relating to such asset and (c) in the
case of securities, any purchase option, call or similar right of a third party
with respect to such securities. For avoidance of doubt, operating leases are
not “Liens”.
“Loans” means the
loans made by the Lenders to the Borrower pursuant to this
Agreement.
“Manager” means
Enterprise Products OLPGP, Inc., a Delaware corporation.
“March 15, 2000
Indenture” means that certain Indenture dated as of March 15, 2000, among
the Borrower, EPD and Wachovia Bank, National Association, f/k/a First Union
National Bank, as Trustee.
9
“Material Adverse
Change” means a material adverse change, from that in effect on
December 31, 2007, in the financial condition or results of operations of
the Borrower and its consolidated Subsidiaries taken as a whole, as indicated in
the most recent quarterly or annual financial statements, except as otherwise
disclosed in the Borrower’s and/or EPD’s filings with the SEC prior to the date
hereof.
“Material Adverse
Effect” means a material adverse effect on the financial condition or
results of operations of the Borrower and its consolidated Subsidiaries taken as
a whole, as indicated in the most recent quarterly or annual financial
statements.
“Material
Indebtedness” means Indebtedness (other than the Loans), of any one or
more of the Borrower and its Subsidiaries (other than Project Finance
Subsidiaries) in an aggregate principal amount exceeding
$25,000,000.
“Material Project”
means the construction or expansion of any capital project of the Borrower or
any of its Subsidiaries, the aggregate capital cost of which exceeds
$50,000,000.
“Material Project EBITDA
Adjustments” shall mean, with respect to each Material
Project:
(a) prior to
the Commercial Operation Date of a Material Project (but including the fiscal
quarter in which such Commercial Operation Date occurs), a percentage (based on
the then-current completion percentage of such Material Project) of an amount to
be approved by the Administrative Agent as the projected Consolidated EBITDA of
Borrower and its Subsidiaries attributable to such Material Project for the
first 12-month period following the scheduled Commercial Operation Date of such
Material Project (such amount to be determined based on customer contracts or
tariff-based customers relating to such Material Project, the creditworthiness
of the other parties to such contracts or such tariff-based customers, and
projected revenues from such contracts, tariffs, capital costs and expenses,
scheduled Commercial Operation Date, oil and gas reserve and production
estimates, commodity price assumptions and other factors deemed appropriate by
Administrative Agent), which may, at the Borrower’s option, be added to actual
Consolidated EBITDA for the Borrower and its Subsidiaries for the fiscal quarter
in which construction of such Material Project commences and for each fiscal
quarter thereafter until the Commercial Operation Date of such Material Project
(including the fiscal quarter in which such Commercial Operation Date occurs,
but net of any actual Consolidated EBITDA of the Borrower and its Subsidiaries
attributable to such Material Project following such Commercial Operation Date);
provided that if the actual Commercial Operation Date does not occur by the
scheduled Commercial Operation Date, then the foregoing amount shall be reduced,
for quarters ending after the scheduled Commercial Operation Date to (but
excluding) the first full quarter after its Commercial Operation Date, by the
following percentage amounts depending on the period of delay (based on the
period of actual delay or then-estimated delay, whichever is longer): (i) 90
days or less, 0%, (ii) longer than 90 days, but not more than 180 days, 25%,
(iii) longer than 180 days but not more than 270 days, 50%, and (iv) longer than
270 days, 100%; and
(b) beginning
with the first full fiscal quarter following the Commercial Operation Date of a
Material Project and for the two immediately succeeding fiscal quarters, an
amount to
10
be
approved by the Administrative Agent as the projected Consolidated EBITDA of
Borrower and its Subsidiaries attributable to such Material Project (determined
in the same manner as set forth in clause (A) above) for the balance of the four
full fiscal quarter period following such Commercial Operation Date, which may,
at the Borrower’s option, be added to actual Consolidated EBITDA for the
Borrower and its Subsidiaries for such fiscal quarters.
Notwithstanding
the foregoing:
(i) no
such additions shall be allowed with respect to any Material Project
unless:
(a) not
later than 30 days prior to the delivery of any certificate required by the
terms and provisions of Section
5.01(e) to the extent Material Project EBITDA Adjustments will be made to
Consolidated EBITDA in determining compliance with Section
6.07, the Borrower shall have delivered to the Administrative Agent
written pro forma projections of Consolidated EBITDA of the Borrower and its
Subsidiaries attributable to such Material Project and
(b) prior
to the date such certificate is required to be delivered, the Administrative
Agent shall have approved (such approval not to be unreasonably withheld) such
projections and shall have received such other information and documentation as
the Administrative Agent may reasonably request, all in form and substance
satisfactory to the Administrative Agent, and
(ii) the
aggregate amount of all Material Project EBITDA Adjustments during any period
shall be limited to 15% of the total actual Consolidated EBITDA of the Borrower
and its Subsidiaries for such period (which total actual Consolidated EBITDA
shall be determined without including any Material Project EBITDA
Adjustments).
“Material Subsidiary”
means each Subsidiary of the Borrower that, as of the last day of the fiscal
year of the Borrower most recently ended prior to the relevant determination of
Material Subsidiaries, has a net worth determined in accordance with GAAP that
is greater than 10% of the Consolidated Net Worth of the Borrower as of such
day.
“Maturity Date” means
the earliest to occur of (i) March 30, 2009, and (ii) the date the unpaid
principal amount of and accrued interest on the Loans becomes due and payable
pursuant to Article
VII.
“Moody’s” means
Moody’s Investors Service, Inc.
“Multiemployer Plan”
means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
“Notes” means any
promissory notes issued by the Borrower pursuant to Section
2.05(e).
“Other Taxes” means
any and all present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies arising from any payment made
hereunder or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement.
11
“PBGC” means the
Pension Benefit Guaranty Corporation referred to and defined in ERISA and any
successor entity performing similar functions.
“Permitted Liens”
means:
(a) liens
upon rights-of-way for pipeline purposes;
(b) any
statutory or governmental lien or lien arising by operation of law, or any
mechanics’, repairmen’s, materialmen’s, suppliers’, carriers’, landlords’,
warehousemen’s 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;
(c) liens for
taxes and assessments which are (i) for the then current year, (ii) not at the
time delinquent, or (iii) delinquent but the validity or amount of which is
being contested at the time by the Borrower, any Subsidiary or EPD in good faith
by appropriate proceedings;
(d) liens of,
or to secure performance of, leases, other than capital leases, or any lien
securing industrial development, pollution control or similar revenue
bonds;
(e) any lien
upon property or assets acquired or sold by the Borrower, any Subsidiary or EPD
resulting from the exercise of any rights arising out of defaults on
receivables;
(f) any lien
in favor of the Borrower, any Subsidiary or EPD; or any lien upon any property
or assets of the Borrower, any Subsidiary or EPD permitted under the March 15,
2000 Indenture, or any replacement indenture containing similar terms and
conditions with respect thereto;
(g) 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
Borrower, any Subsidiary or EPD 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;
(h) any lien
incurred in the ordinary course of business in connection with workmen’s
compensation, unemployment insurance, temporary disability, social security,
retiree health or similar laws or regulations or to secure obligations imposed
by statute or governmental regulations;
(i) 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;
12
(j) any lien
upon any property or assets created at the time of acquisition of such property
or assets by the Borrower, any Subsidiary or EPD 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 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;
(k) any lien
upon any property or assets (i) existing thereon at the time of the acquisition
thereof by the Borrower, any Subsidiary or EPD, (ii) existing thereon at the
time such Person becomes a Subsidiary by acquisition, merger or otherwise, or
(iii) acquired by any Person after the time such Person becomes a Subsidiary by
acquisition, merger or otherwise, to the extent such lien is created by security
documents existing at the time such Person becomes a Subsidiary and not added to
such security documents in contemplation thereof;
(l) 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 Borrower,
the applicable Subsidiary or EPD has not exhausted its appellate
rights;
(m) 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 (a) through (l) 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
Borrower, its Subsidiaries and EPD (including any premium) incurred in
connection with such extension, renewal, refinancing, refunding or replacement;
or
(n) any lien
resulting from the deposit of moneys or evidence of indebtedness in trust for
the purpose of defeasing debt of the Borrower, any Subsidiary or
EPD.
“Permitted Sale/Leaseback
Transactions” means any Sale/Leaseback Transaction:
(a) which
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;
or
(b) involves
a lease for a period, including renewals, of not more than three years;
or
(c) the
Borrower, any Subsidiary or EPD would be entitled to incur Indebtedness, in a
principal amount equal to the Attributable Indebtedness with respect to such
Sale/Leaseback Transaction, secured by a Lien on the property subject to such
Sale/Leaseback Transaction
13
pursuant
to Section
6.02 without equally and ratably securing the Indebtedness under this
Agreement pursuant to such Section; or
(d) the
Borrower, any Subsidiary or EPD, 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 Indebtedness
of the Borrower, any Subsidiary or EPD that is not subordinated to the
Indebtedness under this Agreement, or (b) the expenditure or expenditures for
Principal Property used or to be used in the ordinary course of business of the
Borrower, its Subsidiaries or EPD.
Notwithstanding
the foregoing provisions of this definition, any Sale-Leaseback Transaction not
covered by clauses (a) through (d), inclusive, of this definition, shall
nonetheless be a Permitted Sale/Leaseback Transaction if the Attributable
Indebtedness from such Sale-Leaseback Transaction, together with the aggregate
principal amount of outstanding Indebtedness (other than Indebtedness under this
Agreement and Indebtedness under the March 15, 2000 Indenture) secured by Liens
other than Permitted Liens upon Principal Properties, does not exceed 10% of
Consolidated Net Tangible Assets.
“Person” means any
natural person, corporation, limited liability company, trust, joint venture,
association, company, partnership, Governmental Authority or other
entity.
“Plan” means any
employee pension benefit plan (other than a Multiemployer Plan) subject to the
provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of
ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if
such plan were terminated, would under Section 4069 of ERISA be deemed to be) an
“employer” as defined in Section 3(5) of ERISA.
“Prime Rate” means the
rate of interest per annum publicly announced from time to time by Mizuho
Corporate Bank, Ltd. as its prime rate for short-term commercial loans in
Dollars to domestics corporate borrowers (which Borrower acknowledges is not
necessarily Mizuho Corporate Bank, Ltd.’s lowest rate). Each change
in the Prime Rate shall be effective from and including the date such change is
publicly announced as being effective.
“Principal Property”
means whether owned or leased on the date hereof or thereafter
acquired:
(a) any
pipeline assets of the Borrower, any Subsidiary or EPD, 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
(b) any
processing or manufacturing plant or terminal owned or leased by the Borrower,
any Subsidiary or EPD that is located in the United States or any territory or
political subdivision thereof;
except,
in the case of either of the foregoing clauses (a) or (b):
14
(i) 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
(ii) any
such assets, plant or terminal which, in the opinion of the Board of Directors
(as defined in the March 15, 2000 Indenture), is not material in relation to the
activities of the Borrower or of EPD and its subsidiaries taken as a
whole.
“Program” means the
buy-back program initiated by EPD whereby EPD or the Borrower may after
September 30, 2007 buy back up to the greater of (i) 2,000,000 publicly held
Common Units or (ii) the number of publicly held Common Units the aggregate
purchase price of which is $80,000,000.
“Project Financing”
means Indebtedness incurred by a Project Finance Subsidiary to finance the
acquisition or construction of any asset or project which Indebtedness does not
permit or provide for recourse against the Borrower or any of its Subsidiaries
(other than any Project Finance Subsidiary) and other than recourse that
consists of rights to recover dividends paid by such Project Finance
Subsidiary.
“Project Finance
Subsidiaries” means a Subsidiary that is (A) created principally to
(i) construct or acquire any asset or project that will be or is financed
solely with Project Financing for such asset or project, related equity
investments and any loans to, or capital contributions in, such Subsidiary that
are not prohibited hereby, (ii) own an Equity Interest in a Project Finance
Subsidiary, and/or (iii) own an interest in any such asset or project and (B)
designated as a Project Finance Subsidiary by the Borrower in writing to
Administrative Agent.
“Register” has the
meaning set forth in Section
9.04(c).
“Related Parties”
means, with respect to any specified Person, such Person’s Affiliates and the
respective directors, officers, employees, agents and advisors of such Person
and such Person’s Affiliates.
“Required Lenders”
means, at any time, Lenders having more than 50% of the aggregate outstanding
principal amount of the Loans.
“Restricted Payment”
means any dividend or other distribution (whether in cash, securities or other
property) with respect to any class of Equity Interests of the Borrower, or any
payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any Equity Interests of EPD or the
Borrower or any option, warrant or other right to acquire any Equity Interests
of EPD or the Borrower.
“Sale/Leaseback
Transaction” means any arrangement with any Person providing for the
leasing, under a lease that is not a capital lease under GAAP, by the Borrower,
or a Subsidiary (other than a Project Finance Subsidiary) or EPD of any
Principal Property, which property has been or is to be sold or transferred by
the Borrower, such Subsidiary or EPD to such Person in contemplation of such
leasing.
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“S&P” means
Standard & Poor’s Ratings Services, a division of McGraw Hill Companies,
Inc.
“SEC” has the meaning
set forth in Section
5.01(a).
“Subsidiary” means,
with respect to any Person (the “parent”) at any date, any corporation, limited
liability company, partnership, association or other entity of which securities
or other ownership interests representing more than 50% of the equity or more
than 50% of the ordinary voting power or, in the case of a partnership, more
than 50% of the general partnership interests, are, as of such date, owned,
controlled or held by the parent and one or more subsidiaries of the parent;
provided, notwithstanding the foregoing, neither DEP nor any of its Subsidiaries
shall constitute or be deemed to be a Subsidiary of the Borrower or any of its
Subsidiaries.
“Taxes” means any and
all present or future taxes, levies, imposts, duties, deductions, charges or
withholdings imposed by any Governmental Authority.
“TIBO Rate” means with
respect to any Interest Period pertaining to any Loan the rate per annum equal
to the Yen rate as appearing on Bloomberg Professional services under the Japan
Banker's Association TIBOR Fixing Reference Bank Rates (JBA2) under the caption
"Mizuho Corp" (or on any successor or substitute page of such service, or any
successor to or substitute for such service, providing rate quotations
comparable to those currently provided on such page of such service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to deposits in Yen in the
Tokyo interbank market) determined at 11:00 a.m., Tokyo time, two Business Days
prior to the commencement of such Interest Period, as the rate for deposits in
Yen with a maturity comparable to such Interest Period.
“TIBO Rate Loan” means
a Loan bearing interest at a rate equal to the Adjusted TIBO Rate plus the Applicable
Rate.
“Transactions” means
the execution, delivery and performance by the Borrower of this Agreement, the
borrowing of Loans, and the use of the proceeds thereof.
“Withdrawal Liability”
means liability to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
“Yen” and the sign “¥”
mean the lawful currency of Japan.
Section
1.02
Terms
Generally. The
definitions of terms herein shall apply equally to the singular and plural forms
of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The words
“include”, “includes” and “including” shall be deemed to be followed by the
phrase “without limitation”. The word “will” shall be construed to have the same
meaning and effect as the word “shall”. Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise
16
modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be construed to
include such Person’s successors and assigns, (c) the words “herein”, “hereof”
and “hereunder”, and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, (d)
all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words “asset” and “property” shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
Section
1.03
Accounting Terms;
GAAP. Except
as otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with (i) except for purposes of Section
6.07, GAAP, as in effect from time to time; provided that, if the
Borrower notifies the Administrative Agent that the Borrower requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith; and (ii) for
purposes of Section
6.07, GAAP, as in effect on September 30, 2008.
ARTICLE
II
The
Credits
Section
2.01
Commitments. Subject
to the terms and conditions set forth herein, the initial Lender agrees to make
on the Effective Date a single term loan to Borrower in an aggregate principal
amount of the Commitments. Borrower shall repay all outstanding Loans
not later than the Maturity Date. Borrower may not reborrow Loans
hereunder.
Section
2.02
Loans and
Interest.
(a) The
failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
Commitments of the Lenders are several and no Lender shall be responsible for
any other Lender’s failure to make Loans as required.
(b) Subject
to Section
2.09, each Loan shall be a TIBO Rate Loan. Each Lender at its
option may make any TIBO Rate Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided that any exercise of such
option shall not affect the obligation of the Borrower to repay such Loan in
accordance with the terms of this Agreement.
Section
2.03
Requests for initial
Loan. To
request the initial Loan, the Borrower shall execute and deliver to the
Administrative Agent a written Borrowing Request signed by the Borrower. Such
written Borrowing Request shall specify the following information:
17
(i)
the
aggregate amount of the requested Loan;
(ii) the date
of such Loan, which shall be a Business Day; and
(iii) the
location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section
2.04.
Section
2.04
Funding of
Loans.
(a) Each
Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds by 1:00 p.m., New York
City time, to the account of the Administrative Agent most recently designated
by it for such purpose by notice to the Lenders. The Administrative Agent will
make such Loans available to the Borrower by promptly crediting the amounts so
received, in like funds, to an account designated by the Borrower in the
Borrowing Request.
(b) Unless
the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Loan that such Lender will not make available to the
Administrative Agent such Lender’s share of such Loan, the Administrative Agent
may assume that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Loan
available to the Administrative Agent, then the applicable Lender and the
Borrower severally agree to pay to the Administrative Agent forthwith on demand
such corresponding amount with interest thereon, for each day from and including
the date such amount is made available to the Borrower to but excluding the date
of payment to the Administrative Agent, at (i) in the case of such Lender, the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation or (ii) in the case of the Borrower, the interest rate applicable
to such Loan. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender’s Loan.
Section
2.05
Repayment of Loans; Evidence
of Debt.
(a) The
Borrower hereby unconditionally promises to pay to the Administrative Agent for
the account of each Lender the then unpaid principal amount of each Loan on the
Maturity Date.
(b) Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to such Lender resulting
from each Loan made by such Lender, including the amounts of principal and
interest payable and paid to such Lender from time to time
hereunder.
(c) The
Administrative Agent shall maintain accounts in which it shall record (i) the
amount of each Loan made hereunder and the Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to become due
and payable from the Borrower to each Lender hereunder, and (iii) the amount of
any sum received by the Administrative Agent hereunder for the account of the
Lenders and each Lender’s share thereof.
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(d) The
entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the failure of
any Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any
Lender may request that Loans made by it be evidenced by a promissory note. In
such event, the Borrower shall prepare, execute and deliver to such Lender a
promissory note payable to the order of such Lender (or, if requested by such
Lender, to such Lender and its registered assigns) and substantially in the form
of promissory note attached hereto as Exhibit
E Thereafter, the Loans evidenced by such promissory note and
interest thereon shall at all times (including after assignment pursuant to
Section
9.04) be represented by one or more promissory notes in such form payable
to the order of the payee named therein (or, if such promissory note is a
registered note, to such payee and its registered assigns).
Section
2.06
Prepayment of
Loans.
(a) The
Borrower shall have the right at any time and from time to time to prepay any
Loan in whole or in part, subject to prior notice in accordance with paragraph
(b) of this Section.
(b) The
Borrower shall notify the Administrative Agent by telephone (confirmed by
telecopy) of any prepayment hereunder not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment. Each such notice shall
be irrevocable and shall specify the prepayment date and the principal amount of
each Loan or portion thereof to be prepaid. Promptly following
receipt of any such notice, the Administrative Agent shall advise the Lenders of
the contents thereof. Each partial prepayment shall be in an amount
that is an integral multiple of the Yen equivalent of $1,000,000 and not less
than the Yen equivalent of $3,000,000. Each prepayment shall be applied ratably
to the Loans. Prepayments shall be accompanied by accrued interest to the extent
required by Section
2.08.
Section
2.07
Fees.
(a) The
Borrower agrees to pay to the Administrative Agent, for its own account, fees
payable in the amounts and at the times separately agreed upon between the
Borrower and the Administrative Agent.
(b) All fees
payable hereunder shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, in the case of facility
fees and participation fees, to the Lenders. Fees paid shall not be refundable
under any circumstances.
Section
2.08
Interest.
(a) The Loans
shall bear interest at the TIBO Rate for the Interest Period in effect for such
Loans plus the Applicable Rate.
(b) Notwithstanding
the foregoing, if any principal of or interest on any Loan or any fee or other
amount payable by the Borrower hereunder is not paid when due, whether at stated
maturity, upon acceleration or otherwise, such overdue amount shall bear
interest, after as well
19
as before
judgment, at a rate per annum equal to 2% plus the rate applicable to Loans as
provided in paragraph (a) of this Section.
(c) Accrued
interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and on the Maturity Date; provided that (i) interest accrued
pursuant to paragraph (d) of this Section shall be payable on demand, and (ii)
in the event of any repayment or prepayment of any Loan, accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment.
(d) All
interest determined by reference to the TIBO Rate shall be computed on the basis
of a year of 360 days, and all other interest shall be computed on the basis of
a year of 365 days (or 366 days in a leap year), and in each case shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day). The applicable TIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
Section
2.09
Alternate Rate of
Interest. If
prior to the commencement of any Interest Period for a TIBO Rate
Loan:
(a) the
Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining
the TIBO Rate, as applicable, for such Interest Period; or
(b) the
Administrative Agent is advised by the Required Lenders that the TIBO Rate, as
applicable, for such Interest Period will not adequately and fairly reflect the
cost to such Lenders (or Lender) of making or maintaining their Loans (or its
Loan) for such Interest Period; then the Administrative Agent shall give notice
thereof to the Borrower and the Lenders by telephone or telecopy as promptly as
practicable thereafter and, until the Administrative Agent notifies the Borrower
and the Lenders that the circumstances giving rise to such notice no longer
exist;
then the
Loans shall bear interest at the Prime Rate.
Section
2.10
Illegality; Increased
Costs.
(a) If any
Change in Law shall make it unlawful or impossible for any Lender to make,
maintain or fund its TIBO Rate Loans, such Lender shall so notify the
Administrative Agent. Upon receipt of such notice, the Administrative Agent
shall immediately give notice thereof to the other Lenders and to the Borrower,
whereupon until such Lender notifies the Borrower and the Administrative Agent
that the circumstances giving rise to such suspension no longer exist, the
obligation of such Lender to make TIBO Rate Loans shall be suspended. If such
Lender shall determine that it may not lawfully continue to maintain and fund
any of its outstanding TIBO Rate Loans to maturity and shall so specify in such
notice, the Borrower shall immediately prepay (which prepayment shall not be
subject to Section
2.06) in full the then outstanding principal amount of such TIBO Rate
Loans, together with the accrued interest thereon.
(b) If any
Change in Law shall:
20
(i) impose,
modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended by,
any Lender; or
(ii) impose on
any Lender or the Tokyo interbank market any other condition affecting this
Agreement or TIBO Rate Loans made by such Lender;
and the
result of any of the foregoing shall be to increase the cost to such Lender of
making or maintaining any TIBO Rate Loan (or of maintaining its obligation to
make any such Loan) or to reduce the amount of any sum received or receivable by
such Lender hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender for such additional costs incurred or reduction
suffered.
(c) If any
Lender determines that any Change in Law regarding capital requirements has or
would have the effect of reducing the rate of return on such Lender’s capital or
on the capital of such Lender’s holding company, if any, as a consequence of
this Agreement or the Loans made by such Lender to a level below that which such
Lender or such Lender’s holding company could have achieved but for such Change
in Law (taking into consideration such Lender’s policies and the policies of
such Lender’s holding company with respect to capital adequacy), then from time
to time the Borrower will pay to such Lender, as the case may be, such
additional amount or amounts as will compensate such Lender or such Lender’s
holding company for any such reduction suffered.
(d) A
certificate of a Lender setting forth, in reasonable detail showing the
computation thereof, the amount or amounts necessary to compensate such Lender
or its holding company, as the case may be, as specified in paragraph (a), (b),
or (c) of this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. Such certificate shall further certify that
such Lender is making similar demands of its other similarly situated borrowers.
The Borrower shall pay such Lender, as the case may be, the amount shown as due
on any such certificate within 10 days after receipt thereof, if such
certificate complies herewith.
(e) Failure
or delay on the part of any Lender to demand compensation pursuant to this
Section shall not constitute a waiver of such Lender’s right to demand such
compensation; provided that the Borrower shall not be required to compensate a
Lender pursuant to this Section for any increased costs or reductions incurred
more than 90 days prior to the date that such Lender notifies the Borrower of
the Change in Law giving rise to such increased costs or reductions and of such
Lender’s intention to claim compensation therefor; provided further that, if the
Change in Law giving rise to such increased costs or reductions is retroactive,
then the 90-day period referred to above shall be extended to include the period
of retroactive effect thereof (to the extent that such period of retroactive
effect is not already included in such 90-day period).
Section
2.11
Break Funding
Payments. In
the event of (a) the payment of any principal of any TIBO Rate Loan other than
on the last day of an Interest Period applicable thereto (including as a result
of an Event of Default), or (b) the assignment of any TIBO Rate Loan other than
on the last day of the Interest Period applicable thereto as a result of a
request by the Borrower pursuant to Section
2.14, then, in any such event, the Borrower shall compensate each
21
Lender
for the loss, cost and expense (excluding loss of anticipated profits)
attributable to such event. A certificate of any Lender setting forth, in
reasonable detail showing the computation thereof, any amount or amounts that
such Lender is entitled to receive pursuant to this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof, if such certificate complies herewith.
Section
2.12
Taxes.
(a) Any and
all payments by or on account of any obligation of the Borrower hereunder shall
be made free and clear of and without deduction for any Indemnified Taxes or
Other Taxes; provided that if the Borrower
shall be required to deduct any Indemnified Taxes or Other Taxes from such
payments, then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section) the Administrative Agent or any Lender (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In
addition, the Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.
(c) The
Borrower shall indemnify the Administrative Agent and each Lender, within 10
days after written demand therefor, for the full amount of any Indemnified Taxes
or Other Taxes paid by the Administrative Agent or such Lender, as the case may
be, on or with respect to any payment by or on account of any obligation of the
Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority; provided that the Borrower
shall not be required to indemnify or reimburse a Lender pursuant to this
Section for any Indemnified Taxes or Other Taxes imposed or asserted more than
90 days prior to the date that such Lender notifies the Borrower of the
Indemnified Taxes or Other Taxes imposed or asserted and of such Lender’s
intention to claim compensation therefor; provided further that, if the
Indemnified Taxes or Other Taxes imposed or asserted giving rise to such claims
are retroactive, then the 90-day period referred to above shall be extended to
include the period of retroactive effect thereof (to the extent that such period
of retroactive effect is not already included in such 90-day period). A
certificate setting forth, in reasonable detail showing the computation thereof,
the amount of such payment or liability delivered to the Borrower by a Lender,
or by the Administrative Agent on its own behalf or on behalf of a Lender, shall
be conclusive absent manifest error.
(d) As soon
as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
22
(e) Any
Foreign Lender that is entitled to an exemption from or reduction of withholding
tax under the law of the jurisdiction in which the Borrower is located, or any
treaty to which such jurisdiction is a party, with respect to payments under
this Agreement shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made without
withholding or at such reduced rate.
(f) Should
any Lender or the Administrative Agent during the term of this Agreement ever
receive any refund, credit or deduction from any taxing authority to which such
Lender or the Administrative Agent would not be entitled but for the payment by
the Borrower of Taxes (it being understood that the decision as to whether or
not to claim, and if claimed, as to the amount of any such refund, credit or
deduction shall be made by such Lender or the Administrative Agent in its sole
discretion), such Lender or the Administrative Agent, as the case may be,
thereupon shall repay to the Borrower an amount with respect to such refund,
credit or deduction equal to any net reduction in taxes actually obtained by
such Lender or the Administrative Agent, as the case may be, and determined by
such Lender or the Administrative Agent, as the case may be, to be attributable
to such refund, credit or deduction.
(g) Except
for a request by the Borrower under Section
2.14(b), no Foreign Lender shall be entitled to the benefits of Sections
2.12(a) or 2.12(c) if
withholding tax is imposed on amounts payable to such Foreign Lender at the time
such Foreign Lender becomes a party to this Agreement or designates a new
lending office.
Section
2.13
Payments Generally; Pro Rata
Treatment; Sharing of Set-offs.
(a) The
Borrower shall make each payment required to be made by it hereunder (whether of
principal, interest, or fees, or of amounts payable under Section 2.10,
2.11 or 2.12, or
otherwise) prior to 1:00 p.m., New York City time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such
payments shall be made to the Administrative Agent at its offices at 1251 Avenue
of the Americas, New York, New York, 10020 (Attention: Sandy Manticof), except
that payments pursuant to Sections 2.10,
2.11, 2.12 and 9.03 shall
be made directly to the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of
such extension. All payments hereunder shall be made in dollars.
(b) If at any
time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, interest and fees then due
hereunder, such funds shall be applied (i) first, towards payment of interest
and fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and
(ii) second, towards payment of principal then due hereunder,
23
ratably
among the parties entitled thereto in accordance with the amounts of principal
then due to such parties.
(c) If any
Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Loans
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Loans and accrued interest thereon than the proportion
received by any other Lender, then the Lender receiving such greater proportion
shall purchase (for cash at face value) participations in the Loans of other
Lenders to the extent necessary so that the benefit of all such payments shall
be shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Loans; provided that (i)
if any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans to any assignee
or participant, other than to the Borrower or any Subsidiary or Affiliate
thereof (as to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such
participation.
(d) Unless
the Administrative Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Administrative Agent for the account
of the Lenders hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on such
date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders, as the case may be, the amount due. In such event, if
the Borrower has not in fact made such payment, then each of the Lenders, as the
case may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender with interest thereon, for each
day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank
compensation.
(e) If any
Lender shall fail to make any payment required to be made by it pursuant to
Section
2.04(b) or 2.13(d),
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender’s
obligations under such Sections until all such unsatisfied obligations are fully
paid.
Section
2.14
Mitigation Obligations;
Replacement of Lenders.
(a) If any
Lender requests compensation under Section
2.10, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section
2.12, then such Lender shall use reasonable efforts to
24
designate
a different lending office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices, branches
or affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section
2.10 or 2.12, as
the case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or assignment.
Subject to the foregoing, Lenders agree to use reasonable efforts to select
lending offices which will minimize taxes and other costs and expenses for the
Borrower.
(b) If any
Lender requests compensation under Section
2.10, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section
2.12, or if any Lender defaults in its obligation to fund Loans
hereunder, then the Borrower may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in Section
9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent, which
consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts) and (iii)
in the case of any such assignment resulting from a claim for compensation under
Section
2.10 or payments required to be made pursuant to Section
2.12, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply. If any Lender refuses to assign and delegate all
its interests, rights and obligations under this Agreement after the Borrower
has required such Lender to do so as a result of a claim for compensation under
Section
2.10 or payments required to be made pursuant to Section
2.12, such Lender shall not be entitled to receive such compensation or
required payments.
Section
2.15
Separateness. The
Lenders acknowledge and affirm (i) their reliance on the separateness of EPD, GP
LLC, Borrower and Manager from each other and from other Persons, including EPCO
and Enterprise GP Holdings L.P. (“EPE”), (ii) that
other creditors of the Borrower, Manager, EPD or GP LLC have likely advanced
funds to such Persons in reliance upon the separateness of the Borrower,
Manager, EPD and GP LLC from each other and from other Persons, including EPCO
and EPE, (iii) that each of the Borrower, Manager, EPD and GP LLC have assets
and liabilities that are separate from those of each other and from other
Persons, including EPCO and EPE, (iv) that the Loans and other obligations owing
under this Agreement, the Notes and documents related hereto or thereto have not
been guaranteed by Manager, GP LLC, EPCO or EPE, and (v) that, except as other
Persons may expressly assume or guarantee this Agreement, the Notes
or any documents related hereto or thereto or any of the Loans or other
obligations thereunder, the Lenders shall look solely to the Borrower, and,
pursuant to the EPD Guaranty Agreement, EPD, and their respective property and
assets, and any property pledged as collateral with respect hereto or thereto,
for the repayment of any amounts payable
25
pursuant
hereto or thereto and for satisfaction of any obligations owing to the Lenders
hereunder or thereunder and that neither GP LLC nor Manager is personally liable
to the Lenders for any amounts payable or any liability hereunder or
thereunder.
ARTICLE
III
Representations and
Warranties
The
Borrower represents and warrants to the Lenders that:
Section
3.01
Organization;
Powers. Each of
the Borrower and its Subsidiaries is duly formed, validly existing and (if
applicable) in good standing (except, with respect to Subsidiaries other than
Material Subsidiaries, where the failure to be in good standing, individually or
in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect) under the laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business in all material respects
as now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and (if applicable) is in good standing
in, every jurisdiction where such qualification is required.
Section
3.02
Authorization;
Enforceability. The
Transactions are within the Borrower’s limited liability company powers and have
been duly authorized by all necessary limited liability company and, if
required, member action. This Agreement has been duly executed and delivered by
the Borrower and constitutes a legal, valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors’ rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at
law.
Section
3.03
Governmental Approvals; No
Conflicts. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as
have been obtained or made and are in full force and effect as of the Effective
Date, other than filings after the Effective Date in the ordinary course of
business, (b) will not violate any law or regulation applicable to the Borrower
or the limited partnership agreement, charter, by-laws or other organizational
documents of the Borrower or any of its Subsidiaries or any order of any
Governmental Authority to which the Borrower or any of its Subsidiaries is
subject, (c) will not violate or result in a default under any material
indenture, agreement or other instrument binding upon the Borrower or any of its
Subsidiaries or its assets, or give rise to a right thereunder to require any
payment to be made by the Borrower or any of its Subsidiaries and (d) will not
result in the creation or imposition of any Lien on any asset of the Borrower or
any of its Subsidiaries that is prohibited hereby.
Section
3.04
Financial
Condition. The
Borrower has heretofore furnished to the Lenders the consolidated and
consolidating balance sheets of the Borrower and its consolidated Subsidiaries
and the related consolidated (and, as to statements of income, unaudited
consolidating) statements of income, equity and cash flow of the Borrower and
its consolidated Subsidiaries (i) as of and for the fiscal year ended December
31, 2007, such consolidated
26
financial
statements audited by an independent accounting firm of national standing, and
(ii) as of and for the fiscal quarter and the portion of the fiscal year ended
September 30, 2008, unaudited and certified by a Financial Officer. Such
financial statements present fairly, in all material respects, the financial
position and results of operations and cash flows of the Borrower and its
consolidated Subsidiaries as of such dates and for such periods in accordance
with GAAP, subject to year-end audit adjustments and the absence of footnotes in
the case of the statements referred to in clause (ii) above.
Section
3.05
Litigation and Environmental
Matters.
(a) There are
no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve this Agreement or the Transactions.
(b) Except
for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, neither the Borrower nor any of its Subsidiaries (i)
has failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental Law,
(ii) has become subject to any Environmental Liability, (iii) has received
notice of any claim with respect to any Environmental Liability or (iv) knows of
any basis for any Environmental Liability.
(c) Since the
date of this Agreement, there has been no change in the status of the Disclosed
Matters that, individually or in the aggregate, has resulted in a Material
Adverse Effect.
Section
3.06
Compliance with
Laws. Each of
the Borrower and its Subsidiaries is in compliance with all laws, regulations
and orders of any Governmental Authority applicable to it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.
Section
3.07
Investment Company
Status. Neither
the Borrower nor any of its Subsidiaries is an “investment company” as defined
in, or subject to regulation under, the Investment Company Act of
1940.
Section
3.08
Taxes. Each of
the Borrower and its Subsidiaries has timely filed or caused to be filed all Tax
returns and reports required to have been filed and has paid or caused to be
paid all Taxes required to have been paid by it, except (a) Taxes that are being
contested in good faith by appropriate proceedings and for which the Borrower or
such Subsidiary, as applicable, has set aside on its books adequate reserves or
(b) to the extent that the failure to do so could not reasonably be expected to
result in a Material Adverse Effect.
27
Section
3.09
ERISA. No
ERISA Event has occurred or is reasonably expected to occur that, when taken
together with all other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a Material Adverse
Effect.
Section
3.10
Disclosure. Neither
the Information Memorandum nor any of the other reports, financial statements,
certificates or other information furnished by or on behalf of the Borrower to
the Administrative Agent or any Lender in connection with the negotiation of
this Agreement (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to
projected financial information, the Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
Section
3.11
Subsidiaries. As of
the Effective Date, the Borrower has no Subsidiaries other than those listed on
Schedule
3.11. As of the Effective Date, Schedule
3.11 sets forth the jurisdiction of incorporation or organization of each
such Subsidiary, the percentage of the Borrower’s ownership of the outstanding
Equity Interests of each Subsidiary directly owned by the Borrower, and the
percentage of each Subsidiary’s ownership of the outstanding Equity Interests of
each other Subsidiary.
Section
3.12
Margin
Securities. Neither
the Borrower nor any Subsidiary is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulations U or X of
the Board of Governors of the Federal Reserve System), and no part of the
proceeds of any Loan will be used to purchase or carry any margin stock in
violation of said Regulations U or X or to extend credit to others for the
purpose of purchasing or carrying margin stock in violation of said Regulations
U or X.
ARTICLE
IV
Conditions
Section
4.01
Effective
Date. The
obligations of the Lenders to make Loans hereunder shall not become effective
until the Effective Date which is scheduled to occur when each of the following
conditions is satisfied:
(a) The
Administrative Agent (or its counsel) shall have received from each party hereto
either (i) a counterpart of this Agreement signed on behalf of such party or
(ii) written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of this Agreement) that
such party has signed a counterpart of this Agreement.
(b) The
Administrative Agent shall have received favorable written opinions (addressed
to the Administrative Agent and the Lenders and dated the Effective Date) of
Richard Bachmann, in-house counsel for Borrower and EPD, and Bracewell &
Giuliani LLP, counsel for Borrower and EPD, substantially in the forms of Exhibits C
and D.
28
(c) The
Administrative Agent shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to (1) the
organization and existence of the Borrower and EPD, (2) the authorization of the
Transactions and any other legal matters relating to the Borrower, this
Agreement or the Transactions, all in form and substance reasonably satisfactory
to the Administrative Agent and its counsel, and (3) with respect to EPD, the
authorization of the EPD Guaranty Agreement and any other legal matters relating
to EPD.
(d) The
Administrative Agent shall have received the EPD Guaranty Agreement dated as of
the date hereof, duly and validly executed by EPD.
(e) The
Administrative Agent shall have received each promissory note requested by a
Lender pursuant to Section
2.05(e), each duly completed and executed by the Borrower.
(f) The
Administrative Agent shall have received a certificate, dated the Effective Date
and signed by the President, an Executive Vice President or a Financial Officer
of the Borrower, confirming compliance with the conditions set forth in
paragraphs (a) and (b) of Section
4.02.
(g) The
Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the Effective Date, including, to the extent invoiced
five (5) Business Days prior to closing, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the Borrower
hereunder.
(h) As of the
Effective Date, no Material Adverse Change exists.
(i) There
shall not have been any material disruption or material adverse change in the
financial, banking or capital markets generally or in the market for loan
syndications in particular, which the Administrative Agent, in its reasonable
judgment, determines could materially impair the syndication
hereof.
(j) The
Lenders shall have received (i) the audited financial statements for the
Borrower and its Subsidiaries for the period ended December 31, 2007 (ii) the
unaudited financial statements for the Borrower and its Subsidiaries and EPD’s
Form 10-Q for the fiscal quarter ending September 30, 2008, and (iii) a
certificate from a Financial Officer of the Borrower reflecting pro forma
compliance with Section
6.07 as of September 30, 2008, taking into pro forma account the
Transactions, as if consummated on such date.
(k) All
necessary governmental and third-party approvals, if any, required to be
obtained by the Borrower in connection with the Transactions and otherwise
referred to herein shall have been obtained and remain in effect (except where
failure to obtain such approvals will not have a Material Adverse Effect), and
all applicable waiting periods shall have expired without any action being taken
by any applicable authority.
The
Administrative Agent shall notify the Borrower and the Lenders of the Effective
Date, and such notice shall be conclusive and binding.
29
Section
4.02
Each Credit
Event. The
obligation of each Lender to make a Loan, is subject to the satisfaction of the
following conditions:
(a) The
representations and warranties of the Borrower set forth in this Agreement shall
be true and correct in all material respects on and as of the date of such Loan,
except to the extent that such representations and warranties specifically refer
to an earlier date, in which case they were true and correct in all material
respects as of such earlier date.
(b) At the
time of and immediately after giving effect to such Loan, no Default shall have
occurred and be continuing.
Each Loan
shall be deemed to constitute a representation and warranty by the Borrower on
the date thereof as to the matters specified in paragraphs (a) and (b) of this
Section.
ARTICLE
V
Affirmative
Covenants
Until the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, the Borrower covenants and agrees with the Lenders
that:
Section
5.01
Financial Statements and
Other Information. The
Borrower will furnish, or cause to be furnished, to the Administrative Agent and
each Lender:
(a) within 15
days after filing same with the Securities and Exchange Commission (“SEC”), copies of each
annual report on Form 10-K, quarterly report on Form 10-Q and report on Form 8-K
(or any successor or substitute forms) that EPD is required to file with the SEC
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, and any successor statute (the “Exchange
Act”);
(b) within 15
days after filing same with the SEC, copies of each annual report on Form 10-K,
quarterly report on Form 10-Q and report on Form 8-K (or any successor or
substitute forms) that the Borrower is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act;
(c) if the
Borrower is not subject to the requirements of Section 13 or 15(d) of the
Exchange Act and EPD owns direct subsidiaries (other than the Borrower and its
Subsidiaries), promptly after becoming available and in any event within 105
days after the close of each fiscal year of the Borrower (i) the audited
consolidated balance sheets of the Borrower and its consolidated Subsidiaries as
at the end of such year and (ii) the audited consolidated statements of income,
equity and cash flow of the Borrower and its consolidated Subsidiaries for such
year setting forth in each case in comparative form the corresponding figures
for the preceding fiscal year, which report shall be to the effect that such
statements have been prepared in accordance with GAAP;
(d) if the
Borrower is not subject to Section 13 or 15(d) of the Exchange Act and EPD owns
direct subsidiaries (other than the Borrower and its Subsidiaries), promptly
after their becoming available and in any event within 60 days after the close
of each of the first three fiscal
30
quarters
of each fiscal year of the Borrower, (i) the unaudited consolidated balance
sheets of the Borrower and its consolidated Subsidiaries as at the end of such
quarter and (ii) the unaudited consolidated statements of income, equity and
cash flow of the Borrower for such quarter, setting forth in each case in
comparative form the corresponding figures for the preceding fiscal year, all of
the foregoing certified by a Financial Officer of the Borrower to have been
prepared in accordance with GAAP subject to normal changes resulting from
year-end adjustment and accompanied by a written discussion of the financial
performance and operating results, including the major assets, of the Borrower
for such quarter; and
(e) within 60
days after the end of each fiscal quarter of each fiscal year of the Borrower, a
certificate of a Financial Officer of the Borrower substantially in the form of
Exhibit F
(i) certifying as to whether a Default has occurred that is then continuing and,
if a Default has occurred that is then continuing, specifying the details
thereof and any action taken or proposed to be taken with respect thereto, and
(ii) setting forth in reasonable detail calculations demonstrating compliance
with Section
6.07.
Section
5.02
Notices of Material
Events. The
Borrower will furnish to the Administrative Agent and each Lender prompt written
notice of the following:
(a) the
occurrence of any Event of Default; and
(b) any other
development that results in, or could reasonably be expected to result in, a
Material Adverse Effect.
Each
notice delivered under this Section shall be accompanied by a statement of a
Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
Section
5.03
Existence; Conduct of
Business. The
Borrower will do or cause to be done all things necessary to preserve, renew and
keep in full force and effect its legal existence and the rights, licenses,
permits, privileges and franchises material to the conduct of its business;
provided that the foregoing shall not prohibit any merger, consolidation,
liquidation or dissolution not prohibited under Section
6.03.
Section
5.04
Maintenance of Properties;
Insurance. The
Borrower will, and will cause each of its Subsidiaries to, (a) keep and maintain
all property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted, and (b) maintain, with
financially sound and reputable insurance companies, insurance in such amounts
and against such risks as are customarily maintained by companies engaged in the
same or similar businesses operating in the same or similar
locations.
