Exhibit 10.T
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PURCHASE AND SALE AGREEMENT
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By and Between
GULFTERRA ENERGY PARTNERS, L.P.
(Partnership)
and
XXXXXXX XXXXX & CO.
(Investor)
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Covering the Acquisition of
3,000,000 SERIES A COMMON UNITS
(Subject Units)
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October 2, 2003
TABLE OF CONTENTS
1. Definitions..............................................................................................1
2. The Transactions.........................................................................................7
(a) Sale of Subject Units...........................................................................7
(b) Consideration...................................................................................7
(c) The Closing.....................................................................................7
(d) Deliveries at the Closing.......................................................................8
3. Representations and Warranties Concerning the Investor...................................................8
(a) Organization of the Investor....................................................................8
(b) Authorization of Transaction....................................................................8
(c) Noncontravention................................................................................9
(d) Brokers' Fees...................................................................................9
(e) Independent Investigation.......................................................................9
(f) Investment Intent; Investment Experience; Restricted Securities.................................9
(g) Investor Status.................................................................................9
4. Representations and Warranties Concerning the Partnership...............................................10
(a) Organization and Qualification.................................................................10
(b) Authorization of Transaction...................................................................10
(c) Noncontravention...............................................................................10
(d) Capitalization.................................................................................11
(e) Subsidiaries...................................................................................11
(f) Adequacy of Assets.............................................................................11
(g) SEC Reports....................................................................................12
(h) Litigation.....................................................................................12
(i) Compliance with Applicable Laws................................................................12
(j) Taxes..........................................................................................13
(k) Contracts and Commitments......................................................................14
(l) Environmental Matters..........................................................................14
(m) Employees; Employee Plans......................................................................15
(n) Fairness Opinion; Special Committee Approval...................................................15
(o) Intellectual Property..........................................................................16
(p) No Default.....................................................................................16
(q) Independent Accountants........................................................................16
(r) Broker's Fees..................................................................................16
(s) GP Capital Account.............................................................................16
(t) NYSE Listing...................................................................................16
5. Remedies for Breaches of this Agreement.................................................................17
(a) Survival of Representations and Warranties.....................................................17
(b) Indemnification Provisions for Benefit of the Investor.........................................17
(c) Indemnification Provisions for Benefit of the Partnership......................................18
(d) Matters Involving Third Parties................................................................18
(e) Determination of Amount of Adverse Consequences................................................19
(f) Compliance with Express Negligence Rule........................................................19
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(g) Tax Treatment of Indemnity Payments............................................................19
6. [Intentionally Omitted].................................................................................20
7. Miscellaneous...........................................................................................20
(a) Confidentiality, Press Releases and Public Announcements.......................................20
(b) No Third Party Beneficiaries...................................................................20
(c) Succession and Assignment......................................................................20
(d) Counterparts...................................................................................20
(e) Notices........................................................................................20
(f) Governing Law..................................................................................21
(g) Remedy and Waiver..............................................................................22
(h) Further Assurances.............................................................................22
(i) Amendments and Waivers.........................................................................22
(j) Severability...................................................................................22
(k) Transaction Expenses...........................................................................22
(l) Construction...................................................................................23
(m) Incorporation of Exhibits and Schedules........................................................23
(n) Entire Agreement...............................................................................23
EXHIBITS AND SCHEDULES
Exhibit A: Form of Exchange Agreement
Exhibit B: Form of Reduction Agreement
Schedule 1(a): Knowledge (Partnership)
Schedule 3(b): Consents (Investor)
Schedule 4(b): Consents (Partnership)
Schedule 4(d): Capitalization
Schedule 4(f): Adequacy of Assets
Schedule 4(h): Litigation
Schedule 4(i): Compliance with Applicable Laws
Schedule 4(j): Taxes
Schedule 4(k) Contracts and Commitments
Schedule 4(k)(i): Full Force and Effect
Schedule 4(k)(ii): Defaults
Schedule 4(l): Environmental Matters
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PURCHASE AND SALE AGREEMENT
THIS
PURCHASE AND SALE AGREEMENT (this "Agreement") dated as of October
2, 2003 is by and between GulfTerra Energy Partners, L.P., a Delaware limited
partnership (the "Partnership"), and Xxxxxxx Sachs & Co., a
New York limited
partnership (the "Investor"). The Partnership and the Investor are sometimes
referred to collectively herein as the "Parties" and individually as a "Party."
RECITALS
1. The Partnership desires to issue to the Investor, and the Investor desires to
purchase from the Partnership, 3,000,000 newly issued Series A Common Units
(defined herein) (the "Subject Units").
2. GulfTerra GP Holding Company, a Delaware corporation ("GulfTerra Holding")
and the Investor are parties to that certain
Purchase and Sale Agreement, dated
the date hereof (the "LLC Purchase Agreement"), whereby GulfTerra Holding will
sell to an affiliate of the Investor 100% of the Class A Membership Interest
(defined herein) of GulfTerra Energy Company, L.L.C., a Delaware limited
liability company (the "General Partner").
AGREEMENT
In consideration of the premises and the mutual promises herein made,
and in consideration of the representations, warranties, and covenants herein
contained, the Parties stipulate and agree as follows:
1. Definitions. Unless otherwise provided for herein, the following
terms have the following meanings:
"Adverse Consequences" means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid
in settlement, liabilities, obligations, Taxes, liens, losses, expenses, and
fees, including court costs and attorneys' fees and expenses, but excluding any
punitive, exemplary, special, indirect, remote, speculative or consequential
damages (including any damages on account of lost profit or opportunities).
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act.
"Agreement" has the meaning set forth in the preface.
"CERCLA" means the Comprehensive Environmental Response, Compensation,
and Liability Act, 42 U.S.C. Section 9601 et seq., as amended.
"Class A Membership Interest" means the Class A Membership Interest of
the General Partner having the rights, powers and privileges set forth in the
Organizational Documents of the General Partner.
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"Closing" has the meaning set forth in Section 2(c).
"Closing Date" has the meaning set forth in Section 2(c).
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor Law.
"Commitment" means any options, warrants, convertible securities,
exchangeable securities, subscription rights, conversion rights, exchange rights
or other contracts that could require a Person to issue, redeem, purchase, or
sell any of its Equity Interests.
"Compensation Plan" means the Partnership's 1998 Omnibus Compensation
Plan, as amended, restated, supplemented or otherwise modified through the date
hereof.
"Debt Encumbrances" means any liens or other Encumbrances created
pursuant to the Partnership Indentures or the Partnership Entities Credit
Agreements.
"Delaware GP Act" means the Delaware Revised Uniform Partnership Act as
in effect on the date of this Agreement and as amended, restated or replaced
from time to time thereafter.
"Delaware LLC Act" means the Delaware Limited Liability Company Act as
in effect on the date of this Agreement and as amended, restated or replaced
from time to time thereafter.
"Delaware LP Act" means the Delaware Revised Uniform Limited
Partnership Act as in effect on the date of this Agreement and as amended,
restated or replaced from time to time thereafter.
"DGCL" means the Delaware General Corporation Law as in effect on the
date of this Agreement and as amended, restated or replaced from time to time
thereafter.
"Encumbrance" means any mortgage, pledge, lien, encumbrance, charge or
security interest.
"Environmental Laws" means any and all laws, statutes, regulations,
rules, orders, ordinances, codes, directives, permits, legal requirements and
rules of common law of any Governmental Authority pertaining to health, safety
or the environment (including, without limitation, any natural resource damages,
any generation, use, storage, treatment, Release, threatened Release, or
emission of Hazardous Materials into the indoor or outdoor environment, and any
exposure to Hazardous Materials) now or hereafter in effect and any judicial or
administrative interpretation (including, but not limited to, any judicial or
administrative order, consent decree, judgment or settlement) thereof,
including, without limitation, CERCLA, the Superfund Amendments Reauthorization
Act, 42 U.S.C. Section 11001 et seq., the Resource Conservation and Recovery
Act, 42 U.S.C. Section 6901 et seq., the Clean Air Act, 42 U.S.C. Section 7401
et seq., the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et
seq., the Oil Pollution Act of 1990, 33 U.S.C. Section 2701 et seq., the Toxic
Substances Control Act, 15 U.S.C. Section 2601 et seq., the Safe Drinking Water
Act, 42 U.S.C. Section 300f et seq., the Occupational Safety and Health Act, 29
U.S.C. Section 651 et seq., and the Federal Hazardous Materials Transportation
Law, 49 U.S.C. Section 5101 et seq., as each has been amended from time to time,
and all other environmental conservation and protection laws.
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"EP" means El Paso Corporation, a Delaware corporation.
"Equity Interests" means (a) with respect to a corporation, any and all
shares of capital stock and any Commitments with respect thereto, (b) with
respect to a partnership, limited liability company, trust or similar Person,
any and all units, interests or other partnership, limited liability company,
trust or similar interests, and any Commitments with respect thereto, and (c)
any other direct equity ownership or participation in a Person.
"ERISA" has the meaning set forth in Section 4(m).
