FORM OF FOURTH AMENDED AND RESTATED ADMINISTRATIVE SERVICES AGREEMENT (formerly called, EPCO AGREEMENT) by and among EPCO, INC. (formerly known as Enterprise Products Company) ENTERPRISE GP HOLDINGS L.P. EPE HOLDINGS, LLC ENTERPRISE PRODUCTS PARTNERS...
Exhibit 10.18
Execution Copy
FORM OF FOURTH AMENDED AND RESTATED
ADMINISTRATIVE SERVICES AGREEMENT
ADMINISTRATIVE SERVICES AGREEMENT
(formerly called, EPCO AGREEMENT)
by and among
EPCO, INC.
(formerly known as Enterprise Products Company)
(formerly known as Enterprise Products Company)
ENTERPRISE GP HOLDINGS L.P.
EPE HOLDINGS, LLC
ENTERPRISE PRODUCTS PARTNERS L.P.
ENTERPRISE PRODUCTS OPERATING L.P.
ENTERPRISE PRODUCTS GP, LLC
ENTERPRISE PRODUCTS OLPGP, INC.
DEP HOLDINGS, LLC
XXXXXX ENERGY PARTNERS L.P.
DEP OPERATING PARTNERSHIP, L.P.
TEPPCO PARTNERS, L.P.
TEXAS EASTERN PRODUCTS PIPELINE COMPANY, LLC
TE PRODUCTS PIPELINE COMPANY, LIMITED PARTNERSHIP
TEPPCO MIDSTREAM COMPANIES, L.P.
TCTM, L.P.
and
TEPPCO GP, INC.
TABLE OF CONTENTS
ARTICLE 1: DEFINITIONS |
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1.1 Definitions |
2 | |||
1.2 Construction |
2 | |||
ARTICLE 2: SERVICES |
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2.1 EPCO Services; Term |
2 | |||
2.2 EPCO Compensation |
3 | |||
2.3 Dispute Regarding Services or Calculation of Costs |
3 | |||
2.4 Invoices |
3 | |||
2.5 Disputes; Default |
3 | |||
2.6 Input Regarding EPCO Services |
3 | |||
2.7 Limitation Regarding EPCO Services |
4 | |||
2.8 Representations Regarding Use of Services |
4 | |||
2.9 Warranties; Limitation of Liability |
4 | |||
2.10 Force Majeure |
4 | |||
2.11 Affiliates |
4 | |||
2.12 Dedication of EPCO Employees |
4 | |||
ARTICLE 3: USE OF NAME AND XXXX |
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3.1 Grant of License |
4 | |||
3.2 Reimbursement of Costs |
5 | |||
ARTICLE 4: EPCO’S INDEMNIFICATION FOR EXCLUDED LIABILITIES |
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4.1 Indemnification |
5 | |||
4.2 Indemnification Procedures |
5 | |||
ARTICLE 5: OTHER AGREEMENTS |
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5.1 Insurance Matters |
5 | |||
5.2 Sublease of Equipment |
5 | |||
5.3 EPCO’s Employees |
5 | |||
5.4 Business Opportunities |
6 | |||
5.5 Adoption of Policies and Procedures |
8 | |||
ARTICLE 6: MISCELLANEOUS |
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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 |
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6.6 Assignment |
9 | |||
6.7 Counterparts |
9 | |||
6.8 Severability |
9 | |||
6.9 Further Assurances |
9 | |||
6.10 Withholding or Granting of Consent |
9 | |||
6.11 U.S. Currency |
9 | |||
6.12 Laws and Regulations |
9 | |||
6.13 Negation of Rights of Third Parties |
9 |
Exhibit A — Definitions
Exhibit B — Policies and Procedures
Schedule 2.12 — Schedule of Initial Dedicated EPCO Employees
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FOURTH AMENDED AND RESTATED
ADMINISTRATIVE SERVICES AGREEMENT
ADMINISTRATIVE SERVICES AGREEMENT
THIS FOURTH AMENDED AND RESTATED ADMINISTRATIVE SERVICES AGREEMENT (this “Agreement”) is
entered into this 30th day of January, 2007, but effective as of February 5, 2007 (the “Effective
Date”), by and among EPCO, Inc., a Texas corporation formerly known as Enterprise Products Company
(“EPCO”), Enterprise GP Holdings L.P., a Delaware limited partnership (“EPE”), EPE Holdings, LLC, a
Delaware limited liability company (“EPE GP”), Enterprise Products Partners L.P., a Delaware
limited partnership (“EPD”), Enterprise Products Operating L.P., a Delaware limited partnership
(“EPD OLP”), Enterprise Products GP, LLC, a Delaware limited liability company (“EPD GP”),
Enterprise Products OLPGP, Inc., a Delaware corporation (“EPD OLPGP”), DEP Holdings, LLC, a
Delaware limited liability company (“DEP Holdings”), Xxxxxx Energy Partners L.P., a Delaware
limited partnership (“DEP”), DEP Operating Partnership, L.P., a Delaware limited partnership (“DEP
OLP”), TEPPCO Partners, L.P., a Delaware limited partnership (“TPP”), Texas Eastern Products
Pipeline Company, LLC, a Delaware limited liability company (“TPP GP”), TE Products Pipeline
Company, Limited Partnership, a Delaware limited partnership (“TE LP”), TEPPCO Midstream Companies,
L.P., a Delaware limited partnership (“TEPPCO Midstream”), TCTM, L.P., a Delaware limited
partnership (“TCTM”), and TEPPCO GP, Inc., a Delaware corporation (“TEPPCO Inc.”). Capitalized
terms not otherwise defined below have the meanings ascribed to such terms as set forth on
Exhibit A to this Agreement.
R E C I T A L S
The purpose of this Agreement is to amend and restate, in its entirety, that certain Third
Amended and Restated Administrative Services Agreement (the “Third Amendment”), dated August 15,
2005 but effective as of February 24, 2005, among certain of the Parties hereto.
The Parties hereto (other than EPE, EPE GP, EPD OLPGP, DEP Holdings, DEP, DEP OLP, TPP, TPP
GP, TE LP, TEPPCO Midstream, TCTM and TEPPCO Inc.) originally entered into that certain EPCO
Agreement, dated as of July 31, 1998, in connection with the initial public offering of EPD units,
pursuant to which EPCO and its Affiliates (other than the EPD Partnership Entities) agreed to
provide certain operational and financial support to the EPD Partnership Entities.
Effective as of December 10, 2003, EPD OLPGP succeeded EPD GP as the general partner of EPD
OLP.
Effective as of January 1, 2004, the Parties hereto (other than EPE, EPE GP, DEP Holdings,
DEP, DEP OLP, TPP, TPP GP, TE LP, TEPPCO Midstream, TCTM and TEPPCO Inc.) amended and restated the
EPCO Agreement pursuant to the First Amended and Restated Administrative Services Agreement (the
“First Amendment”), (i) to reduce the operational and financial support provided by the EPCO Group
to the EPD Partnership Entities, (ii) to change the manner in which the EPD Partnership Entities
were charged for certain administrative, management, and operating services provided by EPCO, from
a fixed fee to allocating the cost of such services to the EPD Partnership Entities on a pro rata
basis, (iii) to assign certain contract rights, initially retained by EPCO, but which related to
assets owned by the EPD Partnership Entities to the EPD Partnership Entities, and (iv) to reflect
certain other understandings between the EPCO Group and the EPD Partnership Entities.