Section
5.05
Books and Records;
Inspection Rights. The
Borrower will, and will cause each of its Subsidiaries to, keep in accordance
with GAAP proper books of record and account in which full, true and correct
entries are made in all material respects of all dealings and transactions in
relation to its business and activities. The Borrower will, and will cause each
of its Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable prior notice, to visit and
inspect its properties, to examine and make
31
extracts
from its books and records, and to discuss its affairs, finances and condition
with its officers and independent accountants, all at such reasonable times and
as often as reasonably requested.
Section
5.06
Compliance with
Laws. The
Borrower will, and will cause each of its Subsidiaries to, comply with all laws,
rules, regulations and orders of any Governmental Authority applicable to it or
its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
Section
5.07
Use of
Proceeds. The
proceeds of the Loans will be used only for working capital, acquisitions and
other company purposes. No part of the proceeds of any Loan will be used,
whether directly or indirectly, for any purpose that entails a violation of any
of the Regulations of the Board, including Regulations U and X.
Section
5.08
Environmental
Matters. The
Borrower has established and implemented, or will establish and implement, and
will cause each of its Subsidiaries to establish and implement, such procedures
as may be necessary to assure that (except for any failure of the following
that, individually or in the aggregate, does not have a Material Adverse
Effect): (i) all property of the Borrower and its Subsidiaries and the
operations conducted thereon are in compliance with and do not violate the
requirements of any Environmental Laws, (ii) no oil or solid wastes are disposed
of or otherwise released on or to any property owned by the Borrower or its
Subsidiaries except in compliance with Environmental Laws, (iii) no Hazardous
Materials will be released on or to any such property in a quantity equal to or
exceeding that quantity which requires reporting pursuant to Section 103 of
CERCLA, and (iv) no oil or Hazardous Materials is released on or to any such
property so as to pose an imminent and substantial endangerment to public health
or welfare or the environment.
Section
5.09
ERISA
Information. The
Borrower will furnish to the Administrative Agent:
(a) within 15
Business Days after the institution of or the withdrawal or partial withdrawal
by the Borrower, any Subsidiary or any ERISA Affiliate from any Multiemployer
Plan which would cause the Borrower, any Subsidiary or any ERISA Affiliate to
incur withdrawal liability in excess of $25,000,000 (in the aggregate for all
such withdrawals), a written notice thereof signed by an executive officer of
the Borrower stating the applicable details; and
(b) within 15
Business Days after an officer of the Borrower becomes aware of any material
action at law or at equity brought against the Borrower, any of its
Subsidiaries, any ERISA Affiliate, or any fiduciary of a Plan in connection with
the administration of any Plan or the investment of assets thereunder, a written
notice signed by an executive officer of the Borrower specifying the nature
thereof and what action the Borrower is taking or proposes to take with respect
thereto.
Section
5.10
Taxes. Pay and
discharge, or cause to be paid and discharged, promptly or make, or cause to be
made, timely deposit of all taxes (including Federal Insurance Contribution Act
payments and withholding taxes), assessments and governmental charges or levies
imposed
32
upon the
Borrower or any Subsidiary or upon the income or any property of the Borrower or
any Subsidiary; provided, however, that neither the Borrower nor any Subsidiary
shall be required to pay any such tax, assessment, charge, levy or claim if the
amount, applicability or validity thereof shall currently be contested in good
faith by appropriate proceedings diligently conducted by or on behalf of the
Borrower or its Subsidiary, and if the Borrower or its Subsidiary shall have set
up reserves therefor adequate under GAAP or if no Material Adverse Effect shall
be occasioned by all such failures in the aggregate.
ARTICLE
VI
Negative
Covenants
Until the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full, the Borrower covenants and agrees with the Lenders
that:
Section
6.01
Indebtedness. The
Borrower will not permit any Subsidiary to create, incur or assume any
Indebtedness, except:
(a) Indebtedness
of any Person that becomes a Subsidiary of the Borrower, to the extent such
Indebtedness is outstanding at the time such Person becomes a Subsidiary of the
Borrower and was not incurred in contemplation thereof and Indebtedness
refinancing (but not increasing) such Indebtedness, and Indebtedness assumed by
any Subsidiary in connection with its acquisition (whether by merger,
consolidation, acquisition of all or substantially all of the assets or
acquisition that results in the ownership of greater than fifty percent (50%) of
the Equity Interests of a Person) of another Person and Indebtedness refinancing
(but not increasing) such Indebtedness, provided that at the time of and after
giving effect to the incurrence or assumption of such Indebtedness or
refinancing Indebtedness and the application of the proceeds thereof, as the
case may be, the aggregate principal amount of all such Indebtedness, and of all
Indebtedness previously incurred or assumed pursuant to this Section
6.01(a), and then outstanding, shall not exceed 75% of Consolidated
EBITDA for the period of four full fiscal quarters of the Borrower and its
Subsidiaries (and such Person on a pro forma basis) then most recently
ended;
(b) Indebtedness
of the Subsidiaries not otherwise permitted by this Section
6.01, provided that at the time of and after giving effect to the
incurrence of such Indebtedness and the application of the proceeds thereof the
aggregate principal amount of all such Indebtedness, and of all Indebtedness
previously incurred pursuant to this Section
6.01(b), and then outstanding, shall not exceed 25% of Consolidated
EBITDA for the period of four fiscal quarters of the Borrower and the
Subsidiaries then most recently ended;
(c) Indebtedness
of Project Finance Subsidiaries;
(d) intercompany
Indebtedness;
(e) Indebtedness
existing on the date hereof and set forth on Schedule
6.01;
(f) guarantees
of the obligations and Indebtedness hereunder; and
33
(g) other
unsecured Indebtedness in an aggregate principal amount not exceeding
$25,000,000 at any time outstanding;
provided, however, that no
Subsidiary (other than a Project Finance Subsidiary) shall create, incur or
assume any Indebtedness pursuant to any provision of this Section
6.01 if an Event of Default shall have occurred and be continuing or
would result from such creation, incurrence or assumption.
Section
6.02
Liens. The
Borrower shall not, and shall not permit any Subsidiary (other than Project
Finance Subsidiaries) or EPD to, create, assume, incur or suffer to exist any
Lien, other than a Permitted Lien, on any Principal Property or upon any Equity
Interests of the Borrower or any Subsidiary (other than Project Finance
Subsidiaries) owning or leasing any Principal Property, now owned or hereafter
acquired by the Borrower or such Subsidiary to secure any Indebtedness of the
Borrower, EPD or any other Person (other than the Indebtedness under this
Agreement), without in any such case making effective provision whereby any and
all Indebtedness under this Agreement then outstanding will be secured by a Lien
equally and ratably with, or prior to, such Indebtedness for so long as such
Indebtedness shall be so secured. Notwithstanding the foregoing, the Borrower
may, and may permit any Subsidiary (other than a Project Finance Subsidiary) and
EPD to, create, assume, incur or suffer to exist any Lien upon any Principal
Property to secure Indebtedness of the Borrower, EPD or any other Person (other
than the Indebtedness under this Agreement), other than a Permitted Lien without
securing the Indebtedness under this Agreement, provided that the aggregate
principal amount of all Indebtedness then outstanding secured by such Lien and
all similar Liens together with the aggregate amount of Attributable
Indebtedness deemed to be outstanding in respect of all Sale/Leaseback
Transactions (exclusive of any Permitted Sale/Leaseback Transactions), does not
exceed 10% of Consolidated Net Tangible Assets.
Section
6.03
Fundamental
Changes. The
Borrower will not merge into or consolidate with any other Person, or permit any
other Person to merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of (in one transaction or in a series of transactions) all or
substantially all of its assets, or all or substantially all of the Equity
Interests of any of its Subsidiaries (other than Project Finance Subsidiaries)
(in each case, whether now owned or hereafter acquired), or liquidate or
dissolve, except that, if at the time thereof and immediately after giving
effect thereto no Default shall have occurred and be continuing (i) any Person
may merge into or consolidate with the Borrower in a transaction in which the
Borrower is the surviving entity and (ii) Borrower may sell or otherwise dispose
of all or any portion of the Equity Interests of any of its
Subsidiaries.
Section
6.04
Investment
Restriction. Neither
the Borrower nor any Subsidiary (other than a Project Finance Subsidiary) will
make or suffer to exist investments in Project Finance Subsidiaries, in the
aggregate at any one time outstanding, in excess of the sum of (i) the amount of
investments existing as of the Effective Date in Project Finance Subsidiaries,
(ii) $150,000,000, and (iii) the amount of any portion of the investments
permitted by this Section
6.04 repaid to the Borrower or any Subsidiary as a dividend, repayment of
a loan or advance, release or discharge of a guarantee or other obligation or
other transfer of property or return of capital, as the case may be, occurring
after the Effective Date. Computation of the amount of any investment shall be
made without any adjustment for increases or decreases in
34
value, or
write-ups, write-downs or write-offs with respect to such investment or interest
or other earnings on such investment.
Section
6.05
Restricted
Payments. The
Borrower will not, and will not permit any of its Subsidiaries (other than
Project Finance Subsidiaries) to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment, except as long as no Event of
Default has occurred and is continuing or would result therefrom, (i) the
Borrower and the Subsidiaries may make Restricted Payments necessary to fund the
Program, (ii) the Borrower may make Restricted Payments from Available Cash (as
defined in the Company Agreement) from Operating Surplus (as defined in the
Company Agreement) cumulative from January 1, 1999 through the date of such
Restricted Payment, (iii) any Subsidiary may buy back any of its own Equity
Interests, and (iv) the Borrower and its Subsidiaries may make payments or other
distributions to officers, directors or employees with respect to the exercise
by any such Persons of options, warrants or other rights to acquire Equity
Interests in EPD, the Borrower or such Subsidiary issued pursuant to an
employment, equity award, equity option or equity appreciation agreement or
plans entered into by EPD, the Borrower or such Subsidiary in the ordinary
course of business; provided, that even if an Event of Default shall have
occurred and is continuing, no Subsidiary shall be prohibited from upstreaming
dividends or other payments to the Borrower or any Subsidiary (which is not a
Project Finance Subsidiary) or making, in the case of any Subsidiary that is not
wholly-owned (directly or indirectly) by the Borrower, ratable dividends or
payments, as the case may be, to the other owners of Equity Interests in such
Subsidiary.
Section
6.06
Restrictive
Agreements. The
Borrower will not, and will not permit any of its Subsidiaries (other than
Project Finance Subsidiaries) to, directly or indirectly, enter into, incur or
permit to exist any agreement or other arrangement with any Person, other than
the Lenders pursuant hereto, which prohibits, restricts or imposes any
conditions upon the ability of any Subsidiary (other than Project Finance
Subsidiaries) to (a) pay dividends or make other distributions or pay any
Indebtedness owed to the Borrower or any Subsidiary, or (b) make subordinate
loans or advances to or make other investments in the Borrower or any Subsidiary
in each case, other than restrictions or conditions contained in, or existing by
reasons of, any agreement or instrument (i) existing on the date hereof and
identified on Schedule
6.06, (ii) relating to property existing at the time of the acquisition
thereof, so long as the restriction or condition relates only to the property so
acquired, (iii) relating to any Indebtedness of, or otherwise to, any Subsidiary
at the time such Subsidiary was merged or consolidated with or into, or acquired
by, the Borrower or a Subsidiary or became a Subsidiary and not created in
contemplation thereof, (iv) effecting a renewal, extension, refinancing, refund
or replacement (or successive extensions, renewals, refinancings, refunds or
replacements) of Indebtedness issued under an agreement referred to in clauses
(i) through (iii) above, so long as the restrictions and conditions contained in
any such renewal, extension, refinancing, refund or replacement agreement, taken
as a whole, are not materially more restrictive than the restrictions and
conditions contained in the original agreement, as determined in good faith by
the board of directors of the Manager, (v) constituting customary provisions
restricting subletting or assignment of any leases of the Borrower or any
Subsidiary or provisions in agreements that restrict the assignment of such
agreement or any rights thereunder, (vi) constituting restrictions on the sale
or other disposition of any property securing Indebtedness as a result of a Lien
on such property permitted hereunder, (vii) constituting any temporary
encumbrance or restriction with respect to a Subsidiary under an agreement that
has been entered into for the disposition of
35
all or
substantially all of the outstanding Equity Interests of or assets of such
Subsidiary, provided that such disposition is otherwise permitted hereunder,
(viii) constituting customary restrictions on cash, other deposits or assets
imposed by customers and other persons under contracts entered into in the
ordinary course of business, (ix) constituting provisions contained in
agreements or instruments relating to Indebtedness that prohibit the transfer of
all or substantially all of the assets of the obligor under that agreement or
instrument unless the transferee assumes the obligations of the obligor under
such agreement or instrument or such assets may be transferred subject to such
prohibition, (x) constituting a requirement that a certain amount of
Indebtedness be maintained between a Subsidiary and the Borrower or another
Subsidiary, (xi) constituting any restriction or condition with respect to
property under an agreement that has been entered into for the disposition of
such property, provided that such disposition is otherwise permitted hereunder,
(xii) constituting any restriction or condition with respect to property under a
charter, lease or other agreement that has been entered into for the employment
of such property or (xiii) that is a Hybrid Security or an indenture, document,
agreement or security entered into or issued in connection with a Hybrid
Security or otherwise constituting a restriction or condition on the payment of
dividends or distributions by an issuer of a Hybrid Security.
Section
6.07 Financial Condition
Covenant.
Ratio of Consolidated
Indebtedness to Consolidated EBITDA. The Borrower shall not permit its
ratio of Consolidated Indebtedness to Consolidated EBITDA in each case for the
four full fiscal quarters most recently ended to exceed:
5.00 to 1.00 as of the last
day of any fiscal quarter;
provided, following a
Specified Acquisition (defined below), such ratio shall not exceed
5.50 to 1.00 as of the last
day of (i) the fiscal quarter in which the Specified Acquisition occurred (the
“Acquisition
Quarter”), and (ii) the first fiscal quarter following the Acquisition
Quarter.
As used
herein, “Specified
Acquisition” means, at the election of Borrower, one or more acquisitions
of assets or entities or operating lines or divisions in any rolling 12-month
period for an aggregate purchase price of not less than $100,000,000; provided,
in the event the Debt Coverage Ratio exceeds 5.00 to 1.00 at the end of any
fiscal quarter in which one or more acquisitions otherwise qualifying as a
Specified Acquisition but for Borrower’s failure to so elect shall have
occurred, Borrower shall be deemed to have so elected a Specified Acquisition
with respect thereto; provided, further, following
the election (or deemed election) of a Specified Acquisition, Borrower may not
elect (or be deemed to have elected) a subsequent Specified Acquisition unless,
at the time of such subsequent election, the Debt Coverage Ratio does not exceed
5.00 to 1.00.
For
purposes of calculating such ratio the Project Finance Subsidiaries shall be
disregarded and: (i) Consolidated EBITDA and Consolidated Interest Expense in
any prior fiscal quarters attributable to assets contributed to DEP shall be
excluded from the calculation of Consolidated EBITDA and Consolidated Interest
Expense for such prior fiscal quarters; however, such
36
exclusion
does not apply to, and there shall be included in such calculation, (A) the
amount of cash dividends or distributions payable with respect to such a period
by a Project Finance Subsidiary or DEP which are actually received by the
Borrower or a Subsidiary (other than a Project Finance Subsidiary) on or prior
to the date the financial statements with respect to such period referred to in
Section
5.01 are required to be delivered by Borrower, and (B) with respect to
EBITDA of a subsidiary owned jointly by DEP and the Borrower, excluding amounts
actually dividended or distributed by such subsidiary and received by the owners
thereof, an amount equal to such subsidiary’s EBITDA times the Borrower’s direct
or indirect ownership percentage of the Equity Interests in such subsidiary
(other than through DEP), and (ii) for purposes of calculating such ratio for
the fiscal quarters ending prior to March 31, 2008, any dividends or
distributions paid by DEP, without duplication, which are actually received by
the Borrower shall be annualized as follows: (A) for the fiscal quarter ending
September 30, 2007, such dividends or distributions received during the period
commencing January 5, 2007 and ending on the date the financial statements with
respect to such period are required to be delivered by the Borrower times 365
divided by the number of days from January 5, 2007 to September 30, 2007, and
(B) for the fiscal quarter ending December 31, 2007, such dividends or
distributions received during the period commencing January 5, 2007 and ending
on the date the financial statements with respect to such period are required to
be delivered by the Borrower times 365 divided by the number of days from
January 5, 2007 to December 31, 2007. For purposes of this Section
6.07, if during any period of four fiscal quarters the Borrower or any
Subsidiary acquires any Person (or any interest in any Person) or all or
substantially all of the assets of any Person, the EBITDA attributable to such
assets or an amount equal to the percentage of ownership of the Borrower or a
Subsidiary, as the case may be, in such Person times the EBITDA of such Person,
for such period determined on a pro forma basis (which determination, in each
case, shall be subject to approval of the Administrative Agent, not to be
unreasonably withheld) may be included as Consolidated EBITDA for such period as
if such acquisition occurred on the first day of such four fiscal quarter
period; provided that during the portion of such period that follows such
acquisition, the computation in respect of the EBITDA of such Person or such
assets, as the case may be, shall be made on the basis of actual (rather than
pro forma) results.
In
addition, for purposes of this Section
6.07, Hybrid Securities up to an aggregate amount of 15% of Consolidated
Total Capitalization shall be excluded from Consolidated Indebtedness and
Consolidated EBITDA may include, at Borrower’s option, any Material Project
EBITDA Adjustments as provided in the definition thereof.
ARTICLE
VII
Events of
Default
If any of
the following events (“Events of Default”)
shall occur:
(a) the
Borrower shall fail to pay any principal of any Loan when and as the same shall
become due and payable, whether at the due date thereof or at a date fixed for
prepayment thereof or otherwise;
(b) the
Borrower shall fail to pay any interest on any Loan or any fee or any other
amount (other than an amount referred to in clause (a) of this Article) payable
under this
37
Agreement,
when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of five (5) Business Days;
(c) any
representation or warranty made or deemed made by or on behalf of the Borrower,
EPD or any Subsidiary of the Borrower in or in connection with this Agreement or
any amendment or modification hereof or waiver hereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or in
connection with this Agreement or any amendment or modification hereof or waiver
hereunder, shall prove to have been incorrect in any material respect when made
or deemed made and such materiality is continuing;
(d) the
Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Section 5.02,
5.03 (with respect to the Borrower’s existence) or 5.07 or in
Article
VI;
(e) the
Borrower shall fail to observe or perform any covenant, condition or agreement
contained in this Agreement (other than those specified in clause (a), (b) or
(d) of this Article), and such failure shall continue unremedied for a period of
30 days after written notice thereof from the Administrative Agent to the
Borrower (which notice will be given at the request of any Lender);
(f) the
Borrower or any Material Subsidiary (other than Project Finance Subsidiaries)
shall (i) fail to pay (A) any principal of or premium or interest on any
Material Indebtedness of the Borrower or such Material Subsidiary (as the case
may be), or (B) aggregate net obligations under one or more Hedging Agreements
(excluding amounts the validity of which are being contested in good faith by
appropriate proceedings, if necessary, and for which adequate reserves with
respect thereto are maintained on the books of the Borrower or such Material
Subsidiary (as the case may be)) in excess of $25,000,000, in each case when the
same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument relating to such Material Indebtedness or such Hedging Agreements; or
(ii) default in the observance or performance of any covenant or obligation
contained in any agreement or instrument relating to any such Material
Indebtedness that in substance is customarily considered a default in loan
documents (in each case, other than a failure to pay specified in clause (i) of
this subsection (f)) and such default shall continue after the applicable grace
period, if any, specified in such agreement or instrument, if the effect thereof
is to accelerate the maturity of such Material Indebtedness or require such
Material Indebtedness to be prepaid prior to the stated maturity thereof; for
the avoidance of doubt the parties acknowledge and agree that any payment
required to be made under a guaranty of payment or collection described in
clause (c) of the definition of Indebtedness shall be due and payable at the
time such payment is due and payable under the terms of such guaranty (taking
into account any applicable grace period) and such payment shall be deemed not
to have been accelerated or required to be prepaid prior to its stated maturity
as a result of the obligation guaranteed having become due;
(g) an
involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (i) liquidation, reorganization or other relief in respect of the
Borrower or any Material Subsidiary (other than Project Finance Subsidiaries) or
its debts, or of a substantial part
38
of its
assets, under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect or (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for the
Borrower or any Material Subsidiary (other than Project Finance Subsidiaries) or
for a substantial part of its assets, and, in any such case, such proceeding or
petition shall continue undismissed for 60 days or an order or decree approving
or ordering any of the foregoing shall be entered;
(h) the
Borrower or any Material Subsidiary (other than Project Finance Subsidiaries)
shall (i) voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in effect,
(ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in clause (h) of this
Article, (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower or any
Material Subsidiary (other than Project Finance Subsidiaries) or for a
substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(i) the
Borrower or any Material Subsidiary (other than Project Finance Subsidiaries)
shall become unable, admit in writing its inability or fail generally to pay its
debts as they become due;
(j) one or
more judgments for the payment of money in an aggregate uninsured amount equal
to or greater than $50,000,000 shall be rendered against the Borrower or any
Material Subsidiary (other than Project Finance Subsidiaries) or any combination
thereof and the same shall remain undischarged for a period of 30 consecutive
days during which execution shall not be effectively stayed, or any action shall
be legally taken by a judgment creditor to attach or levy upon any assets of the
Borrower or any such Material Subsidiary to enforce any such
judgment;
(k) an ERISA
Event shall have occurred that, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in liability of the
Borrower and its Subsidiaries in an aggregate amount exceeding $25,000,000 for
all periods;
(l) EPD
takes, suffers or permits to exist any of the events or conditions referred to
in clauses (g), (h), (i) or (j) of this Article or if the section of the EPD
Guaranty Agreement that contains the payment obligation shall for any reason
cease to be valid and binding on EPD or if EPD shall so state in
writing;
(m) the
Manager or GP LLC takes, suffers or permits to exist any of the events or
conditions referred to in clauses (g), (h) or (i) of this Article;
or
(n) a Change
in Control shall occur; then, and in every such event (other than an event with
respect to the Borrower described in clause (g) or (h) of this Article), and at
any time thereafter during the continuance of such event, the Administrative
Agent at the request of the Required Lenders shall, by notice to the Borrower,
take either or both of the following actions, at
39
the same
or different times: (i) terminate the Commitments, and thereupon the Commitments
shall terminate immediately, and (ii) declare the Loans then outstanding to be
due and payable in whole (or in part, in which case any principal not so
declared to be due and payable may thereafter be declared to be due and
payable), and thereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower; and in case of any event with
respect to the Borrower described in clause (g) or (h) of this Article, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall automatically become due
and payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower.
ARTICLE
VIII
The Administrative
Agent
Each of
the Lenders hereby irrevocably appoints the Administrative Agent as its agent
and authorizes the Administrative Agent to take such actions on its behalf and
to exercise such powers as are delegated to the Administrative Agent by the
terms hereof, together with such actions and powers as are reasonably incidental
thereto.
The bank
serving as the Administrative Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the same
as though it were not the Administrative Agent, and such bank and its Affiliates
may accept deposits from, lend money to and generally engage in any kind of
business with the Borrower or any Subsidiary or other Affiliate thereof as if it
were not the Administrative Agent hereunder.
The
Administrative Agent shall not have any duties or obligations except those
expressly set forth herein. Without limiting the generality of the foregoing,
(a) the Administrative Agent shall not be subject to any fiduciary or other
implied duties, regardless of whether a Default has occurred and is continuing,
(b) the Administrative Agent shall not have any duty to take any discretionary
action or exercise any discretionary powers, except discretionary rights and
powers expressly contemplated hereby that the Administrative Agent is required
to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section
9.02), and (c) except as expressly set forth herein, the Administrative
Agent shall not have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of its
Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable to the Lenders for any action taken or
not taken by it with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section
9.02) or in the absence of its own gross negligence or willful
misconduct. The Administrative Agent shall be deemed not to have knowledge of
any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this
Agreement,
40
(ii) the
contents of any certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV
or elsewhere herein, other than to confirm receipt of items expressly required
to be delivered to the Administrative Agent.
The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or
experts.
The
Administrative Agent may perform any and all its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent. Anything herein to the
contrary notwithstanding, neither the Administrative Agent nor the Sole Lead
Arranger listed on the cover page hereof shall have any powers, duties or
responsibilities under this Agreement, the Notes or any documents related hereto
or thereto, except in its capacity, as applicable, as Administrative Agent or a
Lender hereunder.
Subject
to the appointment and acceptance of a successor Administrative Agent as
provided in this paragraph, the Administrative Agent may resign at any time by
notifying the Lenders and the Borrower. Upon any such resignation, the Required
Lenders shall have the right, with the Borrower’s approval (which will not be
unreasonably withheld), to appoint a successor. If no successor shall have been
so appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may, with the Borrower’s
approval (which will not be unreasonably withheld or delayed, and the Borrower’s
approval shall not be required if an Event of Default has occurred which is
continuing), on behalf of the Lenders, appoint a successor Administrative Agent
which shall be a bank with an office in New York, New York, or an Affiliate of
any such bank and such bank, or its Affiliate, as applicable, shall have capital
and surplus equal to or greater than $500,000,000. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Borrower to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Borrower
and such successor.
41
After the
Administrative Agent’s resignation hereunder, the provisions of this Article and
Section
9.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
Each
Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any related agreement or any
document furnished hereunder or thereunder.
ARTICLE
IX
Miscellaneous
Section
9.01
Notices. Except
in the case of notices and other communications expressly permitted to be given
by telephone, and except as provided in Section
9.01(d), all notices and other communications provided for herein shall
be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as
follows:
(a) if to the
Borrower, to it at 1100 Louisiana Street, 10th Floor, Houston, Texas 77002,
Attention of Treasurer (Telecopy No. 713/381-8200);
(b) if to the
Administrative Agent, to Mizuho Corporate Bank, Ltd., 1251 Avenue of the
Americas, New York, New York, 10020, Attention: Sandy Manticof (Telecopy No.
212-282-4488).
(c) if to any
other Lender, to it at its address (or telecopy number) of record with the
Administrative Agent, which Administrative Agent shall provide to the Borrower
or any Lender upon request from time to time; and
(d) the
Borrower will have the option to provide to the Administrative Agent all
information, documents and other materials that it is obligated to furnish to
the Administrative Agent pursuant to this Agreement or any other document
executed in connection herewith, including, without limitation, all notices,
requests, financial statements, financial and other reports, certificates and
other information materials, but excluding any such communication that (i)
relates to a request for a Loan or other extension of credit, (ii) relates to
the payment of any principal or other amount due under this Agreement prior to
the scheduled date therefor, (iii) provides notice of any Default or Event of
Default, or (iv) other than the requirements set forth in Sections 3.04,
4.01(j) and 5.01, is
required to be delivered to satisfy any condition precedent to the effectiveness
of this Agreement and/or any Loan or any other extension of credit hereunder
(all such non-excluded communications being referred to herein collectively as
“Communications”), by
transmitting the Communications in an electronic/soft medium in a format
acceptable to the Administrative Agent. The Borrower further agrees that the
42
Administrative
Agent may make the Communications available to the Lenders by posting the
Communications on SyndTrak or a substantially similar electronic transmission
system (the “Platform”). The
Borrower acknowledges that the distribution of material through an electronic
medium is not necessarily secure and that there are confidentiality and other
risks associated with such distribution. The
Platform is provided “as is” and “as available”. The Agent Parties (as defined
below) do not warrant the accuracy or completeness of the Communications, or the
adequacy of the Platform and expressly disclaim liability for errors or
omissions in the Communications. No warranty of any kind, express, implied or
statutory, including, without limitation, any warranty of merchantability,
fitness for a particular purpose, non-infringement of third party rights or
freedom from viruses or other code defects, is made by the Agent Parties in
connection with the Communications or the Platform. In no event shall the
Administrative Agent or any of its affiliates or any of their respective
officers, directors, employees, agents, advisors or representatives
(collectively, “Agent Parties”) have any liability to the Borrower, any Lender
or any other Person or entity for damages of any kind, including, without
limitation, direct or indirect, special, incidental or consequential damages,
losses or expenses (whether in tort, contract or otherwise) arising out of the
Borrower’s or the Administrative Agent’s transmission of Communications through
the internet, except to the extent the liability of any Agent Party is found in
a final non-appealable judgment by a court of competent jurisdiction to have
resulted primarily from such Agent Party’s gross negligence or willful
misconduct. The
Administrative Agent agrees that the receipt of the Communications by the
Administrative Agent at its e-mail address as specified by the Administrative
Agent from time to time shall constitute effective delivery of the
Communications to the Administrative Agent for purposes of this Agreement and
any other documents executed in connection herewith. Each of the Lenders agrees
that notice to it (as provided in the next sentence) specifying that the
Communications have been posted to the Platform shall constitute effective
delivery of the Communications to such Lender, as the case may be, for purposes
of this Agreement and any other documents executed in connection herewith. Each
of the Lenders agrees (i) to notify the Administrative Agent in writing
(including by electronic communication) from time to time of such Lender’s
e-mail address to which the foregoing notice may be sent by electronic
transmission, and (ii) that the foregoing notice may be sent to such e-mail
address. Nothing herein shall prejudice the right of the Administrative Agent or
any Lender to give any notice or other communication pursuant hereto or any
other document executed in connection herewith in any other manner specified
herein or therein.
Any party
hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of
receipt.
Section
9.02
Waivers;
Amendments.
(a) No
failure or delay by the Administrative Agent or any Lender in exercising any
right or power hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent and the Lenders hereunder are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No
43
waiver of
any provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall not
be construed as a waiver of any Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such
Default at the time.
(b) Neither
this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the
Borrower and the Required Lenders or by the Borrower and the Administrative
Agent with the consent of the Required Lenders; provided that no such
agreement shall (i) increase or extend the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section
2.13(b) or (c) in a
manner that would alter the pro rata sharing of payments required thereby,
without the written consent of each Lender, (v) release EPD from any of its
monetary obligations under the EPD Guaranty Agreement without the written
consent of each Lender, or (vi) change any of the provisions of this Section or
the definition of “Required Lenders” or any other provision hereof specifying
the number or percentage of Lenders required to waive, amend or modify any
rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender; provided further that no such
agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent hereunder without the prior written consent of the
Administrative Agent.
Section
9.03
Expenses; Indemnity; Damage
Waiver.
(a) The
Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of one law firm as counsel for the Administrative Agent, in
connection with the syndication (prior to the Effective Date) of the credit
facilities provided for herein, the preparation and administration of this
Agreement or any amendments, modifications or waivers of the provisions hereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), and (ii) all out-of-pocket expenses reasonably incurred during the
existence of an Event of Default by the Administrative Agent or any Lender,
including the fees, charges and disbursements of any counsel for the
Administrative Agent or any Lender, in connection with the enforcement or
protection of its rights in connection with this Agreement, including its rights
under this Section, or in connection with the Loans made, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans.
(b) The
Borrower shall indemnify the Administrative Agent and each Lender, and each
Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of any
44
counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the performance by
the parties hereto of their respective obligations hereunder or the consummation
of the Transactions or any other transactions contemplated hereby, (ii) any Loan
or the use of the proceeds therefrom, (iii) any actual or alleged presence or
release of Hazardous Materials on or from any property owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Liability related in
any way to the Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available (x) to the extent that
such losses, claims, damages, liabilities or related expenses resulted from the
gross negligence or willful misconduct of such Indemnitee or any Related Party
of such Indemnitee, or (y) in connection with disputes among or between the
Administrative Agent, Lenders, and/or their respective Related
Parties.
(c) To the
extent that the Borrower fails to pay any amount required to be paid by it to
the Administrative Agent under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent, as the case may be, such
Lender’s Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed
expense or indemnified loss, claim, damage, liability or related expense, as the
case may be, was incurred by or asserted against the Administrative Agent in its
capacity as such.
(d) To the
extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for
punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan or the use of the
proceeds thereof.
(e) All
amounts due under this Section shall be payable not later than 30 days after
written demand therefor, such demand to be in reasonable detail setting forth
the basis for and method of calculation of such amounts.
Section
9.04
Successors and
Assigns.
(a) The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted hereby,
except that the Borrower may not assign or otherwise transfer any of its rights
or obligations hereunder without the prior written consent of each Lender (and
any attempted assignment or transfer by the Borrower without such consent shall
be null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
45
(b) Any
Lender may assign to one or more assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans at the time owing to it); provided that (i)
except in the case of an assignment to a Lender or an Affiliate of a Lender,
each of the Borrower and the Administrative Agent (and, in the case of an
assignment of all or a portion of a Commitment) must give their prior written
consent to such assignment (which consent shall not be unreasonably withheld or
delayed), (ii) except in the case of an assignment to a Lender or an Affiliate
of a Lender or an assignment of the entire remaining amount of the assigning
Lender’s Commitment, the amount of the Commitment of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall not be less than the Yen equivalent of $5,000,000 unless each of
the Borrower and the Administrative Agent otherwise consent, (iii) each partial
assignment shall result in the assignor retaining a Commitment of not less than
the Yen equivalent of $10,000,000 and shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations under
this Agreement, (iv) the parties (other than the Borrower) to each assignment
shall execute and deliver to the Administrative Agent an Assignment and
Acceptance, together with a processing and recordation fee of $3,500, (v) the
assignee, if it shall not be a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire and (vi) no assignment to a foreign bank shall
be made hereunder unless, at the time of such assignment, there is no
withholding tax applicable with respect to such foreign bank for which the
Borrower would be or become responsible under Section
2.12; and provided further that
any consent of the Borrower otherwise required under this paragraph shall not be
required if an Event of Default has occurred and is continuing. Subject to
acceptance and recording thereof pursuant to paragraph (d) of this Section, from
and after the effective date specified in each Assignment and Acceptance the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.10,
2.11, 2.12 and 9.03 as to
matters occurring on or prior to date of assignment). Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not comply
with this paragraph shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with
paragraph (e) of this Section.
(c) The
Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices in The City of New York, the address of which
shall be made available to any party to this Agreement upon request: a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The
entries in the Register shall be conclusive absent manifest error, and the
Borrower, the Administrative Agent, and the Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower and any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
46
(d) Upon its
receipt of a duly completed Assignment and Acceptance executed by an assigning
Lender and an assignee, the assignee’s completed Administrative Questionnaire
(unless the assignee shall already be a Lender hereunder), the processing and
recordation fee referred to in paragraph (b) of this Section and any written
consent to such assignment required by paragraph (b) of this Section, the
Administrative Agent shall accept such Assignment and Acceptance and record the
information contained therein in the Register. No assignment shall be effective
for purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
(e) Any
Lender may, without the consent of the Borrower, the Administrative Agent, sell
participations to one or more banks or other entities (a “Participant”) in all
or a portion of such Lender’s rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it); provided that (i) such
Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative
Agent, and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement
or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in the
first proviso to Section
9.02(b) that affects such Participant.
(f) A
Participant shall not be entitled to receive any greater payment under Section
2.10 or 2.12 than
the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower’s prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section
2.12 unless the Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrower, to
comply with Section 2.12(e)
as though it were a Lender and has zero withholding at the time of
participation.
(g) Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such Lender
to a Federal Reserve Bank, and this Section shall not apply to any such pledge
or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
Section
9.05
Survival. All
covenants, agreements, representations and warranties made by the Borrower
herein and in the certificates or other instruments delivered in connection with
or pursuant to this Agreement shall be considered to have been relied upon by
the other parties hereto and shall survive the execution and delivery of this
Agreement and the making of any Loans, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is
extended
47
hereunder,
and shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.10,
2.11, 2.12 and 9.03 and
Article
VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the Loans
or the termination of this Agreement or any provision hereof.
Section
9.06
Counterparts; Integration;
Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. This
Agreement shall become effective on the Effective Date, and thereafter shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
Section
9.07
Severability. Any
provision of this Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.
Section
9.08
Right of
Setoff. If an
Event of Default shall have occurred and be continuing and the Required Lenders
have directed the Administrative Agent to accelerate under Article
VII, each Lender and each of its Affiliates is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other obligations at any time owing by such
Lender or Affiliate to or for the credit or the account of the Borrower against
any of and all the obligations of the Borrower now or hereafter existing under
this Agreement held by such Lender, irrespective of whether or not such Lender
shall have made any demand under this Agreement and although such obligations
may be unmatured. The rights of each Lender under this Section are in addition
to other rights and remedies (including other rights of setoff) which such
Lender may have.
Section
9.09
Governing Law; Jurisdiction;
Consent to Service of Process.
(a) This
Agreement shall be construed in accordance with and governed by the law of the
State of New York.
(b) The
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the Supreme Court of the State of
New York sitting in New York County and of the United States District Court of
the Southern District of New York, and any appellate court from any thereof, in
any action or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment, and each of the
48
parties
hereto hereby irrevocably and unconditionally agrees that all claims in respect
of any such action or proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that the Administrative Agent or any Lender may otherwise have
to bring any action or proceeding relating to this Agreement against the
Borrower or its properties in the courts of any jurisdiction.
(c) The
Borrower hereby irrevocably and unconditionally waives, to the fullest extent it
may legally and effectively do so, any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement in any court referred to in paragraph (b) of this
Section. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(d) Each
party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section
9.01. Nothing in this Agreement will affect the right of any party to
this Agreement to serve process in any other manner permitted by
law.
Section
9.10
WAIVER OF JURY
TRIAL. EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
Section
9.11
Headings. Article
and Section headings and the Table of Contents used herein are for convenience
of reference only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this
Agreement.
Section
9.12
Confidentiality. Each of
the Administrative Agent and the Lenders agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be disclosed
(a) to its and its Affiliates’ directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
(f) subject to an agreement containing provisions substantially
49
the same
as those of this Section, to any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement, (g) with the consent of the Borrower or (h) to the extent
such Information (i) becomes publicly available other than as a result of a
breach of this Section or (ii) becomes available to the Administrative Agent or
any Lender on a nonconfidential basis from a source other than the Borrower and
its Related Parties. For the purposes of this Section, “Information” means all
information received from the Borrower relating to the Borrower or its business,
other than any such information that is available to the Administrative Agent or
any Lender on a nonconfidential basis prior to disclosure by the
Borrower.
Section
9.13
Interest Rate
Limitation.
Notwithstanding anything herein to the contrary, if at any time the interest
rate applicable to any Loan, together with all fees, charges and other amounts
which are treated as interest on such Loan under applicable law (collectively
the “Charges”),
shall exceed the maximum lawful rate (the “Maximum Rate”) which
may be contracted for, charged, taken, received or reserved by the Lender
holding such Loan in accordance with applicable law, the rate of interest
payable in respect of such Loan hereunder, together with all Charges payable in
respect thereof, shall be limited to the Maximum Rate and, to the extent lawful,
the interest and Charges that would have been payable in respect of such Loan
but were not payable as a result of the operation of this Section shall be
cumulated and the interest and Charges payable to such Lender in respect of
other Loans or periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together (to the extent lawful) with
interest thereon at the Federal Funds Effective Rate to the date of repayment,
shall have been received by such Lender.
Section
9.14
Liability of
Manager. It is
hereby understood and agreed that Manager shall have no personal liability, as a
member of the Borrower or otherwise, for the payment of any amount owing or to
be owing hereunder.
Section
9.15
USA Patriot Act
Notice. Each
Lender and Administrative Agent (for itself and not on behalf of any Lender)
hereby notifies Borrower that pursuant to the requirements of the USA Patriot
Act (Title III of Pub. L. 107-56 (signed into law October 26, 2003)) (the “Act”), it is required
to obtain, verify and record information that identifies Borrower, which
information includes the name and address of Borrower and other information that
will allow such Lender or the Administrative Agent, as applicable, to identify
Borrower in accordance with the Act.
Section
9.16
Judgment
Currency.
(a) Borrower’s
obligations hereunder to make payments in Yen (the “Obligation Currency”)
shall not be discharged or satisfied by any tender or recovery pursuant to any
judgment expressed in or converted into any currency other than the Obligation
Currency except to the extent that such tender or recovery results in the
effective receipt by Administrative Agent of the full amount of the Obligation
Currency expressed to be payable to Administrative Agent under this
Agreement. If, for the purpose of obtaining or enforcing judgment
against Borrower in any court or in any jurisdiction, it becomes necessary to
convert into or from any currency other than the Obligation Currency (such other
currency being hereafter referred to as the “Judgment Currency”)
an amount due in the Obligation Currency, the conversion shall be made at the
rate of exchange as quoted by Administrative Agent, and if Administrative Agent
50
does not
quote a rate of exchange on such currency then by a known dealer in such
currency designated by Administrative Agent, determined, in each case, as of the
Business Day immediately preceding the day on which the judgment is given (such
Business Day being hereinafter referred to as the “Judgment Currency Conversion
Date”).
(b) If there
is a change in the rate of exchange prevailing between the Judgment Currency
Conversion Date and the date of actual payment of the amount due, Borrower
covenants and agrees to pay, or cause to be paid, as a separate obligation and
notwithstanding any judgment, such additional amounts, if any (but in any event
not a lesser amount), as may be necessary to ensure that the amount paid in the
Judgment Currency, when converted at the rate of exchange prevailing on the date
of payment, will produce the amount of the Obligation Currency which could have
been purchased with the amount of Judgment Currency stipulated in the judgment
or judicial award at the rate of exchange prevailing on the Judgment Currency
Conversion Date.
[Signature
Pages to Follow]
51
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
|
ENTERPRISE PRODUCTS OPERATING
LLC
|
||||
|
By:
Enterprise Products OLPGP, Inc., its Manager
|
||||
|
|
By: /s/
Bryan F.
Bulawa
|
|||
|
Bryan
F. Bulawa
Vice
President and Treasurer
|
||||
|
MIZUHO CORPORATE BANK,
LTD.
|
||||
| as Administrative Agent and Lender | ||||
|
|
||||
|
|
By:
/s/ Leon
Mo
|
|||
|
Name:
Title:
|
Leon
Mo
Senior
Vice President
|
|||
Signature
Page to Term Loan Credit Agreement
SCHEDULE
2.01
TO
CREDIT AGREEMENT
|
Initial
Lenders
|
|
Lender
|
Commitment
|
Commitment
as a Percentage of Aggregate Commitments
|
|
Mizuho
Corporate Bank, Ltd.
|
¥20,726,000,716.00
|
100%
|
|
TOTAL
|
¥20,726,000,716.00
|
100%
|
EXHIBIT
10.2
GUARANTY
AGREEMENT
THIS
GUARANTY AGREEMENT, dated as of November 12, 2008 (as amended,
supplemented, or otherwise modified from time to time, this “Guaranty
Agreement”), by ENTERPRISE PRODUCTS PARTNERS L.P., a Delaware limited
partnership (the “Guarantor”),
is in favor of MIZUHO CORPORATE BANK, LTD., a Japanese banking corporation, as
administrative agent (the “Agent”)
for the several lenders (“Lenders”)
that are or become parties to the Credit Agreement defined below.
W I T N E
S S E T H:
WHEREAS,
ENTERPRISE PRODUCTS OPERATING LLC, a Texas limited liability company (the “Borrower”),
the Agent, and Lenders desire to enter into that certain ¥20,726,000,716.00 Term Loan Credit
Agreement of even date herewith (as the same may be amended, supplemented or
otherwise modified from time to time, the “Credit
Agreement”); and
WHEREAS,
one of the terms and conditions stated in the Credit Agreement for the making of
the loans described therein is the execution and delivery of this Guaranty
Agreement to the Agent for the benefit of the Lenders;
NOW,
THEREFORE, (i) in order to comply with the terms and conditions of the Credit
Agreement, (ii) to induce the Lenders, at any time or from time to time, to loan
monies, with or without security to or for the account of Borrower in accordance
with the terms of the Credit Agreement, (iii) at the special insistence and
request of the Lenders, and (iv) for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Guarantor hereby agrees
as follows:
ARTICLE
1
General
Terms
Section
1.1 Terms Defined
Above. As used
in this Guaranty Agreement, the terms “Agent”,
“Borrower”,
“Credit
Agreement”, “Guarantor”,
“Guaranty
Agreement”, and “Lenders”
shall have the meanings indicated above.
