EXHIBIT 10.3
EPCO AGREEMENT
BY AND AMONG
ENTERPRISE PRODUCTS COMPANY
ENTERPRISE PRODUCTS GP, LLC
ENTERPRISE PRODUCTS PARTNERS L.P.
AND
ENTERPRISE PRODUCTS OPERATING L.P.
TABLE OF CONTENTS
ARTICLE 1: DEFINITIONS
1.1 DEFINITIONS..............................................................................................1
1.2 CONSTRUCTION.............................................................................................1
ARTICLE 2: SERVICES
2.1 SERVICES; TERM...........................................................................................2
2.2 COMPENSATION.............................................................................................2
2.3 DISPUTE REGARDING SERVICES OR CALCULATION OF COSTS.......................................................2
2.4 INVOICES.................................................................................................3
2.5 DISPUTES; DEFAULT........................................................................................3
2.6 INPUT....................................................................................................3
2.7 LIMITATION...............................................................................................3
2.8 REPRESENTATIONS REGARDING USE OF SERVICES................................................................3
2.9 WARRANTY; LIMITATION OF LIABILITY........................................................................3
2.10 FORCE MAJEURE............................................................................................4
2.11 AFFILIATES...............................................................................................4
ARTICLE 3: USE OF NAME AND ▇▇▇▇
3.1 GRANT OF LICENSE.........................................................................................4
3.2 USE......................................................................................................4
3.3 VARIATIONS...............................................................................................4
3.4 NONTRANSFERABLE..........................................................................................4
3.5 INDEMNITY................................................................................................5
3.6 TERMINATION..............................................................................................5
ARTICLE 4: INDEMNIFICATION
4.1 INDEMNIFICATION..........................................................................................5
4.2 INDEMNIFICATION PROCEDURES...............................................................................5
ARTICLE 5: OTHER AGREEMENTS
5.1 PROHIBITED ACTIVITIES....................................................................................6
5.2 INSURANCE MATTERS........................................................................................6
5.3 COMMON CARRIER TRANSPORTATION CONTRACT...................................................................6
5.4 SUBLEASE OF EQUIPMENT....................................................................................6
5.5 AGREEMENT REGARDING CERTAIN ASSETS RETAINED BY EPCO......................................................7
5.6 AGREEMENT REGARDING MONT BELVIEU PARTNERSHIP.............................................................7
5.7 AGREEMENT REGARDING BELVIEU ENVIRONMENTAL FUELS..........................................................7
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ARTICLE 6: MISCELLANEOUS
6.1 CHOICE OF LAW; SUBMISSION TO JURISDICTION................................................................8
6.2 NOTICES..................................................................................................8
6.3 ENTIRE AGREEMENT; SUPERSEDURE............................................................................8
6.4 EFFECT OF WAIVER OF CONSENT..............................................................................8
6.5 AMENDMENT OR MODIFICATION................................................................................8
6.6 ASSIGNMENT...............................................................................................9
6.7 COUNTERPARTS.............................................................................................9
6.8 SEVERABILITY.............................................................................................9
6.9 FURTHER ASSURANCES.......................................................................................9
6.10 WITHHOLDING OR GRANTING OF CONSENT.......................................................................9
6.11 U.S. CURRENCY............................................................................................9
6.12 LAWS AND REGULATIONS.....................................................................................9
6.13 NEGATION OF RIGHTS OF THIRD PARTIES......................................................................9
List of Attachments and Exhibits
Attachment I Defined Terms
Exhibit A Insurance Program
Exhibit B Common Carrier Transportation Contract
Exhibit C Sublease Agreement
Exhibit D Excluded Litigation
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EPCO AGREEMENT
THIS
EPCO AGREEMENT is entered into on, and effective as of, the
Closing Date by and among Enterprise Products Company, a Texas corporation
("EPCO"), Enterprise Product Partners L.P., a Delaware limited partnership (the
"MLP"), Enterprise Products Operating L.P., a Delaware limited partnership (the
"OLP"), and Enterprise Products GP, LLC, a Delaware limited liability company
(the "General Partner").
RECITALS
EPCO and the General Partner desire by their execution of this
Agreement to evidence their understanding, as more fully set forth in Article 2
of this Agreement, with respect to the terms and conditions upon which EPCO and
its Affiliates will provide certain services to the General Partner on and after
the Closing Date.