Effective as of June 21, 2004, EPCO assigned the Name and the Xxxx to EPD GP, and effective as
of October 1, 2004, Enterprise GP assigned the Name and Xxxx to EPD OLP.
Effective October 1, 2004, the Parties hereto (other than EPE, EPE GP, DEP Holdings, DEP, DEP
OLP, TPP, TPP GP, TE LP, TEPPCO Midstream, TCTM and TEPPCO Inc.) amended and restated the First
Amendment to evidence, among other matters the terms and conditions upon which (i) the EPCO Group
would provide certain services to the EPD Partnership Entities, (ii) EPD OLP would license the use
of the Name and the Xxxx to EPCO and (iii) EPCO would provide indemnification to the EPD
Partnership Entities for certain matters.
On February 24, 2005, an Affiliate of EPCO acquired TPP GP. Effective February 24, 2005, the
Parties to the Second Amendment executed Amendment No. 1 to the Second Amendment to exclude the TPP
Partnership
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Entities from the definition of EPCO Group and exclude such entities from the business
opportunity agreements set forth in the Second Amendment.
Effective February 24, 2005, the parties hereto (other than DEP Holdings, DEP and DEP OLP)
amended and restated the Second Amendment to evidence, among other matters the terms and conditions
pursuant to which (i) the EPCO Group provided certain services to the EPE Partnership Entities,
(ii) the EPCO Group provided certain services to the TPP Partnership Entities and (iii) a variety
of additional matters were handled among the EPCO Group, the EPE Partnership Entities, the EPD
Partnership Entities and the TPP Partnership Entities.
EPE completed the initial public offering of its units in August 2005.
Effective February 13, 2006, the Parties executed a waiver regarding certain provisions of the
Conflicts Policies and Procedures set forth in the Third Amendment.
On November 2, 2006, DEP filed a registration statement on Form S-1 and is in the process of
completing the initial public offering of its common units.
The Parties hereto desire, by their execution of this Agreement, to evidence the terms and
conditions pursuant to which (i) the EPCO Group will provide certain services to the DEP
Partnership Entities and (ii) a variety of additional matters will be handled among the EPCO Group,
the EPE Partnership Entities, the EPD Partnership Entities, the DEP Partnership Entities and the
TPP Partnership Entities.
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 Exhibit A shall be for all purposes, unless
otherwise clearly indicated to the contrary, applied to the terms used in this Agreement.
1.2 Construction. Unless the context requires otherwise: (a) any pronoun used in this Agreement
shall include the corresponding masculine, feminine or neuter forms, and the singular form of
nouns, pronouns and verbs shall include the plural and vice versa; (b) references to Articles and
Sections refer to Articles and Sections of this Agreement; (c) the terms “include”, “includes”,
“including” or words of like import shall be deemed to be followed by the words “without
limitation”; and (d) the terms “hereof”, “herein” or “hereunder” refer to this Agreement as a whole
and not to any particular provision of this Agreement. The table of contents and headings
contained in this Agreement are for reference purposes only, and shall not affect in any way the
meaning or interpretation of this Agreement.
ARTICLE 2: SERVICES
2.1 EPCO Services; Term. During the period beginning on the Effective Date and ending on December
31, 2010, subject to the terms of this Article 2 and Exhibit B to this Agreement and in
exchange for the reimbursement described in Section 2.2, EPCO hereby agrees to provide, or to cause
EPCO Holdings, Inc., a Texas corporation (“EPCO Holdings”), to provide, the Partnership Entities
with such selling, general and administrative services and such management and operating services
as may be necessary to manage and operate the business, properties and assets of the Partnership
Entities in accordance with Prudent Industry Practices; it being understood and agreed by the
Parties that in connection with the
provision of such 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 (individually, an “EPCO Service” and, collectively, the “EPCO Services”).
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2.2 EPCO Compensation. As compensation for the provision by EPCO of the EPCO Services to each of
the Partnership Entities, EPCO shall be entitled to receive, and each of the Partnership Entities
agrees to pay to EPCO, without duplication, an amount equal to the sum of all costs and expenses
(direct or indirect) incurred by EPCO which are directly or indirectly related to the business or
activities of such Partnership Entity (including, without limitation, expenses, direct or indirect,
reasonably allocated to such Partnership Entity by EPCO). In addition, each of the Partnership
Entities 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 EPCO Services provided to such Partnership Entity by
EPCO. The aggregate amount payable by the Partnership Entities to EPCO pursuant to this Section
2.2 with respect to a given period of time shall be referred to herein as such entity’s
“Administrative Services Fee”. It is the intention of the Parties that, with the exception of
Article V and the Retained Leases (as hereinafter defined) in the case of the EPD Partnership
Entities, the Administrative Services Fee with respect to the Partnership Entities represents fair
and reasonable compensation to EPCO for the Partnership Entities’ allocable share of all general
and administrative expenses, capital expenses and other costs for Shared Services borne or
performed by EPCO, or any of the other members of the EPCO Group, for the benefit of any
Partnership Entity.
2.3 Dispute Regarding Services or Calculation of Costs. Should there be a dispute over the nature
or quality of the EPCO Services, or the calculation and allocation of any Administrative Services
Fee, relating to any of the EPCO Services, EPCO and the applicable Partnership Entity or Entities
shall first attempt to resolve such dispute, acting diligently and in good faith, using the past
practices of such Parties and documentary evidence of costs as guidelines for such resolution. If
EPCO and the applicable Partnership Entity or Entities are unable to resolve any such dispute
within thirty days, or such additional time as may be reasonable under the circumstances, the
dispute shall be referred to the Audit and Conflicts Committee of EPE GP, EPD GP, DEP Holdings or
TPP GP, as applicable. EPCO shall provide to each of the Partnership Entities a quarterly
statement indicating the total EPCO costs and expenses allocated to all of the Partnership Entities
and a detailed statement of the EPCO costs and expenses that are allocated to the particular group
of Partnership Entities and representative of such Partnership Entities’ Administrative Service Fee
(including an explanation of such allocation, which shall generally be consistent from period to
period); provided that one group of Partnership Entities will not receive the allocation for
another group of Partnership Entities (e.g., the EPD Partnership Entities will not receive the
detailed statement of the TPP Partnership Entities’ costs and expenses, and vice-versa). The
Parties agree that the applicable Audit and Conflicts Committee shall have the authority to settle
any such dispute, in its sole discretion, recognizing that it is the intent of all Parties that all
shared expenses or services be allocated among the EPCO Group and the applicable Partnership Entity
or Entities on a fair and reasonable basis.
2.4 Invoices. EPCO shall invoice the applicable Billing Agent on or before the last day of each
month for the estimated Administrative Services Fee 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 which the invoice covers. Upon request from
the applicable Billing Agent, EPCO shall furnish in reasonable detail a description of the EPCO
Services performed for the corresponding Partnership Entity or Entities during any month or other
relevant period.
