EXHIBIT 10.2
GUARANTY
AGREEMENT
THIS GUARANTY AGREEMENT, dated as of
November 12, 2008 (as amended, supplemented, or otherwise
modified from time to time, this “ Guaranty
Agreement ”), by ENTERPRISE PRODUCTS PARTNERS L.P., a
Delaware limited partnership (the “ Guarantor
”), is in favor of MIZUHO CORPORATE BANK, LTD., a Japanese
banking corporation, as administrative agent (the “
Agent ”) for the several lenders (“
Lenders ”) that are or become parties to the
Credit Agreement defined below.
W I T N E S S E T H:
WHEREAS, ENTERPRISE PRODUCTS OPERATING LLC, a
Texas limited liability company (the “ Borrower
”), the Agent, and Lenders desire to enter into that certain
¥20,726,000,716.00 Term Loan Credit Agreement of
even date herewith (as the same may be amended, supplemented or
otherwise modified from time to time, the “ Credit
Agreement ”); and
WHEREAS, one of the terms and conditions stated
in the Credit Agreement for the making of the loans described
therein is the execution and delivery of this Guaranty Agreement to
the Agent for the benefit of the Lenders;
NOW, THEREFORE, (i) in order to comply with the
terms and conditions of the Credit Agreement, (ii) to induce the
Lenders, at any time or from time to time, to loan monies, with or
without security to or for the account of Borrower in accordance
with the terms of the Credit Agreement, (iii) at the special
insistence and request of the Lenders, and (iv) for other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Guarantor hereby agrees as follows:
ARTICLE 1
General Terms
Section 1.1 Terms Defined
Above . As used in this Guaranty Agreement, the terms “
Agent ”, “ Borrower
”, “ Credit Agreement ”, “
Guarantor ”, “ Guaranty
Agreement ”, and “ Lenders
” shall have the meanings indicated above.
Section 1.2 Certain
Definitions . As used in this Guaranty Agreement, the following
terms shall have the following meanings, unless the context
otherwise requires:
“
Guarantor Claims ” shall have the meaning
indicated in Section 4.1 hereof.
“
Liabilities ” shall mean (a) any and all
Indebtedness of the Borrower pursuant to the Credit Agreement
including without limitation (i) the unpaid principal of and
interest on the Loans, including without limitation, interest
accruing subsequent to the filing of a petition or other action
concerning bankruptcy or other similar proceeding, and (ii) payment
of any reimbursement obligations of the Borrower in respect of any
amount owed by the Borrower under the Credit Agreement, including
without limitation, fees and indemnity payments, and (b) all
renewals, rearrangements, increases, extensions for any period,
amendments, supplements, exchanges or reissuances in whole or in
part of the
Indebtedness of Borrower under the
Credit Agreement, or any other documents or instruments evidencing
any of the above.
Section 1.3 Credit
Agreement Definitions . Unless otherwise defined herein, all
terms beginning with a capital letter which are defined in the
Credit Agreement shall have the same meanings herein as
therein.
ARTICLE 2
The Guaranty
Section 2.1 Liabilities
Guaranteed . Guarantor hereby irrevocably and unconditionally
guarantees in favor of the Agent for the benefit of the Lenders the
prompt payment of the Liabilities when due, whether at maturity or
otherwise.
Section 2.2 Nature of
Guaranty . This Guaranty Agreement is an absolute, irrevocable,
completed and continuing guaranty of payment and not a guaranty of
collection, and no notice of the Liabilities or any extension of
credit already or hereafter contracted by or extended to Borrower
need be given to Guarantor. This Guaranty Agreement may not be
revoked by Guarantor and shall continue to be effective with
respect to debt under the Liabilities arising or created after any
attempted revocation by Guarantor and shall remain in full force
and effect until the Liabilities are paid in full and the
Commitments are terminated, notwithstanding that from time to time
prior thereto no Liabilities may be outstanding. Borrower and the
Lenders may modify, alter, rearrange, extend for any period and/or
renew from time to time the Liabilities, and the Lenders may waive
any Default or Events of Default without notice to the Guarantor
and in such event Guarantor will remain fully bound hereunder on
the Liabilities. This Guaranty Agreement shall continue to be
effective or be reinstated, as the case may be, if at any time any
payment of the Liabilities is rescinded or must otherwise be
returned by any of the Lenders upon the insolvency, bankruptcy or
reorganization of Borrower or otherwise, all as though such payment
had not been made. This Guaranty Agreement may be enforced by the
Agent and any subsequent holder of any of the Liabilities and shall
not be discharged by the assignment or negotiation of all or part
of the Liabilities. Guarantor hereby expressly waives presentment,
demand, notice of non-payment, protest and notice of protest and
dishonor, notice of Default or Event of Default, notice of intent
to accelerate the maturity and notice of acceleration of the
maturity and any other notice in connection with the Liabilities,
and also notice of acceptance of this Guaranty Agreement,
acceptance on the part of the Agent for the benefit of the Lenders
being conclusively presumed by the Lenders’ request for this
Guaranty Agreement and delivery of the same to the
Agent.