"ERISA Affiliate" means any trade or business (whether or not
incorporated) treated as being a "single employer" with the Partnership pursuant
to Section 414 of the Code.
"Exchange Agreement" means the Exchange and Registration Rights
Agreement in substantially the form of Exhibit A.
"Exchange Period" has the meaning set forth in the Exchange Agreement.
"Fairness Opinion" means the fairness opinion dated October 2, 2003
from a nationally recognized investment banking firm relating to the redemption
of the Partnership's Series B Preference Units, the Exchange Agreement and
certain other matters.
"GAAP" means accounting principles generally accepted in the United
States consistently applied, as in effect at the time of the determination.
"Gateway" means Deepwater Gateway L.L.C., a Delaware limited liability
company.
"General Partner" has the meaning set forth in the preface.
"Governmental Authority" means any court, tribunal, arbitrator,
authority, agency, commission, official, or other instrumentality of the United
States, any foreign country, or domestic or foreign state, county, city, or
other political subdivision.
"GTM Finance" means GulfTerra Energy Finance Corporation, a Delaware
corporation.
"GulfTerra Holding" has the meaning set forth in the Recitals.
"Hazardous Materials" mean (i) any "hazardous waste," "extremely
hazardous waste," "industrial waste," "solid waste," "hazardous material,"
"hazardous substance," "toxic substance," "hazardous material," "pollutant," or
"contaminant" as those or similar terms are defined, identified, or regulated
under any Environmental Laws; (ii) any asbestos containing materials, whether in
a friable or non-friable condition, polychlorinated biphenyls, or radon; (iii)
any oil or gas exploration or production waste or any petroleum, petroleum
hydrocarbons, petroleum products, crude oil and any components, fractions, or
derivatives thereof; and (iv) any substance that, whether by its nature or its
use, is subject to regulation under any Environmental Law or for which any
Governmental Authority requires environmental investigation, remediation, or
monitoring.
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"Indemnified Party" has the meaning set forth in Section 5(d).
"Indemnifying Party" has the meaning set forth in Section 5(d).
"Investor" has the meaning set forth in the preface.
"Investor Indemnitees" means, collectively, the Investor and its
Affiliates and each of their respective officers (or natural persons performing
similar functions), directors (or natural persons performing similar functions),
employees, agents and representatives to the extent acting in such capacity.
"Knowledge" means, with respect to the Partnership, the actual
knowledge of the individuals listed on Schedule 1(a) hereto, without independent
investigation or inquiry.
"Laws" means any statute, code, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any applicable
Governmental Authority.
"LLC Agreement" means that certain First Amended and Restated Limited
Liability Company Agreement of the General Partner, dated the date hereof.
"LLC Purchase Agreement" has the meaning set forth in the Recitals.
"Material Adverse Effect" means any material adverse change or effect,
individually or in the aggregate, to the businesses, operations, financial
condition, assets, liabilities or properties of the Partnership and the
Partnership Subsidiaries, taken as a whole, provided that in determining whether
a Material Adverse Effect has occurred, changes or effects relating to (i) the
general economic conditions in the industries in which the Partnership and the
Partnership Subsidiaries operate, (ii) United States or global economic
conditions or financial markets in general, or (iii) the transactions
contemplated by this Agreement, shall not be considered.
"Ordinary Course of Business" means the ordinary course of business
consistent with the applicable Person's past custom and practice (including with
respect to quantity and frequency).
"Organizational Documents" means the articles of incorporation,
certificate of incorporation, charter, bylaws, articles or certificate of
formation, regulations, operating agreement, limited liability company
agreement, certificate of limited partnership, partnership agreement, and all
other similar documents, instruments or certificates executed, adopted, or filed
in connection with the creation, formation, or organization of a Person,
including any amendments thereto.
"Parent Guaranty" has the meaning given such term in the LLC Purchase
Agreement.
"Partnership" has the meaning set forth in the preface.
"Partnership Agreement" means the Second Amended and Restated Limited
Partnership Agreement of the Partnership, as amended, restated, supplemented or
otherwise modified through the date of this Agreement.
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"Partnership Assets" means all of the assets of the Partnership and the
Partnership Subsidiaries.
"Partnership Contracts" has the meaning set forth in Section 4(k).
"Partnership Entities Credit Agreements" means (a) (i) the Seventh
Amended and Restated Credit Agreement among the Partnership, GTM Finance, the
several lenders from time to time parties thereto, Fortis Capital Corporation,
as Syndication Agent, Credit Lyonnais
New York Branch, BNP Paribas and Wachovia
Bank, National Association, as Co-Documentation Agents and JPMorgan Chase Bank,
as Administrative Agent, dated as of March 23, 1995, as amended and restated
through September 25, 2003, and (ii) the other financing documents (as
identified therein) and (b) (i) the Credit Agreement dated as of August 15,
2002, among Gateway, as borrower, JPMorgan Chase Bank, individually and as
Administrative Agent, Wachovia Bank, National Association and Bank One, N.A., as
Syndication Agents, Fortis Capital Corp. and BNP Paribas, as Documentation
Agents, and the lenders party thereto, and (ii) the other financing documents
(as identified therein); in the case of (a)(i) and (ii) and (b)(i) and (ii)
above, as amended, restated, supplemented or otherwise modified through the date
hereof.
"Partnership Indemnitees" means, collectively, the Partnership,
GulfTerra Holding, EP and each of their respective Affiliates and each of their
respective officers (or Persons performing similar functions), directors (or
Persons performing similar functions), employees, agents, and representatives.
"Partnership Indentures" means, collectively, (i) the Indenture dated
as of May 27, 1999, among the Partnership, GTM Finance, the Subsidiary
Guarantors named therein and Chase Bank of Texas, N.A., as Trustee, (ii) the
Indenture dated as of May 17, 2001, among the Partnership, GTM Finance, the
Subsidiary Guarantors named therein and The Chase Manhattan Bank, as Trustee;
(iii) the Indenture dated as of November 27, 2002, among the Partnership, GTM
Finance, the Subsidiary Guarantors named therein and JPMorgan Chase Bank, as
Trustee; (iv) the Indenture dated as of March 24, 2003, among the Partnership,
GTM Finance, the Subsidiary Guarantors named therein and JPMorgan Chase Bank, as
Trustee; and (v) the Indenture dated as of July 3, 2003, among the Partnership,
GTM Finance, the Subsidiary Guarantors named therein and Xxxxx Fargo Bank,
National Association, as Trustee; in the case of (i) through (v) above, as
amended, restated, supplemented or otherwise modified through the date hereof.
"Partnership Plans" means any bonus, pension, stock option, stock
purchase, benefit, welfare, profit-sharing, retirement, disability, vacation,
severance, hospitalization, insurance, incentive, deferred compensation and
other similar fringe or employee benefit plans, funds, programs or arrangements
of the Partnership.
"Partnership Subsidiaries" means all of the Subsidiaries of the
Partnership.
"Party" and "Parties" have the meanings set forth in the preface.
"Permitted Encumbrances" means any of the following: (i) any liens for
Taxes and assessments not yet delinquent or, if delinquent, that are being
contested in good faith in the Ordinary Course of Business; (ii) any obligations
or duties reserved to or vested in any
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municipality or other Governmental Authority to regulate any Partnership Asset
in any manner including all applicable Laws; (iii) mechanic's, materialmen's,
and similar liens; (iv) purchase money liens and liens securing rental payments
under capital lease arrangements; or (v) any liens or other Encumbrances created
pursuant to the Transaction Agreements or the Organizational Documents of the
Partnership or any Partnership Subsidiary.
"Permits" has the meaning given such term in Section 4(i).
"Person" means an individual or entity, including any partnership,
corporation, association, joint stock company, trust, joint venture, limited
liability company, unincorporated organization, or Governmental Authority (or
any department, agency or political subdivision thereof).
"Purchase Price" means $112 million.
"Reduction Agreement" means the Incentive Distribution Rights Reduction
Agreement in substantially the form of Exhibit B.
"Release" means any depositing, spilling, leaking, pumping, pouring,
placing, emitting, discarding, abandoning, emptying, discharging, migrating,
injecting, escaping, leaching, dumping, or disposing.
"SEC" means the Securities and Exchange Commission.
"SEC Reports" means all filings by the Partnership with the SEC that
are required or permitted under the Securities Act or the Securities Exchange
Act.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"Series A Common Units" has the meaning given such term in the
Partnership Agreement.
"Series B Preference Units" has the meaning given such term in the
Partnership Agreement.
"Subject Units" has the meaning set forth in the Recitals.
"Subsidiary" means, with respect to any relevant Person, (a) a
corporation of which more than 50% of the Voting Stock is owned, directly or
indirectly, at the date of determination, by such relevant Person, by one or
more Subsidiaries of such relevant Person or a combination thereof, (b) a
partnership (whether general or limited) in which such relevant Person, one or
more Subsidiaries of such relevant Person or a combination thereof is, at the
date of determination, a general or limited partner of such partnership, but
only if more than 50% of the partnership interests of such partnership
(considering all of the partnership interests of the partnership as a single
class) is owned, directly or indirectly, at the date of determination, by
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such relevant Person, by one or more Subsidiaries of such relevant Person, or a
combination thereof, or (c) any other Person (other than a corporation or a
partnership) in which such relevant Person, one or more Subsidiaries of such
relevant Person, or a combination thereof, directly or indirectly, at the date
of determination, has (i) at least a majority ownership interest or (ii) the
power to elect or direct the election of a majority of the directors or other
governing body of such other Person.
