EXHIBIT 5
VOTING AGREEMENT AND IRREVOCABLE PROXY
THIS VOTING AGREEMENT AND IRREVOCABLE PROXY (this "Agreement"), dated
as of December 15, 2003, is by and among Enterprise Products Partners L.P., a
Delaware limited partnership ("Enterprise"), El Paso Corporation, a Delaware
corporation ("El Paso"), Sabine River Investors I, L.L.C., a Delaware limited
liability company ("SRI I"), Sabine River Investors II, L.L.C., a Delaware
limited liability company ("SRI II") and El Paso EPN Investments, L.L.C., a
Delaware limited liability company ("El Paso EPN Investments" and, together with
SRI I and SRI II, the "Unitholders").
WHEREAS, GulfTerra Energy Partners, L.P., a Delaware limited
partnership ("GulfTerra") and Enterprise have entered into a Merger Agreement,
dated as of December 15, 2003, by and among GulfTerra, GulfTerra Energy Company,
L.L.C., Enterprise, Enterprise Products GP, LLC and Enterprise Products
Management LLC (the "Merger Agreement"); and
WHEREAS, each of the Unitholders is the beneficial owner of that number
of units representing limited partner interests in GulfTerra (generically, the
"Units") set forth opposite such Unitholder's name on Annex A hereto (the Units
owned by each such Unitholder, together with any additional Units of GulfTerra
acquired after the date hereof, being collectively referred to herein as such
Unitholder's "Subject Units"); and
WHEREAS, as a condition to the willingness of Enterprise to enter into
the Merger Agreement, and as an inducement to it to do so, each of the
Unitholders has agreed for the benefit of Enterprise as set forth in this
Agreement;
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained in this Agreement, the parties hereto hereby agree as
follows:
ARTICLE I
VOTING AGREEMENT AND PROXY
Section 1.1. Agreement to Vote. At any meeting of the holders of
GulfTerra's Units held prior to the termination of this Agreement pursuant to
Section 2.11 hereof (the "Termination Date"), however called, and at every
adjournment or postponement thereof prior to the Termination Date, each
Unitholder shall vote or cause to be voted the Subject Units held by such
Unitholder (a) in favor of (i) the adoption of the Merger Agreement by
GulfTerra, (ii) the merger (the "Merger") and other transactions contemplated by
the Merger Agreement, and (iii) any actions required in furtherance of the
Merger and the other transactions contemplated by the Merger Agreement, and (b)
against (i) any Possible Alternative (as defined in the Merger Agreement), (ii)
any proposal for action or agreement that is reasonably likely to result in a
breach of any covenant, representation or warranty or any other obligation or
agreement of a GulfTerra Party under the Merger Agreement or that is reasonably
likely to result in any of the conditions to the obligations of GulfTerra under
the Merger Agreement not being fulfilled, or (iii) any other action which could
reasonably be expected to impede, interfere with, delay, postpone or materially
affect the transactions contemplated by the Merger Agreement or the likelihood
of such transactions being consummated.
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Section 1.2. Irrevocable Proxy. In order to better effect the
provisions of Section 1.1 hereof, each of the Unitholders hereby appoints
_______ and _________, and each of them, as the proxy of such Unitholder, each
with full power of substitution and resubstitution, to vote the Subject Units
held by such Unitholder at any meeting of the holders of Units of GulfTerra held
prior to the Termination Date, however called, and at every adjournment or
postponement thereof prior to the Termination Date, and to execute any written
consent of such Unitholder in lieu of any such meeting, with the same force and
effect as such vote would have if the Unitholder were personally present at such
meeting or signed such consent, in all cases, however, in accordance with the
terms of Section 1.1 hereof. This proxy, being coupled with an interest, is
irrevocable.
Section 1.3. Proxies and Voting Agreements. Each of the Unitholders
hereby revokes any and all previous proxies (other than the proxy granted
pursuant to Section 1.2 hereof) granted with respect to the Subject Units held
by such Unitholder. Prior to the Termination Date, such Unitholder agrees not
to, directly or indirectly, with respect to the Subject Units held by such
Unitholder (a) grant any proxies or powers of attorney (except pursuant to
Section 1.2 hereof), (b) deposit any of such Units into any voting trust or (c)
enter into any other voting agreement or understanding.
Section 1.4. Transfer of Units by the Unitholders. Prior to the
Termination Date, each of the Unitholders agrees not to sell, transfer, assign,
convey or otherwise dispose of, directly or indirectly, any of the Units held by
such Unitholder.
Section 1.5. Agreement of El Paso. El Paso shall cause each of the
Unitholders to perform its obligations under this Agreement.