2.5 Disputes; Default. Notwithstanding any provision of this Article 2 to the contrary, should the
applicable Billing Agent fail to pay EPCO, when due, any amounts owing in respect of the applicable
EPCO Services, except as set forth in the third succeeding sentence, upon 30 days’ notice, EPCO may
terminate this Article 2 as to those EPCO Services that relate to the unpaid portion of the
invoice. Should there be a dispute as to the propriety of invoiced amounts, the applicable Billing
Agent 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
promptly provide the applicable Billing Agent with records relating to the disputed amount so as to
enable EPCO and the applicable Partnership Entities to resolve the dispute. So long as such
parties are attempting in good faith to resolve the dispute, EPCO shall not be entitled to
terminate the EPCO Services that relate to the disputed amount.
2.6 Input Regarding EPCO Services. Subject to the Conflicts Policies and Procedures attached as
Exhibit B, any records, information or other input from the Partnership Entities that is
necessary for EPCO to perform any EPCO Services shall be submitted, upon EPCO’s written request
therefor, to EPCO by such Partnership Entities. If the Partnership Entities fail to supply such
records, information or other input to EPCO and such failure renders EPCO’s performance of any EPCO
Services unreasonably difficult, in EPCO’s reasonable judgment, EPCO,
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upon reasonable notice to the
applicable Partnership Entity, may refuse to perform such EPCO Services until such records,
information or other input is supplied.
2.7 Limitation Regarding EPCO Services. The Partnership Entities acknowledge that EPCO shall only
be required to perform and provide (i) those EPCO Services with respect to the business of such
Partnership Entities as operated on the Effective Date in the case of the EPD Partnership Entities,
the TPP Partnership Entities, and the EPE Partnership Entities, and as of the closing date of DEP’s
initial public offering, in the case of the DEP Partnership Entities, and (ii) such additional EPCO
Services as may be mutually agreed orally or in writing by EPCO and the Partnership Entities, which
agreement regarding additional or fewer EPCO Services shall reflect an appropriate adjustment to
the applicable Administrative Services Fee. EPCO shall not be required to perform any EPCO
Services hereunder for the benefit of any Person other than the Partnership Entities.
2.8 Representations Regarding Use of Services. The Partnership Entities represent and agree that
they will use the EPCO 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 EPCO to such Partnership Entities. EPCO reserves the right to take
all actions, including, without limitation, termination of any portion of the EPCO Services for any
Partnership Entity that it reasonably believes is required to be terminated in order to assure
compliance with applicable laws and regulations.
2.9 Warranties; Limitation of Liability. The EPCO Services shall be provided in accordance with
the Services Standard. EXCEPT AS SET FORTH IN THE PRECEDING SENTENCE, EPCO MAKES NO (AND HEREBY
DISCLAIMS AND NEGATES ANY AND ALL) WARRANTIES OR REPRESENTATIONS WHATSOEVER, EXPRESS OR IMPLIED,
WITH RESPECT TO THE EPCO SERVICES. IN NO EVENT SHALL EPCO OR ANY OF ITS AFFILIATES BE LIABLE TO
ANY OF THE PERSONS RECEIVING ANY EPCO SERVICES OR TO ANY OTHER PERSON FOR ANY EXEMPLARY, PUNITIVE,
INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES RESULTING FROM ANY ERROR IN THE PERFORMANCE
OF SUCH SERVICE, REGARDLESS OF WHETHER THE PERSON PROVIDING SUCH SERVICE, ITS AFFILIATES, OR OTHERS
MAY BE WHOLLY, CONCURRENTLY, PARTIALLY, OR SOLELY NEGLIGENT OR OTHERWISE AT FAULT, EXCEPT TO THE
EXTENT SUCH EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES ARE PAID BY
THE PARTY INCURRING SUCH DAMAGES TO A THIRD PARTY.
2.10 Force Majeure. EPCO shall have no obligation to perform the EPCO 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 Party receiving any EPCO Services to provide such EPCO
Services; provided, however, EPCO shall remain responsible for the provision of such EPCO Service
in accordance with this Agreement.
2.12 Dedication of EPCO Employees. EPCO shall cause the employees initially set forth on
Schedule 2.12 to perform EPCO Services exclusively for the benefit of the corresponding DEP
Partnership Entity or its successor set forth on Schedule 2.12. In addition, EPCO shall
designate and cause such additional personnel necessary to provide EPCO Services exclusively for
the benefit of such entities or any other DEP Partnership Entity or its successor as DEP Holdings
shall reasonably request.
.
ARTICLE 3: USE OF NAME AND XXXX
ARTICLE 3: USE OF NAME AND XXXX
3.1 Grant of License. Effective as of October 1, 2004, EPD OLP has granted EPCO a worldwide
royalty-free, five year right and license to use the Name and Xxxx pursuant to the License
Agreement.
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3.2 Reimbursement of Costs. EPD OLP shall reimburse EPCO for the cost of removing the Name and
Xxxx from EPCO’s trucks in order to meet the schedule for removal of all Names and Marks on or
before the end of the term of the License Agreement.
ARTICLE 4: EPCO’S INDEMNIFICATION FOR EXCLUDED LIABILITIES
4.1 Indemnification. From and after the date hereof and subject to the remaining provisions of
this Article 4, EPCO shall indemnify, defend and hold harmless the Partnership Entities from and
against any loss, cost, claim, liability, prepayment or similar penalty, damage, expense, attorneys
fees, judgment, award or settlement of any kind or nature whatsoever (other than out-of-pocket
costs and expenses incurred by the Partnership Entities in connection with the discharge of their
obligations pursuant to Section 4.2(b)) (collectively, “Losses”) incurred by the Partnership
Entities in connection with the Excluded Liabilities; provided, however, in no event shall such
indemnification obligation, or the term “Losses,” cover or include exemplary, punitive, special,
consequential, indirect, or incidental damages or lost profits suffered by the Partnership Entities
in connection with the Excluded Liabilities, except to the extent such exemplary, punitive,
special, consequential, indirect or incidental damages or lost profits are actually paid by any
Partnership Entity 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 applicable Partnership Entities unless (i) it includes a full
release of the applicable 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 applicable
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 applicable Partnership Entities may receive, permitting the names of the
applicable 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 applicable 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 applicable Partnership Entities to
cooperate with EPCO as set forth in the immediately preceding sentence be construed as imposing
upon the applicable Partnership Entities an obligation to hire and pay for counsel in connection
with the defense of any claims related to the Excluded Liabilities.
ARTICLE 5: OTHER AGREEMENTS
5.1 Insurance Matters. EPCO hereby agrees to cause the Partnership Entities to be named as
additional insureds in EPCO’s insurance program, as in effect from time to time. Subject to
Section 2.5, 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 entities.
5.2 Sublease of Equipment. Effective June 1, 1998, EPCO and EPD OLP entered into one or more
Sublease Agreements (the “Sublease Agreements”), pursuant to which EPCO agreed to sublease to EPD
OLP the equipment covered by the Retained Leases. EPCO has assigned to EPD OLP all options held by
EPCO to purchase any and all equipment subject to the Sublease Agreements and the Retained Leases.
5.3 EPCO’s Employees.
(a) The obligation of each Billing Agent to pay the Administrative Services Fee shall, as such
obligation relates to EPCO’s expenses incurred to compensate its employees providing the EPCO
Services,
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reimburse EPCO for the appropriate pro rata cost of such employees’ salaries, wages,
bonuses, benefits, social security and other taxes, workers compensation insurance, retirement and
insurance benefits, training, and other direct and indirect costs of such employee fringe benefits.