"Tax" or "Taxes" means any federal, state, local, or foreign income,
gross receipts, license, payroll, employment, excise, severance, stamp,
occupation, premium, windfall profits, environmental (including taxes under Code
Section 59A), custom duties, capital stock, franchise, profits, withholding,
social security (or similar excises), unemployment, disability, ad valorem, real
property, personal property, sales, use, transfer, registration, value added,
alternative or add-on minimum, estimated, or other tax, assessment, fee or other
governmental charge of any kind whatsoever, including any interest, penalty or
addition thereto, whether disputed or not.
"Tax Return" means any return, declaration, report, claim for refund,
or information return or statement relating to Taxes required to be filed with
any Governmental Authority, including any schedule or attachment thereto, and
including any amendment thereof.
"Third Party Claim" has the meaning set forth in Section 5(d).
"Transaction Agreements" means this Agreement, the LLC Agreement, the
LLC Purchase Agreement, the Transfer Application, the Parent Guaranty, the
Exchange Agreement, the Reduction Agreement and all other agreements, documents,
certificates or instruments executed and delivered in connection with the
transactions contemplated herein.
"Transfer Application" means a Transfer Application admitting the
Investor into the Partnership as an Additional Limited Partner (as such term is
defined in the Partnership Agreement) in a form required by the Partnership
Agreement.
"Voting Stock" means, with respect to any Person, Equity Interests in
such Person, the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or Persons with
management authority performing similar functions) of such Person.
2. The Transactions.
(a) Sale of Subject Units. Subject to the terms and conditions
of this Agreement, the Partnership agrees to issue and sell the Subject Units to
the Investor, and the Investor agrees to purchase the Subject Units from the
Partnership.
(b) Consideration. In consideration for the sale of the
Subject Units, the Investor agrees to pay the Partnership the Purchase Price in
cash payable by wire transfer to the Partnership in immediately available
federal funds.
(c) The Closing. The closing of the transactions contemplated
by this Agreement (the "Closing") took place at the offices of the Partnership
on October 2, 2003 (the "Closing Date").
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(d) Deliveries at the Closing. At the Closing,
(i) GulfTerra Holding and the Investor executed and
delivered the LLC Purchase Agreement;
(ii) the General Partner, the Investor and the
Partnership executed and delivered the Exchange Agreement;
(iii) the Parties executed and delivered, or caused
to be executed and delivered, to each other the other
Transaction Agreements;
(iv) Akin Gump Xxxxxxx Xxxxx & Xxxx LLP delivered to
the Investor an opinion of counsel in a form reasonably
acceptable to the Investor;
(v) the Partnership issued the Subject Units to the
Investor and the Investor was admitted to the Partnership as
an additional limited partner; and
(vi) the Investor delivered to the Partnership the
Purchase Price.
3. Representations and Warranties Concerning the Investor. The Investor
hereby represents and warrants to the Partnership that the following statements
are true and correct:
(a) Organization of the Investor. The Investor (x) is a
limited partnership duly organized, validly existing, and in good standing under
the law of the State of
New York; (y) is qualified as a foreign limited
partnership in each jurisdiction which requires qualification, except where the
lack of such qualification has not had, or could reasonably be expected not to
have, a material adverse effect on the ability of the Investor to consummate the
transactions contemplated by the Transaction Agreements to which it is a party;
and (z) has all requisite power and authority to carry on its business as it is
now conducted.
(b) Authorization of Transaction. The Investor has full
limited partnership power and authority to execute and deliver each Transaction
Agreement to which it is a party and to perform its obligations thereunder. Each
Transaction Agreement to which the Investor is a party constitutes the valid and
legally binding obligation of the Investor, enforceable against it in accordance
with its terms and conditions, subject, however, to the effects of bankruptcy,
insolvency, reorganization, moratorium or similar Laws affecting creditors'
rights generally, and to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at Law). Except
as set forth on Schedule 3(b), the Investor need not give any notice to, make
any filing with, or obtain any authorization, consent, or approval of any
Governmental Authority in order to consummate the transactions contemplated by
this Agreement or any other Transaction Agreements to which it is a party.
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(c) Noncontravention. Except as specified in Schedule 3(b),
neither the execution and delivery of any of the Transaction Agreements to which
the Investor is a party, nor the consummation of any of the transactions
contemplated thereby, shall (A) violate any Law to which the Investor is subject
or any provision of its Organizational Documents or (B) conflict with, result in
a breach of, constitute a default under, result in the acceleration of, create
in any Person the right to accelerate, terminate, modify, or cancel, or require
any notice, approval or consent under any agreement, contract, lease, license,
instrument, or other arrangement (x) to which the Investor is a party or by
which it is bound or (y) to which any of its assets is subject (or result in the
imposition of any Encumbrance upon any of the Investor's assets), except for
such violations, conflicts, breaches, defaults, accelerations, terminations,
modifications, cancellations, failures to give notice, Encumbrances or other
occurrences that would not have, or would reasonably be expected not to have, a
material adverse effect on the ability of the Investor to consummate the
transactions contemplated by the Transaction Agreements to which it is a party.
(d) Brokers' Fees. The Investor does not have any liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which the
Partnership is, or could become, liable or obligated.
(e) Independent Investigation. The Investor has conducted its
own independent investigation, review and analysis of the business, operations,
assets, liabilities, results of operations, financial condition and prospects of
each of the Partnership and the Partnership Subsidiaries, both individually and
on a consolidated basis, which investigation, review and analysis was done by
the Investor and its Affiliates and, to the extent the Investor deemed necessary
or appropriate, by the Investor's representatives.
(f) Investment Intent; Investment Experience; Restricted
Securities. In acquiring the Subject Units, the Investor is not offering or
selling, and shall not offer or sell the Subject Units, for the Partnership in
connection with any distribution of any of the Subject Units, and the Investor
does not have a participation and shall not participate in any such undertaking
or in any underwriting of such an undertaking except in compliance with
applicable federal and state securities laws. The Investor acknowledges that it
is able to fend for itself, can bear the economic risk of its investment in the
Subject Units, and has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of an investment
in all of the Subject Units. The Investor is an "accredited investor" as such
term is defined in Regulation D under the Securities Act. The Investor
understands that none of the Subject Units shall have been registered pursuant
to the Securities Act or any applicable state securities laws, that all of the
Subject Units shall be characterized as "restricted securities" under federal
securities laws and that under such laws and applicable regulations none of the
Subject Units can be sold or otherwise disposed of without registration under
the Securities Act or an exemption therefrom.
(g) Investor Status. The Investor is not an employee benefit
plan or other organization exempt from taxation pursuant to Section 501(a) of
the Code, a non-resident alien, a foreign corporation or other foreign Person,
or a regulated investment company within the meaning of Section 851 of the Code.
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4. Representations and Warranties Concerning the Partnership. The
Partnership hereby represents and warrants to the Investor that the following
statements are true and correct:
(a) Organization and Qualification. The Partnership (x) is a
limited partnership duly organized, validly existing, and in good standing under
the Delaware LP Act; (y) is qualified as a foreign partnership under the Laws of
the state of Texas and in each other jurisdiction which requires qualification,
except where the lack of such qualification has not had, or could reasonably be
expected not to have, (I) a Material Adverse Effect or (II) a material adverse
effect on the ability of the Partnership to consummate the transactions
contemplated by the Transaction Agreements to which it is a party; and (z) has
all requisite power and authority to carry on its business as it is now
conducted.
(b) Authorization of Transaction. The Partnership has full
partnership power and authority to execute and deliver each Transaction
Agreement to which it is a party and to perform its obligations thereunder. Each
Transaction Agreement to which the Partnership is a party constitutes the valid
and legally binding obligation of the Partnership, enforceable against it in
accordance with its terms and conditions, subject, however, to the effects of
bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting
creditors' rights generally, and to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at Law).
Except as set forth on Schedule 4(b) or as required by the Securities Act, the
Securities Exchange Act, the limited partnership, securities or blue sky laws or
regulations of the various states and the rules of the
New York Stock Exchange,
the Partnership need not give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any Governmental Authority in order to
consummate the transactions contemplated by this Agreement or any other
Transaction Agreement to which it is a party, other than filings, registrations,
authorizations, consents or approvals the failure to make or obtain which has
not had, or could reasonably be expected not to have, (i) a Material Adverse
Effect or (ii) a material adverse effect on the ability of the Partnership to
consummate the transactions contemplated by the Transaction Agreements to which
it is a party.
