PLEDGE AND SECURITY AGREEMENT (ETE) Between ENTERPRISE GP HOLDINGS L.P., as Pledgor and CITICORP NORTH AMERICA, INC., in its capacity as Administrative Agent, as Secured Party Effective as of May 1, 2007
Exhibit 99.2
Between
ENTERPRISE GP HOLDINGS L.P.,
as Pledgor
as Pledgor
and
CITICORP NORTH AMERICA, INC.,
in its capacity as Administrative Agent, as Secured Party
in its capacity as Administrative Agent, as Secured Party
Effective as of May 1, 2007
THIS PLEDGE AND SECURITY AGREEMENT (ETE) (this “Agreement”) is made effective as of
May 1, 2007, by ENTERPRISE GP HOLDINGS L.P., a Delaware limited partnership (“Pledgor”),
with principal offices at 000 Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, in favor of
CITICORP NORTH AMERICA, INC., with offices at 0 Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxxxx 00000,
in its capacity as Administrative Agent (in such capacity, referred to as the “Secured
Party”) for the benefit of the several lenders now or hereafter parties to the hereinafter
defined Credit Agreement (individually, a “Lender” and collectively, the
“Lenders”).
RECITALS
A. Pledgor, Secured Party and the Lenders have entered into a Second Amended and Restated
Credit Agreement dated as of May 1, 2007 (such agreement, as may from time to time be amended or
supplemented, being hereinafter called the “Credit Agreement”).
B. The Lenders have conditioned their obligations under the Credit Agreement upon the
execution and delivery by Pledgor of this Agreement, and Pledgor has agreed to enter into this
Agreement.
C. Therefore, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and to induce the Lenders and the Secured Party to execute the Credit Agreement
and make loans thereunder, Pledgor and Secured Party hereby agree as follows:
ARTICLE I
SECURITY INTEREST
SECURITY INTEREST
Section 1.01
Pledge. Pledgor hereby pledges, assigns and grants to Secured Party a security
interest in and right of set-off against the assets referred to in Section 1.02 (the
“Collateral”) to secure the prompt payment and performance of the “Obligations” (as
defined in Section 2.02) and the performance by Pledgor of this Agreement.
Section 1.02
Collateral. The Collateral consists of the following types or items of property
which are owned by Pledgor:
(a) The common units of limited partnership interest held by Pledgor in Energy Transfer
Equity, L.P., a Delaware limited partnership (the “Partnership”), more particularly
described or referred to in Exhibit A attached hereto and made a part hereof, but
not any of Pledgor’s obligations from time to time as a holder of such common units (unless
the Secured Party or its designee, on behalf of Secured Party and the Lenders, shall elect
to become a holder of the common units in the Partnership in connection with its exercise of
remedies pursuant to the terms hereof); and
(b) (i) The certificates or instruments, if any, representing such common units, (ii)
all distributions and dividends (cash, stock or otherwise), cash, instruments, rights to
subscribe, purchase or sell and all other rights and property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all of such
common units, (iii) all replacements and substitutions for any of the property referred to
in this Section 1.02, including, without limitation, claims against third parties,
and (iv) the proceeds, interest, profits and other income of or on any of the property
referred to in this Section 1.02.
It is expressly contemplated that additional common units or other property may from time to
time be pledged, assigned or granted to Secured Party by the Pledgor as additional security for the
Obligations, and the term “Collateral” as used herein shall be deemed for all purposes
hereof to include all such additional common units of limited partnership interest and other
property, together with all other property of the types described in paragraph (b) above related
thereto.
Section 1.03 Transfer
of Collateral. Contemporaneously with the delivery hereof, to the
extent, if any, that such Pledged Interests (as defined in Section 2.02) are represented by
certificates, Pledgor is herewith delivering to the Secured Party the certificates evidencing the
Pledged Interests, together with assignments separate from certificate, duly endorsed in blank for
transfer. Pledgor hereby further agrees to do any and all further things and to execute, and to
cause the Partnership to execute, any and all further documents (including without limitation UCC-1
financing statements) as the Secured Party shall require or as shall be necessary to effectuate the
perfection of the security interest created hereunder in the Collateral. Secured Party is
expressly authorized to file UCC financing statements identifying the Collateral without the
signature of Pledgor. Pledgor and Secured Party hereby further agree that if at any time any of
the Pledged Interests shall become uncertificated, Secured Party agrees that it will promptly
return to Pledgor all certificates evidencing such Pledged Interests, provided that Pledgor
executes and delivers to Secured Party evidence reasonably satisfactory to Secured Party that
Secured Party’s interest in the Pledged Interests has been duly noted on the books of Pledgor.
