Exhibit 10.1
CONTRIBUTION, CONVEYANCE AND
ASSUMPTION AGREEMENT
THIS CONTRIBUTION, CONVEYANCE AND
ASSUMPTION AGREEMENT (this “ Agreement
”), dated as of August 29, 2005, is entered into by and among
Enterprise GP Holdings L.P. , a Delaware limited partnership
(“ EPE LP ”), EPE Holdings, LLC ,
a Delaware limited liability company (“ EPE GP
”), Dan Duncan LLC , a Texas limited liability company
(“ DD LLC ”), Duncan Family Interests,
Inc. , a Delaware corporation (“ DFI Inc.
”), DFI GP Holdings L.P. , a Delaware limited
partnership (“ DFI Holdings LP ”) and
DFI Holdings, LLC , a Delaware limited liability company
(“ DFI Holdings GP ”). The parties to
this agreement are collectively referred to herein as the “
Parties .”
RECITALS
WHEREAS, the parties desire to
commence a public offering (the “ Offering
”) of units representing limited partner interests in EPE LP
(the “ Units ”).
WHEREAS, the time immediately prior
to the consummation of the Offering is herein referred to as the
“ Effective Time ”.
WHEREAS, EPE GP is the sole general
partner of EPE LP.
WHEREAS, in connection with the
formation of EPE LP and EPE GP, the following actions were taken
prior to the date hereof:
1. DD LLC formed EPE GP, to which DD
LLC contributed $1,000 in exchange for a 100% membership interest
in EPE GP.
2. DD LLC, DFI Inc. and EPE GP
formed EPE LP, to which (i) DD LLC contributed $49.90 in exchange
for a 4.99% limited partner interest in EPE LP, (ii) DFI Inc.
contributed $950 in exchange for a 95% limited partner interest in
EPE LP, and (iii) EPE GP contributed $0.10 in exchange for a 0.01%
general partner interest in EPE LP.
WHEREAS, the following actions have
also been taken prior to the date hereof:
1. DD LLC formed DFI Holdings GP, to
which DD LLC contributed $1,000 in exchange for a 100% membership
interest in DFI Holdings GP.
2. DD LLC, DFI Inc. and DFI Holdings
GP formed DFI Holdings LP, to which (i) DD LLC contributed $40 in
exchange for a 4% limited partner interest in DFI Holdings LP, (ii)
DFI Inc. contributed $950 in exchange for a 95% limited partner
interest in DFI Holdings LP, and (iii) DFI Holdings GP contributed
$10 in exchange for a 1% general partner interest in DFI Holdings
LP.
3. DFI Holdings LP purchased the
following assets (the “ EPD Assets ”)
from El Paso Corporation for approximately $425 million: (i) a 9.9%
general partner interest in Enterprise Products GP, LLC, a Delaware
limited liability company (“ EPD GP ”),
and (ii) 13,454,498 common units of Enterprise Products Partners
L.P., a Delaware limited partnership (“ EPD LP
”),
4. EPCO, Inc., a Delaware
corporation (“ EPCO ”) loaned the $425
million to purchase the EPD Assets to DFI Holdings LP., and DFI
Holdings LP is the obligor on two notes, both dated August 10,
2005, having a total outstanding principal balance at August 29,
2005 of $420,335,893.14, as well as additional accrued and unpaid
interest (together, the “ EPCO Debt ”).
One note is payable to EPCO in the principal amount of
$161,725,894.29 (the “ EPCO Note ”), and
the other note is payable to DFI Inc. in the principal amount of
$258,629,998.85 (the “ DFI Note
”).
WHEREAS, EPD GP is the obligor on a
$370 million note payable to DD LLC having an outstanding principal
balance at August 29, 2005 of $363,274,105.71, as well as
additional accrued and unpaid interest (the “ EPD GP
Note ”), and DD LLC is the obligor on a corresponding
note payable to EPCO having the same principal amount. Both notes
are pledged to EPCO’s lenders.
WHEREAS, all references in this
Agreement to the assumption by various entities of principal
amounts or portions of principal amounts outstanding under the EPD
GP Note, the EPCO Note or the EPE Assumed Debt (as defined below)
shall be deemed to include the assumption of the corresponding
amounts of accrued and unpaid interest on such principal amounts or
portions of principal amounts.