(c) Noncontravention. Except as specified in Schedule 4(b),
neither the execution and delivery of any of the Transaction Agreements to which
the Partnership is a party, nor the consummation of any of the transactions
contemplated thereby, shall (i) violate any Law to which the Partnership or any
of the Partnership Subsidiaries is subject or any provisions of their respective
Organizational Documents; or (ii) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any Person
the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other arrangement
(x) to which the Partnership or any Partnership Subsidiary is a party or by
which the Partnership or any Partnership Subsidiary is bound, or (y) to which
any Partnership Assets or any assets of any Partnership Subsidiary are subject
(or result in the imposition of any Encumbrance upon any of the Partnership
Assets or any of the assets of any Partnership Subsidiary), except for such
violations, conflicts, breaches, defaults, accelerations, terminations,
modifications, cancellations, failures to give notice, Encumbrances or other
occurrences that would not have, or would reasonably be expected not to have (i)
a Material Adverse Effect or (ii) a material adverse effect on the ability of
the Partnership to consummate the transactions contemplated by the Transactions
Agreements.
10
(d) Capitalization. The Partnership has issued and outstanding
(i) a one percent general partner interest, (ii) 50,533,649 of its Series A
Common Units, (iii) 123,865 of its Series B Preference Units, (iv) 10,937,500 of
its Series C Units and (v) 80 of its Series F convertible units, each of which
are validly issued and outstanding, fully paid and (except as set forth in the
Delaware LP Act for limited partnership interests) nonassessable. Except with
respect to the Partnership's Series F convertible units, the Partnership Plans,
the Compensation Plan, the Transaction Agreements or as otherwise provided in
Schedule 4(d), there are no Commitments with respect to any Equity Interest of
the Partnership.
(e) Subsidiaries. Each Partnership Subsidiary is a
corporation, partnership, limited liability company or other entity duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization (except where the failure to be duly organized,
validly existing and in good standing has not, or could reasonably be expected
not to have, a Material Adverse Effect) and has all requisite entity power and
authority to carry on its business as it is now being conducted. Each
Partnership Subsidiary is duly qualified to do business, and is in good
standing, in each jurisdiction where the character of its properties owned or
held under lease or the nature of its activities makes such qualification
necessary, except where the failure to be so qualified, when taken together with
all such failures, has not had, or could reasonably be expected not to have, a
Material Adverse Effect. All the outstanding Equity Interests of each
Partnership Subsidiary are validly issued, fully paid and (except as set forth
in the Delaware LP Act, the Delaware GP Act, the DGCL and the Delaware LLC Act
with respect to limited partnership interests, general partnership interests,
stock and limited liability company interests) nonassessable. The Partnership
owns its interest in each Subsidiary, free and clear of any Encumbrances other
than Permitted Encumbrances and Debt Encumbrances.
(f) Adequacy of Assets. Except as set forth on Schedule 4(f),
the tangible Partnership Assets are adequate (normal wear and tear excepted) to
permit the Partnership and the Partnership Subsidiaries to conduct their
respective businesses in substantially the same manner as conducted immediately
prior to the date of this Agreement, except for such businesses with respect to
which the failure to so conduct does not have, or could reasonably be expected
not to have, a Material Adverse Effect.
11
(g) SEC Reports. Since December 31, 2000, (i) the Partnership
has timely made all filings required to be made by the Securities Act and the
Securities Exchange Act, (ii) all filings by the Partnership with the SEC, at
the time filed (in the case of documents filed pursuant to the Securities
Exchange Act) or when declared effective by the SEC (in the case of registration
statements filed under the Securities Act) complied in all material respects
with the applicable requirements of the Securities Act and the Securities
Exchange Act and the rules and regulations of the SEC thereunder, (iii) no such
filing, at the time described above, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein in order to make the statements contained therein, in light of the
circumstances under which they were made, not misleading, and (iv) all financial
statements contained or incorporated by reference therein, complied as to form
when filed in all material respects with the rules and regulations of the SEC
with respect thereto, were prepared in accordance with GAAP applied on a
consistent basis throughout the periods involved (except for pro forma financial
statements and as may be indicated therein in the notes thereto and subject, in
the case of quarterly financial statements, to normal and recurring year-end
adjustments), and fairly present in all material respects the financial
condition and results of operations of the Partnership and the Partnership
Subsidiaries at and as of the respective dates thereof and the consolidated
results of its operations and changes in cash flows for the periods indicated
(subject, in the case of unaudited statements, to normal year-end audit
adjustments). Since December 31, 2002, (i) there has not occurred any event that
(singularly or together with other such events) had or could reasonably be
expected to have a Material Adverse Effect or (ii) except for liabilities and
obligations as described in the SEC Reports or as incurred in the Ordinary
Course of Business, none of the Partnership or any of the Partnership
Subsidiaries have incurred any liabilities or obligations (whether direct,
indirect, accrued or contingent), individually, or in the aggregate, that would
be required to be reflected or reserved against on a balance sheet prepared in
accordance with GAAP for such balance sheet not to be materially misleading
(without giving effect to the materiality standards in GAAP).
(h) Litigation. Except as disclosed in the SEC Reports or in
Schedule 4(h), there is neither (i) any suit, action or proceeding to which the
Partnership or any Partnership Subsidiary is a party pending or, to the
Partnership's Knowledge, threatened against the Partnership or any of the
Partnership Subsidiaries nor (ii) any judgment, decree, injunction, rule or
order of any Governmental Authority or arbitrator outstanding against the
Partnership or any Partnership Subsidiary, except in the case of (i) and (ii)
above those which, alone or in the aggregate, have not had, or could reasonably
be expected not to have, a Material Adverse Effect.
(i) Compliance with Applicable Laws.
(i) The Partnership and each of the Partnership
Subsidiaries holds all permits, licenses, variances,
exemptions, orders, approvals and similar authorizations of
all Governmental Authorities necessary or appropriate for the
lawful operation of its respective business, except for such
permits, licenses, variances, exemptions, orders, approvals
and similar authorizations the failure of which to hold, alone
or in the aggregate, have not had, or could reasonably be
expected not to have a Material Adverse Effect (the
"Permits"). Except as disclosed in the SEC Reports or on
Schedule 4(i), (A) the Partnership and each of the Partnership
Subsidiaries is in compliance in all material respects with
the
12
terms of the Permits, and (B) neither the Partnership nor any
Partnership Subsidiary has received any written notice from
any Person that the businesses of the Partnership and the
Partnership Subsidiaries are being conducted in violation of
any law, ordinance or regulation of any Governmental
Authority, except for possible violations which alone or in
the aggregate have not had, or could reasonably be expected
not to have, a Material Adverse Effect.
(ii) None of the Partnership or any of the
Partnership Subsidiaries is a "public utility company,"
"holding company" or "subsidiary" or "affiliate" of a holding
company as such terms are defined in the Public Utility
Holding Company Act of 1935, as amended.
(iii) None of the Partnership or any of the
Partnership Subsidiaries is an "investment company" or a
company "controlled by" an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(j) Taxes. Except as otherwise disclosed on Schedule 4(j) or
for matters that do not have, or could reasonably be expected not to have, a
Material Adverse Effect:
(i) Each of the Partnership and the Partnership
Subsidiaries has filed (or has had timely filed on its behalf)
all Tax Returns required to be filed by any of them and has
paid (or has had paid on its behalf), or has set up an
adequate reserve for the payment of, all Taxes required to be
paid by any of them. The information contained in such Tax
Returns is true, complete and accurate in all respects. No
such Tax Return is now under audit or examination by any
Governmental Authority. Neither the Partnership nor any
Partnership Subsidiary has engaged in a transaction that would
be treated as a "reportable transaction" within the meaning of
Treasury Regulation Section 1.6011-4 or any predecessor
regulation. No claim has ever been made by an authority in a
jurisdiction where any of the Partnership and the Partnership
Subsidiaries does not file Tax Returns that it is or may be
subject to Tax in that jurisdiction. Neither the Partnership
nor any Partnership Subsidiary is delinquent in the payment of
any Tax. No deficiencies for any Taxes have been proposed,
asserted or assessed against the Partnership or any
Partnership Subsidiary that have not been finally settled or
paid in full, and no requests for waivers of the time to
assess any such Tax are pending. There are no liens for Taxes
upon the assets of the Partnership or the Partnership
Subsidiaries, except for liens for current Taxes not yet due.
Each of the Partnership and the Partnership Subsidiaries has
withheld and paid all Taxes required to be withheld and paid
and has complied with all information and backup withholding
requirements, including maintaining all necessary records in
connection with amounts paid or owing to any employee,
creditor, independent contractor or other third party.
(ii) The Partnership and the Partnership Subsidiaries
do not have, in total, liabilities of more than $5.8 million
for the Taxes of any Person other than the Partnership and the
Partnership Subsidiaries (A) as a transferee or successor,
13
(B) by contract, (C) pursuant to Treasury Regulation Section
1.1502-6 (or any similar provision of state, local or foreign
law), or (D) otherwise.