Section
1.2 Certain
Definitions. As used
in this Guaranty Agreement, the following terms shall have the following
meanings, unless the context otherwise requires:
“Guarantor
Claims” shall have the meaning indicated in Section
4.1 hereof.
“Liabilities”
shall mean (a) any and all Indebtedness of the Borrower pursuant to the Credit
Agreement including without limitation (i) the unpaid principal of and interest
on the Loans, including without limitation, interest accruing subsequent to the
filing of a petition or other action concerning bankruptcy or other similar
proceeding, and (ii) payment of any reimbursement obligations of the Borrower in
respect of any amount owed by the Borrower under the Credit Agreement, including
without limitation, fees and indemnity payments, and (b) all renewals,
rearrangements, increases, extensions for any period, amendments, supplements,
exchanges or reissuances in whole or in part of the
Indebtedness
of Borrower under the Credit Agreement, or any other documents or instruments
evidencing any of the above.
Section
1.3 Credit Agreement
Definitions. Unless
otherwise defined herein, all terms beginning with a capital letter which are
defined in the Credit Agreement shall have the same meanings herein as
therein.
ARTICLE
2
The
Guaranty
Section
2.1 Liabilities
Guaranteed.
Guarantor hereby irrevocably and unconditionally guarantees in favor of the
Agent for the benefit of the Lenders the prompt payment of the Liabilities when
due, whether at maturity or otherwise.
Section
2.2 Nature of
Guaranty. This
Guaranty Agreement is an absolute, irrevocable, completed and continuing
guaranty of payment and not a guaranty of collection, and no notice of the
Liabilities or any extension of credit already or hereafter contracted by or
extended to Borrower need be given to Guarantor. This Guaranty Agreement may not
be revoked by Guarantor and shall continue to be effective with respect to debt
under the Liabilities arising or created after any attempted revocation by
Guarantor and shall remain in full force and effect until the Liabilities are
paid in full and the Commitments are terminated, notwithstanding that from time
to time prior thereto no Liabilities may be outstanding. Borrower and the
Lenders may modify, alter, rearrange, extend for any period and/or renew from
time to time the Liabilities, and the Lenders may waive any Default or Events of
Default without notice to the Guarantor and in such event Guarantor will remain
fully bound hereunder on the Liabilities. This Guaranty Agreement shall continue
to be effective or be reinstated, as the case may be, if at any time any payment
of the Liabilities is rescinded or must otherwise be returned by any of the
Lenders upon the insolvency, bankruptcy or reorganization of Borrower or
otherwise, all as though such payment had not been made. This Guaranty Agreement
may be enforced by the Agent and any subsequent holder of any of the Liabilities
and shall not be discharged by the assignment or negotiation of all or part of
the Liabilities. Guarantor hereby expressly waives presentment, demand, notice
of non-payment, protest and notice of protest and dishonor, notice of Default or
Event of Default, notice of intent to accelerate the maturity and notice of
acceleration of the maturity and any other notice in connection with the
Liabilities, and also notice of acceptance of this Guaranty Agreement,
acceptance on the part of the Agent for the benefit of the Lenders being
conclusively presumed by the Lenders’ request for this Guaranty Agreement and
delivery of the same to the Agent.
Section
2.3 Agent’s
Rights.
Guarantor authorizes the Agent, without notice or demand and without affecting
Guarantor’s liability hereunder, to take and hold security for the payment of
this Guaranty Agreement and/or the Liabilities, and exchange, enforce, waive and
release any such security; and to apply such security and direct the order or
manner of sale thereof as the Agent in its discretion may determine; and to
obtain a guaranty of the Liabilities from any one or more Persons and at any
time or times to enforce, waive, rearrange, modify, limit or release any of such
other Persons from their obligations under such guaranties.
2
Section
2.4 Guarantor’s
Waivers.
(a) General. Guarantor
waives any right to require any of the Lenders to (i) proceed against Borrower
or any other person liable on the Liabilities, (ii) enforce any of their rights
against any other guarantor of the Liabilities, (iii) proceed or enforce any of
their rights against or exhaust any security given to secure the Liabilities,
(iv) have Borrower joined with Guarantor in any suit arising out of this
Guaranty Agreement and/or the Liabilities, or (v) pursue any other remedy in the
Lenders’ powers whatsoever. Except as provided in the Credit Agreement, the
Lenders shall not be required to mitigate damages or take any action to reduce,
collect or enforce the Liabilities, and the failure to so mitigate or take any
such action shall not release the Guarantor from this Guaranty Agreement.
Guarantor waives any defense arising by reason of any disability, lack of
partnership authority or power, or other defense of Borrower or any other
guarantor of the Liabilities, and shall remain liable hereon regardless of
whether Borrower or any other guarantor be found not liable thereon for any
reason. Whether and when to exercise any of the remedies of the Lenders under
the Credit Agreement shall be in the sole and absolute discretion of the Agent,
and no delay by the Agent in enforcing any remedy, including delay in conducting
a foreclosure sale, shall be a defense to the Guarantor’s liability under this
Guaranty Agreement. To the extent allowed by applicable law, the Guarantor
hereby waives any good faith duty on the part of the Agent in exercising any
remedies provided in the Credit Agreement.
(b) Subrogation. Until
the Liabilities have been paid in full, the Guarantor waives all rights of
subrogation or reimbursement against the Borrower, whether arising by contract
or operation of law (including, without limitation, any such right arising under
any federal or state bankruptcy or insolvency laws) and waives any right to
enforce any remedy which the Lenders now have or may hereafter have against the
Borrower, and waives any benefit or any right to participate in any security now
or hereafter held by the Agent or any Lender.
Section
2.5 Maturity of Liabilities;
Payment.
Guarantor agrees that if the maturity of any of the Liabilities is accelerated
by bankruptcy or otherwise, such maturity shall also be deemed accelerated for
the purpose of this Guaranty Agreement without demand or notice to Guarantor.
Guarantor will, forthwith upon notice from the Agent, pay to the Agent the
amount due and unpaid by Borrower and guaranteed hereby. The failure of the
Agent to give this notice shall not in any way release Guarantor
hereunder.
Section
2.6 Agent’s
Expenses. If
Guarantor fails to pay the Liabilities after notice from the Agent of Borrower’s
failure to pay any Liabilities at maturity, and if the Agent obtains the
services of an attorney for collection of amounts owing by Guarantor hereunder,
or obtaining advice of counsel in respect of any of its rights under this
Guaranty Agreement, or if suit is filed to enforce this Guaranty Agreement, or
if proceedings are had in any bankruptcy, receivership or other judicial
proceedings for the establishment or collection of any amount owing by Guarantor
hereunder, or if any amount owing by Guarantor hereunder is collected through
such proceedings, Guarantor agrees to pay to the Agent the Agent’s reasonable
attorneys’ fees.
3
Section
2.7 Liability. It is
expressly agreed that the liability of the Guarantor for the payment of the
Liabilities guaranteed hereby shall be primary and not secondary.
Section
2.8 Events and Circumstances Not
Reducing or Discharging Guarantor’s Obligations.
Guarantor hereby consents and agrees to each of the following to the fullest
extent permitted by law, and agrees that Guarantor’s obligations under this
Guaranty Agreement shall not be released, diminished, impaired, reduced or
adversely affected by any of the following, and waives any rights (including
without limitation rights to notice) which Guarantor might otherwise have as a
result of or in connection with any of the following:
(a) Modifications, etc.
Any renewal, extension, modification, increase, decrease, alteration,
rearrangement, exchange or reissuance of all or any part of the Liabilities, or
the Credit Agreement, or any instrument executed in connection therewith, or any
contract or understanding between Borrower and any of the Lenders, or any other
Person, pertaining to the Liabilities;
(b) Adjustment, etc. Any
adjustment, indulgence, forbearance or compromise that might be granted or given
by any of the Lenders to Borrower or Guarantor or any Person liable on the
Liabilities;
(c) Condition of Borrower or
Guarantor. The insolvency, bankruptcy arrangement, adjustment,
composition, liquidation, disability, dissolution, death or lack of power of
Borrower or Guarantor or any other Person at any time liable for the payment of
all or part of the Liabilities; or any dissolution of Borrower or Guarantor, or
any sale, lease or transfer of any or all of the assets of Borrower or
Guarantor, or any changes in the shareholders, partners, or members of Borrower
or Guarantor; or any reorganization of Borrower or Guarantor;
(d) Invalidity of
Liabilities. The invalidity, illegality or unenforceability of all or any
part of the Liabilities, or any document or agreement executed in connection
with the Liabilities, for any reason whatsoever, including without limitation
the fact that the Liabilities, or any part thereof, exceed the amount permitted
by law, the act of creating the Liabilities or any part thereof is ultra vires, the officers
or representatives executing the documents or otherwise creating the Liabilities
acted in excess of their authority, the Liabilities violate applicable usury
laws, the Borrower has valid defenses, claims or offsets (whether at law, in
equity or by agreement) which render the Liabilities wholly or partially
uncollectible from Borrower, the creation, performance or repayment of the
Liabilities (or the execution, delivery and performance of any document or
instrument representing part of the Liabilities or executed in connection with
the Liabilities, or given to secure the repayment of the Liabilities) is
illegal, uncollectible, legally impossible or unenforceable, or the Credit
Agreement or other documents or instruments pertaining to the Liabilities have
been forged or otherwise are irregular or not genuine or authentic;
(e) Release of Obligors.
Any full or partial release of the liability of Borrower on the Liabilities or
any part thereof, of any co-guarantors, or any other Person now or hereafter
liable, whether directly or indirectly, jointly, severally, or jointly and
severally, to pay, perform, guarantee or assure the payment of the Liabilities
or any part thereof, it
4
being
recognized, acknowledged and agreed by Guarantor that Guarantor may be required
to pay the Liabilities in full without assistance or support of any other
Person, and Guarantor has not been induced to enter into this Guaranty
Agreement on the basis of a contemplation, belief, understanding or agreement
that other parties other than the Borrower will be liable to perform the
Liabilities, or the Lenders will look to other parties to perform the
Liabilities;
(f) Other Security. The
taking or accepting of any other security, collateral or guaranty, or other
assurance of payment, for all or any part of the Liabilities;
(g) Release of Collateral,
etc. Any release, surrender, exchange, subordination, deterioration,
waste, loss or impairment (including without limitation negligent, willful,
unreasonable or unjustifiable impairment) of any collateral, property or
security, at any time existing in connection with, or assuring or securing
payment of, all or any part of the Liabilities;
(h) Care and Diligence.
The failure of the Lenders or any other Person to exercise diligence or
reasonable care in the preservation, protection, enforcement, sale or other
handling or treatment of all or any part of such collateral, property or
security;
(i) Status of Liens. The
fact that any collateral, security, security interest or lien contemplated or
intended to be given, created or granted as security for the repayment of the
Liabilities shall not be properly perfected or created, or shall prove to be
unenforceable or subordinate to any other security interest or lien, it being
recognized and agreed by Guarantor that Guarantor is not entering into this
Guaranty Agreement in reliance on, or in contemplation of the benefits of, the
validity, enforceability, collectability or value of any collateral for the
Liabilities;
(j) Payments Rescinded.
Any payment by Borrower to the Lenders is held to constitute a preference under
the bankruptcy laws, or for any reason the Lenders are required to refund such
payment or pay such amount to Borrower or someone else; or
(k) Other Actions Taken or
Omitted. Any other action taken or omitted to be taken with respect to
the Credit Agreement, the Liabilities, or any security and collateral therefor,
whether or not such action or omission prejudices Guarantor or increases the
likelihood that Guarantor will be required to pay the Liabilities pursuant to
the terms hereof; it being the unambiguous and unequivocal intention of
Guarantor that Guarantor shall be obligated to pay the Liabilities when due,
notwithstanding any occurrence, circumstance, event, action, or omission
whatsoever, whether contemplated or uncontemplated, and whether or not otherwise
or particularly described herein, except for the full and final payment and
satisfaction of the Liabilities.
ARTICLE
3
Representations and
Warranties
5
Section
3.1 By
Guarantor. In
order to induce the Lenders to accept this Guaranty Agreement, Guarantor
represents and warrants to the Lenders (which representations and warranties
will survive the creation of the Liabilities and any extension of credit
thereunder) that:
(a) Benefit to Guarantor.
Guarantor’s guaranty pursuant to this Guaranty Agreement reasonably may be
expected to benefit, directly or indirectly, Guarantor.
(b) Existence. Guarantor
is a limited partnership duly organized and legally existing under the laws of
the State of Delaware and is duly qualified in all jurisdictions wherein the
property owned or the business transacted by it makes such qualification
necessary, except where the failure to be so qualified could reasonably be
expected to have a Material Adverse Effect.
(c) Power and
Authorization. Guarantor is duly authorized and empowered to execute,
deliver and perform this Guaranty Agreement, and all action on Guarantor’s part
requisite for the due execution, delivery and performance of this Guaranty
Agreement has been duly and effectively taken.
(d) Binding Obligations.
This Guaranty Agreement constitutes a valid and binding obligation of Guarantor,
enforceable in accordance with its terms (except that enforcement may be subject
to any applicable bankruptcy, insolvency or similar laws generally affecting the
enforcement of creditors’ rights).
(e) No Legal Bar. This
Guaranty Agreement will not violate any provisions of Guarantor’s limited
partnership agreement or any contract, agreement, law, regulation, order,
injunction, judgment, decree or writ to which Guarantor is subject.
(f) No Consent.
Guarantor’s execution, delivery and performance of this Guaranty Agreement does
not require the consent or approval of any other Person, including, without
limitation, any regulatory authority or governmental body of the United States
or any state thereof or any political subdivision of the United States or any
state thereof.
(g) Solvency. The
Guarantor hereby represents that (i) it is not insolvent as of the date hereof
and will not be rendered insolvent as a result of this Guaranty Agreement, (ii)
it is not engaged in business or a transaction, or about to engage in a business
or a transaction, for which any property or assets remaining with such Guarantor
is unreasonably small capital, and (iii) it does not intend to incur, or believe
it will incur, debts that will be beyond its ability to pay as such debts
mature.
Section
3.2 No Representation by
Lenders. Neither
the Lenders nor any other Person has made any representation, warranty or
statement to the Guarantor in order to induce the Guarantor to execute this
Guaranty Agreement.
ARTICLE
4
Subordination of
Indebtedness
6
Section
4.1 Subordination of All
Guarantor Claims. As used
herein, the term “Guarantor
Claims” shall mean all debts and liabilities of Borrower to Guarantor,
whether such debts and liabilities now exist or are hereafter incurred or arise,
or whether the obligation of Borrower thereon be direct, contingent, primary,
secondary, several, joint and several, or otherwise, and irrespective of whether
such debts or liabilities be evidenced by note, contract, open account, or
otherwise, and irrespective of the person or persons in whose favor such debts
or liabilities may, at their inception, have been, or may hereafter be created,
or the manner in which they have been or may hereafter be acquired by Guarantor.
The Guarantor Claims shall include without limitation all rights and claims of
Guarantor against Borrower arising as a result of subrogation or otherwise as a
result of Guarantor’s payment of all or a portion of the Liabilities. Until the
Liabilities shall be paid and satisfied in full and Guarantor shall have
performed all of its obligations hereunder, Guarantor shall not receive or
collect, directly or indirectly, from Borrower or any other party any amount
upon the Guarantor Claims if an Event of Default exists at the time of such
receipt or collection.
Section
4.2 Claims in
Bankruptcy. In the
event of receivership, bankruptcy, reorganization, arrangement, debtor’s relief,
or other insolvency proceedings involving Borrower as debtor, the Lenders shall
have the right to prove their claim in any proceeding, so as to establish its
rights hereunder and receive directly from the receiver, trustee or other court
custodian, dividends and payments which would otherwise be payable upon
Guarantor Claims up to the amount of the Liabilities. Guarantor hereby assigns
such dividends and payments to the Lenders up to the amount of the Liabilities.
Should the Agent or any Lender receive, for application upon the Liabilities,
any such dividend or payment which is otherwise payable to Guarantor, and which,
as between Borrower and Guarantor, shall constitute a credit upon the Guarantor
Claims, then upon payment in full of the Liabilities, Guarantor shall become
subrogated to the rights of the Lenders to the extent that such payments to the
Lenders on the Guarantor Claims have contributed toward the liquidation of the
Liabilities, and such subrogation shall be with respect to that proportion of
the Liabilities which would have been unpaid if the Agent or a Lender had not
received dividends or payments upon the Guarantor Claims.
Section
4.3 Payments Held in
Trust. In the
event that notwithstanding Sections
4.1 and 4.2 above,
Guarantor should receive any funds, payments, claims or distributions which is
prohibited by such Sections, Guarantor agrees to hold in trust for the Lenders
an amount equal to the amount of all funds, payments, claims or distributions so
received, and agrees that it shall have absolutely no dominion over the amount
of such funds, payments, claims or distributions except to pay them promptly to
the Agent, and Guarantor covenants promptly to pay the same to the
Agent.
Section
4.4 Liens
Subordinate.
Guarantor agrees that any liens, security interests, judgment liens, charges or
other encumbrances upon Borrower’s assets securing payment of the Guarantor
Claims shall be and remain inferior and subordinate to any liens, security
interests, judgment liens, charges or other encumbrances upon Borrower’s assets
securing payment of the Liabilities, regardless of whether such encumbrances in
favor of Guarantor, the Agent or the Lenders presently exist or are hereafter
created or attach. Without the prior written consent of the Lenders, Guarantor
shall not (a) exercise or enforce any creditor’s right it may have against the
Borrower, or (b) foreclose, repossess, sequester or otherwise take steps or
institute any action or
7
proceeding
(judicial or otherwise, including without limitation the commencement of or
joinder in any liquidation, bankruptcy, rearrangement, debtor’s relief or
insolvency proceeding) to enforce any lien, mortgages, deeds of trust, security
interest, collateral rights, judgments or other encumbrances on assets of
Borrower held by Guarantor.
Section
4.5 Notation of
Records. All
promissory notes of the Borrower accepted by or held by Guarantor shall contain
a specific written notice thereon that the indebtedness evidenced thereby is
subordinated under the terms of this Guaranty Agreement.
ARTICLE
5
Miscellaneous
Section
5.1 Successors and
Assigns. This
Guaranty Agreement is and shall be in every particular available to the
respective successors and assigns of the Agent and the Lenders and is and shall
always be fully binding upon the legal representatives, heirs, successors and
assigns of Guarantor, notwithstanding that some or all of the monies, the
repayment of which is guaranteed by this Guaranty Agreement, may be actually
advanced after any bankruptcy, receivership, reorganization, death, disability
or other event affecting Guarantor.
Section
5.2 Notices. Any
notice or demand to Guarantor under or in connection with this Guaranty
Agreement may be given and shall conclusively be deemed and considered to have
been given and received in accordance with Section 9.01 of the Credit Agreement,
addressed to Guarantor at the address on the signature page hereof or at such
other address provided by the Guarantor to the Agent in writing.
Section
5.3 Construction. This
Guaranty Agreement is a contract made under and shall be construed in accordance
with and governed by the laws of the State of New York.
Section
5.4 Invalidity. In the
event that any one or more of the provisions contained in this Guaranty
Agreement shall, for any reason, be held invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Guaranty Agreement.
Section
5.5 Liability of General
Partner. It is
hereby understood and agreed that Enterprise Products GP, LLC, the general
partner of the Guarantor, shall have no personal liability, as general partner
or otherwise, for the payment of the Liabilities or any amount owing or to be
owing hereunder.
Section
5.6 ENTIRE
AGREEMENT. This
written Guaranty Agreement embodies the entire agreement and understanding
between the Agent, the Lenders and the Guarantor and supersedes all other
agreements and understandings between such parties relating to the subject
matter hereof and thereof. This written Guaranty Agreement represents the final
agreement between the parties and may not be contradicted by evidence of prior,
contemporaneous, or subsequent oral agreements of the parties. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
8
Section
5.7 Submission to
Jurisdiction. The
Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the Supreme Court of the State of
New York sitting in New York County and of the United States District Court of
the Southern District of New York, and any appellate court from any thereof, in
any action or proceeding arising out of or relating to this Guaranty Agreement,
or for recognition or enforcement of any judgment, and the Guarantor hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State or, to
the extent permitted by law, in such Federal court. The Guarantor agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Guaranty Agreement shall affect any right that
the Agent may otherwise have to bring any action or proceeding relating to this
Guaranty Agreement against the Guarantor or its properties in the courts of any
jurisdiction. The Guarantor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Guaranty Agreement in any court
referred to above. The Guarantor hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court. The Guarantor irrevocably
consents to service of process in the manner provided for notices in Section
5.2 above. Nothing in this Guaranty Agreement will affect the right of
Agent or any Lender to serve process in any other manner permitted by
law.
Section
5.8 WAIVER OF JURY
TRIAL. THE
GUARANTOR HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). THE GUARANTOR (A) CERTIFIES THAT NO REPRESENTATIVE OR ATTORNEY OF
AGENT, ANY LENDER OR ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND AGENT, BY ITS ACCEPTANCE
HEREOF, HAVE BEEN INDUCED TO ENTER INTO OR ACCEPT THIS GUARANTY AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
[Signature Page
Follows.]
9
WITNESS
THE EXECUTION HEREOF, as of the date first above written.
ENTERPRISE PRODUCTS PARTNERS
L.P.,
a
Delaware limited partnership
By: Enterprise
Products GP, LLC,
its General Partner
By: /s/ Bryan F.
Bulawa
Bryan F. Bulawa
Vice President and
Treasurer
1100
Louisiana Street, 10th Floor
Houston,
Texas 77002
Signature
Page to Guaranty Agreement
EXHIBIT
10.3
364-DAY
REVOLVING CREDIT AGREEMENT
dated as
of
November
17, 2008
among
ENTERPRISE
PRODUCTS OPERATING LLC
The
Lenders Party Hereto
THE ROYAL
BANK OF SCOTLAND plc,
as
Administrative Agent, and
BARCLAYS
BANK PLC, THE BANK OF NOVA SCOTIA, DNB NOR BANK ASA
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as
Co-Arrangers
$375,000,000
364-Day Senior Unsecured Revolving Credit Facility
TABLE OF
CONTENTS
|
ARTICLE
I Definitions
|
1
|
|
|
SECTION
1.01. Defined Terms
|
1
|
|
|
SECTION
1.02. Classification of Loans and Borrowings
|
17
|
|
|
SECTION
1.03. Terms Generally
|
17
|
|
|
SECTION
1.04. Accounting Terms; GAAP
|
17
|
|
|
ARTICLE
II The Credits
|
18
|
|
|
SECTION
2.01. Commitments
|
18
|
|
|
SECTION
2.02. Loans and Borrowings
|
18
|
|
|
SECTION
2.03. Requests for Borrowings
|
19
|
|
|
SECTION
2.04. Reserved
|
19
|
|
|
SECTION
2.05. Reserved
|
19
|
|
|
SECTION
2.06. Reserved
|
19
|
|
|
SECTION
2.07. Funding of Borrowings
|
19
|
|
|
SECTION
2.08. Interest Elections
|
20
|
|
|
SECTION
2.09. Termination and Reduction of Commitments
|
21
|
|
|
SECTION
2.10. Mandatory Prepayment and Repayment of Loans; Evidence of
Debt
|
22
|
|
|
SECTION
2.11. Optional Prepayment of Loans
|
22
|
|
|
SECTION
2.12. Fees
|
23
|
|
|
SECTION
2.13. Interest
|
23
|
|
|
SECTION
2.14. Alternate Rate of Interest
|
24
|
|
|
SECTION
2.15. Illegality; Increased Costs
|
25
|
|
|
SECTION
2.16. Break Funding Payments
|
26
|
|
|
SECTION
2.17. Taxes
|
26
|
|
|
SECTION
2.18. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs
|
28
|
|
|
SECTION
2.19. Mitigation Obligations; Replacement of
Lenders
|
29
|
|
|
SECTION
2.20. Separateness
|
30
|
|
|
ARTICLE
III Representations and Warranties
|
30
|
|
|
SECTION
3.01. Organization; Powers
|
30
|
|
|
SECTION
3.02. Authorization; Enforceability
|
30
|
|
|
SECTION
3.03. Governmental Approvals; No Conflicts
|
31
|
|
|
SECTION
3.04. Financial Condition; No Material Adverse
Change
|
31
|
|
|
SECTION
3.05. Litigation and Environmental Matters
|
31
|
|
|
SECTION
3.06. Compliance with Laws
|
32
|
|
|
SECTION
3.07. Investment Company Status
|
32
|
|
|
SECTION
3.08. Taxes
|
32
|
|
|
SECTION
3.09. ERISA
|
32
|
|
|
SECTION
3.10. Disclosure
|
32
|
|
|
SECTION
3.11. Subsidiaries
|
32
|
|
|
SECTION
3.12. Margin Securities
|
32
|
|
|
ARTICLE
IV Conditions
|
33
|
|
|
SECTION
4.01. Effective Date
|
33
|
|
|
SECTION
4.02. Each Credit Event
|
34
|
i
|
ARTICLE
V Affirmative Covenants
|
34
|
|
|
SECTION
5.01. Financial Statements and Other
Information
|
34
|
|
|
SECTION
5.02. Notices of Material Events
|
35
|
|
|
SECTION
5.03. Existence; Conduct of Business
|
36
|
|
|
SECTION
5.04. Maintenance of Properties; Insurance
|
36
|
|
|
SECTION
5.05. Books and Records; Inspection Rights
|
36
|
|
|
SECTION
5.06. Compliance with Laws
|
36
|
|
|
SECTION
5.07. Use of Proceeds
|
36
|
|
|
SECTION
5.08. Environmental Matters
|
36
|
|
|
SECTION
5.09. ERISA Information
|
37
|
|
|
SECTION
5.10. Taxes
|
37
|
|
|
ARTICLE
VI Negative Covenants
|
37
|
|
|
SECTION
6.01. Indebtedness
|
37
|
|
|
SECTION
6.02. Liens
|
38
|
|
|
SECTION
6.03. Fundamental Changes
|
39
|
|
|
SECTION
6.04. Investment Restriction
|
39
|
|
|
SECTION
6.05. Restricted Payments
|
39
|
|
|
SECTION
6.06. Restrictive Agreements
|
39
|
|
|
SECTION
6.07. Financial Condition Covenants
|
40
|
|
|
ARTICLE
VII Events of Default
|
41
|
|
|
ARTICLE
VIII The Administrative Agent
|
44
|
|
|
ARTICLE
IX Miscellaneous
|
46
|
|
|
SECTION
9.01. Notices
|
46
|
|
|
SECTION
9.02. Waivers; Amendments
|
48
|
|
|
SECTION
9.03. Expenses; Indemnity; Damage Waiver
|
48
|
|
|
SECTION
9.04. Successors and Assigns
|
49
|
|
|
SECTION
9.05. Survival
|
51
|
|
|
SECTION
9.06. Counterparts; Integration; Effectiveness
|
52
|
|
|
SECTION
9.07. Severability
|
52
|
|
|
SECTION
9.08. Right of Setoff
|
52
|
|
|
SECTION
9.09. Governing Law; Jurisdiction; Consent to Service of
Process
|
52
|
|
|
SECTION
9.10. Waiver of Jury Trial
|
53
|
|
|
SECTION
9.11. Headings
|
53
|
|
|
SECTION
9.12. Confidentiality
|
53
|
|
|
SECTION
9.13. Interest Rate Limitation
|
54
|
|
|
SECTION
9.14. Liability of Manager
|
54
|
|
|
SECTION
9.15. USA Patriot Act Notice
|
54
|
ii
SCHEDULES:
Schedule
2.01 -- Commitments
Schedule
3.05 -- Disclosed Matters
Schedule
3.11 -- Subsidiaries
Schedule
6.01 -- Existing Indebtedness
Schedule
6.06 -- Existing Restrictions
EXHIBITS:
Exhibit A
- -- Form of Assignment and Acceptance
Exhibit B
- -- Form of Borrowing Request
Exhibit C
- -- Reserved
Exhibit D
- -- Form of Interest Election Request
Exhibit
E-1 -- Form of Opinion of Richard Bachmann,
in-house counsel for Borrower and
EPD
Exhibit
E-2 -- Form of Opinion of Bracewell & Giuliani LLP,
Borrower’s and EPD’s
Counsel
Exhibit F
- -- Form of Compliance Certificate
Exhibit G
- -- Form of Note
iii
364-DAY
REVOLVING CREDIT AGREEMENT dated as of November 17, 2008, among ENTERPRISE
PRODUCTS OPERATING LLC, a Texas limited liability company; the LENDERS party
hereto; THE ROYAL BANK OF SCOTLAND plc, as Administrative Agent; and BARCLAYS
BANK PLC, THE BANK OF NOVA SCOTIA, DNB NOR BANK ASA and WACHOVIA BANK, NATIONAL
ASSOCIATION, as Co-Arrangers.
W I T N E
S S E T H
In
consideration of the mutual covenants and agreements contained herein and in
consideration of the Loans which may hereafter be made by Lenders to Borrower
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION
1.01. Defined
Terms. As used in this Agreement, the following terms have the
meanings specified below:
“ABR”, when used in
reference to any Loan or Borrowing, refers to a Loan, or Loans, in the case of a
Borrowing, which bear interest at a rate determined by reference to the
Alternate Base Rate.
“Administrative Agent”
means The Royal Bank of Scotland plc, in its capacity as administrative agent
for the Lenders hereunder.
“Administrative
Questionnaire” means an Administrative Questionnaire in a form supplied
by the Administrative Agent.
“Affiliate” means,
with respect to a specified Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified.
“Agreement” means this
364-Day Revolving Credit Agreement dated November 17, 2008, among Enterprise
Products Operating LLC, a Texas limited liability company; the Lenders party
hereto; and The Royal Bank of Scotland plc, as Administrative Agent; as amended,
extended or otherwise modified from time to time.
“Alternate Base Rate”
means, for any day, a rate per annum equal to the greatest of the then
determinable of (a) the Prime Rate in effect on such day, (b) the
Federal Funds Effective Rate in effect on such day plus ½ of 1% and (c) the
LIBOR Market Index Rate in effect on such day plus 1%. Any change in
the Alternate Base Rate due to a change in the Prime Rate or the
Federal
Funds Effective Rate shall be effective from and including the effective date of
such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
“Applicable
Percentage” means, with respect to any Lender, the percentage of the
total Commitments represented by such Lender’s Commitment. If the
Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
1
“Applicable Rate”
means, for any day, with respect to any Eurodollar Loan, ABR Loan, or with
respect to the commitment fees payable hereunder, as the case may be, the
applicable rate per annum for such day set forth below under the caption
“Eurodollar Spread”, “ABR Spread” or “Commitment Fee Rate”, as the case may
be:
|
Period
|
Eurodollar Spread
|
ABR Spread
|
Commitment
Fee Rate
|
|
Effective
Date through and including March 31, 2009
|
2.50%
|
1.75%
|
0.375%
|
|
April
1, 2009 through and including June 30, 2009
|
2.75%
|
2.00%
|
0.500%
|
|
July
1, 2009 and thereafter
|
3.00%
|
2.25%
|
0.625%
|
“Assignment and
Acceptance” means an assignment and acceptance entered into by a Lender
and an assignee (with the consent of any party whose consent is required by
Section 9.04), and accepted by the Administrative Agent, substantially in
the form of Exhibit A or any other form approved by the Administrative
Agent.
“Attributable
Indebtedness” 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.
“Availability Period”
means the period from and including the Effective Date to but excluding the
earlier of the Maturity Date and the date of termination of the
Commitments.
“Board” means the
Board of Governors of the Federal Reserve System of the United States of
America.
“Borrower” means
Enterprise Products Operating LLC, a Texas limited liability
company.
“Borrowing” means
Loans of the same Type, made, converted or continued on the same date and, in
the case of Eurodollar Loans, as to which a single Interest Period is in
effect.
“Borrowing Request”
means a request by the Borrower for a Borrowing in accordance with Section 2.03,
and being in the form of attached Exhibit B.
2
“Business Day” means
any day that is not a Saturday, Sunday or other day on which commercial banks in
New York City are authorized or required by law to remain closed; provided that, when used in
connection with a Eurodollar Loan, the term “Business Day” shall
also exclude any day on which banks are not open for dealings in dollar deposits
in the London interbank market.
“Capital Lease
Obligations” of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the
right to use) real or personal property, or a combination thereof, which
obligations are required to be classified and accounted for as capital leases on
a balance sheet of such Person under GAAP, and the amount of such obligations
shall be the capitalized amount thereof determined in accordance with
GAAP.
“CERCLA” means the
Comprehensive Environmental, Response, Compensation, and Liability Act of 1980,
as amended.
“Change in Control”
means the occurrence of any of the following events:
(i) Continuing
Directors cease for any reason to constitute collectively a majority of the
members of the board of directors of Manager or GP LLC then in
office;
(ii) any
Person or related Persons constituting a group (as such term is used in Rule
13d-5 under the Securities Exchange Act of 1934, as amended) obtains direct or
indirect beneficial ownership interest in the Manager or GP LLC greater than the
direct or indirect beneficial ownership interests of EPCO and its Affiliates in
the Manager or GP LLC; or
(iii) Manager
and EPD shall cease to own, directly or indirectly, all of the Equity Interests
(including all securities which are convertible into Equity Interests) of
Borrower.
As used
herein, “Continuing
Director” means any member of the board of directors of Manager or GP
LLC, respectively, who (x) is a member of such board of directors as of the date
hereof or is specified in EPD’s filings with the SEC filings prior to the date
hereof as a Person who is to become a member of such board as of the Effective
Date, or (y) was nominated for election or elected to such board of directors
with the approval of a majority of the Continuing Directors who were members of
such board at the time of such nomination or election.
“Change in Law” means
(a) the adoption of any law, rule or regulation after the date of this
Agreement, (b) any change in any law, rule or regulation or in the
interpretation or application thereof by any Governmental Authority after the
date of this Agreement or (c) compliance
by any Lender (or, for purposes of Section 2.15(b), by any lending office of
such Lender or by such Lender’s holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this
Agreement.
“Code” means the
Internal Revenue Code of 1986, as amended from time to time.
3
“Commercial Operation
Date” means the date on which a Material Project is substantially
complete and commercially operable.
“Commitment” means,
with respect to each Lender, the commitment of such Lender to make Loans
hereunder, expressed as an amount representing the maximum aggregate amount of
such Lender’s Exposure hereunder, as such commitment may be (a) reduced from
time to time pursuant to Section 2.09 and (b) reduced or increased from time to
time pursuant to Section 2.01 or assignments by or to such Lender pursuant to
Section 9.04. The initial amount of each Lender’s Commitment is set
forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which
such Lender shall have assumed its Commitment, as applicable. The
initial aggregate amount of the Lenders’ Commitments is
$375,000,000.
“Common Units” means
the common units of limited partner interests in EPD.
“Company Agreement”
means the Company Agreement of the Borrower dated as of June 30, 2007 between
Manager and EPD, as members, substantially in the form provided to the Lenders,
as such Company Agreement may be amended, modified and supplemented from time to
time.
“Consolidated EBITDA”
means for any period, the sum of (a) the consolidated net income of the Borrower
and its consolidated Subsidiaries (excluding Project Finance Subsidiaries) for
such period plus, to the extent deducted in determining consolidated net income
for such period, the aggregate amount of (i) Consolidated Interest Expense, (ii)
income or gross receipts tax (or franchise tax or margin tax in the nature of an
income or gross receipts tax) expense and (iii) depreciation and amortization
expense, minus
(b) equity in earnings from unconsolidated subsidiaries of the Borrower to the
extent included therein, plus (c) the amount
of cash dividends or distributions payable with respect to such period by a
Project Finance Subsidiary, DEP or an unconsolidated subsidiary which are
actually received by the Borrower or a Subsidiary (other than a Project Finance
Subsidiary) during such period or on or prior to the date the financial
statements with respect to such period referred to in Section 5.01 are required
to be delivered by the Borrower, plus (d) the amount of all payments during such
period on leases of the type referred to in clause (d) of the definition herein
of Indebtedness and the amount of all payments during such period under other
off-balance sheet loans and financings of the type referred to in such clause
(d), minus (e)
the amount of any cash dividends, repayments of loans or advances, releases or
discharges of guarantees or other obligations or other transfers of property or
returns of capital previously received by the Borrower or a Subsidiary (other
than a Project Finance Subsidiary) from a Project Finance Subsidiary that during
such period were either (x) recovered pursuant to recourse provisions with
respect to a Project Financing at such Project Finance Subsidiary or (y)
reinvested by the Borrower or a Subsidiary in such Project Finance
Subsidiary.
“Consolidated
Indebtedness” means the Indebtedness of the Borrower and its consolidated
Subsidiaries (excluding Project Finance Subsidiaries) including, without
duplication, guaranties of funded debt, determined on a consolidated basis as of
such date.
“Consolidated Interest
Expense” means for any period, the interest expense of the Borrower and
its consolidated Subsidiaries (excluding Project Finance Subsidiaries),
determined on a consolidated basis for such period.
4
“Consolidated Net Tangible
Assets” means, at any date of determination, the total amount of assets
of EPD and its consolidated subsidiaries after deducting therefrom:
(a) 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
(b) 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 EPD and its
consolidated subsidiaries for EPD’s most recently completed fiscal quarter,
prepared in accordance with GAAP.
“Consolidated Net
Worth” means as to any Person, at any date of determination, the sum of
(i) preferred stock (if any), (ii) an amount equal to (a) the face amount of
outstanding Hybrid Securities not in excess of 15% of Consolidated Total
Capitalization times (b) sixty-two
and one-half percent (62.5%), (iii) par value of common stock, (iv) capital in
excess of par value of common stock, (v) limited liability company capital or
equity, and (vi) retained earnings, less treasury stock (if any), of such
Person, all as determined on a consolidated basis.
“Consolidated Total
Capitalization” means the sum of (i) Consolidated Indebtedness and (ii)
Borrower’s Consolidated Net Worth.
“Control” means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability
to exercise voting power, by contract or otherwise. “Controlling” and
“Controlled”
have meanings correlative thereto.
“Debt Coverage Ratio”
means the ratio of Consolidated Indebtedness to Consolidated
EBITDA.
“Default” means any
event or condition which constitutes an Event of Default or which upon notice,
lapse of time or both would, unless cured or waived, become an Event of
Default.
“DEP” means Duncan
Energy Partners L.P., a Delaware limited partnership.
“Disclosed Matters”
means the actions, suits and proceedings and the environmental matters disclosed
in Schedule 3.05.
“dollars” or “$” refers to lawful
money of the United States of America.
“Effective Date” means
the date on or prior to November 20, 2008, as specified in the notice referred
to in the last sentence of Section 4.01.
“Environmental Laws”
means all laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by any Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural resources, the management,
release or threatened release of any Hazardous Material or to health and safety
matters.
5
“Environmental
Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or
indemnities), of the Borrower or any Subsidiary directly or indirectly resulting
from or based upon (a) violation of any Environmental Law, (b) the
generation, use, handling, transportation, storage, treatment or disposal of any
Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
release or threatened release of any Hazardous Materials into the environment or
(e) any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the
foregoing.
“EPCO” means EPCO,
Inc., a Texas corporation.
“EPD” means Enterprise
Products Partners L.P., a Delaware limited partnership, or any other Person that
is the “Guarantor” as defined in the March 15, 2000 Indenture or any replacement
indenture.
“EPD Guaranty
Agreement” means an agreement executed by EPD in form and substance
satisfactory to the Administrative Agent guaranteeing, unconditionally, payment
of any principal of or interest on the Loans, or any other amount payable under
this Agreement, when and as the same shall become due and payable.
“Equity Interest”
means shares of the capital stock, partnership interests, membership interests
in a limited liability company, beneficial interests in a trust or other equity
interests in any Person, or any warrants, options or other rights to acquire
such interests.
“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended from time to
time.
“ERISA Affiliate”
means any trade or business (whether or not incorporated) that, together with
the Borrower is treated as a single employer under Section 414(b) or (c) of
the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the
Code, is treated as a single employer under Section 414 of the
Code.
“ERISA Event” means
(a) any “reportable event”, as defined in Section 4043 of ERISA or the
regulations issued thereunder with respect to a Plan (other than an event for
which the 30-day notice period is waived); (b) the failure by a Plan to
satisfy the minimum funding standard under Section 412 of the Code or
Section 302 of ERISA, whether or not waived; (c) the filing pursuant
to Section 412(d) of the Code (Section 412(c) of the Code for Plan years
beginning after December 31, 2007) or Section 303(d) of ERISA (Section
302(c) of ERISA for Plan years beginning after December 31, 2007) of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates
of any liability under Title IV of ERISA with respect to the termination of
any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the
PBGC or a plan administrator of any notice relating to an intention to terminate
any Plan or Plans or to appoint a trustee to administer any Plan; (f) the
incurrence by the Borrower or any of its ERISA Affiliates of any liability with
respect to the withdrawal or partial withdrawal from any Plan or Multiemployer
Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any
notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA
Affiliate of any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA.
6
“Eurocurrency
Liabilities” has the meaning assigned to that term in Regulation D
of the Board, as in effect from time to time.
“Eurodollar”, when
used in reference to any Loan or Borrowing, refers to a Loan, or Loans, in the
case of a Borrowing, which bear interest at a rate determined by reference to
the LIBO Rate.
“Eurodollar Rate Reserve
Percentage” of any Lender for any Interest Period for each Eurodollar
Borrowing means the reserve percentage applicable during such Interest Period
(or if more than one such percentage shall be so applicable, the daily average
of such percentages for those days in such Interest Period during which any such
percentage shall be so applicable) under regulations issued from time to time by
the Board for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve requirement)
for such Lender with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities having a term equal to such Interest
Period.
“Event of Default” has
the meaning assigned to such term in Article VII.
“Excluded Taxes”
means, with respect to the Administrative Agent, any Lender, or any other
recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) income or franchise taxes imposed on (or measured by)
its net income by the United States of America, by any state thereof
or the District of Columbia or by the jurisdiction under the laws of which such
recipient is organized or in which its principal office is located or, in the
case of any Lender, in which its applicable lending office is located, (b) any
branch profits taxes imposed by the United States of America, any state thereof
or the District of Columbia or any similar tax imposed by any other jurisdiction
in which the Administrative Agent, such Lender or such other recipient is
located and (c) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Borrower under Section 2.19(b)), any withholding tax that is
imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement (or designates a new lending office) or
is attributable to such Foreign Lender’s failure to comply with Section
2.17(e).
“Exposure” means, with
respect to any Lender at any time, the sum of the outstanding principal amount
of such Lender’s Loans at such time.
“Federal Funds Effective
Rate” means, for any day, the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York, or, if such rate is not so published
for any day that is a Business Day, the average
of the quotations for such day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
“Financial Officer”
means the chief financial officer, principal accounting officer, treasurer or
controller of the Borrower.
“Foreign Lender” means
any Lender that is organized under the laws of a jurisdiction other than the
United States of America, any state thereof or the District of
Columbia.
7
“GAAP” means generally
accepted accounting principles in the United States of America.
“GP LLC” means
Enterprise Products GP LLC, a Delaware limited liability company, the general
partner of EPD.
“Governmental
Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
“Guarantee” of or by
any Person (the “guarantor”) means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness of any other Person (the “primary obligor”) in
any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or other obligation or
to purchase (or to advance or supply funds for the purchase of) any security for
the payment thereof, (b) to purchase or lease property, securities or
services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity
capital or any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation or (d) as an account party in respect of any letter of credit or
letter of guaranty issued to support such Indebtedness or obligation; provided, that the
term Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business.
“Hazardous
Materials” means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature, in each case regulated
pursuant to any Environmental Law.
“Hedging Agreement”
means a financial instrument or security which is used as a cash flow or fair
value hedge to manage the risk associated with a change in interest rates,
foreign currency exchange rates or commodity prices.