EPCO, the MLP and the OLP desire by their execution of this Agreement
to evidence their understanding, as more fully set forth in Article 3 of this
Agreement, with respect to the use of EPCO's Name and ▇▇▇▇ by the MLP and the
OLP.
EPCO, the MLP and the OLP desire by their execution of this Agreement
to evidence their understanding, as more fully set forth in Article 4 of this
Agreement, with respect to certain indemnification obligations of EPCO in favor
of the MLP and the OLP.
EPCO, the MLP, the OLP and the General Partner desire by their
execution of this Agreement to evidence their understanding, as more fully set
forth in Article 5 of this Agreement, with respect to a variety of additional
matters.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and the covenants,
conditions, and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE 1: DEFINITIONS
1.1 DEFINITIONS. The definitions listed on Attachment I shall be for
all purposes, unless otherwise clearly indicated to the contrary, applied to the
terms used in this Agreement. Any other capitalized term that is used but not
defined herein shall have the meaning given such term in the MLP Agreement.
1.2 CONSTRUCTION. Unless the context requires otherwise: (a) any
pronoun used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns, pronouns and verbs
shall include the plural and vice versa; (b) references to Articles and Sections
refer to Articles and Sections of this Agreement; and (c) "include" or
"includes" means includes, without limitation, and "including" means including,
without limitation.
ARTICLE 2: SERVICES
2.1 SERVICES; TERM. During the period beginning on the Closing Date and
ending on the tenth anniversary thereof, subject to the terms of this Article 2
and in exchange for the reimbursement described in Section 2.2, EPCO hereby
agrees to provide the General Partner with the following services (collectively,
the "Services"):
(a) such management and operating services (other than SGA Services) as
may be necessary to manage and operate the business, properties and assets of
the Partnership Entities in substantially the same manner that such business,
properties and assets have been managed and operated by EPCO and its Affiliates
prior to the Closing Date; it being understood and agreed by the Parties that in
connection with the provision of such management and operating services EPCO
shall employ or otherwise retain the services of such personnel as may be
necessary to cause the business, properties and assets of the Partnership
Entities to be so managed and operated; and
(b) such selling, general and administrative services (the "SGA
Services") as may be reasonably necessary to cause the business of the
Partnership Entities to be conducted in substantially the same manner in which
EPCO's business was conducted prior to the date hereof.
All Services provided by EPCO or its Affiliates hereunder shall be substantially
identical in nature and quality to the services of such type provided by EPCO
and its Affiliates with respect to the business, properties and assets of the
Partnership Entities during the one year period prior to the Closing Date. In
addition, EPCO shall use reasonable care in providing the Services.
2.2 COMPENSATION. As compensation for the provision by EPCO to the
General Partner of the Services, EPCO shall be entitled to receive, and the
General Partner agrees to pay to EPCO, the following amounts:
(a) with respect to any SGA Services provided by EPCO or its
Affiliates to the General Partner hereunder during a given period of
time, an amount equal to the appropriate portion of the then applicable
Administrative Services Fee; and
(b) with respect to all Services other than SGA Services provided by
EPCO or its Affiliates to the General Partner hereunder during a given period of
time, an amount equal to the sum of all costs and expenses (other than SGA
Costs) incurred by EPCO and its Affiliates in connection with the provision of
such Services.
The aggregate amount payable by the General Partner to EPCO pursuant to this
Section 2.2 with respect to a given period of time shall be referred to herein
as the "Reimbursement Amount". In addition, the General Partner shall pay all
sales, use, excise, value added or similar taxes, if any, that may be applicable
from time to time in respect of the Services provided to it by EPCO.
2.3 DISPUTE REGARDING SERVICES OR CALCULATION OF COSTS. Should there be
a dispute over the nature or quality of the Services or the calculation of the
Reimbursement Amount relating to the Services, EPCO and the General Partner
agree that the prior practice of EPCO with respect to the Services previously
provided with respect to the business, properties and assets of the Partnership
Entities or the calculation of the Reimbursement Amount relating to
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such Services, as determined from the books and records of EPCO and its
Affiliates, shall be conclusive as to the nature and quality of the Services and
the reasonableness of the calculation of the Reimbursement Amount relating to
such Services, as the case may be.