(k) Contracts and Commitments. Schedule 4(k) includes a list
of each contract and agreement (collectively, the "Partnership Contracts") to
which the Partnership or any Partnership Subsidiary is subject that was required
to be included as an exhibit to a Partnership Annual Report on Form 10-K for the
year ended December 31, 2002 and Partnership Quarterly Reports on Form 10-Q for
quarterly periods ending in 2003 pursuant to the rules and regulations of the
SEC, and, except as set forth in the SEC Reports or on Schedule 4(k)(i), each
Partnership Contract is in full force and effect, except where the failure to be
in full force and effect has not had, or could reasonably be expected not to
have a Material Adverse Effect. Except as set forth in the SEC Reports or on
Schedule 4(k)(ii), the Partnership and the Partnership Subsidiaries have
performed all material obligations required to be performed by it to date under
the Partnership Contracts, and none of them is in default under any material
obligation of any such contract, except where such default has not had, or could
reasonably be expected not to have a Material Adverse Effect, and, to the
Partnership's Knowledge, no other party to any Partnership Contract is in
default thereunder.
(l) Environmental Matters. Except as relates to those matters
identified in the SEC Reports or on Schedule 4(l) and for any violations of
these representations that, individually or in the aggregate, have not had, or
could reasonably be expected not to have, a Material Adverse Effect:
(i) The operations, real properties, and assets of
the Partnership and each of the Partnership Subsidiaries and
their respective predecessors have been and currently are in
compliance with all Environmental Laws;
(ii) All permits, registrations, licenses, notices,
reportings, consents, exemptions, authorizations, and similar
approvals required under Environmental Laws for conducting the
operations of the Partnership and each of the Partnership
Subsidiaries and their respective predecessors as they have
been and are currently being conducted have been obtained and
all such currently held permits, registrations, licenses,
notices, reportings, consents, exemptions, authorizations, and
similar approvals are in full force and effect with neither
the Partnership nor any of the Partnership Subsidiaries having
received any notice that any Governmental Authority intends to
cancel, terminate, or not renew any such current permits,
registrations, licenses, notices, reportings, consents,
exemptions, authorizations, and similar approvals;
(iii) None of the operations, real properties, or
assets of the Partnership or any of the Partnership
Subsidiaries are subject to any existing, pending or
threatened claims, actions, suits, investigations, inquiries
or proceedings under Environmental Laws, and neither the
Partnership nor any of the Partnership Subsidiaries has
received any written notice of alleged violations under
Environmental Laws with respect to such operations, real
properties, or assets;
14
(iv) There has been no Releases or, to the
Partnership's Knowledge, threatened Releases of Hazardous
Materials on, under, from, or about the Partnership's or any
of the Partnership Subsidiaries' respective real properties or
assets, and there are no investigations, remediations, or
monitorings of Hazardous Materials required under
Environmental Law at any on-site or, to the Partnership's
Knowledge, offsite locations resulting from or arising out of
the Partnership's or any of the Partnership Subsidiaries'
respective operations;
(v) None of the real property included in the
operations or assets of the Partnership or any of the
Partnership Subsidiaries is on the National Priorities List
("NPL") or Comprehensive Environmental Response, Compensation,
and Liability Information System ("CERCLIS") list;
(vi) There has not been exposure of persons to a
Release or, to the Partnership's Knowledge, threatened Release
of Hazardous Materials in connection with the operations of
the Partnership or any of the Partnership Subsidiaries that
could reasonably be expected to lead to tort claims by third
parties for damages or compensation; and
(vii) There are no underground storage tanks that are
currently or were formerly owned or operated by the
Partnership or any of the Partnership Subsidiaries or their
predecessors on any real properties included in the current
assets or operations of the Partnership or any of the
Partnership Subsidiaries.
(m) Employees; Employee Plans.
(i) Neither the Partnership nor any of its ERISA
Affiliates currently has or, during the past three years, has
had any employees.
(ii) Neither the Partnership nor any of its ERISA
Affiliates sponsors, maintains or contributes to or has an
obligation (secondary, contingent or otherwise) to contribute
to, or has sponsored, maintained or contributed to or has had
an obligation to contribute to, any "employee benefit plan,"
as defined under Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA").
(iii) As of the date hereof, neither the Partnership
nor any of its ERISA Affiliates has any direct or indirect
liability, including secondary liability, arising under, based
upon or related to Title IV of ERISA with respect to any plan,
including any liability under Section 302 of ERISA or Section
412 of the Code and there is no event that has occurred that,
with notice, lapse of time or otherwise, the Partnership
reasonably expects to result in such liability.
(n) Fairness Opinion; Special Committee Approval.
(i) The Partnership has received the Fairness Opinion
and provided a true and correct copy of the Fairness Opinion
to the Investor.
15
(ii) The transactions contemplated by the Exchange
Agreement and the transactions related to the redemption by
the Partnership of its Series B Preference Units from an
Affiliate of EP have been approved by at least a majority of
the directors of the Audits and Conflicts Committee of the
General Partner.
(o) Intellectual Property. Each of the Partnership and the
Partnership Subsidiaries own, or have obtained valid and enforceable licenses
for, or other rights to use, the inventions, patents, trademarks, tradenames,
copyrights, trade secrets and other proprietary information (collectively,
"Intellectual Property") necessary for the conduct of their respective
businesses, except where the failure to own, license or have such rights has not
had, or could reasonably be expected not to have, a Material Adverse Effect.
None of the Partnership or any Partnership Subsidiary has Knowledge of any
infringement of or conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of any of
the Partnership or the Partnership Subsidiaries, except for any that has not
had, or could reasonably be expected not to have, a Material Adverse Effect.
(p) No Default. None of the Partnership, or any of the
Partnership Subsidiaries is in violation or default of (i) any Organizational
Document, or (ii) the terms of any indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or any other agreement, obligation,
condition, covenant or instrument to which it is a party or bound or to which
its property is subject, in the case of (i) and (ii), other than breaches or
violations that have not had, or could reasonably be expected not to have, a
Material Adverse Effect.
(q) Independent Accountants. PricewaterhouseCoopers, LLP, who
have certified certain financial statements of each of the Partnership and the
Partnership Subsidiaries contained in the SEC Reports are independent public
accountants as required by the Securities Act and the applicable published rules
and regulations thereunder.
(r) Broker's Fees. The Partnership has no liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which the
Investor could become, liable or obligated.
(s) GP Capital Account. The General Partner has a balance in
its capital account in the Partnership equal to 1.00% of the total positive
capital account balances of all of the partners in the Partnership.
(t) NYSE Listing. The
New York Stock Exchange has approved the
listing of the Subject Units on the
New York Stock Exchange.
16
5. Remedies for Breaches of this Agreement.
(a) Survival of Representations and Warranties. (i) All of the
representations and warranties of the Partnership contained in Sections 4(a),
4(b) and 4(r) shall survive the Closing hereunder until the earlier of (A) the
date that is 5 years after the Closing Date and (B) the later of (x) 24 months
after the Closing Date and (y) the date on which the Exchange Period ends, (ii)
all of the representations and warranties contained in Section 4(j) shall
survive until 30 days after the expiration of the applicable statute of
limitations; (iii) all of the representations and warranties contained in
Section 4(l) shall survive the Closing for a period of 30 months after the
Closing Date; and (iv) the representations and warranties of the Partnership
contained in Section 4 (other than Sections 4(a), 4(b), 4(j), 4(l) and 4(r))
shall survive the Closing for a period of 18 months after the Closing Date. The
representations and warranties of the Investor contained in Section 3 shall
survive the Closing for a period of 18 months after the Closing Date. The
covenants and obligations contained in Section 2 and all other covenants and
obligations contained in this Agreement shall survive the Closing without
limitation.
(b) Indemnification Provisions for Benefit of the Investor.
(i) Representations and Warranties. In the event: (x)
any of the representations or warranties of the Partnership is
breached; (y) there is an applicable survival period pursuant
to Section 5(a); and (z) the Investor makes a written claim
for indemnification against the Partnership pursuant to
Section 7(e) within such survival period, then the Partnership
agrees to release, indemnify and hold harmless the Investor
Indemnitees from and against any Adverse Consequences suffered
by the Investor Indemnitees by reason of all such breaches;
provided, that the Partnership shall not have any obligation
to indemnify any Investor Indemnitees from and against any
such Adverse Consequences to the extent the Adverse
Consequences the Investor Indemnitees, in the aggregate, have
suffered by reason of all such breaches exceeds an aggregate
ceiling amount equal to 100% of the Purchase Price (after
which point the Partnership shall have no obligation to
indemnify the Investor Indemnitees from and against further
such Adverse Consequences). Any due diligence or other
investigation by or on behalf of the Investor shall not affect
its reliance or right to rely on any representation or
warranty made by the Partnership in this Agreement.
(ii) Covenants and Obligations. In the event: (x) any
of the covenants or obligations of the Partnership in Section
2 or any other covenants or obligations of the Partnership in
this Agreement are breached; and (y) the Investor makes a
written claim for indemnification against the Partnership
pursuant to Section 7(e), then the Partnership agrees to
release, indemnify and hold harmless the Investor Indemnitees
from and against any Adverse Consequences suffered by the
Investor Indemnitees.