WHEREAS, DD LLC currently owns a
4.505% membership interest in EPD GP, and DFI Inc. currently owns
an 85.595% membership interest in EPD GP.
WHEREAS, EPD GP is the sole general
partner of EPD LP.
WHEREAS, at the Effective Time, each
of the following matters shall occur:
1. DFI Holdings LP will contribute
the EPD Assets to EPE LP in exchange for the assumption by EPE LP
of liability for $160,023,385.34 of the principal amount
outstanding under the EPCO Note (the “ EPE Assumed
Debt ”) and a limited partnership interest in EPE
(the “ EPE Interest ”).
2. DFI Holdings LP will distribute
95%, 4% and 1% of the EPE Interest to DFI Inc., DD LLC and DFI
Holdings GP, respectively, in each case in exchange for the
assumption by each such entity of its proportionate amount of (i)
the remaining $1,702,508.95 principal amount outstanding under the
EPCO Note, and (ii) the $258,629,998.85 principal amount
outstanding under the DFI Note.
3. DFI Holdings GP will distribute
its 1% of the EPE Interest to DD LLC in exchange for the assumption
by DD LLC of DFI Holdings GP’s proportionate amount of debt
assumed under the EPCO Note and the DFI Note.
4. DFI Inc. and DD LLC will execute
assumption agreements whereby they assume 95% and 5%, respectively,
of the liability for the remaining $1,702,508.95 principal amount
outstanding under the EPCO Note and the $258,629,998.85 principal
amount outstanding under the DFI Note.
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5. DD LLC will contribute 0.01% of
the EPE Interest to EPE GP, which, when combined with EPE
GP’s original general partner interest in EPE, will
subsequently become a 0.01% general partner interest in EPE upon
consummation of the Offering pursuant to the First Amended and
Restated Agreement of Limited Partnership of EPE LP referred to in
8., below.
6. DD LLC will contribute its 4.505%
interest in EPD GP (0.2% of which (i.e., a .00901% interest in EPD
GP) will be contributed through EPE GP in order to maintain the
correct capital account balances) to EPE LP.
7. DFI Inc. will contribute its
85.595% interest in EPD GP to EPE LP, resulting in EPE LP owning
100% of the membership interests in EPD GP.
WHEREAS, immediately after the
Effective Time, in connection with the consummation of the
Offering, each of the following matters shall occur:
8. The agreement of limited
partnership of EPE LP will be amended and restated as set forth in
the First Amended and Restated Agreement of Limited Partnership of
EPE LP.
9. All of the then-outstanding
limited partner interests in EPE LP held by DFI, Inc. and DDLLC
will be unitized and converted into an aggregate of 74,667,332
Units, or (i) 70,941,059 Units issued to DFI Inc., and (ii)
3,726,273 Units issued to DD LLC.
10. The entire then-outstanding
interest of EPE GP in EPE LP will be continued as a 0.01% general
partner interest in EPE L.P.
11. EPE will enter into a new Credit
Agreement providing for a $50,000,000 Revolving Credit Facility and
$475,000,000 Term Loan (the “ Credit Agreement
”) and draw down the full amount available thereunder to pay
the outstanding balances under the EPD GP Note and the EPE Assumed
Debt.
12. The public, through the
underwriters in the Offering, will contribute $327,145,769.44 (the
“ Underwritten Offering Proceeds ”) to
EPE LP in exchange for 12,395,356 Units in EPE LP.
13. EPE Unit L.P. will contribute
$50,999,984 (the “ Direct Sale Proceeds
”) to EPE L.P. in exchange for 1,821,428 Units in EPE
L.P.
14. EPE will use the Underwritten
Offering Proceeds and the Direct Sale Proceeds (i) to pay the
expenses incurred in connection with the Offering, and (ii) to
repay $373,000,000 of indebtedness outstanding under the Credit
Agreement, $350,500,000 of which is a permanent reduction in
commitments under the Credit Agreement.
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NOW, THEREFORE, in consideration of
their mutual undertakings and agreements hereunder, the Parties
undertake and agree as follows:
ARTICLE 1
CONTRIBUTIONS,
ACKNOWLEDGMENTS, DISTRIBUTIONS AND ASSUMPTIONS
Section 1.1 Contribution of
EPD Assets by DFI Holdings LP to EPE LP . DFI Holdings LP
hereby contributes, grants, bargains, conveys, assigns, transfers,
sets over and delivers to EPE LP, its successors and assigns, for
its use forever, all right, title and interest in and to all of the
EPD Assets, and EPE LP hereby accepts such EPD Assets as a
contribution to the capital of EPE LP.