2.4 INVOICES. EPCO shall invoice the General Partner on or before the
20th day of each month for the estimated Reimbursement Amount for the next
succeeding month, plus or minus any adjustment necessary to correct prior
estimated ▇▇▇▇▇▇▇▇ to actual ▇▇▇▇▇▇▇▇. All invoices shall be due and payable on
the last day of the month of the invoice. Upon request of the General Partner
EPCO shall furnish in reasonable detail a description of the Services performed
during any month.
2.5 DISPUTES; DEFAULT. Notwithstanding any provision of this Article 2
to the contrary, should the General Partner fail to pay EPCO when due any
amounts owing to EPCO in respect of the Services, EPCO may, except as set forth
in the third succeeding sentence, upon 30 days' notice to the General Partner,
terminate this Article 2 as to those Services that relate to the unpaid portion
of the invoice. Should there be a dispute as to the propriety of invoiced
amounts, the General Partner shall pay all undisputed amounts on each invoice,
but shall be entitled to withhold payment of any amount in dispute and shall
promptly notify EPCO of such disputed amount. EPCO shall provide the General
Partner with records relating to the disputed amount so as to enable the parties
to resolve the dispute. So long as the parties are attempting in good faith to
resolve the dispute, EPCO shall not be entitled to terminate the Services that
relate to the disputed amount.
2.6 INPUT. Any records, information or other input from the General
Partner that is necessary for EPCO to perform any Services shall be submitted to
EPCO by the General Partner in a manner consistent with the practices utilized
by EPCO and its Affiliates during the one year period prior to the Closing Date,
which manner shall not be altered except by mutual agreement of the parties. If
the General Partner's failure to supply such input renders EPCO's performance of
any Services unreasonably difficult, EPCO, upon reasonable notice to the General
Partner, may refuse to perform such Services.
2.7 LIMITATION. The General Partner acknowledges that the Services
shall be provided only with respect to the business of the Partnership Entities
as operated on the Closing Date or as otherwise mutually agreed by EPCO and the
General Partner. EPCO shall not be required to perform any Services for the
benefit of any Person other than the Partnership Entities.
2.8 REPRESENTATIONS REGARDING USE OF SERVICES. The General Partner
represents and agrees that it will use the Services only in accordance with all
applicable federal, state and local laws and regulations, and in accordance with
the reasonable conditions, rules, regulations, and specifications that may be
set forth in any manuals, materials, documents, or instructions furnished from
time to time by the General Partner to EPCO or by EPCO to the General Partner.
EPCO reserves the right to take all actions, including, without limitation,
termination of any particular Services, that EPCO reasonably believes to be
necessary to assure compliance with applicable laws and regulations.
2.9 WARRANTY; LIMITATION OF LIABILITY. The Services shall be of the
same or similar quality as those provided by EPCO with respect to the business,
properties and assets of the
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Partnership Entities during the one year period prior to the Closing Date.
EXCEPT AS SET FORTH IN THE IMMEDIATELY PRECEDING SENTENCE, EPCO MAKES NO (AND
HEREBY DISCLAIMS AND NEGATES ANY AND ALL) WARRANTIES OR REPRESENTATIONS
WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES. IN NO EVENT SHALL
EPCO OR ANY OF ITS AFFILIATES BE LIABLE TO THE GENERAL PARTNER OR ANY OTHER
PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES RESULTING FROM ANY
ERROR IN THE PERFORMANCE OF SERVICES, REGARDLESS OF WHETHER EPCO, ITS
AFFILIATES, OR OTHERS WHO MAY BE WHOLLY, CONCURRENTLY, PARTIALLY, OR SOLELY
NEGLIGENT OR OTHERWISE AT FAULT.
2.10 FORCE MAJEURE. EPCO shall have no obligation to perform the
Services if its failure to do so is caused by or results from any act of God,
governmental action, natural disaster, strike, failure of essential equipment,
or any other cause or circumstance, whether similar or dissimilar to the
foregoing causes or circumstances, beyond the reasonable control of EPCO.
2.11 AFFILIATES. At its election, EPCO may cause one or more of its
Affiliates or third party contractors reasonably acceptable to the General
Partner to provide the Services; however, EPCO shall remain responsible for the
provision of the Services in accordance with this Agreement.