17
(c) Indemnification Provisions for Benefit of the Partnership.
(i) Representations and Warranties. In the event: (x)
any of the representations or warranties of the Investor is
breached; (y) there is an applicable survival period pursuant
to Section 5(a); and (z) the Partnership makes a written claim
for indemnification against the Investor pursuant to Section
7(e) within such survival period, then the Investor agrees to
release, indemnify and hold harmless the Partnership
Indemnitees from and against any Adverse Consequences suffered
by such Partnership Indemnitees by reason of all such
breaches.
(ii) Covenants and Obligations. In the event: (x) any
of the covenants or obligations of the Investor in Section 2
or any other covenants or obligations of the Investor in this
Agreement are breached and (y) the Partnership makes a written
claim for indemnification against the Investor pursuant to
Section 7(e) within such survival period, then the Investor
agrees to release, indemnify and hold harmless the Partnership
Indemnitees from and against any Adverse Consequences suffered
by the Partnership Indemnitees.
(d) Matters Involving Third Parties.
(i) If any third party shall notify any Party (the
"Indemnified Party") with respect to any matter (a "Third
Party Claim") that may give rise to a claim for
indemnification against any other Party (the "Indemnifying
Party") under this Section 5, then the Indemnified Party shall
promptly notify the Indemnifying Party thereof in writing.
Failure to give prompt notice of a Third Party Claim hereunder
shall not affect the Indemnifying Party's obligations, except
to the extent that the Indemnifying Party is materially
prejudiced by such failure to give prompt notice.
(ii) The Indemnifying Party shall have the right to
assume and thereafter conduct the defense of the Third Party
Claim with counsel of its choice reasonably satisfactory to
the Indemnified Party; provided, however, that the Indemnified
Party shall have the right to participate in any matter
through counsel of its own choosing at its own expense;
provided further, however, that the Indemnifying Party shall
pay the fees and expenses of separate counsel for the
Indemnified Party if (A) the Indemnifying Party has agreed to
pay such fees and expenses or (B) the named parties to any
such action or proceeding (including any impleaded parties)
include both the Indemnified Party and the Indemnifying Party,
and such Indemnified Party shall have been advised by counsel
that the representation of both parties would be inappropriate
due to actual or potential differing interests between them.
(iii) The Indemnifying Party shall not consent to the
entry of any judgment or enter into any settlement with
respect to the Third Party Claim without the prior written
consent of the Indemnified Party (not to be withheld
unreasonably) unless the judgment or proposed settlement
involves only the
18
payment of money damages and does not impose an injunction or
other equitable relief upon the Indemnified Party.
(iv) Unless and until the Indemnifying Party assumes
the defense of the Third Party Claim as provided in Section
5(d)(ii), the Indemnified Party may defend against the Third
Party Claim in any manner it reasonably may deem appropriate.
(v) In no event shall the Indemnified Party consent
to the entry of any judgment or enter into any settlement with
respect to the Third Party Claim without the prior written
consent of the Indemnifying Party which consent shall not be
withheld or delayed unreasonably.
(e) Determination of Amount of Adverse Consequences. The
Adverse Consequences giving rise to any indemnification obligation hereunder
shall be limited to the actual loss suffered by the Indemnified Party (i.e.
reduced by any insurance proceeds or other payment or recoupment received,
realized or retained by the Indemnified Party as a result of the events giving
rise to the claim for indemnification net of any expenses related to the receipt
of such proceeds, payment or recoupment, including retrospective premium
adjustments, if any), but not reduced by any reduction in Taxes of the
Indemnified Party (or the affiliated group of which it is a member) occasioned
by such loss or damage. The amount of the actual loss and the amount of the
indemnity payment shall be computed by taking into account the timing of the
loss or payment, as applicable, using a 10% interest or discount rate, as
appropriate. Upon the request of the Indemnifying Party, the Indemnified Party
shall provide the Indemnifying Party with information sufficient to allow the
Indemnifying Party to calculate the amount of the indemnity payment in
accordance with this Section 5(e).
(f) Compliance with Express Negligence Rule. ALL RELEASES,
DISCLAIMERS, LIMITATIONS ON LIABILITY AND INDEMNITIES IN THIS AGREEMENT,
INCLUDING THOSE IN THIS SECTION 5, SHALL APPLY EVEN IN THE EVENT OF THE SOLE,
JOINT AND/OR CONCURRENT NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT OF THE PARTY
WHOSE LIABILITY IS RELEASED, DISCLAIMED, LIMITED OR INDEMNIFIED.
(g) Tax Treatment of Indemnity Payments. All indemnification
payments made under this Agreement, including any payment made under Section 5,
shall be made in cash and treated as purchase price adjustments for Tax
purposes.
19
6. [Intentionally Omitted].
7. Miscellaneous.
(a) Confidentiality, Press Releases and Public Announcements.
Prior to Closing, the Parties shall keep all information regarding the terms and
conditions of the Transaction Agreements and the transactions related thereto
secret and confidential, except (i) for any disclosures made by the Parties and
their respective Affiliates and representatives, (ii) pursuant to a mutual
agreement between the Parties, or (iii) if required by Law, including Laws
promulgated by the SEC, or applicable stock exchange rule, including rules of
the
New York Stock Exchange. Notwithstanding anything to the contrary in this
Agreement (or any other agreement executed in connection therewith), the Parties
(and each employee, representative or other agent of the Parties) may disclose
to any and all persons, without limitation of any kind, the U.S. federal income
Tax treatment and Tax structure of the transactions contemplated herein and all
materials of any kind (including opinions and other Tax analyses) that are
provided to the Parties relating to such Tax treatment and Tax structure. For
this purpose, "Tax structure" is limited to facts relevant to the U.S. federal
income Tax treatment of such transactions and does not include information
relating to the identity of the Parties, its Affiliates, agents or advisors.
Moreover, notwithstanding any other provision of this Agreement (or any other
agreement executed in connection therewith), there shall be no limitation on a
Party's ability to consult any Tax adviser, whether or not independent from such
Party or its Affiliates, regarding the Tax treatment or Tax structure of the
transactions contemplated by this Agreement.
(b) No Third Party Beneficiaries. This Agreement shall not
confer any rights or remedies upon any Person other than the Parties and their
respective successors and permitted assigns.
(c) Succession and Assignment. This Agreement shall be binding
upon and inure to the benefit of the Parties named herein and their respective
successors and assigns. Except as expressly provided in the following sentence,
neither Party may assign, transfer or otherwise alienate either this Agreement
or any of its rights, interests or obligations hereunder without the prior
written approval of the other Party. Notwithstanding the immediately preceding
sentence, either Party may assign all or any portion of its rights or interests
(but not its obligations) under this Agreement without the consent of the other
Party (i) in connection with the granting by such Party of a lien in a bona fide
lending transaction, (ii) in any foreclosure or similar proceeding or (iii) as
part of a settlement in any foreclosure or similar proceeding.
(d) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original but which together shall
constitute one and the same instrument.
(e) Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given two business
days after it is sent by registered or certified mail, return receipt requested,
postage prepaid, and addressed to the intended recipient as set forth below:
20
If to the Partnership: GulfTerra Energy Partners, L.P.
Attn: President
Four Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
(000) 000-0000
With a copy to: Akin Gump Xxxxxxx Xxxxx & Xxxx, LLP
000 Xxxxxxxxx Xxxxxx - Xxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
(000) 000-0000
Attn: J. Xxxxxxx Xxxxxxxx
If to the Investor: Xxxxxxx Xxxxx & Co.
1 Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Raanan Agus
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to: General Counsel
Fax: (000) 000-000-0000
With a copy to: Xxxxxx & Xxxxxx L.L.P.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000 0000
Attention: Xxxx Xxxxxxxxxxx
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the addresses set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, ordinary mail, or electronic mail), but no such notice, request,
demand, claim, or other communication shall be deemed to have been duly given
unless and until it actually is received by the intended recipient. Any Party
may change the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other Party notice in
the manner herein set forth.
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF
NEW YORK WITHOUT
GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE
STATE OF
NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF
THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF
NEW YORK.
21
(g) Remedy and Waiver. From and after the Closing, the sole
remedy of a Party in connection with (i) a breach or inaccuracy of the
representations, or breach of warranties, in this Agreement or any certificate
or other document delivered pursuant to this Agreement at Closing, or (ii) any
failure by a Party to perform or observe any term, provision, covenant or
agreement on the part of such Party to be performed or observed under this
Agreement, shall, in each case, be the rights of such Party under Section 5
hereof to indemnification and to being released and held harmless, and, as a
result, each Party hereby waives any claim or cause of action pursuant to common
or statutory law or otherwise (except for fraud) against the other Party arising
from any breach or failure described in (i) or (ii) above. Except for the
representations, warranties and remedies expressly provided for by this
Agreement, the Investor agrees that the Partnership and its Affiliates and
representatives have not made any representation or warranty, and the
Partnership is relying on no other representation, warranty or remedy (under
contract or law).