“Hybrid Securities”
means any trust preferred securities, or deferrable interest subordinated debt
with a maturity of at least 20 years, which provides for the optional or
mandatory deferral of interest or distributions, issued by the Borrower, or any
business trusts, limited liability companies, limited partnerships or similar
entities (i) substantially all of the common
equity, general partner or similar interests of which are owned (either directly
or indirectly through one or more wholly owned Subsidiaries) at all times by the
Borrower or any of its Subsidiaries, (ii) that have been formed for the purpose
of issuing hybrid securities or deferrable interest subordinated debt, and (iii)
substantially all the assets of which consist of (A) subordinated debt of the
Borrower or a Subsidiary of the Borrower, and (B) payments made from time to
time on the subordinated debt.
“Indebtedness” of any
Person means, without duplication, (a) all obligations of such Person for
the repayment of money borrowed which are or should be shown on a balance sheet
8
as debt in accordance with
GAAP, (b) obligations of such Person as lessee under leases which, in accordance
with GAAP, are capital leases, (c) guaranties of such Person of payment or
collection of any obligations described
in clauses (a) and (b) of other Persons; and (d) all obligations of such Person
under any synthetic lease, tax retention operating lease, off-balance sheet loan
or similar off-balance sheet financing if the obligation under such synthetic
lease, tax retention operating lease, off-balance sheet loan or similar
off-balance sheet financing, as the case may be, is considered indebtedness for
borrowed money for tax purposes but is classified as an operating lease in
accordance with GAAP; provided, that (i) clauses (a) and (b) include, in the
case of obligations of the Borrower or any Subsidiary, only such obligations as
are or should be shown as debt or capital lease liabilities on a consolidated
balance sheet of the Borrower in accordance with GAAP, (ii) clause (c) includes,
in the case of guaranties granted by the Borrower or any Subsidiary, only such
guaranties of obligations of another Person that are or should be shown as debt
or capital lease liabilities on a consolidated balance sheet of such Person in
accordance with GAAP, and (iii) the liability of any Person as a general partner
of a partnership for Indebtedness of such partnership, if such partnership is
not a Subsidiary of such Person, shall not constitute
Indebtedness.
“Indemnified
Taxes” means Taxes other than Excluded Taxes.
“Interest Election
Request” means a request by the Borrower to convert or continue a
Borrowing in accordance with Section 2.08, and being in the form of
attached Exhibit D.
“Interest Payment
Date” means (a) with respect to any ABR Loan, the last day of each
March, June, September and December, and (b) with respect to any Eurodollar
Loan, the last day of the Interest Period applicable to the Borrowing of which
such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest
Period of more than three (3) months’ duration, each day that occurs an integral
multiple of three (3) months after the first day of such Interest
Period.
“Interest Period”
means with respect to any Eurodollar Borrowing, the period commencing on the
date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months thereafter, as the
Borrower may elect,; provided, that (i) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the case
of a Eurodollar Borrowing only, such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (ii) any Interest Period pertaining to a
Eurodollar Borrowing that commences on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period. For purposes of this
definition, the date of a Borrowing initially
shall be the date on which such Borrowing is made and thereafter, shall be the
effective date of the most recent conversion or continuation of such
Borrowing.
“Lenders” means the
Persons listed on Schedule 2.01 and any other Person that shall have become a
party hereto pursuant to an Assignment and Acceptance or pursuant to Section
2.01(b), other than any such Person that ceases to be a party hereto pursuant to
an Assignment and Acceptance.
“LIBO Rate” means,
with respect to any Eurodollar Borrowing for any Interest Period, (a) the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) as
calculated
9
by the British Bankers’ Association and obtained through a
nationally recognized service such as Reuters (or on any successor thereto or
substitute therefor provided by such service, providing rate quotations
comparable to those currently provided on such service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period; and (b) if the rate specified in
clause (a) of this definition does not so appear on the selected service (or any
successor thereto or substitute therefor), the average of the interest rates per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) at which
dollar deposits of $5,000,000 and for a maturity comparable to such Interest
Period are offered by the respective principal London offices of the Reference
Banks in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
“LIBOR Market Index
Rate” means, for any day, with respect to any interest calculation with
respect to an ABR Borrowing or ABR Loan (a) the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) as calculated by the British
Bankers’ Association and obtained through a nationally recognized service such
as Reuters (or on any successor or substitute page of such service, or any
successor to or substitute for such service, providing rate quotations
comparable to those currently provided on such page of such service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time for such day,
provided, if such day is not a Business Day, the immediately preceding Business
Day, as the rate for dollar deposits with a one-month maturity; and (b) if the
rate specified in clause (a) of this definition does not so appear on the
selected service (or any successor thereto or substitute therefor), the average
of the interest rates per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) at which dollar deposits of $5,000,000 and for a one-month maturity
are offered by the respective principal London offices of the Reference Banks in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, for such day.
“Lien” means, with
respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
hypothecation, encumbrance, charge or security interest in, on or of such asset,
(b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset and
(c) in the case of securities, any purchase option, call or similar right
of a third party with respect to such securities. For avoidance of
doubt, operating leases are not “Liens”.
“Loans” means loans
made pursuant to Section 2.03 hereof.
“Manager” means
Enterprise Products OLPGP, Inc., a Delaware corporation.
“March 15, 2000
Indenture” means that certain Indenture dated as of March 15, 2000, among
the Borrower, EPD and Wachovia Bank, National Association, f/k/a First Union
National Bank, as Trustee.
“Material Adverse
Change” means a material adverse change, from that in effect on December
31, 2007, in the financial condition or results of operations of the Borrower
and its
10
consolidated Subsidiaries taken as a whole, as indicated in the
most recent quarterly or annual financial statements, except as otherwise
disclosed in the Borrower’s and/or EPD’s filings with the SEC prior to the date
hereof.
“Material Adverse
Effect” means a material adverse effect on the financial condition or
results of operations of the Borrower and its consolidated Subsidiaries taken as
a whole, as indicated in the most recent quarterly or annual financial
statements.
“Material
Indebtedness” means Indebtedness (other than the Loans), of any one or
more of the Borrower and its Subsidiaries (other than Project Finance
Subsidiaries) in an aggregate principal amount exceeding
$25,000,000.
“Material Project”
means the construction or expansion of any capital project of the Borrower or
any of its Subsidiaries, the aggregate capital cost of which exceeds
$50,000,000.
“Material Project EBITDA
Adjustments” shall mean, with respect to each Material
Project:
(A) prior
to the Commercial Operation Date of a Material Project (but including the fiscal
quarter in which such Commercial Operation Date occurs), a percentage (based on
the then-current completion percentage of such Material Project) of an amount to
be approved by the Administrative Agent as the projected Consolidated EBITDA of
Borrower and its Subsidiaries attributable to such Material Project for the
first 12-month period following the scheduled Commercial Operation Date of such
Material Project (such amount to be determined based on customer contracts or
tariff-based customers relating to such Material Project, the creditworthiness
of the other parties to such contracts or such tariff-based customers, and
projected revenues from such contracts, tariffs, capital costs and expenses,
scheduled Commercial Operation Date, oil and gas reserve and production
estimates, commodity price assumptions and other factors deemed appropriate by
Administrative Agent), which may, at the Borrower’s option, be added to actual
Consolidated EBITDA for the Borrower and its Subsidiaries for the fiscal quarter
in which construction of such Material Project commences and for each fiscal
quarter thereafter until the Commercial Operation Date of such Material Project
(including the fiscal quarter in which such Commercial Operation Date occurs,
but net of any actual Consolidated EBITDA of the Borrower and its Subsidiaries
attributable to such Material Project following such Commercial Operation Date);
provided that
if the actual Commercial Operation Date does not occur by the scheduled
Commercial Operation Date, then the foregoing amount shall be reduced, for
quarters ending after the scheduled Commercial Operation Date to (but excluding)
the first full quarter after its Commercial Operation Date, by the following
percentage amounts depending on the period of delay (based on the period of
actual delay or then-estimated
delay, whichever is longer): (i) 90 days or less, 0%, (ii) longer than 90 days,
but not more than 180 days, 25%, (iii) longer than 180 days
but not more than 270 days, 50%, and (iv) longer than 270 days, 100%;
and
(B) beginning
with the first full fiscal quarter following the Commercial Operation Date of a
Material Project and for the two immediately succeeding fiscal quarters, an
amount to be approved by the Administrative Agent as the projected Consolidated
EBITDA of Borrower and its Subsidiaries attributable to such Material Project
(determined in the same manner as set forth in clause (A) above) for the balance
of the four full fiscal quarter period following such
11
Commercial Operation Date, which may, at the Borrower’s option, be
added to actual Consolidated EBITDA for the Borrower and its Subsidiaries for
such fiscal quarters.
Notwithstanding
the foregoing:
(i) no
such additions shall be allowed with respect to any Material Project
unless:
(a) not
later than 30 days prior to the delivery of any certificate required by the
terms and provisions of Section 5.01(e) to the extent Material Project EBITDA
Adjustments will be made to Consolidated EBITDA in determining compliance with
Section 6.07, the Borrower shall have delivered to the Administrative Agent
written pro forma projections of Consolidated EBITDA of the Borrower and its
Subsidiaries attributable to such Material Project and
(b) prior
to the date such certificate is required to be delivered, the Administrative
Agent shall have approved (such approval not to be unreasonably withheld) such
projections and shall have received such other information and documentation as
the Administrative Agent may reasonably request, all in form and substance
satisfactory to the Administrative Agent, and
(ii) the
aggregate amount of all Material Project EBITDA Adjustments during any period
shall be limited to 15% of the total actual Consolidated EBITDA of the Borrower
and its Subsidiaries for such period (which total actual Consolidated EBITDA
shall be determined without including any Material Project EBITDA
Adjustments).
“Material Subsidiary”
means each Subsidiary of the Borrower that, as of the last day of the fiscal
year of the Borrower most recently ended prior to the relevant determination of
Material Subsidiaries, has a net worth determined in accordance with GAAP that
is greater than 10% of the Consolidated Net Worth of the Borrower as of such
day.
“Maturity Date” means
the date 364 days after the Effective Date; provided, however, if such date
is not a Business Day, then the Maturity Date shall be the Business Day
immediately preceding such date.
“Multiemployer Plan”
means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
“Multi-Year Credit
Facility” means the revolving credit facility of the Borrower under that
certain Amended and Restated Revolving Credit Agreement dated as of November 19,
2007, among the
Borrower, Wachovia Bank, National Association, as administrative agent, and the
lenders party thereto, together with any and all amendments and supplements
thereto.
“Multi-Year Credit Facility
Commitment” means the “Commitments” of the lenders under the Multi-Year
Credit Facility, as such term is defined therein.
“Notes” means any
promissory notes issued by the Borrower pursuant to Section 2.10(e)
“Other Taxes” means
any and all present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies arising from any payment made
12
hereunder or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement.
“PBGC” means the
Pension Benefit Guaranty Corporation referred to and defined in ERISA and any
successor entity performing similar functions.
“Permitted Liens”
means:
(a) liens
upon rights-of-way for pipeline purposes;
(b) any
statutory or governmental lien or lien arising by operation of law, or any
mechanics’, repairmen’s, materialmen’s, suppliers’, carriers’, landlords’,
warehousemen’s 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;
(c) liens
for taxes and assessments which are (i) for the then current year, (ii) not at
the time delinquent, or (iii) delinquent but the validity or amount of which is
being contested at the time by the Borrower, any Subsidiary or EPD in good faith
by appropriate proceedings;
(d) liens
of, or to secure performance of, leases, other than capital leases, or any lien
securing industrial development, pollution control or similar revenue
bonds;
(e) any
lien upon property or assets acquired or sold by the Borrower, any Subsidiary or
EPD resulting from the exercise of any rights arising out of defaults on
receivables;
(f) any
lien in favor of the Borrower, any Subsidiary or EPD; or any lien upon any
property or assets of the Borrower, any Subsidiary or EPD permitted under the
March 15, 2000 Indenture, or any replacement indenture containing similar terms
and conditions with respect thereto;
(g) 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
Borrower, any Subsidiary or EPD 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;
(h) any
lien incurred in the ordinary course of business in connection with workmen’s
compensation, unemployment insurance, temporary disability, social security,
retiree health or similar laws or regulations or to secure obligations imposed
by statute or governmental regulations;
(i) 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;
13
(j) any
lien upon any property or assets created at the time of acquisition of such
property or assets by the Borrower, any Subsidiary or EPD 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 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;
(k) any
lien upon any property or assets (i) existing thereon at the time of the
acquisition thereof by the Borrower, any Subsidiary or EPD, (ii) existing
thereon at the time such Person becomes a Subsidiary by acquisition, merger or
otherwise, or (iii) acquired by any Person after the time such Person becomes a
Subsidiary by acquisition, merger or otherwise, to the extent such lien is
created by security documents existing at the time such Person becomes a
Subsidiary and not added to such security documents in contemplation
thereof;
(l) 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 Borrower,
the applicable Subsidiary or EPD has not exhausted its appellate
rights;
(m) 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 (a) through (l) 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
Borrower, its Subsidiaries and EPD (including any premium) incurred in
connection with such extension, renewal, refinancing, refunding or replacement;
or
(n) any
lien resulting from the deposit of moneys or evidence of indebtedness in trust
for the purpose of defeasing debt of the Borrower, any Subsidiary or
EPD.
“Permitted Sale/Leaseback
Transactions” means any Sale/Leaseback Transaction:
(a) which
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;
or
(b) involves
a lease for a period, including renewals, of not more than three years;
or
(c) the
Borrower, any Subsidiary or EPD would be entitled to incur Indebtedness, in a
principal amount equal to the Attributable Indebtedness with respect to such
Sale/Leaseback Transaction, secured by a Lien on the property subject to such
Sale/Leaseback Transaction
14
pursuant to Section 6.02 without equally and ratably securing the
Indebtedness under this Agreement pursuant to such Section; or
(d) the
Borrower, any Subsidiary or EPD, 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
Indebtedness of the Borrower, any Subsidiary or EPD that is not subordinated to
the Indebtedness under this Agreement, or (b) the expenditure or
expenditures for Principal Property used or to be used in the ordinary course of
business of the Borrower, its Subsidiaries or EPD.
Notwithstanding
the foregoing provisions of this definition, any Sale-Leaseback Transaction not
covered by clauses (a) through (d), inclusive, of this definition, shall
nonetheless be a Permitted Sale/Leaseback Transaction if the
Attributable Indebtedness from such Sale-Leaseback Transaction, together with
the aggregate principal amount of outstanding Indebtedness (other than
Indebtedness under this Agreement and Indebtedness under the March 15, 2000
Indenture) secured by Liens other than Permitted Liens upon Principal
Properties, does not exceed 10% of Consolidated Net Tangible
Assets.
“Person” means any
natural person, corporation, limited liability company, trust, joint venture,
association, company, partnership, Governmental Authority or other
entity.
“Plan” means
any employee pension benefit plan (other than a Multiemployer Plan) subject to
the provisions of Title IV of ERISA or Section 412 of the Code or
Section 302 of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.
“Prime Rate” means the
rate of interest per annum announced from time to time by The Royal Bank of
Scotland plc as its prime rate. Each change in the Prime Rate shall
be effective from and including the date such change is announced as being
effective.
“Principal Property”
means whether owned or leased on the date hereof or thereafter
acquired:
(a) any
pipeline assets of the Borrower, any Subsidiary or EPD, 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
(b) any
processing or manufacturing plant or terminal owned or leased by the Borrower,
any Subsidiary or EPD that is located in the United States or any territory or
political subdivision thereof;
except,
in the case of either of the foregoing clauses (a) or (b):
(i) 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
15
(ii) any
such assets, plant or terminal which, in the opinion of the Board of Directors
(as defined in the March 15, 2000 Indenture), is not material in relation to the
activities of the Borrower or of EPD and its subsidiaries taken as a
whole.
“Program” means the
buy-back program initiated by EPD whereby EPD or the Borrower may after
September 30, 2007 buy back up to the greater of (i) 2,000,000 publicly held
Common Units or (ii) the number of publicly held Common Units the aggregate
purchase price of which is $80,000,000.
“Project Financing”
means Indebtedness incurred by a Project Finance Subsidiary to finance the
acquisition or construction of any asset or project which Indebtedness does not
permit or provide for recourse against the Borrower or any of its Subsidiaries
(other than any Project Finance Subsidiary) and other than recourse that
consists of rights to recover dividends paid by such Project Finance
Subsidiary.
“Project Finance
Subsidiaries” means a Subsidiary that is (A) created principally to
(i) construct or acquire any asset or project that will be or is financed
solely with Project Financing for such asset or project, related equity
investments and any loans to, or capital contributions in, such Subsidiary that
are not prohibited hereby, (ii) own an Equity Interest in a Project Finance
Subsidiary, and/or (iii) own an interest in any such asset or project and (B)
designated as a Project Finance Subsidiary by the Borrower in writing to
Administrative Agent.
“Reference Banks”
means The Royal Bank of Scotland plc, Wachovia Bank, National Association,
JPMorgan Chase Bank and Citibank, N.A.
“Register” has the
meaning set forth in Section 9.04(c).
“Related Parties”
means, with respect to any specified Person, such Person’s Affiliates and the
respective directors, officers, employees, agents and advisors of such Person
and such Person’s Affiliates.
“Required Lenders”
means, at any time, Lenders having Exposures and unused Commitments representing
more than 50% of the sum of the total Exposures and unused Commitments at such
time.
“Restricted Payment”
means any dividend or other distribution (whether in cash, securities or other
property) with respect to any class of Equity Interests of the Borrower, or any
payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination
of any Equity Interests of EPD or the Borrower or any option, warrant or other
right to acquire any Equity Interests of EPD or the Borrower.
“Sale/Leaseback
Transaction” means any arrangement with any Person providing for the
leasing, under a lease that is not a capital lease under GAAP, by the Borrower,
or a Subsidiary (other than a Project Finance Subsidiary) or EPD of any
Principal Property, which property has been or is to be sold or transferred by
the Borrower, such Subsidiary or EPD to such Person in contemplation of such
leasing.
“SEC” has the meaning
set forth in Section 5.01(a).
16
“Subsidiary” means,
with respect to any Person (the “parent”) at any date,
any corporation, limited liability company, partnership, association or other
entity of which securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power or, in the case
of a partnership, more than 50% of the general partnership interests, are, as of
such date, owned, controlled or held by the parent and one or more subsidiaries
of the parent; provided,
notwithstanding the foregoing, neither DEP nor any of its Subsidiaries shall
constitute or be deemed to be a Subsidiary of the Borrower or any of its
Subsidiaries.
“Taxes” means any and
all present or future taxes, levies, imposts, duties, deductions, charges or
withholdings imposed by any Governmental Authority.
“Transactions” means
the execution, delivery and performance by the Borrower of this Agreement, the
borrowing of Loans, and the use of the proceeds thereof.
“Type”, when used in
reference to any Loan or Borrowing, refers to whether the rate of interest on
such Loan, or on the Loans comprising such Borrowing, is determined by reference
to the LIBO Rate or the Alternate Base Rate.
“Withdrawal Liability”
means liability to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in
Part I of Subtitle E of Title IV of ERISA.
SECTION
1.02. Classification of Loans and
Borrowings. For purposes of this Agreement, Loans may be
classified and referred to by Type (e.g., a “Eurodollar
Loan”). Borrowings also may be classified and referred to by Type
(e.g., a
“Eurodollar Borrowing”).
SECTION
1.03. Terms
Generally. The definitions of terms herein shall apply equally
to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words “include”, “includes” and
“including” shall be deemed to be followed by the phrase “without
limitation”. The word “will” shall be construed to have the same
meaning and effect as the word “shall”. Unless the context requires
otherwise (a) any definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein), (b) any reference herein to any Person shall
be construed
to include such Person’s successors and assigns, (c) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to
refer to this Agreement in its entirety and not to any particular provision
hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, this Agreement and (e) the words “asset” and “property” shall
be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
SECTION
1.04. Accounting Terms;
GAAP. Except as otherwise expressly provided herein, all terms
of an accounting or financial nature shall be construed in accordance with (i)
except for purposes of Section 6.07, GAAP, as in effect from time to time; provided that, if the Borrower
notifies the Administrative Agent that the Borrower requests an amendment to any
17
provision hereof to eliminate the effect of any change occurring
after the date hereof in GAAP or in the application thereof on the operation of
such provision (or if the Administrative Agent notifies the Borrower that the
Required Lenders request an amendment to any provision hereof for such purpose),
regardless of whether any such notice is given before or after such change in
GAAP or in the application thereof, then such provision shall be interpreted on
the basis of GAAP as in effect and applied immediately before such change shall
have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith; and (ii) for purposes of Section
6.07, GAAP, as in effect on September 30, 2007.
ARTICLE
II
The
Credits
SECTION
2.01. Commitments. (a) Subject
to the terms and conditions set forth herein, each Lender agrees to make Loans
to the Borrower from time to time during the Availability Period in an aggregate
principal amount that will not result in (i) such Lender’s Exposure exceeding
such Lender’s Commitment or (ii) the sum of the total Exposures exceeding
the total Commitments. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Loans.
(b) The
Borrower shall have the right, without the consent of the Lenders but with the
prior approval of the Administrative Agent, not to be unreasonably withheld, to
cause from time to time an increase in the total Commitments of the Lenders by
adding to this Agreement one or more additional Lenders or by allowing one or
more Lenders to increase their respective Commitments; provided however (i) no Event
of Default shall have occurred hereunder which is continuing, (ii) no such
increase shall cause the aggregate Commitments hereunder to exceed
$1,000,000,000, and (iii) no Lender’s Commitment shall be increased without such
Lender’s consent.
SECTION
2.02. Loans
and Borrowings. (a) Each Loan shall be made as part
of a Borrowing consisting of Loans made by the Lenders ratably in accordance
with their respective Commitments. The failure of any Lender to make
any Loan required to be made by it shall not relieve any other Lender of its
obligations hereunder; provided that the Commitments
of the Lenders are several and no Lender shall be responsible for any other
Lender’s failure to make Loans as required.
(b) Subject
to Section 2.14, each Borrowing shall be comprised entirely of ABR Loans or
Eurodollar Loans as the Borrower may request in accordance
herewith. Each Lender at its option may make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided
that any
exercise of such option shall not affect the obligation of the Borrower to repay
such Loan in accordance with the terms of this Agreement.
(c) At
the commencement of each Interest Period for any Eurodollar Borrowing, such
Borrowing shall be in an aggregate amount that is an integral multiple of
$1,000,000 and not less than $5,000,000. At the time that each ABR
Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of $500,000 and not less than $1,000,000; provided that an ABR Borrowing
may be in an aggregate amount that is equal to the entire unused balance of the
total Commitments. Borrowings of more than one Type may be
outstanding at the same
18
time; provided that there shall not
at any time be more than a total of six Eurodollar Borrowings outstanding.
(d) Notwithstanding
any other provision of this Agreement, the Borrower shall not be entitled to
request, or to elect to convert or continue, any Borrowing if the Interest
Period requested with respect thereto would end after the Maturity
Date.
SECTION 2.03. Requests for
Borrowings. To request a Borrowing, the Borrower shall notify
the Administrative Agent of such request by telephone (a) in the case of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three
Business Days before the date of the proposed Borrowing or (b) in the case
of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the
date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Borrowing Request signed by
the Borrower. Each such telephonic and written Borrowing Request
shall specify the following information in compliance with
Section 2.02:
(i) the
aggregate amount of the requested Borrowing;
(ii) the
date of such Borrowing, which shall be a Business Day;
(iii) whether
such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
(iv) in
the case of a Eurodollar Borrowing, the initial Interest Period to be applicable
thereto, which shall be a period contemplated by the definition of the term
“Interest Period”; and
(v) the
location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section
2.07.
If no
election as to the Type of Borrowing is specified, then the requested Borrowing
shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed
to have selected an Interest Period of one month’s duration. Promptly
following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender’s Loan to be made as part of the
requested Borrowing.
SECTION
2.04. Reserved.
SECTION
2.05. Reserved.
SECTION
2.06. Reserved.
SECTION
2.07. Funding of
Borrowings. (a) Each Lender shall make each Loan to
be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 1:00 p.m., New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so received, in like
funds, to an account designated by the Borrower in the applicable Borrowing
Request.
19
(b) Unless
the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender’s share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In
such event, if a Lender has not in fact made its share of the applicable
Borrowing available to the Administrative Agent, then the applicable Lender and
the Borrower severally agree to pay to the Administrative Agent forthwith on
demand such corresponding amount with interest thereon, for each day from and
including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (i) in the
case of such Lender, the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation or (ii) in the case of the Borrower, the interest rate
applicable to such Borrowing. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender’s Loan
included in such Borrowing.
SECTION
2.08. Interest
Elections. (a) Each Borrowing initially shall be of
the Type specified in the applicable Borrowing Request and, in the case of a
Eurodollar Borrowing, shall have an initial Interest Period as specified in such
Borrowing Request. Thereafter, the Borrower may elect to convert such
Borrowing to a different Type or to continue such Borrowing and, in the case of
a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in
this Section. The Borrower may elect different options with respect
to different portions of the affected Borrowing, in which case each such portion
shall be allocated ratably among the Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing.
(b) To
make an election pursuant to this Section, the Borrower shall notify the
Administrative Agent of such election by telephone by the time that a Borrowing
Request would be required under Section 2.03 if the Borrower were requesting a
Borrowing of the Type resulting from such election to be made on the effective
date of such election. Each such telephonic Interest Election Request
shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election Request
signed by the Borrower.
(c) Each
telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:
(i) the
Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) below shall
be specified for each resulting Borrowing);
(ii) the
effective date of the election made pursuant to such Interest Election Request,
which shall be a Business Day;
(iii) whether
the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
and
20
(iv) if
the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term “Interest Period”.
If any
such Interest Election Request requests a Eurodollar Borrowing but does not
specify an Interest Period, then the Borrower shall be deemed to have selected
an Interest Period of one month’s duration, in the case of a Eurodollar
Borrowing.
(d) Promptly
following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender of the details thereof and of such Lender’s portion of
each resulting Borrowing.
(e) If
the Borrower fails to deliver a timely Interest Election Request with respect to
a Eurodollar Borrowing prior to the end of the Interest Period applicable
thereto, then, unless such Borrowing is repaid as provided herein, at the end of
such Interest Period such Borrowing shall be converted to an ABR
Borrowing. Notwithstanding any contrary provision hereof, if an Event
of Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies the Borrower, then, so long as an
Event of Default is continuing (i) no outstanding Borrowing may be converted to
or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
SECTION
2.09. Termination and Reduction of
Commitments. (a) Unless previously terminated, the
Commitments shall terminate on the Maturity Date. Upon the
consummation of any public or private debt offering by EPD or any of its
Subsidiaries on or after December 17, 2008 (or any such debt
offering after the Effective Date and prior to December 17, 2008 in excess of
$500,000,000), other than (i) the Multi-Year Credit Facility (or any replacement
facility therefor) or (ii) debt with a maturity of three years or less, the
Commitments shall be permanently and ratably reduced by the cash proceeds (net
of transaction fees, costs and expenses associated therewith, including
reasonable legal fees and expenses) of such debt offering (or, as to any such
offering prior to December 17, 2008, such net cash proceeds in excess of
$500,000,000) received therefrom.
(b) The
Borrower may at any time terminate, or from time to time reduce, the
Commitments; provided that (i) each
reduction of the Commitments shall be in an amount that is an integral multiple
of $1,000,000 and not less than $5,000,000 and (ii) the Borrower shall not
terminate or reduce the Commitments if, after giving effect to any concurrent
prepayment of the Loans in accordance with Section 2.11, the sum of the
Exposures would exceed the total Commitments.
(c) The
Borrower shall notify the Administrative Agent in writing of any election to
terminate or reduce the Commitments under paragraph (b) of this Section at
least three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative
Agent shall advise the Lenders of the contents thereof. Each notice
delivered by the Borrower pursuant to this Section shall be irrevocable; provided that a notice of
termination of the Commitments delivered by the Borrower may state that such
notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not
21
satisfied. Any termination or reduction of the
Commitments shall be permanent. Each reduction of the Commitments
shall be made ratably among the Lenders in accordance with their respective
Commitments.
SECTION
2.10. Mandatory Prepayment and
Repayment of Loans; Evidence of Debt. (a) Within one
(1) Business Day of the consummation of any public or private debt offering
described in Section 2.09(a) and not excluded thereby, if the sum of the
Exposures exceeds the total Commitments, the Borrower hereby unconditionally
promises to pay to the Administrative Agent for the account of the Lenders the
amount of such excess, to be applied by the Administrative Agent as a ratable
prepayment on the Loans. On any date on which any Loans shall be
outstanding and any Multi-Year Credit Facility Commitment shall be unused or
otherwise available, the Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender all such outstanding Loans
on such date. The Borrower hereby unconditionally promises to pay to
the Administrative Agent for the account of each Lender the then unpaid
principal amount of each Loan on the Maturity Date.
(b) Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to such Lender resulting
from each Loan made by such Lender, including the amounts of principal and
interest payable and paid to such Lender from time to time
hereunder.
(c) The
Administrative Agent shall maintain accounts in which it shall record
(i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable
from the Borrower to each Lender hereunder and (iii) the amount of any sum
received by the Administrative Agent hereunder for the account of the Lenders
and each Lender’s share thereof.
(d) The
entries made in the accounts maintained pursuant to paragraph (b)
or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the failure of
any Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any
Lender may request that Loans made by it be evidenced by a promissory
note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and
substantially in the form of note attached hereto as Exhibit
G. Thereafter, the Loans evidenced by such promissory note and
interest thereon shall at all times (including after assignment pursuant to
Section 9.04) be represented by one or more promissory notes in such form
payable to the order of the payee named therein (or, if such promissory note is
a registered note, to such payee and its registered assigns).
SECTION
2.11. Optional Prepayment of
Loans. (a) The Borrower shall have the right at any
time and from time to time to prepay any Borrowing in whole or in part, subject
to prior notice in accordance with paragraph (b) of this Section.
(b) The
Borrower shall notify the Administrative Agent by telephone (confirmed promptly
by telecopy) of any prepayment hereunder (i) in the case of prepayment of a
Eurodollar
22
Borrowing, not later than 11:00 a.m., New York City time, three
Business Days before the date of prepayment, or (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
on the date of prepayment. Each such notice shall be irrevocable and
shall specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of
prepayment is given in connection with a conditional notice of termination of
the Commitments as contemplated by Section 2.09, then such notice of
prepayment may be revoked if such notice of termination is revoked in accordance
with Section 2.09. Promptly following receipt of any such notice
relating to a Borrowing, the Administrative Agent shall advise the Lenders of
the contents thereof. Each partial prepayment of any Borrowing shall
be in an amount that is an integral multiple of $1,000,000 and not less than
$1,000,000 in the case of an ABR Borrowing, or $3,000,000 in the case of a
Eurodollar Borrowing. Each prepayment of a Borrowing shall be applied
ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section
2.13.
SECTION
2.12. Fees. (a) The
Borrower agrees to pay to the Administrative Agent for the account of each
Lender a commitment fee, which shall accrue at the Applicable Rate on the daily
amount of the unused Commitment of such Lender (determined for each day by
deducting such Lender’s Exposure at the end of each day from such Lender’s
Commitment) during the period from and including the Effective Date to but
excluding the date on which such Commitment terminates. Accrued
commitment fees shall be payable in arrears on the last day of March, June,
September and December of each year, and on the date on which the Commitments
terminate, commencing on the first such date to occur after the
date hereof. All commitment fees shall be computed on the basis of a
year of 365 days (or 366 days in leap year) and shall be payable for the actual
number of days elapsed (including the first day but excluding the last
day).
(b) The
Borrower agrees to pay to the Administrative Agent, for the account of Lenders,
fees payable in the amounts and at the times agreed upon between the Borrower
and the Administrative Agent, on behalf of Lenders, pursuant to that certain
letter agreement of even date herewith between Borrower and Administrative
Agent.
(c) The
Borrower agrees to pay to the Administrative Agent, for its own account, fees
payable in the amounts and at the times separately agreed upon between the
Borrower and the Administrative Agent.
(d) All
fees payable hereunder shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, in the case of commitment,
duration and funding fees, to the Lenders. Fees paid shall not be
refundable under any circumstances.
SECTION
2.13. Interest. (a) The
Loans comprising each ABR Borrowing shall bear interest on each day at the
Alternate Base Rate for such day plus the Applicable Rate.
(b) The
Loans comprising each Eurodollar Borrowing shall bear interest at the LIBO Rate
for the Interest Period in effect for such Borrowing plus the Applicable
Rate.
(c) Reserved.
(d) Notwithstanding
the foregoing, if any principal of or interest on any Loan or any fee or other
amount payable by the Borrower hereunder is not paid when due, whether at stated
23
maturity, upon acceleration or otherwise, such overdue amount
shall bear interest, after as well as before judgment, at a rate per annum equal
to (i) in the case of overdue principal of any Loan, 2% plus the rate
otherwise applicable to such Loan as provided in the preceding paragraphs of
this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
(e) Accrued
interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and upon termination of the Commitments; provided that
(i) interest accrued pursuant to paragraph (d) of this Section shall be
payable on demand, (ii) in the event of any repayment or prepayment of any Loan,
accrued interest on the principal amount repaid or prepaid shall be payable on
the date of such repayment or prepayment and (iii) in the event of any
conversion of any Eurodollar Loan prior to the end of the current Interest
Period therefor, accrued interest on such Loan shall be payable on the effective
date of such conversion.
(f) All
interest determined by reference to the LIBO Rate or clause (b) of the
definition of Alternate Base Rate shall be computed on the basis of a year of
360 days, and all other interest shall be computed on the basis of a year of 365
days (or 366 days in a leap year), and in each case shall be payable for the
actual number of days elapsed (including the first day but excluding the last
day). The applicable Alternate Base Rate or LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
(g) The
Borrower shall pay to each Lender, so long as such Lender shall be required
under regulations of the Board to maintain reserves with respect to liabilities
or assets consisting of or including Eurocurrency Liabilities, additional
interest on the unpaid principal amount of each Borrowing of such Lender during
such periods as such Borrowing is a Eurodollar Borrowing, from the date of such
Borrowing until such principal amount is paid in full, at an interest rate per
annum equal at all times to the remainder obtained by subtracting (i) the LIBO
Rate for the Interest Period in effect for such Eurodollar Borrowing from (ii)
the rate obtained by dividing such LIBO Rate by a percentage equal to 100% minus
the Eurodollar Rate Reserve Percentage of such Lender for such Interest
Period. Such additional interest shall be determined by such
Lender. The Borrower shall from time to time, within 15 days after
demand (which demand shall be accompanied by a certificate comporting with the
requirements set forth in Section 2.15(d)) by such Lender (with a copy of such
demand and certificate to the Administrative Agent) pay to the Lender giving
such notice such additional interest; provided, however, that the
Borrower shall not be required to pay to such Lender any portion of such
additional interest that accrued more than 90 days prior to any such
demand, unless such additional interest was not determinable on the date that is
90 days prior to such demand.
SECTION
2.14. Alternate Rate of
Interest. If prior to the commencement of any Interest Period
for a Eurodollar Borrowing:
(a) the
Administrative Agent determines in good faith (which determination shall be
conclusive and binding on the Borrower) that dollar deposits are not generally
available in the London interbank market in the applicable principal amounts and
Interest Period of such requested Eurodollar Borrowing, or by reason of
circumstances affecting the LIBOR interbank market, adequate and reasonable
means do not exist for ascertaining the LIBO Rate for such Interest Period;
or
24
(b) the
Administrative Agent is advised by the Required Lenders that the LIBO Rate
determined or to be determined for such Interest Period will not adequately and
fairly reflect the cost to such Lenders of making or maintaining their
Eurodollar Loans included in such Eurodollar Borrowing for such Interest Period
(as conclusively certified by such Lenders);
then the
Administrative Agent shall give notice thereof to the Borrower and the Lenders
by telephone or telecopy as promptly as practicable thereafter and, until the
Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective,
(ii) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing
shall be made as an ABR Borrowing, and (iii) any outstanding Eurodollar Loans
shall be converted, on the first day after the expiration of the Interest Period
applicable to such Eurodollar Loans, to ABR Loans. Furthermore, until
the Administrative Agent has withdrawn such notice, no further Eurodollar
Borrowings or Eurodollar Loans shall be made or continued as such, nor shall the
Borrower have the right to convert ABR Loans to Eurodollar Loans.
SECTION
2.15. Illegality; Increased
Costs. (a) If any Change in Law shall make it
unlawful or impossible for any Lender to make, maintain or fund its Eurodollar
Loans, such Lender shall so notify the Administrative
Agent. Upon receipt of such notice, the Administrative Agent shall
immediately give notice thereof to the other Lenders and to the Borrower,
whereupon until such Lender notifies the Borrower and the Administrative Agent
that the circumstances giving rise to such suspension no longer exist, the
obligation of such Lender to make Eurodollar Loans shall be
suspended. If such Lender shall determine that it may not lawfully
continue to maintain and fund any of its outstanding Eurodollar Loans to
maturity and shall so specify in such notice, the Borrower shall immediately
prepay (which prepayment shall not be subject to Section 2.11) in full the then
outstanding principal amount of such Eurodollar Loans, together with the accrued
interest thereon.
(b) If
any Change in Law shall:
(i) impose,
modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in Section 2.13(g));
or
(ii) impose
on any Lender or the London interbank market any other condition affecting this
Agreement or Eurodollar Loans made by such Lender;
and the
result of any of the foregoing shall be to increase the cost to such Lender of
making or maintaining any Eurodollar Loan (or of maintaining its obligation
to make any such Loan) or to reduce the amount of any sum received or receivable
by such Lender hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender for such additional costs incurred or reduction
suffered.
(c) If
any Lender determines that any Change in Law regarding capital requirements has
or would have the effect of reducing the rate of return on such Lender’s capital
or on the capital of such Lender’s holding company, if any, as a consequence of
this Agreement or the
25
Loans made by such Lender to a level below that which such Lender
or such Lender’s holding company could have achieved but for such Change in Law
(taking into consideration such Lender’s policies and the policies of such
Lender’s holding company with respect to capital adequacy), then from time to
time the Borrower will pay to such Lender such additional amount or amounts as
will compensate such Lender or such Lender’s holding company for any such
reduction suffered.
(d) A
certificate of a Lender setting forth, in reasonable detail showing the
computation thereof, the amount or amounts necessary to compensate such Lender
or its holding company, as the case may be, as specified in paragraph (a),
(b) or (c) of this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. Such certificate shall further
certify that such Lender is making similar demands of its other similarly
situated borrowers. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof,
if such certificate complies herewith.
(e) Failure
or delay on the part of any Lender to demand compensation pursuant to this
Section shall not constitute a waiver of such Lender’s right to demand such
compensation; provided that the Borrower
shall not be required to compensate a Lender pursuant to this Section for any
increased costs or reductions incurred more than 90 days prior to the date that
such Lender notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions
and of such Lender’s intention to claim compensation therefor; provided further that, if the
Change in Law giving rise to such increased costs or reductions is retroactive,
then the 90-day period referred to above shall be extended to include the period
of retroactive effect thereof (to the extent that such period of retroactive
effect is not already included in such 90-day period).
SECTION
2.16. Break
Funding Payments. In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of an Interest
Period applicable thereto (excluding any mandatory prepayment of the Loans
pursuant to Section 2.10(a) but including any such payment as a result of an
Event of Default), (b) the conversion of any Eurodollar Loan other than on the
last day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.11(b) and is revoked in accordance therewith), or (d) the
assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.19, then, in any such event, the Borrower shall compensate each
Lender for the loss, cost and expense (excluding loss of anticipated profits)
attributable to such event. A certificate of any Lender setting
forth, in reasonable detail showing the computation thereof, any amount or
amounts that such Lender is entitled to receive pursuant to this Section shall
be delivered to the Borrower and shall be conclusive absent manifest
error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof, if such certificate
complies herewith.
SECTION 2.17. Taxes. (a) Any
and all payments by or on account of any obligation of the Borrower hereunder
shall be made free and clear of and without deduction for any Indemnified Taxes
or Other Taxes; provided that if the Borrower
shall be required to deduct any Indemnified Taxes or Other Taxes from such
payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or any
Lender (as the case may be) receives an amount equal to the sum it would have
received had no
26
such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In
addition, the Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.
(c) The
Borrower shall indemnify the Administrative Agent and each Lender, within 10
days after written demand therefor, for the full amount of any Indemnified Taxes
or Other Taxes paid by the Administrative Agent or such Lender, as the case may
be, on or with respect to any payment by or on account of any obligation of the
Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority; provided that the Borrower
shall not be required to indemnify or reimburse a Lender pursuant to this
Section for any Indemnified Taxes or Other Taxes imposed or asserted more than
90 days prior to the date that such Lender notifies the Borrower of the
Indemnified Taxes or Other Taxes imposed or asserted and of such Lender’s
intention to claim compensation therefor; provided further that, if the
Indemnified Taxes or
Other Taxes imposed or asserted giving rise to such claims are retroactive, then
the 90-day period referred to above shall be extended to include the period of
retroactive effect thereof (to the extent that such period of retroactive effect
is not already included in such 90-day period). A certificate setting
forth, in reasonable detail showing the computation thereof, the amount of such
payment or liability delivered to the Borrower by a Lender, or by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
(d) As
soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) Any
Foreign Lender that is entitled to an exemption from or reduction of withholding
tax under the law of the jurisdiction in which the Borrower is located, or any
treaty to which such jurisdiction is a party, with respect to payments under
this Agreement shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made without
withholding or at such reduced rate.
(f) Should
any Lender or the Administrative Agent during the term of this Agreement ever
receive any refund, credit or deduction from any taxing authority to which such
Lender or the Administrative Agent would not be entitled but for the payment by
the Borrower of Taxes (it being understood that the decision as to whether or
not to claim, and if claimed, as to the amount of any such refund, credit or
deduction shall be made by such Lender or the Administrative Agent in its sole
discretion), such Lender, or the Administrative Agent, as the case may be,
thereupon shall repay to the Borrower an amount with respect to such refund,
credit or deduction equal to any net reduction in taxes actually obtained by
such Lender or the Administrative Agent,
27
as the case may be, and determined by such Lender or the
Administrative Agent, as the case may be, to be attributable to such refund,
credit or deduction.
(g) Except
for a request by the Borrower under Section 2.19(b), no Foreign Lender shall be
entitled to the benefits of Sections 2.17(a) or 2.17(c) if withholding tax
is imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement or designates a new lending
office.
SECTION
2.18. Payments Generally; Pro Rata
Treatment; Sharing of Set-offs. (a) The Borrower
shall make each payment required to be made by it hereunder (whether of
principal, interest, fees, or of amounts payable under Section 2.15, 2.16 or
2.17, or otherwise) prior to 1:00 p.m., New York City time, on the date when
due, in immediately available funds, without set-off or
counterclaim. Any amounts received after such time on any date may,
in the discretion of the Administrative Agent, be deemed to have been received
on the next succeeding Business Day for purposes of calculating interest
thereon. All such payments shall be made to the Administrative Agent
to such address and account as Administrative Agent may specify, except that
payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly
to the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for
the account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that
is not a Business Day, the date for payment shall be extended to the next
succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such
extension. All payments hereunder shall be made in
dollars.
(b) If
at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, interest and fees
then due hereunder, such funds shall be applied (i) first, towards payment of
interest and fees then due hereunder, ratably among the parties entitled thereto
in accordance with the amounts of interest and fees then due to such parties,
and (ii) second, towards payment of principal then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal then
due to such parties.
(c) If
any Lender shall, by exercising any right of set-off or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of
its Loans resulting in such Lender receiving payment of a greater proportion of
the aggregate amount of its Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the Loans
of other Lenders to the extent necessary so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the aggregate
amount of principal of and accrued interest on their respective Loans; provided that (i) if any such
participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans to any assignee
or participant, other than to the Borrower or any Subsidiary or Affiliate
thereof (as to which the provisions of this paragraph shall
apply). The Borrower consents to the foregoing and agrees, to the
extent it may effectively do so under applicable law, that any Lender acquiring
a participation pursuant to the foregoing arrangements
28
may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(d) Unless
the Administrative Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Administrative Agent for the account
of the Lenders hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on such
date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(e) If
any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.07(b) or 2.18(d), then the Administrative Agent may, in its discretion
(notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender’s
obligations under such Sections until all such unsatisfied obligations are fully
paid.