ARTICLE 3: USE OF NAME AND ▇▇▇▇
3.1 GRANT OF LICENSE. EPCO hereby grants to each of the Partnership
Entities (individually, a "Licensee"), and each Licensee hereby accepts, a
nontransferable, nonexclusive royalty-free right and license to use the Name and
▇▇▇▇ in connection with the business conducted by each such Licensee.
3.2 USE. All use of and reference to the Name and ▇▇▇▇ by each Licensee
shall be generally approved by EPCO prior to such use or reference, and all such
use and reference shall conform with such instructions and quality standards as
EPCO from time to time may issue. In no event shall use of or reference to the
Name and ▇▇▇▇ be inconsistent in form or content with the sole ownership of the
Name and ▇▇▇▇ by EPCO. All use of the Name and ▇▇▇▇ by each Licensee, its
agents, servants, employees and vendees, shall inure solely to the benefit of
EPCO. EPCO shall have the right to make inspection of Licensee's services
rendered in connection with the Name and ▇▇▇▇ to protect the goodwill of EPCO
associated with the Name and ▇▇▇▇.
3.3 VARIATIONS. No Licensee shall adopt and commence using any
variations of the Name and ▇▇▇▇, or any other names and marks confusingly
similar thereto, without the prior approval of EPCO.
3.4 NONTRANSFERABLE. The license granted to each Licensee to use the
Name and ▇▇▇▇ is not assignable or transferable, and it shall not inure to the
benefit of any other Person, including, without limitation, a trustee in
bankruptcy or any other successor to any Licensee, whether by operation of law
or otherwise.
3.5 INDEMNITY. Each Licensee agrees to be solely responsible for and to
defend and indemnify EPCO from and against any and all claims, demands and
causes of action, and all
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costs, liabilities, expenses (including, without limitation, reasonable
attorney's fees), damages or judgments sustained in connection therewith,
arising out of, resulting from or related to the use of the Name and ▇▇▇▇ by
such Licensee, its agents, servants, employees and representatives, even if such
claim, demand or cause of action is based on the sole, partial or concurrent
negligence of EPCO, except that EPCO shall defend and indemnify each Licensee
from and against all claims, demands or causes of action for trademark
infringement arising from the use of the Name and ▇▇▇▇ by such Licensee. If
requested by EPCO, such Licensee shall retain counsel reasonably satisfactory to
EPCO to represent EPCO, and such Licensee shall pay the fees and expenses of
such counsel relating to such claim, demand, or cause of action. EPCO shall be
consulted with respect to all matters concerning such claim, demand, or cause of
action, and settlement of such claim, demand, or cause of action shall not be
made without the prior written approval of EPCO.
3.6 TERMINATION. The license granted by this Article 3 shall terminate
automatically upon the expiration of the Applicable Period. As promptly as
practicable (but in no event more than 180 days) following the termination of
this license, each Licensee shall cease all use of the Name and ▇▇▇▇ and any and
all other names and marks confusingly similar thereto. Termination of the
license shall not terminate each Licensee's continuing obligation of
indemnification under Section 3.5.
ARTICLE 4: INDEMNIFICATION
4.1 INDEMNIFICATION. From and after the date hereof and subject to the
remaining provisions of this Article 4, EPCO shall indemnify, defend and hold
harmless the Partnership Entities from and against any loss, cost, claim,
liability, prepayment or similar penalty, damage, expense, attorneys fees,
judgment, award or settlement of any kind or nature whatsoever (other than
out-of-pocket costs and expenses incurred by the Partnership Entities in
connection with the discharge of their obligations pursuant to Section 4.2(b))
(collectively, "Losses") incurred by the Partnership Entities in connection with
the Excluded Liabilities; provided, however, in no event shall such
indemnification obligation, or the term "Losses," cover or include
consequential, indirect, or incidental damages or lost profits suffered by the
Partnership Entities in connection with the Excluded Liabilities, except to the
extent such consequential, indirect or incidental damages or lost profits are
actually paid to a third party.
4.2 Indemnification Procedures.
(a) EPCO shall have the right to control all aspects of the defense of
any claims (and any counterclaims) related to the Excluded Liabilities,
including, without limitation, the selection of counsel, determination of
whether to appeal any decision of any court and the settling of any such matter
or any issues relating thereto; provided, however, that no such settlement shall
be entered into without the consent of the Partnership Entities unless (i) it
includes a full release of the Partnership Entities from such matter or issues,
as the case may be or (ii) following such settlement there is no realistic
scenario under which the Partnership Entities could be held liable for such
matter or issues.