The applicable Billing Agent shall not be obligated to pay any amount directly to EPCO’s
employees; provided, however, if EPCO ever fails to pay any employee providing EPCO Services within
30 days following the date such employee’s payment is due:
(i) the applicable Billing Agent or any Affiliate may (w) pay such employee directly,
(x) employ such employee directly, (y) notify EPCO and begin to pay all employees providing
EPCO Services directly, or (z) notify EPCO that the portion of this Agreement relating to
the EPCO Services is terminated and employ directly any or all of such employees, or employ
such other individuals as the applicable Billing Agent and its Affiliates may choose in
their sole discretion, and
(ii) EPCO shall reimburse the applicable Billing Agent for any amount that such Billing
Agent or its Affiliate paid to EPCO, for EPCO’s employees providing the EPCO Services, that
EPCO did not pay to, or on behalf of, such employees.
(b) Notwithstanding anything in Section 5.3(a) to the contrary, the applicable Billing Agent,
shall have the right, at any time upon at least 90 days notice to EPCO, to terminate the portion of
this Agreement relating to the EPCO Services and to employ any or all of EPCO’s employees providing
the EPCO Services directly, or employ such other individuals as the applicable Billing Agent or its
Affiliates may choose in its sole discretion.
5.4 Business Opportunities.
(a) If any member of the EPCO Group, the EPE Partnership Entities, the EPD Partnership
Entities, or the DEP Partnership Entities (the “Business Opportunity Parties”) is offered by a
third party, or discovers an opportunity to acquire from a third party, Equity Securities (an
“Equity Business Opportunity”), the Business Opportunity Party that is offered or discovers such
Equity Business Opportunity shall promptly advise the Board of Directors of EPE GP and present such
Equity Business Opportunity to EPE. EPE shall be presumed to desire to acquire the Equity
Securities until such time as EPE GP advises the EPCO Group, EPD GP (on behalf of the EPD
Partnership Entities) and DEP Holdings (on behalf of the DEP Partnership Entities) that EPE has
abandoned the pursuit of such Equity Business Opportunity. In the event that the purchase price of
the Equity Securities is reasonably likely to equal or exceed $100 million, any decision to decline
the Equity Business Opportunity shall be made by the Chief Executive Officer of EPE GP after
consultation with and subject to the approval of its Audit and Conflicts Committee. If the
purchase price is reasonably likely to be less than $100 million, the Chief Executive Officer of
EPE GP may make the determination to decline the Equity Business Opportunity without consulting the
Audit and Conflicts Committee of EPE GP. In the event that EPE abandons the Equity Business
Opportunity and so notifies the EPCO Group, EPD GP (on behalf of the EPD Partnership Entities) and
DEP Holdings (on behalf of the DEP Partnership Entities), EPD shall have the second right to pursue
such Equity Business Opportunity. EPD shall be presumed to desire to acquire the equity securities
until such time as EPD GP advises the EPCO Group and DEP Holdings (on behalf of the DEP Partnership
Entities) that EPD has abandoned the pursuit of such Equity Business Opportunity. In determining
whether or not to pursue the Equity Business Opportunity, EPD will follow the same procedures
applicable to EPE, as described above but utilizing EPD GP’s Chief Executive Officer and Audit and
Conflicts Committee. EPD, in its sole discretion, may also keep and designate such Equity Business
Opportunity for the benefit and pursuit by DEP. In such event, DEP shall have the opportunity to
pursue such acquisition until the earlier of (i) the Board of Directors of DEP Holdings notifies
EPD that DEP does not intend to pursue such Equity Business Opportunity or (ii) EPD abandons such
Equity Business Opportunity for both itself and for the benefit of DEP. In the event that EPD
abandons the Equity Business Opportunity and so notifies the EPCO Group and DEP Holdings (on behalf
of the DEP Partnership Entities), the EPCO Group may either pursue the Equity Business Opportunity
or offer the Equity Business Opportunity to EPCO Holdings, or the TPP Partnership Entities, in
either case, without any further obligation to the Business Opportunity Parties. Notwithstanding
anything to the contrary in this agreement, the Chief Executive Officer of EPE GP is not required
to present such Equity Business Opportunity equal to or in excess of $100 million to the Audit and
Conflicts Committee of EPE GP in order to decline such opportunity unless such opportunity is to be
reoffered to, or is desired to be taken by, another Party to this Agreement or their Affiliates.
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(b) If any Business Opportunity Party is offered by a third party, or discovers a business
opportunity not covered by Section 5.4(a) (a “Non-Equity Securities Opportunity”), the Business
Opportunity Party that is offered or discovers such Non-Equity Securities Opportunity shall
promptly advise the Board of Directors of EPD GP and present such Non-Equity Securities Opportunity
to EPD. EPD shall be presumed to desire to pursue the Non-Equity Securities Opportunity until such
time as EPD GP advises the EPCO Group, EPE GP (on behalf of the EPE Partnership Entities) and DEP
Holdings (on behalf of the DEP Partnership Entities) that EPD has abandoned the pursuit of such
Non-Equity Securities Opportunity.
In the event that the purchase price of the Non-Equity Securities Opportunity is reasonably
likely to equal or exceed $100 million, any decision to decline the Non-Equity Securities
Opportunity shall be made by the Chief Executive Officer of EPD GP after consultation with and
subject to the approval of its Audit and Conflicts Committee. If the purchase price is reasonably
likely to be less than $100 million, the Chief Executive Officer of EPD GP may make the
determination to decline the Non-Equity Securities Opportunity without consulting the Audit and
Conflicts Committee of EPD GP. Notwithstanding anything to the contrary in this agreement, the
Chief Executive Officer of EPD GP is not required to present such Non-Equity Securities Opportunity
equal to or in excess of $100 million to such Audit and Conflicts Committee in order to decline
such opportunity unless such opportunity is to be reoffered to, or is desired to be taken by,
another Party to this Agreement or their Affiliates.
EPD, in its sole discretion, may also keep and designate such Non-Equity Securities
Opportunity for the benefit and pursuit by DEP. In such event, DEP shall have the opportunity to
pursue such acquisition until the
earlier of (i) the Board of Directors of DEP Holdings notifies EPD that DEP does not intend to
pursue such Non-Equity Securities Opportunity or (ii) EPD abandons such Non-Equity Securities
Opportunity for both itself and for the benefit of DEP.
In the event that EPD abandons the Non-Equity Securities Opportunity and so notifies the EPCO
Group, EPE GP (on behalf of the EPE Partnership Entities) and DEP Holdings (on behalf of the DEP
Partnership Entities), EPE shall have the second right to pursue such Non-Equity Securities
Opportunity. EPE shall be presumed to desire to pursue the Non-Equity Securities Opportunity until
such time as EPE GP advises the EPCO Group that EPE has abandoned the pursuit of such opportunity.
In determining whether or not to pursue the Non-Equity Securities Opportunity, EPE will follow the
same procedures applicable to EPD, as described above but utilizing EPE GP’s Chief Executive
Officer and Audit and Conflicts Committee.
In the event that EPE abandons the Non-Equity Securities Opportunity and so notifies the EPCO
Group, the EPCO Group may either pursue the Non-Equity Securities Opportunity or offer the
Non-Equity Securities Opportunity to EPCO Holdings or the TPP Partnership Entities, in either case,
without any further obligation to the Business Opportunity Parties.