SECTION
2.19. Mitigation Obligations;
Replacement of Lenders. (a) If any Lender requests
compensation under Section 2.15 or Section 2.13(g), or if the Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.13(g), 2.15 or 2.17, as the case may be,
in the future and (ii) would not subject such Lender to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such
Lender. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or
assignment. Subject to the foregoing, Lenders agree to use reasonable
efforts to select lending offices which will minimize taxes and other costs and
expenses for the Borrower.
(b) If
any Lender requests compensation under Section 2.13(g) or Section 2.15, or
if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to
Section 2.17, or if any Lender defaults in its obligation to fund Loans
hereunder, then the Borrower may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 9.04), all its interests, rights and obligations under
this Agreement to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent, which
consent shall not unreasonably be withheld, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans,
accrued interest thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrower (in the case of all other
29
amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.13(g) or
Section 2.15 or payments required to be made pursuant to Section 2.17,
such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment
and delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply. If any
Lender refuses to assign and delegate all its interests, rights and obligations
under this Agreement after the Borrower has required such Lender to do so as a
result of a claim for compensation under Section 2.13(g) or Section 2.15 or
payments required to be made pursuant to Section 2.17, such Lender shall
not be entitled to receive such compensation or required payments.
SECTION
2.20. Separateness. The
Lenders acknowledge and affirm (i) their reliance on the separateness of EPD, GP
LLC, Borrower and Manager from each other and from other Persons, including EPCO
and Enterprise GP Holdings L.P. (“EPE”), (ii) that other creditors of the
Borrower, Manager, EPD or GP LLC have likely advanced funds to such Persons in
reliance upon the separateness of the Borrower, Manager,
EPD and GP LLC from each other and from other Persons, including EPCO and EPE,
(iii) that each of the Borrower, Manager, EPD and GP LLC have assets and
liabilities that are separate from those of each other and from other Persons,
including EPCO and EPE, (iv) that the Loans and other obligations owing under
this Agreement, the Notes and documents related hereto or thereto have not been
guaranteed by Manager, GP LLC, EPCO or EPE, and (v) that, except as other
Persons may expressly assume or guarantee this Agreement, the Notes or any
documents related hereto or thereto or any of the Loans or other obligations
thereunder, the Lenders shall look solely to the Borrower, and, pursuant to the
EPD Guaranty Agreement, EPD, and their respective property and assets, and any
property pledged as collateral with respect hereto or thereto, for the repayment
of any amounts payable pursuant hereto or thereto and for satisfaction of any
obligations owing to the Lenders hereunder or thereunder and that neither GP LLC
nor Manager is personally liable to the Lenders for any amounts payable or any
liability hereunder or thereunder.
ARTICLE
III
Representations and
Warranties
The
Borrower represents and warrants to the Lenders that:
SECTION
3.01. Organization;
Powers. Each of the Borrower and its Subsidiaries is duly
formed, validly existing and (if applicable) in good standing (except, with
respect to Subsidiaries other than Material Subsidiaries, where the failure to
be in good standing, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect) under the laws of the
jurisdiction of its organization, has all requisite power and authority to carry
on its business in all material respects as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and (if applicable) is in good standing in, every jurisdiction where such
qualification is required.
SECTION
3.02. Authorization;
Enforceability. The Transactions are within the Borrower’s
limited liability company powers and have been duly authorized by all necessary
limited liability company and, if required, member action. This
Agreement has been duly executed and delivered by the Borrower and constitutes a
legal, valid and binding obligation of
30
the Borrower, enforceable against the Borrower in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors’ rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.
SECTION
3.03. Governmental Approvals; No
Conflicts. The Transactions (a) do not require any
consent or approval of, registration or filing with, or any other action by, any
Governmental Authority, except such as have been obtained or made and are in
full force and effect as of the Effective Date, other than filings after the
Effective Date in the ordinary course of business, (b) will not violate any law
or regulation applicable to the Borrower or the limited partnership agreement,
charter, by-laws or other organizational documents of the Borrower or any of its
Subsidiaries or any order of any Governmental Authority to which the Borrower or
any of its Subsidiaries is subject, (c) will not violate or result in a default
under any material indenture, agreement or other instrument binding upon the
Borrower or any of its Subsidiaries or its assets, or give rise to a right
thereunder to require any payment to be made by the Borrower or any of its
Subsidiaries and (d) will not result in the creation or imposition of any
Lien on any asset of the Borrower or any of its Subsidiaries that is prohibited
hereby.
SECTION
3.04. Financial
Condition. The Borrower has heretofore furnished to the
Lenders the consolidated and consolidating balance sheets of the Borrower and
its consolidated Subsidiaries and the related consolidated (and, as to
statements of income, unaudited consolidating)
statements of income, equity and cash flow of the Borrower
and its consolidated Subsidiaries (i) as of and for the fiscal year ended
December 31, 2007, such consolidated financial statements audited by an
independent accounting firm of national standing, and (ii) as of and for the
fiscal quarter and the portion of the fiscal year ended September 30, 2008,
unaudited and certified by a Financial Officer. Such financial
statements present fairly, in all material respects, the financial position
and results of operations and cash flows of the Borrower and its consolidated
Subsidiaries as of such dates and for such periods in accordance with GAAP,
subject to year-end audit adjustments and the absence of footnotes in the case
of the statements referred to in clause (ii) above.
SECTION
3.05. Litigation and Environmental
Matters. (a) There are no actions, suits or proceedings
by or before any arbitrator or Governmental Authority pending against or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any
of its Subsidiaries (i) as to which there is a reasonable possibility
of an adverse determination and that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect (other than the Disclosed Matters) or (ii) that
involve this Agreement or the Transactions.
(b) Except
for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, neither the Borrower nor any of its Subsidiaries
(i) has failed to comply with any Environmental Law or to obtain, maintain
or comply with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental Liability,
(iii) has received notice of any claim with respect to any Environmental
Liability or (iv) knows of any basis for any Environmental
Liability.
31
(c) Since
the date of this Agreement, there has been no change in the status of the
Disclosed Matters that, individually or in the aggregate, has resulted in a
Material Adverse Effect.
SECTION
3.06. Compliance with
Laws. Each of the Borrower and its Subsidiaries is in
compliance with all laws, regulations and orders of any Governmental Authority
applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect. No Default has occurred and is
continuing.
SECTION
3.07. Investment Company
Status. Neither the Borrower nor any of its Subsidiaries is an
“investment company” as defined in, or subject to regulation under, the
Investment Company Act of 1940.
SECTION
3.08. Taxes. Each
of the Borrower and its Subsidiaries has timely filed or caused to be filed all
Tax returns and reports required to have been filed and has paid or caused to be
paid all Taxes required to have been paid by it, except (a) Taxes that are being
contested in good faith by appropriate proceedings and for which the Borrower or
such Subsidiary, as applicable, has set aside on its books adequate reserves or
(b) to the extent that the failure to do so could not reasonably be
expected to result in a Material Adverse Effect.
SECTION
3.09. ERISA. No
ERISA Event has occurred or is reasonably expected to occur that, when taken
together with all other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a Material Adverse
Effect.
SECTION
3.10. Disclosure. None
of the reports, financial statements, certificates or other information
furnished by or on behalf of the Borrower to the Administrative Agent or any
Lender in connection with the negotiation of this Agreement (as modified or
supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to
projected financial information, the Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
SECTION
3.11. Subsidiaries. As
of the Effective Date, the Borrower has no Subsidiaries other than those listed
on Schedule 3.11. As of the Effective Date, Schedule 3.11 sets forth
the jurisdiction of incorporation or organization of each such Subsidiary, the
percentage of the Borrower’s ownership of the outstanding Equity Interests of
each Subsidiary directly owned by the Borrower, and the percentage of each
Subsidiary’s ownership of the outstanding Equity Interests of each other
Subsidiary.
SECTION
3.12. Margin
Securities. Neither the Borrower nor any Subsidiary is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying margin stock (within the
meaning of Regulations U or X of the Board of Governors of the Federal Reserve
System), and no part of the proceeds of any Loan will be used to purchase or
carry any margin stock in violation of said Regulations U or X or to extend
credit to others for the purpose of purchasing or carrying margin stock in
violation of said Regulations U or X.
32
ARTICLE
IV
Conditions
SECTION
4.01. Effective
Date. The obligations of the Lenders to make Loans hereunder
shall not become effective until the Effective Date which is scheduled to occur
when each of the following conditions is satisfied:
(a) The
Administrative Agent (or its counsel) shall have received from each party hereto
either (i) a counterpart of this Agreement signed on behalf of such party
or (ii) written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of this Agreement) that
such party has signed a counterpart of this Agreement.
(b) The
Administrative Agent shall have received favorable written opinions (addressed
to the Administrative Agent and the Lenders and dated the Effective Date) of
Richard Bachmann, in-house counsel for Borrower and EPD, and Bracewell &
Giuliani LLP, counsel for Borrower and EPD, substantially in the forms of
Exhibits E-1 and E-2.
(c) The
Administrative Agent shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to (1) the
organization and existence of the Borrower and EPD, (2) the authorization of the
Transactions and any other legal matters relating to the Borrower, this
Agreement or the Transactions, including a certificate of incumbency evidencing
the specimen signature of each person executing this Agreement and any other
document delivered in connection herewith on behalf of Borrower, all in form and
substance reasonably satisfactory to the Administrative Agent and its counsel,
and (3) with respect to EPD, the authorization of the EPD Guaranty Agreement and
any other legal matters relating to EPD, including a certificate of incumbency
evidencing the specimen signature of each person executing the EPD Guaranty
Agreement and any other document delivered in connection herewith on behalf of
EPD, all in form and substance reasonably satisfactory to the Administrative
Agent and its counsel,.
(d) The
Administrative Agent shall have received the EPD Guaranty Agreement dated as of
the date hereof, duly and validly executed by EPD.
(e) The
Administrative Agent shall have received each promissory note requested by a
Lender pursuant to Section 2.10(e), each duly completed and executed by the
Borrower.
(f) The
Administrative Agent shall have received a certificate, dated the Effective Date
and signed by the President, an Executive Vice President or a Financial Officer
of the Borrower, confirming compliance with the conditions set forth in
paragraphs (a) and (b) of Section 4.02.
(g) The
Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the Effective Date, including, to the extent invoiced
five (5) Business Days prior to closing, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the Borrower
hereunder.
(h) As
of the Effective Date, no Material Adverse Change exists.
33
(i) There
shall not have been any material disruption or material adverse change in the
financial, banking or capital markets generally or in the market for loan
syndications in particular, which the Administrative Agent, in its reasonable
judgment, determines could materially impair the syndication
hereof.
(j) The
Lenders shall have received (i) the audited financial statements for the
Borrower and its Subsidiaries for the period ended December 31, 2007 (ii) the
unaudited financial statements for the Borrower and its Subsidiaries and EPD’s
Form 10-Q for the fiscal quarter ending September 30, 2008, and (iii) a
certificate from a Financial Officer of the Borrower reflecting pro forma
compliance with Section 6.07 as of September 30, 2008, taking into pro forma
account the Transactions, as if consummated on such date.
(k) All
necessary governmental and third-party approvals, if any, required to be
obtained by the Borrower in connection with the Transactions and otherwise
referred to herein shall have been obtained and remain in effect (except where
failure to obtain such approvals will not have a Material Adverse Effect), and
all applicable waiting periods shall have expired without any action being taken
by any applicable authority.
The
Administrative Agent shall notify the Borrower and the Lenders of the Effective
Date, and such notice shall be conclusive and binding.
SECTION
4.02. Each
Credit Event. The obligation of each Lender to make a Loan on
the occasion of any Borrowing (exclusive of continuations and conversions of a
Borrowing) is subject to the satisfaction of the following additional
conditions:
(a) The
representations and warranties of the Borrower set forth in this Agreement shall
be true and correct in all material respects on and as of the date of such
Borrowing, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they were true and correct
in all material respects as of such earlier date.
(b) At
the time of and immediately after giving effect to such Borrowing, no Default
shall have occurred and be continuing.
(c) At
the time of such Borrowing, no Multi-Year Credit Facility Commitment shall be
unused or otherwise available.
Each
Borrowing shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
ARTICLE V
Affirmative
Covenants
Until the
Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees payable hereunder shall have been paid in full, the
Borrower covenants and agrees with the Lenders that:
SECTION
5.01. Financial Statements and
Other Information. The Borrower will furnish, or cause to be
furnished, to the Administrative Agent and each Lender:
34
(a) within
15 days after filing same with the Securities and Exchange Commission (“SEC”), copies of each
annual report on Form 10-K, quarterly report on Form 10-Q and report on Form 8-K
(or any successor or substitute forms) that EPD is required to file with the SEC
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, and any successor statute (the “Exchange
Act”);
(b) within
15 days after filing same with the SEC, copies of each annual report on Form
10-K, quarterly report on Form 10-Q and report on Form 8-K (or any successor or
substitute forms) that the Borrower is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act;
(c) if
the Borrower is not subject to the requirements of Section 13 or 15(d) of the
Exchange Act and EPD owns direct subsidiaries (other than the Borrower and its
Subsidiaries), promptly after becoming available and in any event within 105
days after the close of each fiscal year of the Borrower (i) the audited
consolidated balance sheets of the Borrower and its consolidated Subsidiaries as
at the end of such year and (ii) the audited consolidated statements of
income, equity and cash flow of the Borrower and its consolidated Subsidiaries
for such year setting forth in each case in comparative form the corresponding
figures for the preceding fiscal year, which report shall be to the effect that
such statements have been prepared in accordance with GAAP;
(d) if
the Borrower is not subject to Section 13 or 15(d) of the Exchange Act and EPD
owns direct subsidiaries (other than the Borrower and its Subsidiaries),
promptly after their becoming available and in any event within 60 days after
the close of each of the first three fiscal quarters of each fiscal year of the
Borrower, (i) the unaudited consolidated balance sheets of the Borrower and
its consolidated Subsidiaries as at the end of such quarter and (ii) the
unaudited consolidated statements of income, equity and cash flow of the
Borrower for such quarter, setting forth in each case in comparative form the
corresponding figures for the preceding fiscal year, all of the foregoing
certified by a Financial Officer of the Borrower to have been prepared in
accordance with GAAP subject to normal changes resulting from year-end
adjustment and accompanied
by a written discussion of the financial performance and operating results,
including the major assets, of the Borrower for such quarter; and
(e) within
60 days after the end of each fiscal quarter of each fiscal year of the
Borrower, a certificate of a Financial Officer of the Borrower
substantially in the form of Exhibit F (i) certifying as to whether a
Default has occurred that is then continuing and, if a Default has occurred that
is then continuing, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, and (ii) setting forth in reasonable
detail calculations demonstrating compliance with Section 6.07.
SECTION
5.02. Notices of Material
Events. The Borrower will furnish to the Administrative Agent
and each Lender prompt written notice of the following:
(a) the
occurrence of any Event of Default; and
(b) any
other development that results in, or could reasonably be expected to result in,
a Material Adverse Effect.
35
Each
notice delivered under this Section shall be accompanied by a statement of a
Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION
5.03. Existence; Conduct of
Business. The Borrower will do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; provided that the foregoing
shall not prohibit any merger, consolidation, liquidation or dissolution not
prohibited under Section 6.03.
SECTION 5.04. Maintenance of Properties;
Insurance. The Borrower will, and will cause each of its
Subsidiaries to, (a) keep and maintain all property material to the conduct
of its business in good working order and condition, ordinary wear and tear
excepted, and (b) maintain, with financially sound and reputable insurance
companies, insurance in such amounts and against such risks as are customarily
maintained by companies engaged in the same or similar businesses operating in
the same or similar locations.
SECTION
5.05. Books
and Records; Inspection Rights. The Borrower will, and will
cause each of its Subsidiaries to, keep in accordance with GAAP proper books of
record and account in which full, true and correct entries are made in all
material respects of all dealings and transactions in relation to its business
and activities. The Borrower will, and will cause each of its
Subsidiaries to, permit any representatives designated by the Administrative
Agent or any Lender, upon reasonable prior notice, to visit and inspect its
properties, to examine and make extracts from its books and records, and to
discuss its affairs, finances and condition with its officers and independent
accountants, all at such reasonable times and as often as reasonably
requested.
SECTION 5.06. Compliance with
Laws. The Borrower will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and orders of any
Governmental Authority applicable to it or its property, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION
5.07. Use
of Proceeds. The proceeds of the Loans will be used only (a)
as a backstop for commercial paper, and (b) for working capital, acquisitions
and other company purposes. No part of the proceeds of any Loan will
be used, whether directly or indirectly, for any purpose that entails a
violation of any of the Regulations of the Board, including Regulations U
and X.
SECTION
5.08. Environmental
Matters. The Borrower has established and implemented, or will
establish and implement, and will cause each of its Subsidiaries to establish
and implement, such procedures as may be necessary to assure that (except for
any failure of the following that, individually or in the aggregate, does not
have a Material Adverse Effect): (i) all property of the Borrower and its
Subsidiaries and the operations conducted thereon are in compliance with and do
not violate the requirements of any Environmental Laws, (ii) no oil or solid
wastes are disposed of or otherwise released on or to any property owned by the
Borrower or its Subsidiaries except in compliance with Environmental Laws, (iii)
no Hazardous Materials will be released on or to any such property in a quantity
equal to or exceeding that quantity which requires reporting pursuant to
Section 103 of CERCLA, and (iv) no oil or Hazardous
36
Materials is released on or to any such property so as to pose an
imminent and substantial endangerment to public health or welfare or the
environment.
SECTION
5.09 ERISA
Information. The Borrower will furnish to the Administrative
Agent:
(a) within
15 Business Days after the institution of or the withdrawal or partial
withdrawal by the Borrower, any Subsidiary or any ERISA Affiliate from any
Multiemployer Plan which would cause the Borrower, any Subsidiary or any ERISA
Affiliate to incur withdrawal liability in excess of $25,000,000 (in the
aggregate for all such withdrawals), a written notice thereof signed by an
executive officer of the Borrower stating the applicable details;
and
(b) within
15 Business Days after an officer of the Borrower becomes aware of any material
action at law or at equity brought against the Borrower, any of its
Subsidiaries, any ERISA Affiliate, or any fiduciary of a Plan in connection with
the administration of any Plan or the investment of assets thereunder, a written
notice signed by an executive officer of the Borrower specifying the nature
thereof and what action the Borrower is taking or proposes to take with respect
thereto.
SECTION
5.10 Taxes. The
Borrower will, and will cause each of its Subsidiaries to, pay and discharge, or
cause to be paid and discharged, promptly or make, or cause to be made, timely
deposit of all taxes (including Federal Insurance Contribution Act payments and
withholding taxes), assessments and governmental charges or levies imposed upon
the Borrower or any Subsidiary or upon the income or any property of the
Borrower or any Subsidiary; provided, however, that neither
the Borrower nor any Subsidiary shall be
required to pay any such tax, assessment, charge, levy or claim if the amount,
applicability or validity thereof shall currently be contested in good faith by
appropriate proceedings diligently conducted by or on behalf of the Borrower or
its Subsidiary, and if the Borrower or its Subsidiary shall have set up reserves
therefor adequate under GAAP or if no Material Adverse Effect shall be
occasioned by all such failures in the aggregate.
ARTICLE
VI
Negative
Covenants
Until the
Commitments have expired or terminated and the principal of and interest on each
Loan and all fees payable hereunder have been paid in full, the Borrower
covenants and agrees with the Lenders that:
SECTION
6.01. Indebtedness. The
Borrower will not permit any Subsidiary to create, incur or assume any
Indebtedness, except:
(a) Indebtedness
of any Person that becomes a Subsidiary of the Borrower, to the extent such
Indebtedness is outstanding at the time such Person becomes a Subsidiary of the
Borrower and was not incurred in contemplation thereof and Indebtedness
refinancing (but not increasing) such Indebtedness, and Indebtedness assumed by
any Subsidiary in connection with its acquisition (whether by merger,
consolidation, acquisition of all or substantially all of the assets or
acquisition that results in the ownership of greater than fifty percent (50%) of
the
37
Equity Interests of a Person) of another Person and Indebtedness
refinancing (but not increasing) such Indebtedness, provided that at the time of
and after giving effect to the incurrence or assumption of such Indebtedness or
refinancing Indebtedness and the application of the proceeds thereof, as the
case may be, the aggregate principal amount of all such Indebtedness, and of all
Indebtedness previously incurred or assumed pursuant to this Section 6.01(a),
and then outstanding, shall not exceed 75% of Consolidated EBITDA for the period
of four full fiscal quarters of the Borrower and its Subsidiaries (and such
Person on a pro forma basis) then most recently ended;
(b) Indebtedness
of the Subsidiaries not otherwise permitted by this Section 6.01, provided that at the time of
and after giving effect to the incurrence of such Indebtedness and the
application of the proceeds thereof the aggregate principal amount of all such
Indebtedness, and of all Indebtedness previously incurred pursuant to this
Section 6.01(b), and then outstanding, shall not exceed 25% of Consolidated
EBITDA for the period of four fiscal quarters of the Borrower and the
Subsidiaries then most recently ended;
(c) Indebtedness
of Project Finance Subsidiaries;
(d) intercompany
Indebtedness;
(e) Indebtedness
existing on the date hereof and set forth on Schedule 6.01;
(f) guarantees
of the obligations and Indebtedness hereunder; and
(g) other
unsecured Indebtedness in an aggregate principal amount not exceeding
$25,000,000 at any time outstanding;
provided, however, that no
Subsidiary (other than a Project Finance Subsidiary) shall create, incur or
assume any Indebtedness pursuant to any provision of this Section 6.01 if an
Event of Default shall have occurred and be continuing or would result from such
creation, incurrence or assumption.
SECTION
6.02. Liens. The
Borrower shall not, and shall not permit any Subsidiary (other than
Project Finance Subsidiaries) or EPD to, create, assume, incur or suffer to
exist any Lien, other than a Permitted Lien, on any Principal Property or upon
any Equity Interests of the Borrower or any Subsidiary (other than Project
Finance Subsidiaries) owning or leasing any Principal Property, now owned or
hereafter acquired by the Borrower or such Subsidiary to secure any Indebtedness
of the Borrower, EPD or any other Person (other than the Indebtedness under this
Agreement), without in any such case making effective provision whereby any and
all Indebtedness under this Agreement then outstanding will be secured by a Lien
equally and ratably with, or prior to, such Indebtedness for so long as such
Indebtedness shall be so secured. Notwithstanding the foregoing, the
Borrower may, and may permit any Subsidiary (other than a Project Finance
Subsidiary) and EPD to, create, assume, incur or suffer to exist any Lien upon
any Principal Property to secure Indebtedness of the Borrower, EPD or any other
Person (other than the Indebtedness under this Agreement), other than a
Permitted Lien without securing the Indebtedness under this Agreement, provided
that the
aggregate principal amount of all Indebtedness then outstanding secured by such
Lien and all similar Liens together with the aggregate amount of Attributable
Indebtedness deemed to be outstanding in respect of all
38
Sale/Leaseback Transactions (exclusive of any Permitted
Sale/Leaseback Transactions), does not exceed 10% of Consolidated Net Tangible
Assets.
SECTION
6.03. Fundamental
Changes. The Borrower will not merge into or consolidate with
any other Person, or permit any other Person to merge into or consolidate with
it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a
series of transactions) all or substantially all of its assets, or all or
substantially all of the Equity Interests of any of its Subsidiaries (other than
Project Finance Subsidiaries) (in each case, whether now owned or hereafter
acquired), or liquidate or dissolve, except that, if at the time thereof and
immediately after giving effect thereto no Default shall have occurred and be
continuing (i) any Person may merge into or consolidate with the Borrower in a
transaction in which the Borrower is the surviving entity and (ii) Borrower may
sell or otherwise dispose of all or any portion of the Equity Interests of any
of its Subsidiaries.
SECTION
6.04. Investment
Restriction. Neither the Borrower nor any Subsidiary (other
than a Project Finance Subsidiary) will make or suffer to exist investments in
Project Finance Subsidiaries, in the aggregate at any one time outstanding, in
excess of the sum of (i) the amount of investments existing as of the Effective
Date in Project Finance Subsidiaries, (ii) $150,000,000, and (iii) the amount of
any portion of the investments permitted by this Section 6.04 repaid to the
Borrower or any Subsidiary as a dividend, repayment of a loan or advance,
release or discharge of a guarantee or other obligation or other transfer of
property or return of capital, as the case may be, occurring
after the Effective Date. Computation of the amount of any investment
shall be made without any adjustment for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such investment or interest
or other earnings on such investment.
SECTION
6.05. Restricted
Payments. The Borrower will not, and will not permit any of
its Subsidiaries (other than Project Finance Subsidiaries) to, declare or make,
or agree to pay or make, directly or indirectly, any Restricted Payment, except
as long as no Event of Default has occurred and is continuing or would result
therefrom, (i) the Borrower and the Subsidiaries may make Restricted Payments
necessary to fund the Program, (ii) the Borrower may make Restricted Payments
from Available Cash (as defined in the Company Agreement) from Operating Surplus
(as defined in the Company Agreement) cumulative from January 1, 1999
through the date of such Restricted Payment, (iii) any Subsidiary may buy back
any of its own Equity Interests, and (iv) the Borrower and its Subsidiaries may
make payments or other distributions to officers, directors or employees with
respect to the exercise by any such Persons of options, warrants or other rights
to acquire Equity Interests in EPD, the Borrower or such Subsidiary issued
pursuant to an employment, equity award, equity option or equity appreciation
agreement or plans entered into by EPD, the Borrower or such Subsidiary in the
ordinary course of business; provided, that even if an Event
of Default shall have occurred and is continuing, no Subsidiary shall be
prohibited from upstreaming dividends or other payments to the Borrower or any
Subsidiary (which is not a Project Finance Subsidiary) or making, in the case of
any Subsidiary that is not wholly-owned (directly or indirectly) by the
Borrower, ratable dividends or payments, as the case may be, to the other owners
of Equity Interests in such Subsidiary.
SECTION
6.06. Restrictive
Agreements. The Borrower will not, and will not permit any of
its Subsidiaries (other than Project Finance Subsidiaries) to, directly or
indirectly, enter into, incur or permit to exist any agreement or other
arrangement with any Person, other than the Lenders pursuant hereto, which
prohibits, restricts or imposes any conditions upon the ability of
39
any Subsidiary (other than
Project Finance Subsidiaries) to (a) pay dividends or make other distributions
or pay any Indebtedness owed to the Borrower or any Subsidiary, or (b) make
subordinate loans or advances to or make
other investments in the Borrower or any Subsidiary in each case, other than
restrictions or conditions contained in, or existing by reasons of, any
agreement or instrument (i) existing on the date hereof and identified on
Schedule 6.06, (ii) relating to property existing at the time of the acquisition
thereof, so long as the restriction or condition relates only to the property so
acquired, (iii) relating to any Indebtedness of, or otherwise to, any Subsidiary
at the time such Subsidiary was merged or consolidated with or into, or acquired
by, the Borrower or a Subsidiary or became a Subsidiary and not created in
contemplation thereof, (iv) effecting a renewal, extension, refinancing, refund
or replacement (or successive extensions, renewals, refinancings, refunds or
replacements) of Indebtedness issued under an agreement referred to in clauses
(i) through (iii) above, so long as the restrictions and conditions contained in
any such renewal, extension, refinancing, refund or replacement agreement, taken
as a whole, are not materially more restrictive than the restrictions and
conditions contained in the original agreement, as determined in good faith by
the board of directors of the Manager, (v) constituting customary provisions
restricting subletting or assignment of any leases of the Borrower or any
Subsidiary or provisions in agreements that restrict the assignment of such
agreement or any rights thereunder, (vi) constituting restrictions on the sale
or other disposition of any property securing Indebtedness as a result of a Lien
on such property permitted hereunder, (vii) constituting
any temporary encumbrance or restriction with respect to a Subsidiary under an
agreement that has been entered into for the disposition of all or substantially
all of the outstanding Equity Interests of or assets of such Subsidiary, provided that such
disposition is otherwise permitted hereunder, (viii) constituting customary
restrictions on cash, other deposits or assets imposed by customers and other
persons under contracts entered into in the ordinary course of business, (ix)
constituting provisions contained in agreements or instruments relating to
Indebtedness that prohibit the transfer of all or substantially all of the
assets of the obligor under that agreement or instrument unless the transferee
assumes the obligations of the obligor under such agreement or instrument or
such assets may be transferred subject to such prohibition, (x) constituting a
requirement that a certain amount of Indebtedness be maintained between a
Subsidiary and the Borrower or another Subsidiary, (xi) constituting any
restriction or condition with respect to property under an agreement that has
been entered into for the disposition of such property, provided that such
disposition is otherwise permitted hereunder, (xii) constituting any restriction
or condition with respect to property under a charter, lease or other agreement
that has been entered into for the employment of such property or (xiii) that is
a Hybrid Security or an indenture, document, agreement or security entered into
or issued in connection with a Hybrid Security or otherwise constituting a
restriction or condition on the payment of dividends or distributions by an
issuer of a Hybrid Security.
SECTION
6.07 Financial Condition
Covenant.
Ratio of Consolidated
Indebtedness to Consolidated EBITDA. The Borrower shall not permit its
ratio of Consolidated Indebtedness to Consolidated EBITDA in each case for the
four full fiscal quarters most recently ended to exceed:
5.00 to 1.00 as of the last
day of any fiscal quarter;
provided, following a
Specified Acquisition (defined below), such ratio shall not exceed
40
5.50 to 1.00 as of the last
day of (i) the fiscal quarter in which the Specified Acquisition occurred (the
“Acquisition
Quarter”), and (ii) the first fiscal quarter following the Acquisition
Quarter.
As used
herein, “Specified
Acquisition” means, at the election of Borrower, one or more acquisitions
of assets or entities or operating lines or divisions in any rolling 12-month
period for an aggregate purchase price of not less than $100,000,000; provided, in the
event the Debt Coverage Ratio exceeds 5.00 to 1.00 at the end of any fiscal
quarter in which one or more acquisitions otherwise qualifying as a Specified
Acquisition but for Borrower’s failure to so elect shall have occurred, Borrower
shall be deemed to have so elected a Specified Acquisition with respect thereto;
provided, further, following
the election (or deemed election) of a Specified Acquisition, Borrower may not
elect (or be deemed to have elected) a subsequent Specified Acquisition unless,
at the time of such subsequent election, the Debt Coverage Ratio does not exceed
5.00 to 1.00.
For
purposes of calculating such ratio the Project Finance Subsidiaries shall be
disregarded and Consolidated EBITDA and Consolidated Interest Expense in any
prior fiscal quarters attributable to assets contributed to DEP shall be
excluded from the calculation of Consolidated EBITDA and Consolidated Interest
Expense for such prior fiscal quarters; however, such exclusion does
not apply
to, and there shall be included in such calculation, (A) the amount of cash
dividends or distributions payable with respect to such a period by a Project
Finance Subsidiary or DEP which are actually received by the Borrower or a
Subsidiary (other than a Project Finance Subsidiary) on or prior to the date the
financial statements with respect to such period referred to in Section 5.01 are
required to be delivered by Borrower, and (B) with respect to EBITDA of a
subsidiary owned jointly by DEP and the Borrower, excluding amounts actually
dividended or distributed by such subsidiary and received by the owners thereof,
an amount equal to such subsidiary’s EBITDA times the Borrower’s
direct or indirect ownership percentage of the Equity Interests in such
subsidiary (other than through DEP). For purposes of this Section
6.07, if during any period of four fiscal quarters the Borrower or any
Subsidiary acquires any Person (or any interest in any Person) or all or
substantially all of the assets of any Person, the EBITDA attributable to such
assets or an amount equal to the percentage of ownership of the Borrower or a
Subsidiary, as the case may be, in such Person times the EBITDA of such Person,
for such period determined on a pro forma basis (which determination, in each
case, shall be subject to approval of the Administrative Agent, not to be
unreasonably withheld) may be included as Consolidated EBITDA for such period as
if such acquisition occurred on the first day of such four fiscal quarter
period; provided that during the
portion of such period that follows such acquisition, the computation in respect
of the EBITDA of such Person or such assets, as the case may be, shall be made
on the basis of actual (rather than pro forma) results.
In
addition, for purposes of this Section 6.07, Hybrid Securities up to an
aggregate amount of 15% of Consolidated Total Capitalization shall be excluded
from Consolidated Indebtedness and Consolidated EBITDA may include, at
Borrower’s option, any Material Project EBITDA Adjustments as provided in the
definition thereof.
ARTICLE
VII
Events of
Default
If any of
the following events (“Events of Default”)
shall occur:
41
(a) the
Borrower shall fail to pay any principal of any Loan when and as the same shall
become due and payable, whether at the due date thereof or at a date fixed for
prepayment thereof or otherwise;
(b) the
Borrower shall fail to pay any interest on any Loan or any fee or any other
amount (other than an amount referred to in clause (a) of this Article)
payable under this Agreement, when and as the same shall become due and payable,
and such failure shall continue unremedied for a period of five (5)
Business Days;
(c) any
representation or warranty made or deemed made by or on behalf of the Borrower,
EPD or any Subsidiary of the Borrower in or in connection with this Agreement or
any amendment or modification hereof or waiver hereunder, or in any report,
certificate, financial
statement or other document furnished pursuant to or in connection with this
Agreement or any amendment or modification hereof or waiver hereunder, shall
prove to have been incorrect in any material respect when made or deemed made
and such materiality is continuing;
(d) the
Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Section 5.02, 5.03 (with respect to the Borrower’s existence)
or 5.07 or in Article VI;
(e) the
Borrower shall fail to observe or perform any covenant, condition or
agreement contained in this Agreement (other than those specified in clause
(a), (b) or (d) of this Article), and such failure shall continue unremedied for
a period of 30 days after written notice thereof from the Administrative
Agent to the Borrower (which notice will be given at the request of any
Lender);
(f) the
Borrower or any Material Subsidiary (other than Project Finance Subsidiaries)
shall (i) fail to pay (A) any principal of or premium or interest on any
Material Indebtedness of the Borrower or such Material Subsidiary (as the case
may be), or (B) aggregate net obligations under one or more Hedging Agreements
(excluding amounts the validity of which are being contested in good faith by
appropriate proceedings, if necessary, and for which adequate reserves with
respect thereto are maintained on the books of the Borrower or such Material
Subsidiary (as the case may be)) in excess of $25,000,000, in each case when the
same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument relating to such Material Indebtedness or such Hedging Agreements; or
(ii) default in the observance or performance of any covenant or obligation
contained in any agreement or instrument relating to any such Material
Indebtedness that in substance is customarily considered a default in loan
documents (in each case, other than a failure to pay specified in clause (i) of
this subsection (f)) and such default shall continue after the applicable grace
period, if any, specified in such agreement or instrument, if the effect thereof
is to accelerate the maturity of such Material Indebtedness or require such
Material Indebtedness to be prepaid prior to the stated maturity thereof; for
the avoidance of doubt the parties acknowledge and agree that any payment
required to be made under a guaranty of payment or collection described in
clause (c) of the definition of Indebtedness shall be due and payable at
the time such payment is due and payable under the terms of such guaranty
(taking into account any applicable grace period) and such payment shall be
deemed not to have been accelerated or required to be prepaid prior to its
stated maturity as a result of the obligation guaranteed having become
due;
42
(g) an
involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (i) liquidation, reorganization or other relief in respect of
the Borrower or any Material Subsidiary (other than Project Finance
Subsidiaries) or its debts, or of a substantial part of its assets, under
any Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect or (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Material Subsidiary (other than Project Finance
Subsidiaries) or for a substantial part of its assets, and, in any such case,
such proceeding or petition shall continue undismissed for 60 days or an
order or decree approving or ordering any of the foregoing shall be
entered;
(h) the
Borrower or any Material Subsidiary (other than Project Finance Subsidiaries)
shall (i) voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in effect,
(ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in clause (h) of this
Article, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for the
Borrower or any Material Subsidiary (other than Project Finance Subsidiaries) or
for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in any
such proceeding, (v) make a general assignment for the benefit of creditors
or (vi) take any action for the purpose of effecting any of the
foregoing;
(i) the
Borrower or any Material Subsidiary (other than Project Finance Subsidiaries)
shall become unable, admit in writing its inability or fail generally to pay its
debts as they become due;
(j) one
or more judgments for the payment of money in an aggregate uninsured amount
equal to or greater than $50,000,000 shall be rendered against the Borrower or
any Material Subsidiary (other than Project Finance Subsidiaries) or any
combination thereof and the same shall remain undischarged for a period of
30 consecutive days during which execution shall not be effectively stayed,
or any action shall be legally taken by a judgment creditor to attach or levy
upon any assets of the Borrower or any such Material Subsidiary to enforce any
such judgment;
(k) an
ERISA Event shall have occurred that, when taken together with all other ERISA
Events that have occurred, could reasonably be expected to result in liability
of the Borrower and its Subsidiaries in an aggregate amount exceeding
$25,000,000 for all periods;
(l) EPD
takes, suffers or permits to exist any of the events or conditions referred to
in clauses (g), (h), (i) or (j) of this Article or if the section of the EPD
Guaranty Agreement that contains the payment obligation shall for any reason
cease to be valid and binding on EPD or if EPD shall so state in
writing;
(m) the
Manager or GP LLC takes, suffers or permits to exist any of the events or
conditions referred to in clauses (g), (h) or (i) of this Article;
(n) a
Change in Control shall occur; or
43
(o) an
“Event of Default” has occurred and is continuing under the Multi-Year Credit
Facility;
then, and
in every such event (other than an event with respect to the Borrower described
in clause (g) or (h) of this Article), and at any time thereafter during the
continuance of such event, the Administrative Agent at the request of the
Required Lenders shall, by notice to the Borrower, take either or both of the
following actions, at the same or different times: (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole
(or in part, in which case any principal not so declared to be due and payable
may thereafter be declared to be due and payable), and thereupon the principal
of the Loans so declared to be due and payable, together with accrued
interest
thereon and all fees and other obligations of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower; and in case of any event with respect to the Borrower described in
clause (g) or (h) of this Article, the Commitments shall automatically terminate
and the principal of the Loans then outstanding, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued hereunder,
shall automatically become due and payable, without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower.
ARTICLE
VIII
The Administrative
Agent
Each of
the Lenders hereby irrevocably appoints the Administrative Agent as its agent
and authorizes the Administrative Agent to take such actions on its behalf and
to exercise such powers as are delegated to the Administrative Agent by the
terms hereof, together with such actions and powers as are reasonably incidental
thereto.
The bank
serving as the Administrative Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the same
as though it were not the Administrative Agent, and such bank and its
Affiliates may accept deposits from, lend money to and generally engage in
any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The
Administrative Agent shall not have any duties or obligations except those
expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default has occurred
and is continuing, (b) the Administrative Agent shall not have any duty to
take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing by the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 9.02), and (c) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries that is communicated to or obtained by the
bank serving as Administrative Agent or any of its Affiliates in any
capacity. The Administrative Agent shall not be liable to the Lenders
for any action taken or not taken by it with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as
44
provided
in Section 9.02) or in the absence of its own gross negligence or willful
misconduct. The Administrative Agent shall be deemed not to have knowledge of
any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this
Agreement, (ii) the
contents of any certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein,
(iv) the validity, enforceability, effectiveness or genuineness of this
Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein,
other than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The
Administrative Agent may perform any and all its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent
may perform any and all its duties and exercise its rights and powers through
their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Anything herein to the contrary notwithstanding, neither the Administrative
Agent, the Syndication Agents, the Documentation Agents, the Joint Lead
Arrangers nor the Joint Book Runners listed on the cover page hereof shall have
any powers, duties or responsibilities under this Agreement, the Notes or any
documents related hereto or thereto, except in its capacity, as applicable, as
Administrative Agent or a Lender hereunder.
Subject
to the appointment and acceptance of a successor Administrative Agent as
provided in this paragraph, the Administrative Agent may resign at any time by
notifying the Lenders and the Borrower. Upon any such resignation,
the Required Lenders shall have the right, with the Borrower’s approval (which
will not be unreasonably withheld), to appoint a successor. If no
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent
may, with the Borrower’s approval (which will not be unreasonably withheld or
delayed, and the Borrower’s approval shall not be required if an Event of
Default has occurred which is continuing), on behalf of the Lenders, appoint a
successor Administrative Agent which shall be a bank with an office in New York,
New York, or an Affiliate of any such bank and such bank, or its Affiliate, as
applicable, shall have capital and surplus equal to or greater than
$500,000,000. If no successor agent has accepted appointment as the
Administrative Agent by the date which is thirty (30) days following the
retiring
45
Administrative
Agent’s notice of resignation, the retiring Administrative Agent’s resignation
shall nevertheless thereupon become effective and the Lenders shall perform all
of the duties of the Administrative Agent hereunder until such time, if any, as
the Required Lenders appoint a successor agent as provided for above. Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor,
such successor shall succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent’s resignation hereunder,
the provisions of this Article and Section 9.03 shall continue in effect
for the benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative
Agent.
Each
Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges
that it will, independently and without reliance upon the Administrative Agent
or any other Lender and based on such documents and information as it shall
from time to time deem appropriate, continue to make its own decisions in taking
or not taking action under or based upon this Agreement, any related agreement
or any document furnished hereunder or thereunder.
ARTICLE
IX
Miscellaneous
SECTION
9.01. Notices. Except
in the case of notices and other communications expressly permitted to be given
by telephone, and except as provided in Section 9.01(d), all notices and other
communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or
sent by telecopy, as follows:
(a) if
to the Borrower, to it at 1100 Louisiana Street, 10th Floor,
Houston, Texas 77002, Attention of Treasurer (Telecopy No.
713/381-8200);
(b) if
to the Administrative Agent, to The Royal Bank of Scotland plc, RBS Global
Banking and Markets, 600 Steamboat Road, Greenwich, CT 06830, Attention of Juan
Zuniga (Telecopy No. 203-873-5300), with a copy to The Royal Bank of Scotland
plc, 600 Travis, Suite 6500, Houston, Texas 77002, Attention of John Reed
(Telecopy No. 713-221-2428); and
(c) if
to any other Lender, to it at its address (or telecopy number) of record with
the Administrative Agent, which Administrative Agent shall provide to the
Borrower or any Lender upon request from time to time.
All such
notices and other communications shall be deemed to be given or made upon the
actual receipt by the relevant party hereto during the recipient’s normal
business hours. In no event shall a voice mail message be effective
as a notice, communication or confirmation hereunder.
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The Borrower
will have the option to provide to the Administrative Agent all information,
documents and other materials that it is obligated to furnish to the
Administrative Agent pursuant to this Agreement or any other document executed
in connection herewith, including, without limitation, all notices, requests,
financial statements, financial and other reports, certificates and other
information materials, but excluding any such communication that (i) relates to
a request for a new, or a conversion of an existing, Borrowing or other
extension of credit (including any election of an interest rate or Interest
Period relating thereto), (ii) relates to the payment of any principal or other
amount due under this Agreement prior to the scheduled date therefor, (iii)
provides notice of any Default or Event of Default, or (iv) other than the
requirements set forth in Sections 3.04, 4.01(j) and 5.01, is required to be
delivered to satisfy any condition precedent to the effectiveness of this
Agreement and/or any Borrowing or any other extension of credit hereunder (all
such non-excluded communications being referred to herein collectively as “Communications”), by
transmitting the Communications in an electronic/soft medium in a format
acceptable to the Administrative Agent. The Borrower further agrees
that the Administrative Agent may make the Communications available to the
Lenders by posting the Communications on SyndTrak or a substantially similar
electronic transmission system (the “Platform”). The
Borrower acknowledges that the distribution of material through an electronic
medium is not necessarily secure and that there are confidentiality and other
risks associated with such distribution. The
Platform is provided “as is” and “as available”. The Agent Parties
(as defined below) do not warrant the accuracy or completeness of the
Communications, or the adequacy of the Platform and expressly disclaim liability
for errors or omissions in the Communications. No warranty of any
kind, express, implied or statutory, including, without limitation, any warranty
of merchantability, fitness for a particular purpose, non-infringement of third
party rights or freedom from viruses or other code defects, is made by the Agent
Parties in connection with the Communications or the Platform. In no
event shall the Administrative Agent or any of its affiliates or any of their
respective officers, directors, employees, agents, advisors or representatives
(collectively, “Agent Parties”) have any liability to the Borrower, any Lender
or any other Person or entity for damages of any kind, including, without
limitation, direct or indirect, special, incidental or consequential damages,
losses or expenses (whether in tort, contract or otherwise) arising out of the
Borrower’s or the Administrative Agent’s transmission of Communications through
the internet, except to the extent the liability of any Agent Party is found in
a final non-appealable judgment by a court of competent jurisdiction to have
resulted primarily from such Agent Party’s gross negligence or willful
misconduct. The Administrative Agent agrees that the receipt
of the Communications by the Administrative Agent at its e-mail address as
specified by the Administrative Agent from time to time during its normal
business hours shall constitute effective delivery of the Communications to the
Administrative Agent for purposes of this Agreement and any other documents
executed in connection herewith. Each of the Lenders agrees that
notice to it (as provided in the next sentence) specifying that the
Communications have been posted to the Platform shall constitute effective
delivery of the Communications to such Lender for purposes of this Agreement and
any other documents executed in connection herewith. Each of the
Lenders agrees (i) to notify the Administrative Agent in writing (including by
electronic communication) from time to time of such Lender’s, e-mail address to
which the foregoing notice may be sent by electronic transmission, and (ii) that
the foregoing notice may be sent to such e-mail address. Nothing
herein shall prejudice the right of the Administrative Agent or any Lender to
give any notice or other communication pursuant hereto or any other document
executed in connection herewith in any other manner specified herein or
therein.