ARTICLE II
DEFINITIONS
DEFINITIONS
Section 2.01 Terms
Defined Above. As used in this Agreement, the terms defined above shall
have the meanings respectively assigned to them.
Section 2.02 Certain Definitions. As used in this Agreement, the following terms shall have
the following meanings, unless the context otherwise requires:
“Code” means the Uniform Commercial Code as presently in effect in the State of
New York. Unless otherwise indicated by the context herein, all uncapitalized terms
which are defined in the Code shall have their respective meanings as used in Articles
8 and 9 of the Code.
“Event of Default” means any event specified in Section 6.01.
“Hedging Agreement” means any interest rate or currency swap, rate cap, rate
floor, rate collar, forward rate agreement or other exchange or rate protection agreement or
any option with respect to any of the foregoing.
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“Obligations” means the collective reference to (a) all indebtedness,
obligations and liabilities of Pledgor under the Credit Agreement and the other Loan
Documents, including, without limitation, the unpaid principal of and interest on the Loans
and all other obligations and liabilities of Pledgor (including, without limitation,
interest accruing at the then applicable rate provided in the Credit Agreement after the
maturity of the Loans and interest accruing at the then applicable rate provided in the
Credit Agreement after the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to Pledgor, whether or not a claim
for post-filing or post-petition interest is allowed in such proceeding) to Secured Party or
any Lender (or, in the case of any Hedging Agreement, any Affiliate of any Lender), whether
direct or indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, the Credit
Agreement, the other Loan Documents, or any Hedging Agreement entered into by Pledgor or a
Subsidiary of Pledgor with any Lender or any Affiliate of any Lender (even if the respective
Lender subsequently ceases to be a Lender under the Credit Agreement for any reason), or any
other document made, delivered or given in connection therewith, in each case whether on
account of principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all fees and disbursements of counsel
to Secured Party or to the Lenders that are required to be paid by Pledgor pursuant to the
terms of any of the foregoing agreements), (b) all obligations of Pledgor which may arise
under or in connection with this Agreement or any other Loan Document to which Pledgor is a
party, and (c) with respect to the items described in the foregoing clauses (a) and (b), all
renewals, rearrangements, increases, substitutions and extensions for any period thereof and
amendments, supplements or modifications thereto, in whole or in part.
“Obligor” means any Person, other than Pledgor, liable (whether directly or
indirectly, primarily or secondarily) for the payment or performance of any of the
Obligations whether as maker, co-maker, endorser, guarantor, accommodation party, general
partner or otherwise.
“Pledged Interests” means the common units of limited partnership interest in
the Partnership held by Pledgor and described or referred to in attached Exhibit A
but not any of Pledgor’s obligations from time to time as a holder of such common units
(unless Secured Party or its designee, on behalf of Secured Party and the Lenders, shall
elect to become a holder of units of limited partnership interest in the Partnership in
connection with the exercise of remedies pursuant to the terms hereof); and all additional
common units of limited partnership interest, if any, constituting Collateral under this
Agreement.
Section 2.03 Credit Agreement Terms. Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
Section 2.04 Section References. Unless otherwise provided for herein, all references herein
to Sections are to Sections of this Agreement.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES
In order to induce Secured Party to accept this Agreement, Pledgor represents and warrants to
Secured Party (which representations and warranties will survive the creation and payment of the
Obligations) that:
Section 3.01
Ownership of Collateral; Encumbrances. Except as otherwise permitted by the
Credit Agreement, Pledgor is the record and beneficial owner of the Collateral free and clear of
any Lien and Pledgor has full right, power and authority to pledge, assign and grant a security
interest in the Collateral to Secured Party.
Section 3.02
No Required Consent. No authorization, consent, approval or other action by, and
no notice to or filing with, any governmental authority or regulatory body (other than the filing
of financing statements) is required for (i) the due execution, delivery and performance by Pledgor
of this Agreement, (ii) the grant by Pledgor of the security interest granted by this Agreement or
(iii) the perfection of such security interest, which has not been obtained or taken on or prior to
the date hereof (other than the filing of financing statements).