(h) Further Assurances. In case at any time after the Closing
any further action is necessary to carry out the purposes of this Agreement,
each of the Parties shall take such further action (including the execution and
delivery of such further instruments and documents) as the other Party
reasonably may request, all at the sole cost and expense of the requesting Party
(unless the requesting Party is entitled to indemnification therefor under
Section 5).
(i) Amendments and Waivers. No amendment of any provision of
this Agreement shall be valid unless the same shall be in writing and signed by
the Investor and the Partnership. No waiver by any Party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
(j) Severability. Any term or provision of this Agreement that
is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction.
(k) Transaction Expenses. Each of the Investor and the
Partnership shall bear its own costs and expenses (including legal fees and
expenses) incurred in connection with this Agreement and the transactions
contemplated hereby.
22
(l) Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement. The Section headings contained in this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement. Any reference to any federal,
state, local, or foreign statute or Law shall be deemed also to refer to all
rules and regulations promulgated thereunder, unless the context requires
otherwise, and shall include any amendment to such Law now or hereinafter in
effect, unless otherwise expressly set forth herein. The word "including" shall
mean including without limitation. All personal pronouns used in this Agreement,
whether used in the masculine, feminine or neuter gender, shall include all
other genders; the singular shall include the plural, and vice versa. All
references herein to Exhibits, Schedules, Articles, Sections or subdivisions
thereof shall refer to the corresponding Exhibits, Schedules, Article, Section
or subdivision thereof of this Agreement unless specific reference is made to
such exhibits, articles, sections or subdivisions of another document or
instrument. Any disclosure made on any Schedule to this Agreement will be
considered disclosed on all applicable Schedules to this Agreement. Unless
otherwise provided, any reference to any Person in this Agreement shall include
such Person's successors and assigns. The terms "will" and "shall" shall be
interpreted to have the same meaning. The terms "herein," "hereby," "hereunder,"
"hereof," "hereinafter," and other equivalent words refer to this Agreement in
its entirety and not solely to the particular portion of the Agreement in which
such word is used. Each certificate delivered pursuant to this Agreement shall
be deemed a part hereof, and any representation, warranty or covenant herein
referenced or affirmed in such certificate shall be treated as a representation,
warranty or covenant given in the correlated Section hereof on the date of such
certificate. Additionally, any representation, warranty or covenant made in any
such certificate shall be deemed to be made herein.
(m) Incorporation of Exhibits and Schedules. The Exhibits and
Schedules identified in or otherwise attached to this Agreement are incorporated
herein by reference and made a part hereof.
(n) Entire Agreement. THIS AGREEMENT (INCLUDING THE DOCUMENTS
REFERRED TO HEREIN) CONSTITUTES THE ENTIRE AGREEMENT AMONG THE PARTIES AND
SUPERSEDES ANY PRIOR UNDERSTANDINGS, AGREEMENTS, OR REPRESENTATIONS BY OR AMONG
THE PARTIES, WRITTEN OR ORAL, TO THE EXTENT THEY HAVE RELATED IN ANY WAY TO THE
SUBJECT MATTER HEREOF.
*****
23
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first set forth in the preamble.
GULFTERRA ENERGY PARTNERS, L.P.
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
------------------------------
Title: President
-----------------------------
XXXXXXX XXXXX & CO.
By: /s/ Raanan Agus
--------------------------------
Name: Raanan Agus
------------------------------
Title: Managing Director
-----------------------------
PURCHASE AND SALE AGREEMENT (COMMON UNITS) SIGNATURE PAGE
Purchase and Sale Agreement (the "Purchase Agreement") dated October 2, 2003, by
and between GulfTerra Energy Partners, L.P., a Delaware limited partnership (the
"Partnership"), and Xxxxxxx Xxxxx & Co, a New York Limited Partnership, covering
the acquisition of 3,000,000 Series A Common Units from the Partnership.
EXHIBITS AND SCHEDULES
----------------------
Exhibit A: Form of Exchange Agreement
Exhibit B: Form of Reduction Agreement
Schedule 1(a): Knowledge (Partnership)
Schedule 3(b): Consents (Investor)
Schedule 4(b): Consents (Partnership)
Schedule 4(d): Capitalization
Schedule 4(f): Adequacy of Assets
Schedule 4(h): Litigation
Schedule 4(i): Compliance with Applicable Laws
Schedule 4(j): Taxes
Schedule 4(k): Contracts and Commitments
Schedule 4(k)(i): Full Force and Effect
Schedule 4(k)(ii): Defaults
Schedule 4(l): Environmental Laws
EXHIBIT A TO
PURCHASE AND SALE AGREEMENT
FORM OF EXCHANGE AGREEMENT
(attached).
EXHIBIT B TO
PURCHASE AND SALE AGREEMENT
FORM OF REDUCTION AGREEMENT
(attached).
SCHEDULE 1(A) TO
PURCHASE AND SALE AGREEMENT
KNOWLEDGE (PARTNERSHIP)
1. Xxx Xxxxxxxx, Chairman and Chief Executive Officer of the Partnership.
2. D. Xxxx Xxxxxx, Senior Vice President and Chief Operating Officer of
the Partnership.
3. Xxxxx Xxxxxx, Vice President and Chief Financial Officer of the
Partnership.
4. Xxxx Xxxxx, Vice President and General Counsel of the Partnership.
5. Xxxxx Xxxxx, Vice President and Chief Accounting Officer of the
Partnership.
6. Xxxxxx Xxx Ferries, Director, Environmental Remediation.
7. Xxxxxx Xxxxxxx, Vice President of the Partnership.
SCHEDULE 3(B) TO
PURCHASE AND SALE AGREEMENT
CONSENTS (INVESTOR)
None.
SCHEDULE 4(B) TO
PURCHASE AND SALE AGREEMENT
CONSENTS (PARTNERSHIP)
None.
SCHEDULE 4(D) TO
PURCHASE AND SALE AGREEMENT
CAPITALIZATION
As provided in the Partnership Agreement, the Series C Units of the Partnership
can be redeemed, under certain circumstances, into Series A Common Units.
SCHEDULE 4(F) TO
PURCHASE AND SALE AGREEMENT
ADEQUACY OF ASSETS
None.
SCHEDULE 4(H) TO
PURCHASE AND SALE AGREEMENT
LITIGATION
None.
SCHEDULE 4(I) TO
PURCHASE AND SALE AGREEMENT
COMPLIANCE WITH APPLICABLE LAWS
None.
SCHEDULE 4(J) TO
PURCHASE AND SALE AGREEMENT
TAXES
None.
SCHEDULE 4(K) TO
PURCHASE AND SALE AGREEMENT
CONTRACTS AND COMMITMENTS
1. Indenture dated as of May 27, 1999 among GulfTerra Energy Partners,
L.P., GulfTerra Energy Finance Corporation, the Subsidiary Guarantors
named therein and Chase Bank of Texas, as Trustee; First Supplemental
Indenture dated as of June 30, 1999; Second Supplemental Indenture
dated as of July 27, 1999; Third Supplemental Indenture dated as of
March 21, 2000; Fourth Supplemental Indenture dated as of July 11,
2000; Fifth Supplemental Indenture dated as of August 30, 2000; Sixth
Supplemental Indenture dated as of April 18, 2002; Seventh Supplemental
Indenture dated as of April 18, 2002; Eighth Supplemental Indenture
dated as of October 10, 2002; Ninth Supplemental Indenture dated as of
November 27, 2002; Tenth Supplemental Indenture dated as of January 1,
2003; Eleventh Supplemental Indenture dated as of June 20, 2003.
2. Indenture dated as of May 11, 2000 among GulfTerra Energy Partners,
L.P., GulfTerra Energy Finance Corporation, The Subsidiary Guarantors
named therein and The Chase Manhattan Bank, as Trustee; First
Supplemental Indenture dated as of April 18, 2002; Second Supplemental
Indenture dated as of April 18, 2002; Third Supplemental Indenture
dated as of October 10, 2002; Fourth Supplemental Indenture dated as of
November 27, 2002; Fifth Supplemental Indenture dated as of January 1,
2003; Sixth Supplemental Indenture dated as of June 20, 2003.
3. Letter agreement dated March 5, 2002, between Crystal Gas Storage, Inc.
and GulfTerra Energy Partners, L.P.
4. Registration Rights Agreement by and between El Paso Corporation and
GulfTerra Energy Partners, L.P. dated as of November 27, 2002.
5. Indenture dated as of November 27, 2002 by and among GulfTerra Energy
Partners, L.P., GulfTerra Energy Finance Corporation, the Subsidiary
Guarantors named therein and JPMorgan Chase Bank, as Trustee; First
Supplemental Indenture dated as of January 1, 2003; Second Supplemental
Indenture dated as of June 20, 2003.
6. A/B Exchange Registration Rights Agreement by and among GulfTerra
Energy Partners, L.P., GulfTerra Energy Finance Corporation, the
Subsidiary Guarantors party thereto, X.X. Xxxxxx Securities, Inc.,
Xxxxxxx Sachs & Co., UBS Warburg LLC and Wachovia Securities, Inc.
dated as of March 24, 2003.