(b) The Partnership Entities agree, at their own cost and expense, to
cooperate fully with EPCO with respect to all aspects of the defense of any
claims related to the Excluded
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Liabilities, including, without limitation, the prompt furnishing to EPCO of any
correspondence or other notice relating thereto that the General Partner or the
Partnership Entities may receive, permitting the names of the General Partner
and the Partnership Entities to be utilized in connection with such defense and
the making available to EPCO of any files, records or other information of the
General Partner or the Partnership Entities that EPCO considers relevant to such
defense; provided, however, that in connection therewith EPCO agrees to use
reasonable efforts to minimize the impact thereof on the operations of such
Partnership Entities. In no event shall the obligation of the Partnership
Entities to cooperate with EPCO as set forth in the immediately preceding
sentence be construed as imposing upon the Partnership Entities an obligation to
hire and pay for counsel in connection with the defense of any claims related to
the Excluded Litigation.
ARTICLE 5: OTHER AGREEMENTS
5.1 PROHIBITED ACTIVITIES. During the Applicable Period, EPCO agrees
that it will not, and will cause its Affiliates not to, engage in any Restricted
Activity, unless (a) notice of the opportunity to engage in such Restricted
Activity has first been given by EPCO to the General Partner, which notice shall
describe in reasonable detail the specific Restricted Activity that EPCO or its
applicable Affiliate desires to engage in, (b) the General Partner has notified
EPCO of its decision to permit EPCO or one of its Affiliates to undertake such
Restricted Activity to the exclusion of the Partnership Entities and (c) the
Audit and Conflicts Committee has approved such decision. The General Partner
agrees to give prompt consideration to any such notice. EPCO agrees and
acknowledges that the Partnership Entities do not have an adequate remedy at law
for the breach by EPCO or its Affiliates of the foregoing agreement, and that
any breach by EPCO or its Affiliates of the foregoing agreement would result in
irreparable injury to the Partnership Entities. EPCO further agrees and
acknowledges that the Partnership Entities may, in addition to the other
remedies which may be available to the Partnership Entities, file a suit in
equity to enjoin EPCO and its Affiliates from such breach.
5.2 INSURANCE MATTERS. EPCO hereby agrees to cause the Partnership
Entities to be named as additional insureds in EPCO's current insurance program,
which is described on Exhibit A attached hereto. Each of the Partnership
Entities shall be allocated, and pay for, such insurance coverage in an amount
equal to EPCO's cost of insuring the assets and operations of such Partnership
Entity, and generally in accordance with the allocations and methodology
described in Exhibit A.
5.3 COMMON CARRIER TRANSPORTATION CONTRACT. Effective June 1, 1998,
EPCO and the OLP entered into a Common Carrier Transportation Contract
substantially in the form of Exhibit B attached hereto, pursuant to which EPCO
agreed to provide trucking and other transportation services to the OLP.
5.4 SUBLEASE OF EQUIPMENT. Dated June 1, 1998, EPCO and the OLP entered
into a Sublease Agreement substantially in the form of Exhibit C attached
hereto, pursuant to which EPCO agreed to sublease certain of its equipment to
the OLP.
5.5 AGREEMENT REGARDING CERTAIN ASSETS RETAINED BY EPCO. With respect
to any assets or properties of EPCO and/or any of its Affiliates that would have
been a part of the assets
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and properties transferred by EPCO or such Affiliate to the Partnership Entities
on or prior to the Closing Date (by operation of law or otherwise) but for the
existence of prohibitions against or conditions to such transfer that, if not
satisfied, would result in the breach by EPCO or one of its Affiliates of a
third party agreement or would terminate or give a third party the right to
terminate any rights of EPCO or such Affiliate in and to such asset or property
(any such asset or property being herein referred to as a "Restricted Asset" and
any such prohibition or condition being herein referred to as a "Restriction"),
EPCO agrees to (a) use commercially reasonable efforts to cause such Restriction
to be satisfied or waived, (b) transfer such Restricted Asset to the appropriate
Partnership Entity when and if such Restriction is satisfied or waived, provided
that such Restriction is satisfied or waived within 21 years of the death of the
last to die of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, father of the late
President ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, who are living on the Closing Date, and (c) pending
the satisfaction or waiver of such Restriction and to the extent permitted by
applicable law and the terms of any applicable contracts or agreements, and
subject to any written agreements between EPCO and the Partnership Entities
regarding specific Restricted Assets, hold the Restricted Assets for the benefit
of and use by the Partnership Entities in order to permit the Partnership
Entities to realize, receive, and enjoy rights and benefits, and bear burdens
and obligations of the Restricted Assets, in each case that are substantially
similar to those that the Partnership Entities would have been able to realize,
receive and enjoy, or bear, as applicable, had such Restriction been satisfied
or waived.