Section 3.03
Intentionally Omitted.
Section 3.04
First Priority Security Interest. The pledge of Collateral pursuant to this
Agreement and the delivery of all certificates or instruments representing or evidencing the
Pledged Interests as set forth in Section 1.03 above create a valid and perfected first
priority security interest in the Collateral, enforceable against Pledgor and all third parties and
securing payment of the Obligations.
Section 3.05
Pledgor’s Location; Name; Etc. Pledgor’s location, within the meaning of Section
9-307(e) of the Code, is Delaware. The true and correct name of Pledgor is set forth in the first
paragraph of this Agreement. The organizational identification number of Pledgor is 3957467, and
the taxpayer identification number of Pledgor is 00-0000000.
Section 3.06
Prior Names. Pledgor has not used or conducted business in the last five years
under any other name or trade name.
ARTICLE IV
COVENANTS AND AGREEMENTS
COVENANTS AND AGREEMENTS
Pledgor will at all times comply with the covenants and agreements contained in this Article
4, from the date hereof and for so long as any part of the Obligations (other than any indemnity
which is not yet due and payable) are outstanding.
Section 4.01
Sale, Disposition or Encumbrance of Collateral. Except as otherwise permitted by
the Credit Agreement, Pledgor will not in any way encumber any of the Collateral (or permit or
suffer any of the Collateral to be encumbered) or sell, pledge, assign, lend or otherwise dispose
of or transfer any of the Collateral to or in favor of any Person other than Secured Party. For
avoidance of doubt, transfer restrictions that do not prevent the valid creation of security
interests in the Collateral and do not prevent foreclosure on such security interests shall not
constitute encumbrances.
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Section 4.02 Voting
Rights; Dividends or Distributions. Except as otherwise set forth in this
Agreement, until both (i) an Event of Default shall have occurred and be continuing and (ii) either
(a) the Loans have become due and payable at their stated maturity and have not been paid, (b) the
Loans have been declared due and payable pursuant to Article VII of the Credit Agreement, or (c)
Secured Party has given notice to Pledgor of Secured Party’s intent to exercise its rights under
Section 6.02:
(a) Pledgor shall be entitled to exercise any and all voting, management and/or other
consensual rights and powers inuring to an owner of the Collateral or any part thereof for
any purpose not inconsistent with the terms of this Agreement and the other Loan Documents.
(b) Pledgor shall be entitled to receive and retain (free and clear of and no longer
subject to this Agreement or the Lien created pursuant to this Agreement) any and all
dividends, distributions and interest paid in respect of the Collateral, provided, however,
that any and all
(i) dividends and interest paid or payable other than in cash in respect of,
and instruments and other property received, receivable or otherwise distributed in
respect of, or in exchange for (including, without limitation, any certificate,
share or interest purchased or exchanged in connection with a tender offer or merger
agreement), any Collateral,
(ii) dividends and other distributions paid or payable in cash in respect of
any Collateral in connection with a partial or total liquidation or dissolution, or
reclassification, and
(iii) cash paid, payable or otherwise distributed in respect of principal of,
or in redemption of, or in exchange for, any Collateral,
shall be, and shall be promptly delivered to Secured Party to hold as, Collateral and shall, if
received by Pledgor, be received in trust for the benefit of Secured Party, be segregated from the
other property or funds of Pledgor, and be promptly delivered to Secured Party as Collateral in the
same form as so received (with any necessary endorsement), provided further, however, in no event
shall the foregoing proviso be applicable to, or prevent the Pledgor from receiving and retaining
any property or securities that are not pledged or intended or required to be pledged to the
Secured Party pursuant to any Security Instrument, including this Agreement.
Section 4.03 Records
and Information. Pledgor shall keep accurate and complete records of
the Collateral (including proceeds, payments, distributions, income and profits). Pledgor will
promptly provide written notice to Secured Party of all information which in any way affects the
filing of any financing statement or other public notices or recordings pertaining to the
perfection of a security interest in the Collateral, or the delivery and possession of items of
Collateral for the purpose of perfecting a security interest in the Collateral. Pledgor shall
permit representatives of Secured Party to inspect and make abstracts of its records in accordance
with Section 5.06 of the Credit Agreement.