TO HAVE AND TO HOLD the EPD Assets
unto EPE LP, its successors and assigns, together with all and
singular the rights and appurtenances thereto in anywise belonging,
subject, however, to the terms and conditions stated in this
Agreement, forever.
Section 1.2 Assumption of EPE
Assumed Debt by EPE LP and Conveyance of EPE Interest to DFI
Holdings LP . In exchange for the EPD Assets, EPE LP hereby
(i) assumes from DFI Holdings LP the EPE Assumed Debt and (ii)
grants, bargains, conveys, assigns, transfers, sets over and
delivers to DFI Holdings LP, its successors and assigns, for its
use forever, all right, title and interest in and to all of the EPE
Interest, and DFI Holdings LP hereby accepts such EPE
Interest.
TO HAVE AND TO HOLD the EPE Interest
unto DFI Holdings LP, its successors and assigns, together with all
and singular the rights and appurtenances thereto in anywise
belonging, subject, however, to the terms and conditions stated in
this Agreement, forever.
Section 1.3 Distribution of
EPE Interest by DFI Holdings LP to DFI Inc., DD LLC and DFI
Holdings GP . DFI Holdings LP hereby distributes, grants,
bargains, conveys, assigns, transfers, sets over and delivers (i)
95% of the EPE Interest to DFI Inc., (ii) 4% of the EPE Interest to
DD LLC, and (iii) 1% of the EPE Interest to DFI Holdings GP. Each
of DFI Inc., DD LLC and DFI Holdings GP hereby accepts its
respective percentage of the EPE Interest, subject to its
proportionate amount of (i) the remaining $1,702,508.95 million
principal amount outstanding under the EPCO Note, and (ii) the
$258,629,998.85 principal amount outstanding under the DFI
Note.
TO HAVE AND TO HOLD the EPE
Interests set forth above unto DFI Inc., DD LLC and DFI Holdings
GP, respectively, and each of their respective successors and
assigns, together with all and singular the rights and
appurtenances thereto in anywise belonging, subject, however, to
the terms and conditions stated in this Agreement,
forever.
Section 1.4 Assumption of
Remaining Amount of EPCO Note and DFI Note by DFI Inc., DD LLC and
DFI Holdings GP . In connection with the acceptance of
their respective percentages of the EPE Interest described in
Section 1.3, each of DFI Inc., DD LLC and DFI Holdings GP hereby
assumes from DFI Holdings LP (i) its proportionate amount of
liability for the remaining $1,702,508.95 principal amount
outstanding under the EPCO Note
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($1,617,383.50, $68,100.36, and $17,025.09,
respectively), and (ii) its proportionate amount of liability for
the $258,629,998.85 principal amount outstanding under the DFI Note
($245,698,498.91, $10,345,199.95, and $2,586,299.99,
respectively).
Section 1.5 Distribution of 1%
of EPE Interest by DFI Holdings GP to DD LLC . DFI Holdings
GP hereby distributes, grants, bargains, conveys, assigns,
transfers, sets over and delivers to DD LLC its 1% of the EPE
Interest. DD LLC hereby accepts such 1% of the EPE Interest,
subject to the indebtedness assumed by DFI Holdings GP in Section
1.4.
TO HAVE AND TO HOLD such 1% of the
EPE Interest unto DD LLC, its successors and assigns, together with
all and singular the rights and appurtenances thereto in anywise
belonging, subject, however, to the terms and conditions stated in
this Agreement, forever.
Section 1.6 Assumption of DFI
Holdings GP’s Proportionate Amount of EPCO Note and DFI Note
by DD LLC . In connection with its acceptance of 1% of the
EPE Interest described in Section 1.5, DD LLC hereby assumes from
DFI Holdings GP, DFI Holdings GP’s proportionate amount of
liability for (i) the principal amount outstanding under the EPCO
Note ($17,025.09) and (ii) the principal amount outstanding under
the DFI Note ($2,586,299.99).