5.6 AGREEMENT REGARDING MONT BELVIEU PARTNERSHIP. The parties
acknowledge and agree that pursuant to the Plan of Merger, EPCO retained a one
percent economic interest, and all rights of EPCO as a "partner," in Mont
Belvieu Associates, a Texas general partnership ("Mont Belvieu"). With respect
to such interest and rights in Mont Belvieu retained by EPCO, EPCO agrees that
until such time as EPCO's rights as a "partner" in Mont Belvieu are transferred
to Enterprise Texas and Enterprise Texas is admitted to Mont Belvieu as a
partner, EPCO agrees to refrain from exercising or waiving any of its rights as
a "partner"" in Mont Belvieu without the prior approval of Enterprise Texas, and
will exercise or waive its rights, and vote its partnership interest, as
directed by Enterprise Texas. EPCO agrees that it will not sell or otherwise
transfer (including by way of a pledge) any of its partner interest in Mont
Belvieu without the approval of the Audit and Conflicts Committee. EPCO agrees
that, upon the occurrence of a Change of Control and subject to the receipt of
any applicable third-party consents or approvals, (a) EPCO will transfer to
Enterprise Texas the 49% partner interest for which the related economic
interest has already been transferred to Enterprise Texas without the payment of
further consideration by Enterprise Texas and (b) Enterprise Texas will have the
option to purchase from EPCO its remaining 1% partner interest in Mont Belvieu
for the fair market value thereof, as determined by agreement between EPCO and
the Audit and Conflicts Committee.
5.7 AGREEMENT REGARDING BELVIEU ENVIRONMENTAL FUELS. The parties
acknowledge and agree that pursuant to the Plan of Merger, EPCO retained its
rights as a general partner of Belvieu Environmental Fuels, Inc., a Texas
General Partnership ("BEF"). With respect to such rights in BEF retained by
EPCO, EPCO agrees that until such time as EPCO's rights as a "partner" in BEF
are transferred to the OLP, and the OLP is admitted to BEF as a partner, EPCO
agrees to refrain from exercising or waiving any of its rights as a "partner" in
BEF without the prior approval of the OLP and will exercise or waive its rights,
and vote its partnership interests, as directed by the OLP. EPCO agrees that it
will not sell or otherwise transfer (including by way
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of a pledge) any of its partner interests in BEF without the approval of the
Audit and Conflicts Committee. EPCO further agrees that, upon the occurrence of
a Change of Control and subject to the receipt of any applicable third-party
consents or approvals, it will transfer its rights as a partner in BEF to the
OLP without the payment of further consideration by the OLP.
ARTICLE 6: MISCELLANEOUS
6.1 CHOICE OF LAW; SUBMISSION TO JURISDICTION. This Agreement shall be
subject to and governed by the laws of the State of Texas, excluding any
conflicts-of-law rule or principle that might refer the construction or
interpretation of this Agreement to the laws of another state. Each party hereby
submits to the jurisdiction of the state and federal courts in the State of
Texas and to venue in Houston, ▇▇▇▇▇▇ County, Texas.
6.2 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 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 by delivering such notice in person or by telecopier or telegram to such
party. Notice given by personal delivery or mail shall be effective upon actual
receipt. Notice given by telegram or telecopier shall be effective upon actual
receipt if received during the recipient's normal business hours, or at the
beginning of the recipient's next business day after receipt if not received
during the recipient's normal business hours. All notices to be sent to a party
pursuant to this Agreement shall be sent to or made at the address set forth
below such party's signature to this Agreement, or at such other address as such
party may stipulate to the other parties in the manner provided in this Section
6.2.