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Section 4.04
Certain Liabilities. Pledgor hereby assumes all liability for the Collateral,
the security interest created hereunder and any use, possession, maintenance, management,
enforcement or collection of any or all of the Collateral.
Section 4.05
Further Assurances. Upon the request of Secured Party, Pledgor shall (at
Pledgor’s expense) execute and deliver all such assignments, certificates, instruments, securities,
financing statements, notifications to financial intermediaries, clearing corporations, issuers of
securities or other third parties or other documents and give further assurances and do all other
acts and things as Secured Party may reasonably request to perfect Secured Party’s interest in the
Collateral or to protect, enforce or otherwise effect Secured Party’s rights and remedies
hereunder.
Section 4.06
Rights to Sell. If Secured Party shall determine to exercise its rights to sell
all or any of the Collateral pursuant to its rights hereunder, Pledgor agrees that, upon request of
Secured Party, Pledgor will, at its own expense:
(a) execute and deliver, and use all reasonable efforts to cause each issuer of the
Collateral contemplated to be sold and the directors and officers thereof to execute and
deliver, all such instruments and documents, and do or cause to be done all such other acts
and things, as may be necessary or, in the reasonable opinion of Secured Party, advisable to
register such Collateral under the provisions of the Securities Act of 1933, as
from time to time amended (the “Securities Act”), if such registration is, in
the opinion of Secured Party, necessary or advisable to effect a public distribution of the
Collateral, and to cause the registration statement relating thereto to become effective and
to remain effective for such period as prospectuses are required by law to be furnished, and
to make all amendments and supplements thereto and to the related prospectus which, in the
opinion of Secured Party, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of the Securities and
Exchange Commission applicable thereto;
(b) use all reasonable efforts to qualify the Collateral under the state securities or
“Blue Sky” laws and to obtain all necessary governmental approvals for the sale of the
Collateral, as requested by Secured Party;
(c) use all reasonable efforts to cause each such issuer to make available to its
security holders, as soon as practicable, an earnings statement which will satisfy the
provisions of Section 11(a) of the Securities Act; and
(d) use all reasonable efforts to do or cause to be done all such others acts and
things as may be necessary to make such sale of the Collateral or any part thereof valid and
binding and in compliance with applicable law.
Pledgor further acknowledges the impossibility of ascertaining the amount of damages which would be
suffered by Secured Party by reason of the failure by Pledgor to perform any of the covenants
contained in this Section 4.06 and consequently agrees that if Pledgor shall fail to
perform any of such covenants, it shall pay (to the extent permitted by law), as liquidated
damages, and not as penalty, an amount (in no event to exceed the amount of Obligations then
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outstanding) equal to the value of the Collateral on the date the Secured Party shall demand
compliance with this Section 4.06.
Section 4.07
Changes in Collateral. Pledgor shall advise Secured Party promptly, completely,
accurately, in writing and in reasonable detail: (a) of any material encumbrance upon or claim
asserted against any of the Collateral; and (b) of the occurrence of any event that would have a
material adverse effect upon Secured Party’s security interest.
ARTICLE V
RIGHTS, DUTIES AND POWERS OF SECURED PARTY
RIGHTS, DUTIES AND POWERS OF SECURED PARTY
The following rights, duties and powers of Secured Party are applicable irrespective of
whether an Event of Default occurs and is continuing:
Section 5.01
Discharge Encumbrances. Secured Party may, at its option, at any time following
three (3) Business Days after receipt by Pledgor of prior written notice from Secured Party of its
intent to do so, discharge any Liens at any time levied or placed on the Collateral that are
prohibited by the Credit Agreement and that are not being contested in good faith by appropriate
proceedings. Pledgor agrees to
reimburse Secured Party within five (5) days after demand for any payment so made, plus
interest thereon from the date of Secured Party’s demand at the rate per annum equal to 2% plus the
rate applicable to ABR Loans as provided in Section 2.13(a) of the Credit Agreement.
Section 5.02
Transfer of Collateral. Subject to the terms of the Credit Agreement, Secured
Party may transfer any or all of the Obligations, and upon any such transfer Secured Party may
transfer its interest in any or all of the Collateral and shall be fully discharged thereafter from
all liability therefor. Any transferee of the Collateral shall be vested with all rights, powers,
duties and remedies of Secured Party hereunder.