(c) None of the EPCO Group, the EPE Partnership Entities, the EPD Partnership Entities nor the
DEP Partnership Entities shall have any obligation to present any Business Opportunity to any of
the TPP Partnership Entities. None of the TPP Partnership Entities shall have any obligation to
present any Business Opportunity to the EPCO Group, the EPE Partnership Entities, the EPD
Partnership Entities or the DEP Partnership Entities.
(d) Any Business Opportunity offered to or discovered by any EPCO employee solely responsible
for the business and affairs of any of the TPP Partnership Entities shall not be subject to the
Business Opportunity agreements contained in this Section 5.4 other than Section 5.4(c).
(e) Any Business Opportunity offered to or discovered by an EPCO employee solely responsible
for the business and affairs of any of the EPE Partnership Entities shall be considered a Business
Opportunity of the EPE Partnership Entities for purposes of this Section 5.4.
(f) Any Business Opportunity offered to or discovered by an EPCO employee solely responsible
for the business and affairs of any of the EPD Partnership Entities shall be considered a Business
Opportunity of the EPD Partnership Entities for purposes of this Section 5.4.
-7-
(g) Any Business Opportunity offered to or discovered by EPCO employee solely responsible for
the business and affairs of any of the DEP Partnership Entities shall be considered a Business
Opportunity of the DEP Partnership Entities for purposes of this Section 5.4 only to the extent
expressly designated as an Business Opportunity for the DEP Partnership Entities in accordance with
the agreement of limited partnership of DEP or DEP OLP, and otherwise shall be considered a
Business Opportunity of the EPD Partnership Entities for purposes of this Section 5.4. DEP and DEP
OLP acknowledge and agree that such partnerships have renounced their interest in Business
Opportunities to the extent set forth in their respective partnership agreements, and hereby agree
that, to the extent such opportunities are abandoned by EPD, EPE, the EPCO Group or other third
parties may rely on such agreements in their respective partnership agreements in connection with
their pursuit of such Business Opportunities.
(h) Any Business Opportunity offered to or discovered by any EPCO employee who performs Shared
Services shall be allocated to the EPCO Group, the EPE Partnership Entities, the EPD Partnership
Entities and/or the TPP Partnership Entities:
(i) to the extent that the Business Opportunity is first presented to such employee in
such employee’s capacity as a representative of the EPCO Group, the EPE Partnership
Entities, the EPD Partnership Entities, the DEP Partnership Entities, or the TPP Partnership
Entities, such Business Opportunity shall be allocated to the Partnership Entities then
represented by such employee (or to the EPD Partnership Entities with respect to a
representative of the DEP Partnership Entities to the extent not
expressly designated as an Business Opportunity for the DEP Partnership Entities in
accordance with the agreement of limited partnership of DEP or DEP OLP); and
(ii) to the extent that the Business Opportunity is first presented to such employee in
such employee’s individual capacity without regard to his representation of any Partnership
Entity, such Business Opportunity shall be allocated to the Partnership Entity for which
such employee devotes the most significant amount of such employee’s time (or to the EPD
Partnership Entities with respect to a representative of the DEP Partnership Entities to the
extent not expressly designated as an Business Opportunity for the DEP Partnership Entities
in accordance with the agreement of limited partnership of DEP or DEP OLP).
(i) EPCO has caused all EPCO employees who may receive Business Opportunities to acknowledge
and agree to comply with the Business Opportunity agreements set forth in this Section 5.4.
5.5 Adoption of Policies and Procedures. The Boards of Directors of EPCO, EPE GP, EPD GP, DEP
Holdings and TPP GP have adopted the Conflicts Policies and Procedures attached hereto as
Exhibit B (the “Conflicts Policy”). EPCO agrees to, and agrees to use all reasonable
efforts to cause its employees to, comply with the Conflicts Policy.
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. Each Party hereby submits to the exclusive jurisdiction of the
state and federal courts in the State of Texas and to exclusive 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 Party to be notified, postpaid, and registered or certified with return receipt
requested or by delivering such notice in person or by facsimile to such Party. Notice given by
personal delivery or mail shall be effective upon actual receipt. Notice given by facsimile shall
be effective upon actual receipt if received during the recipient’s normal business hours, or at
the beginning of the recipient’s next business day after receipt if not received during the
recipient’s normal business hours. All notices to be sent to a Party pursuant to this Agreement
shall be sent to or made at the address set forth below such Party’s signature to this Agreement,
or at such other address as such Party may stipulate to the other Parties in the manner provided in
this Section 6.2.
-8-
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 among the
parties, whether oral or written, relating to the matters contained herein.
6.4 Effect of Waiver of Consent. No Party’s express or implied waiver of, or consent to, any
breach or default by any Party in the performance by such Party 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 Party of the same or any other obligations of such Party hereunder. Failure on
the part of a Party to complain of any act of any Party or to declare any Party 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 affected by any such amendment; provided, however, that EPE, EPD,
DEP and TPP may not, without the prior approval of its Audit and Conflicts Committee, agree to any
amendment or modification of this Agreement that, in the reasonable discretion of EPE GP, EPD GP,
DEP Holdings, or TPP GP, as applicable, will materially and adversely affect the holders of units
of EPE, EPD, DEP or TPP, as applicable.
6.6 Assignment. No Party shall have the right to assign or delegate its rights or obligations
under this Agreement without the consent of the other Parties.
6.7 Counterparts. This Agreement may be executed in any number of counterparts with the same
effect as if all 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 Party or
circumstance shall be held invalid or unenforceable to any extent, the remainder of this Agreement
and the application of such provision to other Parties or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
6.9 Further Assurances. In connection with this Agreement and all transactions contemplated by
this Agreement, each Party hereto agrees to execute and deliver such additional documents and
instruments and to perform such additional acts as may be necessary or appropriate to effectuate,
carry out and perform all of the terms, provisions and conditions of this Agreement and all such
transactions.
6.10 Withholding or Granting of Consent. Unless the consent or approval of a Party is expressly
required not to be unreasonably withheld (or words to similar effect), 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, and no limited partner of EPE, EPD, DEP or TPP or other Person shall have the right
to enforce any provision of this Agreement or to compel any Party to comply with the terms of this
Agreement.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed by their
respective authorized officers as of January 30, 2007, to be effective as of the Effective Date.