Section 2.3 Agent’s
Rights . Guarantor authorizes the Agent, without notice or
demand and without affecting Guarantor’s liability hereunder,
to take and hold security for the payment of this Guaranty
Agreement and/or the Liabilities, and exchange, enforce, waive and
release any such security; and to apply such security and direct
the order or manner of sale thereof as the Agent in its discretion
may determine; and to obtain a guaranty of the Liabilities from any
one or more Persons and at any time or times to enforce, waive,
rearrange, modify, limit or release any of such other Persons from
their obligations under such guaranties.
Section 2.4
Guarantor’s Waivers .
(a)
General . Guarantor waives any right to require any of the
Lenders to (i) proceed against Borrower or any other person liable
on the Liabilities, (ii) enforce any of their rights against any
other guarantor of the Liabilities, (iii) proceed or enforce any of
their rights against or exhaust any security given to secure the
Liabilities, (iv) have Borrower joined with Guarantor in any suit
arising out of this Guaranty Agreement and/or the Liabilities, or
(v) pursue any other remedy in the Lenders’ powers
whatsoever. Except as provided in the Credit Agreement, the Lenders
shall not be required to mitigate damages or take any action to
reduce, collect or enforce the Liabilities, and the failure to so
mitigate or take any such action shall not release the Guarantor
from this Guaranty Agreement. Guarantor waives any defense arising
by reason of any disability, lack of partnership authority or
power, or other defense of Borrower or any other guarantor of the
Liabilities, and shall remain liable hereon regardless of whether
Borrower or any other guarantor be found not liable thereon for any
reason. Whether and when to exercise any of the remedies of the
Lenders under the Credit Agreement shall be in the sole and
absolute discretion of the Agent, and no delay by the Agent in
enforcing any remedy, including delay in conducting a foreclosure
sale, shall be a defense to the Guarantor’s liability under
this Guaranty Agreement. To the extent allowed by applicable law,
the Guarantor hereby waives any good faith duty on the part of the
Agent in exercising any remedies provided in the Credit
Agreement.
(b)
Subrogation . Until the Liabilities have been paid in full,
the Guarantor waives all rights of subrogation or reimbursement
against the Borrower, whether arising by contract or operation of
law (including, without limitation, any such right arising under
any federal or state bankruptcy or insolvency laws) and waives any
right to enforce any remedy which the Lenders now have or may
hereafter have against the Borrower, and waives any benefit or any
right to participate in any security now or hereafter held by the
Agent or any Lender.
Section 2.5 Maturity of
Liabilities; Payment . Guarantor agrees that if the maturity of
any of the Liabilities is accelerated by bankruptcy or otherwise,
such maturity shall also be deemed accelerated for the purpose of
this Guaranty Agreement without demand or notice to Guarantor.
Guarantor will, forthwith upon notice from the Agent, pay to the
Agent the amount due and unpaid by Borrower and guaranteed hereby.
The failure of the Agent to give this notice shall not in any way
release Guarantor hereunder.
Section 2.6 Agent’s
Expenses . If Guarantor fails to pay the Liabilities after
notice from the Agent of Borrower’s failure to pay any
Liabilities at maturity, and if the Agent obtains the services of
an attorney for collection of amounts owing by Guarantor hereunder,
or obtaining advice of counsel in respect of any of its rights
under this Guaranty Agreement, or if suit is filed to enforce this
Guaranty Agreement, or if proceedings are had in any bankruptcy,
receivership or other judicial proceedings for the establishment or
collection of any amount owing by Guarantor hereunder, or if any
amount owing by Guarantor hereunder is collected through such
proceedings, Guarantor agrees to pay to the Agent the Agent’s
reasonable attorneys’ fees.
Section 2.7 Liability
. It is expressly agreed that the liability of the Guarantor for
the payment of the Liabilities guaranteed hereby shall be primary
and not secondary.
Section 2.8 Events and
Circumstances Not Reducing or Discharging Guarantor’s
Obligations . Guarantor hereby consents and agrees to each of
the following to the fullest extent permitted by law, and agrees
that Guarantor’s obligations under this Guaranty Agreement
shall not be released, diminished, impaired, reduced or adversely
affected by any of the following, and waives any rights (including
without limitation rights to notice) which Guarantor might
otherwise have as a result of or in connection with any of the
following:
(a)
Modifications, etc . Any renewal, extension, modification,
increase, decrease, alteration, rearrangement, exchange or
reissuance of all or any part of the Liabilities, or the Credit
Agreement, or any instrument executed in connection therewith, or
any contract or understanding between Borrower and any of the
Lenders, or any other Person, pertaining to the
Liabilities;
(b)
Adjustment, etc . Any adjustment, indulgence, forbearance or
compromise that might be granted or given by any of the Lenders to
Borrower or Guarantor or any Person liable on the
Liabilities;
(c)
Condition of Borrower or Guarantor . The insolvency,
bankruptcy arrangement, adjustment, composition, liquidation,
disability, dissolution, death or lack of power of Borrower or
Guarantor or any other Person at any time liable for the payment of
all or part of the Liabilities; or any dissolution of Borrower or
Guarantor, or any sale, lease or transfer of any or all of the
assets of Borrower or Guarantor, or any changes in the
shareholders, partners, or members of Borrower or Guarantor; or any
reorganization
