EXHIBIT 10.2
FORM OF
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
Attachment I 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 3
2.4 Invoices 3
2.5 Disputes; Default 3
2.6 Input 3
2.7 Limitation 3
2.8 Representations Regarding Use of Services 4
2.9 Warranty; Limitation of Liability 4
2.10 Force Majeure 4
2.11 Affiliates 4
ARTICLE 3: USE OF NAME AND XXXX
3.1 Grant of License 4
3.2 Use 4
3.3 Variations 5
3.4 Nontransferable 5
3.5 Indemnity 5
3.6 Termination 5
ARTICLE 4: INDEMNIFICATION
4.1 Indemnification 5
4.2 Indemnification Procedures 6
ARTICLE 5: OTHER AGREEMENTS
5.1 Prohibited Activities 6
5.2 Insurance Matters 7
5.3 Common Carrier Transportation Contract 7
5.4 Sublease of Equipment 7
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 8
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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 9
6.4 Effect of Waiver of Consent 9
6.5 Amendment or Modification 9
6.6 Assignment 9
6.7 Counterparts 9
6.8 Severability 9
6.9 Further Assurances 9
6.10 Withholding or Granting of Consent 10
6.11 U.S. Currency 10
6.12 Laws and Regulations 10
6.13 Negation of Rights of Third Parties 10
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
Exhibit E Designated Indebtedness
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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").
R E C I T A L S
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 Xxxx 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.
A G R E E M E N T S
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
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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.
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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 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 xxxxxxxx to actual xxxxxxxx. 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.
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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 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 XXXX
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
Xxxx in connection with the business conducted by each such Licensee.
3.2 USE. All use of and reference to the Name and Xxxx 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 Xxxx be inconsistent in form or content with the sole ownership of the
Name and Xxxx by EPCO. All use of the Name and Xxxx by each Licensee, its
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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 Xxxx to protect the goodwill of EPCO
associated with the Name and Xxxx.
3.3 VARIATIONS. No Licensee shall adopt and commence using any
variations of the Name and Xxxx, 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 Xxxx 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 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 Xxxx 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 Xxxx 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
Xxxx 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,
judgement, 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
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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 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
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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. Effective __________, 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 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
Xxxxxx X. Xxxxxxx, father of the late President Xxxx X. Xxxxxxx, 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
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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 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, Xxxxxx 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
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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.
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 contem plated 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.
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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.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement on, and effective
as of, the Closing Date.
ENTERPRISE PRODUCTS COMPANY
By:_________________________________
Xxxx X. Xxxxxx
Executive Vice President
Address for Notice:
X.X. Xxx 0000
Xxxxxxx, Xxxxx 00000-0000
ENTERPRISE PRODUCTS PARTNERS L.P.
By: ENTERPRISE PRODUCTS GP, LLC
its sole general partner
By:___________________________
Xxxx X. Xxxxxx
Executive Vice President
Address for Notice:
X.X. Xxx 0000
Xxxxxxx, Xxxxx 00000-0000
ENTERPRISE PRODUCTS OPERATING L.P.
By: ENTERPRISE PRODUCTS GP, LLC,
its sole general partner
By:___________________________
Xxxx X. Xxxxxx
Executive Vice President
Address for Notice:
X.X. Xxx 0000
Xxxxxxx, Xxxxx 00000-0000
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ENTERPRISE PRODUCTS GP, LLC
By:_________________________________
Xxxx X. Xxxxxx
Executive Vice President
Address for Notice:
X.X. Xxx 0000
Xxxxxxx, Xxxxx 00000-0000
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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) Xxx Xxxxxx, directly or indirectly, owns less than a
majority of the voting stock of EPCO, (b) EPCO or a wholly owned subsidiary of
EPCO and Xxx Xxxxxx, directly or indirectly, collectively
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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 A 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 "Xxxx" 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 xxxx "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.
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"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.
"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.
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