Section 1.6. Unitholders Representations and Warranties. Each
Unitholder represents and warrants to Enterprise that (i) the Unitholder has
duly authorized, executed and delivered this Agreement and this Agreement
constitutes a valid and binding agreement and neither the execution and delivery
of this Agreement nor the consummation by the Unitholder of the transactions
contemplated hereby will constitute a violation of, a default under, or conflict
with any contract, commitment, agreement, understanding, arrangement or
restriction of any kind to which the Unitholder is party or by which the
Unitholder is bound, (ii) consummation by the Unitholder of the transactions
contemplated hereby will not violate, or require any consent, approval or notice
under, any provision of law applicable to the Unitholder, (iii) there are no
outstanding options, warrants or rights to purchase or acquire, proxies,
powers-of-attorney or voting agreements relating to the Subject Units, other
than this Agreement, (iv) such Subject Units constitute all of the securities of
the Unitholder owned beneficially or of record by the Unitholder on the date
hereof and (v) the Unitholder has the present power and right to vote all of the
Subject Units as contemplated herein.
ARTICLE II
MISCELLANEOUS
Section 2.1. Further Assurances. From time to time, at the reasonable request of
Enterprise, each of the other parties hereto shall execute and deliver or cause
to be executed and
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delivered such additional documents and instruments and take all such further
action as may be necessary or desirable to consummate the transactions
contemplated by this Agreement.
Section 2.2. Specific Performance. Each of the Unitholders agrees that
Enterprise would be irreparably damaged if for any reason such Unitholder fails
to perform any of its obligations under this Agreement, and that Enterprise
would not have an adequate remedy at law for money damages in such event.
Accordingly, Enterprise shall be entitled to seek specific performance and
injunctive and other equitable relief to enforce the performance of this
Agreement by such Unitholder. This provision is without prejudice to any other
rights that Enterprise may have against such Unitholder for any failure to
perform its obligations under this Agreement.
Section 2.3. Notices. All notices to be given pursuant hereto shall be
given in accordance with Section 10.1 of the Merger Agreement.
Section 2.4. Definitions and Interpretation. Capitalized terms that are
used but not defined herein shall have the meanings ascribed to them in the
Merger Agreement. Section 1.2 of the Merger Agreement shall govern the
interpretation hereof.
Section 2.5. Counterparts. This Agreement may be executed in two or
more counterparts, all of which shall be considered one and the same agreement.
Section 2.6. Binding Effect and Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties hereto, their respective
permitted successors and assigns and any transferee of any Unitholder's Subject
Units. This Agreement shall not be assignable by either party hereto without the
written consent of the other party hereto. Nothing in this Agreement, express or
implied, is intended to confer upon any person other than the parties hereto and
their respective permitted successors and assigns, any rights, benefits or
obligations hereunder. No Person other than the parties hereto is an intended
beneficiary of this Agreement or any portion hereof.
Section 2.7. Governing Law. This Agreement shall be governed and
construed in accordance with the internal laws of the State of Delaware, without
giving effect to the principles of conflicts of law thereof that would require
the application of another state's law.
Section 2.8. Entire Agreement; Amendments and Waivers. This Agreement
constitutes the entire agreement between the parties hereto pertaining to the
subject matter hereof and supersedes all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the parties, and there
are no other agreements between the parties in connection with the subject
matter hereof except as set forth specifically herein or contemplated hereby. No
supplement, modification or waiver of this Agreement shall be binding unless
executed in writing by the party to be bound thereby. The failure of a party to
exercise any right or remedy shall not be deemed or constitute a waiver of such
right or remedy in the future. No waiver of any of the provisions of this
Agreement shall be deemed to or shall constitute a waiver of any other provision
hereof (regardless of whether similar), nor shall any such waiver constitute a
continuing waiver unless otherwise expressly provided.
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Section 2.9. Severability. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner as to be
effective and valid but if any provision or portion of any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision, and this Agreement will be reformed, construed and
enforced as if such invalid, illegal or unenforceable provision or portion of
any provision had never been contained herein. The parties shall endeavor in
good faith negotiations to replace any invalid, illegal or unenforceable
provision with a valid provision the effects of which come as close as possible
to those of such invalid, illegal or unenforceable provision.
Section 2.10. Attorneys' Fees. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and necessary
disbursements, in addition to any other relief to which such party may be
entitled.
Section 2.11. Termination. This Agreement shall terminate and be of no
further force and effect upon the first to occur of (i) the Effective Time and
(ii) the termination of the Merger Agreement in accordance with its terms.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
ENTERPRISE PRODUCTS PARTNERS L.P.
By: Enterprise Products GP, LLC,
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
EL PASO CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Vice President
SABINE RIVER INVESTMENTS I, L.L.C.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Vice President
SABINE RIVER INVESTMENTS II, L.L.C.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Vice President
EL PASO EPN INVESTMENTS, L.L.C.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Vice President
ANNEX A
UNITS
NUMBER OF GULFTERRA NUMBER OF GULFTERRA
UNITHOLDER COMMON UNITS SERIES C UNITS
---------- ------------------- -------------------
Sabine River Investments I, L.L.C. 8,262,902 --
Sabine River Investments II, L.L.C. 2,821,343 --
El Paso EPN Investments, L.L.C. 10,937,500
Total Units 11,084,245 10,937,500