| EPCO, INC. (formerly known as Enterprise Products Company, a Texas corporation) |
||||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||||
| Name: | Xxxxxxx X. Xxxxxxxx | |||||
| Title: | Executive Vice President and | |||||
| Chief Legal Officer | ||||||
| Address for Notice: 0000 Xxxxxxxxx, 00xx Xxxxx Xxxxxxx, Xxxxx 00000 Facsimile No.: (000) 000-0000 |
||||||
[signature page]
| ENTERPRISE GP HOLDINGS L.P. | ||||||
| EPE HOLDINGS, LLC Individually and as Sole General Partner of Enterprise GP Holdings L.P. |
||||||
| By: | /s/ W. Xxxxxxx Xxxxxx | |||||
| Senior Vice President and Chief | ||||||
| Financial Officer | ||||||
| Address for Notice: 0000 Xxxxxxxxx, 00xx Xxxxx Xxxxxxx, Xxxxx 00000 Facsimile No.: (000) 000-0000 |
||||||
| ENTERPRISE PRODUCTS PARTNERS L.P. | ||||||
| ENTERPRISE PRODUCTS OPERATING L.P. | ||||||
| ENTERPRISE PRODUCTS GP, LLC, Individually and as Sole General Partner of Enterprise Products Partners L.P., and |
||||||
| ENTERPRISE PRODUCTS OLPGP, INC., Individually and as Sole General Partner of Enterprise Products Operating L.P. |
||||||
| By: | /s/ W. Xxxxxxx Xxxxxx | |||||
Senior Vice President and Treasurer |
||||||
| Address for Notice: 0000 Xxxxxxxxx, 00xx Xxxxx Xxxxxxx, Xxxxx 00000 Facsimile No.: (000) 000-0000 |
||||||
| XXXXXX ENERGY PARTNERS L.P. | ||||||
| DEP HOLDINGS, LLC Individually and as Sole General Partner of Xxxxxx Energy Partners L.P. |
||||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||||
| Executive Vice President and Chief Financial Officer | ||||||
| Address for Notice: 0000 Xxxxxxxxx, 00xx Xxxxx Xxxxxxx, Xxxxx 00000 Facsimile No.: (000) 000-0000 |
||||||
| DEP OPERATING PARTNERSHIP, L.P. | ||||||
| By: DEP OLPGP, LLC, as Sole General Partner | ||||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||||
| Executive Vice President and Chief Financial Officer | ||||||
| Address for Notice: 0000 Xxxxxxxxx, 00xx Xxxxx Xxxxxxx, Xxxxx 00000 Facsimile No.: (000) 000-0000 |
||||||
[signature page]
| TEPPCO PARTNERS, L.P. | ||||||
| TEXAS EASTERN PRODUCTS PIPELINE COMPANY, LLC Individually and as Sole General Partner of TEPPCO Partners, L.P. |
||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||
| Address for Notice: 0000 Xxxxxxxxx, Xxxxx 0000 Xxxxxxx, Xxxxx 00000 Facsimile No.: (000) 000-0000 |
||||||
| TE PRODUCTS PIPELINE COMPANY, LIMITED PARTNERSHIP |
||||||
| TEPPCO MIDSTREAM COMPANIES, L.P. | ||||||
| TCTM, L.P. | ||||||
| TEPPCO GP, Inc. Individually and as Sole General Partner of TE Products Pipeline Company, Limited Partnership, TEPPCO Midstream Companies, L.P. and TCTM, L.P. |
||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||
| Address for Notice: 0000 Xxxxxxxxx, Xxxxx 0000 Xxxxxxx, Xxxxx 00000 Facsimile No.: (000) 000-0000 |
||||||
[signature page]
Exhibit A
DEFINED TERMS
“Administrative Services Fee” shall have the meaning set forth in Section 2.2.
“Affiliate” shall mean, with respect to any Person, any other Person that directly or
indirectly through one or more intermediaries controls, is controlled by or is under common control
with, the Person in question. As used herein, the term “control” means the possession, direct or
indirect, of the power to direct or cause the direction of the management and policies of a Person,
whether through ownership of voting securities, by contract or otherwise. Notwithstanding the
foregoing, a Person shall only be considered an “Affiliate” of the general partner of EPE, EPD, DEP
or TPP, as applicable, if such Person owns, directly or indirectly, 50% or more of the voting
securities of such general partner or otherwise possesses the sole power to direct or cause the
direction of the management and policies of such general partner.
“Agreement” shall mean this Fourth Amended and Restated Administrative Services Agreement, as
it may be amended, modified, or supplemented from time to time.
“Audit and Conflicts Committee” means a committee of the Board of Directors of EPE GP, EPD GP.
DEP Holdings or TPP GP, as applicable, composed entirely of three or more directors who meet the
independence, qualification and experience requirements established by the Securities Exchange Act
and the rules and regulations of the Commission thereunder and by The New York Stock Exchange, and
with respect to EPD GP and TPP GP, at least two of whom also meet the S&P Criteria.
“Billing Agent” shall mean (i) in the case of the EPE Partnership Entities, EPE Holdings, LLC,
(ii) in the case of the EPD Partnership Entities, Enterprise Products GP, LLC, (iii) in the case of
the DEP Partnership Entities, DEP Holdings, and (iv) in the case of TPP, TEPPCO GP, Inc.
“Business Opportunity” shall mean, collectively or individually, as the context may require,
an Equity Business Opportunity and/or a Non-Equity Securities Opportunity.
“Business Opportunity Parties” shall have the meaning set forth in Section 5.4(a).
“Commission” shall mean the United States Securities and Exchange Commission.
“DEP” shall have the meaning set forth in the Preamble.
“DEP Holdings” shall have the meaning set forth in the Preamble.
“DEP OLP” shall have the meaning set forth in the Preamble.
“DEP Partnership Entities” shall mean DEP Holdings, DEP, DEP OLP and any Affiliate controlled
(and only so long as such Affiliates are controlled) by DEP Holdings, DEP or DEP OLP (as the term
“control” is used in the definition of “Affiliate”).
“Effective Date” shall have the meaning set forth in the Preamble.
“EPCO” shall have the meaning set forth in the Preamble.
“EPCO Group” shall mean EPCO and its Affiliates (other than the Partnership Entities).
“EPCO Holdings” shall have the meaning set forth in Section 2.1(a).
“EPCO Services” shall have the meaning set forth in Section 2.1.
A-1
“EPD” shall have the meaning set forth in the Preamble.
“EPD GP” shall have the meaning set forth in the Preamble.
“EPD OLP” shall have the meaning set forth in the Preamble.
“EPD OLPGP” shall have the meaning set forth in the Preamble.
“EPD Partnership Entities” shall mean EPD GP, EPD, EPD OLP and any Affiliate controlled (and
only so long as such Affiliates are controlled) by EPD GP, EPD or EPD OLP (as the term “control” is
used in the definition of “Affiliate”).
“EPE” shall have the meaning set forth in the Preamble.
“EPE GP” shall have the meaning set forth in the Preamble.
“EPE Partnership Entities” shall mean EPE GP, EPE and any Affiliate controlled (and only so
long as such Affiliates are controlled) by EPE GP or EPE (as the term “control” is used in the
definition of “Affiliate”) but excluding the EPD Partnership Entities.
“Equity Business Opportunity” shall have the meaning set forth in Section 5.4(a).
“Equity Securities” shall mean (i) general partner interests (or securities which have
characteristics similar to general partner interests) and incentive distribution rights or similar
rights in publicly traded partnerships or interests in Persons that own or control such general
partner or similar interests (collectively, “GP Interests”) and securities convertible,
exercisable, exchangeable or otherwise representing ownership or control of such GP Interests and
(ii) incentive distribution rights and limited partner interests (or securities which have
characteristics similar to incentive distribution rights or limited partner interests) in publicly
traded partnerships or interests in Persons that own or control such limited partner or similar
interests (collectively, “non-GP Interests”); provided that such non-GP Interests are associated
with GP Interests and are owned by the owners of GP Interests or their respective Affiliates.
“Excluded Liabilities” shall mean the following liabilities and obligations:
(a) all indebtedness of EPCO and its Affiliates other than the Partnership Entities for
borrowed money; and
(b) any income tax liability of EPCO that may result from the consummation of the transactions
contemplated by the First Amendment, the Second Amendment or this Agreement.
