Exhibit 10.35
CONTRIBUTION AND CONVEYANCE
AGREEMENT
by and among
ENERGY TRANSFER PARTNERS,
L.P.
AND
ENERGY TRANSFER EQUITY,
L.P.
(Class G Units)
Dated November 1,
2006
CONTRIBUTION AND CONVEYANCE
AGREEMENT
THIS CONTRIBUTION AND CONVEYANCE
AGREEMENT, dated November 1, 2006 (this “
Agreement ”), is made by Energy Transfer Partners,
L.P., a limited partnership formed under the laws of the State of
Delaware ( “ ETP ” or the “
Partnership ”), on the one hand, and Energy Transfer
Equity, L.P., a limited partnership formed under the laws of the
State of Delaware ( “ ETE ”), on the other
hand.
WHEREAS, ETP desires to issue to
ETE, in exchange for a contribution by ETE of cash, limited partner
interests of the Partnership, consisting of Class G Units (the
“ Class G Units ”), having the characteristics
set forth in Amendment No. 10 to the Amended and Restated
Agreement of Limited Partnership of the Partnership (“
Amendment No. 10 ”), a copy of which is attached
hereto as Exhibit A .
NOW, THEREFORE, in consideration of
the mutual covenants and agreements set forth herein and for good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, ETP and ETE hereby agree as
follows:
ARTICLE I.
DEFINITIONS
Section 1.01 Definitions
. As used in this Agreement, and unless the context requires a
different meaning, the following terms have the meanings
indicated:
“ Cash Contribution
” shall have the meaning specified in
Section 2.01 .
“ CCE Purchase
Agreement ” means the Purchase and Sale Agreement, dated
as of September 14, 2006, among the Partnership and the
Class B Members of CCE Holdings, LLC.
“ Class G Units ”
shall have the meaning specified in Section 2.02
.
“ Closing ” shall
have the meaning specified in Section 2.03 .
“ Closing Date ”
shall have the meaning specified in Section 2.03
.
“ Common Units ”
means common units representing limited partnership interests of
ETP.
“ Commission ”
means the United States Securities and Exchange
Commission.
“ ETP ” has the
meaning set forth in the introductory paragraph.
“ Exchange Act ”
means the Securities Exchange Act of 1934, as amended.
“ Governmental
Authority ” means, with respect to a particular Person,
the country, state, county, city and political subdivisions in
which such Person, such Person’s Subsidiaries or such
Person’s Property is located or which exercises valid
jurisdiction over any such Person or such Person’s Property,
and any court, agency, department, commission, board, bureau
or
instrumentality of any of them and any monetary
authority which exercises valid jurisdiction over any such Person
or such Person’s Property.
“ Material Adverse
Effect ” means any event or condition that has had or
could reasonably be expected to (i) have a material adverse
effect on the financial condition, results of operations, business
or prospects of such party, (ii) result in termination of the
CCE Purchase Agreement, (iii) result in a breach or
violation of any representation, warranty, covenant or condition
contained in the CCE Purchase Agreement as a result of which a
party to the CCE Purchase Agreement has, or with notice, the
lapse of time or both, is likely to have, the right to terminate
the CCE Purchase Agreement or (iv) impair or affect
adversely such party’s ability to perform its obligations
under the Agreement or impair or delay completion of the
transactions contemplated hereby or by the CCE Purchase
Agreement.
“ Person ” means
any individual, corporation, company, voluntary association,
partnership, joint venture, trust, limited liability company,
unincorporated organization or government or any agency,
instrumentality or political subdivision thereof, or any other form
of entity.
“ Property ”
means any interest in any kind of property or asset, whether real,
personal or mixed, or tangible or intangible.
“ Securities Act
” means the Securities Act of 1933, as amended.
“ Subsidiary ”
means, as to any Person, any corporation or other entity of which:
(i) such Person or a Subsidiary of such Person is a general
partner or manager; or (ii) at least a majority of the
outstanding equity interest having by the terms thereof ordinary
voting power to elect a majority of the board of directors or
similar governing body of such corporation or other entity
(irrespective of whether or not at the time any equity interest of
any other class or classes of such corporation or other entity
shall have or might have voting power by reason of the happening of
any contingency) is at the time directly or indirectly owned or
controlled by such Person or one or more of its
Subsidiaries.
“ Transwestern ”
means Transwestern Pipeline Company, LLC, a Delaware limited
liability company.
ARTICLE II.
CONTRIBUTIONS, ACKNOWLEDGMENTS
AND DISTRIBUTIONS
Section 2.01 Contribution of
Cash to ETP. Subject to the terms and conditions hereof, ETE hereby
agrees to contribute, grant, bargain, convey, assign, transfer, set
over and deliver to ETP, its successors and assigns, cash in the
amount of $1.2 billion (“Cash Contribution”) as a
contribution to the capital of ETP and ETP hereby agrees to accept
such Cash Contribution as a contribution to the capital of
ETP.
Section 2.02 Issuance of
Class G Units . Subject to the terms and conditions of this
Agreement, ETP agrees to issue to ETE, 26,086,957 Class G Units the
“ Class G Units ”) in exchange for the
contribution of the Cash Contribution by ETE and ETE hereby agrees
to accept the Class G Units in exchange for its capital
contribution of the Cash Contribution to ETP. The issuance of the
Class G Units contemplated hereby will not be registered with the
Securities and
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Exchange Commission (the “
Commission ”) under the Securities Act of 1933, as
amended (the “ Act ”) and the certificates
representing such Class G Units shall be issued bearing a
restrictive legend thereon in the form of Exhibit B attached
hereto.