Section 5.03
Cumulative and Other Rights. The rights, powers and remedies of Secured Party
hereunder are in addition to all rights, powers and remedies given by law or in equity. The
exercise by Secured Party of any one or more of the rights, powers and remedies herein shall not be
construed as a waiver of any other rights, powers and remedies, including, without limitation, any
other rights of set-off.
Section 5.04
Disclaimer of Certain Duties. The powers conferred upon Secured Party by this
Agreement are to protect its interest in the Collateral and shall not impose any duty upon Secured
Party to exercise any such powers. Pledgor hereby agrees that Secured Party shall not be liable
for, nor shall the indebtedness evidenced by the Obligations be diminished by, Secured Party’s
delay or failure to collect upon, foreclose, sell, take possession of or otherwise obtain value for
the Collateral.
Section 5.05
Custody and Preservation of the Collateral. Secured Party shall be deemed to
have exercised reasonable care in the custody and preservation of the Collateral in its possession
if the Collateral is accorded treatment substantially equal to that which comparable secured
parties accord comparable collateral, it being understood and agreed, however, that Secured Party
shall not have responsibility for (i) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to any Collateral,
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whether or
not Secured Party has or is deemed to have knowledge of such matters, or (ii) taking any necessary
steps to preserve rights against Persons or entities with respect to any Collateral.
ARTICLE VI
EVENTS OF DEFAULT
EVENTS OF DEFAULT
Section 6.01
Events. An “Event of Default” (as defined in the Credit Agreement) which has
occurred and is continuing shall constitute an Event of Default under this Agreement.
Section 6.02
Remedies. Upon the occurrence and during the continuance of any Event of
Default, Secured Party may take any or all of the following actions without notice or demand to
Pledgor (except that Secured Party will not take any action in the case of paragraph (b) below
until ten (10) Business Days after receipt by Pledgor of written notice from Secured Party of its
intent to do so):
(a) Subject to applicable provisions contained in the Credit Agreement, declare all or
part of the indebtedness pursuant to the Obligations immediately due and payable and enforce
payment of the same by Pledgor or any Obligor.
(b) Sell, in one or more sales and in one or more parcels, or otherwise dispose of any
or all of the Collateral in any commercially reasonable manner as Secured Party may elect,
in a public or private transaction, at any location as deemed reasonable by Secured Party
either for cash or credit or for future delivery at such price as Secured Party may
reasonably deem fair, and (unless prohibited by the Uniform Commercial Code, as adopted in
any applicable jurisdiction) Secured Party may be the purchaser of any or all Collateral so
sold and may apply upon the purchase price therefor any Obligations secured hereby. Any
such sale or transfer by Secured Party either to itself or to any other Person shall be
absolutely free from any claim of right by Pledgor, including any equity or right of
redemption, stay or appraisal which Pledgor has or may have under any rule of law,
regulation or statute now existing or hereafter adopted. Upon any such sale or transfer,
Secured Party shall have the right to deliver, assign and transfer to the purchaser or
transferee thereof the Collateral so sold or transferred. If Secured Party reasonably deems
it advisable to do so, it may restrict the bidders or purchasers of any such sale or
transfer to Persons or entities who will represent and agree that they are purchasing the
Collateral for their own account and not with the view to the distribution or resale of any
of the Collateral. Secured Party may, at its discretion, provide for a public sale, and any
such public sale shall be held at such time or times within ordinary business hours and at
such place or places as Secured Party may fix in the notice of such sale. Secured Party
shall not be obligated to make any sale pursuant to any such notice. Secured Party may,
without notice or publication, adjourn any public or private sale by announcement at any
time and place fixed for such sale, and such sale may be made at any time or place to which
the same may be so adjourned. In the event any sale or transfer hereunder is not completed
or is defective in the opinion of Secured Party, such sale or transfer shall not exhaust the
rights of Secured Party hereunder, and Secured Party shall have the right to cause one or
more subsequent sales or transfers to be made hereunder. If only part of the Collateral is
sold or transferred such that the Obligations remain outstanding (in whole or in part),
Secured Party’s rights and remedies hereunder
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shall not be exhausted, waived or modified,
and Secured Party is specifically empowered to make one or more successive sales or
transfers until all the Collateral shall be sold or transferred and all the Obligations are
paid. In the event that Secured Party elects not to sell the Collateral, Secured Party
retains its rights to dispose of or utilize the Collateral or any part or parts thereof in
any manner authorized or permitted by law or in equity, and to apply the proceeds of the
same towards payment of the Obligations.