47
Any party
hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the date
of receipt.
SECTION
9.02. Waivers;
Amendments. (a) No failure or delay by the
Administrative Agent or any Lender in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of
the Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise
have. No waiver of any provision of this Agreement or consent to
any departure by the Borrower therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) of this Section, and then such
waiver or consent shall be effective only in the specific instance and for
the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent or any Lender may have
had notice or knowledge of such Default at the time.
(b) Neither
this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the
Borrower and the Required Lenders or by the Borrower and the Administrative
Agent with the consent of the Required Lenders; provided that no such
agreement shall (i) increase or extend the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.18(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby, without the written consent of each Lender,
(v) release EPD from any of its monetary obligations under the EPD Guaranty
Agreement without the written consent of each Lender, or (vi) change any of
the provisions of this Section or the definition of “Required Lenders” or any
other provision hereof specifying the number or percentage of Lenders required
to waive, amend or modify any rights hereunder or make any determination or
grant any consent hereunder, without the written consent of each
Lender; provided
further that no such agreement shall amend, modify or otherwise affect
the rights or duties of the Administrative Agent hereunder without the prior
written consent of the Administrative Agent.
SECTION
9.03. Expenses; Indemnity; Damage
Waiver. (a) The Borrower shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates, including the reasonable fees, charges and disbursements of one law
firm as counsel for the Administrative Agent, in connection with the syndication
(prior to the Effective Date) of the credit facilities provided for herein, the
preparation and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), and
(ii) all out-of-pocket expenses reasonably incurred during the existence of
an Event of Default by the Administrative Agent or
48
any
Lender, including the fees, charges and disbursements of any counsel for the
Administrative Agent or any Lender, in connection with the enforcement or
protection of its rights in connection with this Agreement, including its rights
under this Section, or in connection with the Loans made hereunder, including
all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans.
(b) The
Borrower shall indemnify the Administrative Agent and each Lender, and each
Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted against
any Indemnitee arising out of, in connection with, or as a result of
(i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the Transactions or any
other transactions contemplated hereby, (ii) any Loan or the use of the
proceeds therefrom, (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by the Borrower or
any of its Subsidiaries, or any Environmental Liability related in any way to
the Borrower or any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity
shall not, as to any Indemnitee, be available (x) to the extent that such
losses, claims, damages, liabilities or related expenses resulted from the gross
negligence or willful misconduct of such Indemnitee or any Related Party of such
Indemnitee, or (y) in connection with disputes among or between the
Administrative Agent, Lenders and/or their respective Related
Parties.
(c) To
the extent that the Borrower fails to pay any amount required to be paid by it
to the Administrative Agent under paragraph (a) or (b) of this Section, each
Lender severally agrees to pay to the Administrative Agent, such Lender’s
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed
expense or indemnified loss, claim, damage, liability or related expense, as the
case may be, was incurred by or asserted against the Administrative Agent in its
capacity as such.
(d) To
the extent permitted by applicable law, the Borrower shall not assert, and
hereby waives, any claim against any Indemnitee, on any theory of liability, for
punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan or the use of the
proceeds thereof.
(e) All
amounts due under this Section shall be payable not later than 30 days after
written demand therefor, such demand to be in reasonable detail setting forth
the basis for and method of calculation of such amounts.
SECTION
9.04. Successors and
Assigns. (a) The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower may
not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender
(and any attempted assignment or transfer by the Borrower without such consent
shall be null and void).
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Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any
Lender may assign to one or more assignees (other than the Borrower or an
Affiliate of the Borrower) all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans at
the time owing to it); provided that
(i) except in the case of an assignment to a Lender or an Affiliate of a
Lender, each of the Borrower and the Administrative Agent must give their prior
written consent to such assignment (which consent shall not be unreasonably
withheld or delayed), (ii) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining amount of the
assigning Lender’s Commitment, the amount of the Commitment of the assigning
Lender subject to each such assignment (determined as of the date the Assignment
and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each of the
Borrower and the Administrative Agent otherwise consent, (iii) each partial
assignment shall result in the assignor retaining a Commitment of not less than
$10,000,000 and shall be made as an assignment of a proportionate part of all
the assigning Lender’s rights and obligations under this Agreement, (iv) the
parties (other than the Borrower) to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500, (v) the assignee, if it shall not
be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire and any tax forms mandated by Section 2.17 hereunder and
(vi) no assignment to a foreign bank shall be made hereunder unless, at the
time of such assignment, there is no withholding tax applicable with respect to
such foreign bank for which the Borrower would be or become responsible under
Section 2.17; and provided further that
any consent of the Borrower otherwise required under this paragraph shall not be
required if an Event of Default has occurred and is
continuing. Subject to acceptance and recording thereof pursuant to
paragraph (d) of this Section, from and after the effective date specified
in each Assignment and Acceptance the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03 as to
matters occurring on or prior to date of assignment). Any assignment
or transfer by a Lender of rights or obligations under this Agreement that does
not comply with this paragraph shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in
accordance with paragraph (e) of this Section.
(c) The
Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices, the address of which shall be made available to
any party to this Agreement upon request: a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitment of, and
principal amount of the Loans owing to, each Lender pursuant to the terms hereof
from time to time (the “Register”). The
entries in the Register shall be conclusive absent manifest error,
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and the
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower and any
Lender, as to its Commitment and Loans only, at any reasonable time and from
time to time upon reasonable prior notice.
(d) Upon
its receipt of a duly completed Assignment and Acceptance executed by an
assigning Lender and an assignee, the assignee’s completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section
and any written consent to such assignment required by paragraph (b) of this
Section, and any tax forms mandated by Section 2.17 hereof, the Administrative
Agent shall accept such Assignment and Acceptance and record the information
contained therein in the Register. No assignment shall be effective
for purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
(e) Any
Lender may, without the consent of the Borrower or the Administrative Agent,
sell participations to one or more banks or other entities (a ”Participant”) in all
or a portion of such Lender’s rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it); provided that (i) such
Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such agreement
or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 9.02(b) that affects such
Participant.
(f) A
Participant shall not be entitled to receive any greater payment under
Section 2.15 or 2.17 than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the Borrower’s prior
written consent. A Participant that would be a Foreign Lender if it
were a Lender shall not be entitled to the benefits of Section 2.17 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.17(e) as though it were a Lender and has zero withholding at the time of
participation.
(g) Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such Lender
to a Federal Reserve Bank, and this Section shall not apply to any such pledge
or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
SECTION
9.05. Survival. All
covenants, agreements, representations and warranties made by the Borrower
herein and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement shall be considered to have been
relied upon by the other
51
parties
hereto and shall survive the execution and delivery of this Agreement and the
making of any Loans, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Administrative Agent or any
Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and
Article VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Commitments or the termination of
this Agreement or any provision hereof.
SECTION
9.06. Counterparts; Integration;
Effectiveness. This Agreement may be executed in counterparts
(and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Agreement and any separate letter agreements
with respect to fees payable to the Administrative Agent constitute the entire
contract among the parties relating to the subject matter hereof and supersede
any and all previous agreements and understandings, oral or written, relating to
the subject matter hereof. This Agreement shall become effective on
the Effective Date, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns. Delivery of an executed counterpart of a signature page of
this Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION
9.07. Severability. Any
provision of this Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.
SECTION
9.08. Right
of Setoff. If an Event of Default shall have occurred and be
continuing and the Required Lenders have directed the Administrative Agent to
accelerate under Article VII, each Lender and each of its Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other obligations at
any time owing by such Lender or Affiliate to or for the credit or the account
of the Borrower against any of and all the obligations of the Borrower now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Lender
under this Section are in addition to other rights and remedies (including other
rights of setoff) which such Lender may have.
SECTION
9.09. Governing Law; Jurisdiction;
Consent to Service of Process. (a) This Agreement
shall be construed in accordance with and governed by the law of the State of
New York.
(b) The
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the Supreme Court of the State of
New York sitting in New York County and of the United States District Court of
the Southern District of New
52
York, and
any appellate court from any thereof, in any action or proceeding arising out of
or relating to this Agreement, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law,
in such Federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right
that the Administrative Agent or any Lender may otherwise have to bring any
action or proceeding relating to this Agreement against the Borrower or its
properties in the courts of any jurisdiction.
(c) The
Borrower hereby irrevocably and unconditionally waives, to the fullest extent it
may legally and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any court referred to in
paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(d) Each
party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
SECTION
9.10. WAIVER OF JURY
TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION.
SECTION
9.11. Headings. Article
and Section headings and the Table of Contents used herein are for convenience
of reference only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this
Agreement.
SECTION
9.12. Confidentiality. Each
of the Administrative Agent, the Syndication Agents, the Documentation Agents,
and the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates’ directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the
extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f)
53
subject
to an agreement containing provisions substantially the same as those of this
Section, to any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement, (g) with
the consent of the Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to the Administrative Agent, Syndication Agents, the
Documentation Agents or any Lender on a nonconfidential basis from a source
other than the Borrower and its Related Parties. For the purposes of this
Section, “Information” means all information received from the Borrower relating
to the Borrower or its business, other than any such information that is
available to the Administrative Agent or any Lender on a nonconfidential basis
prior to disclosure by the Borrower.
SECTION
9.13. Interest Rate
Limitation. Notwithstanding anything herein to the contrary,
if at any time the interest rate applicable to any Loan, together with all fees,
charges and other amounts which are treated as interest on such Loan under
applicable law (collectively the “Charges”), shall
exceed the maximum lawful rate (the “Maximum Rate”) which
may be contracted for, charged, taken, received or reserved by the Lender
holding such Loan in accordance with applicable law, the rate of interest
payable in respect of such Loan hereunder, together with all Charges payable in
respect thereof, shall be limited to the Maximum Rate and, to the extent lawful,
the interest and Charges that would have been payable in respect of such Loan
but were not payable as a result of the operation of this Section shall be
cumulated and the interest and Charges payable to such Lender in respect of
other Loans or periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together (to the extent lawful) with
interest thereon at the Federal Funds Effective Rate to the date of repayment,
shall have been received by such Lender.
SECTION
9.14. Liability of
Manager. It is hereby understood and agreed that Manager shall
have no personal liability, as a member of the Borrower or otherwise, for the
payment of any amount owing or to be owing hereunder.
SECTION
9.15. USA
Patriot Act Notice. Each Lender and Agent (for itself and not
on behalf of any Lender) hereby notifies Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”), it is required
to obtain, verify and record information that identifies Borrower, which
information includes the name and address of Borrower and other information that
will allow such Lender or the Agent, as applicable, to identify Borrower in
accordance with the Act. The Borrower shall, following a request by
the Agent or any Lender, provide all documentation and other information that
the Agent or such Lender reasonably requests in order to comply with its ongoing
obligations under applicable "know your customer" and anti-money laundering
rules and regulations, including the Act.
[Signature
Pages to Follow]
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
ENTERPRISE
PRODUCTS OPERATING LLC
By: Enterprise
Products OLPGP, Inc.,
its Manager
By:
/s/ Bryan F.
Bulawa
Bryan F. Bulawa
Vice President and
Treasurer
55
THE ROYAL
BANK OF SCOTLAND plc,
as
Administrative Agent and a Lender
By:
/s/ Brian D.
Williams
Name: Brian D.
Williams
Title: Vice
President
1
BARCLAYS
BANK PLC,
as a
Co-Arranger and a Lender
By: /s/ Nicholas A.
Bell
Name: Nicholas A.
Bell
Title:
Director
2
THE BANK
OF NOVA SCOTIA,
as a
Co-Arranger and a Lender
By: /s/ Andrew Ostrov for David
Mills
Name: Andrew Ostrov for David
Mills
Title: Director
3
DNB NOR
BANK ASA,
as a
Co-Arranger and a Lender
By: /s/ Sanjiv
Nayar
Name: Sanjiv Nayar
Title: Senior Vice
President
By: /s/ Barbara
Gronquist
Name: Barbara
Gronquist
Title: Senior Vice
President
4
WACHOVIA
BANK,
NATIONAL
ASSOCIATION,
as a
Co-Arranger and a Lender
By: /s/ Ty J.
Peterson
Name: Ty J. Peterson
Title: Vice
President
5
SCHEDULE
2.01
COMMITMENTS
|
Lender
|
Commitment
|
|
The
Royal Bank of Scotland plc
|
$75,000,000
|
|
Barclays
Bank PLC
|
$75,000,000
|
|
The
Bank of Nova Scotia
|
$75,000,000
|
|
DNB
NOR Bank ASA
|
$75,000,000
|
|
Wachovia
Bank, National Association
|
$75,000,000
|
|
TOTAL
|
$375,000,000
|
6
EXHIBIT
A
Form
of
Assignment and
Assumption
This
Assignment and Assumption (the “Assignment and
Assumption”) is dated as of the Effective Date set forth below and is
entered into by and between [the][each]1 Assignor identified in item 1 below
([the][each, an] “Assignor”) and
[the][each]2 Assignee identified in item 2 below
([the][each, an] “Assignee”). [It
is understood and agreed that the rights and obligations of [the Assignors][the
Assignees]3 hereunder are several and not joint.]4 Capitalized terms used but not
defined herein shall have the meanings given to them in the Credit Agreement
identified below (as amended, the “Credit Agreement”),
receipt of a copy of which is hereby acknowledged by [the][each]
Assignee. The Standard Terms and Conditions set forth in Annex 1
attached hereto are hereby agreed to and incorporated herein by reference and
made a part of this Assignment and Assumption as if set forth herein in
full.
For an
agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns
to [the Assignee][the respective Assignees], and [the][each] Assignee hereby
irrevocably purchases and assumes from [the Assignor][the respective Assignors],
subject to and in accordance with the Standard Terms and Conditions and the
Credit Agreement, as of the Effective Date inserted by the Administrative Agent
as contemplated below (i) all of [the Assignor’s][the respective Assignors’]
rights and obligations in [its capacity as a Lender][their respective capacities
as Lenders] under the Credit Agreement and any other documents or instruments
delivered pursuant thereto to the extent related to the amount and percentage
interest identified below of all of such outstanding rights and obligations of
[the Assignor][the respective Assignors] under the respective facilities
identified below (including without limitation any letters of credit,
guarantees, and swingline loans included in such facilities) and (ii) to the
extent permitted to be assigned under applicable law, all claims, suits, causes
of action and any other right of [the Assignor (in its capacity as a
Lender)][the respective Assignors (in their respective capacities as Lenders)]
against any Person, whether known or unknown, arising under or in connection
with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or
related to any of the foregoing, including, but not limited to, contract claims,
tort claims, malpractice claims, statutory claims and all other claims at law or
in equity related to the rights and obligations sold and assigned pursuant to
clause (i) above (the rights and obligations sold and assigned by [the][any]
Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being
referred to herein collectively as [the][an] “Assigned
Interest”). Each such sale and assignment is without recourse
to [the][any] Assignor and, except as expressly provided in this Assignment and
Assumption, without representation or warranty by [the][any]
Assignor.
1. Assignor[s]: ________________________________
|
|
______________________________
|
|
2.
|
Assignee[s]:
|
______________________________
|
|
|
______________________________
|
|
[for
each Assignee, indicate [Affiliate] of [identify
Lender]
|
|
3.
|
Borrower:
|
Enterprise
Products Operating LLC
|
|
4.
|
Administrative
Agent:
|
The
Royal Bank of Scotland plc, as the administrative agent under the Credit
Agreement
|
1 For
bracketed language here and elsewhere in this form relating to the Assignor(s),
if the assignment is from a single Assignor, choose the first bracketed
language. If the assignment is from multiple Assignors, choose the
second bracketed language.
2 For
bracketed language here and elsewhere in this form relating to the Assignee(s),
if the assignment is to a single Assignee, choose the first bracketed
language. If the assignment is to multiple Assignees, choose the
second bracketed language.
5. Credit
Agreement: The
$375,000,000 364-Day Credit Agreement dated as of November 17, 2008 among
Enterprise Products Operating LLC, the Lenders parties thereto, The Royal Bank
of Scotland plc, as Administrative Agent, and the other agents parties
thereto
|
6.
|
Assigned
Interest[s]:
|
|
Assignor[s]5
|
Assignee[s]6
|
Aggregate
Amount of Commitment/Loans for all Lenders7
|
Amount
of Commitment/Loans Assigned8
|
Percentage
Assigned of Commitment/Loans8
|
CUSIP
Number
|
|
$
|
$
|
%
|
|||
|
$
|
$
|
%
|
|||
|
$
|
$
|
%
|
[7. Trade
Date: ______________]9
Effective
Date: _____________ ___, 20___ [TO BE INSERTED BY
ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF
TRANSFER IN THE REGISTER THEREFOR.]
The terms
set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR[S]10
[NAME OF
ASSIGNOR]
By:______________________________
Title:
[NAME OF
ASSIGNOR]
By:______________________________
Title:
ASSIGNEE[S]11
[NAME OF
ASSIGNEE]
By:______________________________
Title:
[NAME OF
ASSIGNEE]
By:______________________________
Title:
7 Amount
to be adjusted by the counterparties to take into account any payments or
prepayments made between the Trade Date and the Effective
Date.
8 Set
forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all
Lenders thereunder.
9 To be
completed if the Assignor(s) and the Assignee(s) intend that the minimum
assignment amount is to be determined as of the Trade Date.
8
[Consented
to and]12
Accepted:
THE ROYAL
BANK OF SCOTLAND plc, as
Administrative
Agent
By_________________________________
Title:
[Consented
to:]13
ENTERPRISE
PRODUCTS OPERATING LLC
By:
Enterprise Products OLPGP, Inc., its Manager
By________________________________
Title:
12 To be
added only if the consent of the Administrative Agent is required by the terms
of the Credit Agreement.
13 To be
added only if the consent of the Borrower is required by the terms of the Credit
Agreement.
9
ANNEX
1
ENTERPRISE
PRODUCTS OPERATING LLC
STANDARD
TERMS AND CONDITIONS FOR
ASSIGNMENT
AND ASSUMPTION
1. Representations and
Warranties.
1.1 Assignor[s]. [The][Each]
Assignor (a) represents and warrants that (i) it is the legal and beneficial
owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect
to (i) any statements, warranties or representations made in or in connection
with the Credit Agreement or any other related document, (ii) the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Credit Agreement or other related documents or any collateral thereunder, (iii)
the financial condition of the Borrower, any of its Subsidiaries or Affiliates
or any other Person obligated in respect of the Credit Agreement or other
related document or (iv) the performance or observance by the Borrower, any of
its Subsidiaries or Affiliates or any other Person of any of their respective
obligations under the Credit Agreement or any other related
document.
1.2. Assignee[s]. [The][Each]
Assignee (a) represents and warrants that (i) it has full power and authority,
and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become
a Lender under the Credit Agreement, (ii) it meets all the requirements to be an
assignee under Section 9.04(b) of the Credit Agreement (subject to such
consents, if any, as may be required under Section 9.04(b)(i) of the Credit
Agreement), (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Lender thereunder and, to the extent of
[the][the relevant] Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it is sophisticated with respect to decisions to acquire assets
of the type represented by the Assigned Interest and either it, or the person
exercising discretion in making its decision to acquire the Assigned Interest,
is experienced in acquiring assets of such type, (v) it has received a copy of
the Credit Agreement, and has received or has been accorded the opportunity to
receive copies of the most recent financial statements delivered pursuant to
Section 5.01 thereof, as applicable, and such other documents and information as
it deems appropriate to make its own credit analysis and decision to enter into
this Assignment and Assumption and to purchase [the][such] Assigned Interest,
(vi) it has, independently and without reliance upon the Administrative Agent or
any other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase [the][such] Assigned Interest, and
(vii) if it is a Foreign Lender, attached to the Assignment and Assumption is
any documentation required to be delivered by it pursuant to the terms of the
Credit Agreement, duly completed and executed by [the][such] Assignee; and (b)
agrees that (i) it will, independently and without reliance on the
Administrative Agent, [the][any] Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement or other related documents, and (ii) it will perform in accordance
with their terms all of the obligations which by the terms of the Credit
Agreement or other related documents are required to be performed by it as a
Lender.
2. Payments. From
and after the Effective Date, the Administrative Agent shall make all payments
in respect of [the][each] Assigned Interest (including payments of principal,
interest, fees and other amounts) to [the][the relevant] Assignor for amounts
which have accrued to but excluding the Effective Date and to [the][the
relevant] Assignee for amounts which have accrued from and after the Effective
Date.
3. General
Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page
of this Assignment and Assumption by telecopy shall be
1
effective
as delivery of a manually executed counterpart of this Assignment and
Assumption. This Assignment and Assumption shall be governed by, and
construed in accordance with, the law of the State of New York
2
EXHIBIT
B
FORM
OF BORROWING REQUEST
Dated
__________
The Royal
Bank of Scotland plc,
as
Administrative Agent
_____________
_____________,
_____________
Attn:
Syndication Agency Services
Ladies
and Gentlemen:
This
Borrowing Request is delivered to you by Enterprise Products Operating LLC (the
“Borrower”), a Texas limited liability company, under Section 2.03 of the
364-Day Revolving Credit Agreement dated as of November 17, 2008 (as restated,
amended, modified, supplemented and in effect, the “Credit Agreement”), by and
among the Borrower, the Lenders party thereto, and The Royal Bank of Scotland
plc, as Administrative Agent.
1. The
Company hereby requests that the Lenders make a Loan or Loans in the aggregate
principal amount of $______________ (the “Loan” or the “Loans”).1/
2. The
Company hereby requests that the Loan or Loans be made on the following Business
Day: 2/
3. The
Company hereby requests that the Loan or Loans bear interest at the following
interest rate, plus the
Applicable Rate, as set forth below:
|
Type
of
Loan
|
Principal
Component
of
Loan
|
Interest
Rate
|
Interest
Period
(if applicable)
|
Maturity
Date for
Interest
Period
(if applicable)
|
4. The
Company hereby requests that the funds from the Loan or Loans be disbursed to
the following bank account: ______________________________.
_________________________________________
1.
Complete with an amount in accordance with Section 2.03 of the Credit
Agreement.
2.
Complete with a Business Day in accordance with Section 2.03 of the Credit
Agreement.
1
5. After
giving effect to the requested Loan, the sum of the Exposures outstanding as of
the date hereof (including the requested Loans) does not exceed the maximum
amount permitted to be outstanding pursuant to the terms of the Credit
Agreement.
6. All
of the conditions applicable to the Loans requested herein as set forth in the
Credit Agreement have been satisfied as of the date hereof and will remain
satisfied to the date of such Loans.
7. All
capitalized undefined terms used herein have the meanings assigned thereto in
the Credit Agreement.
IN
WITNESS WHEREOF, the undersigned have executed this Borrowing Request this _____
day of _______________, ______.
ENTERPRISE
PRODUCTS OPERATING LLC
By: Enterprise
Products OLPGP, Inc.,
its Manager
By:____________________________________
Name:
Title:
2
RESERVED
1
EXHIBIT
D
FORM
OF
INTEREST
ELECTION REQUEST
Dated
_____________
The Royal
Bank of Scotland plc,
as
Administrative Agent
_____________
_____________,
_____________
Attn:
Syndication Agency Services
Ladies
and Gentlemen:
This
irrevocable Interest Election Request (the “Request”) is delivered to you under
Section 2.07 of the 364-Day Revolving Credit Agreement dated as of November 17,
2008 (as restated, amended, modified, supplemented and in effect from time to
time, the “Credit Agreement”), by and among Enterprise Products Operating LLC, a
Texas limited liability company (the “Company”), the Lenders party thereto (the
“Lenders”), and The Royal Bank of Scotland plc, as Administrative
Agent.
1. This
Interest Election Request is submitted for the purpose of:
(a) [Converting]
[Continuing] a ____________ Loan [into] [as] a ____________ Loan.1/
(b) The
aggregate outstanding principal balance of such Loan is
$______________.
(c) The
last day of the current Interest Period for such Loan is _____________.2/
(d) The
principal amount of such Loan to be [converted] [continued] is
$_____________.3/
(e) The
requested effective date of the [conversion] [continuation] of such Loan is
_______________.4/
(f) The
requested Interest Period applicable to the [converted] [continued] Loan is
____________________.5/
___________________________________________
1. Delete
the bracketed language and insert “Alternate Base Rate” or “LIBO Rate”, as
applicable, in each blank.
4.
Complete with a Business Day in compliance with Section 2.07 of the Credit
Agreement.
1
2. With
respect to a Borrowing to be converted to or continued as a Eurodollar
Borrowing, no Event of Default exists, and none will exist upon the conversion
or continuation of the Borrowing requested herein.
3. All
capitalized undefined terms used herein have the meanings assigned thereto in
the Credit Agreement.
IN
WITNESS WHEREOF, the undersigned has executed this Interest Election Request
this _____ day of ___________________, ____.
ENTERPRISE
PRODUCTS OPERATING LLC
By: Enterprise
Products OLPGP, Inc.,
its Manager
By:__________________________________
Name:
Title:
5. Complete
for each Eurodollar Loan in compliance with the definition of the term “Interest
Period” specified in Section 1.01.
2
EXHIBIT
E-1 and E-2
FORMS
OF
OPINIONS
OF COUNSEL FOR BORROWER AND EPD
EXHIBIT
F
FORM
OF COMPLIANCE CERTIFICATE
The
undersigned hereby certifies that he is the _______________________ of
ENTERPRISE PRODUCTS OLPGP, INC. a Delaware corporation, manager of ENTERPRISE
PRODUCTS OPERATING LLC, a Texas limited liability company (the “Borrower”), and
that as such he is authorized to execute this certificate on behalf of the
Borrower. With reference to the 364-Day Revolving Credit Agreement dated as of
November 17, 2008 (as restated, amended, modified, supplemented and in effect
from time to time, the “Agreement”), among the Borrower, The Royal Bank of
Scotland plc, as Administrative Agent, for the lenders (the “Lenders”), which
are or become a party thereto, and such Lenders, the undersigned represents and
warrants as follows (each capitalized term used herein having the same meaning
given to it in the Agreement unless otherwise specified);
(a) [There
currently does not exist any Default under the Agreement.] [Attached
hereto is a schedule specifying the details of [a] certain Default[s] which
exist under the Agreement and the action taken or proposed to be taken with
respect thereto.]
(b) Attached
hereto are the detailed computations necessary to determine whether the Borrower
is in compliance with Section 6.07 of the Agreement as of the end of the [fiscal
quarter][fiscal year] ending ________________.
EXECUTED
AND DELIVERED this ____ day of _________________, 20__.
ENTERPRISE
PRODUCTS OPERATING LLC
By: Enterprise
Products OLPGP, Inc.,
its Manager
By:_______________________________________
Name:
Title:
EXHIBIT
G
FORM OF
NOTE
(364-Day
Revolving Credit Facility)
|
$_____________
|
_______,
200__
|
ENTERPRISE
PRODUCTS OPERATING LLC, a Texas limited liability company (the “Borrower”), for value
received, promises and agrees to pay to ______________________________ (the
“Lender”), or
order, at the payment office of THE ROYAL BANK OF SCOTLAND plc, as
Administrative Agent, at ____________________________________________________,
the principal sum of ______________________________ AND NO/100 DOLLARS
($_____________), or such lesser amount as shall equal the aggregate unpaid
principal amount of the Loans owed to the Lender under the Credit Agreement, as
hereafter defined, in lawful money of the United States of America and in
immediately available funds, on the dates and in the principal amounts provided
in the Credit Agreement, and to pay interest on the unpaid principal amount as
provided in the Credit Agreement for such Loans, at such office, in like money
and funds, for the period commencing on the date of each such Loan until such
Loan shall be paid in full, at the rates per annum and on the dates provided in
the Credit Agreement.
This note
evidences the Loans owed to the Lender under that certain 364-Day Revolving
Credit Agreement dated as of November 17, 2008, by and among the Borrower, The
Royal Bank of Scotland plc, individually, as Administrative Agent, and the other
financial institutions parties thereto (including the Lender) (such Credit
Agreement, together with all amendments or supplements thereto, being the “Credit Agreement”),
and shall be governed by the Credit Agreement. Capitalized terms used
in this note and not defined in this note, but which are defined in the Credit
Agreement, have the respective meanings herein as are assigned to them in the
Credit Agreement.
The
Lender is hereby authorized by the Borrower to endorse on Schedule A (or a
continuation thereof) attached to this note, the Type of each Loan owed to the
Lender, the amount and date of each payment or prepayment of principal of each
such Loan received by the Lender and the Interest Periods and interest rates
applicable to each Loan, provided that any failure by the Lender to make any
such endorsement shall not affect the obligations of the Borrower under the
Credit Agreement or under this note in respect of such Loans.
This note
may be held by the Lender for the account of its applicable lending office and,
except as otherwise provided in the Credit Agreement, may be transferred from
one lending office of the Lender to another lending office of the Lender from
time to time as the Lender may determine.
Except
only for any notices which are specifically required by the Credit Agreement,
the Borrower and any and all co-makers, endorsers, guarantors and sureties
severally waive notice (including but not limited to notice of intent to
accelerate and notice of acceleration, notice of protest and notice of
dishonor), demand, presentment for payment, protest, diligence in collecting and
the filing of suit for the purpose of fixing liability, and consent that the
time of payment hereof may be extended and re-extended from time to time without
notice to any of them. Each such person agrees that its liability on
or with respect to this note shall not be affected by any release of or change
in any guaranty or security at any time existing or by any
1
failure
to perfect or maintain perfection of any lien against or security interest in
any such security or the partial or complete unenforceability of any guaranty or
other surety obligation, in each case in whole or in part, with or without
notice and before or after maturity.
The
Credit Agreement provides for the acceleration of the maturity of this note upon
the occurrence of certain events and for prepayment of Loans upon the terms and
conditions specified therein. Reference is made to the Credit
Agreement for all other pertinent purposes.
This note
is issued pursuant to and is entitled to the benefits of the Credit
Agreement.
It is
hereby understood and agreed that Enterprise Products OLPGP, Inc., the Manager
of the Borrower, shall have no personal liability, as Manager or otherwise, for
the payment of any amount owing or to be owing hereunder.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY
THE LAW OF THE STATE OF NEW YORK AND THE UNITED STATES OF AMERICA FROM TIME TO
TIME IN EFFECT.
ENTERPRISE
PRODUCTS OPERATING LLC
By: Enterprise
Products OLPGP, Inc.,
its Manager
By:_________________________________________
Name:
Title:
2
SCHEDULE
A
TO
NOTE
(364-Day
Revolving Credit Facility)
This note
evidences the Loans owed to the Lender under the Credit Agreement, in the
principal amount set forth below and the applicable Interest Periods and rates
for each such Loan, subject to the payments of principal set forth
below:
SCHEDULE
OF
LOANS AND PAYMENTS OF
PRINCIPAL AND INTEREST
|
Date
|
Interest
Period
|
Rate
|
Principal
Amount
of
Loan
|
Amount
of Principal
Paid
or Prepaid
|
Interest
Rate
|
Balance
of
Loans
|
Notation
Made
by
|
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
3
EXHIBIT 10.4
GUARANTY
AGREEMENT
THIS GUARANTY AGREEMENT, dated as of
November 17, 2008, by ENTERPRISE PRODUCTS PARTNERS L.P., a Delaware limited
partnership (the “Guarantor”), is in
favor of THE ROYAL BANK OF SCOTLAND plc, as Administrative Agent (the “Agent”) for the
several lenders ( “Lenders”) that are or
become parties to the Credit Agreement defined below.
W I T N E S S E T H:
WHEREAS, ENTERPRISE PRODUCTS OPERATING
LLC, a Texas limited liability company (the “Borrower”), the
Agent, and Lenders have entered into that certain $375,000,000 364-Day Revolving
Credit Agreement of even date herewith (as the same may be amended, supplemented
or otherwise modified from time to time, the “Credit Agreement”);
and
WHEREAS, one of the terms and
conditions stated in the Credit Agreement for the making of the loans described
therein is the execution and delivery to the Agent for the benefit of the
Lenders of this Guaranty Agreement;
NOW, THEREFORE, (i) in order to comply
with the terms and conditions of the Credit Agreement, (ii) to induce the
Lenders, at any time or from time to time, to loan monies, with or without
security to or for the account of Borrower in accordance with the terms of the
Credit Agreement, (iii) at the special insistence and request of the Lenders,
and (iv) for other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Guarantor hereby agrees as
follows:
General
Terms
“Guarantor Claims”
shall have the meaning indicated in Section 4.1 hereof.
“Guaranty Agreement”
shall mean this Guaranty Agreement, as the same may from time to time be
amended, supplemented, or otherwise modified.
“Liabilities” shall
mean (a) any and all Indebtedness of the Borrower pursuant to the Credit
Agreement, including without limitation (i) the unpaid principal of and interest
on the Loans, including without limitation, interest accruing subsequent to the
filing of a petition or other action concerning bankruptcy or other similar
proceeding, and (ii) payment of any reimbursement obligations of the
Borrower
1
in
respect of any other amount owed by the Borrower under the Credit Agreement,
including without limitation, fees and indemnity payments, and (b) all renewals,
rearrangements, increases, extensions for any period, amendments, supplements,
exchanges or reissuances in whole or in part of the Indebtedness of Borrower
under the Credit Agreement, or any other documents or instruments evidencing any
of the above.
ARTICLE
2
The
Guaranty
2
Agent in
its discretion may determine; and to obtain a guaranty of the Liabilities from
any one or more Persons and at any time or times to enforce, waive, rearrange,
modify, limit or release any of such other Persons from their obligations under
such guaranties.
(a) General. Guarantor
waives any right to require any of the Lenders to (i) proceed against Borrower
or any other person liable on the Liabilities, (ii) enforce any of their rights
against any other guarantor of the Liabilities, (iii) proceed or enforce any of
their rights against or exhaust any security given to secure the Liabilities,
(iv) have Borrower joined with Guarantor in any suit arising out of this
Guaranty Agreement and/or the Liabilities, or (v) pursue any other remedy in the
Lenders' powers whatsoever. Except as provided in the Credit
Agreement, the Lenders shall not be required to mitigate damages or take any
action to reduce, collect or enforce the Liabilities, and the failure to so
mitigate or take any such action shall not release the Guarantor from this
Guaranty Agreement. Guarantor waives any defense arising by reason of
any disability, lack of partnership authority or power, or other defense of
Borrower or any other guarantor of the Liabilities, and shall remain liable
hereon regardless of whether Borrower or any other guarantor be found not liable
thereon for any reason. Whether and when to exercise any of the
remedies of the Lenders under the Credit Agreement shall be in the sole and
absolute discretion of the Agent, and no delay by the Agent in enforcing any
remedy, including delay in conducting a foreclosure sale, shall be a defense to
the Guarantor's liability under this Guaranty Agreement. To the
extent allowed by applicable law, the Guarantor hereby waives any good faith
duty on the part of the Agent in exercising any remedies provided in the Credit
Agreement.
(b) Subrogation. Until
the Liabilities have been paid in full, the Guarantor waives all rights of
subrogation or reimbursement against the Borrower, whether arising by contract
or operation of law (including, without limitation, any such right arising under
any federal or state bankruptcy or insolvency laws) and waives any right to
enforce any remedy which the Lenders now have or may hereafter have against the
Borrower, and waives any benefit or any right to participate in any security now
or hereafter held by the Agent or any Lender.
3
hereunder,
or if any amount owing by Guarantor hereunder is collected through such
proceedings, Guarantor agrees to pay to the Agent the Agent's reasonable
attorneys' fees.
(a) Modifications,
etc. Any renewal, extension, modification, increase, decrease,
alteration, rearrangement, exchange or reissuance of all or any part of the
Liabilities, or the Credit Agreement or any instrument executed in connection
therewith, or any contract or understanding between Borrower and any of the
Lenders, or any other Person, pertaining to the Liabilities;
(b) Adjustment,
etc. Any adjustment, indulgence, forbearance or compromise
that might be granted or given by any of the Lenders to Borrower or Guarantor or
any Person liable on the Liabilities;
(c) Condition of Borrower or
Guarantor. The insolvency, bankruptcy arrangement, adjustment,
composition, liquidation, disability, dissolution, death or lack of power of
Borrower or Guarantor or any other Person at any time liable for the payment of
all or part of the Liabilities; or any dissolution of Borrower or Guarantor, or
any sale, lease or transfer of any or all of the assets of Borrower or
Guarantor, or any changes in the shareholders, partners, or members of Borrower
or Guarantor; or any reorganization of Borrower or Guarantor;
(d) Invalidity of
Liabilities. The invalidity, illegality or unenforceability of
all or any part of the Liabilities, or any document or agreement executed in
connection with the Liabilities, for any reason whatsoever, including without
limitation the fact that the Liabilities, or any part thereof, exceed the amount
permitted by law, the act of creating the Liabilities or any part thereof is
ultra vires, the officers
or representatives executing the documents or otherwise creating the Liabilities
acted in excess of their authority, the Liabilities violate applicable usury
laws, the Borrower has valid defenses, claims or offsets (whether at law, in
equity or by agreement) which render the Liabilities wholly or partially
uncollectible from Borrower, the creation, performance or repayment of the
Liabilities (or the execution, delivery and performance of any document or
instrument representing part of the Liabilities or executed in connection with
the Liabilities, or given to secure the repayment of the Liabilities) is
illegal, uncollectible, legally impossible or unenforceable, or the Credit
Agreement or other documents or instruments pertaining to the Liabilities have
been forged or otherwise are irregular or not genuine or authentic;
4
(e) Release of
Obligors. Any full or partial release of the liability of
Borrower on the Liabilities or any part thereof, of any co-guarantors, or any
other Person now or hereafter liable, whether directly or indirectly, jointly,
severally, or jointly and severally, to pay, perform, guarantee or assure the
payment of the Liabilities or any part thereof, it being recognized,
acknowledged and agreed by Guarantor that Guarantor may be required to pay the
Liabilities in full without assistance or support of any other Person, and
Guarantor has not been induced to enter into this Guaranty Agreement on the
basis of a contemplation, belief, understanding or agreement that other parties
other than the Borrower will be liable to perform the Liabilities, or the
Lenders will look to other parties to perform the Liabilities.
(f) Other
Security. The taking or accepting of any other security,
collateral or guaranty, or other assurance of payment, for all or any part of
the Liabilities;
(g) Release of Collateral,
etc. Any release, surrender, exchange, subordination,
deterioration, waste, loss or impairment (including without limitation
negligent, willful, unreasonable or unjustifiable impairment) of any collateral,
property or security, at any time existing in connection with, or assuring or
securing payment of, all or any part of the Liabilities;
(h) Care and
Diligence. The failure of the Lenders or any other Person to
exercise diligence or reasonable care in the preservation, protection,
enforcement, sale or other handling or treatment of all or any part of such
collateral, property or security;
(i) Status of
Liens. The fact that any collateral, security, security
interest or lien contemplated or intended to be given, created or granted as
security for the repayment of the Liabilities shall not be properly perfected or
created, or shall prove to be unenforceable or subordinate to any other security
interest or lien, it being recognized and agreed by Guarantor that Guarantor is
not entering into this Guaranty Agreement in reliance on, or in contemplation of
the benefits of, the validity, enforceability, collectability or value of any
collateral for the Liabilities;
(j) Payments
Rescinded. Any payment by Borrower to the Lenders is held to
constitute a preference under the bankruptcy laws, or for any reason the Lenders
are required to refund such payment or pay such amount to Borrower or someone
else; or
(k) Other Actions Taken or
Omitted. Any other action taken or omitted to be taken with
respect to the Credit Agreement, the Liabilities, or the security and collateral
therefor, whether or not such action or omission prejudices Guarantor or
increases the likelihood that Guarantor will be required to pay the Liabilities
pursuant to the terms hereof; it being the unambiguous and
5
unequivocal
intention of Guarantor that Guarantor shall be obligated to pay the Liabilities
when due, notwithstanding any occurrence, circumstance, event, action, or
omission whatsoever, whether contemplated or uncontemplated, and whether or not
otherwise or particularly described herein, except for the full and final
payment and satisfaction of the Liabilities.
Representations and
Warranties
(a) Benefit to
Guarantor. Guarantor's guaranty pursuant to this Guaranty
Agreement reasonably may be expected to benefit, directly or indirectly,
Guarantor.
(b) Existence. Guarantor
is a limited partnership duly organized and legally existing under the laws of
the State of Delaware and is duly qualified in all jurisdictions wherein the
property owned or the business transacted by it makes such qualification
necessary, except where the failure to be so qualified could reasonably be
expected to have a Material Adverse Effect.
(c) Power and
Authorization. Guarantor is duly authorized and empowered to
execute, deliver and perform this Guaranty Agreement and all action on
Guarantor's part requisite for the due execution, delivery and performance of
this Guaranty Agreement has been duly and effectively taken.
(d) Binding
Obligations. This Guaranty Agreement constitutes a valid and
binding obligation of Guarantor, enforceable in accordance with its terms
(except that enforcement may be subject to any applicable bankruptcy, insolvency
or similar laws generally affecting the enforcement of creditors'
rights).
(e) No Legal
Bar. This Guaranty Agreement will not violate any provisions
of Guarantor's limited partnership agreement or any contract, agreement, law,
regulation, order, injunction, judgment, decree or writ to which Guarantor is
subject.
(f) No
Consent. Guarantor's execution, delivery and performance of
this Guaranty Agreement does not require the consent or approval of any other
Person, including without limitation any regulatory authority or governmental
body of the United States or any state thereof or any political subdivision of
the United States or any state thereof.
(g) Solvency. The
Guarantor hereby represents that (i) it is not insolvent as of the date hereof
and will not be rendered insolvent as a result of this
6
Guaranty
Agreement, (ii) it is not engaged in business or a transaction, or about to
engage in a business or a transaction, for which any property or assets
remaining with such Guarantor is unreasonably small capital, and (iii) it does
not intend to incur, or believe it will incur, debts that will be beyond its
ability to pay as such debts mature.
Subordination of
Indebtedness
7
prohibited
by such Sections, Guarantor agrees to hold in trust for the Lenders an amount
equal to the amount of all funds, payments, claims or distributions so received,
and agrees that it shall have absolutely no dominion over the amount of such
funds, payments, claims or distributions except to pay them promptly to the
Agent, and Guarantor covenants promptly to pay the same to the
Agent.
Miscellaneous
8
Section 5.7 Submission to
Jurisdiction. The Guarantor hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Guaranty Agreement, or for recognition or
enforcement of any judgment, and the Guarantor hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. The Guarantor agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Guaranty Agreement shall affect any
right that the Administrative Agent may otherwise have to bring any action or
proceeding relating to this Guaranty Agreement against the Guarantor or its
properties in the courts of any jurisdiction. The Guarantor hereby
irrevocably and unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to
this Guaranty Agreement in any court referred to above. The Guarantor
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court. The Guarantor irrevocably consents to service of process
in the manner provided for notices in Section 5.2 above. Nothing in
this Guaranty Agreement will affect the right of Administrative Agent or any
Lender to serve process in any other manner permitted by law.