Section 2.03 Closing and
Delivery of Class G Units .
(a) Subject to the terms and
conditions hereof, the closing of the transactions constituting the
issuance of the Class G Units and the contribution of the Cash
Contribution (the “ Closing ”) shall take place
at the offices of Vinson & Elkins, L.L.P., counsel to ETE,
1001 Fannin Street, Houston, Texas, at 3:00 p.m. Central Time on
November 1, 2006, or such other date, place and time as ETP
and ETE may agree (the “ Closing Date
”).
(b) The Class G Units to be issued
to ETE under this Agreement shall be delivered by or on behalf of
ETP to ETE at the Closing in certificated form.
(c) The Cash Contribution shall be
by payment by wire transfer in immediately available funds to such
bank account of ETP designated by ETP in writing no later than the
Business Day immediately preceding the Closing Date. “
Business Day ” means any day other than (a) a
Saturday, Sunday or legal holiday in New York City, or (b) a
day on which the commercial banks in New York City are authorized
or required by law or executive order to close.
Section 2.04 Conditions to
the Closing .
(a) ETE’s Conditions. The
obligations of ETE to consummate the purchase of its Class G Units
shall be subject to the satisfaction on or prior to the Closing
Date of the following conditions (any or all of which may be waived
by ETE in writing, in whole or in part, to the extent permitted by
applicable Law):
(i) the representations and
warranties of ETP contained in this Agreement shall be true and
correct in all material respects both when made and at and as of
the Closing Date, as if made at and as of such time (except to the
extent expressly made as of an earlier date, in which case as of
such date), and ETE shall have received an officer’s
certificate signed on behalf of ETP to such effect;
(ii) the execution and delivery by
ETP of a Registration Rights Agreement in the form attached hereto
as Exhibit C ; and
(iii) all conditions to closing
under the CCE Purchase Agreement have been satisfied or waived
other than the delivery of closing items pursuant to
Section 2.4 of the CCE Purchase Agreement;
(b) ETP’s Conditions. The
obligation of ETP to consummate the issuance of the Class G Units
to ETE shall be subject to the satisfaction on or prior to the
Closing Date of the following conditions (which may be waived by
ETP in writing, in whole or in part, to the extent permitted by
applicable Law):
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(i) the representations and
warranties of ETE contained in this Agreement shall be true and
correct in all material respects both when made and at and as of
the Closing Date, as if made at and as of such time (except to the
extent expressly made as of an earlier date, in which case as of
such date), and ETP shall have received an officer’s
certificate from ETE signed on behalf of ETE to such
effect;
(ii) all conditions to closing under
the CCE Purchase Agreement have been satisfied or waived other
than the delivery of closing items pursuant to Section 2.4 of
the CCE Purchase Agreement;
(iii) payment to ETP of the amount
of the Cash Contribution in exchange for the Class G Units;
and
(iv) the execution and delivery by
ETE of the Registration Rights Agreement.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF
ETP
ETP represents and warrants to ETE
as follows:
Section 3.01 Existence .
ETP (i) is a limited partnership duly organized, legally
existing and in good standing under the laws of the State of
Delaware and (ii) has all requisite power and authority, and
has all governmental licenses, authorizations, consents and
approvals necessary, to own, lease, use and operate its Properties
and carry on its business as its business is now being conducted,
except where the failure to obtain such licenses, authorizations,
consents and approvals would not be reasonably likely to have a
Material Adverse Effect.
Section 3.02 Valid Issuance
of Class G Units . ETP has taken all necessary action to
approve and adopt Amendment No. 10 as an amendment to the
Amended and Restated Agreement of Limited Partnership of ETP, as
amended as of the date of this Agreement (the “
Partnership Agreement ”) and no approval of the
limited partners of ETP is necessary for the approval and adoption
of Amendment No. 10. Amendment No. 10 has been duly
executed, delivered and adopted by ETP as an amendment to the
Partnership Agreement. ETE, when such Class G Units are delivered
as provided in this Agreement, will be entitled to the rights of a
unitholder of limited partner interests of ETP as conferred by the
Partnership Agreement, as amended by Amendment No. 10, and
applicable law. The issuance of the Class G Units and the limited
partner interests represented thereby have been duly authorized by
ETP and, when issued and delivered to ETE against payment therefor
in accordance with the terms of this Agreement, will be validly
issued, fully paid (to the extent required under the Partnership
Agreement) and nonassessable (except as such nonassessability may
be affected by such matters described under the caption “The
Partnership Agreement—Limited Liability” in ETP’s
Registration Statement on Form S-3 (File
No. 333-133174).
Section 3.03 Authority .
ETP has all necessary power and authority to execute, deliver and
perform its obligations under this Agreement; and the execution,
delivery and performance by ETP of this Agreement has been duly
authorized by all necessary action on its part; and this Agreement
constitutes the legal, valid and binding obligations of ETP,
enforceable in accordance
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with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, fraudulent transfer and
similar laws affecting creditors’ rights generally or by
general principles of equity. No approval from the equity owners of
ETP is required in connection with the transactions contemplated by
this Agreement.
Section 3.04 Approvals .
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