6.3 ENTIRE AGREEMENT; SUPERSEDURE. This Agreement constitutes the
entire agreement of the parties relating to the matters contained herein,
superseding all prior contracts or agreements, whether oral or written, relating
to the matters contained herein.
6.4 EFFECT OF WAIVER OF CONSENT. No waiver or consent, express or
implied, by any party to or of any breach or default by any Person in the
performance by such Person of its obligations hereunder shall be deemed or
construed to be a consent or waiver to or of any other breach or default in the
performance by such Person of the same or any other obligations of such Person
hereunder. Failure on the part of a party to complain of any act of any Person
or to declare any Person in default, irrespective of how long such failure
continues, shall not constitute a waiver by such party of its rights hereunder
until the applicable statute of limitations period has run.
6.5 AMENDMENT OR MODIFICATION. This Agreement may be amended or
modified from time to time only by the agreement of all the parties hereto;
provided, however, that the MLP and OLP may not, without the prior approval of
the Audit and Conflicts Committee, agree to any amendment or modification of
this Agreement that, in the reasonable discretion of the General Partner, will
adversely affect the Holders of Common Units.
6.6 ASSIGNMENT. No party shall have the right to assign its rights or
obligations under this Agreement without the consent of the other parties
hereto.
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6.7 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.
6.8 SEVERABILITY. 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.
6.9 FURTHER ASSURANCES. In connection with this Agreement and all
transactions contemplated by this Agreement, each signatory party hereto 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.
6.10 WITHHOLDING OR GRANTING OF CONSENT. Each party may, with respect
to any consent or approval that it is entitled to grant pursuant to this
Agreement, grant or withhold such consent or approval in its sole and
uncontrolled discretion, with or without cause, and subject to such conditions
as it shall deem appropriate.
6.11 U.S. CURRENCY. 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.
6.12 LAWS AND REGULATIONS. Notwithstanding any provision of this
Agreement to the contrary, no party hereto shall be required to take any act, or
fail to take any act, under this Agreement if the effect thereof would be to
cause such party to be in violation of any applicable law, statute, rule or
regulation.
6.13 NEGATION OF RIGHTS OF THIRD PARTIES. The provisions of this
Agreement are enforceable solely by the parties to this Agreement, and no
Limited Partner, Assignee or other Person shall have the right, separate and
apart from the MLP or the OLP, to enforce any provision of this Agreement or to
compel any party to this Agreement to comply with the terms of this Agreement.
9
IN WITNESS WHEREOF, the parties have executed this Agreement on, and
effective as of, the Closing Date.
ENTERPRISE PRODUCTS COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President
Address for Notice:
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
ENTERPRISE PRODUCTS PARTNERS L.P.
By: ENTERPRISE PRODUCTS GP, LLC
its sole general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President
Address for Notice:
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
ENTERPRISE OPERATING PARTNERS L.P.
By: ENTERPRISE PRODUCTS GP, LLC,
its sole general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President
Address for Notice:
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
ENTERPRISE PRODUCTS GP, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President
Address for Notice:
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
10
ATTACHMENT I
DEFINED TERMS
"Administrative Services Fee" shall mean, with respect to the period of
time beginning on the Closing Date and ending on the first anniversary thereof
(the "Initial Period"), an amount equal to $12,000,000; provided, however, that
the Administrative Service Fee for each of the nine successive one year-periods
following the Initial Period (each a "Subsequent Period") may be increased by
the General Partner upon the request of EPCO subject to the following
restrictions:
(i) any such increase must be approved by the Audit and Conflicts
Committee; and
(ii) except to the extent necessary to fully and adequately
reimburse EPCO for any incremental SGA Costs incurred by EPCO
or its Affiliates as a result of the hiring of additional
management personnel in connection with the expansion of the
operations of the Partnership Entities (through the
construction of new facilities or the completion of
acquisitions), in no event may the Administrative Services Fee
for any Subsequent Period exceed an amount equal to 110% of
the Administrative Services Fee that was paid or payable by
the General Partner to EPCO with respect to the prior one year
period.
"Affiliate" shall have the meaning attributed to such term in the MLP
Agreement; provided, however, that for the purposes of this Agreement neither
the General Partner, the MLP, the OLP nor any Person controlled by the MLP or
the OLP (as the term "control" is used in the definition of "Affiliate" in the
MLP Agreement) shall be deemed to be an Affiliate of EPCO.
