Duncan Energy Partners
L.P.
41,529 Common Units
Representing Limited Partner Interests
Houston, Texas
December 8, 2008
Enterprise
Products Operating LLC
1100 Louisiana
Street , 10
th Floor
Houston, Texas
77002
Ladies and Gentlemen:
Duncan Energy
Partners L.P., a limited partnership organized under the laws of
Delaware (the “ Partnership ”), proposes to
directly sell (the “ Offering ”) to Enterprise
Products Operating LLC, a Texas limited liability company (the
“ Purchaser ”), 41,529 common units (the “
Units ”), each representing a limited partner interest
in the Partnership (“ Partnership Units ”).
Certain terms used herein are defined in Section 12 of
this Unit Purchase Agreement (the “ Agreement
”). DEP Holdings, LLC is referred to herein as the “
General Partner ,” and the General Partner together
with the Partnership is referred to collectively herein as the
“ DEP Parties ” or individually as a “
DEP Party ”.
This is to confirm
the agreement among the DEP Parties, and the Purchaser concerning
the purchase of the Units from the Partnership by the
Purchaser.
1.
Representations and Warranties . The Partnership represents
and warrants to, and agrees with, the Purchaser as set forth below
in this Section 1 .
(a) Formation
and Qualification of the DEP Parties . Each of the DEP Parties
has been duly formed and is validly existing in good standing under
the laws of the State of Delaware with all limited liability
company or limited partnership, as the case may be, power and
authority necessary to own or hold its properties and conduct the
businesses in which it is engaged and, (i) in the case of the
General Partner, to act as general partner of the Partnership, and
(ii) in the case of the General Partner and the Partnership to
execute and deliver this Agreement and to consummate the
transactions contemplated hereby. Each of the General Partner and
the Partnership is duly registered or qualified to do business and
is in good standing as a foreign limited liability company or
limited partnership, as the case may be, in each jurisdiction in
which its ownership or lease of property or the conduct of its
businesses requires such qualification or registration, except
where the failure to so qualify or register would not,
(i) individually or in the aggregate, have a material adverse
effect on the condition (financial or otherwise), results of
operations, business or prospects of the DEP Parties, taken as a
whole (an “ DEP Material Adverse Effect ”) or
(ii) subject the limited partners of the Partnership to any
material liability or disability.
(b) Valid
Issuance of the Units . The Units and the limited partner
interests represented thereby, will be duly authorized in
accordance with the Partnership Agreement and, when issued and
delivered to the Purchaser against payment therefor in accordance
with the terms hereof, will be validly issued, fully paid (to the
extent required under the Partnership Agreement) and nonassessable
(except as such nonassessability may be affected by
Sections 17-303 and 17-607 of the Delaware Revised Uniform
Limited Partnership Act).
(c)
Authority . Each of the DEP Parties has all requisite
limited liability company and limited partnership power and
authority, as the case may be, to execute and deliver this
Agreement and perform its respective obligations hereunder. The
Partnership has all requisite power and authority to issue, sell
and deliver the Units, in accordance with and upon the terms and
conditions set forth in this Agreement and the Amended and Restated
Agreement of Limited Partnership of the Partnership, dated
February 5, 2007, as amended (the “ Partnership
Agreement ”).
1
(d)
Authorization, Execution and Delivery of
Agreements.
(i) This Agreement
has been duly authorized, validly executed and delivered by each of
the DEP Parties;
(ii) The
Partnership Agreement has been duly authorized, executed and
delivered by the General Partner and is a valid and legally binding
agreement of the General Partner, enforceable against the General
Partner in accordance with its terms; and
(iii) The Second
Amended and Restated Limited Liability Company Agreement of the
General Partner, dated May 3, 2007, has been duly authorized,
executed and delivered by the sole member of the General Partner,
and will be a valid and legally binding agreement of such sole
member, enforceable against it in accordance with its terms;
and
except , with respect to each agreement described in
this Section, as the enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws relating to or affecting
creditors’ rights generally and by general principles of
equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(e) No
Conflicts . None of the (i) offering, issuance and sale by
the Partnership of the Units pursuant to this Agreement,
(ii) the execution, delivery and performance of this Agreement
by the DEP Parties, or (iii) consummation of the transactions
contemplated hereby (A) conflicts or will conflict with or
constitutes or will constitute a violation of any organizational
documents of any of the DEP Parties, (B) conflicts or will
conflict with or constitutes or will constitute a breach or
violation of, or a default (or an event that, with notice or lapse
of time or both, would constitute such a default) under, any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which any of the DEP Parties is a party
or by which any of them or any of their respective properties may
be bound, (C) violates or will violate any statute, law or
regulation or any order, judgment, decree or injunction of any
court, arbitrator or governmental agency or body having
jurisdiction over any of the DEP Parties, or any of their
properties or assets, or (D) results or will result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of any of the DEP Parties, which conflicts,
breaches, violations, defaults or liens, in the case of clauses
(B) or (D) , would, individually or in the aggregate,
have an DEP Material Adverse Effect.
(f) Investment
Company . None of the DEP Parties is now, or after the sale of
the Units to be sold by the Partnership hereunder will be an
“investment company” or a company “controlled
by” an “investment company” within the meaning of
the Investment Company Act of 1940, as amended (the “
Investment Company Act ”).
(g) Absence of
Certain Actions . No action has been taken and no statute,
rule, regulation or order has been enacted, adopted or issued by
any governmental agency or body which prevents the issuance or sale
of the Units in any jurisdiction; no injunction, restraining order
or order of any nature by any federal or state court of competent
jurisdiction has been issued with respect to any of the DEP Parties
which would prevent or suspend the issuance or sale of the Units in
any jurisdiction; no action, suit or proceeding is pending against
or, to the knowledge of the DEP Parties, threatened against or
affecting any of the DEP Parties before any court or arbitrator or
any governmental agency, body or official, domestic or foreign,
which could reasonably be expected to interfere with or adversely
affect the issuance of the Units or in any manner draw into
question the validity or enforceability of this Agreement or any
action taken or to be taken pursuant hereto.
2.
Representations of the Purchaser.
(a) Formation
and Qualification of the Purchaser . The Purchaser has been
duly formed and is validly existing in good standing under the laws
of the State of Texas with all company power and authority
necessary to own or hold its properties and conduct the businesses
in which it is engaged and to execute and deliver this Agreement
and consummate the transactions contemplated thereby. The Purchaser
is duly registered or qualified to do business and is in good
standing as a foreign limited liability company in each
jurisd
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