“First Amendment” shall have the meaning set forth in the Preamble.
“Independent Director” shall mean an individual who meets the independence, qualification and
experience requirements of the New York Stock Exchange
“License Agreement” shall mean that certain Trademark License Agreement, effective August 18,
2004, by and between EPD OLP and EPCO.
“Losses” shall have the meaning set forth in Section 4.1.
“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.
A-2
“Non-Equity Securities Opportunity” shall have the meaning set forth in Section 5.4(b).
“Party” shall mean any one of the Persons that executes this Agreement.
“Partnership Entity” or “Partnership Entities” shall mean the individual or collective
reference, as the context may require, to the EPD Partnership Entities, the EPE Partnership
Entities, the DEP Partnership Entities and/or the TPP Partnership Entities.
“Person” means an individual or a corporation, limited liability company, partnership, joint
venture, trust, unincorporated organization, association, government agency or political
subdivision thereof or other entity.
“Prudent Industry Practices” shall mean, at a particular time, any of the practices, methods
and acts which, in the exercise of reasonable judgment, will result in the proper operation and
maintenance of the assets owned by a Party or its Affiliates and shall include, without limitation,
the practices, methods and acts engaged in or approved by a significant portion of the industry at
such time with respect to the assets of the same or similar types as the assets owned by such Party
or its Affiliates. Prudent Industry Practices are not intended to be limited to optimum practices,
methods or acts, to the exclusion of all others, but rather represent a spectrum of possible
practices, methods and acts which could have been expected to accomplish the desired result at a
commercially reasonable cost in a reliable, safe and timely fashion, in compliance with the
applicable limited partnership agreement and limited liability company agreement and in accordance
with all applicable laws. Prudent Industry Practices are intended to entail the same standards as
the Parties would, in the prudent management of their own properties, use from time to time.
“Retained Leases” shall mean the operating leases relating to (i) one cogeneration unit, and
(ii) approximately 100 rail cars, the liabilities of each of which were retained by EPCO in
connection with the formation of EPD and EPD OLP.
“S&P Criteria” shall mean a duly appointed member of the Audit and Conflicts Committee who had
not been, at the time of such appointment or at any time in the preceding five years, (a) a direct
or indirect legal or beneficial owner of interests in EPD or TPP, as applicable, or any of its
Affiliates (excluding de minimis ownership interests having a value of less than $1 million), (b) a
creditor, supplier, employee, officer, director, family member, manager or contractor of EPD or
TPP, as applicable, or any of its Affiliates, or (c) a person who controls (whether directly,
indirectly or otherwise) EPD or TPP, as applicable, or any of its Affiliates or any creditor,
supplier, employee, officer, director, manager or contractor of EPD or TPP, as applicable, or any
of its Affiliates.
“Second Amendment” shall have the meaning set forth in the Preamble.
“Securities Act” shall mean the Securities Act of 1933, as amended, supplemented or restated
from time to time, and any successor to such statute.
“Securities Exchange Act” shall mean the Securities Exchange Act of 1934, as amended,
supplemented or restated from time to time, and any successor to such statute.
“Services Standard” shall mean, with respect to the performance of the EPCO Services, the good
faith undertaking, on a commercially reasonable basis, to perform the EPCO Services (i) in the case
of the EPD Partnership Entities, at least the same quality and manner as EPCO Services were
provided by EPCO or its Affiliates to the EPD Partnership Entities during calendar year 2004, (ii)
in the case of the TPP Partnership Entities, at least the same quality and manner as services were
provided by Duke Energy Field Services LLC or its Affiliates to the TPP Partnership Entities during
calendar year 2004 and (iii) in all material respects in compliance with applicable laws and
Prudent Industry Practices.
“Shared Services” shall mean the performance of services for more than one of the groups of
entities comprising the EPCO Group, the EPE Partnership Entities, the EPD Partnership Entities, the
DEP Partnership Entities and the TPP Partnership Entities.
A-3
“Sublease Agreements” shall have the meaning set forth in Section 5.2.
“TCTM” shall have the meaning set forth in the Preamble.
“TE LP” shall have the meaning set forth in the Preamble.
“TEPPCO Midstream” shall have the meaning set forth in the Preamble.
“TEPPCO Inc.” shall have the meaning set forth in the Preamble.
“Third Amendment” shall have the meaning set forth in the Recitals.
“TPP” shall have the meaning set forth in the Preamble.
“TPP GP” shall have the meaning set forth in the Preamble.
“TPP Partnership Entities” shall mean TPP GP, TPP and any Affiliate controlled (and only so long as
such Affiliates are controlled) by TPP GP or TPP (as the term “control” is used in the definition
of “Affiliate”).
A-4
Exhibit B
Conflicts Policies and Procedures
Capitalized terms used but not defined in this Exhibit B shall have the meanings assigned to
such terms in that certain Fourth Amended and Restated Administrative Services Agreement, effective
February 5, 2007, of which this Exhibit B forms a part.
This Exhibit B outlines the corporate governance structure and the policies and procedures
that have been adopted by EPE GP, EPD GP, DEP Holdings and TPP GP to address potential conflicts
among, protect the confidential information of, and govern the sharing of EPCO personnel among, the
Partnership Entities.
Corporate Governance
Boards of Directors –
(a) Independent Directors. Each of EPE GP, EPD GP, DEP Holdings and TPP GP will have
at least three Independent Directors on its board of directors. None of such Independent Directors
will overlap among EPE GP, EPD GP, DEP Holdings and TPP GP. Each of EPE GP, EPD GP, DEP Holdings
and TPP GP shall maintain a majority of Independent Directors on its board of directors to the
extent required under applicable rules of the securities exchange on which securities of EPE, EPD,
DEP and TPP trade, but otherwise shall not be required to maintain a majority of Independent
Directors on its board of directors.
(b) Other Directors. Other than the persons expressly noted below, no director shall
serve on more than one of the boards of directors of EPE GP, EPD GP, DEP Holdings and TPP GP. Xxx
X. Xxxxxx, Xxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxx, W. Xxxxxxx Xxxxxx and/or Xxxxxxx X. Xxxxxxxx may
serve on more than one of the foregoing boards of directors or any committee thereof.
Notwithstanding the foregoing in clauses (a) and (b) above, Xx. Xxxxxx and any one or more of
the other individuals serving as directors of EPE GP, EPD GP or DEP Holdings and any one or more of
the individuals serving as directors of TPP GP may attend the meetings of the board of directors of
the Partnership Entity of which Xx. Xxxxxx and/or such individuals are not directors, but only at
the invitation of EPE GP, EPD GP, DEP Holdings or TPP GP, as applicable, and so long as no
information concerning Commercial and Development Activities involving Potential Overlapping Assets
is provided to Xx. Xxxxxx and/or such individuals while in attendance at such meetings.
Separate Commercial Management and Employees – EPCO employees performing Commercial and
Development Activities involving Potential Overlapping Assets for the EPE Partnership Entities, the
EPD Partnership Entities and/or the DEP Partnership Entities, on the one hand, and the TPP
Partnership Entities, on the other hand, shall not overlap. EPCO employees performing Commercial
and Development Activities which do not involve Potential Overlapping Assets for the EPE
Partnership Entities, the EPD Partnership Entities, the DEP Partnership Entities and/or the TPP
Partnership Entities may overlap.