SECTION 5.8 WAIVER OF JURY
TRIAL. THE GUARANTOR HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
GUARANTY AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). THE GUARANTOR (A) CERTIFIES THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ADMINISTRATIVE AGENT, ANY LENDER OR ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND
9
ADMINISTRATIVE
AGENT, BY ITS ACCEPTANCE HEREOF, HAVE BEEN INDUCED TO ENTER INTO OR ACCEPT THIS
GUARANTY AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION.
10
WITNESS THE EXECUTION HEREOF, as of the
date first above written.
|
ENTERPRISE PRODUCTS PARTNERS
L.P.,
|
||||
| a Delaware limited partnership | ||||
|
By: Enterprise
Products GP, LLC, General Partner
|
||||
|
|
By: /s/
Bryan F.
Bulawa
|
|||
|
Bryan
F. Bulawa
Vice
President and Treasurer
|
||||
| 1100 Louisiana Street, 10th Floor | ||||
| Houston, Texas 77002 | ||||
EXHIBIT
10.5
AGREEMENT
OF LIMITED PARTNERSHIP
OF
EPCO
UNIT L.P.
Dated
as of
November
13, 2008
|
TABLE
OF CONTENTS
|
||
|
ARTICLE
I
|
||
|
DEFINITIONS
|
||
|
1.01
|
Certain
Definitions
|
1
|
|
1.02
|
Other
Definitions
|
5
|
|
ARTICLE
II
|
||
|
ORGANIZATIONAL
MATTERS
|
||
|
2.01
|
Formation
|
5
|
|
2.02
|
Name
|
5
|
|
2.03
|
Registered
Office; Registered Agent; Other Offices
|
6
|
|
2.04
|
Purposes
|
6
|
|
2.05
|
Certificate;
Foreign Qualification
|
6
|
|
2.06
|
Term
|
6
|
|
2.07
|
Merger
or Consolidation
|
6
|
|
ARTICLE
III
|
||
|
PARTNERS;
DISPOSITIONS OF INTERESTS
|
||
|
3.01
|
Partners
|
6
|
|
3.02
|
Representations
and Warranties
|
7
|
|
3.03
|
Restrictions
on the Disposition of an Interest
|
7
|
|
3.04
|
Additional
Partners
|
9
|
|
3.05
|
Interests
in a Partner
|
9
|
|
3.06
|
Spouses
of Partners
|
9
|
|
3.07
|
Vesting
of Limited Partners
|
9
|
|
3.08
|
Services
Provided by the Partners
|
10
|
|
ARTICLE
IV
|
||
|
CAPITAL
CONTRIBUTIONS
|
||
|
4.01
|
Initial
and Additional Capital Contributions
|
10
|
|
4.02
|
Return
of Contributions
|
10
|
|
4.03
|
Advances
by General Partner
|
10
|
|
4.04
|
Capital
Accounts
|
11
|
|
ARTICLE
V
|
||
|
ALLOCATIONS
AND DISTRIBUTIONS
|
||
|
5.01
|
Allocations
|
11
|
|
5.02
|
Income
Tax Allocations
|
14
|
|
5.03
|
Distributions
of Cash flow from EPD Units
|
14
|
|
5.04
|
Distributions
of Proceeds from Sales of EPD Units
|
15
|
|
5.05
|
Restrictions
on Distributions of EPD Units
|
15
|
i
|
ARTICLE
VI
|
||
|
MANAGEMENT
AND OPERATION
|
||
|
6.01
|
Management
of Partnership Affairs
|
15
|
|
6.02
|
Duties
and Obligations of General Partner
|
16
|
|
6.03
|
Release
and Indemnification
|
16
|
|
6.04
|
Power
of Attorney
|
17
|
|
ARTICLE
VII
|
||
|
RIGHTS
OF OTHER PARTNERS
|
||
|
7.01
|
Information
|
18
|
|
7.02
|
Limitations
|
19
|
|
7.03
|
Limited
Liability
|
19
|
|
ARTICLE
VIII
|
||
|
TAXES
|
||
|
8.01
|
Tax
Returns
|
19
|
|
8.02
|
Tax
Elections
|
19
|
|
8.03
|
Tax
Matters Partner
|
20
|
|
ARTICLE
IX
|
||
|
BOOKS,
RECORDS, REPORTS, AND BANK ACCOUNTS
|
||
|
9.01
|
Maintenance
of Books
|
20
|
|
9.02
|
Financial
Statements
|
20
|
|
9.03
|
Bank
Accounts
|
20
|
|
ARTICLE
X
|
||
|
WITHDRAWAL,
BANKRUPTCY, REMOVAL, ETC.
|
||
|
10.01
|
Withdrawal,
Bankruptcy, Etc. of the General Partner
|
20
|
|
10.02
|
Conversion
of Interest
|
21
|
|
ARTICLE
XI
|
||
|
DISSOLUTION,
LIQUIDATION, AND TERMINATION
|
||
|
11.01
|
Dissolution
|
22
|
|
11.02
|
Liquidation
and Termination
|
22
|
|
11.03
|
Cancellation
of Certificate
|
23
|
|
ARTICLE
XII
|
||
|
GENERAL
PROVISIONS
|
||
|
12.01
|
Offset
|
24
|
|
12.02
|
Notices
|
24
|
|
12.03
|
Entire
Agreement; Supersedure
|
24
|
ii
|
12.04
|
Effect
of Waiver or Consent
|
24
|
|
12.05
|
Amendment
or Modification
|
24
|
|
12.06
|
Binding
Effect; Joinder of Additional Parties
|
24
|
|
12.07
|
Construction
|
25
|
|
12.08
|
Further
Assurances
|
25
|
|
12.09
|
Indemnification
|
25
|
|
12.10
|
Waiver
of Certain Rights
|
25
|
|
12.11
|
Counterparts
|
25
|
|
12.12
|
Dispute
Resolution
|
25
|
|
12.13
|
No
Effect on Employment Relationship
|
28
|
|
12.14
|
Legal
Representation
|
28
|
iii
AGREEMENT
OF LIMITED PARTNERSHIP
OF
EPCO
UNIT L.P.
This
Agreement of Limited Partnership (this “Agreement”) of EPCO
Unit L.P., a Delaware limited partnership (the “Partnership”), is
made and entered into effective as of November 13, 2008 by and among the
Partners (as defined below).
RECITALS
FOR AND
IN CONSIDERATION OF the mutual covenants, rights, and obligations set forth
herein, the benefits to be derived therefrom, and other good and valuable
consideration, the receipt and sufficiency of which each Partner acknowledges
and confesses, the Partners hereby agree as follows:
ARTICLE I
DEFINITIONS
1.01 Certain
Definitions. As
used in this Agreement, the following terms have the following respective
meanings:
“Act” means the
Delaware Revised Uniform Limited Partnership Act and any successor statute, as
amended from time to time.
“Adjusted Capital
Account” means, with respect to any Partner, the balance in such
Partner’s Capital Account after giving effect to the following
adjustments:
(a) Credit
to such Capital Account of any amounts that such Partner is obligated or deemed
obligated to contribute pursuant to the penultimate sentences of Sections
1.704-2(g)(1) and 1.704-2(i)(5) of the Regulations; and
(b) Debit
to such Capital Account the items described in Sections 1.704-1(b)(2)(ii)(d)(4),
1.704-1(b)(2)(ii)(d)(5) and 1.704-1(b)(2)(ii)(d)(6) of the
Regulations.
The
foregoing definition of Adjusted Capital Account is intended to comply with the
provisions of Section 1.704-1(b)(2)(ii)(d) of the Regulations and shall be
interpreted consistently therewith.
“Adjustment Date”
means (i) the date on which any distributions are made pursuant to Section 5.03, but no
later than the fifth Business Day following the payment date for each
distribution made by EPD with respect to the EPD Units, and (ii) as soon as
practicable following the receipt of proceeds by the Partnership from the
disposition of EPD Units, but no later than the fifth Business Day following the
receipt of any proceeds by the Partnership from the disposition of EPD
Units.
“Affiliate” means with
respect to any Person any other Person that directly or indirectly through one
or more intermediaries, controls or is controlled by, or is under common control
with, the Person specified. For the purpose of this definition,
“control” shall
mean the
possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
“Agreement” has the
meaning given it in the introductory paragraph hereof.
“Applicable
Percentage” means with respect to a disposition of less than all the EPD
Units owned by the Partnership, the quotient (expressed as a percentage) of the
number of EPD Units held by the Partnership immediately after such disposition
divided by the number of EPD Units held by the Partnership immediately before
such disposition.
“Bankrupt Partner”
means any Partner (whether a General Partner or a Limited Partner) with respect
to which an event of the type described in Section 17-402(a)(4) or (5) of the
Act (or any equivalent successor provision) shall have occurred, subject to the
lapsing of any period of time therein specified.
“Business Day” means
any day other than a Saturday, Sunday, or day on which commercial banks in the
State of Texas are authorized or required to be closed for
business.
“Capital Account”
means the account maintained for each Partner pursuant to Section 4.04.
“Capital Contribution”
means any contribution by a Partner to the capital of the
Partnership.
“Certificate” means
the Certificate of Limited Partnership of the Partnership referred to in Section 2.05, as
it may be amended or restated from time to time.
“Change of Control”
means Duncan shall (i) cease to own, directly or indirectly, at least a majority
of the equity interests in the General Partner or the general partners of EPD or
(ii) shall cease to have the ability to elect, directly or indirectly, at least
a majority of the directors of the general partners of EPD.
“Class A Capital Base”
means the amount of any contributions of cash or cash equivalents made by the
Class A Limited Partner to the Partnership, adjusted on each Adjustment Date as
follows:
(a) increased
by the Class A Preference Return that has accrued since the previous Adjustment
Date (or in the case of the first Adjustment Date, since the Closing Date);
and
(b) decreased
by all distributions made to the Class A Limited Partner since the previous
Adjustment Date (or in the case of the first Adjustment Date, since the Closing
Date).
“Class A Limited
Partner” means DFI Delaware Holdings L.P., a Delaware limited
partnership, and its successors and assigns.
2
“Class A Preference
Return” means the sum of the amounts determined for each day, equal to
(i) the Class A Preference Return Rate multiplied by (ii) the Class A Capital
Base plus the amount, if any, of guarantees issued by the Class A Limited
Partner or its affiliate in lieu of collateral that would otherwise be required
pursuant to margin loans or other loans made to the Partnership.
“Class A Preference Return
Amount” means the aggregate Class A Preference Return minus all prior
distributions to the Class A Limited Partner pursuant to Sections 5.03(a)
and 5.04(a).
“Class A Preference Return
Rate” means a percent per annum equal to 4.87%, divided by 365 or
366 days, as the case may be during such calendar year.
“Class B Limited
Partner” means any Person executing (by power of attorney or otherwise)
this Agreement as of the date hereof as a Class B Limited Partner or hereafter
admitted to the Partnership as a Class B Limited Partner as herein provided, but
shall not include any Person who has ceased to be a Class B Limited Partner in
the Partnership.
“Class B Percentage
Interest” means with respect to each Class B Limited Partner the quotient
(expressed as a percentage) of (i) such Class B Limited Partner’s Sharing
Points, divided by (ii) the Sharing Points of all Class B Limited
Partners. For purposes of calculating the Class B Percentage
Interest, Sharing Points attributable to interests in the Partnership that are
forfeited pursuant to Section 3.07
shall be ignored.
“Closing Date” means
the date on which the Class A Limited Partner first contributes the Initial
Contribution to the Partnership.
“Code” means the
Internal Revenue Code of 1986, and any successor statute, as amended from time
to time.
“Default Interest
Rate” means a varying per annum rate equal at any given time to the
lesser of (a) four percentage points in excess of the General Interest Rate and
(b) the maximum rate permitted by applicable law.
“Disability” means the
event whereby a Limited Partner becomes entitled to receive long-term disability
benefits under the long-term disability plan of the General Partner or any of
its Affiliates.
“Dispose,” “Disposing,” or “Disposition” means a
sale, assignment, transfer, exchange, mortgage, pledge, grant of a security
interest, or other disposition or encumbrance, or the acts thereof, other than
by divorce, legal separation or other dissolution of a Partner’s
marriage.
“Duncan” means,
collectively, individually or in any combination, Dan L. Duncan, his wife,
descendants, heirs and/or legatees and/or distributees of Dan L. Duncan’s
estate, and/or trusts established for the benefit of his wife, descendants, such
legatees and/or distributees and/or their respective descendants, heirs,
legatees and distributees.
“EPCO” means EPCO,
Inc., a Texas corporation.
3
“EPD” means Enterprise
Products Partners LP, a Delaware limited partnership, and its
successors.
“EPD Units” means
common units representing limited partner interests in EPD.
“General Interest
Rate” means a varying per annum rate equal at any given time to the
lesser of (a) the interest rate publicly quoted by J.P. Morgan Chase from time
to time as its prime commercial or similar reference interest rate, and (b) the
maximum rate permitted by applicable law.
“General Partner”
means EPCO or any Person hereafter admitted to the Partnership as a general
partner as herein provided, but shall not include any Person who has ceased to
be a general partner in the Partnership.
“Initial Contribution”
has the meaning given in Section 4.01
hereof.
“Limited Partner”
means the Class A Limited Partner or any Class B Limited Partner.
“Net Income” and
“Net Loss”
mean, respectively, subject to Section 4.04, an
amount equal to the Partnership’s taxable income or loss determined in
accordance with Code Section 703(a) (for this purpose, all items of income,
gain, loss, or deduction required to be stated separately pursuant to Code
Section 703(a)(1) shall be included in taxable income or loss), with the
following adjustments:
(a) Any
income of the Partnership that is exempt from federal income tax and not
otherwise taken into account in computing Net Income or Net Loss pursuant to
this definition of Net Income and Net Loss shall be added to such taxable income
or loss;
(b) Any
expenditures of the Partnership described in Code Section 705(a)(2)(B) or
treated as Code Section 705(a)(2)(B) expenditures pursuant to Section
1.704-1(b)(2)(iv)(i) of the Regulations, and not otherwise taken into account in
computing Net Income or Net Loss pursuant to this definition of Net Income and
Net Loss, shall be subtracted from such taxable income or loss;
(c) In
the event the value of any Partnership property is adjusted pursuant to Section 4.04 (i)
such adjustment shall be taken into account as gain or loss from the disposition
of such Partnership property for purposes of computing Net Income or Net Loss,
(ii) if such property is subject to depreciation, cost recovery, depletion or
amortization, any further deductions for such depreciation, cost recovery,
depletion or amortization attributable to such property shall be determined
taking into account such adjustment, and (iii) in determining the amount of any
income, gain or loss attributable to the taxable disposition of such property
such adjustment (and the related adjustments for depreciation, cost recovery,
depletion or amortization) shall be taken into account;
(d) To
the extent an adjustment to the adjusted tax basis of any Partnership Property
pursuant to Code Section 734(b) is required, pursuant to Section
1.704-1(b)(2)(iv)(m)(4) of the Regulations, to be taken into account in
determining Capital Accounts as a result of a Distribution other than in
liquidation of a Partner’s interest in the
4
Partnership,
the amount of such adjustment shall be treated as an item of gain (if the
adjustment increases the basis of the asset) or loss (if the adjustment
decreases such basis) from the disposition of such Partnership Property and
shall be taken into account for purposes of computing Net Income or Net Loss;
and
(e) Any
items that are allocated pursuant to Section 5.01(b)
shall not be taken into account in computing Net Income or Net
Loss.
“Partner” means the
General Partner, the Class A Limited Partner or any Class B Limited
Partner.
“Partnership” has the
meaning given it in the introductory paragraph.
“Person” has the
meaning given it in the Act.
“Qualifying
Termination” means the termination of a Class B Limited Partner’s
employment with the General Partner and its Affiliates due to (i) death, (ii)
receiving long-term disability benefits under the long-term disability plan of
the General Partner or any of its Affiliates or (iii) retirement with the
approval of the General Partner on or after reaching age 60.
“Regulations” means
the regulations promulgated under Section 704 of the Code.
“Required Interest”
means one or more Class B Limited Partners having among them more than 50% of
the Class B Percentage Interests of all Limited Partners in its or their
capacities as such.
“Sharing Points”
means, with respect to each Class B Limited Partner, the number of Sharing
Points granted by the General Partner to such Class B Limited Partner (which
number is set forth on the Power of Attorney executed by the Class B Limited
Partner and delivered to the General Partner), as the same may be amended from
time to time pursuant to the terms of this Agreement.
“Vesting Date” means
the earliest of (i) the fifth anniversary of the date of this Agreement, (ii) a
Change of Control or (iii) dissolution of the Partnership.
1.02 Other
Definitions. Other
terms defined herein have the meanings so given them.
ARTICLE II
ORGANIZATIONAL
MATTERS
2.01 Formation. The
Partnership has been previously formed as a Delaware limited partnership for the
purposes hereinafter set forth under and pursuant to the provisions of the
Act.
2.02 Name. The
name of the Partnership is “EPCO Unit L.P.” and all Partnership business shall
be conducted in such name or such other name or names that comply with
applicable law as the General Partner may designate from time to
time.
5
2.03 Registered Office;
Registered Agent; Other Offices. The
registered office of the Partnership in the State of Delaware shall be at such
place as the General Partner may designate from time to time. The
registered agent for service of process on the Partnership in the State of
Delaware or any other jurisdiction shall be such Person or Persons as the
General Partner may designate from time to time. The Partnership may
have such other offices as the General Partner may designate from time to
time.
2.04 Purposes. The
purposes of the Partnership are to acquire, own, sell, exchange or otherwise
dispose of EPD Units, and to enter into, make and perform all contracts and
other undertakings and to engage in any other business, activity or transaction
that now or hereafter may be necessary, incidental, proper, advisable, or
convenient, as determined by the General Partner, to accomplish the foregoing
purposes. For purposes of clarification and without limiting the
foregoing, the General Partner may acquire any EPD Units and make any allocation
in acquiring EPD Units in its sole discretion, and may incur indebtedness in
connection with the acquisition of EPD Units in its sole
discretion.
2.05 Certificate; Foreign
Qualification. The
General Partner has previously executed and caused to be filed with the
Secretary of State of the State of Delaware a Certificate of Limited
Partnership, effective as of September 25, 2008, containing information required
by the Act and such other information as the General Partner deemed
appropriate. Prior to conducting business in any jurisdiction other
than Delaware, the General Partner shall cause the Partnership to comply, to the
extent such matters are reasonably within the control of the General Partner,
with all requirements necessary to qualify the Partnership as a foreign limited
partnership (or a partnership in which the Limited Partners have limited
liability) in such jurisdiction. Upon the request of the General
Partner, each Partner shall execute, acknowledge, swear to, and deliver all
certificates and other instruments conforming with this Agreement that are
necessary or appropriate as determined by the General Partner to qualify,
continue, and terminate the Partnership as a limited partnership under the laws
of the State of Delaware and to qualify, continue, and terminate the Partnership
as a foreign limited partnership (or a partnership in which the Limited Partners
have limited liability) in all other jurisdictions in which the Partnership may
conduct business, and to this end the General Partner may use the power of
attorney described in Section 6.04.
2.06 Term. The
term of this Partnership shall continue in existence until the close of
Partnership business on the earliest to occur of (i) the fiftieth anniversary of
the date of this Agreement, and (ii) such earlier time as this Agreement may
specify.
2.07 Merger or
Consolidation. The
Partnership may merge or consolidate with or into another business entity, or
enter into an agreement to do so, with the consent of the General Partner and a
Required Interest.
ARTICLE III
PARTNERS; DISPOSITIONS OF
INTERESTS
3.01 Partners. The
General Partner, the Class A Limited Partner and the Class B Limited Partners of
the Partnership are the Persons executing (by power of attorney or
otherwise)
6
this
Agreement as of the date hereof as the General Partner, the Class A Limited
Partner and the Class B Limited Partners, respectively, each of which is
admitted to the Partnership as the General Partner, Class A Limited Partner or a
Class B Limited Partner, as the case may be, effective as of the date
hereof.
3.02 Representations and
Warranties. Each
Partner hereby represents and warrants to the Partnership and each other Partner
that (a) if such Partner is a corporation, it is duly organized, validly
existing, and in good standing under the laws of the jurisdiction of its
incorporation and is duly qualified and in good standing as a foreign
corporation in the jurisdiction of its principal place of business (if not
incorporated therein), (b) if such Partner is a trust, estate or other entity,
it is duly formed, validly existing, and (if applicable) in good standing under
the laws of the jurisdiction of its formation, and if required by law is duly
qualified to do business and (if applicable) in good standing in the
jurisdiction of its principal place of business (if not formed therein), (c)
such Partner has full corporate, trust, or other applicable right, power and
authority to enter into this Agreement and to perform its obligations hereunder
and all necessary actions by the board of directors, trustees, beneficiaries, or
other Persons necessary for the due authorization, execution, delivery, and
performance of this Agreement by such Partner have been duly taken, and such
authorization, execution, delivery, and performance do not conflict with any
other agreement or arrangement to which such Partner is a party or by which it
is bound, and (d) such Partner is acquiring its interest in the Partnership for
investment purposes and not with a view to distribution thereof.
3.03 Restrictions on the
Disposition of an Interest.
(a) No Class
B Limited Partner may Dispose of all or part of its interest in the Partnership
without the prior written consent (which may be given or withheld in its sole
discretion) of the General Partner, and then only after Sections 3.03(c),
(d) and (e) have been
complied with, except that Class B Limited Partners may Dispose of all of its
interest upon the death of such Class B Limited Partner or upon becoming a
Bankrupt Partner, but in each case only after compliance with Sections 3.03(c),
(d) and (e). Neither
the General Partner nor the Class A Limited Partner may Dispose of all or a part
of its interest in the Partnership to a Person who is not an Affiliate of Duncan
without the prior written consent of a Required Interest, and then only after
Sections 3.03(c),
(d) and (e) have been
complied with.
(b) Subject
to the provisions of Sections 3.03(c),
(d) and (e), a permitted
transferee of all or a part of a Partner’s interest in the Partnership shall be
admitted to the Partnership as a General Partner or a Limited Partner (as
applicable) with, in the case of Class B Limited Partners, such Sharing Points
(no greater than the Sharing Points of the Class B Limited Partners effecting
such Disposition immediately prior thereto) as the Partner effecting such
Disposition and such permitted transferee may agree.
(c) The
Partnership shall not recognize for any purpose any purported Disposition of an
interest in the Partnership or distributions therefrom unless and until the
provisions of this Section 3.03
shall have been satisfied and there shall have been delivered to the General
Partner a document (i) executed by both the Partner effecting such Disposition
and the Person to which such interest or interest in distributions are to be
Disposed, (ii) including the written acceptance by any Person to be admitted to
the Partnership of all the terms and
7
provisions
of this Agreement, such Person’s notice address, and an agreement by such Person
to perform and discharge timely all of the obligations and liabilities in
respect of the interest being obtained, (iii) setting forth, in the case of the
Class B Limited Partners, the Sharing Points of the Class B Limited Partners
effecting such Disposition and the Person to which such interest is Disposed
after such Disposition (which together shall total the Sharing Points of the
Class B Limited Partners effecting such Disposition prior thereto), (iv)
containing a representation and warranty that such Disposition complied with all
applicable laws and regulations (including securities laws) and a representation
and warranty by such Person that the representations and warranties in Section 3.02 are
true and correct with respect to such Person. Each such Disposition
and, if applicable, admission shall be effective as of the first day of the
calendar month immediately succeeding the month in which the General Partner
shall receive such notification of Disposition and the other requirements of
this Section 3.03
shall have been met unless the General Partner and the Partner affecting such
Disposition agree to a different effective date; provided, however, that if there shall
be only one General Partner and such Disposition or admission and, as a result
of such Disposition such General Partner would cease to be a General Partner,
such permitted transferee shall be deemed admitted as a General Partner
immediately prior to such cessation.
(d) Notwithstanding
any provision of this Agreement to the contrary, the right of any Partner to
Dispose of an interest in the Partnership or distributions therefrom or of any
Person to be admitted to the Partnership in connection therewith shall not exist
or be exercised (i) unless and until the Partnership shall have received a
favorable opinion of the Partnership’s legal counsel or of other legal counsel
acceptable to the General Partner to the effect that such Disposition or
admission is not required to be registered under the Securities Act of 1933 or
any other applicable securities laws, and such Disposition or admission would
not cause the Partnership to become an “investment company” required to register
under the Investment Company Act of 1940, and (ii) unless such Disposition or
admission would not result in the Partnership being treated as an association
taxable as a corporation for federal income tax purposes or as a publicly traded
partnership as defined in Section 7704 of the Code. The General
Partner, however, may waive the requirements of Section
3.03(d)(i).
(e) All costs
(including, without limitation, the legal fees incurred in connection with the
obtaining of the legal opinions referred to in Section 3.03(d))
incurred by the Partnership in connection with any Disposition or admission of a
Person to the Partnership pursuant to this Section 3.03
shall be borne and paid by the Partner effecting such Disposition within 10 days
after the receipt by such Person of the Partnership’s invoice for the amount
due.
(f) In the
event of a Disposition of an interest in the Partnership pursuant to the death
of a Limited Partner that would, in the opinion of the Partnership’s legal
counsel, result in the Partnership becoming an “investment company” required to
register under the Investment Company Act of 1940, the General Partner shall
have the right to purchase such interest from the estate (or beneficiaries) of
such deceased Partner for a price equal to the amount that the deceased
Partner’s estate (or beneficiaries) would receive if all of the EPD Units held
by the Partnership were sold at a price equal to the closing sale price per EPD
Unit as reported by the New York Stock Exchange (or such other applicable
trading market) on the day prior to the exercise of such right by the General
Partner and the proceeds from such sale were distributed to the Partners in
accordance with the provisions of Section 5.04. The
determination by the General
8
Partner
of the foregoing purchase price of such deceased Partner’s interest in the
Partnership shall be conclusive and binding on the deceased Partner’s estate and
beneficiaries.
(g) Any
attempted Disposition by a Person of an interest or right, or any part thereof,
in or in respect of the Partnership other than in accordance with this Section 3.03
shall be, and is hereby declared, null and void ab initio.
3.04 Additional
Partners. Subject
to the provisions of Sections 12.05
and 3.03,
additional Persons may be admitted to the Partnership as General Partners or
Limited Partners, only to the extent that, and on such terms and conditions as,
the General Partner shall consent at the time of such admission or
issuance. Such admission or issuance shall, in the case of a Class B
Limited Partner, specify the Sharing Points applicable thereto. Any
such admission must comply with the provisions of Section 3.03(d)
and shall not be effective until such new Partner shall have executed and
delivered to the General Partner a document including such new Partner’s notice
address, acceptance of all the terms and provisions of this Agreement, an
agreement to perform and discharge timely all of its obligations and liabilities
hereunder, and a representation and warranty that the representations and
warranties in Section 3.02 are
true and correct with respect to such new Partner.
3.05 Interests in a
Partner. No
Partner that is not a natural person shall cause or permit an interest, direct
or indirect, in itself to be Disposed of such that, on account of such
Disposition, the Partnership would become an association taxable as a
corporation for federal income tax purposes.
3.06 Spouses of
Partners. A
spouse of a Partner does not become a Partner as a result of such marital
relationship or by reason of a divorce, legal separation or other dissolution of
marriage. If, in the event of a divorce, legal separation or other
dissolution of marriage of a Partner, a former spouse of a Partner is awarded
ownership of, or an interest in, all or part of a Partner’s interest in the
Partnership (the “Awarded Interest”),
the Awarded Interest shall automatically and immediately be forfeited and
cancelled without payment on such date.
3.07 Vesting of Limited
Partners. One
hundred percent (100%) of each Class B Limited Partner’s interest in the
Partnership shall vest on the Vesting Date, but only if (i) on such date such
Class B Limited Partner continues to be an active, full-time employee of the
General Partner or any of its Affiliates or (ii) prior to the Vesting Date, a
Qualifying Termination has occurred with respect to such Class B Limited
Partner. At such time as a Class B Limited Partner ceases, for any
reason other than a Qualifying Termination, to be an active, full-time employee
of the General Partner or any of its Affiliates prior to the Vesting Date, his
unvested interest in the Partnership shall be forfeited. If a Class B
Limited Partner ceases to be an active, full-time employee prior to the Vesting
Date, as determined by the General Partner in its sole discretion, without
regard as to how his status is treated by the General Partner or any of its
Affiliates for any of its other compensation or benefit plans or programs, the
Class B Limited Partner will be deemed to have terminated employment with the
General Partner and its Affiliates and forfeited his unvested interest in the
Partnership for purposes of this Agreement. The Capital Account
attributable to any Class B Limited Partner’s interest in the Partnership that
is forfeited pursuant to Section 3.06,
this Section 3.07 or
otherwise hereunder shall be allocated
9
to the
remaining Class B Limited Partners in accordance with their respective Class B
Participation Interests.
3.08 Services Provided by the
Partners. The
interests in the Partnership held by the Partners are for the benefit of certain
employees in connection with services rendered or to be rendered by the
Partners. EPCO shall be an express third-party beneficiary of the
services provided by the Partners.
ARTICLE IV
CAPITAL
CONTRIBUTIONS
4.01 Initial and Additional
Capital Contributions. In
connection with the formation of the Partnership, the General Partner
contributed $1,000 to the Partnership on the Closing Date and the Class A
Limited Partner has agreed to contribute to the Partnership 779,102 EPD Units
(with a value of approximately $17,000,000, based on the closing price of the
EPD Units on the New York Stock Exchange on the day prior to the Closing Date)
(the “Initial
Contribution”). No Class B Limited Partner is obligated to
make a contribution to the Partnership. Subject to the provisions of
applicable law or except as otherwise provided for herein, no Partner shall be
liable for or obligated to make an additional Capital Contribution to the
Partnership, whether for the purpose of enabling the Partnership to meet its
obligations under Section 6.03 or
for any other purpose. The Class A Limited Partner, in its sole
discretion and without the consent of any of the Class B Limited Partners or the
General Partner, may make additional Capital Contributions in excess of the
Initial Contribution, provided that any such voluntary additional Capital
Contributions will not have the effect of changing the Sharing Points of any
Class B Limited Partner. The initial Capital Account of the General
Partner is $1,000, the initial Capital Account of the Class A Limited Partner as
of the Closing Date is the fair market value of the Initial Contribution, based
upon the closing price of the EPD Units on the New York Stock Exchange on the
Closing Date, and the initial Capital Account of each Class B Limited Partner is
zero.
4.02 Return of
Contributions. No
Partner shall be entitled to the return of any part of its Capital Contributions
or to be paid interest in respect of either its Capital Account or any Capital
Contribution made by it. No unrepaid Capital Contribution shall be
deemed or considered to be a liability of the Partnership or of any
Partner. No Partner shall be required to contribute, advance or lend
any cash or property to the Partnership to enable the Partnership to return any
Partner’s Capital Contributions to the Partnership. To the extent,
however, any Partner (by mistake, overpayment or otherwise) advances funds to
the Partnership in excess of the Capital Contributions called for under Section 4.01,
such excess amounts shall not be Capital Contributions and (other than advances
made by the General Partner pursuant to Section 4.03
below) shall be promptly returned by the Partnership to the Partner so advancing
such funds.
4.03 Advances by General
Partner. At
any time that the Partnership shall not have sufficient cash to pay its
obligations, the General Partner may, but shall not be obligated to, advance
such funds for or on behalf of the Partnership. Each such advance
shall constitute a loan from the General Partner to the Partnership and shall
bear interest from the date of the advance until the date of repayment at the
General Interest Rate. Any advances made by the General Partner
pursuant to this Section 4.03
shall not be considered to be Capital Contributions. All
10
advances
shall be repaid out of the next available funds of the Partnership, including
Capital Contributions received.
4.04 Capital
Accounts. A
Capital Account shall be established and maintained for each
Partner. Each Partner’s Capital Account (a) shall be increased by (i)
the amount of money contributed by that Partner to the Partnership, (ii) the
fair market value of property, if any, contributed by that Partner to the
Partnership (net of liabilities secured by such contributed property that the
Partnership is considered to assume or take subject to under Section 752 of the
Code), and (iii) allocations to that Partner of Partnership income and gain (or
items thereof), including income and gain exempt from tax and income and gain
described in Regulation Section 1.704-1(b)(2)(iv)(g), but excluding income and
gain described in Regulation Section 1.704-1(b)(4)(i), and (b) shall be
decreased by (i) the amount of money distributed to that Partner by the
Partnership, (ii) the fair market value of property distributed to that Partner
by the Partnership (net of liabilities secured by such distributed property that
such Partner is considered to assume or take subject to under Section 752 of the
Code), (iii) allocations to that Partner of expenditures of the Partnership
described in Section 705(a)(2)(B) of the Code, and (iv) allocations of
Partnership loss and deduction (or items thereof), including loss and deduction
described in Regulation Section 1.704-1(b)(2)(iv)(g), but excluding items
described in clause
(b)(iii) above and loss or deduction described in Regulation Section
1.704-1(b)(4)(i). The Partners’ Capital Accounts also shall be
maintained and adjusted as permitted by the provisions of Regulation Section
1.704-1(b)(2)(iv)(f) and as required by the other provisions of Regulation
Sections 1.704-1(b)(2)(iv) and 1.704-1(b)(4), including adjustments to reflect
the allocations to the Partners of depreciation, amortization, and gain or loss
as computed for book purposes rather than the allocation of the corresponding
items as computed for tax purposes, as required by Regulation Section
1.704-1(b)(2)(iv)(g). A Partner that has more than one interest in
the Partnership shall have a single Capital Account that reflects all such
interests, regardless of the class of interests owned by such Partner and
regardless of the time or manner in which such interests were acquired; provided, that Partners that
are Affiliates but nevertheless separate legal entities shall have separate
Capital Accounts. Upon the transfer of all or part of an interest in
the Partnership, the Capital Account of the transferor that is attributable to
the transferred interest in the Partnership shall carry over to the transferee
Partner in accordance with the provisions of Regulation Section
1.704-1(b)(2)(iv)(l).
ARTICLE V
ALLOCATIONS AND
DISTRIBUTIONS
5.01 Allocations.
(a) Net Income and Net
Loss. For purposes of maintaining the Capital Accounts, Net
Income or Net Loss (and all items included in the computation thereof) shall be
allocated among the Partners as follows:
(i) Net
Income:
(A) First, to
the Class A Limited Partner until the Class A Limited Partner’s Adjusted Capital
Account equals the Class A Capital Base; and
11
(B) Thereafter,
to the Class B Limited Partners in accordance with their respective Class B
Percentage Interests.
(ii) Net
Loss:
(A) First, to
the Class B Limited Partners in accordance with their respective Class B
Percentage Interests until the Adjusted Capital Accounts of the Class B Limited
Partners are reduced to zero; and
(B) Thereafter,
to the Class A Limited Partner.
(b) Special
Allocations. Notwithstanding any other provision of this Section 5.01,
the following special allocations shall be made for such taxable
period:
(i) Partnership
Minimum Gain Chargeback. Notwithstanding any other provision
of this Section 5.01, if
there is a net decrease in Partnership Minimum Gain during any Partnership
taxable period, each Partner shall be allocated items of Partnership income and
gain for such period (and, if necessary, subsequent periods) in the manner and
amounts provided in Regulation Sections 1.704-2(f)(6), 1.704-2(g)(2) and
1.704-2(j)(2)(i), or any successor provision. For purposes of this
Section 5.01(b),
each Partner’s Adjusted Capital Account balance shall be determined, and the
allocation of income or gain required hereunder shall be effected, prior to the
application of any other allocations pursuant to this Section 5.01(b)
with respect to such taxable period (other than an allocation pursuant to Sections 5.01(b)(vi)
and 5.01(b)(vii)). This
Section
5.01(b)(i) is intended to comply with the Partnership Minimum Gain
chargeback requirement in Regulation Section 1.704-2(f) and shall be interpreted
consistently therewith.
(ii) Chargeback
of Partner Nonrecourse Debt Minimum Gain. Notwithstanding the
other provisions of this Section 5.01
(other than Section
5.01(b)(i)), except as provided in Regulation Section 1.704-2(i)(4), if
there is a net decrease in Partner Nonrecourse Debt Minimum Gain during any
Partnership taxable period, any Partner with a share of Partner Nonrecourse Debt
Minimum Gain at the beginning of such taxable period shall be allocated items of
Partnership income and gain for such period (and, if necessary, subsequent
periods) in the manner and amounts provided in Regulation Sections 1.704-2(i)(4)
and 1.704-2(j)(2)(ii), or any successor provisions. For purposes of
this Section 5.01(b),
each Partner’s Adjusted Capital Account balance shall be determined, and the
allocation of income or gain required hereunder shall be effected, prior to the
application of any other allocations pursuant to this Section 5.01(b),
other than Section
5.01(b)(i) and other than an allocation pursuant to Sections 5.01(b)(vi)
and 5.01(b)(vii), with
respect to such taxable period. This Section 5.01(b)(ii)
is intended to comply with the chargeback of items of income and gain
requirement in Regulation Section 1.704-2(i)(4) and shall be interpreted
consistently therewith.
(iii) Qualified
Income Offset. In the event any Partner unexpectedly receives
any adjustments, allocations or distributions described in Regulation Sections
1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6),
items of Partnership income and gain shall be specially allocated to such
Partner in an amount and manner sufficient to eliminate, to the extent required
by the Regulations, the deficit balance, if any, in its Adjusted
12
Capital
Account created by such adjustments, allocations or distributions as quickly as
possible unless such deficit balance is otherwise eliminated pursuant to Section 5.01(b)(i) or
(ii).
(iv) Gross
Income Allocations. In the event any Partner has a deficit
balance in its Capital Account at the end of any Partnership taxable period in
excess of the sum of (A) the amount such Partner is required to restore pursuant
to the provisions of this Agreement and (B) the amount such Partner is deemed
obligated to restore pursuant to Regulation Sections 1.704-2(g) and
1.704-2(i)(5), such Partner shall be specially allocated items of Partnership
gross income and gain in the amount of such excess as quickly as possible; provided, that an allocation
pursuant to this Section 5.01(b)(iv)
shall be made only if and to the extent that such Partner would have a deficit
balance in its Capital Account as adjusted after all other allocations provided
for in this Section 5.01
have been tentatively made as if this Section 5.01(b)(iv)
were not in this Agreement.
(v) Nonrecourse
Deductions. Nonrecourse Deductions for any taxable period
shall be allocated to the Partners in accordance with their respective
Percentage Interests. If the General Partner determines that the
Partnership’s Nonrecourse Deductions should be allocated in a different ratio to
satisfy the safe harbor requirements of the Regulations promulgated under
Section 704(b) of the Code, the General Partner is authorized, upon notice to
the other Partners, to revise the prescribed ratio to the numerically closest
ratio that does satisfy such requirements.
(vi) Partner
Nonrecourse Deductions. Partner Nonrecourse Deductions for any
taxable period shall be allocated 100% to the Partner that bears the Economic
Risk of Loss with respect to the Partner Nonrecourse Debt to which such Partner
Nonrecourse Deductions are attributable in accordance with Regulation Section
1.704-2(i). If more than one Partner bears the Economic Risk of Loss
with respect to a Partner Nonrecourse Debt, such Partner Nonrecourse Deductions
attributable thereto shall be allocated between or among such Partners in
accordance with the ratios in which they share such Economic Risk of
Loss.
(vii) Nonrecourse
Liabilities. For purposes of Regulation Section 1.752-3(a)(3),
the Partners agree that Nonrecourse Liabilities of the Partnership in excess of
the sum of (A) the amount of Partnership Minimum Gain and (B) the total amount
of Nonrecourse Built-in Gain shall be allocated among the Partners in accordance
with their respective Percentage Interests.
(viii) Code
Section 754 Adjustments. To the extent an adjustment to the
adjusted tax basis of any Partnership asset pursuant to Section 734(b) or 743(b)
of the Code is required, pursuant to Regulation Section 1.704-1(b)(2)(iv)(m), to
be taken into account in determining Capital Accounts, the amount of such
adjustment to the Capital Accounts shall be treated as an item of gain (if the
adjustment increases the basis of the asset) or loss (if the adjustment
decreases such basis), and such item of gain or loss shall be specially
allocated to the Partners in a manner consistent with the manner in which their
Capital Accounts are required to be adjusted pursuant to such Section of the
Regulations.
(c) Allocations
Caused by Transfer of Interest. All items of income, gain,
loss, deduction, and credit allocable to any interest in the Partnership that
may have been
13
transferred
shall be allocated between the transferor and the transferee based upon that
portion of the calendar year during which each was recognized as owning such
interest, without regard to the results of Partnership operations during any
particular portion of such calendar year and without regard to distributions
made to the transferor and the transferee during such calendar year; provided, however, that such allocation
shall be made in accordance with a method permissible under Section 706 of the
Code and the regulations thereunder.
5.02 Income Tax
Allocations.
(a) Except as
provided in this Section 5.02,
each item of income, gain, loss and deduction of the Partnership for federal
income tax purposes shall be allocated among the Partners in the same manner as
such items are allocated for purposes of maintaining Capital Account under Section 5.01.
(b) For
federal and state income tax purposes, income, gain, loss, and deduction with
respect to property contributed to the Partnership by a Partner or revalued
pursuant to Regulation Section 1.704-1(b)(2)(iv)(f) shall be allocated among the
Partners in a manner that takes into account the variation between the adjusted
tax basis of such property and its book value, as required by Section 704(c) of
the Code and Regulation Section 1.704-1(b)(4)(i), using any allocation method
permitted by Regulation Section 1.704-3.
(c) The
Partnership will follow the proposed Treasury Regulations that were issued on
May 24, 2005, regarding the issuance of partnership equity for services
(including Proposed Treasury Regulation Sections 1.83-3, 1.83-6, 1.704-1,
1.706-3, 1.721-1 and 1.761-1), as such regulations may be subsequently amended,
upon the issuance of equity membership interests or options issued for services
rendered or to be rendered to or for the benefit of the Partnership, until final
Treasury Regulations regarding these matters are issued. In
furtherance of the foregoing, the definition of Capital Account and the
allocations of Net Income and Net Loss of the Partnership shall be applied in a
manner that is consistent with the proposed Treasury Regulations, including
without limitation, Proposed Treasury Regulation Section
1.704-1(b)(4)(xii). If the provisions of the proposed Treasury
Regulations and the Proposed Revenue Procedure described in IRS Notice 2005-43,
or provisions similar thereto, are adopted as final (or temporary) rules (the
“New Rules”),
and the General Partner is authorized to make such amendments to this Agreement
(including provision for any safe harbor election authorized by the New Rules)
as the General Partner may determine to be necessary or advisable.
5.03 Distributions of Cash flow
from EPD Units. Promptly
following the receipt of any distributions with respect to EPD Units, the
General Partner shall cause to be distributed to the Partners such receipts (and
any income from the temporary investment thereof) in the manner set forth below,
provided, that the
General Partner may withhold and not distribute such portion of any such
receipts that the General Partner has determined in its sole but good faith
discretion should be withheld to pay indebtedness or expenses of the
Partnership. Distribution to the Partners pursuant to this Section 5.03
shall be made as follows:
(a) First, to
the Class A Limited Partner until the Class A Limited Partner’s Class A
Preference Return Amount has been reduced to zero; and
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(b) Thereafter,
to the Class B Limited Partners in accordance with the Class B Percentage
Interests.
5.04 Distributions of Proceeds
from Sales of EPD Units. Promptly
following the receipt of any proceeds from the sale of any EPD Units by the
Partnership, the General Partner shall cause to be distributed to the Partners
such receipts in the manner set forth below, provided that the General
Partner may withhold and not distribute such portion of any such receipts that
the General Partner has determined in its sole but good faith discretion should
be withheld to pay expenses of the Partnership. Distribution to the
Partners pursuant to this Section 5.04
shall be made as follows:
(a) First, to
the Class A Limited Partner until the Class A Preference Return Amount has been
reduced to zero;
(b) Next, to
the Class A Limited Partner until the Class A Capital Base is reduced to zero;
and
(c) Thereafter,
to the Class B Limited Partners in accordance with the Class B Percentage
Interests.