"Agreement" shall mean this
EPCO Agreement, as it may be amended,
modified, or supplemented from time to time.
"Applicable Period" shall mean the period commencing on the Closing
Date and terminating on the date on which the general partner of the MLP and the
OLP ceases to be Enterprise Products GP, LLC or another Person that is an
Affiliate of EPCO.
"BEF" shall have the meaning attributed to such term in Section 5.7.
"Business" shall mean the business and operations of EPCO and its
subsidiaries immediately prior to the effectiveness of the merger contemplated
by the Plan of Merger (excluding the Retained Assets and Liabilities (as defined
in the Plan of Merger)).
"Change of Control" shall mean the occurrence of any transaction, the
result of which is that (a) ▇▇▇ ▇▇▇▇▇▇, directly or indirectly, owns less than a
majority of the voting stock of EPCO, (b) EPCO or a wholly owned subsidiary of
EPCO and ▇▇▇ ▇▇▇▇▇▇, directly or indirectly, collectively own less than a
majority of the voting stock of the General Partner or (c) EPCO ceases to be an
Affiliate of the General Partner.
"Enterprise Texas" shall mean Enterprise Texas Operating L.P., a Texas
limited partnership.
"Excluded Liabilities" shall mean the following liabilities and
obligations:
(a) all liabilities and obligations attributable to the
lawsuits and claims listed on Exhibit D attached hereto and made a part
hereof;
(b) all indebtedness of EPCO and its Affiliates for borrowed
money other than the Designated Indebtedness (as such term is defined
in the Plan of Merger);
(c) any Retained Assets and Liabilities (as such term is
defined in the Plan of Merger);
(d) all liabilities and obligations to brokers or finders
arising prior to the Closing Date, except to the extent any such
liabilities and obligations were entered into in the normal and
ordinary course of the day-to-day operation of the business or
constitute a part of the "Underwriting Commissions and Offering
Expenses" to be paid by the MLP as described in the Registration
Statement under the Section entitled "Use of Proceeds";
(e) any income tax liability of EPCO that may result from the
consummation of the transactions contemplated by this Agreement; and
(f) any liability or obligation of EPCO under any employment
agreements with any of its employees or officers.
"General Partner" shall mean the Enterprise GP and its successors as
general partner of the MLP and the OLP, unless the context otherwise requires.
"Licensee" shall have the meaning attributed to such term in Section
3.1.
"Losses" shall have the meaning attributed to such term in Section 4.1.
"MLP Agreement" shall mean that certain Amended and Restated Agreement
of Limited Partnership of Enterprise Products Partners L.P., dated as of the
Closing Date, as same may be amended from time to time.
"Name" and "▇▇▇▇" shall mean the name "Enterprise", as described in
Registration Number 1,236,995 registered on May 10, 1983 and issued by the
United States Patent and Trademark Office, and the ▇▇▇▇ "Enterprise", as
described in Application Registration Number 1,292,612 registered on September
4, 1984 and issued by the United States Patent and Trademark Office.
"Partnership Entities" shall mean the General Partner, the MLP, the OLP
and any Affiliate controlled by the General Partner, the MLP or the OLP.
"Plan of Merger" shall mean that certain Plan of Merger dated June 1,
1998 by and among EPCO, HSC Pipeline Partnership, L.P., Chunchula Pipeline
Company, LLC, Propylene Pipeline Partnership, L.P., Cajun Pipeline Company, LLC,
and Enterprise Texas, as amended by that certain First Amendment to Plan of
Merger among such parties dated effective as of June 1, 1998.
2
"Restricted Activities" mans the conduct within North America of the
types of businesses and activities engaged in by EPC and its Affiliates as of
May 31, 1998; provided, however, that such term shall not include any business
or activities associated with the assets, properties or businesses of EPCO and
its Affiliates as of the day immediately following the Closing Date.
"Reimbursement Amount" shall have the meaning attributed to such term
in Section 2.2.
"SGA Services" shall have the meaning attributed to such term in
Section 2.1.
"SGA Costs" shall mean the selling, general and administrative costs
incurred by EPCO and its Affiliates in connection with provision of SGA Services
to the Partnership Entities.
3