Shared Services – EPCO employees may be assigned to perform Shared Services for all or any of
the Partnership Entities. EPCO employees performing Shared Services may be appointed to officer
positions (including executive officer positions) at more than one of EPE GP, EPD GP, DEP Holdings
and TPP GP or their respective controlled Affiliates. However, as stated above, EPCO employees
performing Commercial and Development Activities for either the EPE Partnership Entities, the EPD
Partnership Entities, and/or the DEP Partnership Entities, on the one hand, or the TPP Partnership
Entities, on the other hand, may perform Shared Services for any group of Entities except to the
extent that such Shared Services constitute Commercial and Development Activities involving
Potential Overlapping Assets. As a result of their performance of Shared Services, Shared
Employees may obtain Commercial Information that relates to more than one of the groups of
Partnership Entities. To the extent that any Shared Employee has Commercial Information that
relates to the EPE Partnership Entities, the EPD Partnership Entities, the DEP Partnership Entities
and the TPP Partnership Entities and involves Potential Overlapping Assets, such Shared Employee
shall not engage in any activities to which such Commercial Information relates unless such
B-1
activities are approved by both the Screening Officer of the EPE Partnership Entities, the EPD
Partnership Entities, the DEP Partnership Entities and the Screening Officer of the TPP Partnership
Entities.
Information Screening for Shared Employees
To the fullest extent possible, Shared Employees should avoid access to Commercial Information
for any Partnership Entities for which they do not perform Commercial and Development Activities.
To the extent that any Shared Employee who engages in Commercial and Development Activities becomes
privy to Commercial Information relating to Potential Overlapping Assets of any Partnership
Entities for which such employee does not perform Commercial and Development Activities, such
Shared Employee must report that fact and the nature of the Confidential Information to the
Screening Officers who will maintain a record of the name of the person, the date of the report,
and the nature of the Commercial Information obtained by the Shared Employee.
Except as expressly permitted by the Screening Officers, to the extent required to effectively
perform the Shared Services or in connection with existing or potential joint venture arrangements
between any of the EPE Partnership Entities, the EPD Partnership Entities and the DEP Partnership
Entities, on the one hand, and any of the TPP Partnership Entities, on the other hand, (i) Shared
Employees shall not disclose Commercial Information relating to Potential Overlapping Assets of the
TPP Partnership Entities to any director, officer or employee associated with the EPE Partnership
Entities, the EPD Partnership Entities or the DEP Partnership Entities; and (ii) Shared Employees
shall not disclose Commercial Information relating to Potential Overlapping Assets of the EPE
Partnership Entities, the EPD Partnership Entities or the DEP Partnership Entities to any director,
officer or employee associated with the TPP Partnership Entities.
Shared Employees should seek guidance on the foregoing restrictions from the Screening
Officers to the extent that they are uncertain as to an appropriate course of action.
Information Screening for Xxx X. Xxxxxx
Xx. Xxx X. Xxxxxx and his Affiliates directly and indirectly own and control EPE GP, EPD GP,
DEP Holdings and TPP GP. As a result of the potential conflicts generated by this cross-ownership,
Xx. Xxxxxx shall limit his access to information and his ability to control the management of the
TPP Partnership Entities as described below.
Xx. Xxxxxx will be screened from any information relating to the Potential Overlapping Assets
of the TPP Partnership Entities except (a) information that the TPP Partnership Entities have made
available to the public, (b) aggregated financial information and budgets of the TPP Partnership
Entities and (c) information related to environmental matters. The foregoing restrictions shall
not apply if it is determined that Xx. Xxxxxx requires access to additional information concerning
the TPP Partnership Entities and the Screening Officer of the TPP Partnership Entities determines
that the information would not be competitively sensitive; provided, the foregoing shall apply to
the extent sharing of additional information concerning the TPP Partnership Entities (including
information concerning shippers who store NGLs in Mont Belvieu Storage Partners, L.P. terminals, or
in any other storage facility, or on the TEPPCO mainline delivery system, in each case as described
in the Consent and Order of the U.S. Federal Trade Commission applicable to the TPP Partnership
Entities) would violate any applicable governmental order.
Xx. Xxxxxx will not participate in activities involving Commercial Information related to
Potential Overlapping Assets of the TPP Partnership Entities. All information to be provided to
Xx. Xxxxxx will first be given to the Screening Officer for the TPP Partnership Entities who will
ensure that all Commercial Information relating to the Potential Overlapping Assets has been
removed.
Definitions
For purposes of these policies and procedures, capitalized terms used but not defined above
shall have the following meanings:
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“Commercial Information” shall mean information about Commercial and Development Activities or
other competitively sensitive information of any Partnership Entities. Commercial Information
includes information regarding prices, costs, margins, volumes and contractual terms for any
particular customer, any method, tool or computer program used to determine prices for any asset;
all plans or strategies used or adopted to negotiate, target or identify a particular customer for
any asset; all information regarding plans and prospective budgets to expand or build a new
facility; all information regarding a proposal to buy an existing facility; capacity and capacity
utilization of any facility.
“Commercial and Development Activities” shall mean operations of the Partnership Entities
relating to sales, marketing, or other services provided to customers; operation of or proposed
changes to, such Partnership Entities’ assets, and the plans and strategies dealing with the
business of such Partnership Entities.
“Independent Director” shall mean an individual directors who meets the independence,
qualification and experience requirements established by the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Securities and Exchange Commission thereunder and by
The New York Stock Exchange.
“Potential Overlapping Assets” shall mean (i) with respect to the TPP Partnership Entities,
(a) the TE Products Pipeline (to the extent that such pipeline transports propane), (b) the Val
Verde Gathering System, (c) the Chaparral Pipeline, (d) the Quanah Pipeline and (e) Mont Belvieu
Storage Partners, L.P. terminals, or in any other storage facility, or on the TEPPCO mainline
delivery system (with respect to the assets described in clause (e), as described in the Consent
and Order of the U.S. Federal Trade Commission applicable to the TPP Partnership Entities) and (ii)
with respect to the EPE Partnership Entities and the EPD Partnership Entities, the Xxx-Xxx NGL
Pipeline, the Xxxxx Pipeline, the San Xxxx Gathering System, the Seminole Pipeline System and the
natural gas liquids storage facilities located at Mont Belvieu, Texas.
“Screening Officer” shall mean any of Xxx Monarch, Xxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxxxx or
Xxxxxxxxx X. Xxxxxxxxxxx, or subsequent persons designated by the Boards of each of EPE GP and EPD
GP, in the case of the EPE Partnership Entities and the EPD Partnership Entities and the DEP
Partnership Entities, and Xxxxxxx X. Xxxxxx or Xxxxxxxx X. Xxxxxx, or subsequent persons designated
by the Board of TPP GP, in the case of the TPP Partnership Entities.
“Shared Employees” shall mean EPCO employees providing Shared Services.
“Shared Services” shall mean services provided by EPCO employees to more than one of the
groups of entities comprising the EPE Partnership Entities, the EPD Partnership Entities, the DEP
Partnership Entities and the TPP Partnership Entities and such services shall include, but not be
limited to, human resources, information technology, financial and accounting services, legal
services and such other services that do not involve Commercial and Development Activities.
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