(c) Apply proceeds of the disposition of the Collateral to the Obligations in any
manner elected by Secured Party and permitted by the Code or otherwise permitted
by law or in equity. Such application may include, without limitation, the reasonable
attorneys’ fees and legal expenses incurred by Secured Party.
(d) Appoint any Person as agent to perform any act or acts necessary or incident to any
sale or transfer by Secured Party of the Collateral.
(e) Receive, change the address for delivery, open and dispose of mail addressed to
Pledgor, and to execute, assign and endorse negotiable and other instruments for the payment
of money, documents of title or other evidences of payment, shipment or storage for any form
of Collateral on behalf of and in the name of Pledgor.
(f) Exercise all other rights and remedies permitted by law or in equity.
Section 6.03
Attorney-in-Fact. Pledgor hereby irrevocably appoints Secured Party as Pledgor’s
attorney-in-fact, with full authority in the place and stead of Pledgor and in the name of Pledgor
or otherwise, from time to time in Secured Party’s discretion upon the occurrence and during the
continuance of an Event of Default, but at Pledgor’s cost and expense, at any time following three
(3) Business Days after receipt by Pledgor of written notice from Secured Party of its intent to do
so, to take any action and to execute any assignment, certificate, financing statement, stock
power, notification, document or instrument which Secured Party may deem necessary or advisable to
accomplish the purposes of this Agreement, including, without limitation, to receive, endorse and
collect all instruments made payable to Pledgor representing any dividend, interest payment or
other distribution in respect of the Collateral or any part thereof and to give full discharge for
the same.
Section 6.04
Liability for Deficiency. If any sale or other disposition of Collateral by
Secured Party in compliance with the Loan Documents and applicable law or any other action of
Secured Party hereunder in compliance with the Loan Documents and applicable law results in
reduction of the Obligations, such action will not release Pledgor from its liability to Secured
Party or any Lender for any unpaid Obligations, including (to the extent permitted by law) costs,
charges and expenses incurred in the liquidation of Collateral, together with interest thereon
until paid at the rate per annum equal to 2% plus the rate applicable to ABR Loans as provided in
Section 2.13(a) of the Credit Agreement, and the same shall be immediately due and payable to
Secured Party at Secured Party’s address set forth in the opening paragraph hereof.
Section 6.05
Reasonable Notice. If any applicable provision of any law requires Secured Party
to give reasonable notice of any sale or disposition or other action, Pledgor hereby agrees that
ten days’ prior written notice shall constitute reasonable notice thereof. Such notice,
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in the
case of public sale, shall state the time and place fixed for such sale and,
in the case of private
sale, the time after which such sale is to be made.
Section 6.06 Pledged Securities. Upon both (i) the occurrence and during the continuance of
an Event of Default and (ii) either (a) the Loans becoming due and payable at their stated maturity
and not paid, (b) the Loans being declared due and payable pursuant to Article VII of the Credit
Agreement, or (c) Secured Party giving prior written notice to Pledgor of Secured Party’s intent to
exercise its rights under Section 6.02:
(a) All rights of Pledgor to receive the dividends, distributions and interest payments
which it would otherwise be authorized to receive and retain pursuant to Section
4.02 shall cease, and all such rights shall thereupon become vested in Secured Party who
shall thereupon have the sole right to receive and hold as Collateral such dividends,
distributions and interest payments, but Secured Party shall have no duty to receive and
hold such distributions, dividends and interest payments and shall not be responsible for
any failure to do so or delay in so doing.
(b) All distributions, dividends and interest payments which are received by Pledgor
contrary to the provisions of this Section 6.06 shall be received in trust for the
benefit of Secured Party, shall be segregated from other funds of Pledgor and shall be
promptly paid over to Secured Party as Collateral in the same form as so received (with any
necessary endorsement).
(c) Secured Party may exercise any and all rights of conversion, exchange, subscription
or any other rights, privileges or options pertaining to any of the Pledged Interests as if
it were the absolute owner thereof, including without limitation, the right to exchange at
its discretion, any and all of the Pledged Interests upon the merger, consolidation,
reorganization, recapitalization or other readjustment of any issuer of such Pledged
Interests or upon the exercise by any such issuer or Secured Party of any right, privilege
or option pertaining to any of the Pledged Interests and in connection therewith, to deposit
and deliver any and all of the Pledged Interests with any committee, depository, transfer
agent, registrar or other designated agency upon such terms and conditions as it may
determine, all without liability except to account for property actually received by it, but
Secured Party shall have no duty to exercise any of the aforesaid rights, privileges or
options and shall not be responsible for any failure to do so or delay in so doing.