7. Indenture dated as of March 24, 2003 by and among GulfTerra Energy
Partners, L.P., GulfTerra Energy Finance Corporation, the Subsidiary
Guarantors named therein and JPMorgan Chase Bank, as Trustee dated as
of March 24, 2003; First Supplemental Indenture dated as of June 20,
2003.
8. Indenture dated as of July 3, 2003, by and among GulfTerra Energy
Partners, L.P., GulfTerra Energy Finance Corporation, the Subsidiary
Guarantors named therein and Xxxxx Fargo Bank, National Association, as
Trustee.
9. A/B Exchange Registration Rights Agreement dated as of July 3, 2003, by
and among GulfTerra Energy Partners, L.P., GulfTerra Energy Finance
Corporation, the Subsidiary Guarantors named therein, X.X. Xxxxxx
Securities Inc., Banc One Capital Markets, Inc., BNP Paribas Securities
Corp., Credit Lyonnais Securities (USA) Inc., Credit Suisse First
Boston LLC, Fortis Investment Services LLC, The Royal Bank of Scotland
plc, Scotia Capital (USA) Inc., SunTrust Capital Markets, Inc. and
Wachovia Securities, LLC.
10. General and Administrative Services Agreement by and between DeepTech
International Inc., GulfTerra Energy Company, L.L.C. and El Paso Field
Services, L.P. dated as of May 5, 2003.
11. Seventh Amended and Restated Credit Agreement dated as of March 23,
1995, as amended and restated through September 25, 2003, among
GulfTerra Energy Partners, L.P., GulfTerra Energy Finance Corporation,
the several lenders from time to time parties thereto, Fortis Capital
Corp., as Syndication Agent, Credit Lyonnais New York Branch, BNP
Paribas and Wachovia Bank, National Association, as Co-Documentation
Agents, and JPMorgan Chase Bank, as Administrative Agent
12. Limited Liability Company Agreement for Poseidon Oil Pipeline Company,
L.L.C. dated February 14, 1996; First Amendment to the Limited
Liability Company Agreement for Poseidon Oil Pipeline Company, L.L.C.
dated February 14, 1996.
13. Purchase and Sale Agreement dated as of September 27, 2001 by and
between American Natural Offshore Company, Texas Offshore Pipeline
System, Inc., Unitex Offshore Transmission Company and ANR Western Gulf
Holdings, L.L.C. as Sellers and El Paso Energy Partners Deepwater,
L.L.C., as Buyer
14. 1998 Unit Option Plan for Non-Employee Directors Amended and Restated
effective as of April 18, 2001; Amendment No. 1 effective as of May 15,
2003.
15. 1998 Omnibus Compensation Plan, Amended and Restated, effective as of
January 1, 1999; Amendment No. 1 dated as of December 1, 1999;
Amendment No. 2 dated as of May 15, 2003.
16. Purchase, Sale and Merger Agreement by and between El Paso Tennessee
Pipeline Co. and GulfTerra Energy Partners, L.P., dated as of April 1,
2002.
17. Contribution Agreement by and between El Paso Field Services Holding
Company and GulfTerra Energy Partners, L.P. dated as of April 1, 2002
18. Purchase and Sale Agreement by and between GulfTerra Energy Partners,
L.P. and El Paso Production GOM Inc. dated as of April 1, 2002.
19. Letter Agreement by and among GulfTerra Energy Partners, L.P.,
GulfTerra Energy Finance Corporation, the Subsidiary Guarantors party
thereto, JPMorgan Chase Bank, Xxxxxxx Xxxxx Credit Partners L.P., UBS
AG, Stamford Branch and Wachovia Bank, National Association dated
November 27, 2002.
20. Contribution, Purchase and Sale Agreement by and between El Paso
Corporation and GulfTerra Energy Partners, L.P. dated November 21,
2002.
21. Second Amended and Restated Agreement of Limited Partnership of
GulfTerra Energy Partners, L.P., a Delaware limited partnership,
effective as of August 31, 2003, First Amendment dated November 27,
2003; Second Amendment dated May 5, 2003; Third Amendment dated May 16,
2003; Fourth Amendment dated July 23, 2003; Fifth Amendment dated
August 21, 2003.
22. The Participation Agreement and Assignment relating to Cameron Highway
Oil Pipeline Company dated July 10, 2003.
23. Registration Rights Agreement dated as of August 28, 2000 by and
between Crystal Gas Storage, Inc. and GulfTerra Energy Partners, L.P.
24. A/B Exchange Registration Rights Agreement dated as of May 17, 2002, by
and among GulfTerra Energy Partners, L.P., GulfTerra Energy Finance
Corporation, the Subsidiary Guarantors party thereto, Credit Suisse
First Boston Corporation, Xxxxxxx, Xxxxx & Co., X.X. Xxxxxx Securities
Inc., Banc One Capital Markets, Inc., Fleet Securities, Inc., Fortis
Investment Services L.L.C., The Royal Bank of Scotland plc, BNP
Securities Corp. and First Union Securities, Inc.
25. A/B Exchange Registration Rights Agreement by and among GulfTerra
Energy Partners, L.P., GulfTerra Energy Finance Corporation, the
Subsidiary Guarantors party thereto, X.X. Xxxxxx Securities Inc.,
Xxxxxxx, Sachs & Co., UBS Warburg LLC and Wachovia Securities, Inc.
dated as of November 27, 2002
26. Amended and Restated General and Administrative Services Agreement by
and between DeepTech International Inc., El Paso Energy Partners
Company and El Paso Field Services, L.P. dated November 27, 2002.
27. Sixth Amended and Restated Credit Agreement dated as of March 23, 1995,
as amended and restated through October 10, 2002 by and among El Paso
Energy Partners, L.P., El Paso Energy Partners Finance Corporation,
Credit Lyonnais New York Branch and First Union National Bank, as
Co-Syndication Agents, Fleet National Bank and Fortis Capital Corp., as
Co-Documentation Agents, The Chase Manhattan Bank, as Administrative
Agent, and the several banks and other financial institutions
signatories thereto; First Amendment dated as of November 21, 2002.
28. Amended and Restated Credit Agreement among EPN Holding Company, L.P.,
the
Lenders party thereto, Banc One Capital Markets, Inc. and Wachovia
Bank, N.A., as Co-Syndication Agents, Fleet National Bank and Fortis
Capital Corp., as Co-Documentation Agents, and JPMorgan Chase Bank, as
Administrative Agent, dated as of April 8, 2002; First Amendment dated
as of November 21, 2002.
29. Senior Secured Acquisition Term Loan Credit Agreement dated as of
November 27, 2002 among El Paso Energy Partners, L.P., El Paso Energy
Partners Finance Corporation, the Lenders party thereto, Xxxxxxx Xxxxx
Credit Partners L.P., Documentation Agent, UBS Warburg LLC and Wachovia
Bank, National Association, as Co-Syndication Agents and JPMorgan Chase
Bank, as Administrative Agent.
SCHEDULE 4(K)(I) TO
PURCHASE AND SALE AGREEMENT
FULL FORCE AND EFFECT
The following agreements, which were each listed as an exhibit to the
Partnership's Annual Report on Form 10-K for the year ended December 31, 2002,
have terminated in accordance with their terms.
1. Amended and Restated General and Administrative Services Agreement by
and between DeepTech International Inc., El Paso Energy Partners
Company and El Paso Field Services, L.P. dated November 27, 2002.
2. Sixth Amended and Restated Credit Agreement dated as of March 23, 1995,
as amended and restated through October 10, 2002 by and among El Paso
Energy Partners, L.P., El Paso Energy Partners Finance Corporation,
Credit Lyonnais New York Branch and First Union National Bank, as
Co-Syndication Agents, Fleet National Bank and Fortis Capital Corp., as
Co-Documentation Agents, The Chase Manhattan Bank, as Administrative
Agent, and the several banks and other financial institutions
signatories thereto; First Amendment dated as of November 21, 2002.
3. Amended and Restated Credit Agreement among EPN Holding Company, L.P.,
the Lenders party thereto, Banc One Capital Markets, Inc. and Wachovia
Bank, N.A., as Co-Syndication Agents, Fleet National Bank and Fortis
Capital Corp., as Co-Documentation Agents, and JPMorgan Chase Bank, as
Administrative Agent, dated as of April 8, 2002; First Amendment dated
as of November 21, 2002.
4. Senior Secured Acquisition Term Loan Credit Agreement dated as of
November 27, 2002 among El Paso Energy Partners, L.P., El Paso Energy
Partners Finance Corporation, the Lenders party thereto, Xxxxxxx Xxxxx
Credit Partners L.P., Documentation Agent, UBS Warburg LLC and Wachovia
Bank, National Association, as Co-Syndication Agents and JPMorgan Chase
Bank, as Administrative Agent.
SCHEDULE 4(K)(II) TO
PURCHASE AND SALE AGREEMENT
DEFAULTS
None.
SCHEDULE 4(L) TO
PURCHASE AND SALE AGREEMENT
ENVIRONMENTAL LAWS
None.