Section 1.7 Contribution of
0.01% of EPE Interest by DD LLC to EPE GP . DD LLC hereby
contributes, grants, bargains, conveys, assigns, transfers, sets
over and delivers to EPE GP, its successors and assigns, for its
and their own use forever, all right, title and interest in and to
0.01% of the EPE Interest. EPE GP hereby accepts such 0.01% of the
EPE Interest as a contribution to the capital of EPE GP.
TO HAVE AND TO HOLD such 0.01% of
the EPE Interest unto EPE GP, its successors and assigns, together
with all and singular the rights and appurtenances thereto in
anywise belonging, subject, however, to the terms and conditions
stated in this Agreement, forever.
Section 1.8 Contribution of
EPD GP Interest by DD LLC to EPE GP . DD LLC hereby
contributes, grants, bargains, conveys, assigns, transfers, sets
over and delivers to EPE GP, its successors and assigns, for its
and their own use forever, all right, title and interest in and to
a 0.00901% interest in EPD GP for immediate further contribution
and assignment to EPE LP. EPE GP hereby accepts such 0.00901%
membership interest in EPD GP as a contribution to the capital of
EPE GP.
Section 1.9 Contribution of
EPD GP Interest by EPE GP to EPE LP . EPE GP hereby
contributes, grants, bargains, conveys, assigns, transfers, sets
over and delivers to EPE LP, its successors and assigns, for its
and their own use forever, all right, title and interest in and to
its 0.00901% membership interest in EPD GP. EPE LP hereby accepts
such 0.00901% membership interest in EPD GP as a contribution to
the capital of EPE LP.
TO HAVE AND TO HOLD such EPD GP
membership interest unto EPE LP, its successors and assigns,
together with all and singular the rights and appurtenances thereto
in anywise belonging, subject, however, to the terms and conditions
stated in this Agreement, forever.
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Section 1.10 Contribution of
EPD GP Interest by DD LLC to EPE LP . DD LLC hereby
contributes, grants, bargains, conveys, assigns, transfers, sets
over and delivers to EPE LP, its successors and assigns, for its
and their own use forever, all right, title and interest in and to
its 4.49599% membership interest in EPD GP. EPE LP hereby accepts
such 4.49599% membership interest in EPD GP as a contribution to
the capital of EPE LP.
TO HAVE AND TO HOLD such EPD GP
membership interest unto EPE LP, its successors and assigns,
together with all and singular the rights and appurtenances thereto
in anywise belonging, subject, however, to the terms and conditions
stated in this Agreement, forever.
Section 1.11 Contribution of
EPD GP Interest by DFI Inc. to EPE LP . DFI Inc. hereby
contributes, grants, bargains, conveys, assigns, transfers, sets
over and delivers to EPE LP, its successors and assigns, for its
and their own use forever, all right, title and interest in and to
its 85.595% membership interest in EPD GP. EPE LP hereby accepts
such 85.595% membership interest in EPD GP as a contribution to the
capital of EPE LP.
TO HAVE AND TO HOLD such EPD GP
membership interest unto EPE LP, its successors and assigns,
together with all and singular the rights and appurtenances thereto
in anywise belonging, subject, however, to the terms and conditions
stated in this Agreement, forever.
ARTICLE 2
FURTHER
ASSURANCES
Section 2.1 Further
Assurances . From time to time after the Effective Time,
and without any further consideration, the Parties agree to
execute, acknowledge and deliver all such additional deeds,
assignments, bills of sale, conveyances, instruments, notices,
releases, acquittances and other documents, and will do all such
other acts and things, all in accordance with applicable law, as
may be necessary or appropriate (a) more fully to assure that the
applicable Parties own all of the properties, rights, titles,
interests, estates, remedies, powers and privileges granted by this
Agreement, or which are intended to be so granted, or (b) more
fully and effectively to vest in the applicable Parties and their
respective successors and assigns beneficial and record title to
the interests contributed and assigned by this Agreement or
intended so to be and (c) more fully and effectively to carry out
the purposes and intent of this Agreement.
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ARTICLE 3
REPRESENTATIONS AND
WARRANTIES
Section 3.1 Representations of
Parties Other than EPE LP . Each of the Parties to this
Agreement other than EPE LP (the “ Contributing
Parties ”) hereby represents and warrants, jointly
and severally, to EPE LP as