Section 6.07 Non-judicial Enforcement. To the extent permitted by law, Secured Party may
enforce its rights hereunder without prior judicial process or judicial hearing, and to the extent
permitted by law Pledgor expressly waives any and all legal rights which might otherwise require
Secured Party to enforce its rights by judicial process.
ARTICLE VII
MISCELLANEOUS PROVISIONS
MISCELLANEOUS PROVISIONS
Section 7.01 Notices. Any notice required or permitted to be given under or in connection
with this Agreement shall be in writing and shall be mailed by first class or express
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mail, postage
prepaid,
or sent by telex, telegram, telecopy or other similar form of rapid written transmission or
personally delivered to the receiving party. All such communications shall be mailed, sent or
delivered at the address respectively indicated in the Credit Agreement or at such other address as
any party may have furnished the other parties in writing. Any communication so addressed and
mailed shall be deemed to be given when so mailed, any notice so sent by rapid written transmission
shall be deemed to be given when receipt of such transmission is acknowledged by the receiving
operator or equipment, and any communication so delivered in person shall be deemed to be given
when receipted for or actually received by Pledgor or Secured Party, as the case may be.
Section 7.02 Amendments and Waivers. Secured Party’s acceptance of partial or delinquent
payments or any forbearance, failure or delay by Secured Party in exercising any right, power or
remedy hereunder shall not be deemed a waiver of any obligation of Pledgor or any Obligor, or of
any right, power or remedy of Secured Party; and no partial exercise of any right, power or remedy
shall preclude any other or further exercise thereof. Secured Party may remedy any Event of
Default hereunder or in connection with the Obligations without waiving the Event of Default so
remedied. Pledgor hereby agrees that if Secured Party agrees to a waiver of any provision
hereunder, or an exchange of or release of the Collateral, or the addition or release of any
Obligor or other Person, any such action shall not constitute a waiver of any of Secured Party’s
other rights or of Pledgor’s obligations hereunder. This Agreement may be amended only by an
instrument in writing executed jointly by Pledgor and Secured Party and may be supplemented only by
documents delivered or to be delivered in accordance with the express terms hereof.
Section 7.03 Copy as Financing Statement. A photocopy or other reproduction of this Agreement
may be delivered by Pledgor or Secured Party to any financial intermediary or other third party for
the purpose of transferring or perfecting any or all of the Pledged Interests to Secured Party or
its designee or assignee.
Section 7.04 Possession of Collateral. Secured Party shall be deemed to have possession of
any Collateral in transit to it or set apart for it (or, in either case, any of its agents,
affiliates or correspondents).
Section 7.05 Redelivery of Collateral. If any sale or transfer of Collateral by Secured Party
results in full satisfaction of the Obligations, and after such sale or transfer and discharge
there remains a surplus of proceeds, Secured Party will deliver to Pledgor such excess proceeds in
a commercially reasonable time; provided, however, that Secured Party shall not have any liability
for any interest, cost or expense in connection with any delay in delivering such proceeds to
Pledgor.
Section 7.06 Governing Law; Jurisdiction. This Agreement and the security interest granted
hereby shall be construed in accordance with and governed by the laws of the State of New York
(except to the extent that the
laws of any other jurisdiction govern the perfection and priority of the security interests
granted hereby).
Section 7.07 Continuing Security Agreement.
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(a) Except as otherwise provided by applicable law (including, without limitation,
Section 9-620 of the Code), no action taken or omission to act by Secured Party hereunder,
including, without limitation, any exercise of voting or consensual rights pursuant to
Section 6.06 or any other action taken or inaction pursuant to Section 6.02,
shall be deemed to constitute a retention of the Collateral in satisfaction of the
Obligations or otherwise to be in full satisfaction of the Obligations, and the Obligations
shall remain in full force and effect, until Secured Party shall have applied payments
(including, without limitation, collections from Collateral) towards the Obligations in the
full amount then outstanding or until such subsequent time as is hereinafter provided in
subsection (b) below.