5.05 Restrictions on
Distributions of EPD Units. The
Partners and the Partnership hereby agree that they shall not cause the
Partnership to offer for sale, sell or otherwise transfer, distribute or dispose
of the EPD Units held by the Partnership prior to the Vesting Date; provided,
the Partnership may pledge such EPD Units as collateral for any bona fide loan
to the Partnership.
ARTICLE VI
MANAGEMENT AND
OPERATION
6.01 Management of Partnership
Affairs. Except
for situations in which the approval of the Limited Partners is expressly
required by this Agreement or by non-waivable provisions of applicable law, the
General Partner shall have full, complete, and exclusive authority to manage and
control the business, affairs, and properties of the Partnership, to make all
decisions regarding the same, and to perform any and all other acts or
activities customary or incident to the management of the Partnership’s
business. The General Partner shall receive no compensation for its
services as such. Subject to the other express provisions hereof, the
General Partner shall make or take all decisions and actions for the Partnership
not otherwise provided for herein, including, without limitation, the
following:
(a) acquiring,
holding, managing, selling, Disposing of, and otherwise dealing with and
investing in (i) the Partnership’s EPD Units, or (ii) temporary investments of
Partnership capital in U.S. government securities, certificates of deposit with
maturities of less than one year, commercial paper (rated or unrated), and other
highly liquid securities;
(b) entering
into, making, and performing all contracts, agreements, and other undertakings
binding the Partnership, as may be necessary, appropriate, or advisable in
furtherance of the purposes of the Partnership, including without limitation the
incurrence of
15
indebtedness
to fund the acquisition of any EPD Units, and making all decisions and waivers
thereunder;
(c) opening
and maintaining bank and investment accounts and drawing checks and other orders
for the payment of monies;
(d) maintaining
the assets of the Partnership in compliance with applicable securities laws and
protecting and preserving the Partnership’s title thereto;
(e) collecting
all sums due the Partnership;
(f) to the
extent that funds of the Partnership are available therefor, paying as they
become due all debts and obligations of the Partnership;
(g) causing
securities owned by the Partnership to be registered in the Partnership’s name
or in the name of a nominee or to be held in street name, as the General Partner
may elect;
(h) selecting,
removing, and changing the authority and responsibility of lawyers, accountants,
brokers, and other advisors and consultants;
(i) obtaining
insurance for the Partnership to the extent the General Partner deems
appropriate; and
(j) determining
distributions of Partnership cash as provided in Sections 5.03
and 5.04.
6.02 Duties and Obligations of
General Partner. The
General Partner shall endeavor to conduct the affairs of the Partnership in the
best interests of the Partnership and the mutual best interests of the Partners,
including, without limitation, the safekeeping and use of all Partnership funds
and assets and the use thereof for the benefit of the
Partnership. The General Partner at all times shall act in good faith
in all activities relating to the conduct of the business of the
Partnership. The General Partner shall devote such time as it deems
necessary to conduct the business and affairs of the Partnership in an
appropriate manner.
6.03 Release and
Indemnification. TO
THE FULLEST EXTENT PERMITTED BY LAW, THE PARTNERSHIP AND EACH OTHER PARTNER ON
BEHALF OF ITSELF AND ITS SUCCESSORS AND ASSIGNS HEREBY RELEASES, ACQUITS, AND
FOREVER DISCHARGES THE GENERAL PARTNER AND THE CLASS A LIMITED PARTNER, THEIR
PARTNERS OR SHAREHOLDERS, AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, PARTNERS,
REPRESENTATIVES, AND AGENTS AND EACH OTHER PERSON, IF ANY, CONTROLLING OR
EMPLOYING SUCH PERSONS OR ENTITIES (COLLECTIVELY, THE “INDEMNITEES”) FROM
ALL CLAIMS, DEMANDS, OR CAUSES OF ACTION OF ANY CHARACTER THAT SUCH PARTY MAY
HAVE, WHETHER KNOWN OR UNKNOWN, AGAINST ANY INDEMNITEE IN CONNECTION WITH THE
PARTNERSHIP AND/OR THE BUSINESS CONDUCTED BY THE PARTNERSHIP; PROVIDED, HOWEVER, THAT SUCH RELEASE
SHALL NOT APPLY TO ACTIONS CONSTITUTING WILLFUL
16
MISCONDUCT
OR BAD FAITH. TO THE FULLEST EXTENT PERMITTED BY LAW, THE PARTNERSHIP
SHALL INDEMNIFY AND HOLD HARMLESS EACH INDEMNITEE FROM AND AGAINST ALL LOSSES,
COSTS, CLAIMS, LIABILITIES, DAMAGES, EXPENSES (INCLUDING, WITHOUT LIMITATION,
COSTS OF SUIT AND ATTORNEYS’ FEES) SUCH INDEMNITEE MAY INCUR IN CONNECTION WITH
THE GENERAL PARTNER’S PERFORMING ITS OBLIGATIONS HEREUNDER (INCLUDING WITHOUT
LIMITATION LOSSES, COSTS, CLAIMS, LIABILITIES, DAMAGES AND EXPENSES ARISING
FROM, OR ALLEGED TO ARISE FROM, THE INDEMNITEE’S ACTIVE OR PASSIVE, SOLE OR
CONCURRENT, NEGLIGENCE OR GROSS NEGLIGENCE), AND THE PARTNERSHIP SHALL ADVANCE
EXPENSES ASSOCIATED WITH THE DEFENSE OF ANY ACTION RELATED THERETO; PROVIDED, HOWEVER, THAT SUCH INDEMNITY
SHALL NOT APPLY TO ACTIONS WHICH HAVE BEEN FINALLY, WITHOUT FURTHER RIGHT TO
APPEAL, JUDICIALLY DETERMINED TO CONSTITUTE WILLFUL MISCONDUCT OR BAD
FAITH. IF THE INDEMNIFICATION PROVIDED FOR ABOVE IS NOT PERMITTED OR
ENFORCEABLE UNDER APPLICABLE LAW OR IS OTHERWISE UNAVAILABLE OR INSUFFICIENT TO
HOLD HARMLESS THE INDEMNITEES AS CONTEMPLATED ABOVE, THEN THE PARTNERSHIP SHALL
CONTRIBUTE TO THE AMOUNT PAID OR PAYABLE BY THE INDEMNITEES AS A RESULT OF SUCH
LOSSES, COSTS, CLAIMS, LIABILITIES, DAMAGES AND EXPENSES REFERRED TO ABOVE IN
SUCH PROPORTION AS IS APPROPRIATE TO REFLECT THE RELATIVE BENEFITS CONTEMPLATED
TO BE RECEIVED BY THE PARTNERSHIP AND THE INDEMNITEES, RESPECTIVELY, FROM THE
ACTIONS GIVING RISE TO SUCH LOSSES, COSTS, CLAIMS, LIABILITIES, DAMAGES OR
EXPENSES.
6.04 Power of
Attorney.
(a) Each
Limited Partner hereby constitutes and appoints the General Partner and, if a
liquidator (other than the General Partner) shall have been selected pursuant to
Section 11.02,
the liquidator, severally (and any successor to either thereof by merger,
transfer, assignment, election or otherwise) and each of their authorized
officers and attorneys-in-fact, as the case may be, with full power of
substitution, as his true and lawful agent and attorney-in-fact, with full power
and authority in his name, place and stead, to:
(i) execute,
swear to, acknowledge, deliver, file and record in the appropriate public
offices (A) all certificates, documents and other instruments (including this
Agreement and the Certificate of Limited Partnership and all amendments or
restatements hereof or thereof) that the General Partner or the liquidator deems
necessary or appropriate to form, qualify or continue the existence or
qualification of the Partnership as a limited partnership (or a partnership in
which the Limited Partners have limited liability) in the State of Delaware and
in all other jurisdictions in which the Partnership may conduct business or own
property; (B) all certificates, documents and other instruments that the General
Partner or
17
the
liquidator deems necessary or appropriate to reflect, in accordance with its
terms, any amendment, change, modification or restatement of this Agreement; (C)
all certificates, documents and other instruments (including conveyances and a
certificate of cancellation) that the General Partner or the liquidator deems
necessary or appropriate to reflect the dissolution and liquidation of the
Partnership pursuant to the terms of this Agreement; and (D) all certificates,
documents and other instruments relating to the admission, withdrawal, removal
or substitution of any Partner; and
(ii) execute,
swear to, acknowledge, deliver, file and record all ballots, consents,
approvals, waivers, certificates, documents and other instruments necessary or
appropriate, in the discretion of the General Partner or the liquidator, to
make, evidence, give, confirm or ratify any vote, consent, approval, agreement
or other action that is made or given by the Partners hereunder or is consistent
with the terms of this Agreement or is necessary or appropriate, in the
discretion of the General Partner or the liquidator, to effectuate the terms or
intent of this Agreement; provided, that when required
by any provision of this Agreement that establishes a percentage of the Limited
Partners required to take any action, the General Partner and the liquidator may
exercise the power of attorney made in this Section 6.04
only after the necessary vote, consent or approval of the Limited
Partners.
This
Section 6.04
shall be construed as authorizing the General Partner to amend this Agreement in
any manner subject to any provision of this Agreement that establishes a
percentage of the Limited Partners required to take any action.
(b) The
foregoing power of attorney is hereby declared to be irrevocable and a power
coupled with an interest, and it shall survive and, to the maximum extent
permitted by law, not be affected by the subsequent death, incompetency,
disability, incapacity, dissolution, bankruptcy or termination of any Limited
Partner and the transfer of all or any portion of such Limited Partner’s
Percentage Interest and shall extend to such Limited Partner’s heirs,
successors, assigns and personal representatives. Each such Limited
Partner hereby agrees to be bound by any representation made by the General
Partner or the liquidator acting in good faith pursuant to such power of
attorney; and each such Limited Partner, to the maximum extent permitted by law,
hereby waives any and all defenses that may be available to contest, negate or
disaffirm the action of the General Partner or the liquidator taken in good
faith under such power of attorney. Each Limited Partner shall
execute and deliver to the General Partner or the liquidator, within 15 days
after receipt of the request therefor, such further designation, powers of
attorney and other instruments as the General Partner or the liquidator deems
necessary to effectuate this Agreement and the purposes of the
Partnership.
ARTICLE VII
RIGHTS OF OTHER
PARTNERS
7.01 Information. In
addition to the other rights specifically set forth herein, each Partner shall
have access to all information to which such Partner is entitled to have access
pursuant to Section 17-305 of the Act under the circumstances and subject to the
conditions therein stated. Without limiting the provisions of Section
17-305(b) of the Act, the Partners agree that if the General Partner from time
to time enters into on behalf of the Partnership or the General Partner
contractual obligations regarding the confidentiality of information received
with respect to the Partnership’s business or assets, it shall not be reasonable
for any other Partner or assignee or representative thereof to examine or copy
such information unless such
18
Partner
agrees to comply with the terms of such contractual obligations including
without limitation executing a counterpart of any applicable confidentiality
agreements.
7.02 Limitations. No
Limited Partner shall have the authority or power in its capacity as such to act
for or on behalf of the Partnership or any other Partner, to do any act that
would be binding on the Partnership or any other Partner, or to incur any
expenditures on behalf of or with respect to the Partnership. No
Limited Partner shall have the right or power to withdraw from the
Partnership.
7.03 Limited
Liability. No
Limited Partner shall be liable for the losses, debts, liabilities, contracts,
or other obligations of the Partnership except to the extent required by law or
otherwise set forth herein.
ARTICLE VIII
TAXES
8.01 Tax
Returns. The
General Partner shall cause to be prepared and filed all necessary federal and
state income tax returns for the Partnership, including making the elections
described in Section 8.02. Each
Partner shall furnish to the General Partner all pertinent information in its
possession relating to Partnership operations that is necessary to enable such
income tax returns to be prepared and filed.
8.02 Tax
Elections. The
following elections shall be made on the appropriate returns of the
Partnership:
(a) to adopt
the calendar year as the Partnership’s fiscal year;
(b) unless
the accrual method is required under the applicable sections of the Code, to
adopt the cash method of accounting and to keep the Partnership’s books and
records on the income-tax method;
(c) if there
shall be a distribution of Partnership property as described in Section 734 of
the Code or if there shall be a transfer of a Partnership interest as described
in Section 743 of the Code, upon written request of any Partner, to elect,
pursuant to Section 754 of the Code, to adjust the basis of Partnership
properties;
(d) to elect
to amortize the organizational expenses of the Partnership ratably over a period
of 60 months as permitted by Section 709(b) of the Code; and
(e) any other
election the General Partner may deem appropriate and in the best interests of
the Partners.
No
election shall be made by the Partnership or any Partner to be treated as an
association taxable as a corporation or to be excluded from the application of
the provisions of Subchapter K of Chapter 1 of Subtitle A of the
Code or any similar provisions of applicable state laws.
19
8.03 Tax Matters
Partner. The
General Partner shall be the “tax matters partner” of the Partnership pursuant
to Section 6231(a)(7) of the Code. The General Partner shall take
such action as may be necessary to cause each other Partner to become a “notice
partner” within the meaning of Section 6223 of the Code. The General
Partner shall inform each other Partner of all significant matters that may come
to its attention in its capacity as tax matters partner by giving notice thereof
within ten Business Days after becoming aware thereof and, within such time,
shall forward to each other Partner copies of all significant written
communications it may receive in such capacity. The General Partner
shall not take any action contemplated by Sections 6222 through 6232 of the Code
without the consent of a Required Interest. This provision is not
intended to authorize the General Partner to take any action left to the
determination of an individual Partner under Sections 6222 through 6232 of the
Code.
ARTICLE IX
BOOKS, RECORDS, REPORTS, AND
BANK ACCOUNTS
9.01 Maintenance of
Books. The
books of account for the Partnership shall be maintained on a cash basis in
accordance with the terms of this Agreement except that the Capital Accounts of
the Partners shall be maintained in accordance with Section 4.04. The
calendar year shall be the accounting year of the Partnership.
9.02 Financial
Statements. Within
120 days after the end of each fiscal year during the term of the Partnership,
the General Partner shall cause each other Partner to be furnished with an
unaudited balance sheet, an income statement, and a statement of changes in
Partners’ capital of the Partnership for, or as of the end of, such
period. All financial statements shall be prepared in accordance with
accounting principles generally employed for cash-basis records consistently
applied (except as therein noted).
9.03 Bank
Accounts. The
General Partner shall establish and maintain one or more separate accounts for
Partnership funds in the Partnership name at such financial institutions as it
may designate. The General Partner may not commingle the
Partnership’s funds with other funds of any Partner.
ARTICLE X
WITHDRAWAL, BANKRUPTCY,
REMOVAL, ETC.
10.01 Withdrawal, Bankruptcy, Etc.
of the General Partner.
(a) The
General Partner covenants and agrees that it will not withdraw from the
Partnership as the general partner within the meaning of Section 17-602 of the
Act. If the General Partner shall so withdraw from the Partnership in
violation of such covenant and agreement, such withdrawal shall be effective
only upon 90 days’ prior notice to all other Partners.
(b) The
General Partner shall not cease to be a general partner on the occurrence of an
event of the type described in Section 17-402(a)(4) through (10) of the Act, but
20
shall
cease to be a general partner 90 days thereafter. The General Partner
shall notify each other Partner that an event of the type described in Section
17-402(a)(4) through (10) of the Act has occurred (without regard to the lapse
of any time periods therein) with respect to it within five Business Days after
such occurrence.
(c) Following
any notice pursuant to Section 10.01(a) that
the General Partner shall be withdrawing, or following the occurrence of an
event of the type described in Section 17-402(a)(4) through (10) of the Act with
respect to the General Partner (without regard to the lapse of any time periods
therein), and unless there shall be one other General Partner remaining, the
greater of the Class A Limited Partner plus a Required Interest of the Class B
Limited Partners or a majority in interest as defined in Internal Revenue
Service Procedure 94-46 (or any successor thereof) by written consent may select
a new General Partner, which shall be admitted to the Partnership as a general
partner effective immediately prior to the existing General Partner’s ceasing to
be a general partner with such general partner interest as the Limited Partners
making such selection may specify, but only if such new General Partner shall
have made such Capital Contribution as such Limited Partners may specify and
shall have executed and delivered to the Partnership a document including such
new General Partner’s notice address, acceptance of all the terms and provisions
of this Agreement, an agreement to perform and discharge timely all of its
obligations and liabilities hereunder, and a representation and warranty that
the representation and warranties in Section 3.02 are
true and correct with respect to such new General
Partner. Notwithstanding the foregoing provisions of this Section 10.01(c), the
right to select such new General Partner shall not exist or be exercised unless
the Partnership shall have received the favorable opinion of the Partnership’s
legal counsel or of other legal counsel acceptable to the Limited Partners
making such selection to the effect that such selection and admission will not
result in (i) the loss of limited liability of any Limited Partner (except to
the extent a Limited Partner has consented to become the General Partner) or
(ii) in the Partnership being treated as an association taxable as a corporation
for federal income tax purposes. Notwithstanding the foregoing
provisions of this Section 10.01(c), no
such new General Partner shall be admitted (and the existing General Partner
shall continue as such) if the event that permitted the selection of a new
General Partner shall have been an event of the type described in Section
17-402(a)(5) of the Act that with the passage of time would cause the existing
General Partner to become a Bankrupt Partner but, due to the failure of such
situation to continue, such General Partner does not become a Bankrupt
Partner.
10.02 Conversion of
Interest. Immediately
upon the General Partner’s ceasing to be General Partner following the admission
of a new General Partner pursuant to Section 10.01(c), the
former General Partner’s interest in the Partnership as a General Partner shall
be converted into the interest of a Limited Partner in the Partnership having
the same economic rights as specified for the General Partner herein immediately
prior to its ceasing to be a General Partner, and such General Partner shall
automatically and without further action be admitted to the Partnership as a
Limited Partner.
21
ARTICLE XI
DISSOLUTION, LIQUIDATION,
AND TERMINATION
11.01 Dissolution. The
Partnership shall be dissolved and its affairs shall be wound up upon the first
to occur of any of the following:
(a) the
written consent of the General Partner, the Class A Limited Partner and a
Required Interest;
(b) unless
otherwise agreed to by the General Partner, the Class A Limited Partner and a
Required Interest 30 days following the occurrence of the Vesting
Date;
(c) the end
of the term of the Partnership as set forth in Section 2.06;
(d) the
General Partner’s ceasing to be the General Partner as described in Section 10.01(b) with
no new General Partner having been selected and admitted as provided in Section 10.01(c);
or
(e) any other
event causing dissolution as described in Section 17-801 of the Act (other than
an event described in Section 17-402(a)(4) through (10) of the Act, except as
provided in Sections
10.01(b) and 11.01(d));
it being
understood that if an “event of withdrawal of a general partner” (as defined in
Section 17-101(3) of the Act) shall occur with respect to the General Partner
and at least one other General Partner shall have been or is about to be
admitted pursuant to Section 3.03(b),
10.01(c), or
10.02, the
Partnership shall not dissolve but shall continue and the remaining General
Partner shall, and hereby agrees to, carry on the business of the
Partnership.
11.02 Liquidation and
Termination. Upon
dissolution of the Partnership, unless it is continued as provided in Section 11.01,
the General Partner shall act as liquidator or may appoint one or more other
Persons as liquidator; provided, however, that if the
Partnership shall be dissolved on account of an event of the type described in
Section 17-402(a)(4) through (10) of Act with respect to the General Partner,
the liquidator shall be one or more Persons selected in writing by the Class A
Limited Partner and a Required Interest. The liquidator shall proceed
diligently to wind up the affairs of the Partnership and make final
distributions as provided herein, and shall file any amendments to the
Certificate as may be required by applicable law. The costs of
liquidation shall be borne as a Partnership expense. Until final
distribution, the liquidator shall continue to manage the Partnership assets
with all of the power and authority of the General Partner. The steps
to be accomplished by the liquidator are as follows:
(a) as
promptly as possible after dissolution and again after final liquidation, the
liquidator shall cause a proper accounting to be made by a recognized firm of
certified public accountants of the Partnership’s assets, liabilities, and
operations through the last day of the calendar month in which the dissolution
shall have occurred or the final liquidation shall be completed, as
applicable;
22
(b) the
liquidator shall pay all of the debts and liabilities of the Partnership
(including, without limitation, all expenses incurred in liquidation and any
advances made by the General Partner pursuant to Section 4.03) or
otherwise make adequate provision therefor (including, without limitation, the
establishment of a cash escrow fund for contingent liabilities in such amount
and for such term as the liquidator may reasonably determine); and
(c) all
remaining assets of the Partnership shall be distributed to the Partners as
follows:
(i) the fair
market value of the property shall be determined and the capital accounts of the
Partners shall be adjusted to reflect the manner in which the unrealized income,
gain, loss, and deduction inherent in such property (that has not been reflected
in the capital accounts previously) would be allocated among the Partners if
there were a taxable disposition of such property for the fair market value of
such property on the Vesting Date; and
(ii) the
Partnership property shall be distributed among the Partners in accordance with
the positive capital account balances of the Partners, as determined after
taking into account all capital account adjustments for the taxable year of the
Partnership during which the liquidation of the Partnership occurs (other than
those made by reason of this clause); and such distributions shall be made by
the end of the taxable year of the Partnership during which the liquidation of
the Partnership occurs (or, if later, within 90 days after the date of such
liquidation). While the General Partner has the right to sell EPD
Units as noted in Section 5.04,
and subject to the restrictions set forth in Section 5.05, it
is the intent of the General Partner upon liquidation and termination of the
Partnership to distribute EPD Units to the Partners rather than sell the EPD
Units and distribute the cash proceeds of such sale to the
Partners.
For
purposes of this Section 11.02(c), the
“fair market value” of each EPD Unit held by the Partnership on the Vesting Date
shall be equal to the average of the closing sale prices per applicable EPD
Unit, as the case may be, for the 20 trading days ending on the Vesting Date
(or, if no closing sale price is reported, the average of the bid and asked
prices) as reported in the composite transactions for the principal United
States securities exchange on which the applicable EPD Units are traded or if
the applicable EPD Units, as the case may be, are not listed on a national or
regional stock exchange, as reported by the OTC Bulletin Board or other
applicable quotation service. All distributions in kind to the
Partners shall be made subject to the liability of each distributee for costs,
expenses, and liabilities theretofore incurred or for which the Partnership
shall have committed prior to the date of termination and such costs, expenses,
and liabilities shall be allocated to such distributee pursuant to this Section 11.02. The
distribution of property to a Partner in accordance with the provisions of this
Section 11.02
shall constitute a complete return to the Partner of its Capital Contributions
and a complete distribution to the Partner of its interest in the Partnership
and all the Partnership’s property and shall constitute a compromise to which
all Partners have consented within the meaning of Section 17-502(b) of the
Act.
11.03 Cancellation of
Certificate. Upon
completion of the distribution of Partnership assets as provided herein, the
Partnership shall be terminated, and the General Partner (or, if there shall be
no General Partner, the Limited Partners) shall cause the cancellation of the
23
Certificate
and any other filings made pursuant to Section 2.05 and
shall take such other actions as may be necessary to terminate the
Partnership.
ARTICLE XII
GENERAL
PROVISIONS
12.01 Offset. In
the event that any sum is payable to any Partner pursuant to this Agreement, any
amounts owed by such Partner to the Partnership shall be deducted from said sum
before payment to said Partner.
12.02 Notices. All
notices or requests or consents provided for or permitted to be given pursuant
to this Agreement must be in writing and must be given (a) by depositing same in
the United States mail, addressed to the Person to be notified, postpaid, and
registered or certified with return receipt requested or (b) by delivering such
notice by courier or in person to such party. Notices given or served
pursuant hereto shall be effective two Business Days after such deposit, or upon
receipt if delivered in person to the person to be notified. All
notices to be sent to a Partner shall be sent to or made at the address given on
the Power of Attorney executed by the Partner and delivered to the General
Partner on the date hereof or in the instrument described in Section 3.03(c),
3.04, or 10.01(c), or such
other address as such Partner may specify by notice to the General
Partner. Any notice to the Partnership shall be given to the General
Partner.
12.03 Entire Agreement;
Supersede. This
Agreement constitutes the entire agreement of the Partners relating to the
matters contained herein and supersedes all prior contracts or agreements,
whether oral or written, among the parties hereto with respect to such
matters.
12.04 Effect of Waiver or
Consent. No
waiver or consent, express or implied, by any Person with respect to any breach
or default by any other Person of its obligations hereunder shall be deemed or
construed to be a consent or waiver with respect to any other breach or default
by such other Person of the same or any other obligations of such other Person
hereunder. Failure on the part of any Person to complain of any act
or omission of any other Person, or to declare any other Person in default,
irrespective of how long such failure continues, shall not constitute a waiver
by such Person of its rights hereunder until the applicable limitation period
has run.
12.05 Amendment or
Modification. This
Agreement may be amended or modified from time to time only by a written
instrument executed by the General Partner; provided, however, that (a) the vesting
and distribution provisions of this Agreement may be amended or modified only by
a written instrument executed by the General Partner, the Class A Limited
Partner and a Required Interest, and (b) no amendment or modification reducing a
Partner’s Sharing Points (other than to reflect changes otherwise provided
hereby) or increasing its duties or adversely affecting its limited liability
shall be effective without such Partner’s consent.
12.06 Binding Effect; Joinder of
Additional Parties. Subject
to the restrictions on Dispositions set forth herein, this Agreement shall be
binding upon and shall inure to the benefit of the Partners, as well as the
respective heirs, legal representatives, successors, and assigns of such
Partners.
24
12.07 Construction. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, EXCLUDING ANY CONFLICTS-OF-LAW RULE OR PRINCIPLE THAT MIGHT
REFER THE GOVERNANCE OR CONSTRUCTION OF THIS AGREEMENT TO THE LAWS OF ANOTHER
JURISDICTION. The headings in this Agreement are inserted for
convenience and identification only and are not intended to describe, interpret,
define, or limit the scope, extent, or intent of this Agreement or any provision
hereof. Whenever the context requires, the gender of all words used
in this Agreement shall include the masculine, feminine, and
neuter. All references to Articles and Sections refer to articles and
sections of this Agreement. All sums and amounts payable or to be
payable pursuant to the provisions of this Agreement shall be payable in coin or
currency of the United States of America that, at the time of payment, is legal
tender for the payment of public and private debts in the United States of
America. If any provision of this Agreement or the application
thereof to any Person or circumstance shall be held invalid or unenforceable to
any extent, the remainder of this Agreement and the application of such
provision to other Persons or circumstances shall not be affected thereby and
shall be enforced to the greatest extent permitted by law.
12.08 Further
Assurances. In
connection with this Agreement, as well as all transactions contemplated by this
Agreement, each Partner agrees to execute and deliver such additional documents
and instruments and to perform such additional acts as may be necessary or
appropriate to effectuate, carry out, and perform all of the terms, provisions,
and conditions of this Agreement and all such transactions.
12.09 Indemnification. To
the fullest extent permitted by law, each Partner shall indemnify the
Partnership and each other Partner and hold them harmless from and against all
losses, costs, liabilities, damages, and expenses (including, without
limitation, costs of suit and attorney’s fees) they may incur on account of any
breach by such indemnifying Partner of this Agreement.
12.10 Waiver of Certain
Rights. Each
Partner irrevocably waives any right it might have to maintain any action for
dissolution of the Partnership or to maintain any action for partition of the
property of the Partnership.
12.11 Counterparts. This
Agreement may be executed in any number of counterparts with the same effect as
if all signatory parties had signed the same document. All
counterparts shall be construed together and shall constitute one and the same
instrument.
12.12 Dispute
Resolution.
(a) If the
General Partner and one or more Limited Partners are unable to resolve any
controversy, dispute, claim or other matter in question arising out of, or
relating to, this Agreement, any provision hereof, the alleged breach hereof, or
in any way relating to the subject matter of this Agreement, or the relationship
between the parties created by this Agreement, including questions concerning
the scope and applicability of this Section 12.12,
whether sounding in contract, tort or otherwise, at law or in equity, under
state or federal law, whether provided by statute or common law, for damages or
any other relief (any such controversy, dispute, claim or other matter in
question, a “Dispute”), on or
before the 30th day
25
following
the receipt by the General Partner or such Limited Partners of written notice of
such Dispute from the other party, which notice describes in reasonable detail
the nature of the Dispute and the facts and circumstances relating thereto, the
General Partner or such Limited Partners may, by delivery of written notice to
the other party, require that a representative of the General Partner and of
such Limited Partners meet at a mutually agreeable time and place in an attempt
to resolve such Dispute. Such meeting shall take place on or before
the 15th day following the date of the notice requiring such meeting, and if the
Dispute has not been resolved within 15 days following such meeting, the General
Partner or such Limited Partners may cause such Dispute to be resolved by
binding arbitration in Houston, Texas, by submitting such Dispute for
arbitration within 30 days following the expiration of such 15-day
period. This agreement to arbitrate shall be specifically enforceable
against the parties.
(b) It is the
intention of the parties that the arbitration shall be governed by and conducted
pursuant to the Federal Arbitration Act, as such Act is modified by this Section 12.12. If
it is determined the Federal Arbitration Act is not applicable to this Agreement
(e.g., this Agreement does not evidence a transaction involving interstate
commerce), this agreement to arbitrate shall nevertheless be enforceable
pursuant to applicable State law. While the arbitrators may refer to
the Commercial Arbitration Rules of the American Arbitration Association (the
“Rules”) for
guidance with respect to procedural matters, the arbitration proceeding shall
not be administered by the American Arbitration Association but instead shall be
self-administered by the parties until the arbitrators are selected and then the
proceeding shall be administered by the arbitrators.
(c) The
validity, construction, and interpretation of this agreement to arbitrate, and
all procedural aspects of the arbitration conducted pursuant to this agreement
to arbitrate, including but not limited to, the determination of the issues that
are subject to arbitration (i.e., arbitrability), the scope of the arbitrable
issues, allegations of “fraud in the inducement” to enter into this Agreement or
this arbitration provision, allegations of waiver, laches, delay or other
defenses to arbitrability, and the rules governing the conduct of the
arbitration (including the time for filing an answer, the time for the filing of
counterclaims, the times for amending the pleadings, the specificity of the
pleadings, the extent and scope of discovery, the issuance of subpoenas, the
times for the designation of experts, whether the arbitration is to be stayed
pending resolution of related litigation involving third parties not bound by
this arbitration agreement, the receipt of evidence, and the like), shall be
decided by the arbitrators.
(d) The rules
of arbitration of the Federal Arbitration Act, as modified by this Agreement,
shall govern procedural aspects of the arbitration; to the extent the Federal
Arbitration Act as modified by this Agreement does not address a procedural
issue, the arbitrators may refer for guidance to the Commercial Arbitration
Rules then in effect with the American Arbitration Association. The
arbitrators may refer for guidance to the Federal Rules of Civil Procedure, the
Federal Rules of Civil Evidence, and the federal law with respect to the
discovery process, applicable legal privileges, and admissible
evidence. In deciding the substance of the parties’ Dispute, the
arbitrators shall refer to the substantive laws of the State of Delaware for
guidance (excluding Delaware’s conflict-of-law rules or principles that might
call for the application of the law of another jurisdiction); provided, however, IT IS EXPRESSLY
AGREED THAT NOTWITHSTANDING ANY OTHER PROVISION IN THIS SECTION 12.12 TO
THE CONTRARY, THE ARBITRATORS SHALL HAVE ABSOLUTELY NO
26
AUTHORITY
TO AWARD CONSEQUENTIAL DAMAGES (SUCH AS LOSS OF PROFIT), TREBLE, EXEMPLARY OR
PUNITIVE DAMAGES OF ANY TYPE UNDER ANY CIRCUMSTANCES REGARDLESS OF WHETHER SUCH
DAMAGES MAY BE AVAILABLE UNDER DELAWARE LAW, THE LAW OF ANY OTHER STATE, OR
FEDERAL LAW, OR UNDER THE FEDERAL ARBITRATION ACT, OR UNDER THE COMMERCIAL
ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. The
arbitrators shall have the authority to assess the costs and expenses of the
arbitration proceeding (including the arbitrators’ fees and expenses) against
either or both parties. However, each party shall bear its own
attorneys fees and the arbitrators shall have no authority to award attorneys
fees.
(e) When a
Dispute has been submitted for arbitration, within 30 days of such submission,
the General Partner will choose an arbitrator, and such Limited Partners will
choose an arbitrator. The two arbitrators shall select a third
arbitrator, failing agreement on which within 90 days of the original notice,
the General Partner and such Limited Partners (or either of them) shall apply to
any United States District Judge for the Southern District of Texas, who shall
appoint the third arbitrator. While the third arbitrator shall be
neutral, the two party-appointed arbitrators are not required to be neutral and
it shall not be grounds for removal of either of the two party-appointed
arbitrators or for vacating the arbitrators’ award that either of such
arbitrators has past or present minimal relationships with the party that
appointed such arbitrator. Evident partiality on the part of an
arbitrator exists only where the circumstances are such that a reasonable person
would have to conclude there in fact existed actual bias and a mere appearance
or impression of bias will not constitute evident partiality or otherwise
disqualify an arbitrator. Minimal or trivial past or present
relationships between the neutral arbitrator and the party selecting such
arbitrator or any of the other arbitrators, or the failure to disclose such
minimal or trivial past or present relationships, will not by themselves
constitute evident partiality or otherwise disqualify any
arbitrator. Upon selection of the third arbitrator, each of the three
arbitrators shall agree in writing to abide faithfully by the terms of this
agreement to arbitrate. The three arbitrators shall make all of their
decisions by majority vote. If one of the party-appointed arbitrators
refuses to participate in the proceedings or refuses to vote, the decision of
the other two arbitrators shall be binding. If an arbitrator dies or
becomes physically incapacitated and is unable to fulfill his or her duties as
an arbitrator, the arbitration proceeding shall continue with a substitute
arbitrator selected as follows: if the incapacitated arbitrator is a
party-appointed arbitrator, the party shall promptly select a new arbitrator,
and if the incapacitated arbitrator is the neutral arbitrator, the two-party
appointed arbitrators shall select a substitute neutral arbitrator, failing
agreement on which the General Partner and such Limited Partners (or either of
them) shall apply to any United States District Judge for the Southern District
of Texas, who shall appoint the substitute neutral arbitrator.
(f) The final
hearing shall be conducted within 120 days of the selection of the third
arbitrator. The final hearing shall not exceed ten working days, with
each party to be granted one-half of the allocated time to present its case to
the arbitrators. There shall be a transcript of the hearing before
the arbitrators. The arbitrators shall render their ultimate decision
within 20 days of the completion of the final hearing completely resolving all
of the Disputes between the parties that are the subject of the arbitration
proceeding. The arbitrators’ ultimate decision after final hearing
shall be in writing, but shall be as brief as possible, and the arbitrators
shall assign their reasons for their ultimate decision. In the case
the arbitrators award any
27
monetary
damages in favor of either party, the arbitrators shall certify in their award
that they have not included any treble, exemplary or punitive
damages.
(g) The
arbitrators’ award shall, as between the parties to this Agreement and those in
privity with them, be final and entitled to all of the protections and benefits
of a final judgment, e.g., res
judicata (claim preclusion) and collateral estoppel (issue preclusion),
as to all Disputes, including compulsory counterclaims, that were or could have
been presented to the arbitrators. The arbitrators’ award shall not
be reviewable by or appealable to any court, except to the extent permitted by
the Federal Arbitration Act.
(h) It is the
intent of the parties that the arbitration proceeding shall be conducted
expeditiously, without initial recourse to the courts and without interlocutory
appeals of the arbitrators’ decisions to the courts. However, if a
party refuses to honor its obligations under this agreement to arbitrate, the
other party may obtain appropriate relief compelling arbitration in any court
having jurisdiction over the parties; the order compelling arbitration shall
require that the arbitration proceedings take place in Houston, Texas, as
specified above. The parties may apply to any court for orders
requiring witnesses to obey subpoenas issued by the
arbitrators. Moreover, any and all of the arbitrators’ orders and
decisions may be enforced if necessary by any court. The arbitrators’
award may be confirmed in, and judgment upon the award entered by, any federal
or State court having jurisdiction over the parties.
(i) To the
fullest extent permitted by law, this arbitration proceeding and the arbitrators
award shall be maintained in confidence by the parties. However, a
violation of this covenant shall not affect the enforceability of this
arbitration agreement or of the arbitrators’ award.
(j) A party’s
breach of this Agreement shall not affect this agreement to
arbitrate. Moreover, the parties’ obligations under this arbitration
provision are enforceable even after this Agreement has
terminated. The invalidity or unenforceability of any provision of
this arbitration agreement shall not affect the validity or enforceability of
the parties’ obligation to submit their Disputes to binding arbitration or the
other provisions of this agreement to arbitrate.
12.13 No Effect on Employment
Relationship. Nothing
in this Agreement shall confer upon any employee of the General Partner or any
Affiliate thereof any right to continued employment nor shall it interfere in
any way with the right of the General Partner or any of its Affiliates to
terminate the employment of any employee at any time.
12.14 Legal
Representation. This
Agreement and related documents have been prepared by Andrews Kurth LLP, as
counsel for the General Partner, and not as counsel for any other Partner or the
Partnership. Each party other than the General Partner has been
advised to seek independent counsel in connection with this Agreement and the
related documents.
[Signature
Pages to Follow.]
28
IN
WITNESS WHEREOF, the Partners have executed this Agreement as of the date first
set forth above.
|
GENERAL
PARTNER:
|
EPCO,
INC.
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|
|
By: /s/ W. Randall
Fowler
|
||
|
W.
Randall Fowler
|
||
|
President
and Chief Executive Officer
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||
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CLASS A LIMITED
PARTNER:
|
DFI
DELAWARE HOLDINGS L.P.
|
|
|
By:
DFI Delaware General, LLC, general partner
|
||
|
By: /s/
Darryl E.
Smith
|
||
|
Darryl
E. Smith
|
||
|
Manager
|
||
|
CLASS B LIMITED
PARTNERS:
|
All
Class B Limited Partners initially admitted as Class B Limited Partners of
the Partnership, pursuant to Powers of Attorney executed in favor of, and
granted and delivered to the General Partner
|
|
|
By:
EPCO, INC.
|
||
|
(As
attorney-in-fact for the Class B Limited
|
||
|
Partners
pursuant to powers of attorney)
|
||
|
By:
/s/ W. Randall
Fowler
|
||
|
W.
Randall Fowler
|
||
|
President
and Chief Executive Officer
|
Signature
Page to
Agreement
of Limited Partnership of EPCO Unit L.P.
Exhibit
A
FORM
OF POWER OF ATTORNEY
For
Executing Agreement of Limited Partnership of EPCO Unit L.P.
Know all
by these presents, that the undersigned hereby constitutes and appoints EPCO,
Inc. and its authorized representatives the undersigned’s true and lawful
attorney-in-fact to:
|
|
(1)
|
execute
for and on behalf of the undersigned as a limited partner thereunder that
certain Agreement of Limited Partnership of EPCO Unit L.P. (the “Partnership
Agreement”);
|
|
|
(2)
|
take
any other action of any type whatsoever in connection with the foregoing
that, in the opinion of each such attorney-in-fact, may be of benefit to,
in the best interest of, or legally required of the undersigned, it being
understood that the documents executed by the attorney-in-fact on behalf
of the undersigned pursuant to this Power of Attorney shall be in such
form and shall contain such terms and conditions as the attorney-in-fact
may approve in the attorney-in-fact’s
discretion.
|
The
undersigned hereby grants to each attorney-in-fact full power and authority to
do and perform all and every act and thing whatsoever requisite, necessary or
proper to be done in the exercise of any of the rights and powers herein
granted, as fully to all intents and purposes as the undersigned might or could
do if personally present, with full power of substitution or revocation, hereby
ratifying and confirming all that the attorney-in-fact, or the attorney-in-facts
substitute or substitutes, shall lawfully do or cause to be done by virtue of
this Power of Attorney and the rights and powers herein granted.
The
undersigned acknowledges and agrees by execution of this Power of Attorney that
the undersigned’s initial Sharing Points (as defined in the Partnership
Agreement) under the Partnership Agreement equal __________, which represents
___% of the total initial Sharing Points granted by the General Partner pursuant
to the Partnership Agreement.
IN
WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be
executed as of the date written below.
|
Signature
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|
Type
or Print Name
|
|
Date
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Exhibit A
– Page 1
EXHIBIT 99.1
Enterprise
Products Partners L.P.
P.O. Box
4324
Houston,
TX 77210
(713)
381-6500
Enterprise
Executes $593 Million of Credit Facilities;
Issues
$83 Million of Equity through Distribution Reinvestment Plan
Houston,
Texas (November 18, 2008) – Enterprise Products Partners L.P. (NYSE: EPD) today
announced that its operating partnership has executed two senior unsecured
credit facilities that provide the partnership with approximately $593 million
of incremental borrowing capacity. The facilities are comprised of a
$375 million revolving credit facility and a ¥20.7 billion Japanese yen, or
$218 million USD, term loan. These facilities are in addition to
approximately $1.8 billion of senior unsecured revolving credit facilities
available to Enterprise and its wholly-owned subsidiaries.
“Given
the recent stresses in the financial markets, the general contraction of credit
worldwide and limitations to the normal flow of capital globally, we believed it
was prudent to provide our partnership with additional financial flexibility for
the next year,” said Michael A. Creel, Enterprise president and chief executive
officer. “We are very pleased with the support from our credit
providers in executing these facilities. Since September, credit
facilities such as these have generally only been available to BBB+/Baa1 and
higher rated companies.”
The $375
million credit facility matures in November 2009 while the Japanese yen facility
matures March 30, 2009. The Japanese yen term loan, which funded on
November 17, 2008, has a fixed funded cost of approximately 4.93 percent,
including the cost of related foreign exchange currency swaps in effect for the
funding and maturity. The interest rate and foreign exchange costs
associated with the Japanese yen facility are fixed. The Royal Bank
of Scotland was the lead arranger for the $375 million credit
facility
while Mizuho Corporate Bank, Ltd. was the sole lead arranger and lender for the
Japanese yen term loan.
In
addition, Enterprise sold approximately $83 million of newly issued common units
through its distribution reinvestment plan with respect to the cash distribution
paid on November 12, 2008. This includes $67 million of distributions
reinvested by affiliates of EPCO, Inc., the privately held company controlled by
Enterprise’s chairman Dan L. Duncan, including $5 million reinvested by
Enterprise GP Holdings L.P., which owns the general partner of Enterprise
Products Partners.
Enterprise
Products Partners L.P. is one of the largest publicly traded partnerships and a
leading North American provider of midstream energy services to producers and
consumers of natural gas, NGLs, crude oil and
petrochemicals. Enterprise transports natural gas, NGLs, crude oil
and petrochemicals through more than 35,000 miles of onshore and offshore
pipelines. Services include natural gas transportation, gathering,
processing and storage; NGL fractionation (or separation), transportation,
storage, and import and export terminaling; crude oil transportation and
offshore production platform services. For more information on
Enterprise Products Partners L.P., visit www.epplp.com. Enterprise
Products Partners L.P. is managed by its general partner, Enterprise Products
GP, LLC, which is wholly owned by Enterprise GP Holdings L.P. (NYSE:
EPE). For more information on Enterprise GP Holdings L.P., visit
www.enterprisegp.com.
This
news release includes forward-looking statements. Except for the historical
information contained herein, the matters discussed in this news release are
forward-looking statements that involve certain risks and uncertainties, such as
the partnership’s expectations regarding access to the capital
markets. These risks and uncertainties include, among other things,
weather-related events, insufficient cash from operations, market conditions,
governmental regulations and factors discussed in Enterprise Products Partners
L.P.'s filings with the Securities and Exchange Commission. If any of these
risks or uncertainties materializes, or should underlying assumptions prove
incorrect, actual results or outcomes may vary materially from those expected.
The partnership disclaims any intention or obligation to update publicly or
reverse such statements, whether as a result of new information, future events
or otherwise.
Contacts: Randy
Burkhalter, Investor Relations (713) 381-6812 or (866)
230-0745
Rick Rainey, Media Relations (713)
381-3635
###