(b) To the extent that any payments on the Obligations or proceeds of the Collateral
are subsequently invalidated, declared to be fraudulent or preferential, set aside or
required to be repaid to a trustee, debtor in possession, receiver or other Person under any
bankruptcy law, common law or equitable cause, then to such extent the Obligations so
satisfied shall be revived and continue as if such payment or proceeds had not been received
by Secured Party, and Secured Party’s security interests, rights, powers and remedies
hereunder shall continue in full force and effect. In such event, this Agreement shall be
automatically reinstated if it shall theretofore have been terminated pursuant to
Section 7.08.
Section 7.08
Termination. The grant of a security interest hereunder and all of Secured
Party’s rights, powers and remedies in connection therewith shall remain in full force and effect
until Secured Party has (i) retransferred and delivered all Collateral in its possession to
Pledgor, and (ii) executed a written release or termination statement and reassigned to Pledgor
without recourse or warranty any remaining Collateral and all rights conveyed hereby. Upon the
complete payment of the Obligations (other than any indemnity which is not yet due and payable) and
the termination of the Commitments, Secured Party, at the written request and expense of Pledgor,
will release, reassign and transfer the Collateral to Pledgor and declare this Agreement to be of
no further force or effect. Notwithstanding the foregoing, Section 4.04 and the provisions
of subsection 7.07(b) shall survive the termination of this Agreement.
Section 7.09
Counterparts; Effectiveness. This Agreement may be executed in two or more
counterparts. Each counterpart is deemed an original, but all such counterparts taken together
constitute one and the same instrument. This Agreement becomes effective upon the execution hereof
by Pledgor and delivery of the same to Secured Party, and it is not necessary for Secured Party to
execute any acceptance hereof or otherwise signify or express its acceptance hereof.
Section 7.10
Limitation by Law. All rights, remedies and powers provided in this Agreement
may be exercised only to the extent that the exercise thereof does not violate any applicable
provision of law, and all the provisions of this Agreement are intended to be subject to all
applicable mandatory provisions of law which may be controlling and to be limited to the extent
necessary so that they shall not render this Agreement invalid, unenforceable, in whole or in part,
or not entitled to be recorded, registered or filed under the provisions of any applicable law.
12
Section 7.11
Interest. Notwithstanding anything herein or in any other Loan Document to the
contrary, if at any time the interest rate applicable to any of the transactions contemplated
hereby, together with all fees, charges and other amounts which are treated as interest on such
transactions under applicable law (collectively, the “Charges”), shall exceed the maximum
lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or
reserved by the Secured Party or any Lender in accordance with applicable law, the rate of interest
payable in respect of such transactions hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such transactions but were not payable as a result of
the operation of this Section shall be cumulated and the interest and Charges payable to Secured
Party or any Lender in respect of other periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together (to the extent lawful) with interest thereon at the
Federal Funds Effective Rate to the date of repayment, shall have been received by Secured Party or
any Lender.
Section 7.12
No Oral Agreements. This Agreement and the other Loan
Documents represent the entire agreement and understanding between the parties and may not be
contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties.
There are no unwritten oral agreements between the parties.
[Signatures begin on next page]
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| PLEDGOR: | ENTERPRISE GP HOLDINGS L.P. | |||||
| By: | EPE Holdings, LLC, | |||||
| a Delaware limited liability company, | ||||||
| its general partner | ||||||
| By: | /s/ W. Xxxxxxx Xxxxxx | |||||
| Name: | W. Xxxxxxx Xxxxxx | |||||
| Title: | Senior Vice President and Chief | |||||
| Financial Officer | ||||||
Signature Page to Pledge and Security Agreement (ETE)
| SECURED PARTY: | CITICORP NORTH AMERICA, INC. | |||||
| By: | /s/ Xxxx X. Xxxxx | |||||
| Name: | Xxxx X. Xxxxx | |||||
| Title: | Managing Director | |||||
Signature Page to Pledge and Security Agreement (ETE)
EXHIBIT A
PLEDGED INTERESTS
38,976,090 common units of limited partnership interest in Energy Transfer Equity, L.P.
(“Partnership”), represented by Certificate Number ___registered in the name of Enterprise
GP Holdings L.P. on the books of the Partnership or the Partnership’s transfer agent.
Exhibit A Page — 1
